US v. Elmore

• Decision Date: 20 May 2010
• Docket Number: No. 3:09-CR-91.,3:09-CR-91.
• Citation: 692 F. Supp.2d 915
• Parties: UNITED STATES of America, Plaintiff, v. Damien Oshea ELMORE, Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

692 F. Supp.2d 915

UNITED STATES of America, Plaintiff, v. Damien Oshea ELMORE, Defendant.

No. 3:09-CR-91.

United States District Court, E.D. Tennessee, at Knoxville.

February 23, 2010.

As Amended May 20, 2010.

Cynthia F. Davidson, U.S. Department of Justice, Office of U.S. Attorney, Knoxville, TN, for Plaintiff.

MEMORANDUM AND ORDER

THOMAS A. VARLAN, District Judge.

This criminal case is before the Court for consideration of the Report and Recommendation ("R & R") entered by United States Magistrate Judge C. Clifford Shirley on December 30, 2009 Doc. 32. The defendant, Damien Oshea Elmore, filed objections to the R & R Doc. 35 and the United States filed a response to the defendant's objections Doc. 36, urging the Court to adopt in whole the R & R. The Court gives de novo consideration to the defendant's objections.

I. RELEVANT FACTS

The defendant is charged with knowingly possessing, in and affecting commerce, a firearm after having previously been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1) see Doc. 1. This charge arose from a police officer's investigative stop on July 13, 2009 of a vehicle the defendant was driving Doc. 32, p. 1. In addition to the defendant, a passenger was also present in the vehicle Id.. Following the stop, the police officer told the defendant to exit the vehicle and produce his driver's license Doc. 25, p. 6. The defendant did so and informed the police officer that he did not have a driver's license Id.. The police officer conducted a records check and determined that the defendant's driver's license had been suspended Id., p. 7. The police officer then walked around to the passenger side of the vehicle and asked the passenger to "open the door." Id.. When the passenger opened the door, the police officer observed a holster in the door mat compartment of the vehicle Id.. Both the defendant and the passenger denied ownership of the holster Id.. As the police officer removed the passenger from the vehicle, she observed a handgun lying underneath the right rear of the vehicle Id.. Both the defendant and the passenger were placed under arrest Id., p. 8. The handgun was subsequently determined to have been stolen Id.. Police officers subsequently searched the entire vehicle and the defendant's person, discovering, in the defendant's pocket, a black sock and an object the government describes as "a pillowcase with two eyes cut into it." Doc. 22, p. 2.

Following his arrest, the defendant filed two motions to suppress Docs. 12, 13. The defendant subsequently withdrew his second motion to suppress Doc. 13, and filed an amended version of his first motion to suppress Doc. 19. The defendant's amended motion to suppress requests that the Court suppress the handgun discovered on the ground beneath the passenger side of the vehicle Id.. The defendant argues that the investigative stop was a "seizure" of his person within the meaning of the Fourth Amendment and was not justified by any reasonable suspicion that either he or the passenger in the vehicle were engaged in criminal activity Doc. 20, p. 2. Thus, the defendant argues, the Court should suppress the handgun discovered underneath the vehicle as fruit of the poisonous tree of the unlawful stop and seizure Id., p. 4; Tr. 20-21.

An evidentiary hearing was held before Magistrate Judge Shirley on the defendant's motions to suppress. The defendant was present but did not testify. Following the hearing, the parties submitted post-hearing briefs Docs. 28, 29, 30, 31. On December 20, 2009, Magistrate Judge Shirley entered the R & R, recommending that the motions to suppress be granted in part, to the extent that the holster should be suppressed, and denied in part, to the extent that the handgun discovered underneath the vehicle should not be suppressed Doc. 32, p. 33.

II. STANDARD OF REVIEW

As required by 28 U.S.C. § 636(b)(1)(B), the Court has undertaken a de novo review of those portions of the R & R to which the defendant objects. In doing so, the Court has carefully considered Magistrate Judge Shirley's R & R Doc. 32, the underlying briefs Docs. 12, 19, 10, 22,¹ the hearing transcript Doc. 25, the parties' post-hearing briefs Docs. 29, 29, 30, 31, and the defendant's objections Doc. 32. For the reasons set forth herein, the Court will overrule the defendant's objections, and adopt in whole the findings of the R & R Doc. 32. Accordingly, the defendant's motions to suppress Doc. 12, 19 will be granted, in part, and denied in part.

III. ANALYSIS

A. Fruit of the Poisonous Tree

Evidence obtained as a direct result of an unconstitutional search or seizure is subject to exclusion. Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). The exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search and seizure, but also evidence later discovered and found to be derivative of an illegality or "fruit of the poisonous tree." Segura, 468 U.S. at 804, 104 S.Ct. 3380; Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939) (first coining the phrase "fruit of the poisonous tree"). "The question to be resolved when it is claimed that evidence subsequently obtained is `tainted' or is `fruit' of a prior illegality is whether the challenged evidence was `come at by exploitation of the initial illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" Id. at 804-05, 104 S.Ct. 3380 (quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1964)) (citations omitted). It is well established that evidence will not be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is "so attenuated as to dissipate the taint.. . ." Id. at 805, 104 S.Ct. 3380 (quoting Nardone, 308 U.S. at 341, 60 S.Ct. 266).

Magistrate Judge Shirley found that the police officer's investigative stop of the vehicle the defendant was driving amounted to a Fourth Amendment seizure of the vehicle, the defendant, and the passenger Doc. 32, p. 11. The seizure, the Magistrate Judge found, did not arise from the police officer's reasonable or particular suspicion of any criminal activity. Thus, the police officer's seizure of the defendant, the passenger, and the vehicle violated rights protected under the Fourth Amendment Id., p. 19. In light of the unlawful seizure, the Magistrate Judge found that the evidence that was derived from or obtained as a direct result of the unlawful seizure of the defendant, the passenger, and the vehicle, should be suppressed as inadmissible Id., p. 20. In accordance with this finding, Magistrate Judge Shirley suppressed all evidence recovered from the persons of the defendant and the passenger, and all evidence recovered from the inside of the vehicle Id.. This includes the holster discovered in the door mat compartment of the vehicle and the pillowcase and black sock discovered in the defendant's pocket.

Magistrate Judge Shirley found, however, that the handgun discovered outside the vehicle, underneath the right rear of the vehicle, should not be suppressed because it was not derived from or obtained as a direct result of the unlawful conduct Doc. 32, p. 20. This is the part of the R & R to which the defendant objects.² Magistrate Judge Shirley found that the discovery of the handgun was not "come at by exploitation of" the unlawful stop because it was discovered through the police officer's "passive observation" of the ground beneath the vehicle Id., p. 27. In other words, the police officer's observation of the handgun occurred apart from and not by exploitation of the unlawful stop because the police officer did not take any additional, active step to discover the handgun, such as looking for evidence of criminal activity Id.. Further, the discovery of the handgun was contemporaneous to, and thus, cannot be said to be derived from, the police officer's unlawful seizure of the defendant, the passenger, and the vehicle Id.. Thus, the Magistrate Judge concluded, the police officer's discovery of the handgun was not tainted by the unlawful conduct Id., pp. 27-28.

Magistrate Judge Shirley supported this conclusion with an analysis of the concept of attenuation, explained at length by the United States Supreme Court in Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006). Quoting from Hudson, Magistrate Judge Shirley explained that attenuation occurs when the causal connection between the unlawful conduct and the discovery of the evidence is remote. Hudson, 547 U.S. at 593, 126 S.Ct. 2159. Attenuation may also occur "when, given a direct causal connection, the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained." Id.

The facts of this case, the Magistrate Judge found, did not present a case of causal attenuation, but a case of the second type of attenuation—interest attenuation. In other words, suppression of the handgun, discovered on the ground outside the defendant's vehicle, would not serve to protect the rights and interests afforded to citizens under the Fourth Amendment—namely, the defendant's interest in his personal privacy and his interest in freely going about his business Doc. 32, p. 29. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also California v. Hodari, D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).³ The Magistrate Judge found that in discovering the handgun outside the vehicle, the police officer did not intrude upon the defendant's privacy, and did not intrude upon the defendant's interest in going about his business. This is distinguishable, the Magistrate Judge determined, from the interests intruded upon by the police officer's discovery of the holster inside the vehicle, as both interests—the defendant's interest in his privacy and his interest in going about...