U.S. v. Foppe

• Decision Date: 25 May 1993
• Docket Number: No. 91-50606,91-50606
• Citation: 993 F.2d 1444
• Parties: 38 Fed. R. Evid. Serv. 1206 UNITED STATES of America, Plaintiff-Appellee, v. Glenn Randal FOPPE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1444

993 F.2d 1444

38 Fed. R. Evid. Serv. 1206

UNITED STATES of America, Plaintiff-Appellee, v. Glenn Randal FOPPE, Defendant-Appellant.

No. 91-50606.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 4, 1992.

Decided May 25, 1993.

Carlton F. Gunn, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant.

Stephen G. Larson, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: WALLACE, Chief Judge, TROTT and T.G. NELSON, Circuit Judges.

WALLACE, Chief Judge:

Foppe appeals from his conviction for committing an unarmed bank robbery in violation of 18 U.S.C. § 2113(a) and his sentence under the United States Sentencing Guidelines (Guidelines). The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.

I

On April 2, 1991, a man ran into a Western Federal Savings Bank (bank) in downtown Los Angeles. He confronted Ardath Simons, an elderly female customer who was seated at the customer service desk, and grabbed her around the neck. He shoved a hard object that felt like a gun into her back, and demanded money.

The robber demanded Simons stand up, and when she responded that she could not, he kicked the chair out from underneath her and dragged her by the neck toward a gate that led to the teller station. The robber kicked the gate open, let go of Simons, and grabbed Julia Amaya, a customer service representative who had been helping Simons when the man entered the bank. At this point, Simons realized that the hard object that had been pressed into her back was only a hairbrush. She grabbed the hairbrush, yelled, "It's not a gun, its a hairbrush," and ran out of the bank.

Three tellers hid behind a counter. The robber approached the teller window belonging to Patricia Del Rosario, and yelled at her to come back and give him all of her money. When Del Rosario did not do so, the robber took $3,090 in cash from her station and ran out of the bank.

The next day, two Los Angeles Police Officers stopped a car driven by Foppe after it made an unsafe lane change. Although he later admitted that he had no reason to believe that Foppe was armed or dangerous, one of the officers conducted a patdown search. He discovered a large wad of cash stained with red dye in Foppe's back pants pocket. The officer concluded that the money must have come from a bank robbery, handcuffed Foppe, and summoned other officers to the scene.

After the other officers arrived, Foppe made a spontaneous statement that he had robbed a bank the day before, using a hairbrush to simulate a weapon. The officers took Foppe to the police station. Several hours later, Special Agent Flanigan of the Federal Bureau of Investigation arrived to interview Foppe. After waiving his Miranda rights, Foppe admitted that he had robbed the bank the day before.

At some point during the interview, Flanigan took a photograph of Foppe and constructed a photospread using five photographs of other individuals of similar appearance. Flanigan showed the photospread to Del Rosario and Fadia Marini, another teller from the bank. Both identified Foppe as the robber.

Foppe made a pretrial motion to suppress all evidence, contending that the frisk conducted after the traffic stop and his subsequent arrest violated his rights under the Fourth Amendment. The government conceded that the frisk was an illegal search, but disputed whether all of the evidence subsequently obtained must be suppressed. Following a hearing, the district court found that the patdown search was unlawful and suppressed all evidence derived from the frisk, including Foppe's confessions and the photospread identifications. The district court concluded, however, that any in-court identification of Foppe by the two teller-eyewitnesses would be independent of their prior photospread identifications.

On July 3, 1991, a jury found Foppe guilty of one count of unarmed bank robbery. Thereafter, the district court sentenced Foppe to 105 months in custody, followed by three years of supervised release.

II

Flanigan testified over objection that Foppe had a "Fu Manchu mustache" when he was arrested and that he had grown a full beard since that time. He also testified about similarities between Foppe's appearance at the time of his arrest and the appearance of the robber in the surveillance photographs taken at the bank. During its closing argument, the government asserted that Foppe's change in appearance by growing a full beard demonstrated a consciousness of guilt. Foppe contends that the district court erred in admitting this evidence and permitting the argument.

A.

Foppe argues that Flanigan's observations of him on the day of his arrest were the fruit of his illegal patdown search and subsequent arrest and should have been suppressed. The district court's findings of fact relating to suppression of evidence are reviewed for clear error. United States v. Attson, 900 F.2d 1427, 1429 (9th Cir.) (Attson ), cert. denied, 498 U.S. 961, 111 S.Ct. 393, 112 L.Ed.2d 403 (1990). The scope of the application of the Fourth Amendment is reviewed de novo. Id.

In addition to evidence obtained directly through the violation of the Fourth Amendment, the "fruit" of such illegal conduct must also be excluded from trial. See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417-18, 9 L.Ed.2d 441 (1963) (Wong Sun ). The Supreme Court has rejected a "but for" test for determining whether evidence is a fruit of unlawful police activity. See id. Rather, the appropriate question 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." Id. at 488, 83 S.Ct. at 417 (internal quotation omitted).

We must decide, therefore, whether Flanigan was "exploiting" the illegal search and arrest when he observed Foppe on the day of his arrest. Although there must be some "causal connection between the illegality and the evidence," United States v. Chamberlin, 644 F.2d 1262, 1269 (9th Cir.1980) (Chamberlin ), cert. denied, 453 U.S. 914, 101 S.Ct. 3148, 69 L.Ed.2d 997 (1981), that alone is not enough to require suppression. We must ask further "whether the illegal activity tends to significantly direct the investigation to the evidence in question." Id.

We hold that the observations of Foppe's appearance made by Flanigan cannot be characterized as the "fruit of the poisonous tree." Granted, Flanigan would never have had the opportunity to observe Foppe's appearance had it not been for the illegal search and arrest. As stated above, however, "but for" causation alone does not warrant suppression. The evidence obtained during the illegal frisk--the ink-stained money--prompted the police to pursue additional evidence against Foppe. To this end, Flanigan interrogated Foppe and constructed a photospread with Foppe's photograph. The confessions and photospread identifications that resulted were clearly fruits: the police exploited the unlawful frisk of Foppe to obtain incriminating evidence against him. In contrast, the unlawful frisk did not "significantly direct" Flanigan's investigation to his observations of Foppe's facial hair. Flanigan's observations of Foppe were merely incidental to the police efforts to make a criminal case against Foppe. As he was conducting his investigation, he could not help but notice the appearance of the man who sat before him. In and of themselves, his observations had no independent evidentiary value for the government. Nor did they advance the investigation of the robbery in any way. Indeed, Flanigan's observations only became relevant after Foppe allowed his beard to grow before trial; they were neither an objective of nor a factor in the ongoing investigation.

The "fruit of the poisonous tree" doctrine effectuates the policy behind the exclusionary rule. See Dunaway v. New York, 442 U.S. 200, 217-18, 99 S.Ct. 2248, 2259, 60 L.Ed.2d 824 (1979). The policy would not be advanced by exclusion in this case. Because incidental observations which police have in mind when detaining a suspect are not objective, suppression of such observations will have no deterrent effect on unlawful police activity. The exclusionary rule imposes large social costs and should not be applied where, as here, it would serve its remedial objectives weakly, if at all.

Chamberlin, relied on by Foppe, is not to the contrary. In that case, a police officer stopped Chamberlin after his companion had run away upon seeing the officer's police car approach. See 644 F.2d at 1264. After Chamberlin refused to acknowledge that he knew the identity of the man who had fled, the officer placed Chamberlin in the back of his police car. See id. at 1267. Subsequently, the officer observed Chamberlin's nervous demeanor. See id. Based on this and other information, the officer conducted further investigation and acquired additional evidence against Chamberlin. See id. at 1267-68.

We ordered the officer's observations of Chamberlin's nervous demeanor suppressed as a fruit of an illegal seizure. See id. at 1268. We explained that "[i]t is apparent that the opportunity to observe [Chamberlin's] demeanor was brought about only because of his illegal detention, and thus must be excluded as an exploitation of his illegal arrest." Id. A nervous demeanor, however, cannot be equated with mere appearance. Unlike the extent of a suspect's facial hair, a sweaty brow or a furtive glance may be incriminating in and of itself. Suppressing demeanor evidence thus serves to effectuate the deterrent goal behind the exclusionary rule. Furthermore, Chamberlin's nervous demeanor, along with other evidence, "added...