United States District Court, D. Minnesota
MEMORANDUM AND ORDER
A. Magnuson United States District Court Judge
matter is before the Court on the Report and Recommendation
(“R&R”) of United States Magistrate Judge Leo
I. Brisbois dated October 16, 2017. (R&R (Docket No.
44).) In the R&R, Magistrate Judge Brisbois recommends
granting Defendant Joshua Francis Hill's motion to
dismiss multiplicitous counts and denying his motion to
suppress evidence. Hill filed an Objection on October 30,
2017. (Docket No. 47.) The Government did not respond to
Court must review de novo any portion of an R&R to which
specific objections are made. 28 U.S.C. § 636(b)(1); D.
Minn. L.R. 72.2(b). The R&R concluded that Hill had
standing to argue that the seizure and subsequent search of a
van was unlawful because he had a legitimate expectation of
privacy in the van. (R&R at 12.) It also concluded that
the Government seized the van in violation of the Fourth
Amendment. The R&R concluded, however, that the
subsequent search was lawful because the voluntary consent of
Hill's mother, Ms. Saragosa, to search the van was
sufficiently attenuated from the unlawful seizure.
(Id. at 15, 20.) After conducting the required
review and for the following reasons, the Court adopts the
only objects to the R&R's application of the
attenuation doctrine, arguing that Ms. Saragosa's consent
was not valid and did not purge the taint of the unlawful
seizure. Under the attenuation doctrine, evidence obtained
from an unlawful seizure is admissible if the connection
between the unlawful seizure and the discovery of evidence
“has been interrupted by some intervening
circumstance.” Utah v. Strieff, 136 S.Ct.
2056, 2061 (2016). Consent is an intervening circumstance if
it is voluntary and “purged the taint of the Fourth
Amendment violation, ” which courts determine by
considering: “(1) the temporal proximity between the
Fourth Amendment violation and the grant of consent to
search; (2) the presence of any intervening circumstances;
and (3) the purpose and flagrancy of the agents' Fourth
Amendment violation.” United States v. LeBeau,
867 F.3d 960, 972 (8th Cir. 2017) (quoting United States
v. Whisenton, 765 F.3d 938, 941 (8th Cir. 2014)).
argues that Ms. Saragosa's consent was invalid because
the Government's continued unlawful seizure made it clear
to her that she “had no say as to the disposition of
her property.” (Def.'s Obj. (Docket No. 47) at
4-5.) But the R&R notes that Hill never argued that Ms.
Saragosa's consent was involuntary or invalid. (R&R
at 17 n.5) (“Defendant does not argue that Ms.
Saragosa's consent to the search was involuntary or
otherwise invalid.”). And even if the argument was
proper, the consent form that Ms. Saragosa signed stated that
she had been advised of her right to refuse consent.
(Id. at 20.) The Court concludes that Ms.
Saragosa's consent to search the van was voluntary and
next contends that Ms. Saragosa's consent did not purge
the taint of the unlawful seizure even if it was valid. He
first argues that her consent was not sufficiently
independent because law enforcement exploited the unlawful
seizure by continuing to hold the van. See Wong Sung v.
United States, 371 U.S. 471, 487-88 (1963) (concluding
that evidence “come at by the exploitation of [an]
illegality” must be excluded). In other words, he seems
to argue that Ms. Saragosa's consent “was
influenced by, or the product of, police misconduct”
because they continued to hold the van. Whisenton,
765 F.3d at 941 (quoting United States v. Barnum,
564 F.3d 964, 972 (8th Cir. 2009)). But again, Ms.
Saragosa's consent was voluntary.
Hill contends that no intervening circumstances existed. An
intervening circumstance helps demonstrate attenuation from
an illegality if the circumstance provides “an
opportunity ‘to pause and reflect, to decline consent,
or to revoke consent.'” Whisenton, 765
F.3d at 942 (quoting United States v. Greer, 607
F.3d 559, 564 (8th Cir. 2010)). Here, Ms. Saragosa was
specifically advised of her right to refuse consent. Thus,
her voluntary consent is an intervening circumstance because
she was provided an opportunity to decline consent.
R&R also reasons that Ms. Saragosa's knowledge that
Hill was arrested on the charge of first-degree murder is an
intervening circumstance because she did not object to the
search, even though the purpose was clearly connected to her
son's murder investigation. Hill argues that Ms.
Saragosa's knowledge of his arrest would only convince
her that “the agents would search the van regardless of
her consent.” (Def.'s Obj. at 6 (citing United
States v. Yousif, 308 F.3d 820 (8th Cir. 2002)).) In
Yousif, the government argued that a police
officer's statement that “a search could be
conducted if the police had consent or probable cause”
bolstered the voluntariness of defendant's consent. 308
F.3d at 831. The Eighth Circuit Court of Appeals disagreed,
concluding that the defendant could reasonably infer that
police would search his vehicle regardless of his consent.
Id. The Court cannot make that same inference here
because there is no evidence that law enforcement would have
searched the van regardless of Ms. Saragosa's consent.
Hill maintains that law enforcement acted purposefully and
flagrantly to unlawfully seize the van. In determining
whether conduct is purposeful and flagrant, the Court
considers “whether the violation was
‘investigatory in design and purpose, ' and whether
the officers used force, threats, or intimidation.”
LeBeau, 867 F.3d at 973 (quoting Whisenton,
765 F.3d at 942); see also United States v. Simpson,
439 F.3d 490, 496 (8th Cir. 2006) (stating that courts may
also consider whether the impropriety of the misconduct was
obvious or whether the official knew that the conduct was
likely unconstitutional and nevertheless engaged in it).
Although the unlawful seizure of the van was presumably for
an investigatory purpose, law enforcement did not search the
van without consent and did not use force, threats, or
intimidation to seize the van or obtain Ms. Saragosa's
consent. There is also no evidence that the agents'
conduct was obvious or that they knew it was unconstitutional
and nevertheless engaged in it.
the Court agrees with the R&R that Ms. Saragosa's
voluntary consent was sufficiently attenuated from the
unlawful seizure of the van, evidence obtained from the van
is admissible and Hill's suppression motion must be
denied. The parties do not object to the R&R's
determination that Count II of the Indictment should be
dismissed because it is the same offense as Count I for
purposes of the multiplicity analysis. (R&R at 7-8.)
Accordingly, IT IS HEREBY ORDERED that:
R&R (Docket No. 44) is ADOPTED;
Defendant's Motion to Dismiss Multiplicitous Counts
(Docket No. 28) is GRANTED;
Count II of the Indictment (Docket No. 12) is
Defendant's Motion to Suppress Evidence (Docket ...