Filed: Apr. 24, 2020
Latest Update: Apr. 24, 2020
Summary: NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 24 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-10110 Plaintiff - Appellee, D.C. No. 3-18-cr-00198-EMC-1 v. MEMORANDUM* CHARIECE DENOYAS CHEW, Defendant - Appellant, Appeal from the United States District Court For the Northern District of California Edward M. Chen, District Judge, Presiding Submitted April 17, 2020** San Francisco, California Before: BERZON and IKUTA, Circuit
Summary: NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 24 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-10110 Plaintiff - Appellee, D.C. No. 3-18-cr-00198-EMC-1 v. MEMORANDUM* CHARIECE DENOYAS CHEW, Defendant - Appellant, Appeal from the United States District Court For the Northern District of California Edward M. Chen, District Judge, Presiding Submitted April 17, 2020** San Francisco, California Before: BERZON and IKUTA, Circuit J..
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 24 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10110
Plaintiff - Appellee,
D.C. No. 3-18-cr-00198-EMC-1
v.
MEMORANDUM*
CHARIECE DENOYAS CHEW,
Defendant - Appellant,
Appeal from the United States District Court
For the Northern District of California
Edward M. Chen, District Judge, Presiding
Submitted April 17, 2020**
San Francisco, California
Before: BERZON and IKUTA, Circuit Judges, and LEMELLE,*** Senior District
Judge.
Appellant Chariece Chew appeals the district court’s denial of his motion to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
This appeal is ordered submitted on the briefs as of April 17, 2020,
pursuant to Fed. R. App. P. 34(a)(2).
***
The Honorable Ivan L.R. Lemelle, Senior United States District Judge
for the Eastern District of Louisiana, sitting by designation.
suppress methamphetamine police discovered in his backpack. Appellant contends
(1) East Palo Alto Police Department (EPAPD) officers did not have reasonable
suspicion to effect an investigatory stop and did not have probable cause to seize
his person; and (2) the attenuation doctrine did not remedy subsequent seizure of
evidence from his backpack.
The typical remedy for Fourth Amendment violations by law enforcement
officers is suppression or exclusion of evidence at trial. Utah v. Strieff, ---U.S.----,
136 S. Ct. 2056, 2061 (2016). One exception to the exclusionary rule is the
attenuation doctrine. That exception makes evidence admissible “when the
connection between unconstitutional police conduct and the evidence is remote or
has been interrupted by some intervening circumstance, so that ‘the interest
protected by the constitutional guarantee that has been violated would not be
served by the suppression of the evidence obtained.’”
Id. (quoting Hudson v.
Michigan,
547 U.S. 586, 593 (2006)). When determining whether the attenuation
doctrine is applicable courts look to three factors: (1) “the ‘temporal proximity’
between the unconstitutional conduct and the discovery of evidence to determine
how closely the discovery of evidence followed the unconstitutional [stop and
detention].”1; (2) “the presence of intervening circumstances”; and (3) “the purpose
1
The Government does not dispute the district court’s determination that the
temporal proximity factor weighs in favor of suppression.
2
and flagrancy of the official misconduct,” which is of particular significance.
Id. at
2061–62 (internal citations omitted).
In Strieff, the Supreme Court held that the discovery of an arrest warrant
broke the causal chain between an unlawful investigatory detention, and the arrest
of a suspect. The court found “the warrant was valid, it predated the officer’s
investigation, and it was entirely unconnected with the stop. And once the officer
discovered the warrant, he had an obligation to arrest the defendant.”
Id. at 2062.
Here, after stopping and handcuffing Chew for a suspected nuisance
violation, arresting officers learned that Chew had an outstanding arrest warrant for
a probation violation. Thereafter, an inventory search of the backpack at the police
station led to discovery of the drug at issue. The arrest warrant was not shown to
have been deficient or improperly issued. It was already in existence prior to the
initial stop and detention and necessarily led to the search of the backpack. The
district court’s inquiry and application of Strieff correctly held that discovery of the
arrest warrant was an intervening circumstance that gave the officers an entirely
separate reason for searching the backpack, independent of anything that had
happened before. Accordingly, the discovery of the arrest warrant under Strieff
provides the requisite intervening circumstance to “attenuate” the search of his
backpack from the initial potentially unlawful stop and detention.
3
Appellant next contends that the flagrant misconduct factor of the
attenuation doctrine weighs in favor of suppression. Here, although the officer’s
decision to stop appellant was potentially unlawful and mistaken, the district court
found it was made on the officer’s “good faith” belief in the appropriateness of his
actions. See United States. v. Ceccolini,
435 U.S. 268, 279–80 (1978) (giving
weight to a showing that officers did not conduct an illegal search with the intent
of locating the evidence at issue). Further, the officer’s actions were in response to
complaints from the community and subsequent personal observations by
investigating officers. We find neither reversible error in the district court’s
application of binding Supreme Court precedent nor in its clear factual findings
that arresting officers did not engage in flagrant or purposeful misconduct.2
AFFIRMED.
2
It remains significant that poisonous fruit that must be cast aside includes not
only evidence directly found by an illegal search but also evidence that result from
an intended exploitation of that illegality. (See Wong Sun v. United States,
371
U.S. 471, 488 (1963) (holding that evidence was inadmissible because it was
obtained by exploiting “illegal actions of the police).
4