Glickman, Associate Judge:
Gregory Green challenges his convictions for armed robbery and felony murder while armed on several grounds. We need address only one of them, his claim that the trial court erred in denying his motion to suppress evidence the police obtained from his cell phone. Mr. Green argues that this evidence was the fruit of an illegal search and seizure arising from the presence of law enforcement agents in his home without a search warrant or other legal justification. Because we agree that the trial court should have granted the motion to suppress the cell phone evidence, and because the erroneous admission of that evidence at Mr. Green's trial was not harmless beyond a reasonable doubt, we reverse his convictions.
Early on the morning of March 29, 2014, Derrick Williams was shot, killed, and robbed in front of his home in Southeast Washington, D.C. Mr. Williams's friend and roommate, Mr. Tillman, heard the shooting, ran to the door, and made eye contact with a man who was standing over Mr. Williams's body and going through his pockets to rob him. Mr. Tillman recognized this man as someone he knew from the neighborhood by the nickname "Face." He told the police that "Face" was dressed in black and had on a dark hat with white lettering. Mr. Tillman also observed that "Face" was accompanied by a man wearing a red Helly Hansen jacket. He was uncertain of this second man's identity but thought it might have been somebody known as "Little Charles."
A few days later, at around 9:50 a.m. on April 2, 2014, U.S. Marshals executed an arrest warrant for appellant, who was believed to be "Face." The Marshals made the arrest at appellant's home, apparently when he opened the door to them, and at some point they entered the residence and removed the other persons who were there.
After appellant was taken into custody, Metropolitan Police Department Detective Travis Barton was called to the scene. Detective Barton was the government's only witness at the suppression hearing. He testified that one of the Marshals involved in appellant's arrest informed him when he arrived that appellant's cell phone was on a couch in the living room. The Marshal did not tell Detective Barton how or when the Marshals discovered the phone in the residence or how he knew the phone belonged to appellant.
Detective Barton entered the dwelling. He did not have a search warrant at the time. He went in, he testified, to "see if the cell phone was there" and to "gather information... for the search warrant" by "[t]alk[ing] to the officers inside [and] find[ing] out if they had any additional information related to what [the police] were doing as far as the search warrant or any visible evidence they saw when they were inside the house." The record does not disclose why the Marshals were still in the residence at this time, which was nearly an hour after appellant's arrest, in the absence of a search warrant. Detective Barton testified that the Marshals already had finished conducting their protective
Once inside, Detective Barton looked for the cell phone on the living room couch and did not find it there. The Marshals did not know what had happened to it. To find it, Detective Barton called appellant's phone number.
The following day, Detective Barton applied for and obtained a warrant to search the cell phone. His affidavit in support of the application stated that the phone had been identified as appellant's by his girlfriend. To identify the phone with particularity, the affidavit also included the phone's unique serial and International Mobile Equipment Identity numbers. Detective Barton had obtained those numbers by taking off the phone's back cover and removing its battery.
The phone's call log revealed that appellant had received several calls in the minutes following Mr. Williams's murder from a phone number listed under the name "Charlie" in the phone's contact list. The phone also contained photos of appellant from a social media account that included the word "face" in its username; photos showing appellant wearing a dark baseball cap with white lettering; other photos showing him in a red Helly Hansen jacket; and text messages between appellant and his child's mother indicating that appellant did not show up for a planned meeting with her on the night of the murder.
In moving to suppress his cell phone and the evidence obtained from it, appellant argued, inter alia, that his Fourth Amendment rights were violated by the search of his home without a search warrant after the purpose of the arrest warrant had been satisfied, and by the seizure of his phone from his girlfriend "without the authorization of any warrant [and without] the justification of any exception to the warrant requirement." In its opposition, the government argued that exigent circumstances justified the warrantless seizure of the phone because it was "in imminent danger of destruction or loss."
After Detective Barton's testimony at the suppression hearing revealed that the Marshals had concluded their protective sweep before his warrantless entry into appellant's home, appellant argued more specifically that the detective had engaged in an unlawful search and that the seizure of his cell phone was the fruit of that illegality:
Appellant added that Detective Barton's "concern about what happened with the [cell phone]" was the "result of [the] warrantless entry into the home" and that, "but for that warrantless entry," Detective Barton would not have called the phone. The judge expressed skepticism that the absence of a search warrant meant the police had no right to be on the premises. Appellant answered that "at that point, they didn't have the right to be on the premises" because appellant and all civilians had been removed and "the limited purpose of a protective sweep had been satisfied." After having done that, appellant added, the police could secure the scene, if they needed to do so, but only "from the outside" of the dwelling.
In contrast, the government argued that Detective Barton had the right to go into the house to confer with the Marshals there in order to prepare a particularized and complete application for a search warrant; and that while he was there for that lawful purpose, Detective Barton "ha[d] every right to look at things that are in plain view and the phone should have been in plain view and it wasn't." It then was reasonable for the detective to call the phone in order to locate it, and then to seize it to prevent the loss or destruction of evidence. The government premised this argument on its contention that the Marshals were allowed to remain inside appellant's home to secure it "in anticipation of a search warrant."
The judge found that "it seem[ed] as though the intention of law enforcement" at the time Detective Barton entered the residence "was to seize the scene to make sure that they could locate any evidence that may be connected to the offense." The judge ruled that law enforcement was "certainly in a position to do that under the Fourth Amendment." He further ruled that once Detective Barton discovered that appellant's cell phone was not on the couch, "the exigency seem[ed] clear." Concluding that this exigency—the risk that valuable evidence might be lost if the police could not find and recover the cell phone immediately—justified the detective's warrantless seizure of the phone, the judge denied the motion to suppress the phone and the evidence obtained from it. The prosecution presented and relied on that evidence at trial.
Appellant contends that Detective Barton entered his home after the justification for any law enforcement presence there without a search warrant was over, that the detective did so to collect evidence, and that the trial judge should have suppressed the evidence obtained from the search of his cell phone as the fruit of the warrantless intrusion. The government rejoins that the Marshals were justified in remaining in the premises to secure it pending the issuance of a search warrant, and that the detective therefore could join them for the purposes he did without infringing appellant's Fourth Amendment rights. The sole basis on which the government has sought to justify Detective Barton's entry is the putative lawfulness of the Marshals' presence inside the residence to secure the scene and guard any evidence located there.
When reviewing a trial court's denial of a motion to suppress evidence, we defer to the court's factual findings unless they are clearly erroneous, but we review the court's legal conclusions de novo.
The Fourth Amendment prohibits "unreasonable searches and seizures."
As previously mentioned, the government has relied on only one of those few exceptions to justify the Marshals' and Detective Barton's entry and continuing presence in appellant's home—the alleged need to impound the premises pending execution of a search warrant to prevent unauthorized persons from entering and removing or destroying evidence. We address the applicability of this exception, but before we do, we think it will be helpful to an understanding of the issue we confront to explain briefly why other potentially available exceptions did not justify the law enforcement intrusion in this case (and have not been relied upon by the government). Those inapplicable exceptions are three in number: (1) the authority that may be provided by an arrest warrant; (2) entry to conduct a protective sweep of the home for safety purposes; and (3) exigent circumstances arising from an imminent threat of removal or destruction of evidence in the home.
First, while the Marshals were armed with a warrant for appellant's arrest, that did not justify their prolonged occupation of appellant's home, nor Detective Barton's subsequent entry. "[A]n arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within," for the purpose of making the arrest.
Second, the actions of the Marshals or Detective Barton were not shown to be justified under the "protective sweep" exception to the requirement of a search warrant recognized in Buie. A protective sweep is not a search for evidence, nor is it a full search of the arrestee's occupancy; it is "a quick and limited search of [the] premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding."
The government has not claimed, and there is no evidence, that the Marshals
Third, "[i]t is well established that `exigent circumstances,' including the need to prevent the destruction of evidence, permit police officers to conduct an otherwise impermissible search without first obtaining a warrant."
That brings us to the fourth exception to the warrant requirement, the one on which the government relies. It contends the Fourth Amendment allowed the Marshals to impound appellant's residence, pending the issuance of a search warrant, for the purpose of preventing unauthorized entrants from disposing of evidence there, and to seize incriminating items in plain view in the premises while they were doing so.
In McArthur, police stood guard outside a suspect's home and prevented the suspect from entering it unescorted while they waited for a warrant to search it. The police themselves did not enter the home except briefly to accompany the suspect (who was not yet under arrest) for the sole purpose of ensuring that he did not take the opportunity to destroy drugs concealed there. In order to determine whether this police conduct complied with the Fourth Amendment, the Court "balance[d] the privacy-related and law enforcement-related concerns to determine [whether] the intrusion was reasonable."
The contrast between the present case and McArthur is marked. In the present case, the Marshals did not "ma[k]e reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy." After the Marshals arrested appellant and cleared his home, their only law enforcement need was to prevent unwanted entrants from removing or destroying evidence inside the residence before a search warrant could be executed. The Marshals reasonably could have accomplished that goal with minimal impact on appellant's privacy interests in his home by stationing a guard at the door and securing the premises from the outside. They had no legitimate reason or need to stay inside the residence for that purpose. And unnecessarily lingering inside appellant's dwelling was a substantial additional invasion of his privacy, much greater than a stakeout outside the premises would have been; for, at a minimum, it exposed the interior and unconcealed contents of the home to the Marshals' continuing scrutiny even if they refrained from formally searching the premises. By any measure, the balance of law enforcement-related and privacy-related concerns in this case compels the conclusion that the prolonged intrusion in appellant's home was unreasonable and hence unlawful under the Fourth Amendment.
Segura v. United States
In Segura, law enforcement agents had probable cause to believe Segura and Colon
The Supreme Court was concerned only with the admissibility of the additional, previously unseen evidence obtained pursuant to the search warrant. The government did not challenge the Second Circuit's decision affirming the suppression of the evidence discovered before the warrant was obtained as the fruit of an unlawful search, and the Supreme Court stated it had "no reason to question the courts' holding that that search was illegal."
The opinion for the Court majority concluded that the additional evidence found in executing the search warrant did not have to be suppressed as the fruit of either an unreasonable search or an unreasonable seizure. It was not the fruit of an unreasonable search, the opinion explained, because the search warrant was supported entirely by information having a source independent of the first, illegal intrusion; it was information known to the agents before they entered the apartment.
The rationale for the latter conclusion was set forth in Part IV of the Court's opinion.
Thus, on its face, Segura cannot be read as broadly holding that whenever the police need to safeguard evidence in an arrestee's home pending the issuance of a search warrant, the Fourth Amendment permits them to enter or remain in the home and secure it from the interior in lieu of guarding it from the outside; or that evidence discovered in such warrantless intrusions will not be subject to suppression. Moreover, the Court's subsequent decision in McArthur is plainly incompatible with such a reading of Segura. At most, Segura supports the proposition that evidence not discovered during or by means of the unlawful warrantless intrusion to secure the premises may not have to be suppressed if it is discovered later through execution of a valid, untainted search warrant or other lawful means. Hence, we agree with Professor LaFave that, even in the wake of Segura, "if the only risk is loss of evidence by someone thereafter entering the premises, then the police may not take the more intrusive step of making entry into the premises and guarding it from within while the search warrant is obtained."
We therefore conclude that the trial court erred as a matter of law in ruling that the Fourth Amendment permitted government agents without a search warrant to enter or remain in appellant's home for the purpose of "seiz[ing] the scene to make sure that they could locate any evidence that may be connected to the offense" after the issuance of a warrant. Because the government has provided no other sufficient legal justification for the Marshals' initial warrantless finding of the phone in appellant's home, nor for their continued presence or Detective Barton's entry in that home without a search warrant, we hold that these actions violated appellant's Fourth Amendment rights.
Our next step is to consider the consequence of that violation for this case.
"It has long been the law that evidence collected in violation of the Fourth Amendment is considered `fruit of the poisonous tree' and generally may not be used by the government to prove a defendant's guilt."
Here, so far as record shows, the cell phone and cell phone data were come at by exploitation of what we have held to be unconstitutional conduct.
However, that is not the end of the analysis. Exclusion of evidence is not necessarily mandated by the mere fact that it "would not have come to light but for the illegal actions of the police."
The first factor, temporal proximity, has no purgative effect in this case and counsels in favor of exclusion. "[V]ery little time passed between" the Marshals' and Detective Barton's unlawful presence and search in appellant's home and the detective's seizure of the phone from appellant's girlfriend; his search in the home for the phone led him directly and immediately to her.
The second factor, the existence of an intervening circumstance, likewise has no purgative effect because there was no such circumstance in this case. According to Detective Barton, appellant's girlfriend did not offer his phone to him on her own initiative or of her own free will. Rather, the detective testified that he seized the phone from her after she confirmed it was appellant's. Nor, as we have said, did the
The third factor, the purpose and flagrancy of official misconduct, also does not operate to dispel the primary taint of the Fourth Amendment violation. Although the violation may not have been flagrant— the record does not show it to have been knowing or reckless—the fact remains that seizure of appellant's cell phone was a primary aim of Detective Barton's unjustified home intrusion, and it was only that violation that enabled Detective Barton to accomplish that aim.
Based on the totality of the circumstances, we conclude that appellant's cell phone and cell phone data were obtained by exploitation of the Fourth Amendment violation, not by sufficiently distinguishable means. The trial court erred in denying appellant's motion to suppress those fruits.
The government argues that any error in admitting the cell phone evidence at trial was harmless. But we are not persuaded, as we must be, that this error was harmless beyond a reasonable doubt.
We therefore must reverse appellant's convictions and remand for a new trial.
Easterly, Associate Judge, concurring:
I agree entirely with Judge Glickman's suppression analysis, but I would treat as conceded, in absence of any argument to the contrary by the government (or my dissenting colleague), the application of the exclusionary rule. See Robinson v. United States, 76 A.3d 329, 342 n.27 (D.C. 2013) (stating that, "just as the government bears the burden to demonstrate that it did not violate a defendant's Fourth ... Amendment rights, it is the government's burden to prove attenuation" such that the exclusionary rule should not apply).
Fisher, Associate Judge, dissenting:
This is a challenging case made more difficult by an inadequate factual record and insufficient briefing. Before we issue such a consequential ruling, we should remand for a renewed evidentiary hearing and then require supplemental briefing.
As I will explain later, the focus of this litigation shifted once it got in the hands of appellate judges. It is regrettable, but not surprising, that the record does not answer many questions on which the court now has focused. No one questioned that the warrant for appellant's arrest authorized the marshals to enter his home and take him into custody. Payton v. New York, 445 U.S. 573, 602-03, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). None of the marshals testified, and we do not know how or where they found appellant's cell phone. There is no basis in the record for asserting, as the court does, that the marshals' discovery of the phone was unconstitutional. Nor is there a factual basis for thinking that Detective Barton conducted an illegal search inside the home.
The focus of the suppression hearing was outside the home — on the seizure of the cell phone from appellant's girlfriend. Appellant was also requesting a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), claiming that the government had misrepresented material facts when it applied for a separate warrant to search the phone. Although appellant's counsel asserted orally that the marshals should have waited outside for the search warrant to arrive, and that Detective Barton entered the home illegally, those issues had not been briefed.
This court's opinion purports to distinguish Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), factually, but it does not squarely deal with the Supreme Court's holding:
Id. at 798, 104 S.Ct. 3380 (emphasis added). The present case turns on whether that holding is still good law.
It is simply wrong to say that "Illinois v. McArthur teaches otherwise." Ante at ___. In fact, McArthur carefully avoided the question which had divided the Court in Segura — whether the police could lawfully secure the home from within while awaiting a search warrant. Rather than overruling Segura, the Court took the easy path home, noting that "both majority and minority [in Segura] assumed, at least for argument's sake, that the police ... might lawfully have sealed the apartment from the outside, restricting entry into the apartment while waiting for the warrant." McArthur, 531 U.S. at 333, 121 S.Ct. 946. There is obvious tension between the holdings of Segura and McArthur, but the Supreme Court has not resolved it.
Nor have we benefitted from adversarial briefing on this important question. The government quoted Segura in its brief, but appellant did not even mention the case. Appellant does cite McArthur in both of his briefs, but for a different proposition. Before holding that the marshals could not lawfully remain inside the house while awaiting the search warrant, we should ask both parties to brief the issue.
If the marshals were lawfully securing the house from within, Detective Barton did not violate the Fourth Amendment by entering the home to join them. And he could take note of what was (or in this case was not) in plain view. Clark v. United States, 593 A.2d 186, 196-99 (D.C. 1991) (where initial entry was lawful, and responding officers remained in the premises for a reasonable time and were still there, crime scene search officer could enter and seize items in plain view); see also Porter v. United States, 37 A.3d 251 (D.C. 2012) (applying Clark and remanding for an evidentiary hearing to clarify facts); Settles v. United States, 615 A.2d 1105, 1112-13 (D.C. 1992) (applying the reasoning of Clark).
But before we ask for supplemental briefing, we need to know more facts. Because the ground has shifted since the suppression hearing was held, we should remand for further proceedings. See D.C. Code § 17-306 ("The District of Columbia Court of Appeals ... may remand the cause and ... require such further proceedings to be had, as is just in the circumstances.").
I respectfully dissent.