U.S. v. Caldwell

• Decision Date: 26 December 1984
• Docket Number: No. 84-2262,84-2262
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Eldridge CALDWELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 341

750 F.2d 341

UNITED STATES of America, Plaintiff-Appellee, v. William Eldridge CALDWELL, Defendant-Appellant.

No. 84-2262.

United States Court of Appeals Fifth Circuit.

Dec. 26, 1984.

Ralph E. Allen (Court-appointed), Tyler, Tex., for defendant-appellant.

Robert Wortham, U.S. Atty., Beaumont, Tex., Dane Smith, Tyler, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before THORNBERRY, GARWOOD and HILL, Circuit Judges.

THORNBERRY, Circuit Judge:

William Caldwell appeals his conviction for possession of marijuana ¹ on the grounds that Federal Correctional Institution (FCI) officials subjected him to a digital rectal search that violated his fourth, fifth, and eighth amendment rights. Caldwell also contends that his right to due process was violated when certain FCI officials refused to be interviewed by his defense counsel after the Executive Assistant to the Warden advised them that they were not legally obligated to do so. Finally, he argues that the district court abused its discretion in denying his request to discover the identity of other inmates who had been subjected to digital searches. The district court referred Caldwell's Motion to Suppress and Motion to Dismiss to the United States Magistrate for consideration. After a hearing the magistrate made written findings and conclusions. The district court adopted the magistrate's findings and conclusions and denied Caldwell's Motion to Suppress and Motion to Dismiss. The court then tried and convicted Caldwell on the basis of Caldwell's testimony and stipulation of facts. We affirm.

FACTS

At the time of the events in question Caldwell was confined to the Federal Correctional Institution, Texarkana, Texas. While confined to FCI Caldwell had developed a history of possession and use of narcotics. On January 9, 1982, an inmate informant told an FCI official that Caldwell would have narcotics concealed inside his rectum upon his return from the visiting room that day. The FCI official knew the inmate informant to be reliable. On the basis of the informant's tip the Warden's designee gave written authorization for a digital search.

After his visitation period Caldwell was brought before the Chief Correctional Supervisor and asked to execute a consent to the search. Caldwell refused, but was told that his consent was not required under prison regulations. Caldwell was then taken to the FCI Hospital where a physician's assistant again asked Caldwell to consent to the digital search. Caldwell refused. The FCI officials present then stripped Caldwell and held him to an examining table while the physician's assistant attempted the digital search. Caldwell reacted violently and kicked the physician's assistant in the chest, knocking him against the wall. After a second attempt the physician's assistant said that he felt something inside Caldwell's rectum, but could not determine whether it was feces or foreign material. Caldwell's violent reaction prompted the FCI officials to call off the search. Their concern was that any further attempts at a digital probe might injure Caldwell.

After the failed digital search FCI officials placed Caldwell in a "dry cell" at the FCI Hospital. A "dry cell" is a room with no functioning plumbing by which an inmate might dispose of contraband. To assure that no contraband was present prior to placing Caldwell in the dry cell, FCI officials thoroughly searched the cell. Caldwell was kept under continuous observation while in the dry cell. After Caldwell had been in the cell for more than a day an official observed him jump from his bed and sit on the trash can. Immediately afterwards FCI officials retrieved five opaque balloons from the trash can. The FBI later found each balloon to contain marijuana.

Caldwell was thereafter convicted of possession of marijuana and sentenced to serve six months consecutive to the sentence he was already serving. On appeal Caldwell does not challenge the validity of the dry cell procedure. Rather, he contends that any evidence obtained through the dry cell procedure was fruit of the attempted digital search.

I. Balloons not Fruit of the Poisonous Tree

Caldwell contends (1) that the digital search violated his fourth amendment right to be free from unreasonable searches, (2) that the five marijuana-filled balloons were a product of the digital search, and (3) that the exclusionary rule therefore dictates that the balloons should not have been admitted into evidence. We do not agree. Because we determine that the balloons were not a product of the digital search, we do not reach the question of the constitutionality of that search under the fourth amendment. ²

"The exclusionary rule bars evidentiary 'fruit' obtained 'as a direct result' of an illegal search or an illegal coercive interrogation. [citations]. Its bar only extends from the 'tree' to the 'fruit,' however, if the fruit is sufficiently connected to the illegal tree." United States v. Brookins, 614 F.2d 1037, 1041 (5th Cir.1980). The test for determining whether evidence is "fruit of the poisonous tree" is "whether, granting the 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 v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, quoting R. Maguire, Evidence of Guilt 221 (1959). The courts have recognized three situations that fit the Wong Sun test for evidence "purged of the primary taint." United States v. Parker, 722 F.2d 179, 184 (5th Cir.1983). First, the exclusionary rule is inapplicable to evidence that has only an attenuated link to the illegally secured evidence. United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978). Second, the exclusionary rule is inapplicable where the derivative evidence would inevitably have been discovered without the aid of illegally obtained evidence. Brewer v. Williams, 430 U.S. 387, 406 n. 12, 97 S.Ct. 1232, 1243 n. 12, 51 L.Ed.2d 424 (1977); United States v. Brookins, 614 F.2d 1037, 1044 (5th Cir.1980). Third, the rule does not apply where the evidence derives from an independent source. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920); United States v. Houltin, 566 F.2d 1027 (5th Cir.1978). We hold that the five balloons were properly admitted because they derived from a source independent from the digital search--namely, from the tip of a reliable informant and the use of the dry cell.

In Silverthorne the Supreme Court distinguished knowledge "gained from an independent source" from that gained by "the Government's own wrong." 251 U.S. at 392, 40 S.Ct. at 183. This distinction is the basis for the independent source exception to the exclusionary rule. For example, in Houltin this Court found that where the government knew the identity of four testifying codefendants before using an illegal wiretap, the testimony of the codefendants was admissible as derived from an independent source. 566 F.2d at 1031. Similarly, in United States v. Fike, 449 F.2d 191, 193 (5th Cir.1971), we concluded that:

It is possible that "but for" the first search the police would not have taken the defendant into custody, and would not have conducted the second search which yielded the challenged evidence. However, assuming, but not deciding, that the first search was illegal, we hold that the evidence gained as a result of the second search, the only evidence of which defendant complains, was admissible. This is so because the voluntary consent of the defendant to the second search ... was an independent act sufficient to break the causal connection between the primary illegality and the evidence found as a result of the second search.

Our reasoning in this case is very similar to that of the Eighth Circuit in United States v. Fanello, 662 F.2d 505 (8th Cir.1981). In that case the court found that "[n]othing that was discovered in the illegal searches heightened or diminished the inference of probable cause raised when the officers observed plastic garbage bags in the rear of the truck." Id. at 504. In this case the magistrate found that "the five marijuana-filled balloons were not recovered as a result of a digital search--a search which was thwarted by Caldwell's violent efforts in defending himself against such a search." The magistrate's determination of "the significance of the nexus between an [allegedly] illegal search and challenged evidence is one of common sense, ... to be considered under the facts and circumstances of the particular case." Williams v. United States, 382 F.2d 48, 51 (5th Cir.1967). We agree with the magistrate's conclusion.

The FCI officials performed the digital search on Caldwell on the basis of a tip from a reliable informant. Caldwell violently resisted the search, and after two attempts the officials called it off. The only information gained from the search was the physician's assistant's statement that he could feel something, but was not sure whether it was feces or foreign material. That statement is ambiguous at best and did nothing to heighten the inference of probable cause raised by the informant's tip. Indeed, the tip alone was sufficient cause to employ the dry cell procedure. That an unsuccessful digital search, which the defendant alleges was illegal, preceded placing the defendant in the dry cell does not affect the validity of the dry cell procedure. The five balloons derived directly from the informant's tip and the dry cell procedure and not from the attempted digital search.

II. Due Process

Caldwell contends that the FCI officials failed to follow applicable prison regulations in performing the digital search and that such failure acted to deny him due process. We agree, however, with the magistrate's...