U.S. v. Parker

Citation722 F.2d 179
Decision Date27 December 1983
Docket NumberNo. 83-4425,83-4425
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Joe Willie PARKER, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Claude LeRoy Pitts, Meridian, Miss., for defendant-appellant.

Pshon Barrett, Asst. U.S. Atty., Jackson, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before BROWN, THORNBERRY and TATE, Circuit Judges.

THORNBERRY, Circuit Judge:

The appellant, Joe Willie Parker, was convicted of violating 18 U.S.C. Secs. 2 and 2113(c) by knowingly and willingly possessing, receiving and concealing money that had been stolen from a federally insured bank. Parker appeals his conviction, asserting that the district court erred in ruling that the search warrant affidavit was sufficient. He argues that evidence resulting from the search should have been suppressed. We hold that the search warrant affidavit was insufficient, and the search was unlawful. The case is remanded to the district court for further findings of fact and law to determine whether certain evidence was admissible under exceptions to the exclusionary rule.

In October 1980, the branch of the Bank of Stonewall in Enterprise, Mississippi, was robbed by three men. Two men entered the bank and took $10,460 at gunpoint and one man remained outside in the getaway car. Later that day, a Mississippi Highway Patrol investigator and another officer obtained a search warrant authorizing the search of property occupied by Joe Willie Parker and his mother, Mary Gaddis. The officers searched the property and discovered $6,273 hidden under a barrel by the hog pen. Among the money found was $1,000 in bait money 1 from the Bank of Stonewall. Appellant Joe Willie Parker and two other individuals were arrested and charged with robbing the Bank of Stonewall. Appellant escaped from the Clarke County jail in Mississippi in November 1980 and was apprehended in New Orleans, Louisiana, in April 1981.

Appellant was indicted for violating 18 U.S.C. Secs. 2 and 2113(c). At the hearing on the Motion to Suppress Evidence before United States District Judge Harold Cox, appellant challenged the sufficiency of the search warrant and affidavit. Judge Cox held that the affidavit was sufficient on its face. Appellant was convicted by a jury and sentenced to ten years in prison, with a $2,500 fine.

I. An Illegal Search

Appellant argues that the search warrant affidavit was insufficient because it failed to give any information from which a neutral magistrate could determine probable cause. For the first time on appeal, the government concedes that the affidavit was insufficient and the warrant was invalid. In describing the circumstances creating probable cause, the affidavit simply stated, "Information given by a reliable & credible person who had given correct information in the past that led to arrests & convictions." There is no question that this statement, which is merely conclusory, is insufficient to show probable cause. See Illinois v. Gates, --- U.S. ----, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

The government argues that the search was legal because appellant's mother consented to the search. We do not agree. Mrs. Gaddis was informed that a search would be conducted as soon as the officers obtained a search warrant. When they arrived with the warrant, she allowed them to search the property. If the government relies on consent to justify a search, it has the burden of proving with clear and convincing evidence that consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968). The government has shown only acquiescence to the search warrant, and this is not enough to discharge its burden. Id.

Because the search warrant was invalid, the search of appellant's home was in violation of the Fourth Amendment. Under the exclusionary rule, such evidence cannot be used in a criminal trial against the victim of the illegal search and seizure. The fact that certain evidence should have been suppressed, however, does not automatically reverse the conviction. Two issues must be considered in determining whether appellant's conviction must be reversed. The first issue concerns the admission of evidence which clearly should have been excluded and whether this error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The second issue is whether other evidence, which is the indirect product of the search, falls within an exception to the exclusionary rule. The testimony of three witnesses must be examined in this case: (1) the testimony of the officer who found the money on appellant's property; (2) the testimony of appellant's brother, Joe B. Parker; and (3) the testimony of F.B.I. agent Michael Poche, who described statements made by appellant following his arrest in New Orleans. At trial, appellant timely objected to the testimony of these witnesses as fruit of an illegal search.

II. Evidence Produced Directly by the Search

The testimony of the highway patrol officer who stated that the money stolen from the bank was found hidden on appellant's property should have been suppressed. This was direct evidence discovered during an illegal search. The government argues that this error does not justify a reversal because the fact that the money from the bank robbery was hidden on appellant's property was clearly established by other evidence. We agree with the government on this point. 2 After viewing the record as a whole, we believe beyond a reasonable doubt that the evidence produced by the officer's testimony would not have changed the verdict. The error, therefore, was harmless error. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); United States v. Anderson, 577 F.2d 258 (5th Cir.1978); United States v. Resnick, 483 F.2d 354 (5th Cir.), cert. denied, 414 U.S. 1008, 94 S.Ct. 370, 38 L.Ed.2d 246 (1973).

The highway patrol officer testified that $6,280 was found hidden under a barrel, and some of this money was bait money stolen from the Bank of Stonewall. Without this testimony, the record contains clear evidence that the money from the bank robbery was hidden on appellant's property.

Joe B. Parker (appellant's brother) testified that James Parker (another brother) and James Hill came to the house with a sack of money on the day the bank was robbed. Later that day, appellant told Joe B. Parker that some of the money was hidden under a tire at home. Joe B. Parker looked under the tire and found $500.

Appellant also testified that the money was hidden on his property. He stated that he saw the sack of money at the house and that he knew that the sack was hidden under a barrel on the property.

A third source of this information in the record is the testimony of F.B.I. agent Michael Poche. Poche stated that appellant made certain admissions following his arrest in New Orleans. See part IIIB, infra. These admissions, as related by Poche, revealed that the money from the bank robbery was hidden under the barrel.

The testimony of these three witnesses established the fact that money taken from the Bank of Stonewall was hidden under a barrel on the property. The testimony of the officer who found the money in that location was merely cumulative. The admission of that testimony, in view of other evidence on that issue, was harmless beyond a reasonable doubt. This holding, however, assumes that the testimony of Joe B. Parker and Michael Poche is admissible evidence. See part III, infra. If the testimony of either of these witnesses is inadmissible under the exclusionary rule, the error in admitting the officer's testimony cannot be harmless error.

III. Indirect Products of the Illegal Search: Fruit of the Poisonous Tree?

The illegal search put the government on a trail that led to the testimony of two witnesses in this case: Joe B. Parker and F.B.I. agent Michael Poche. The fact that the search was the "but for" cause of the discovery of this evidence is not determinative of the issue of whether it is admissible evidence.

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 v. United States, 371 U.S. 471 at 487-88, 83 S.Ct. 407 at 417, 9 L.Ed.2d 441, quoting R. Maguire, Evidence of Guilt 221 (1959).

The courts have developed three types of situations in which the evidence is sufficiently distinguishable from the illegal search to be purged of its taint. These exceptions to the exclusionary rule occur where (1) the evidence (physical evidence, witness testimony, or the accused's statement) has 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); Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 267, 84 L.Ed. 307 (1939); (2) 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); or (3) the derivative evidence would inevitably have been discovered during a police investigation without the aid of the 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).

We must examine the testimony of Joe B. Parker and Michael Poche to determine whether that...

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