Friday, August 2, 2013

There May Be A Poisonous Tree but Fruit That Isn't From It Can Still Get into Evidence: How a Drug Dog's Alert Allowed a Prosecution to Go Forward

Before we get to the case, let us try to imagine what it might have been like for one of the defendants.  To bring the argument home, I will use a hypothetical involving author and reader:

My name is Rick.  Yours is Frank. We met a few times a year ago and I told you that I occasionally need a driver to help me move fruit.  I usually work for someone else but occasionally I get a chance to make real money by handling my own shipment.  I call you up out of the blue one day and say I need you to drive a rig from Memphis to Baltimore.  You’ll make three times what you do at your day job and I ask you to take a few days off from your job to help me.  You agree.  I tell you to meet me at a diner in Memphis in two days, not far from where you live.  I also tell you that, if you get to the diner before me, you should look for a guy named Louis.  He will be short and thin, about 30, wearing a Phillies cap.

You get to the diner and find Louis, who is someone you realize you saw with me when we met before.  You ask Louis some questions about the job but he is not very talkative.  You buy a paper and read it while the two of you wait for me.  When I arrive, you ask me the questions Louis would not answer.  What type of fruit will we be hauling?  I say that it’s actually a repositioning drive and the truck is already in the parking lot of the restaurant.  There will be nothing on the truck.  It’s also not going to Baltimore.  It’s just from the parking lot to a warehouse on the edge of Memphis, and maybe from there to Mississippi. 

You leave the restaurant with me and Louis.  I show you the rig and tell you to start it up and follow me and Louis in a Chevy.  When everyone arrives at the truck stop, I tell you to wait there while Louis and I go get someone in Mississippi.  I say that we will be gone several hours and that you can use the facilities in the stop if you need to. 

You have grown suspicious but see no way to easily get out of the situation.  You suspect that drugs may be involved but see no evidence of that other than my evasive answers and Louis’s unusual behavior.  There is nothing in the trailer. When I and Louis come back, we have another individual and I suggest the three of us get in the back of the trailer and discuss what we’re going to do.  You ask what needs to be discussed if this is only a reposition drive but I say that there will be several drivers and we have to discuss who will go first. While we’re sitting in the back, you see police cars arrive and line up behind the rig.  Some of the cars have dogs.  You ask me what’s going on but I tell you to shut up and say nothing. 

While we’re standing outside the rig, a dog alerts to a location underneath.  All of us are arrested. 

Following a Suspected Drug Trafficker

Now to the Sixth Circuit case:

A Tennessee state investigator, Joe Hoing, on special assignment to the Federal Drug Administration Task Force, received a tip concerning Emilio Rivas.  The confidential informant said that Rivas had used cash to purchase a one-way ticket from McAllen, Texas, to Memphis, Tennessee.   Hoing suspected that Rivas was engaged in drug trafficking.  Hoing went to the airport the morning of Rivas’s flight and called his cell number.  Rivas answered the call, thereby identifying himself for Hoing, but Hoing hung up and began to follow Rivas. 

In Memphis, Hoing and his team tracked Rivas to the Kettle Restaurant where Rivas found a tractor-trailer in the parking lot and climbed into the driver’s seat.  Hoing called in the license plate of the vehicle and learned it was registered to Rivas.  Anibal Figueredo-Diaz (roughly the role you were given in the hypothetical that began this blog) was in the passenger seat but got out and walked to a nearby gas station.  Rivas got out to inspect the trailer’s undercarriage before getting back into the driver’s seat.  Figueredo-Diaz returned and got back into the passenger seat.  Dario Morales-Loya arrived in the lot in a black Chevy Blazer and Rivas got out of the trailer and joined him.  Figueredo-Diaz took over the driver’s seat and followed them. 

Hoing’s team tracked both vehicles as they headed southbound on Interstate 55 to a truck stop.  Hoing continued to follow the Blazer when it left the stop, directing another officer to stay with the trailer.  The Blazer went to Mississippi where Rivas and Morales-Loya met more people.  Rivas and an unidentified man returned to the truck stop in Tennessee, driving a Buick.  The Buick and the trailer then went to a warehouse in Mississippi near where Rivas had driven previously in the Blazer. 

The Sixth Circuit described what happened next:

“The four men—Rivas, defendants Morales–Loya and Figueredo–Diaz, and the unidentified man—huddled around the rear of the trailer with its doors wide open. Hoing's crew, all identified in police clothing, approached the men for the purpose of conducting a Terry investigative stop. The four men responded differently. Figueredo–Diaz and Morales–Loya were detained without incident. However, Rivas and the unidentified man fled. The officers pursued them and eventually apprehended Rivas, but the unidentified individual escaped [apparently for good].”

An officer with the Olive Branch Police Department arrived with a narcotics detection dog.  He took the dog beside the tractor-trailer where it alerted to the presence of narcotics.  It also alerted beside the Blazer, the Buick, and a van inside the warehouse.  Officers searched all four vehicles but found no drugs.  

Hoing returned from participating in the search and capture of Rivas and brought his own drug dog inside the trailer, where it gave a positive alert.  

“Because Hoing recalled Rivas inspecting the underside of the trailer at the restaurant earlier that day, the agents decided to search the underside of the trailer. There they discovered over 2,100 pounds of marijuana secreted in the trailer's undercarriage. Additionally, in the tractor's cab, the agents found $12,000 in cash, along with Figueredo–Diaz's passport and debit card.”

Whether the alerts of the prior dog should have indicated the possibility of drugs being hidden underneath the trailer was not discussed by the court.   

Federal District Court

The government charged Rivas, Figueredo-Diaz, and Morales-Loya with conspiracy to possess and distribute at least 100 kilograms of marijuana and possession with the intent to distribute the same.  21 U.S.C. 841(a)(1), 846.  All three moved to suppress, claiming it was the fruit of an unlawful detention.  A magistrate judge recommended denying the motions, concluding that agents had reasonable suspicion for the detention.  The federal district judge followed the recommendation as to Rivas, but granted the suppression motions of Figueredo-Diaz and Morales-Loya.  The judge determined that the agents lacked reasonable suspicion to detain these two defendants and brought in the drug dogs as a result of their illegal detention. Therefore, suppression was warranted.  The judge also concluded that the inevitable-discovery doctrine did not render the evidence admissible. 

The government appealed.

Sixth Circuit Analysis

The Sixth Circuit did not determine whether the detention was unlawful because it held that it did not cause the agents to discover any evidence.  The circuit court noted that evidence is not to be excluded unless the discovery of the evidence was in some sense the product of illegal government activity.  Also, “even if recovered evidence is the product of illegality, it will be suppressed only where doing so yields deterrence benefits that sufficiently outweigh the substantial social costs associated with the exclusion.”

The inevitable-discovery doctrine provides that evidence secured through unlawful means is admissible if the prosecution can show that it ultimately or inevitably would have been discovered by lawful means.”  Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).  The circuit court held, however, that the illegal detention, if such it was as to Figueredo-Diaz and Morales-Loya, was not the cause of the agents discovering any evidence, and the doctrine would only apply if the detention were the reason the agents discovered the evidence.  Rather, “the agents discovered contraband in the tractor-trailer wholly apart from their detention of Figueredo-Diaz and Morales-Loya.... A positive indication from a narcotics-detection dog supplied the agents with probable cause to search the tractor-trailer without a warrant.”  For this the circuit court cited the recent Supreme Court case of Florida v. Harris, 133 S.Ct. 1057, 185 L.Ed.2d 61 (2013), among other cases. 

“It was the agents' reasonable suspicion regarding Rivas that led them to detain the tractor-trailer long enough for a dog to sniff it; the sniff, in other words, was completely dependent upon Rivas's conduct, and had nothing to do with defendants being detained. Hoing's unchallenged testimony was that the decision to run a drug dog by the tractor-trailer was made once (and because) Rivas and the other individual fled, and that the dog sniff was going to happen regardless of whether Figueredo–Diaz and Morales–Loya were there. Therefore, defendants' detention did not cause the government's discovery of the challenged evidence.”

The circuit court quoted U.S. v. Clariot, 655 F.3d 550 (6th Cir. 2011), which had stated:  “The exclusionary rule forbids the government from using evidence cause by an illegal seizure, not evidence found around the time of a seizure.” 

An earlier Sixth Circuit decision, U.S. v. Carter, 14 F.3d 1150 (6th Cir. 1994) had very similar facts to the present case:

“There, the defendant was a passenger in a vehicle stopped for a traffic infraction. During the stop, police unlawfully arrested the driver, so his later-given consent to search the vehicle was tainted. Officers recovered several hundred pounds of marijuana during the unlawful search. We acknowledged the defendant's legal ability, his 'standing,' to challenge the basis for the traffic stop, … but he never argued it was unlawful; he instead claimed he was illegally detained once the driver had been arrested, and we assumed he was right. Upholding the ruling against suppression, we held that 'it was the arrest of the driver and the seizure of the driver's vehicle that led to the discovery of the marijuana, not any violation of the defendant's rights.' …. In other words, the defendant's detention ‘was not the proximate cause of the search of the van,’ so the marijuana could not be ‘fruit’ of that detention…. We explained: ‘Suppose that at the time of the driver's arrest the police had summoned a taxi cab for [the defendant] and told him he was free to leave. The marijuana would still have been discovered, because it was located in a van owned and controlled by [the driver] (who was not going anywhere until his vehicle had been searched) and not in a vehicle controlled by [the defendant].’ …. Likewise here: had Figueredo–Diaz and Morales–Loya been allowed to leave, the marijuana still would have been discovered and seized.”

The circuit court also noted that even if Figueredo-Diaz been allowed to leave, he would not have been allowed to leave with the trailer because the agents reasonably believed that Rivas was using the vehicle to traffick drugs. 

To carry this over to the analogy of reader and author, you and me, it is possible for my nefariousness to provide an adequate reason to conduct a search that will result in evidence that can be used against you, even if your presence at the time and place is innocent and an arrest of you was illegal.  


The two defendants may have been illegally detained—that issue was not resolved by the Sixth Circuit and the trial court may yet hold that such was the case.  These defendants may still be able to argue that there is insufficient reason to connect them to the ton of marijuana found in the vehicle.  This seems a long shot, but the fight is not over.  Although Figueredo-Diaz may be as innocent as you were in the hypothetical with which we began this blog, the law has to establish principles by which evidence is included or excluded.  The principles have to be applied uniformly based on a balancing of rights, and will inevitably allow for a spectrum of possible involvement in a criminal enterprise ranging from innocence (as you were in the hypothetical) to guilt. 

It is not clear at this stage of the proceedings where the case will go as to these two players in the events of that day in Memphis. Nevertheless, the case is correctly decided. 

U.S. v. Figueredo-Diaz, 2013 WL 2420769 (6th Cir. 2013)

This blog was written by John Ensminger and L.E. Papet. 

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