U.S. v. Scios

• Decision Date: 27 July 1978
• Docket Number: No. 75-1619,75-1619
• Citation: 590 F.2d 956,191 U.S.App.D.C. 254
• Parties: UNITED STATES of America, Appellant, v. Robert J. SCIOS a/k/a Robert Schwartz.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 956

590 F.2d 956

191 U.S.App.D.C. 254

UNITED STATES of America, Appellant, v. Robert J. SCIOS a/k/a Robert Schwartz.

No. 75-1619.

United States Court of Appeals District of Columbia Circuit.

Argued En Banc May 26, 1977.

Decided July 21, 1978.

As Amended July 27, 1978.

Hamilton P. Fox, III, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Asst. U. S. Atty., and Barry W. Levine, Asst. U. S. Atty., Washington, D. C., at the time the brief was filed, were on the brief, for appellant.

Walter H. Fleischer, Washington, D. C., with whom Axel Kleiboemer, Washington, D. C., was on the brief, for appellee.

Before WRIGHT, Chief Judge, and BAZELON, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.

Opinion for the Court filed by LEVENTHAL, Circuit Judge.

Dissenting opinion filed by MacKINNON, Circuit Judge.

Dissenting opinion filed by ROBB, Circuit Judge.

Dissenting opinion filed by WILKEY, Circuit Judge, with whom TAMM, Circuit Judge, joins.

LEVENTHAL, Circuit Judge:

On June 28, 1974, defendant Robert J. Scios was indicted for unlawful interception of wire communications and related offenses. ¹ By order of May 20, 1975, the district court suppressed the testimony of a potential witness, Thomas Massa, Jr., on the ground that Massa's testimony was the product of an illegal search. ² The government appealed that order, and on Aug. 23, 1976, a panel of this court reversed the district court order on the ground that the "taint" attaching to Massa's testimony by virtue of the illegal search had been "attenuated" sufficiently to permit introduction of the testimony at defendant Scios's trial. ³

We have reheard the case en banc and concluded that the challenged testimony must be excluded as tainted by the illegal search.

I. FACTUAL BACKGROUND

On Sept. 29, 1972, telephone linemen came upon electronic devices attached to the telephone lines of a pharmacy in Washington, D. C., known as Your Pharmacy Service. The FBI began an investigation, which led eventually to the defendant Scios, a licensed private investigator. A warrant for his arrest was issued on Feb. 15, 1974. The prosecuting attorney concluded that there was no basis for application for a search warrant, and no search warrant was sought.

FBI agents proceeded to Scios's residence in New York City and arrested him there. After Scios had been physically taken into custody and a gun had been removed from his desk, one of the agents looked around the room "for nothing in particular." His attention focused upon a credenza, located three or four feet in back of defendant's desk. On top of the credenza were about 60 file folders, in wire racks, labeled with various projects Scios had worked on in his capacity as a private investigator. Defendant's access to the credenza was, according to FBI testimony, blocked by the presence of an FBI agent between defendant and the credenza. The trial court found that the credenza was beyond the area of defendant's immediate control. ⁴

At this point one of the agents went to the credenza and removed a file folder labeled "Your Pharmacy Service" the name of the pharmacy upon whose telephone lines the electronic devices had been found. The government contended that the label on this folder was in plain view of the agents. The court found as a fact to the contrary; rather, the agent had "bent over, read through the folders, and fingered them so that their labels could be read." ⁵

The folder was found to contain various papers, including a credit card charge slip with Scios's name on it from a motel in Washington, D. C., and an itemized bill from the same motel, indicating "Mr. Massa" had registered for the room. These items bore the date July 26, 1972, which established a likely temporal link to the period of the wiretapping. Using the motel's record of telephone calls made from the room, the F.B.I. was able to locate in New York City the potential witness Thomas Massa, Jr.

A subpoena was issued commanding Massa to appear before a grand jury in the District of Columbia. ⁶ Massa was initially reluctant to speak to the prosecutor in Washington, but on the advice of his family he appeared, on May 5, 1974, in the prosecutor's office. Massa was told that preparations were being made to grant him immunity from prosecution for matters to which his grand jury testimony might relate. In his first appearance before the grand jury, before immunity had been granted, Massa refused to testify, asserting his privilege against self-incrimination.

On May 8, 1974, the District Judge issued an order directing Massa to testify conferring appropriate immunity. Massa was again taken before the grand jury and again refused to testify, but then reluctantly acquiesced after Judge Hart's order was read to him. The indictment of Scios followed.

II. PROCEEDINGS IN THE DISTRICT COURT

In October, 1974, defendant Scios moved the district court to suppress as evidence the file folder and its contents, as well as all evidence derived therefrom. He moved, in addition, to suppress all oral statements made by him at the time of arrest, and any evidence derived therefrom. On Dec. 10, 1974, the court granted these suppression motions. Its order was based on two alternative grounds. It ruled, first, that the affidavit in support of the warrant for Scios's arrest had failed to establish probable cause to believe that Scios had committed a crime; consequently, the challenged evidence was suppressed as the product of an illegal arrest. The court then assumed, Arguendo, that the arrest Had been lawful, and went on to hold that the seizure of the file folder was nevertheless illegal since the folder was not seized in a search incident to arrest as permitted under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), nor was it in plain view. Neither defendant's motions to suppress nor the government's responses to these motions mentioned the testimony of the witness Massa.

On April 23, 1975, long after the period for appeal of the foregoing order had elapsed, the government moved the court for a determination of whether Massa's testimony was admissible at trial. ⁷ The government argued that the taint attaching to Massa's testimony by virtue of the illegal seizure of the folder had been attenuated by intervening events, contending particularly that there was attenuation in Massa's ultimate "act of volition" in deciding to testify. On May 20, 1974, the district court ruled that the taint had not been sufficiently attenuated to permit introduction of Massa's testimony.

III. QUESTIONS PRESENTED

The district court's December 10, 1974, order holding the seizure was illegal was not appealed. On this appeal, from the April 23, 1975, order, suppressing Massa's testimony, the government does not contest the district court's ruling that the seizure was a violation of the fourth amendment. ⁸ It argues a claim of attenuation that the taint attributable to the illegal seizure of the defendant's file folder has been sufficiently dissipated to permit introduction of the testimony of Thomas Massa, Jr., at trial.

The exclusionary rule was established in Weeks v. United States,232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The purpose of the rule is to safeguard fourth amendment rights. United States v. Calandra, 414 U.S. 338, 347-48, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). The rule bars the introduction at trial not only of evidence seized in violation of the fourth amendment, but also of evidence obtained as an indirect result of the illegal seizure the fruit of the poisoned tree. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). An exception to this "tainted fruit" doctrine has been established for the case where the connection between the illegal seizure and the subsequent discovery of the challenged evidence has "become so attenuated as to dissipate the taint," Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939). It is related to the rule, plainly not available to the government here, that permits the introduction of evidence to which the government was led by means independent of the illegal search or seizure. ⁹

In certain circumstances, the attenuation doctrine has been applied where the witness who has been located as the result of an illegal search or seizure has voluntarily decided to testify. See Wong Sun v. United States, 371 U.S. at 491, 83 S.Ct. 407. The principle underlying this application of the attenuation doctrine has not been articulated with clarity. It is probably an adaptation, with adjustment, of the general legal conception that sees the link of causation broken when an intervening cause is independent. ¹⁰

Turning to the case before us, we examine first the claim that the taint of the illegal seizure was attenuated by a voluntary decision to testify; and next, the claim of attenuation of the taint by the complexity of intervening factors.

A. Voluntariness: In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the Court excluded the incriminating statements of defendant Toy, made shortly after his illegal arrest, while handcuffed and surrounded by federal narcotics agents. The Court said it was unreasonable to judge that his response to the police interrogation "was sufficiently an act of free will to purge the primary taint" of an illegal arrest, 371 U.S. at 486, 83 S.Ct. at 416. The statement of Wong Sun, a co-defendant, was, by contrast, deemed admissible. Wong Sun had also been arrested without probable cause. His statement, however, was not made immediately after arrest; rather, he was released in his own recognizance and returned voluntarily several days later to make the statement. Id. at 491, 83 S.Ct. 407. The Supreme Court found that "the connection between the arrest and the...