US v. Clark

• Decision Date: 12 May 1993
• Docket Number: No. 92-CR-137S.,92-CR-137S.
• Parties: UNITED STATES of America v. Jeremiah Keith CLARK, Defendant.
• Court: U.S. District Court — Western District of New York

822 F. Supp. 990

UNITED STATES of America v. Jeremiah Keith CLARK, Defendant.

No. 92-CR-137S.

United States District Court, W.D. New York.

May 12, 1993.

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Dennis C. Vacco, U.S. Atty., Buffalo, NY (John E. Rogowski, Asst. U.S. Atty., of Counsel), for Government.

Walsh & Sampson, P.C., Blasdell, NY (Daniel J. Chiacchia, of Counsel), for defendant.

DECISION AND ORDER

INTRODUCTION

SKRETNY, District Judge.

Presently before this Court are the government's objections to the Report and Recommendation of Hon. Leslie G. Foschio, United States Magistrate Judge for the Western District of New York, recommending that this Court grant defendant's motion to suppress certain physical evidence and statements made by defendant after arrest. For the reasons discussed below, this Court will adopt the Report and Recommendation of the Magistrate Judge in its entirety, and will grant defendant's motion to suppress.

FACTS

The parties do not object to the factual findings contained in Magistrate Judge Foschio's Report and Recommendation. Therefore, this Court adopts those findings, and will not repeat them here.

On July 30, 1992, this Court entered a Referral Order referring all dispositive pretrial matters to Magistrate Judge Foschio for report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). On August 17, 1992 defendant filed his motion to suppress. Magistrate Judge Foschio filed a Report and Recommendation on March 11, 1993, and an Amended Report and Recommendation ("R & R") on March 25, 1993.¹ Magistrate Judge Foschio found that the Lockport Police ("police") had illegally searched defendant in front of his house while executing a search warrant of the dwelling. Furthermore, Magistrate Judge Foschio determined that defendant had standing to challenge the stop of the vehicle in which he was a passenger at the time of his second arrest. He found that the stop of the vehicle was pretextual, and that evidence obtained in connection with defendant's second arrest must therefore be suppressed. In addition, Magistrate Judge Foschio determined that defendant's later arrest for cocaine possession was tainted by the earlier illegal arrest, and evidence and statements obtained in connection with the second arrest must therefore be suppressed as "fruit of the poisonous tree". Nonetheless, he found that defendant's statements made after his second arrest were voluntary and were not coerced; therefore, they would be admissible, were it not for the illegality of the second arrest. For these reasons, Magistrate Judge Foschio recommended that this Court grant defendant's motion to suppress the evidence and statements obtained during these arrests.

On March 26, 1993 the government filed its Objections to the Magistrate's Report and Recommendation Dated March 11, 1993 ("Objections"). On April 16, 1993 defendant filed a Response to the Government's Objections to the Magistrate's Report and Recommendation ("Response"). Although the government was afforded the opportunity to submit a reply, it did not do so.

DISCUSSION

In its Objections, the government states that it does not contest Magistrate Judge Foschio's recommendation that the evidence obtained during the first search of defendant be suppressed, and that the defendant had standing to challenge the stop of the vehicle in which he was a passenger at the time of the second arrest (Objections, p. 2). The government objects to the following recommendations of Magistrate Judge Foschio: (1) that the evidence resulting from the second arrest of defendant should be suppressed as fruit of the poisonous tree; (2) that the evidence and statements obtained as a result of the second arrest should be suppressed because the stop of the vehicle was pretextual; and (3) that the evidence and statements obtained as a result of the second arrest should be suppressed because the second arrest was not justified by probable cause (see Objections, pp. 1-2).

Fruit of the Poisonous Tree

The basic law pertaining to this Fourth Amendment doctrine is fully set forth in the Amended Report and Recommendation (R & R, pp. 26-29). The government specifically contends that Magistrate Judge Foschio improperly considered the factors that determine whether the events surrounding the second arrest were sufficiently attenuated from those surrounding the first illegal arrest, so as to remove the taint of the first arrest.

The four factors to be considered are: (1) whether a Miranda warning was given; (2) the temporal proximity between the illegal act and the subsequent acts; (3) the presence of intervening circumstances, and (4) the purpose and flagrancy of the official misconduct. United States v. Oguns, 921 F.2d 442, 447 (2d Cir.1990). First, the government argues that after the first arrest, defendant was Mirandized, and defendant made no statements to the police; nor was any evidence obtained by the police other than the packet of cocaine that was retrieved from defendant's coat (Objections, pp. 3-4). Second, the government argues that Magistrate Judge Foschio incorrectly concluded that there were no intervening circumstances to dissipate the illegality of the first arrest. The government argues that the defendant was fully processed, and was free to do as he pleased after release. Therefore, the government asserts, the second arrest was not "significantly directed" by the events surrounding the first arrest (Objections, p. 4, citing United States v. Johns, 891 F.2d 243, 245 (9th Cir.1989)). The government argues that the police were simply resuming their previous investigation of defendant, and that the results of the first arrest did not dictate the second arrest. Finally, the government argues that no police misconduct was involved, and there would be no objective of deterrence furthered by suppressing the evidence and statements in question (Objections, pp. 6-7).

This Court holds that Magistrate Judge Foschio correctly applied the factors contained in Oguns to the facts of the present case. He presided over a lengthy suppression hearing, which lasted approximately five hours over three days of testimony. He heard testimony from the parties involved in the two arrests. During the hearing, he had the opportunity to observe the witnesses, and to ascertain their credibility. Magistrate Judge Foschio concluded that the first arrest led directly to the second arrest, and that the events surrounding the second arrest were not sufficiently attenuated from those surrounding the first arrest to remove the taint of illegality. Specifically, Magistrate Judge Foschio found that the arrests were separated by a period of only four hours, during most of which defendant was in custody, and that the second arrest was made "literally within minutes of defendant's release on the first arrest ..." (R & R, p. 30). He also noted that Detective Captain St. Onge "specifically directed the police to place continuous surveillance on Clark's vehicle with the intention of either pulling the vehicle over when Clark later retrieved it, or of impounding the vehicle after 2 a.m. when it became illegal, pursuant to a city ordinance, to park on city streets" (R & R, p. 31).

The clear import of St. Onge's testimony was that the surveillance was triggered by the finding of cocaine in defendant's coat during the first illegal search. St. Onge even testified that he most likely would not have ordered the surveillance and stop of the vehicle if he had not known of the illegally obtained evidence (see R & R, p. 32). This Court agrees that to suggest otherwise is "contrary to what is contained in the record" (R & R, p. 32).

Magistrate Judge Foschio also determined that there were "no intervening circumstances, such as Clark consenting to a subsequent search or making voluntary statements at the station house after his first arrest, or further criminal activity by Clark, leading to the subsequent investigative activities directed against him" (R & R, p. 33).

These factors, as well as the other factors addressed by Magistrate Judge Foschio and not repeated here, lead to the inescapable conclusion that the finding of cocaine on defendant as a result of the first illegal search "significantly directed" the police to make the second arrest. Although defendant was the subject of an investigation, St. Onge admitted during the suppression hearing that he most likely ordered the vehicle to be watched and stopped, if justified, only because he knew that defendant had possessed cocaine on that evening. St. Onge had that knowledge only because he had earlier conducted an illegal search of defendant. The second arrest was not sufficiently attenuated from the first arrest to interrupt this chain of events.

In his Response, defendant correctly notes that the facts of the present case are similar to those in United States v. Thomas, 955 F.2d 207 (4th Cir.1992) (see Response, p. 5). In Thomas, the police suspected the defendant of drug activity, and conducted a warrantless and concededly illegal search of his hotel room, which he shared with a number of associates. The police found evidence linking the defendant to a recent bank robbery. The police, together with the FBI, began surveillance of the room, and interrogated defendant's associates, who consented to a search of their room. The police waited inside the room, and arrested defendant as he entered. Defendant was Mineralized, and he waived his rights. He signed a consent to a search of the room. The police searched the defendant's bag, and found tennis shoes matching the description of the robber given by bank employees. The defendant moved to suppress the evidence found in the room, arguing that it was tainted by the first illegal search.

The court held that, even though an intervening consent had been provided by the defendant, the second search of the room was tainted by the first, and the evidence obtained had...