United States v. Evans, 71-1275

• Decision Date: 11 February 1972
• Docket Number: No. 71-1275,71-1276.,71-1275
• Parties: UNITED STATES, Appellee, v. Gene Earl EVANS, Appellant. UNITED STATES, Appellee, v. Carl David EVANS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

454 F.2d 813 (1972)

UNITED STATES, Appellee, v. Gene Earl EVANS, Appellant.

UNITED STATES, Appellee, v. Carl David EVANS, Appellant.

Nos. 71-1275, 71-1276.

United States Court of Appeals, Eighth Circuit.

January 13, 1972.

Rehearing and Rehearing Denied February 11, 1972.

William I. Rutherford, St. Louis, Mo., for Gene Earl Evans.

Irvin Dagen, St. Louis, Mo., for Carl David Evans.

William C. Martin, Asst. U. S. Atty., Daniel Bartlett, Jr., U. S. Atty., St. Louis, Mo., for appellee.

Before MATTHES and LAY, Circuit Judges, and HUNTER, District Judge.

Rehearing and Rehearing En Banc Denied February 11, 1972.

ELMO B. HUNTER, District Judge.

On this appeal by appellants, Gene Earl Evans and Carl David Evans, from their conviction and sentence in the United States District Court for the Eastern District of Missouri for post office burglary, two primary questions are presented for our review. One is whether the trial court erred in not suppressing the testimony of certain witnesses and items under the "fruit of the poison tree" doctrine. The other concerns whether the trial court erred in not providing appellants with certain presentence and psychiatric information and reports. The pertinent facts will be discussed in connection with each contention.

On the night of February 8, 1971, the United States Post Office in Middletown, Missouri, was broken into and burglarized. On February 10, 1971, at 2 o'clock in the morning Jessie Darrell Chandler was driving his 1962 Ford automobile on Highway 61 in Middletown, a small Missouri town, having a population of approximately 211 persons. Appellants and their father, Homer Evans, were passengers in the car. All of them lived in St. Louis, Missouri.

Gary McCaw, a police officer of Middletown, from his patrol car on a parking lot, noticed the Chandler car with one taillight inoperative cruising through the town. He saw it make an illegal "U" turn, and pursued and stopped it. Chandler got out and walked toward the patrol car where he was met by Officer McCaw who ascertained that Chandler had no driver's license. Mc-Caw also ascertained from the others in the car that they had no drivers' licenses or other means of identification. Officer McCaw had previous information there had been several "break-ins" recently in the area. He asked Chandler if he could have permission to look through his car. Chandler said, "Yes".¹ Chandler also gave permission to McCaw to look in the trunk and opened it for him.

While standing on the ground outside the car, Officer McCaw glanced into the car, saw a brown paper sack on the back floor board, and saw a ski mask and some old clothes in it. While McCaw was looking at the sack one of the appellants tipped the sack toward him.

Officer McCaw then took Chandler back to his patrol car and there placed him under arrest for driving without a driver's license. He returned to the Chandler car, asked the three passengers to get out and searched them for weapons. He returned to the patrol car, searched Chandler and handcuffed him. He then obtained Chandler's permission for a young boy, who had been riding with Officer McCaw that evening, to drive the Chandler car a short distance to Main Street and park it off the road. This was done, and at the Main Street location appellants walked up to McCaw and asked if they could come over and get Chandler in the morning. McCaw arrested them for investigation.²

At 3:30 a. m. on February 10, 1971, Officer McCaw and two other officers returned to Middletown to search the car still parked on Main Street, and found burglar tools taped under the car hood. The burglar tools were left where seen. Later, at approximately 9:00 a. m. in Montgomery City Chandler was contacted, again given a Miranda type warning, and asked for permission to search the car. Chandler knew the burglar tools were hidden in the car but did not know they had already been discovered by the authorities. He again gave permission to search the car. The officers returned to the automobile and took possession of the burglar tools.

Later during the day of February 10, 1971, Chandler was interrogated. The interrogation included questions about the burglar tools.³ He gave a limited written statement tending to exonerate himself, but implicating appellants to some extent in the Middletown post office burglary. On February 11, 1971, he was not interrogated. On February 12, 1971, he was again interrogated, including questions about the burglar tools, and gave an additional written statement implicating both himself and appellants in the burglary.⁴ On March 5, 1971, and while represented by counsel, he entered a plea of guilty to the post office burglary charge. A presentence investigation and report was ordered. On March 22, 1971, he was sentenced to a three months' study under 18 U.S.C. § 4208(b). While undergoing that study, on May 3, 1971, he appeared as a witness for the Government in the joint trial of appellants. He testified that he acted as the lookout for them and saw them burglarize the Middletown Post Office the night of February 8, 1971. He described the mail sack full of loot which they took during the burglary.⁵ As a result of the trial, appellants were convicted and later received substantial sentences.

The Fruit of the Poisoned Tree Contention

About March 18, 1971, appellants filed their separate motions to suppress, directed at the burglar tools and all evidence discovered as a result thereof. On April 23, 1971, a full evidentiary hearing was held. The trial judge, the Honorable William H. Webster, holding that appellants had the requisite standing, sustained their motions to suppress, ordering the suppression of the burglar tools as evidence, together with all other evidence produced as a result of their seizure. Later, and before the trial, appellants moved and argued that Chandler's testimony and all information and leads obtained from him, including the burglary loot consisting of a mail bag and its contents were fruit of the poisoned tree and also should be suppressed. It was their claim that Chandler was confronted with the result of a bad search and bad arrest and, hence, confessed and implicated them.

The trial court gave a hearing as to each objected to witness and his testimony prior to permitting that witness to testify as a part of the trial. The first such witness was Shirley Webster, a waitress whose testimony in the evidentiary hearing and later at the trial was that appellants and Chandler were people she had waited on in the restaurant in Richmond, Missouri, on the morning of February 8, 1971. Her name had been obtained by the authorities from Chandler probably on February 12, 1971. Another witness was Elsie Baker, who with her husband operated a confectionery business in St. Louis. Her name had been mentioned to the authorities by Chandler as his employer. She testified that on the night of February 7, 1971, the appellants came into the store while Chandler was there and that Chandler left with them, saying he was going someplace with them.

In a series of rulings on the various motions Judge Webster held: (1) that the belated consent of Chandler to the search of the automobile that disclosed the burglar tools did not remove the illegality of that search;⁶ (2) that all the items discovered during that search (burglar tools) were suppressed; and (3) that the live testimony of witnesses Chandler, Baker and Webster were not sufficiently closely tied to the illegal search to call for suppression. He ruled similarly as to the testimony concerning the mail bag and its contents.

The Attenuation Concept

The Supreme Court in 1914 in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 held that evidence obtained in violation of the rights of a defendant under the fourth amendment is not admissible at trial. In Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920) the Supreme Court further held that the prohibition also applied to other evidence derived through the evidence directly obtained by an illegal search or seizure. The Court went on to say that the facts thus obtained do not become "sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others." Id. at 392, 40 S.Ct. at 183. In Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939), Mr. Justice Frankfurter, writing for the court, further illuminated the boundaries of the exclusionary rule by declaring, "Sophisticated argument may prove a causal connection between information obtained through illicit wire-tapping and the Government's proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint." (Emphasis added.) Thus, the Court articulated an alternative to proving an independent source, i. e., the Government might show sufficient attenuation of the causal connection to avoid the application of the exclusionary rule.

The attenuation concept, sometimes referred to as the nexus concept, was more fully developed and described in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).⁷ The defendant, Wong Sun, following an unlawful arrest on narcotic charges, was arraigned and released on his own recognizance. Several days later he voluntarily returned to the police station and made an unsigned self-incriminating statement. The Court in considering whether the statement was inadmissible as a result of the unlawful arrest first cited Nardone, supra, and then declared, "* * * We hold that the connection between the arrest and the statement had become so attenuated as to dissipate the taint."⁸

Application of the Attenuation Doctrine

Acknowledgeably not all courts have applied the exclusionary rule and its attenuation doctrine to "live testimony" in exactly the same manner. There are some in which live testimony has been suppressed as fruit of the poisonous tree⁹ and...