Defendant’s inculpatory statement on the doorstep of her home was the fruit of the unconstitutional attempted forced entry of defendant’s home and could not supply probable cause for a valid arrest.United States v. Hernandez,670 F.3d 616 (5th Cir. 2012).
Having previously established the warrantless attempted forced entry of defendant’s home (resulting in defendant’s prosecution for harboring an illegal alien), the Fifth Circuit held the district court should also have suppressed the post-arrest, post-Miranda statements of defendant and her co-defendant, as well as the post-arrest statement of an illegal alien found in the trailer. Without a valid arrest, defendant’s post-arrest statements were also tainted by the initial constitutional violation. Finally, the Fifth Circuit found that the other two persons’ statements were likewise the fruit of the initial constitutional violation and were insufficiently attenuated from that violation; nor were they admissible under the inevitable-discovery doctrine.
Generally, “the exclusionary rule prohibits the introduction at trial of all evidence that is derivative of an illegal search, or evidence known as the ‘fruit of the poisonous tree.’” United States v. Singh, 261 F.3d 530, 535 (5th Cir. 2001). However, evidence should not be excluded merely because it would not have been discovered “but-for” a constitutional violation. Wong Sun v. United States, 371 U.S. 471, 487-88 (1963). “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 to be purged of the primary taint.” Id. at 488 (internal quotation marks and citation omitted).
Verbal statements, in addition to physical evidence, are subject to the exclusionary rule. Id. at 485-86. “[V]erbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest . . . is no less the ‘fruit’ of official illegality than the more common tangible fruits of the unwarranted intrusion.” Id. at 485. However, “since the cost of excluding livewitness testimony will often be greater, a closer, more direct link between the illegality and that kind of testimony is required.” United States v. Ceccolini, 435 U.S. 268, 277 (1978). When deciding whether testimony is admissible, the Supreme Court considers the degree of free will exercised by the defendant or a third party and balances the cost of “exclusion [that] would perpetually disable a witness from testifying about the relevant and material facts” against the need to deter unconstitutional conduct in the future. Id. at 276-78. Although Miranda warnings are an important factor to consider in determining whether a statement is voluntary, they are not the only factor. Brown v. Illinois, 422 U.S. 590, 603 (1975). If the testimony is a confession, relevant factors for deciding whether the confession is a product of free will include: “[t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances . . . and, particularly, the purpose and flagrancy of the official misconduct . . . .” Id. at 603-04(citations omitted).
In this case, the district court did not consider any of these factors. Rather, the district court relied on New York v. Harris in concluding that the confession was admissible. In Harris, the Supreme Court addressed whether a written statement made by Harris at the police station should have been suppressed as the fruit of the poisonous tree because immediately prior to thestatement, the police entered Harris’s home without a warrant and without Harris’s consent and arrested him, in violation of Payton v. New York, 445 U.S. 573 (1980). Harris, 495 U.S. at 16. The Court found that arresting Harris 4 without an arrest warrant violated the Fourth Amendment but found it unnecessary to determine whether Harris’s statement was caused by exploitation of Harris’s Fourth Amendment rights or whether the taint of the constitutional violation was sufficiently attenuated to permit the introduction of Harris’s subsequent statement. Id. at 17, 19. The Court concluded that because the police had probable cause to arrest Harris before the illegal arrest, “his subsequent statement was not an exploitation of the illegal entry into Harris’ home.” Id. at 19. Harris therefore turned on the fact that the defendant’s detention was lawful because the police had probable cause to arrest him before the unconstitutional conduct occurred. If, as the district court suggests, Hernandez’s doorstep admission gave police probable cause to arrest her, and if this admission was untainted by a constitutional violation, Harris would apply; however, we cannot agree with the district court’s implicit conclusion that Hernandez’s admission was untainted by the Fourth Amendment violation.
In our prior opinion in this case, we held that “[t]he officers’ conduct during their knock-and-talk—banging on doors and windows while demanding entry, attempting a forced entry by breaking the glass on Hernandez’s door, then relying on her admission that an illegal alien was present as probable cause to enter—violated the Fourth Amendment.” Hernandez, 392 F. App’x at 353 (emphasis added). We agree with Hernandez that just as the officers could not have relied on Hernandez’s admission as probable cause to enter her home, they also could not have relied on the admission as probable cause to arrest her, because the officers’ Fourth Amendment violation had already occurred, tainting Hernandez’s admission.
While it is disputed whether the officers had actually entered the house at the time of Hernandez’s statement, id. at 351, it is clear that a Fourth Amendment violation—“banging on doors and windows while demanding entry [and] attempting a forced entry by breaking the glass on Hernandez’s door,” id. at 353—had already occurred at the time of Hernandez’s admission. Indeed, instead of being factually similar to Harris, this case is remarkably similar to Dunaway v. New York, 442 U.S. 200 (1979), in which the Supreme Court excluded a post-Miranda confession because the police illegally seized the defendant without probable cause almost immediately before the statement was made. Id. at 202-07. The Court determined that seizing Dunaway and taking him to the police station for questioning without probable cause was a Fourth Amendment violation, and deemed it necessary to determine whether the connection between the constitutional violation and the incriminating statement was sufficiently attenuated to warrant its admission. Id. at 216. Based on the fact that Dunaway “was . . . admittedly seized without probable cause in the hope that something might turn up, and confessed without any intervening event of significance,” the Court determined that the confession must be excluded. Id. at 218-19. In this case, we have already determined that the conduct of the police officers and ICE agents at the Hernandez home, which included trying to open the door and then breaking a glass pane on the door, was egregious. Hernandez, 392 F. App’x at 352. Once Hernandez opened the door, the record indicates that several officers had their guns drawn. These facts—the attempt to gain entry into the residence through the use of force in the middle of the night, the presence of several officers, and the fact that the officers had their weapons drawn—would have caused a reasonable person to believe that he was not free to leave or to decline the officers’ request. See Michigan v. Chesternut, 486 U.S. 567, 573 (1988) (noting that “the police can be said to have seized an individual only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave” (internal quotation marks omitted)); see also United States v. Mendenhall, 446 U.S. 544, 554 (1980) (“Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.”). Just as in Dunaway, Hernandez was illegally “seized” without probable cause. Chesternut, 486 U.S. at 573; Mendenhall, 446 U.S. at 554.
Additionally, like in Dunaway, Hernandez’s initial inculpatory statement at her doorway occurred “without any intervening event of significance.” 442 U.S. at 218. “Intervening events of significance” include, for example, an appearance before a magistrate or consultation with an attorney. Johnson v. Louisiana, 406 U.S. 356, 365 (1972) (holding that the “taint” of an allegedly illegal arrest was purged when defendant was represented by counsel and brought before a magistrate before the incriminating lineup occurred). Merely questioning a suspect is insufficient to constitute an “intervening event of significance.” See Brown, 422 U.S. at 602-05 (no intervening circumstances where police illegally arrested defendant and then gave Miranda warnings and questioned him before defendant confessed); Dunaway, 442 U.S. at 218-19 (no intervening circumstances where defendant was illegally arrested, given Miranda warnings, and questioned before making incriminating statements). Here, the fact that the officer informed Hernandez about the anonymous tip after or during the course of the Fourth Amendment violation is not an “intervening event of significance.” It is not at all similar to consulting with an attorney or being brought before a judge or magistrate. Therefore, we conclude that Hernandez’s doorstep admission cannot form the basis of probable cause to arrest her. Because there was no probable cause to arrest Hernandez prior to her statements at the ICE office, we find Harris inapplicable. Having concluded that Harris does not support the denial of the motion to suppress, we must consider the factors set out by the Supreme Court for determining whether Hernandez’s statement at the ICE office is admissible. The factors weigh heavily in Hernandez’s favor. First, there is no indication that more than a few hours passed between the Fourth Amendment violation and the statements made at the ICE office. Second, the record does not reveal, and the Government does not raise, any intervening circumstances that would have broken the causal chain. Finally, as this court previously noted, the officers’ conduct was egregious. See Hernandez, 392 F. App’x at 352. Were we to admit the confession, the purposes of the exclusionary rule would not be served. Cf. Brown, 422 U.S. at 602.
For these reasons, we hold that Hernandez’s post-arrest confession should have been suppressed.