U.S. v. Allard

• Decision Date: 08 January 1980
• Docket Number: No. 79-1821,79-1821
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wayne ALLARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1182

634 F.2d 1182

UNITED STATES of America, Plaintiff-Appellee, v. Wayne ALLARD, Defendant-Appellant.

No. 79-1821.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 30, 1980.

Decided Oct. 14, 1980.

Rehearing Denied Jan. 8, 1980.

Octavia Chambliss, Seattle, Wash., for defendant-appellant.

Frances J. Diskin, Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington at Seattle.

Before ELY, Senior Circuit Judge, NELSON, Circuit Judge, and KARLTON, ^* District Judge.

KARLTON, District Judge.

In United States v. Allard, 600 F.2d 1301 (9th Cir. 1979) ("Allard I"), this Court held that a warrantless entry into defendant's hotel room violated the Fourth Amendment. The Court remanded the case to the district court to determine "whether the evidence the government seeks to admit was in fact tainted by the illegal entry," Id. at 1302, in light of the fact that the government subsequently obtained a search warrant that was not on its face based upon any information discovered pursuant to the illegal entry. On remand, the district court found that the government's decision to seek a search warrant was not tainted by As we explain, although the district court's finding is not clearly erroneous, we nonetheless reverse for reasons not reached in Allard I. ¹ We hold that suppression is required because the ongoing illegal seizure of the contents of the hotel room could not, under these facts, be cured by procuring a search warrant even though that warrant was not based upon facts discovered as a result of the illegal seizure.

any information discovered during the illegal entry and denied appellant's motion to suppress evidence found in the search. This appeal followed.

I ALLARD I

In Allard I this Court held that the initial warrantless entry into appellant's hotel room could not be justified by "exigent circumstances" or on the theory that the occupant of the room consented to the entry. Moreover, the Court held that the fact that a warrant was later obtained "could not retroactively authorize the entry." Id. at 1304. Nonetheless, the government argued that "the evidence should not have been suppressed because it did not result from the illegal entry, but from the search pursuant to a legal warrant." Id. at 1304-05 (fn. omitted). In short, the government argued that the evidence was untainted since its seizure was pursuant to the warrant and the warrant was supported by an affidavit untainted by the illegal search. In examining the government's claims that it "learned of the evidence 'from an independent source'," Wong Sun v. United States, 371 U.S. 471, 487, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963) (quoting Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920)), the Allard I court looked to three prior Ninth Circuit cases for guidance. In United States v. Bacall, 443 F.2d 1050 (9th Cir. 1971), cert. denied, 404 U.S. 1004, 92 S.Ct. 565, 30 L.Ed.2d 557 (1971), the court held that even if a subsequent search was not "wholly independent" of an unlawful seizure, the seized items were nonetheless not "tainted" if the evidence was obtained without resort to any knowledge gained from the illegal search or at least the effect of any such knowledge was "de minimis." Id. at 1057-59, cited in Allard I, 600 F.2d at 1305. Moreover, if the illegally obtained evidence "merely intensified" a subsequent investigation, suppression was not warranted. Allard I, 600 F.2d at 1305 (citing United States v. Choate, 576 F.2d 165, 186 (9th Cir. 1978), cert. denied, 439 U.S. 953, 99 S.Ct. 350, 58 L.Ed.2d 344 (1978) (Hufstedler, J., concurring and dissenting) and United States v. Cella, 568 F.2d 1266, 1285 (9th Cir. 1977).

The Allard I court cited with approval the analysis of the allegation of the burden of proof with regard to an "independent source" claim set forth by Judge Hufstedler in United States v. Choate, supra, at 186:

While the ultimate burden of proof is on the Government to show the absence of taint, the defendant must first establish a factual nexus between the illegality and the challenged evidence. The mere establishment of an illegal search does not place upon the Government the burden of affirmatively proving that each and every piece of evidence is free from taint. (Emphasis added.)

Because the trial court had suppressed the evidence upon a showing that the initial entry was illegal, ² the record before the Allard I court did not demonstrate whether or not the defendants had established "the requisite 'factual nexus between the illegality and the challenged evidence.' " 600 F.2d at 1306 (fn. omitted). Since "the question of taint was not fully explored below," id., the court remanded the case to the district court to determine "whether the evidence the government seeks to admit was in fact tainted by the illegal entry," id. at 1302.

II FACTS

As the Allard I court recounted and as facts elicited on remand further reveal, one group of government agents had gone to appellant's hotel room while another group was conducting a lawful search at the home of a confederate. The first group of agents entered the hotel room and determined to "stay there whatever Mr. Berg (the occupant of the room) did or said," and to not allow Berg to leave, or even go to the bathroom alone, "no sir!" These agents were subsequently reinforced by two additional agents. Although the agents may have originally gone to the hotel room to "continue their investigation," once inside the room they decided that they had "probable cause to stay there," and that a search warrant should be obtained.

One of the agents went to call the United States Attorney to ask for a search warrant. At that time no application had been made for a search warrant although the United States Attorney contemplated seeking one because no drugs had, as of yet, been discovered in the home of the confederate. The United States Attorney reacted to the call from the agent with "extreme disappointment" because he feared that the entry "might destroy whatever case would resolve out of a search of that room pursuant to a valid warrant." The agent told the United States Attorney that he would "go back up in the room and await your call."

Following this call, the United States Attorney prepared an application for a search warrant which not only did not rely on any evidence discovered by the agents in the hotel room, but did not even disclose that government agents were presently in possession of the room and its contents. The United States Attorney decided to omit any such references in the apparently good faith belief that such references would "taint" any subsequent search warrant.

A search warrant was subsequently obtained and executed some two hours after the agents initially seized the hotel room. The district court found on remand that the decision to seek a search warrant was not motivated by anything discovered during the illegal entry or, if it was, any taint was "de minimis." Since the search warrant was not based upon facts discovered in the hotel room, the motion to suppress was denied.

III UNLAWFUL SEARCHES, INDEPENDENT SOURCES AND UNLAWFUL SEIZURES

While we agree with the government that the district court's factual finding was not clearly erroneous, we do not agree that a finding that the search warrant was based upon an independent source ends the matter. As we shall point out, the fact that the search warrant was "untainted" does not immunize the government from a suppression motion because in this case the evidence was illegally seized before the search warrant was obtained.

In Allard I, the district court suppressed the evidence upon determining that an illegal entry had occurred. The Court of Appeals was thus confronted with the issue of whether an illegal entry automatically tainted all of the evidence in the case. Thus, analysis in that case focused on the issues of independent source and attenuation since, as Allard I noted, an illegal entry does not automatically taint a subsequent warrant and search. Allard v. United States, supra, at 1306 n.5. Obviously, if the challenged evidence is discovered through a source independent of the illegal entry, no factual nexus between the illegal conduct and the challenged evidence can be established. See Wong Sun v. United States, supra, 371 U.S. at 487, 83 S.Ct. at 417.

Accordingly, the court remanded for the purpose of determining the relationship between the unlawful entry (which it properly characterized as a search) and the evidence seized. Given the factual and procedural posture Allard I presented, the court had no occasion to consider the effect of an illegal and continuing seizure of the evidence prior to the issuance and exercise of the search warrant.

It appears to us, however, that where, as here, the entry and search were not the sole unlawful conduct but were followed by a continuing illegal seizure, we must consider the implications of that unlawful seizure. The Fourth Amendment, it must be remembered, prohibits both unlawful searches and unlawful seizures. Here again the ultimate question to be resolved is whether "the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Wong Sun v. United States, supra, at 488, 83 S.Ct. at 417. ³

We begin with the facts elicited in the district court's two hearings. The Drug Enforcement Administration ("DEA") officials entered the motel room and secured it. Neither the occupant of the room nor its effects were permitted to leave or be removed. As the Allard I court noted, the entry constituted a search; however, and in addition, by any rational test the conduct also constituted a seizure. The appropriate analysis is implicit in this court's decision in United States v. Bacall, supra....