95 F.3d 409 (6th Cir. 1996), 95-5687, United States v. Leake

Docket Nº:95-5687.
Citation:95 F.3d 409
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Charles V. LEAKE, Defendant-Appellant.
Case Date:September 09, 1996
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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95 F.3d 409 (6th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellee,


Charles V. LEAKE, Defendant-Appellant.

No. 95-5687.

United States Court of Appeals, Sixth Circuit

September 9, 1996

Argued May 24, 1996.

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Terry M. Cushing, Asst. U.S. Atty., Stephen G. Frye, Asst U.S. Atty. (argued and briefed), Office of U.S. Atty., Louisville, KY, for plaintiff-appellee.

Theodore H. Lavit (briefed), Stephen B. Humphress (argued and briefed), Lavit & Abell, Lebanon, KY, for defendant-appellant.

Before: RYAN and NORRIS, Circuit Judges; DOWD, District Judge [*].

DOWD, District Judge.


This case requires consideration of the "fruit of the poisonous tree" teachings against the background of our earlier decision that the 1988 search of defendant Charles Leake's residence violated the Fourth Amendment. The defendant was indicted on November 20, 1991 for the substantive offense of possession of marijuana on April 15, 1988, the date of the unlawful search. The defendant was also charged with conspiracy with respect to marijuana covering an earlier period of time. Prior to this appeal, Leake moved to suppress evidence seized during the April 15, 1988 search of his residence. The district court held that search unconstitutional. The trial of Leake was delayed with his acquiescence while the government appealed the district court's suppression. This court affirmed the district court. United States v. Leake, 998 F.2d 1359 (6th Cir.1993).

Following the appeal, the government indicated that it was prepared to prosecute the conspiracy counts. Leake moved to suppress additional evidence on the ground that it constituted "fruit of the poisonous tree" in that it was derived from the unconstitutional search. The government argued that the independent source and inevitable discovery doctrines permitted admission of the additional evidence and offered testimony in a suppression hearing in support of its position. The district court adopted the magistrate judge's report which recommended denying Leake's motion. Leake then entered a conditional plea of guilty to a single count of conspiracy and was sentenced to a term of imprisonment for 46 months. On appeal, Leake challenges the denial of his motion to exclude the additional evidence. For reasons that follow, we reverse the judgment of the district court, vacate the sentence and remand for further proceedings.


The exclusionary rule bars the admissibility of items seized during an unconstitutional search, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and of testimony concerning knowledge acquired during such a search. Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961).

An offshoot of the rule is the "fruit of the poisonous tree" doctrine, which bars evidence which, though not obtained in the illegal search, was derived from information or items obtained in the search. See Murray v. United States, 487 U.S. 533, 536-37, 108 S.Ct. 2529, 2533, 101 L.Ed.2d 472 (1988) (doctrine "prohibits the introduction of derivative evidence, both tangible and testimonial, that is the product of the primary [illegally obtained] evidence"). The doctrine ensures that the government cannot achieve indirectly what it is forbidden to accomplish directly. As Justice Frankfurter articulated, "To forbid the direct use of methods but to put no curb on their full indirect use would only invite the very methods deemed inconsistent with ethical standards and destruction of personal liberty." Nardone v. United States, 308 U.S. 338, 340, 60 S.Ct. 266, 267, 84 L.Ed. 307 (1939).

At the same time, evidence obtained from an illegal search does not become "sacred

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and inaccessible." Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920). So that the government "is not put into a worse position simply because of some earlier police error or misconduct," the government can show that evidence that might be excluded under the fruit of the poisonous tree doctrine should be admitted under another rationale. Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 2508, 81 L.Ed.2d 377 (1984) (emphasis in original). The government in this case offers two theories under which evidence originally obtained in or derived from the illegal search of Leake's residence should be admissible: the independent source doctrine and the inevitable discovery doctrine.

Under the independent source doctrine, evidence will be admitted if the government can show it was discovered through sources "wholly independent of any constitutional violation." Nix, 467 U.S. at 442-43, 104 S.Ct. at 2508-09 (1984). The doctrine ensures that the government is not penalized for wrongdoing when such wrongdoing would not bear on the outcome of the case. "In the classic independent source situation, information which is received through an illegal source is considered to be cleanly obtained when it arrives through an independent source unrelated to and independent of the unconstitutional search." Murray v. United States, 487 U.S. at 538-39, 108 S.Ct. at 2534 (quotation and citation omitted).

The inevitable discovery doctrine is conceptually more problematic than the independent source doctrine because it involves a degree of deducing what would have happened rather than simply evaluating what actually happened. Under the inevitable discovery doctrine, evidence may be admitted if the government can show that the evidence inevitably would have been obtained from lawful sources in the absence of the illegal discovery. Nix, 467 U.S. at 444, 104 S.Ct. at 2509.

By its nature, the inevitable discovery doctrine requires some degree of speculation as to what the government would have discovered absent the illegal conduct. Speculation, however, must be kept to a minimum; courts must focus on "demonstrated historical facts capable of ready verification or impeachment." Id. at 444-45 n. 5, 104 S.Ct. at 2509 n. 5. The burden of proof is on the government to establish that the tainted evidence "would have been discovered by lawful means." Id. at 444, 104 S.Ct. at 2509.

The Sixth Circuit has noted that the inevitable discovery exception "applies when the government can demonstrate either the existence of an independent, untainted investigation that inevitably would have uncovered the same evidence or other compelling facts establishing that the disputed evidence inevitably would have been discovered." United States v. Kennedy, 61 F.3d 494, 499 (6th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1351, 134 L.Ed.2d 520 (1996) (emphasis in original). The inevitable discovery doctrine "requires the district court to determine, viewing affairs as they existed at the instant before the unlawful search, what would have happened had the unlawful search never occurred." Id. at 498 (quoting United States v. Eng, 971 F.2d 854, 861 (2d Cir.1992)).

In evaluating whether evidence should be admitted under either the independent source or the inevitable discovery doctrines, courts should keep in mind the underlying question: "whether, granting establishment of the primary illegality, [the evidence has] been come at by the exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963); United States v. Buchanon, 72 F.3d 1217, 1226 (6th Cir.1995).

Against the background of these well established principles of law, we turn to a consideration of this fact-intensive dispute which includes numerous events involving many persons, some of whom were co-defendants in the marijuana conspiracy charged in count one of the indictment.


The long history of this case dates back to October 1987, when a hunter told the Indiana State Police ("ISP") that he had observed

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marijuana growing on a farm in Owen County, Indiana. During a search executed pursuant to a valid warrant, the ISP found a 60-acre patch of marijuana on the farm. The ISP arrested Charles Atkinson when he arrived at the farm later that day. Among Atkinson's possessions was paperwork referencing another farm in Paris, Missouri. Drug Enforcement Agency ("DEA") agents and Missouri State Police officers went to the Paris farm on October 12, 1987. Agents there interviewed William Ricky Sapp and observed two individuals fleeing the farm. While in pursuit of the fleeing individuals, agents observed several marijuana plants in a barn on the farm. Agents promptly obtained a search warrant and seized 6,000 pounds of marijuana on the property.

On October 22 and 23, 1987, DEA agents interviewed the real estate agents involved in the sale of the Paris farm in the spring of 1987. The Realtors indicated that the Paris farm was sold to individuals identifying as themselves Charles Harrison and Bob Wall. The Realtors later identified Harrison and Wall as Atkinson and Joseph O'Daniel, respectively.

Agents subpoenaed Atkinson's phone records and identified a number of telephone calls to the home phone of Joseph O'Daniel, who became a central target of the investigation. 1 In March 1988, Atkinson agreed to cooperate with the DEA. He revealed the existence of a marijuana growing and distribution enterprise and implicated Joseph O'Daniel, Alex Soloweyko, Andrew Brady and William Ricky Sapp. Atkinson identified Joseph O'Daniel as the financier and primary distributor of the marijuana. Atkinson discussed his involvement in the operation of two farms in Owen County, Indiana, and a third farm located near Quincy, Illinois. Atkinson told officers that Brady ran one of the farms in Owen...

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