United States v. Hassan , 83 F.3d 693 ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-20329
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
TUNJI ADEWAL HASSAN, also known as
Tunji A. Hassan; BABATUNDE M. ODUNTAN;
and AYODEJI OLUSOLA BABATOLA,
also known as Ayodeji O. Babatola,
Defendants-Appellees.
______________________________________________
Appeal from the United States District Court for the
Southern District of Texas
______________________________________________
May 9, 1996
Before GARWOOD, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.
PER CURIAM:
The Government brings this interlocutory appeal from a
district court order suppressing evidence in the criminal
prosecution of Tunji Hassan, Babatunde Oduntan, and Ayodeji
Babatola (collectively, "Defendants") for possession of heroin with
the intent to distribute and conspiring to commit that offense.
See 21 U.S.C. §§ 841(a)(1), 846. We reverse and remand to the
district court for proceedings not inconsistent with this opinion.
BACKGROUND
On April 3, 1994, United States Customs agents arrested Cheryl
Washington at Houston Intercontinental Airport after discovering
that she was carrying approximately five pounds of heroin.
Washington identified Hakeem Lawal as the individual who recruited
her to smuggle the heroin. After agents arrested Lawal on August
10, 1994, he agreed to cooperate with the investigation and
implicated the Defendants in the heroin scheme. He also agreed to
take agents Chuck Mazzilli, Mark Klemm, and Shawn McElroy to the
Defendants' apartment.
Lawal, the agents, and several Houston police officers arrived
at the apartment complex at approximately 11 p.m. Lawal called the
apartment and spoke briefly with Oduntan so that the agents could
ascertain whether anyone was there. The agents and Lawal then
climbed the stairs to the Defendants' apartment. Agent Klemm
peeked through the edge of the miniblinds, which were down, to
determine whether any of the occupants were armed. He observed
Hassan and Oduntan at the dining room table pouring a white
substance that appeared to be heroin through a strainer. The table
was covered with sheet pans filled with the substance. Agent
Mazzilli then made a similar observation through the miniblinds.
At that point, Klemm yelled to the police officers waiting
downstairs to come up to the apartment. Mazzilli knocked on the
door; as the Defendants approached it, he yelled, "police." Agent
Klemm then saw the Defendants move back toward the table. Mazzilli
kicked open the door and the agents entered the apartment and
2
arrested the Defendants. The apartment was not searched until a
warrant was obtained the next day.
The Defendants subsequently moved to suppress all evidence
seized pursuant to the warrantless entry. The district court
suppressed the evidence after concluding that exigent circumstances
did not exist to justify the agents' warrantless entry.1 The
Government filed a motion for reconsideration, arguing for the
first time that the independent source doctrine justified the
admission of the evidence. The district court concluded that the
doctrine was inapplicable and refused the Government's request for
another hearing to develop evidence on independent source. The
Government timely appealed.
DISCUSSION
The Government contends that the district court erred in
concluding that the independent source doctrine was inapplicable to
the instant cause. The Supreme Court has held that where evidence
initially unlawfully seized is subsequently obtained pursuant to a
search warrant based on independent information, the independent
source doctrine applies not only to evidence seen for the first
time during the warrant-authorized search, but also to evidence
seen in plain view at the time of the illegal warrantless search.
See Murray v. United States, 487 U.S. 533, 541-42, 108 S. Ct. 2529,
1
The Government does not challenge on appeal the district
court's ruling on exigent circumstances.
3
2535-36, 101 L. Ed.2d 472 (1988).2
The Government thus contends that the fact that the heroin
was observed and smelled during the illegal warrantless entry does
not render it inadmissible if it was also obtained pursuant to an
independently-acquired search warrant. See id., 108 S. Ct. at
2535-36; United States v. Restrepo, 966 F.2d 964, 969 (5th Cir.
1992), cert. denied, 506 U.S. 1049, 113 S. Ct. 968, 122 L. Ed.2d
124 (1993) (noting that evidence discovered during a violation of
the Fourth Amendment is admissible if it is also discovered through
an independent source).
The Defendants initially assert that the Government waived its
independent source argument by not raising it in the district court
until the motion for reconsideration. See Steagald v. United
States, 451 U.S. 204, 209, 101 S. Ct. 1642, 1646, 68 L. Ed.2d 38(1981) (concluding that the government may waive error by failing
to raise issues in a timely fashion during litigation); Giordenello
v. United States, 357 U.S. 480, 488, 78 S. Ct. 1245, 1251, 2 L.
2The Court recognized that the rationale for the
independent source doctrine involved a balancing of interests:
[T]he interest of society in deterring unlawful police
conduct and the public interest in having juries receive
all probative evidence of a crime are properly balanced
by putting the police in the same, not a worse, position
that they would have been in if no police error or
misconduct had occurred. . . . When the challenged
evidence has an independent source, exclusion of such
evidence would put the police in a worse position than
they would have been in absent any error or violation.
Murray, 487 U.S. at 537, 108 S. Ct. at 2533 (quoting Nix v.
Williams, 467 U.S. 431, 443, 104 S. Ct. 2501, 2509, 81 L. Ed.2d 377(1984)).
4
Ed.2d 1503 (1958) (holding that the government could not raise new
theory on appeal to Supreme Court because it failed to give the
lower courts an opportunity to rule on the theory); United States
v. Musa, 45 F.3d 922, 925 (5th Cir. 1995) (noting that issues not
raised will not be considered on appeal); McRae v. United States,
420 F.2d 1283, 1285-89 (D.C. Cir. 1969) (concluding that the
government is not entitled to reconsideration by judge during trial
after it has lost on a pretrial suppression motion).3
We decline to conclude that the Government waived the
independent source argument by not raising it until the motion for
reconsideration. The cases the Defendants rely on involved issues
that were argued for the first time on appeal. The Government,
however, presented the independent source issue at a time when the
district court possessed the ability to rule on it. Clearly, the
Government did not waive its argument on appeal by waiting until
the motion for reconsideration to advance it.
The Government's failure to raise the issue during the first
suppression hearing may be considered, however, in determining
whether the district court abused its discretion in refusing to
3
McRae is the only case the Defendants cite involving a
motion to reconsider before the district court. The case, however,
concerned the issue of whether the Government can move to reopen
the suppression ruling during the trial when the district court has
previously ruled against the Government in a pretrial hearing (at
the time, the Government could not seek an interlocutory appeal of
an adverse suppression ruling). McRae, 420 F.2d at 1285. Thus,
McRae was in an entirely different procedural posture than the
instant cause in which the Government moved for reconsideration
pretrial. Moreover, we have limited McRae to situations in which
a judge at trial reverses a pretrial suppression ruling entered by
a different judge. See United States v. Scott, 524 F.2d 465, 467
(5th Cir. 1975).
5
reopen the hearing to allow the Government to present evidence on
independent source. See United States v. Walker, 772 F.2d 1172,
1177 (5th Cir. 1985); see also United States v. Hobbs, 31 F.3d 918,
923 (9th Cir. 1994). The district court denied the motion because
"[t]here was ample time to prepare for the previous hearing and the
Court spent considerable time reviewing the facts of this case. No
new information has been presented that would justify oral
argument."
We agree with the Defendants that the district court did not
abuse its discretion in denying the Government's request to present
additional evidence on the independent source doctrine. This
conclusion, however, does not end our inquiry because the district
court did more than simply refuse to reopen the evidence; it
actually ruled on the merits of the Government's argument by
concluding that the independent source doctrine was inapplicable
because the agents lacked sufficient facts to obtain a warrant in
the absence of the illegal entry.
Because the district court considered and ruled on this issue,
we must review whether it erred in determining the applicability of
the independent source doctrine. As the Third Circuit has
observed:
Generally, the denial of a motion for reconsideration is
reviewed for an abuse of discretion. However, because an
appeal from a denial of a motion to reconsider
necessarily raises the underlying judgment for review,
the standard of review varies with the nature of the
underlying judgment. Where . . . the underlying judgment
was based in part upon the interpretation and application
of a legal precept, our review is plenary. But to the
extent that the district court's order was based on its
factual conclusions, we review under a "clearly
6
erroneous" standard.
United States v. Herrold, 962 F.2d 1131, 1136 (3d Cir.), cert.
denied, 506 U.S. 958, 113 S. Ct. 421, 121 L. Ed.2d 344 (1992)
(citations omitted).
The district court must perform a two-part analysis to
determine whether the independent source doctrine applies: (1)
does the warrant affidavit, when purged of tainted information
gained through the initial illegal entry, contain sufficient
remaining facts to constitute probable cause ("probable cause");
and (2) did the illegal search affect or motivate the officers'
decision to procure the search warrant ("effect of the illegal
entry"). See Restrepo, 966 F.2d at 966. This Court has addressed
the proper standard of review in assessing each prong. The
probable cause prong involves a question of law that we review de
novo.4 Id. at 971; see United States v. Phillips, 727 F.2d 392,
394-95 (5th Cir. 1984) (concluding that a reviewing court may
independently consider the sufficiency of the evidence in examining
the district court's determination of probable cause). In
contrast, the "effect of the illegal entry" prong involves a
factual determination, Restrepo, 966 F.2d at 972, that should be
reviewed under the clearly erroneous standard. See United States
4
We note that the Supreme Court recently granted
certiorari on the related issue of whether appellate courts should
apply a de novo standard of review to the district court's
determination of reasonable suspicion to stop and probable cause to
search in cases involving warrantless searches. See United States
v. Ornelas-Ledesma, 16 F.3d 714, 719 (7th Cir. 1994), cert.
granted, Ornelas v. United States, U.S. , 116 S. Ct. 417, 133 L.
Ed.2d 334 (1995).
7
v. Andrews, 22 F.3d 1328, 1333 (5th Cir.), cert. denied, U.S. ,
115 S. Ct. 346, 130 L. Ed.2d 302 (1994) (concluding that a district
court's factual findings on a motion to suppress should be reviewed
only for clear error).
In the instant cause, the main dispute between the parties
involves their characterizations of the district court's
determination that "[b]ut for the illegal entry, the officers
probably would not have had sufficient evidence to obtain the
warrant." The Government asserts that this finding concerns the
probable cause prong, while the Defendants argue that it pertains
to the factual issue of the effect of the illegal entry.
Although the language is somewhat ambiguous, the district
court's order appears to involve a "probable cause" determination
rather than an "effect of the illegal entry" analysis. The
district court focuses on the fact that sufficient evidence
"probably" would not have existed to allow the officers to obtain
a search warrant if the illegal entry had not occurred. The
order's language does not concern "whether information gained
through the illegal search influenced or motivated the officers'
decision to procure a warrant." Restrepo, 966 F.2d at 971.
Nothing in the district court's brief analysis indicates that it
ever considered whether the Customs agents were motivated to seek
the warrant by the sights and smells they observed upon entering
the Defendants' apartment. We conclude that the district court's
ruling involved the probable cause prong of the independent source
doctrine. See id.8
Under the probable cause prong, this Court reviews the
district court's ruling by excising from the warrant affidavit
those facts that were gleaned from the illegal search and then
examining whether the affidavit's remaining information is
sufficient to constitute probable cause. See id. at 966. If the
warrant affidavit, expunged of the tainted information, still
contains sufficient evidence, then the probable cause prong is
satisfied. Id. at 971.
When those facts and conclusions that would not have been
available but for the illegal entry into the Defendants' apartment
are excluded, the affidavit still contains the following
information: Cheryl Washington's arrest and her identification of
Lawal as the individual who recruited her to smuggle heroin;
incriminating phone conversations between Lawal and Washington;
Lawal's arrest and offer to cooperate with Customs agents; Lawal's
admission that he recruited Washington to smuggle heroin for the
Defendants; Lawal's identification of the Defendants' apartment;
the agents' observation through the miniblinds of the Defendants
cutting heroin at the dining room table;5 and after one agent
5
Relying on the "plain view" rule, the district court
concluded that the officers had a legal right to look through the
edge of the closed miniblinds into the Defendants' apartment. See
United States v. Jackson, 588 F.2d 1046, 1052-53 (5th Cir.), cert.
denied, 442 U.S. 941, 99 S. Ct. 2882, 61 L. Ed.2d 310 (1979)
(holding that officers did not violate the Fourth Amendment by
listening to the accused's conversation through a motel wall); Gil
v. Beto, 440 F.2d 666, 667 (5th Cir. 1971) (concluding that
officers did not violate Fourth Amendment by looking through motel
room window because the "officers [were] lawfully on the premises
and merely observe[d] what was in plain view"). Because this is
the Government's interlocutory appeal, the Defendants do not
complain of the district court's finding. We assume for purposes
9
yelled, "police," the Defendants turned back towards the table in
panic.
This independently-acquired information provided sufficient
evidence to establish probable cause for the issuance of a search
warrant. See id. at 971. In addition to tips from informants, the
Customs agents actually observed the Defendants cutting and sifting
a large amount of heroin. We conclude as a matter of law that the
expurgated affidavit sufficiently established probable cause.
Therefore, the district court erred in finding the independent
source doctrine inapplicable based on a lack of probable cause.
The determination of probable cause, however, does not end the
analysis. The district court must also examine whether
"information gained through the illegal search influenced or
motivated the officers' decision to procure a warrant." Id.6
of this opinion that the district court correctly concluded that
the agents had a legal right to look through the Defendants'
miniblinds and that the heroin was in plain view.
6
The Defendants rely on United States v. Dawkins, 17 F.3d
399 (D.C. Cir. 1994), in arguing that for this second prong, "what
counts is whether the actual illegal entry had any effect in
producing the warrant." Id. at 408 (quoting Murray, 487 U.S. at 542
n.3, 108 S. Ct. at 2536 n.3). They assert that the Court in
Dawkins rejected the independent source doctrine because it was not
convinced that the illegal entry did not affect the production of
the warrant, and that we should likewise reject the Government's
argument on this issue.
Despite the factual similarity between the two cases, the
Defendants' reliance on Dawkins is misplaced. Citing language in
Murray that the independent source doctrine is not applicable if
information obtained during the entry was presented to the
Magistrate and affected his decision to issue the warrant, the
Dawkins Court concluded that evidence obtained during a later
search pursuant to a warrant had to be suppressed because
"information derived from the illegal search played a large role in
the magistrate's decision." Id.We have rejected previously, however, the contention that
10
Although both parties argue that we should decide the issue of
the "effect of the illegal entry," we believe that a remand of this
factual prong to the district court is appropriate. See id. at 972
(remanding on the effect of the illegal entry issue because
motivation involves a question of fact). The district court may
wish to consider such factors as the precise nature of the
information acquired after the illegal entry, the importance of
this information compared to all the information known to the
agents, and the time at which the officers first evinced an intent
to seek a warrant. See id.; United States v. Register, 931 F.2d
308, 311 (5th Cir. 1991) (noting that the officer began preparing
warrant affidavit before illegal entry occurred). In determining
Murray requires the reviewing court "to consider the actual effect
of the illegally-acquired information in [the] warrant affidavit on
the decision of this particular magistrate judge to issue the
warrant." Restrepo, 966 F.2d at 969. In concluding that the
effect on "the [magistrate's] decision to issue the warrant" was
encompassed within the probable cause prong, we reaffirmed our pre-
Murray holdings that "inclusion of illegally-acquired information
on a warrant affidavit does not invalidate the warrant if the
affidavit's other averments set forth probable cause." Id. at 970.
Citing Herrold, a Third Circuit decision reversing a district
court's ruling that the inclusion of illegally obtained evidence in
the affidavit affected the magistrate's decision to issue a
warrant, we determined that an individualized inquiry of the effect
on the magistrate is not required. Id. (citing Herrold, 962 F.2d
at 1141-42, for the proposition that "the fact that an application
for a warrant contains information obtained through an unlawful
entry does not per force indicate that the improper information
"affected" the justice's decision to issue the warrant and thereby
vitiate the applicability of the independent source doctrine").
Instead, we examine whether the tainted information affected the
magistrate's decision by assessing whether the affidavit, purged of
all tainted information, still contains sufficient facts to
establish probable cause. Id. We do not perform a separate
inquiry of the effect on the magistrate, as the D.C. Circuit did in
its analysis. Dawkins, 17 F.3d at 408. Thus, Dawkins is
inapposite to the instant cause under the law of this circuit.
11
motivation, the district court may also examine the reasons why the
officers decided to include the illegally-obtained information in
the affidavit.
CONCLUSION
We reverse the district court's conclusion that the
independent source doctrine is inapplicable and remand the case to
the district court for a determination of whether the agents were
influenced or motivated to procure a warrant by information they
obtained through the illegal entry.7
REVERSED AND REMANDED.
7
It is within the district court's discretion to decide
whether it wishes to reopen the hearing on this issue or to simply
examine the record from the first suppression hearing for evidence
of the agents' motivation; except, the district court shall not
grant relief on the Government's motion for reconsideration without
affording the Defendants an opportunity to present evidence on the
second prong as stated in Restrepo.
12