U.S. v. Fellers

• Decision Date: 15 February 2005
• Docket Number: No. 01-2045.,01-2045.
• Citation: 397 F.3d 1090
• Parties: UNITED STATES of America, Appellee, v. John J. FELLERS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

397 F.3d 1090

UNITED STATES of America, Appellee, v. John J. FELLERS, Appellant.

No. 01-2045.

United States Court of Appeals, Eighth Circuit.

Submitted: September 13, 2004.

Filed: February 15, 2005.

COPYRIGHT MATERIAL OMITTED

Noah A. Levine, argued, New York, NY (Seth P. Waxman and Paul R.Q. Wolfson of Washington, D.C., on the brief), for appellant.

Nina Goodman, argued, Dept. of Justice, Washington, D.C, for appellee.

Before WOLLMAN, LAY, and RILEY, Circuit Judges.

WOLLMAN, Circuit Judge.

This case returns to us on remand from the Supreme Court. We affirm Fellers's conviction, but remand to the district court for resentencing.

I.

Two policemen went to Fellers's home in Lincoln, Nebraska, to arrest him on February 24, 2000. After the officers entered the home, they told Fellers that a grand jury had indicted him for conspiracy to distribute methamphetamine, that the indictment concerned an alleged conspiracy with certain named persons, and that the officers had a federal warrant for his arrest. Fellers stated that he knew the co-conspirators in question and that he had used methamphetamine in the past.

After about 15 minutes, the officers arrested Fellers and transported him to jail. Fellers was booked and taken to an interview room, where the officers gave him a full Miranda warning. Fellers waived his Miranda rights both verbally and in writing, repeated the statements he had made at his home, and stated that he had purchased methamphetamine from some of the co-conspirators named in the indictment. Fellers admitted knowing several more individuals and that he had purchased methamphetamine from some of them and used methamphetamine with some of them. He also stated that he had loaned money to another co-conspirator even though he suspected that the money might have been used for drug transactions. Throughout his jailhouse interrogation, however, Fellers repeatedly denied that he had ever sold methamphetamine.

Following a magistrate judge's hearing and recommendation, the district court suppressed the statements made at Fellers's home, but allowed Fellers's jailhouse statements to be introduced at trial. A jury found Fellers guilty of conspiracy to distribute and to possess with intent to distribute between 50 and 500 grams of methamphetamine. At sentencing, over Fellers's objection, the district court found that Fellers was actually responsible for more than 500 grams of methamphetamine and accordingly raised Fellers's base offense level from 30 to 32. The district court also raised Fellers's criminal history category from category II to category III based upon conduct underlying a prior guilty plea, even though the conviction entered pursuant to the plea was later expunged.

We upheld Fellers's conviction against Fifth and Sixth Amendment challenges and held that Fellers's jailhouse statements were admissible under Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). United States v. Fellers, 285 F.3d 721, 724 (8th Cir.2002) (Fellers I). The Supreme Court reversed our decision and concluded that the officers had deliberately elicited the statements made at Fellers's home in violation of Fellers's Sixth Amendment right to counsel. Fellers v. United States, 540 U.S. 519, 524-25, 124 S.Ct. 1019, 157 L.Ed.2d 1016 (2004) (Fellers II). The Court remanded the case to us for a determination whether Fellers's jailhouse statements should be suppressed as fruits of the initial Sixth Amendment violation and whether the Oregon v. Elstad rationale "applies when a suspect makes incriminating statements after a knowing and voluntary waiver of his right to counsel notwithstanding earlier police questioning in violation of Sixth Amendment standards." Id. at 525, 124 S.Ct. 1019.

II.

Fellers argues that Elstad does not apply to violations of the Sixth Amendment because the Elstad rule was never designed to deal with actual violations of the Constitution. In addition, Fellers argues that Elstad — which was crafted to serve the Fifth Amendment — is inapplicable because it is ill-suited to serve the distinct concerns raised by the Sixth Amendment and because violations of the Miranda rule are fundamentally different from the Sixth Amendment violation at issue in this case. We disagree.

A.

In Elstad, the Supreme Court held that an initial failure to administer Miranda warnings, in the absence of actual coercion or tactics calculated to undermine an individual's free will, does not require the suppression of subsequent voluntary statements given after proper Miranda warnings and a valid waiver of Miranda rights. Elstad, 470 U.S. at 309, 105 S.Ct. 1285. Two policemen went to Elstad's home with a warrant for his arrest for burglary. While in Elstad's living room, one of the officers told Elstad that he believed that Elstad was involved in the burglary. Elstad responded, "Yes, I was there." The officers then took Elstad to the county sheriff's office and advised him of his Miranda rights approximately one hour later. Elstad indicated that he understood his rights and wished to waive them and speak with the officers. Elstad then gave and signed a full written statement regarding his involvement in the burglary. The trial court suppressed the initial statement made at Elstad's home, but admitted Elstad's signed, written confession. Id. at 300-02, 105 S.Ct. 1285. The Supreme Court affirmed the trial court's decision and held that the "fruit of the poisonous tree" doctrine, which would have excluded the subsequent confession if it were tainted by the initial Miranda violation, was inapplicable in the Miranda context. Id. at 306-07, 105 S.Ct. 1285.

The Supreme Court stated in Elstad that its rejection of the exclusionary rule in the Miranda context was premised on the fact that a violation of Miranda was not, by itself, a violation of the Fifth Amendment and on the fact that the protections afforded by the Miranda rule sweep more broadly than the Fifth Amendment itself. See id. at 305-07, 105 S.Ct. 1285 ("Respondent's contention that his confession ... must be excluded as `fruit of the poisonous tree' assumes the existence of a constitutional violation."). The Court also stated that Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), stands for the proposition that constitutional violations mandate application of the fruits doctrine. Elstad, 470 U.S. at 308-09, 105 S.Ct. 1285. This justification for Elstad's holding, however, was undercut by the Court in Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). In Dickerson, the Court held that Elstad's rationale rested not on the fact that Miranda was not a constitutionally mandated rule, but instead on the fact that unreasonable searches under the Fourth Amendment are different from unwarned interrogation under the Fifth Amendment. Id. at 441, 120 S.Ct. 2326. Additionally, we have interpreted Dickerson as "reaffirm[ing] the validity of Elstad by reaffirming the distinction between application of the exclusionary rule following Fourth and Fifth Amendment violations." United States v. Villalba-Alvarado, 345 F.3d 1007, 1012 (8th Cir.2003).¹

B.

Whether the exclusionary rule applies to evidence acquired subsequent to a constitutional violation requires consideration of the possible admissibility of the evidence in light of the "distinct policies and interests" of each Amendment. See Elstad, 470 U.S. at 306-07, 105 S.Ct. 1285; Brown v. Illinois, 422 U.S. 590, 602, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). When applied to a confession that is the fruit of unlawful police conduct, the exclusionary rule ensures that the fruits are excluded from trial unless they result from an "intervening act of free will" by the suspect. Wong Sun, 371 U.S. at 486, 83 S.Ct. 407.

Although the exclusionary rule is most often applied in the Fourth Amendment context, its application has not been limited to Fourth Amendment violations. Nix v. Williams, 467 U.S. 431, 442 & n. 3, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). The Supreme Court instead has applied the exclusionary rule to violations of both the Fifth and Sixth Amendment. Id. The Court has repeatedly noted, however, that the core reason for extending the exclusionary rule to these areas is to deter police from violating constitutional and statutory protections. Id. at 442-43, 104 S.Ct. 2501. See also United States v. Patane, ___ U.S. ___, ___, 124 S.Ct. 2620, 2629, 159 L.Ed.2d 667 (2004) (plurality opinion). Another relevant consideration in extending the exclusionary rule is whether application of the rule would effectuate the purposes of the constitutional provision at issue. See Brown, 422 U.S. at 601, 95 S.Ct. 2254.

The Fourth Amendment traditionally mandates a "broad application" of the exclusionary rule. Elstad, 470 U.S. at 306, 105 S.Ct. 1285. The exclusionary rule operates in the Fourth Amendment context to deter unreasonable searches and seizures regardless of the probativeness of their fruits. Id. Where the fruits of the Fourth Amendment violation are confessions, courts apply the exclusionary rule to ensure that the confession is not causally linked to the initial illegality. Brown, 422 U.S. at 602-03, 95 S.Ct. 2254. By applying the exclusionary rule, courts "assure in every case that the Fourth Amendment violation has not been unduly exploited," and thus effectuate the Fourth Amendment's purpose of prohibiting unreasonable searches and seizures. Id. at 603, 95 S.Ct. 2254. Miranda warnings do not obviate the need for the exclusionary rule in the Fourth Amendment context because the warnings cannot, "alone and per se," ensure that a voluntary confession taken subsequent to a Fourth Amendment violation was an act of free will sufficient to break the causal connection between the violation and the confession. Id.

The Fifth Amendment, in contrast, prohibits the prosecution from using compelled testimony in its case in chief and ensures that any evidence introduced at...