Opinion
Criminal Action No. 00-20091-KHV
August 2, 2002
MEMORANDUM AND ORDER
This matter is before the Court on Jerome Daniel Foote's Motion To Suppress Evidence (Doc. #43) filed January 14, 2002. On February 20, April 22, June 17 and July 24, 2002, the Court held hearings on defendant's motion. For reasons set forth below, the Court sustains defendant's motion in part.
Factual Background
On December 1, 1997, FBI Special Agent Albert Pisterzi received a mailing from "Replicas," which advertised high quality reproductions of sunglasses, watches, handbags and apparel. On December 6, 1997, Pisterzi went to Replicas and observed that Foote was selling the advertised merchandise from his residence in Lenexa, Kansas. Pisterzi observed that original garment tags had been removed and replaced by various trademark tags. He also observed that handbags purportedly manufactured in Europe displayed "Made in China" tags.
On February 6, 1998, Richard Smith, a consultant with The Guidry Group in Dallas, Texas, went to Replicas, where Foote greeted him. Smith inspected the merchandise which Foote offered for sale, including watches, jewelry, handbags, sunglasses and clothing apparel. Based on his training and experience, Smith concluded that the items were counterfeit. Smith based his conclusion on the poor quality of workmanship and material, the removal of original neck tags and replacement with counterfeit trademark tags which were not properly sewn into the shirt, a low stitch count, missing tags, absence of labels or warranty cards that would ordinarily accompany trademark merchandise, and the low price of the merchandise offered for sale. During the visit, Foote told Smith that the items were "copies" and, in fact, the "best damn copies in the world that money could buy."
In August or September 1998, Foote relocated Replicas from his residence to a strip mall at 7922 Quivira in Lenexa, Kansas. On November 22, 1998, Smith and FBI Special Agents Stanley Wright and Melissa Osborne went to Replicas. They observed that the merchandise was similar to the merchandise which Foote had previously offered at his residence. Smith determined that the items contained counterfeit trademarks. Smith also knew that the companies which utilized the trademarks had registered the trademarks with the U.S. Patent and Trademark Office. On their visit, the agents purchased $466.00 in merchandise. After Smith and Agent Wright left the store, Agent Osborne remained in the store and overheard employees say that they were suspicious of the manner in which Smith and Agent Wright had purchased the items and that they thought the individuals might be investigating activity at Replicas. Smith examined the 23 items purchased and determined that they were counterfeit.
The merchandise purchased included 23 items: a man's Rolex, a Mont Blanc pen, a DKNY purse, a Fendi purse, a Polo Ralph Lauren purse, a Coach handbag, a Dooney Bourke handbag, a Dooney Bourke cigarette purse, a Louie Vuitton wallet, a Nike t-shirt, a Tommy Hilfiger sweatshirt, a pair of Tommy Hilfiger jeans, a FUBU sweatshirt, a Nike baseball cap, a Nautica sweatshirt, a Nike pullover shirt, a Nike hooded sweatshirt, an Adidas sweatshirt, a Guess sweatshirt, a Polo sweatshirt, a Fila t-shirt, a Mickey sweatshirt and a Tommy Girl sweatshirt.
By the end of the next day, November 23, 1998, Foote had moved all of the merchandise from the store.
On December 2, 1998, the Honorable Gerald L. Rushfelt, United States Magistrate Judge, issued a search warrant for "counterfeit merchandise" located at Replicas, as well as "business records, computer and computer hardware, books, business documents, inventory records of sales, inventory records of orders, records of promotional material or advertisements, and records of Federal Express and United Parcel Service (UPS) receipts and shipments relating to the purchase and sale of counterfeit merchandise."
On December 4 or 5, 1998, Agent Wright observed that Foote and his employees had moved suspected counterfeit merchandise back into the store.
At 8:30 a.m. on Monday, December 7, 1998, agents executed the search warrant at Replicas. To aid in the identification of counterfeit trademark goods, Smith and Michael McKenna, another consultant from The Guidry Group, accompanied the agents. Carolyn Donahue, Administrative Assistant to the President and Director of the Anti-Counterfeit Program at Dooney Bourke, also helped agents identify counterfeit trademark goods during the execution of the warrant.
At 11:00 a.m., while agents were still executing the warrant, Foote arrived at Replicas and agreed to speak with FBI Agents Wright and Frank Carey. Foote admitted that the items offered for sale at Replicas were "fakes or replicas." Foote told agents that he had suspected that the FBI was investigating him when the two men had made the purchase on November 22. Foote stated that on November 23, based on his suspicions, he started to remove all of the merchandise from Replicas until the "pressure was off." Foote stated that on November 30, 1998, he started moving the merchandise back into the business. Foote also stated that on December 1, he had additional counterfeit merchandise unloaded at Replicas from a Penske rental truck and two white cargo trailers parked in the rear of the store. The agents asked Foote for permission to search the two white cargo trailers, which he declined.
After agents completed their interview with Foote, Agent Wright prepared an affidavit and application for a search warrant to search the two white cargo trailers. Magistrate Judge Rushfelt signed the requested warrant and agents executed the search later that afternoon.
Agents seized about 5,200 items which they believed were counterfeit; approximately 3,500 items from inside Replicas and some 1,700 items from the two cargo trailers.
At approximately 10:00 a.m., while agents were still executing the search warrant, Cynthia Gibson, an employee of Replicas, arrived in her personal vehicle. Agent Osborne recognized Gibson from previous visits to Replicas. Osborne testified that although she did not know for sure, she believes that she knew Gibson's name before that morning. After Gibson parked her car behind the store, FBI agents Wright and Pisterzi (and another agent) identified themselves, asked Gibson to identify herself, asked why she was there, and asked various questions about Replicas. Gibson agreed to speak with the agents and the four of them talked near a tree, approximately 25 feet from the rear door to Replicas. Gibson believes that at some point, an agent walked out of the back door of Replicas with a bag of merchandise. Gibson told agents that she had Foote's merchandise in her car. Agents asked for permission to search the car, but Gibson told them several times that she wanted to talk to Foote because it was his merchandise. Agents responded that it was her car and that she could give consent. Agents eventually brought Gibson a cell phone to call Foote. At one point, agents told Gibson that she could leave without giving consent to search the car, but that it would be a long walk home. Agents also told Gibson that if she did not let them search the car, they would just go get a search warrant. Based on the agents' statement, Gibson concluded that the agents were going to search her car anyway so to save time, she gave agents permission to search. In Gibson's car, agents found approximately 2,380 items of counterfeit trademark apparel, merchandise, labels and tags.
Neither party presented evidence as to any attempts by Gibson to call Foote or anyone else.
During the execution of the search warrant, Pisterzi also interviewed Elizabeth Martindale, another employee of Replicas. Martindale had been employed at Replicas approximately one week.
On May 18, 2000, Agents Wright and Herron met Brandon Smith at his residence by appointment. The agents identified themselves and told Smith that they wished to speak about Foote. Smith agreed to talk, told the agents how he had met Foote and explained his duties and activities at Replicas.
All references hereafter in this Memorandum And Order to "Smith" are to defendant Brandon Smith.
On June 21, 2000, a grand jury returned an indictment which charged Foote with three counts of trafficking in goods bearing counterfeit marks in violation of 18 U.S.C. § 2320. See Sealed Indictment (Doc. #1). On May 24, 2001, a grand jury returned a superseding indictment which charged Foote and Smith with conspiracy to traffic in goods bearing counterfeit marks, and also charged Foote with one count of money laundering in violation of 18 U.S.C. § 1956, one count of engaging in a monetary transaction in property derived from an unlawful activity in violation of 18 U.S.C. § 1957, and three counts of trafficking in goods bearing counterfeit marks. See Sealed Superseding Indictment (Doc. #3).
On May 30, 2001, defendant was arrested as a result of the superseding indictment. Foote was transported to an FBI office and interviewed by Agents Wright and Herron.
On December 13, 2001, a grand jury returned a second superseding indictment which charged Foote and Smith with conspiracy to traffic in goods bearing counterfeit marks, and also charged Foote with six counts of money laundering, one count of engaging in a monetary transaction in property derived from an unlawful activity, and 37 counts of trafficking in goods bearing counterfeit marks. See Second Superseding Indictment (Doc. #34). On May 1, 2002, a grand jury returned a third superseding indictment which charged Foote and Smith with conspiracy to traffic in goods bearing counterfeit marks, and also charged Foote with four counts of money laundering, one count of engaging in a monetary transaction in property derived from an unlawful activity, and 38 counts of trafficking in goods bearing counterfeit marks. See Third Superseding Indictment (Doc. #74).
The Court previously ruled that the portion of the December 2 warrant for "counterfeit merchandise" is invalid. See Memorandum And Order (Doc. #77) filed May 6, 2002 at 9. The Court ordered subsequent briefing (1) whether the Court can sever the invalid portion of the warrant (which relates to "counterfeit merchandise") from the valid portion (which relates to "business records, computer and computer hardware, books, business documents, inventory records of sales, inventory records of orders, records of promotional material or advertisements, and records of Federal Express and United Parcel Service (UPS) receipts and shipments relating to the purchase and sale of counterfeit merchandise"); (2) whether the seizure of counterfeit goods was permissible under the plain view exception to the exclusionary rule; and (3) whether the search warrant for the white cargo trailers is valid. See id. at 9-10. At the suppression hearing on June 17, 2002, the Court suppressed all evidence seized pursuant to the December 2 warrant, including statements made by Foote during that search. The Court also ordered the government to show cause why the Court should not exclude, as fruit of the unlawful search, all evidence obtained pursuant to the December 7 warrant for the white cargo trailers. In subsequent briefing, Foote asked the Court to exclude (1) all evidence seized in the search of Gibson's car, (2) testimony by Gibson, Martindale and Smith, and (3) Foote's statement on May 30, 2001.
At the hearing on July 26, 2002, defendant objected to the presentation of additional evidence with regard to the search of Gibson's car, the statements of Gibson, Martindale and Smith, and the statement of Foote on May 30, 2001. Because defendant did not raise these issues until his brief on July 5, 2002, see Defendant's Response To Government's Third Supplemental Brief (Doc. #97) filed July 5, 2002 at 5-11, the Court permitted the government to present evidence.
Analysis
The Court has already suppressed all evidence seized pursuant to the December 2 warrant, including statements made by Foote during that search. The Court must now decide whether any additional evidence or witnesses, discovered as a result of the search pursuant to the December 2 warrant, should be excluded as "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 487 (1963).I. Warrant For Search Of Cargo Trailers
In its response to the Court's order to show cause, the government essentially concedes that the December 7 warrant for the white cargo trailers is a fruit of the unlawful search at Replicas, and is therefore invalid. See Third Supplemental Brief Responding To Defendant's Motion To Suppress (Doc. #96) filed June 28, 2002 at 7 ("the argument that search warrant #2 is not `fruit of the poisonous tree' is not very compelling"). At the suppression hearing on July 26, 2002, government counsel stated that (1) there was not much of a factual "disconnect" between the illegal search of Replicas and the subsequent affidavit for the cargo trailers and (2) absent Foote's statements (which were suppressed), the government likely could not establish independent probable cause to search the trailers. Despite the government's candid characterization of its own arguments, the Court nevertheless examines whether the search warrant for the cargo trailers is a fruit of the unlawful search of Replicas. The government can establish that the warrant for the cargo trailers is not tainted by the illegal search of Replicas by demonstrating that (1) the evidence would have been inevitably discovered, (2) the evidence was discovered through independent means, or (3) the evidence discovered was so attenuated from the illegality as to dissipate the taint of the unlawful conduct. See United States v. Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir.), cert. denied, 531 U.S. 887 (2000) (citations omitted).
A. Inevitable Discovery
The inevitable discovery doctrine allows the introduction of evidence acquired in violation of a defendant's Fourth Amendment rights "if the evidence would have been inevitably discovered through independent legal means." United States v. Griffin, 48 F.3d 1147, 1150 (10th Cir. 1995) (quoting United States v. Ford, 22 F.3d 374, 377 (1st Cir.), cert. denied, 513 U.S. 900 (1994)). "If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means . . . then . . . the evidence should be received." Nix v. Williams, 467 U.S. 431, 444 (1984). Accordingly, as long as "an independent investigation inevitably would have led to discovery of the evidence," the evidence will not be suppressed. United States v. Larsen, 127 F.3d 984, 986 (10th Cir. 1997).
The government concedes that "it is difficult to articulate a factual basis to establish that search warrant #2 would have `inevitably' been obtained apart from the execution of search warrant #1." Third Supplemental Brief (Doc. #96) at 5. The government argues, however, that "it is likely that the agents could have interviewed more individuals besides the defendant to acquire more information about the cargo trailers that would have established probable cause to support their search." Id. at 5. At the suppression hearings, the government did not present sufficient evidence on this point. The Court therefore concludes that discovery of the contents of the white cargo trailers would not have inevitably occurred.
B. Independent Means Or Source
The independent source doctrine allows the introduction of "evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegality." Griffin, 48 F.3d at 1150 (quoting Murray v. United States, 487 U.S. 533, 537 (1988)); see United States v. Carson, 793 F.2d 1141, 1149 (10th Cir.), cert. denied, 479 U.S. 914 (1986). The ultimate inquiry is whether the alleged independent source is "in fact a genuinely independent source of the information and tangible evidence at issue." Murray, 487 U.S. at 542; see Hamilton v. Nix, 809 F.2d 463, 467 (8th Cir.) ("The critical inquiry under the independent source doctrine is whether the challenged evidence was obtained from lawful sources and by lawful means independent of the police misconduct."), cert. denied, 483 U.S. 1023 (1987).
The government argues that the application and affidavit in support of the second search warrant was obtained based on an independent source, i.e. the interview of Elizabeth Martindale. The government concedes, however, that the application and affidavit for the second search warrant did not clearly articulate that Martindale stated that "counterfeit" merchandise likely was in the white cargo trailers. Because the statements of Foote, which have been suppressed, were the primary basis for the second affidavit, the government has not established that the warrant for the cargo trailers was based on an independent source.
C. Attenuation
Very few courts have attempted to define attenuation, but the focus is on the connection between the Fourth Amendment violation and the subsequent discovery of evidence. The attenuation doctrine ordinarily is used to support the admission of evidence in three general categories: (1) voluntary confessions obtained after illegal arrests, (2) evidence obtained during consensual searches following illegal seizures, and (3) voluntary confessions given after Miranda warnings where an earlier confession was obtained before the defendant was advised of his Fifth Amendment rights. See United States v. Green, 111 F.3d 515, 521 (7th Cir.), cert. denied, 522 U.S. 973 (1997).
The government concedes that a voluntary statement by a witness (here, Elizabeth Martindale), by itself, does not qualify to satisfy the attenuation exception. Because the statements of Martindale and Foote, which were fruit of the original unlawful search, comprise the basis for the second affidavit, the Court finds that the search of Replicas and the subsequent warrant for the cargo trailers were not sufficiently attenuated.
For these reasons, the Court finds that the warrant for the two white cargo trailers was fruit of the unlawful search of Replicas and that all evidence seized from the two cargo trailers must be suppressed.
II. Search Of Cynthia Gibson's Vehicle
The government argues that Foote lacks standing to challenge the search of Gibson's car. The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. Amend. IV. To fall within the scope of the Fourth Amendment protection, a person must have "a legitimate expectation of privacy in the invaded place." Rakas v. Illinois, 439 U.S. 128, 143 (1978). Defendant bears the burden to show that he had such an expectation. See United States v. Gordon, 168 F.3d 1222, 1226 (10th Cir. 1999). Foote concedes that he did not have an ownership or possessory interest in Gibson's car and that he cannot directly challenge the search of her car. Foote may challenge the search of Gibson's car, however, as a fruit of the execution of the December 2 warrant. See Nava-Ramirez, 210 F.3d at 1131 ("This court has repeatedly recognized that although a defendant may lack the requisite possessory or ownership interest in a vehicle to directly challenge a search of that vehicle, the defendant may nonetheless contest the lawfulness of his own detention and seek to suppress evidence found in the vehicle as the fruit of the [defendant's] illegal detention.").
To suppress evidence as a fruit of an unlawful search, Foote must show that (1) the search violated his Fourth Amendment rights and (2) a factual nexus exists between the search of Replicas and the search of Gibson's car. See United States v. DeLuca, 269 F.3d 1128, 1132 (10th Cir. 2001) (citing Nava-Ramirez, 210 F.3d at 1131). "Only if the defendant has made these two showings must the government prove that the evidence sought to be suppressed is not `fruit of the poisonous tree.'" Nava-Ramirez, 210 F.3d at 1131. "At a minimum, a defendant must adduce evidence at the suppression hearing showing the evidence sought to be suppressed would not have come to light but for the government's unconstitutional conduct." Id. The Tenth Circuit has clarified that this test means that the defendant "must show that the [alleged fruits] would never have been found but for . . . [the] unlawful [conduct]." DeLuca, 269 F.3d at 1133. In other words, defendant must make a threshold showing that the search of Gibson's car is tainted by the earlier Fourth Amendment violation. See id. at 1135.
Here, Foote has met his burden to show a prior Fourth Amendment violation, see Memorandum And Order (Doc. #77) filed May 6, 2002 at 9, but he has not shown a sufficient factual nexus between the search of Replicas and the search of Gibson's car. Foote has not shown that absent the search of Replicas that day, Gibson would have been unwilling to talk to FBI agents upon request and give them consent to search her car. FBI agents could have waited for Gibson in the parking lot and asked her to talk with them before she went inside Replicas for the day. Although Gibson testified that she would not have sought the agents out, she conceded that she was willing to talk to them. She specifically testified that at the time she started talking with agents, she had not seen any agents taking merchandise out of the store and was not aware of how many agents were in the store. Gibson only knew that the back door to the store was open, which was unusual, that FBI agents met her as she walked across the parking lot, and that at some point, an agent may have brought a bag of merchandise out of the store.
Most importantly, Gibson's consent to the car search was based on the agents' statement that they would obtain a warrant if she did not consent to a search. She denied that the agents' statement had more force because of the other activity going on at Replicas. Instead, she testified that even absent the other activity, she would have believed the agents' statement that they could obtain a warrant to search her car. Finally, Gibson testified that Foote had previously encouraged her and other employees to cooperate if law enforcement ever questioned them about Replicas. Such encouragement suggests that even absent the unlawful search of Replicas, Gibson would have willingly allowed agents to search her car. In sum, defendant has not satisfied his burden of showing a factual nexus between the search of Replicas and the search of Gibson's car. See 3 Wayne R. LaFave, Search And Seizure § 8.2(d) at 665 (3d Ed. 1996) ("If the purported consent is to search a place different than that previously subjected to an illegal search, then it is much more difficult to support the assertion that the consent was a surrender to an implied claim of authority; police activity in searching place A may fairly be said to be a manifestation of authority to search place A but not place B."); DeLuca, 269 F.3d at 1134-35 (defendant has burden to show that evidence obtained is product of Fourth Amendment violation); United States v. King, 222 F.3d 1280, 1285-86 (10th Cir. 2000) (because affidavit submitted to obtain second warrant did not reference illegally discovered evidence, no factual nexus shown); Nava-Ramirez, 210 F.3d at 1131-32 (factual nexus to evidence obtained in search of third party's car not established where defendant did not offer evidence that if he had asked to leave after alleged Fourth Amendment violation, he could have done so in third party's car).
Even if Foote could satisfy his threshold burden of showing a factual nexus, the government has shown that the search of Gibson's car was not a fruit of the invalid search warrant. See DeLuca, 269 F.3d at 1133-34. To determine if evidence obtained is "fruit of the poisonous tree," the Court evaluates whether the evidence was obtained by exploitation of the prior unlawful conduct or by means sufficiently distinguishable to be purged of the primary taint. See Wong Sun, 371 U.S. at 487-88. Except for the fact that the government bears the burden, this inquiry is essentially the same as that conducted above, as to a factual nexus between the unlawful search of Replicas and Gibson's consent to search. As explained above, even absent the ongoing search of Replicas, Gibson likely would have been willing to talk to FBI agents upon request and consent to a search of her car. Gibson's consent to the car search was obtained by a threat that the agents would go and obtain a search warrant anyway — means sufficiently distinguishable from the illegal search of Replicas. See United States v. Eylicio-Montoya, 70 F.3d 1158, 1167 (10th Cir. 1995) (discovery of evidence did not result from exploitation of information obtained through illegal arrest, but from observations that agents would have made absent Fourth Amendment violation). Gibson believed that the agents' threat was credible, not because of the contemporaneous search of Replicas or any evidence obtained therein, but because the threat was made by law enforcement agents. Although the threat may have made Gibson's consent involuntary (a question which Foote cannot raise because he lacks standing), the threat was not related to the unlawful search which was in process inside Replicas. Accordingly, the Court overrules Foote's motion to suppress evidence seized from Gibson's car.
Both parties agree that when a consensual search is preceded by a Fourth Amendment violation, the government must establish (1) that the consent was voluntary in fact and (2) that there was a break in the casual connection between the illegal search and subsequent consent. See United States v. Melendez-Garcia, 28 F.3d 1046, 1054 (10th Cir. 1994) (citing Wong Sun, 371 U.S. at 486). The Tenth Circuit set forth this two part test earlier in United States v. Recalde, 761 F.2d 1448, 1457-58 (10th Cir. 1985). Recalde addressed whether a defendant's confession should be suppressed as fruit of his illegal detention. See id. at 1457-58; see also Brown v. Illinois, 422 U.S. 590 (1975) (evaluating whether defendant's confession was involuntary or fruit of a prior Fourth Amendment violation). Here, Foote is challenging the consent of a third party to a search of the third party's property after defendant's business was unlawfully searched. Because Foote does not have standing to directly challenge the validity of the search of Gibson's car including the voluntariness of consent, the Court finds that the relevant inquiry is limited to whether Gibson's consent was a fruit of the unlawful search of Replicas.
On at least two occasions, the Tenth Circuit has addressed whether the consent of a defendant's spouse was fruit of a prior Fourth Amendment violation. See Mendoza-Salgado, supra; United States v. Maez, 872 F.2d 1444 (10th Cir. 1989). In both cases, the Tenth Circuit analyzed whether the government had established that (1) the consent was voluntary in fact and (2) there was a sufficient break in the casual connection between the Fourth Amendment violation and subsequent consent. See Mendoza-Salgado, 964 F.2d at 1010-12; Maez, 872 F.2d at 1453-54. Neither Maez nor Mendoza-Salgado addressed whether the defendant had standing to challenge the voluntariness of his spouse's consent. In both cases, however, the spouse consented to a search of a home in which the defendant had a possessory interest. Accordingly, defendant's standing to challenge the consent to search (including whether it was voluntary) was presumed and not challenged by the government. See United States v. Babwah, 972 F.2d 30, 35 (2d Cir. 1992) (defendant had standing to challenge search of house he resided in). If a defendant does not have standing to contest a search directly, as in this case, however, the government is not required to establish that the third party's consent was voluntary in fact. In such circumstances, the Court solely analyzes whether the third party's consent was a fruit of the prior Fourth Amendment violation. See United States v. Scott, 210 F.3d 391, 2000 WL 368441, at *4 (10th Cir. Apr. 10, 2000) (because defendant lacked standing to challenge search, he could not argue that third party's consent was coerced); Nava-Ramirez, 210 F.3d at 1131 (defendant may contest lawfulness of search of co-defendant's car trunk as fruit of the prior Fourth Amendment violation against defendant); United States v. Torres, 5 F.3d 548, 1993 WL 330616, at *2 (10th Cir. Sept. 1, 1993) ("Because [defendant] has no standing to object to the search of the vehicle, we need not address whether consent to search was validly obtained."); United States v. Poke, No. 02-40008, 2002 WL 1334862, at *7 (D.Kan. 2002) (defendant lacked standing to challenge the voluntariness of co-defendant's consent); see also United States v. Payner, 447 U.S. 727, 735-36 (1980) ("Our Fourth Amendment decisions have established beyond any doubt that the interest in deterring illegal searches does not justify the exclusion of tainted evidence at the instance of a party who was not the victim of the challenged practices.").
III. Testimony Of Cynthia Gibson
Foote argues that the trial testimony of Cynthia Gibson should be suppressed because it is tainted by the original illegal search. As outlined above, Foote has the initial burden to show that (1) the search violated his Fourth Amendment rights and (2) a factual nexus exists between the search of Replicas and the discovery of Gibson as a witness. See DeLuca, 269 F.3d at 1132. Although Foote has satisfied the first requirement, he has not shown that but for the unlawful search of Replicas, Gibson would not have been found. See id. at 1133. Agents observed Gibson during their prior visits to the store and recognized her as a Replicas employee before she approached the business the morning of December 7, 1998. See Testimony Of Agent Osborne at July 26, 2002 Hearing; see also Government Exhibit 2: Agent Wright Grand Jury Testimony of May 23, 2001 at 21-22. Although the back door was open, Gibson did not know that a search of the store was in process when she agreed to talk to the agents. Accordingly, Foote has not satisfied his burden to show that the search of Replicas was related to the discovery of Gibson as a witness.
Even if Foote could satisfy his initial burden, the Court finds that the government has shown that the encounter with Gibson was sufficiently attenuated from the search of Replicas to remove any "taint" from the illegal search. To ascertain whether a causal connections exists between a constitutional violation and the discovery of the live witness, the Court examines the following factors:
(1) whether the testimony given by the witness was an act of free will or coercion or induced by official authority as a result of the initial illegality, [United States v. Ceccolini, 435 U.S. 268,] 276, 98 S.Ct. 1054 [(1978)]; (2) whether the illegality was used in questioning the witness, id. at 279, 98 S.Ct. 1054; (3) how much time passed between the illegality and contact with the witness and between the contact and the testimony, id.; (4) whether the identity of the witness was known to the police before the illegal conduct, id.; and (5) whether the illegality was made with the intention of finding a witness to testify against the defendant, id. at 280, 98 S.Ct. 1054.
United States v. Ienco, 182 F.3d 517, 530 (7th Cir. 1999) (citing United States v. Ceccolini, 435 U.S. 268 (1978)). In Ceccolini, the Supreme Court noted that "the exclusionary rule should be invoked with much greater reluctance where the claim is based on a causal relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support suppression of an inanimate object." Ceccolini, 435 U.S. at 280. It explained:
Even in situations where the exclusionary rule is plainly applicable, we have declined to adopt a "per se or `but for' rule" that would make inadmissible any evidence, whether tangible or live-witness testimony, which somehow came to light through a chain of causation that began with an illegal arrest. Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975).
Evaluating the standards for application of the exclusionary rule to live — witness testimony in light of this balance, we are first impelled to conclude that the degree of free will exercised by the witness is not irrelevant in determining the extent to which the basic purpose of the exclusionary rule will be advanced by its application. This is certainly true when the challenged statements are made by a putative defendant after arrest, Wong Sun, supra, 371 U.S. at 491, 83 S.Ct. at 419; Brown v. Illinois, supra, and a fortiori is true of testimony given by nondefendants.
The greater the willingness of the witness to freely testify, the greater the likelihood that he or she will be discovered by legal means and, concomitantly, the smaller the incentive to conduct an illegal search to discover the witness. Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet. Witnesses can, and often do, come forward and offer evidence entirely of their own volition. And evaluated properly, the degree of free will necessary to dissipate the taint will very likely be found more often in the case of live-witness testimony than other kinds of evidence. The time, place and manner of the initial questioning of the witness may be such that any statements are truly the product of detached reflection and a desire to be cooperative on the part of the witness. And the illegality which led to the discovery of the witness very often will not play any meaningful part in the witness' willingness to testify.
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Another factor which not only is relevant in determining the usefulness of the exclusionary rule in a particular context, but also seems to us to differentiate the testimony of all live witnesses — even putative defendants — from the exclusion of the typical documentary evidence, is that such exclusion would perpetually disable a witness from testifying about relevant and material facts, regardless of how unrelated such testimony might be to the purpose of the originally illegal search or the evidence discovered thereby. Rules which disqualify knowledgeable witnesses from testifying at trial are, in the words of Professor McCormick, "serious obstructions to the ascertainment of truth"; accordingly, "[f]or a century the course of legal evolution has been in the direction of sweeping away these obstructions." C. McCormick, Law of Evidence § 71 (1954). Alluding to the enormous cost engendered by such a permanent disability in an analogous context, we have specifically refused to hold that "making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed." United States v. Bayer, 331 U.S. 532, 541, 67 S.Ct. 1394, 1398, 91 L.Ed. 1654 (1947). For many of these same reasons, the Court has also held admissible at trial testimony of a witness whose identity was disclosed by the defendant's statement given after inadequate Miranda warnings. Michigan v. Tucker, 417 U.S. 433, 450-451, 94 S.Ct. 2357, 2367, 41 L.Ed.2d 182 (1974).
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In short, since the cost of excluding live-witness testimony often will be greater, a closer, more direct link between the illegality and that kind of testimony is required. 435 U.S. at 276-78 (footnotes omitted).
The analysis whether Gibson's testimony should be excluded is similar to the foregoing analysis whether evidence from the search of Gibson's car should be suppressed. Gibson's statement to agents was voluntary; the agents recognized Gibson, and may have known her name before the day of the search; and agents did not find Gibson inside Replicas during the search but rather in the parking lot as she approached the store. No evidence suggests that agents used evidence obtained during the search in questioning Gibson. Although the search of Replicas was in progress when the agents met Gibson, she had no knowledge of the circumstances of any such search. She only knew that the back door was open, which was unusual.
For these reasons, the Court overrules defendant's request to exclude Cynthia Gibson as a trial witness.
IV. Testimony of Elizabeth Martindale
At the suppression hearing on July 26, 2002, the government did not present evidence as to Elizabeth Martindale. The government's sole argument was that she should be allowed to testify because she is willing to do so. The government has not contested defendant's argument that but for the illegal search of Replicas, it would not have discovered Martindale as a witness. See Defendant's Response To Government's Third Supplemental Brief (Doc. #97) filed July 5, 2002 at 9. Indeed, the government concedes that "[t]he interview of Elizabeth Martindale occurred during the execution of search warrant #1, so there was no attenuation between acquiring information from her and the `illegal' search." Third Supplemental Brief Responding To Defendant's Motion To Suppress (Doc. #96) filed June 28, 2002 at 4. Accordingly, any statements to agents by Elizabeth Martindale, during the search of December 7, 1998, are suppressed. Elizabeth Martindale is also excluded as a trial witness.
V. Testimony Of Brandon Smith
On July 16, 2002, as part of a cooperation agreement with the government, Foote's co-defendant, Brandon Smith, pled guilty to aiding and abetting tax evasion in violation of 26 U.S.C. § 7201 and 18 U.S.C. § 2. As part of the agreement, Smith agreed to testify truthfully. Foote argues that Smith decided to cooperate because the government confronted him with illegally obtained evidence. Foote has not offered sufficient evidence, however, that but for the unlawful search of Replicas, agents would not have found Smith and he would not have agreed to testify. See DeLuca, 269 F.3d at 1132-33.
Even if Foote could satisfy his initial burden in this regard, the government has shown that Smith's interview and cooperation were not tainted by the search of Replicas on December 7, 1998. At the suppression hearing on July 26, 2002, Smith testified that government agents interviewed him on May 18, 2000, that he voluntarily gave a statement, that he told agents about his role and duties at Replicas, and that during the interview, agents did not show him any evidence seized on December 7, 1998. Based on the Ceccolini factors, the Court overrules Foote's request to exclude Smith as a witness at trial. Smith's statements were voluntary; agents did not use illegally obtained evidence to question him; approximately 17 months had passed between the invalid search of Replicas and the agents' contact with him; and Smith's identity was known to agents before December 7, 1998, see Government Exhibit 2: Agent Wright Grand Jury Testimony of May 23, 2001 at 21-22. The record contains no evidence that the search on December 7, 1998 was made with the intent of finding a witness to testify against Foote, but the Court finds such a scenario unlikely. For these reasons, the Court overrules defendant's request to exclude Brandon Smith as a trial witness.
VI. Statements of Foote on May 30, 2001
At the suppression hearing on July 26, 2002, the government did not present evidence as to Foote's statements to Agents Wright and Herron during an interview on May 30, 2001. Accordingly, the Court finds that any statements made during that interview shall be suppressed.
VII. Return Of Property
Foote asks for return of all property which the government has determined is not counterfeit trademark merchandise, including all computers, boxes, locks, glue, etc., seized from Replicas. Foote also asks the Court to order the government not to destroy illegally seized items until resolution of trial and subsequent motions. Based on government counsel's statements at the suppression hearing on July 26, 2002, defendant's requests are overruled as moot.
IT IS THEREFORE ORDERED that Foote's Motion To Suppress Evidence (Doc. #43) filed January 14, 2002, be and hereby is SUSTAINED in part. Defendant's motion is sustained as to (1) all evidence seized pursuant to the December 2, 1998 warrant including Foote's statements on December 7, 1998; (2) all evidence seized pursuant to the December 7, 1998 warrant, (3) the testimony of Elizabeth Martindale; and (4) Foote's statement on May 30, 2001.
IT IS FURTHER ORDERED that on or before August 5, 2002 at 11:30 a.m., the government shall file a notice of the counts of the indictment that it will pursue at trial. A copy of this Memorandum And Order shall be hand delivered or faxed to all counsel of record.