U.S. v. Bergin

• Decision Date: 06 August 2010
• Docket Number: No. 2:09-cr-75-FtM-29SPC,2:09-cr-75-FtM-29SPC
• Citation: 732 F.Supp.2d 1235
• Parties: UNITED STATES of America v. Jason BERGIN, Carey Bergin, Robert Powner.
• Court: U.S. District Court — Middle District of Florida

732 F.Supp.2d 1235

UNITED STATES of America

v.Jason BERGIN, Carey Bergin, Robert Powner.

No. 2:09-cr-75-FtM-29SPC.

United States District Court,

M.D. Florida,

Fort Myers Division.

Aug. 6, 2010.

Douglas Molloy, Yolande G. Viacava, U.S. Attorney's Office, Ft. Myers, FL, for United States of America.

OPINION AND ORDER

JOHN E. STEELE, District Judge.

Shortly after midnight on July 28, 2009, Lee County Sheriff's Office deputies went to 20494 Sherrill Lane, Estero, Florida to arrest Jason Bergin on two outstanding arrest warrants. A chain of events led officers to secure the residence until 2 p.m., when a search warrant was executed. Defendants argue that during this time there were at least seven violations of their Fourth Amendment rights. As a result, defendants argue, almost everything observed by the officers and everything seized (except the person of Jason Bergin) must be suppressed. Defendants also assert that the Fourth Amendment violations taint the subsequent federal indictment and arrest warrants, thus requiring suppression of post-arrest statements made almost two months later, as well as a number of potential government witnesses.

I.

On March 26, 2010, United States Magistrate Judge Sheri Polster Chappell submitted a Report and Recommendation (Doc. # 205) to the Court recommending that various motions to suppress be denied. All three defendants filed objections(Docs. # 218, 220, 221). The Court heard oral arguments on July 21, 2010.

After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify the magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir.1982), cert. denied, 459 U.S. 1112, 103 S.Ct. 744, 74 L.Ed.2d 964 (1983). A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C); see also United States v. Farias-Gonzalez, 556 F.3d 1181, 1184 n. 1 (11th Cir.2009). This requires that the district judge "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir.1990) (quoting H.R. 1609, 94th Cong., § 2 (1976)). The district judge reviews legal conclusions de novo, even in the absence of an objection. Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir.1994).

All three defendants seek to adopt each other's objections to the Report and Recommendation. There being no objection to this procedure from the government, the Court will allow the adoption of the objections by all three defendants.

The Court accepts and adopts the procedural history (Doc. # 205, pp. 1-3) and the summary of the testimony and evidence (Doc. # 205, pp. 3-18) set forth in the Report and Recommendation. Additionally, the magistrate judge determined that defendant Robert Powner had standing to join in the motions to suppress (Doc. # 205, pp. 18-20), and no objection has been filed by the government to that determination. After a de novo review, that conclusion is accepted and adopted by the Court.

Because the testimony was inconsistent, the magistrate judge was required to make credibility findings and did so expressly. (Doc. # 205, pp. 21-24). All three defendants object to the credibility determinations made by the magistrate judge.

In evaluating the factual version of events between the law enforcement officers and defendants and other witnesses, the Court defers to the magistrate judge's determinations unless her understanding of the facts appears to be unbelievable. United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir.2002). After reading the transcript of the evidentiary hearing and the memoranda of the parties, and hearing the oral argument of counsel, the Court finds that the credibility determinations of the magistrate judge are reasonable and justified. The magistrate judge did not base her credibility determination solely on the status of the witnesses, but rather weighed the testimony of all the witnesses, taking into account the interests of the witnesses, the consistencies or inconsistencies in their testimonies, and their demeanor on the stand. The Court therefore accepts and adopts the magistrate judge's credibility findings and the findings of fact flowing therefrom, and overrules defendants' objections based upon credibility determinations.

II.

Defendants object to the magistrate judge's findings and conclusions regarding various entries by the officers into the residence/trailer at 20494 Sherrill Lane (hereinafter interchangeably referred to as the trailer or the residence). The specific Fourth Amendment issues will be addressed below, in chronological order. The Court adopts portions of the Report and Recommendation, supplements portions, and rejects portions.

A. General Legal Principles

The Fourth Amendment to the United States Constitution provides in part that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, ..." U.S. Const. amend. IV. The ultimate touchstone of the Fourth Amendment is reasonableness. Michigan v. Fisher, --- U.S. ----, 130 S.Ct. 546, 548, 175 L.Ed.2d 410 (2009). While a search or seizure inside a home without a warrant is presumptively unreasonable, that presumption can be overcome. Id.

Beginning with Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), the Supreme Court created an evidentiary exclusionary rule to effectuate Fourth Amendment rights. Weeks barred physical evidence directly obtained through an illegal search from being used against the victim of the search in a federal criminal prosecution. In Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920) the Supreme Court held that the exclusionary rule applied to knowledge obtained by violation of the Fourth Amendment, as well as tangible materials obtained by the violation. Also included within the scope of the exclusionary rule are overheard verbal statements and testimony about matters observed during the Fourth Amendment violation. Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Thus, "[e]vidence obtained as a direct result of an unconstitutional search or seizure is plainly subject to exclusion." Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).

In Silverthorne, the Supreme Court extended the exclusionary rule to include indirect products, as well as the direct products, of a Fourth Amendment violation. Wong Sun, 371 U.S. at 484-85, 83 S.Ct. 407. Siverthorne precluded the government from using not only the illegally obtained evidence itself, but also barred the use of information obtained during the unlawful search to craft a subpoena to obtain the illegally viewed documents from the victims of the Fourth Amendment violation. Wong Sun precluded not only the use of verbal statements by a defendant after a warrantless arrest in his residence, but narcotics seized from another person who was discovered by exploiting defendant's statements. Wong Sun stated the now-familiar standard:

We need not hold that all evidence is "fruit of the poisonous tree" simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is "whether, granting establishment of the primary illegality, 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, 371 U.S. at 487-88, 83 S.Ct. 407. "The question to be resolved when it is claimed that evidence subsequently obtained is 'tainted' or is 'fruit' of a prior illegality is whether the challenged evidence was come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Segura, 468 U.S. at 804-05, 104 S.Ct. 3380 (internal quotation marks and citation omitted).

Thus, it is now well-established that under the exclusionary rule "evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure." United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) (citations omitted). The "exclusionary rule reaches not only primary evidence obtained as a direct result of anillegal search or seizure, but also evidence later discovered and found to be derivative of an illegality or 'fruit of the poisonous tree.' " Segura, 468 U.S. at 804, 104 S.Ct. 3380. The "fruits" of a Fourth Amendment violation include physical material actually seized in an illegal search, items observed or words overheard in the course of the unlawful activity, and confessions or statements of the accused obtained during an illegal arrest and detention. United States v. Crews, 445 U.S. 463, 470, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980) (citations omitted).

The purpose of the exclusionary rule is not to redress the injury to the privacy of the Fourth Amendment victim, but to deter future unlawful police conduct, thereby effectuating the Fourth Amendment guarantee against unreasonable search and seizure. Calandra, 414 U.S. at 347-48, 94 S.Ct. 613. While it has not always been clear, it is now settled that the question of whether the exclusionary rule is appropriate in a particular context is a separate issue from the question of whether the Fourth Amendment has been violated by the police conduct. Arizona v. Evans, 514 U.S. 1, 12-13, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995); Hudson v. Michigan, 547 U.S. 586, 592, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006). Thus, the fact that a Fourth Amendment violation has occurred does not necessarily mean that the exclusionary rule applies. Herring v. United...