Opinion
Criminal No. 4:22cr53
2022-11-01
UNITED STATES of America v. Michael S. JACKSON, Defendant.
Amy E. Cross, Julie Podlesni, U.S. Attorneys, Office of the United States Attorney, Newport News, VA, for United States of America. Andrew William Grindrod, Public Defender, Office of the Federal Public Defender, Norfolk, VA, for Defendant.
Amy E. Cross, Julie Podlesni, U.S. Attorneys, Office of the United States Attorney, Newport News, VA, for United States of America. Andrew William Grindrod, Public Defender, Office of the Federal Public Defender, Norfolk, VA, for Defendant. ORDER Arenda L. Wright Allen, United States District Judge
Pending before the Court is a Motion to Suppress (the "Motion") brought by Defendant Michael S. Jackson. ECF No. 21. The parties appeared before the Court on October 26, 2022 for a hearing on the instant Motion. For the following reasons, the Motion (ECF No. 21) is GRANTED.
I. BACKGROUND
The facts below are obtained from a combination of the audio and video recordings from police body camera footage, briefing and exhibits submitted by the parties, and evidence and argument presented during the suppression hearing. Defendant Michael S. Jackson and the Government submitted police body camera footage as exhibits to the Motion to Suppress (ECF No. 21), Response in Opposition (ECF No. 22), and the suppression hearing (ECF No. 43).
A. Victim's 911 call
On or about April 26, 2022, Defendant was on indefinite supervision in connection with his 2015 conviction for shooting into the vehicle of the mother of four of his children ("Victim"). Resp. in Opp'n at 3, ECF No. 22. Defendant's supervision had been revoked once before, and he was determined to have absconded from supervision two weeks earlier on or about April 12, 2022. Id. (citing Bond Report at 6, ECF No. 11). Two capias warrants for his arrest had been issued after he failed to appear for hearings in two different jurisdictions: (1) a March 11, 2022 preliminary hearing in the Virginia Beach General District Court on a felony drug possession (methamphetamine) charge; and (2) a February 1, 2022 hearing in Hampton Juvenile and Domestic Relations Court on domestic violence charges (Assault & Battery of a Family Member, Strangulation Resulting in Bodily Injury, and Grand Larceny). Id. The latter hearing was related to Defendant strangling Victim and refusing to return her phone after seeing a photo of her sitting with another man on it. Id. An Emergency Protective Order was also served upon Defendant in connection with this case. Id. (citing Bond Report at 7-8, ECF No. 11).
On April 26, 2022 at approximately 12:25 pm, Victim called 911 to alert law enforcement that Defendant was currently driving a red 2013 Nissan Rogue, had outstanding warrants, and had weapons and drugs in the vehicle. Mot. to Suppress at 2, ECF No. 21. Victim begged to remain anonymous, cried, apologized, and relayed her observations in real time to get Defendant help. Resp. in Opp'n at 3, ECF No. 22. During the phone call, Victim stated she did not want the call related back to her. Resp. in Opp'n at 3-4, ECF No. 22 (citing Gov't Ex. 1B, Victim Call, at 0:22, 1:08). After requesting to stay anonymous, Victim freely gave her name and history with Defendant because she conceded that Defendant would likely eventually find out that she called 911. Id. at 4. She stated that she had a protective order against Defendant that expired on approximately December 4, 2021, because he strangled her after finding out that she was pregnant again. Gov't Ex. 1B, Victim Call, at 8:48-8:59.
Victim described the vehicle Defendant was driving as a 2013 red Nissan Rogue and gave the exact license plate number (ending in -8056). Id. at 1:21-1:48. She stated that the vehicle was registered in her name only, "so I can do this." Id. at 4:05-4:10. With respect to items in the vehicle, Victim stated that Defendant had three guns, heroin, and fentanyl in the car. Id. at 0:18-0:23. Victim described Defendant as wearing a camouflage bucket hat, matching camouflage pants, and a gray Champion shirt with red behind the Champion letters. Id. at 5:54-6:08. Victim described Defendant as a "very light skin" Black man who "could pass for white if he wanted to and you didn't see his hair texture." Id. at 2:20-2:36. She described Defendant as having short hair. Id. at 6:40. Victim also described Defendant as having a tattoo on the side of his neck that says "forever" and two tattoos in bright red of the letter "R" behind each ear. Id. at 6:16-6:40. Victim also gave detailed information about Defendant's personal identifiers (Id. at 0:40), the warrants and probation (Id. at 0:48, 1:16), the danger he might pose (Id. at 2:00, 10:53), how he recently snorted meth (Id. at 5:18), how he sells meth (Id.), the direction in which he headed and his known hangouts (Id. at 2:43, 7:40), and his past suicide threats (Id. at 11:16).
B. 911 dispatch to police
Another dispatcher relayed the information Victim provided to responding officers. Resp. in Opp'n at 4, ECF No. 22; see generally Gov't Ex. 1C, 911 Dispatch Audio. Because dispatch relayed information in real time, officers quickly responded to the information to locate Defendant. Gov't Ex. 1C, 911 Dispatch Audio. The dispatcher described Defendant's personal information (name, date of birth, phone number, and social security number), his physical appearance (race, skin tone, and tattoo description) and attire (gray Champion shirt, camouflage pants, and camouflage bucket hat), and the fact that he has six warrants. Id. at 10. Officers confirmed Defendant's two capias warrants prior to arresting Defendant. Id. The dispatcher then provided information on the vehicle (2013 red Nissan Rogue, license plate number, and registered to Victim) and stated that Defendant had drugs, specifically heroin, and guns not registered to him in the car. Id. The dispatcher further informed officers of the direction that Defendant was moving toward. Id.
Also submitted as Government Exhibit 4 during the October 26, 2022 suppression hearing.
C. Defendant's arrest
At approximately 12:28 pm, the first officer was dispatched pursuant to Victim's call. Mot. to Suppress at 2, ECF No. 21. Hampton Police Division officers located the vehicle in the parking lot of an AutoZone store in Hampton, Virginia. Id. The officers set up in the area. Resp. in Opp'n at 4, ECF No. 22. Officer Jansson emphasized that they should intercept Defendant in his vehicle outside the business to avoid the possibility that Defendant would retreat with a weapon back into a business filled with other customers. Id. (citing Gov't Ex. 1A, 911 Dispatch Record at 9, ECF No. 23; Gov't Ex. 1C, 911 Dispatch Audio). Multiple officers waited in the AutoZone parking lot for Defendant to leave the store. Mot. to Suppress at 2, ECF No. 21.
A little after 1:00 pm, Defendant Jackson exited the store, opened the car door, and sat in the driver's seat. Id. Officers Hipple, Lopez, Vanden Berg, and Jansson intercepted Defendant after he entered his vehicle but before he closed the door. Resp. in Opp'n at 4, ECF No. 22; Def. Ex. 2, Jansson BWC at 13:08:00-13:08:30, ECF No. 21-2. The officers asked Defendant to show his hands, drop his keys, and step out of the vehicle. Mot. to Suppress at 3, ECF No. 21. Defendant complied with officers' commands. Id. As Officers Hipple and Vanden Berg handcuffed Defendant, Officer Jansson stated to Defendant, "Hey man, you got a warrant. You got some paperwork on file. OK?" Id. (citing Def. Ex. 2, Jansson BWC at 13:08:03). Defendant replied, "Alright," and remained compliant. Id. (citing Def. Ex. 2, Jansson BWC at 13:08:05).
After Defendant exited the driver's seat, the grip and magazine of one firearm—a Ruger semi-automatic pistol with an extended magazine loaded with 18 rounds of ammunition—became visible. Resp. in Opp'n at 4-5, ECF No. 22 (citing Def. Ex. 3, Vanden Berg BWC at 13:08:09, 13:08:46, ECF No. 21-3; Gov't Ex. 3, Ruger and Magazine Photo, ECF No. 22-1). Defendant's frame had previously concealed the weapon when he was sitting in the vehicle. Id. at 5. Further, the firearm had stickers that Defendant had affixed to it. Id.
Also submitted as Government Exhibit 1 during the October 26, 2022 suppression hearing.
Also submitted as Government Exhibits 7 and 8 during the October 26, 2022 suppression hearing.
D. Search of Defendant's person
At approximately 1:08 pm, Officer Hipple walked Defendant Jackson to the patrol car of the primary case officer, Officer Aning, to begin processing his arrest on the capias warrants. Id. at 5-6 (citing Gov't Ex. 2, Aning BWC at 13:08:35). The patrol car was approximately two parking spots away from the passenger area of Defendant's car (an estimated 20-25 feet away). Mot. to Suppress at 3 (citing Def. Ex. 1, Cruz BWC at 13:08:32, ECF No. 21-1). While Defendant was handcuffed behind his back in Officer Hipple's physical custody, Officer Aning searched Defendant's person incident to arrest. Gov't Ex. 2, Aning BWC at 13:08:43-13:10:15. Officer Cruz also arrived on the scene after Defendant was already handcuffed and assisted with the search. Def. Ex. 1, Cruz BWC at 13:08:20-13:10:20. This search occurred in parallel to the vehicle search and at a distance. Id.; Resp. in Opp'n at 6, ECF No. 22. The two searches of Defendant and Defendant's vehicle occurred in a different manner, with different bases and goals. Resp. in Opp'n at 6, ECF No. 22. During the search of Defendant's person, Officer Aning recovered a late-model iPhone and slightly under half an ounce of suspected marijuana from Defendant's right pocket and a heavy gold chain around his neck. Id. (citing Gov't Ex. 2, Aning BWC at 13:09:13 (iPhone), 13:09:18 (marijuana), 13:09:47 (gold chain)).
Also submitted as Government Exhibit 2 during the October 26, 2022 suppression hearing.
At approximately 1:17 pm, Officer Jansson confirmed that Defendant is a convicted felon. Def. Ex. 2, Jansson BWC at 13:17:20-13:17:35. Officer Jansson relayed to Officer Aning that Defendant had 2 capias warrants and should be charged (based on the separate search of the vehicle) with gun by felon, concealed weapon, and possession of firearm while in possession of a Schedule I drug (cocaine, heroin, methamphetamine, and marijuana). Id. at 13:32:43-13:34:18.
E. Search of Defendant's vehicle
At approximately 1:08 pm, Officer Jansson issued an order to Officers Vanden Berg and Lopez, stating, "We saw him in the vehicle, search incident to arrest." Def. Ex. 3, Vanden Berg BWC at 13:08:37. In parallel to the search of Defendant's person, Officers Vanden Berg and Lopez began searching Defendant's vehicle. Mot. to Suppress at 3-4, ECF No. 21 (citing Def. Ex. 1, Cruz BWC at 13:08:38). Officer Vanden Berg first canvassed the vehicle to determine whether there were any other occupants. Resp. in Opp'n at 5, ECF No. 22 (citing Def. Ex. 3, Vanden Berg BWC at 13:08:49). Officers Vanden Berg and Lopez searched the vehicle while contemporaneously relaying what they were seeing. Id. First, Officer Vanden Berg identified drugs and paraphernalia in the center console and relayed the finding to Officer Jansson. Id. (citing Def. Ex. 3, Vanden Berg BWC at 13:10:04-13:10:54). As Officer Vanden Berg discovered the drugs, Officer Lopez responded that she had a firearms case, a scale, and an additional smoking device. Id. (citing Def. Ex. 3, Vanden Berg BWC at 13:10:04-13:10:54). Officer Vanden Berg then announced a knife and one of the firearms that Victim described. Id. (citing Def. Ex. 3, Vanden Berg BWC at 13:10:04-13:10:54).
From an open backpack on the front passenger floorboard, Officer Lopez also recovered several bags of narcotics, including one bag with almost 50 grams of methamphetamine at 97% purity, a bag with slightly over 7 grams of cocaine base, and a bag with 1.48 grams of powder cocaine. Id. at 5 (citing Gov. Ex. 4, Additional Photographs of Evidence, ECF No. 22-2). Additionally, the backpack contained two rounds of ammunition, a purple 3D printed "ghost gun," marijuana, and a glass smoking device. Id. Officers Vanden Berg and Lopez continued searching the vehicle and located other items of evidentiary value, including several digital scales, numerous smoking devices and other paraphernalia, and a drum magazine with a capacity of 50 rounds and actually containing 45 9mm rounds. Id. The vehicle search ended at approximately 1:55 pm. Def. Ex. 3, Vanden Berg BWC at 13:55:08. Officer Vanden Berg reported finding two guns (a Smith and Wesson with an unserialized grip and a Ruger SR-9 with an extended magazine), drugs, and ammunition. Id. at 1:58:00-1:59:00.
F. Police transportation and interrogation of Defendant
At approximately 1:10 pm (less than 2 minutes after Officer Aning began to search Defendant's person), Officer Aning placed Defendant in his squad car for eventual transport downtown on the warrant charges. Resp. in Opp'n at 6, ECF No. 22. Defendant spontaneously began making statements, and Officer Aning interrupted him in an apparent effort to prevent him from making any pre-Miranda statements. Id. However, Defendant persisted and stated, "I was just asking a question." Id. After Officer Aning indicated he could continue, Defendant stated, "I know y'all don't have no choice about what y'all charging, but that is not my vehicle, that is my baby mama's vehicle." Id. (citing Gov't Ex. 2, Aning BWC at 13:10:26). Officer Aning responded that they would "get that sorted out" and that he would "check that out." Id. (citing Gov't Ex. 2, Aning BWC at 13:10:37).
Officer's Aning generally avoided speaking to Defendant as evidenced by the markedly quiet BWC footage. Gov't Ex. 2, Aning BWC at 13:10:36. Defendant initiated interaction several times without being questioned or prompted. Resp. in Opp'n at 6-7, ECF No. 22. Aside from requests related to his comfort, Defendant asked, "whenever we leave, is there a way I could talk to the detective?" Gov't Ex. 2, Aning BWC at 13:32:05. Officer Aning stated that they probably would but that he did not know. Id. at 13:32:08-13:32:19. Officer Aning did not relay Defendant's request but did ask Officer Jansson whether Defendant would be transported to Investigations for an interview. Id. at 13:34:14. Officer Jansson responded, "I doubt it, but maybe, I don't know." Id. at 13:34:16.
Officer Jansson asked the same question to ATF Task Force Officer (TFO) Robertson, a detective called upon after the discovery of the ghost gun and who arrived with another ATF agent. Def. Ex. 2, Jansson BWC at 13:34:29. TFO Robertson also stated that he did not know but later introduced himself to Defendant. Id. at 13:34:31; Gov't Ex. 2 at 13:36:56. TFO Robertson spoke with Defendant for less than a minute and stated he would not try to talk to him on the scene but offered to speak with him downtown if he wanted. Gov't Ex. 2, Aning BWC at 13:36:56. When Defendant said he did, TFO Robertson relayed his response to Officer Jansson. Def. Ex. 2, Jansson BWC at 13:37:36-13:37:50. Officer Jansson conveyed this information to Officer Aning, and Officer Aning transported Defendant downtown to headquarters. Id. at 13:39:16-13:39:32. While en route to headquarters, Defendant asked Officer Aning about his belongings to which Officer Aning responds that officers will place everything they find on his property, Gov't Ex. 2, Aning BWC at 13:40:20-13:40:48.
G. Defendant's in-custody interview
After Defendant was transported to be interviewed at his request, Defendant was advised of his Miranda rights and waived them before giving a statement. Resp. in Opp'n at 7, ECF No. 22. Defendant discussed the history and context of his firearms and narcotics crimes in significant detail. Id. (citing Gov't Ex. 5, Custodial Interview, ECF No. 25). In particular, Defendant discussed the source of his guns and drugs, his role dealing drugs, and his gang affiliation. Gov't Ex. 5, Custodial Interview at 3-4, ECF No. 25. The interview occurred at approximately 1:45 pm. Id. at 2.
H. Procedural history and parties' arguments
On July 18, 2022, an Indictment was filed against Defendant Jackson charging him with violations of (1) 21 U.S.C. § 841(a)(1), (b)(1)(B) Possession with Intent to Distribute Five Grams or More of Methamphetamine, a Schedule II Controlled Substance, (2) 21 U.S.C. § 841(a)(1), (b)(1)(C) Possession with Intent to Distribute Cocaine, a Schedule II Controlled Substance, (3) 18 U.S.C. § 924(c)(1)(A) Possession of a Firearm in Furtherance of a Drug Trafficking Crime, and (4) 18 U.S.C. § 922(g)(1) Possession of a Firearm by a Convicted Felon. Indictment at 1, ECF No. 15. Defendant filed the instant Motion to Suppress on August 11, 2022 to exclude (1) evidence found during a search of Defendant's vehicle that allegedly violated the Fourth Amendment, and (2) Defendant's incriminating statements made after officers confronted Defendant with evidence found in Defendant's vehicle. ECF No. 21. Defendant argues that he enjoyed a cognizable Fourth Amendment interest in the searched car and that the officers violated his Fourth Amendment rights when they conducted a warrantless search of the car. Mot. to Suppress at 5-9, ECF No. 21.
On August 26, 2022, the Government filed a Response in Opposition to the Motion to Suppress. ECF No. 22. The Government argued that Defendant did not have a cognizable Fourth Amendment interest in the vehicle and that both probable cause and the plain view doctrine justified the warrantless search. Resp. in Opp'n at 8-15, ECF No. 22. On September 6, 2022, Defendant filed his Reply. ECF No. 34. The Motion is ripe for adjudication.
On October 19, 2022, Defendant filed stipulations that the parties agreed to ahead of the suppression hearing. ECF No. 39-1. The parties stipulated that Defendant was in lawful possession and control of the Nissan searched by police and had a Fourth Amendment interest in the car that was searched. Id. at 4. Both parties acknowledged that Victim would have testified to the fact that (1) Defendant Jackson could not register a vehicle under his name due to his suspended Virginia license, (2) Defendant had the only set of keys to the Nissan in his possession, (3) Defendant would not request Victim's permission to drive the Nissan, and (4) Victim did not require Defendant to request permission before driving the Nissan. Id. at 3. The parties also stipulated that none of the firearms, controlled substances, or related materials in the Nissan belonged to Victim. Id. at 4.
II. LEGAL STANDARD
A. Exclusionary rule
The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. To deter future Fourth Amendment violations, courts apply the exclusionary rule to prevent the government from using evidence gained from an unreasonable search or seizure in violation of the Fourth Amendment. Elkins v. United States, 364 U.S. 206, 223-24, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); United States v. Davis, 690 F.3d 226, 241-242 (4th Cir. 2012). The burden of proof is on the party seeking to suppress evidence. United States v. Dickerson, 655 F.2d 559, 561 (4th Cir. 1981). If the defendant establishes a basis for his motion to suppress, the burden is shifted to the Government to prove the admissibility of the evidence by a preponderance of the evidence. United States v. Seerden, 264 F. Supp. 3d 703, 708 (E.D. Va. 2017) (citing Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); United States v. Matlock, 415 U.S. 164, 178, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974)).
B. Cognizable Fourth Amendment interest
A defendant bears the burden of establishing that he had a "cognizable Fourth Amendment interest in the place to be searched before seeking relief for an unconstitutional search." Byrd v. United States, — U.S. —, 138 S. Ct. 1518, 1530, 200 L.Ed.2d 805 (2018). A defendant has a cognizable interest in the place to be searched if the defendant had a reasonable expectation of privacy in the place to be searched and the thing to be seized. Id. at 1526-27.
i. Reasonable expectation of privacy
In the context of a vehicle search, the driver of a vehicle has a reasonable expectation of privacy within the vehicle if he owns or lawfully possesses or controls the vehicle. Id. at 1527 (citing Rakas v. Illinois, 439 U.S. 128, 144 n.12, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); 2 W. Blackstone, Commentaries on the Laws of England, ch. 1). A driver is in lawful possession of a vehicle if the owner of the vehicle granted him permission to use the vehicle. United States v. Daniels, 41 F.4th 412, 415 (4th Cir. 2022). The Fourth Circuit has found that:
[f]actors that courts consider in determining if a person has a reasonable expectation of privacy in property held by another include whether that person claims an ownership or possessory interest in the property, and whether he has established a right or taken precautions to exclude others from the property.United States v. Rusher, 966 F.2d 868, 875 (4th Cir. 1992); see also United States v. Sanchez, 943 F.2d 110, 114 (1st Cir. 1991) (factors considered in standing determination include "ownership, possession, and/or control; historical use of the property searched or the thing seized; ability to regulate access; the totality of the surrounding circumstances; the existence or nonexistence of a subjective anticipation of privacy; and the objective reasonableness of such an expectancy"). The Government violates the Fourth Amendment if it encroaches on a defendant's reasonable expectation of privacy. Byrd, 138 S. Ct. at 1526.
ii. Abandonment
The Government does not violate the Fourth Amendment when it searches or seizes abandoned property. See Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). "The law is well established that a person who voluntarily abandons property loses any reasonable expectation of privacy in the property and is consequently precluded from seeking to suppress evidence seized from the property." United States v. Ferebee, 957 F.3d 406, 412 (4th Cir. 2020) (internal citation and quotations marks omitted). An item is not abandoned if the defendant "retains a reasonable expectation of privacy in the articles alleged to be abandoned." United States v. Small, 944 F.3d 490, 502 (4th Cir. 2019) (citing United States v. Haynie, 637 F.2d 227, 237 (4th Cir. 1980) (internal quotation marks omitted)). Courts perform "an objective analysis" and may infer intent to abandon "from words spoken, acts done, and other objective facts." Id. (citing United States v. Davis, 657 F. Supp. 2d 630, 647-48 (D. Md. 2009)). An individual abandons any reasonable expectation of privacy when he disclaims possession of that property. United States v. Davis, 782 F. App'x 246, 253 (4th Cir. 2019) (finding that defendant abandoned truck in driveway when he stated, "It's not my white box truck. I don't know anything about it."); United States v. Williams, 538 F.2d 549, 550-51 (4th Cir. 1976) (finding that defendant abandoned briefcase and typewriter case when he stated they "did not belong to him and that he had no idea to whom [they] belonged"); United States v. Han, 74 F.3d 537, 544-45 (4th Cir. 1996) (finding that defendant abandoned bag when he stated it was not his bag); United States v. Washington, 677 F.2d 394, 395 (4th Cir. 1982) (finding that defendant abandoned bag when he stated, "It's not my bag. I don't care what you do.").
C. Plain view doctrine
Under the plain view doctrine, an officer may conduct a warrantless seizure of incriminating evidence when "(1) the officer is lawfully in a place from which the object may be plainly viewed; (2) the officer has a lawful right of access to the object itself; and (3) the object's incriminating character is immediately apparent." United States v. Barnes, 153 F. App'x 232, 235 (4th Cir. 2005). The officer conducting the search pursuant to the plain view doctrine must have actually seen the incriminating evidence prior to initiating the search. United States v. Trice, No. 3:22cr12, 2022 WL 2346899, at *5 (E.D. Va. Jun. 29, 2022). The fact that the officer "could have seen" the unlawfully uncovered evidence from a lawful vantage point is not sufficient to justify a search under the plain view doctrine. Id.
D. Probable cause for search or seizure
Under the Fourth Amendment, a warrantless search is unlawful if conducted without probable cause. U.S. Const. amend. IV. Probable cause to search exists when "the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found" Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). A warrantless automobile search is permissible if "made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction." United States v. Ross, 456 U.S. 798, 805, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). "Probable cause is determined by a 'totality-of-the circumstances' approach." Smith v. Munday, 848 F.3d 248, 253 (4th Cir. 2017) (quoting Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).
An officer may establish probable cause to search a vehicle in part by using information from a tip. When an informant's tip forms part of the basis for probable cause, a court must assess whether the tip "possesses sufficient indicia of reliability." United States v. Perkins, 363 F.3d 317, 323 (4th Cir. 2004) (citing Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000); Alabama v. White, 496 U.S. 325, 326-27, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)). Courts look at the totality of circumstances when assessing the reliability of an informant's tip. White, 496 U.S. at 328, 110 S.Ct. 2412.
Factors which contribute to an informant's designation as "reliable" include: (1) an informant's track record of providing tips that resulted in arrests and convictions, (2) officers knowing the identity of the informant, such that the informant would be subject to criminal prosecution if [she] lied to law enforcement, (3) direct observation of criminal activity by the informant, (4) a short period of time between the observation of criminal activity and the informant's report to law enforcement, and (5) informant's provision of a detailed description of a suspect which is verified once officers reach the scene.United States v. Avagyan, 164 F. Supp. 3d 864, 883-84 (E.D. Va. 2016) (citing United States v. Morton, 400 F. Supp. 2d 871, 875-76 (E.D. Va. 2005)). Reliance on an anonymous tip may be reasonable when the tip is "suitably corroborated." United States v. Massenburg, 654 F.3d 480, 486 (4th Cir. 2011). The corroboration must be "particularized . . . [to] the particular person stopped of criminal activity" and be "reliable in its assertion of illegality." Id. at 486; J.L., 529 U.S. at 272, 120 S.Ct. 1375. An anonymous tip that is merely corroborated with respect to the subject's physical description is not sufficient for probable cause because it does not show that the tipster has knowledge of concealed criminal activity. J.L., 529 U.S. at 272, 120 S.Ct. 1375.
As noted below, the Victim's tip is considered anonymous for purposes of the probable cause analysis in this case because the 911 operator did not relay information about her identity to the officers on the scene.
E. Attenuation, inevitable discovery, and independent source doctrines
Even when officers do not have probable cause to conduct a warrantless search, the attenuation, inevitable discovery, and independent source doctrines are exceptions to the exclusionary rule that permit the Government to introduce evidence that would otherwise be excluded. First, under the attenuation doctrine, "[e]vidence is 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 suppression of the evidence obtained.' " Utah v. Strieff, 579 U.S. 232, 238, 136 S.Ct. 2056, 195 L.Ed.2d 400 (2016) (quoting Hudson v. Michigan, 547 U.S. 586, 593 (2006)). In reviewing whether the attenuation doctrine applies, courts evaluate (1) the "temporal proximity" between the unconstitutional conduct and the discovery of evidence, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. Id. at 239, 136 S.Ct. 2056.
Second, the inevitable discovery doctrine "allows the government to use information obtained from an otherwise unreasonable search if it can establish by a preponderance of the evidence that law enforcement would have 'ultimately or inevitably' discovered the evidence by 'lawful means.' " United States v. Bullette, 854 F.3d 261, 265 (4th Cir. 2017) (citing Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984)). Whether law enforcement would have inevitably uncovered the evidence by lawful means is a question of fact. Id. (citing United States v. Allen, 159 F.3d 832, 838-39 (4th Cir. 1998)). The Government bears the burden of showing by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means. Id. at 267.
Third, the independent source doctrine allows "courts to admit evidence obtained in an unlawful search if officers independently acquired it from a separate, independent source." Strieff, 579 U.S. at 238, 136 S.Ct. 2056 (citing Murray v. United States, 487 U.S. 533, 537, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988)). The evidence obtained from an independent source may be identical to or different from the evidence obtained unlawfully. Murray, 487 U.S. at 537-38, 108 S.Ct. 2529.
III. ANALYSIS
A. Defendant has a Fourth Amendment cognizable interest in the vehicle.
At issue is whether Mr. Jackson enjoyed a cognizable Fourth Amendment interest in the vehicle. See Byrd, 138 S. Ct. at 1526. Based on the briefing and the stipulations, Defendant meets his burden of showing he has a cognizable Fourth Amendment interest.
i. The parties stipulate that Defendant had lawful possession of the vehicle.
Based on the stipulations, both parties agree that Defendant had a cognizable Fourth Amendment interest in the vehicle because Defendant was in lawful possession of the vehicle. See Daniels, 41 F.4th at 415; Stip. at 2, ECF No. 39-1. The stipulation indicates that Victim would testify that she was the caller in the 911 audio and to Defendant's vehicle habits. Stip. at 1, ECF No. 39-1. In United States v. Whitehead, the Court found that, although the defendant was not the owner of the vehicle searched, he had a possessory interest in the vehicle because the defendant's wife gave testimony on the following factors: (1) the defendant's wife owned the vehicle, (2) the defendant provided money for fuel and maintenance of the vehicle, (3) the defendant kept personal items in the vehicle and used it as his primary mode of transportation, and (4) the defendant did not drive the vehicle solely because he did not have a driver's license but had authority to have others drive him places in the vehicle. 428 F. Supp. 2d 447, 451 (E.D. Va. 2006). Similarly, the stipulation reveals that Victim would testify that (1) Defendant was unable to have motor vehicles registered in his name due to his suspended Virginia license, (2) Defendant carried the only set of keys to the vehicle, and (3) Defendant would not request Victim's permission to drive the vehicle, nor would she require him to do so. Stip. at 1, ECF No. 39-1. These factors support the conclusion that Defendant had lawful possession of the vehicle. As such, the Court accepts the parties' stipulation that Defendant had a reasonable expectation of privacy and had at least the property rights of a bailee in the vehicle. Id. at 4.
ii. Defendant did not abandon the possessory interest he had in the vehicle when he disclaimed ownership.
Although Defendant has established lawful possession over the vehicle, the Government argues that Defendant abandoned his vehicle and its contents when he stated, "I know y'all don't have no choice about what y'all charging, but that is not my vehicle, that is my baby mama's vehicle." Resp. in Opp'n at 10, ECF No. 22; see Gov't Ex. 2, Aning BWC at 13:10:22. The facts suggest otherwise—Defendant did not abandon his possessory interest in the vehicle with his statement. At first blush, Defendant's statement resembles prior statements where the Fourth Circuit has found abandonment. See, e.g., Davis, 782 F. App'x 246, 253 (finding that defendant abandoned truck in driveway when he stated, "It's not my white box truck. I don't know anything about it."). However, an important distinction exists—the defendant in Davis derived his reasonable expectation of privacy from his ownership of the item, whereas Defendant in the instant case derived his reasonable expectation of privacy from the owner's standing permission to use the item. In the former case, denying ownership amounts to the defendant forfeiting his basis for a reasonable expectation of privacy, whereas in the instant case, denying ownership is simply stating a fact of vehicle registration.
Defendant's statement in the instant case is more analogous to the statement in United States v. Reeves. 798 F. Supp. 1459 (E.D. Wa. 1992). In Reeves, an officer searched a briefcase in the defendant's car after the defendant stated that the briefcase was his cousin's, not his. Id. at 1465. The court found that, without more, the "statement regarding the ownership of the briefcase did not amount to abandonment; rather, it accurately portrayed the Defendant's purported title to it." Id. at 1465-66. Similarly, in the instant case, Defendant's statement, "that is not my vehicle, that is my baby mama's vehicle," accurately reflects the fact that the car is registered in Victim's name. Gov't Ex. 1B, Victim Call at 4:05-4:26; Gov't Ex. 2, Aning BWC at 13:10:22. On its own, the statement is not sufficient to demonstrate that Defendant disclaimed a possessory interest. The Government has not met its burden of showing that Defendant abandoned his possessory interest in the vehicle. As such, Defendant has a reasonable expectation of privacy to the vehicle under the Fourth Amendment.
B. The plain view doctrine is not applicable because the Government failed to show that Officer Vanden Berg saw guns or drugs prior to conducting a search.
At issue is whether the plain view doctrine justifies officers' search of the vehicle absent probable cause. The Government argues that the officers were justified in searching Defendant's vehicle under the plain view doctrine because body camera footage clearly showed that the contraband drugs and weapons could be viewed from outside the vehicle. Resp. in Opp'n at 15, ECF No. 22. This argument is not persuasive. Under the plain view doctrine, the Government must demonstrate that the officer conducting the search actually saw the contraband prior to initiating his search. See Trice, 2022 WL 2346899, at *5. The fact that an officer "could have seen" the evidence he unlawfully recovered from a lawful vantage point is not sufficient. Id. In the instant case, the Government fails to establish that Officer Vanden Berg saw the gun or drugs prior to the vehicle search.
The Court declines to credit Officer Vanden Berg's testimony during the suppression hearing that he saw the gun in plain view prior to initiating the vehicle search because his body worn camera footage and search reports contradict his testimony. First, body camera footage suggests that Officer Vanden Berg did not see any drugs, drug paraphernalia, or guns until approximately 1 minute into the vehicle search. Def. Ex. 3, Vanden Berg BWC at 13:09:00-13:11:00. Officer Vanden Berg claimed to have seen the gun almost immediately after Defendant exited the vehicle. Id. at 13:08:03. However, the Court does not believe that an officer would spot a firearm in plain view and fail to announce it to fellow officers or to his superior until approximately 1 minute into the vehicle search. As Defendant noted during the suppression hearing, the fact that an officer spotted a firearm in plain view is important information that would have obviated the need for a motion to suppress had the officer announced the information.
Second, on the day of Defendant's arrest, Officer Vanden Berg filled out two firearms recovery forms and indicated that he obtained the two firearms through "Search incident to Arrest." See Def. Ex. 8, Firearms Recovery Form 1, Supp. Hrg, ECF No. 43; Def. Ex. 9, Firearms Recovery Form 2, Supp. Hrg, ECF No. 43. Despite testifying that he knew the search incident to arrest that Officer Jansson instructed him to conduct was not proper, Officer Vanden Berg still wrote "Search incident to Arrest" as the basis for recovering the two firearms. See Def. Ex. 8, Firearms Recovery Form 1; Def. Ex. 9, Firearms Recovery Form 2. The inconsistencies between Officer Vanden Berg's testimony and the exhibits prevent the Court from finding that Officer Vanden Berg actually saw the gun in plain view prior to conducting the vehicle search. A "post hoc rationalization of the officers' search would render meaningless the Fourth Amendment's protections against unreasonable searches." Trice, 2022 WL 2346899, at *5.
More generally, the Court did not find Officer Vanden Berg's testimony credible. The report of the search that Officer Vanden Berg submitted three days after he submitted the firearms recovery forms indicates in multiple places that he conducted the search pursuant to the plain view doctrine, not search incident to arrest. Def. Ex. 7, Case Supplemental Report, Supp. Hrg, ECF No. 43. An intervening event clearly occurred between the submission of the firearms recovery forms and the narrative report for Officer Vanden Berg to change the rationale of the search. Officer Vanden Berg testified that he told Defense counsel and Federal Public Defender Investigator Susan Jones that he may have had a conversation with Officer Jansson informing him that a search incident to arrest was not valid. Supp. Hrg, ECF No. 43. FPD Investigator Jones' meeting notes substantiate this claim. Def. Ex. 12, Jones Notes at 2, Supp. Hrg, ECF No. 43. However, during the hearing, Officer Vanden Berg testified that he could not recall if the conversation was about the instant case or another case. Supp. Hrg, ECF No. 43. These inconsistencies diminish the reliability of Officer Vanden Berg's testimony. As such, the Government fails to show that the plain view doctrine applies to the instant case.
C. The police officers did not have probable cause to search Defendant's vehicle.
At issue is whether police officers had probable cause to search Defendant's vehicle. To justify a warrantless search, the officer who searched the vehicle must have probable cause to believe that contraband or evidence of a crime will be found in the item to be searched. Ornelas, 517 U.S. at 696, 116 S.Ct. 1657. A determination of whether probable cause exists is based on circumstances known to the seizing officer. Ross, 456 U.S. at 805, 102 S.Ct. 2157. In the instant case, the issue of probable cause is a very close call. However, the totality of the circumstances demonstrates that the Government has not met its burden of showing probable cause.
i. Victim's tip is anonymous.
The main basis for the Government's assertion of probable cause is Victim's 911 call. Under the collective knowledge doctrine, information known to the 911 operator but not relayed to the police cannot contribute to the probable cause analysis. See United States v. Beasley, No. 2:20cr42, 2020 WL 6377211, at *5 (E.D. Va. Oct. 30, 2020) (noting that information known to the 911 operator but not relayed to the police does not contribute to reasonable suspicion analysis). The collective knowledge doctrine only applies to substituting the knowledge of the instructing officer or officers for knowledge of the acting officer. Massenburg, 654 F.3d at 493. In the instant case, Officer Jansson is the officer who instructed Officers Vanden Berg and Lopez to search the vehicle. The knowledge that Officer Jansson and Officer Vanden Berg had about the Victim's 911 call is the knowledge relevant to the probable cause analysis. Id. As such, the Court analyzes information that the 911 dispatcher relayed to Officer Jansson and Officer Vanden Berg to determine whether probable cause to search the vehicle exists. See generally Gov't Ex. 1A, 911 Dispatch Record; Gov't Ex. 1C, 911 Dispatch Audio. The Court reviews the information in the 911 dispatch for the relevant indicia of reliability. Perkins, 363 F.3d at 323.
Based on the 911 dispatch, the officers did not know Victim's identity when they acted on her tip. See generally Gov't Ex. 1A, 911 Dispatch Record; Gov't Ex. 1C, 911 Dispatch Audio. The fact that Victim was an anonymous tipster to the officers weighs against Victim's reliability. The Government argued during the suppression hearing that although the officers did not know Victim's identity, Victim provided her full name to the 911 operator and could have faced consequences if she had lied in her tip. Supp. Hrg, ECF No. 43. While it is true that a tipster who is not anonymous is considered more reliable in part because of the consequences the tipster could face if caught lying, the officers who acted on Victim's tip did not know that Victim provided her full name when making their probable cause determination. See Ross, 456 U.S. at 805, 102 S.Ct. 2157 (probable cause is based on circumstances "known to the seizing officer"). As such, the Court analyzes whether Victim's anonymous tip was sufficiently corroborated so as to support probable cause.
It is unclear to the Court whether the 911 dispatcher identified Victim as "Mother" to the officers. Government Exhibit 1A states, "Mother wants to stay anonymous." Gov't Ex. 1A, 911 Dispatch Record at 10, ECF No. 23. However, Government Exhibit 1C does not contain any audio referring to Victim as "Mother." See generally Gov't Ex. 1C, 911 Dispatch Audio. Because the parties have not addressed this point and Officer Vanden Berg agreed that the caller was anonymous during the suppression hearing, the Court treats Victim's call as anonymous.
ii. Officers failed to corroborate the tip with respect to illegality.
Because Victim's call is anonymous, the Court must assess whether the officers adequately corroborated Victim's statements with respect to identifying the particular suspect and the assertion of illegality. See J.L., 529 U.S. at 272, 120 S.Ct. 1375. For particularity, the 911 dispatcher provided detailed information about the vehicle Defendant was driving, Defendant's warrants, Defendant's direction of travel, Defendant's physical appearance and attire, and the guns and drugs in Defendant's vehicle to the officers. Avagyan, 164 F. Supp. 3d at 884. Police officers first corroborated Victim's tip by following the direction that Victim predicted Defendant would be driving toward. She stated that Defendant was heading in the direction of Fox Hill, and officers later found him on that street. Gov't Ex. 1A, 911 Dispatch Record at 10; Gov't Ex. 1B, Victim Call at 7:45. Victim's ability to predict the direction that Defendant was heading toward attests to her inside information and increases the reliability of her tip. See White, 496 U.S. at 332, 110 S.Ct. 2412. Officers then identified the vehicle Defendant was driving based on her description. The 911 dispatcher described the vehicle as a 2013 red Nissan Rogue and gave the license plate number to the officers. Gov't Ex. 1A, 911 Dispatch Record at 10; Gov't Ex. 1B, Victim Call, at 1:22-1:50. The dispatcher also gave an accurate description of Defendant's physical appearance (race and tattoo appearance and location) and dress (camouflage bucket hat, camouflage pants, and a gray Champion shirt). Gov't Ex. 1A, 911 Dispatch Record at 10. This description would allow officers to further corroborate Victim's tip. The corroboration is sufficiently particularized to indicate that Defendant is the individual referred to in Victim's tip. Massenburg, 654 F.3d at 486.
However, officers failed to adequately corroborate Victim's assertions of illegality. As discussed supra in Section III(B), officers did not corroborate the existence of guns or drugs in the vehicle prior to initiating their search of the vehicle. The only assertion of illegality that officers confirmed and communicated via dispatch was that Defendant had two unrelated capias warrants. Gov't Ex. 1A, 911 Dispatch Record at 10. The Court declines to find that the corroboration of unrelated capias warrants is sufficient for probable cause for a vehicle search in the instant case. The requirement in J.L. that officers suitably corroborate an anonymous tip's assertion of illegality is the standard for reasonable suspicion, which is a lower standard than probable cause. 529 U.S. at 272, 120 S.Ct. 1375. The corroboration required for a finding of probable cause in the instant case is thus more demanding than the standard discussed in J.L. To analyze whether the two capias warrants sufficiently establish probable cause, the Court looks to the purpose of J.L.'s corroboration requirement. In declining to adopt a firearms exception to the corroboration requirement, the Supreme Court stated in J.L. that the exception "would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target's unlawful carriage of a gun." Id. This underlying purpose informs the Court's view that the officers did not have probable cause to search Defendant's vehicle.
In the instant case, the only assertion of illegality that officers corroborated prior to initiating the vehicle search was the two outstanding capias warrants. The corroborated warrants are for failures to appear in unrelated state proceedings. Resp. in Opp'n at 3, ECF No. 22. Any individual can search for outstanding warrants by name in online police databases. See, e.g., Hampton Police Department, Wanted List, https://police2citizen.hampton.gov/wantedlist.aspx (last visited Oct. 27, 2022); Virginia Beach Police Department, Active Warrant Search Criteria, https://eprodmz.vbgov.com/MainUI/Warrants/WarrantSearch.aspx (last visited Oct. 27, 2022). A finding that probable cause to search Defendant's vehicle exists because officers corroborated unrelated capias warrants would impermissibly expand the ability of police officers to conduct searches based on an anonymous tip for any individual with an outstanding warrant and a sufficiently particularized description. Officers would be able to avoid actually corroborating the alleged illegal activity that is the basis of the search, which would undermine the purpose of J.L. in preventing harassment based on false anonymous tips. Further, corroboration of a tipster's assertion of an active warrant does not increase the tipster's credibility because information on active warrants is public information—it does not indicate that the tipster has inside information on the suspect's alleged illegal activity. See White, 496 U.S. at 332, 110 S.Ct. 2412 (noting that knowledge of inside information increases reliability of anonymous tip). Because officers failed to corroborate Victim's assertion of illegality with respect to illegal drugs and guns in the instant case, the Court finds that the officers did not have probable cause to conduct the vehicle search.
The Government does not dispute Defendant's argument that officers had no basis to search the vehicle as a "search incident to arrest." Mot. to Suppress at 7-8, ECF No. 21; Resp. in Opp'n at 2, ECF No. 22.
D. The Government failed to show that the attenuation, inevitable discovery, or independent source doctrines apply.
Finally, the Government argues that the Court should admit evidence obtained from the vehicle search and from Defendant's in-custody interview because of the attenuation, inevitable discovery, or independent source doctrines. These doctrines, however, do not justify admitting evidence that is otherwise excluded under the Court's probable cause holding.
i. Attenuation
The Government's argument that attenuation justifies the admission of Defendant's in-custody testimony is not persuasive. First, the temporal proximity between the unconstitutional conduct and the discovery of evidence is under one hour. Officers Vanden Berg and Lopez began the vehicle search at approximately 1:09 pm. Def. Ex. 3, Vanden Berg BWC at 1:09:18. Defendant's in-custody interview began at approximately 1:45 pm, which means that the temporal proximity is only 36 minutes. Gov't Ex. 5, Custodial Interview at 1, ECF No. 25. Thirty-six minutes is a very insubstantial amount of time, and the temporal proximity factor weighs against finding attenuation. See United States v. Terry, 909 F.3d 716, 722 (4th Cir. 2018) (finding that a temporal proximity of "a mere two days" was "an insubstantial amount of time" in attenuation analysis); United States v. Najjar, 300 F.3d 466, 478 (4th Cir. 2002) (finding that a temporal proximity of weeks was an insubstantial amount of time in attenuation analysis).
Second, there was no intervening event of significance. The Government seems to argue that Defendant's "attempts to speak with law enforcement about the case before they even knew its full scope" were intervening events that support attenuation. Resp. in Opp'n at 16, ECF No. 22. Even if Defendant's attempts to speak with law enforcement contributed in some way to officers' decision to interview Defendant, it is not a sufficient intervening event to purge the taint of the in-custody interview. The interview report indicates that officers independently raised questions about the drugs and guns in his vehicle. Gov't Ex. 5, Custodial Interview at 3, ECF No. 25. This factor weighs against finding attenuation.
Third, the purpose of the official misconduct was to search for the contraband guns and drugs that Victim described in her 911 call. By extension, the in-custody interview had a similar purpose of gathering more information about the guns and drugs in Defendant's vehicle. Whether probable cause existed to conduct a warrantless search is a close call in the instant case, and the Court finds that the vehicle search was not a "purposeful or flagrant violation of [Defendant's] Fourth Amendment rights." Strieff, 579 U.S. at 241, 136 S.Ct. 2056. This factor weighs in favor of attenuation. However, weighing the factors overall, including the extremely close temporal proximity, the Court finds that attenuation is not applicable to the instant case.
ii. Inevitable discovery
Under the inevitable discovery doctrine, the Government argues that Defendant's history and Victim's 911 call make the lawful search of the vehicle and discovery of the evidence inevitable. Resp. in Opp'n at 17, ECF No. 22. The Government notes Defendant's criminal history of violent, firearms-related behavior, particularly with respect to Victim, and argues that the "tremendous detail" that Victim sets forth about Defendant would have resulted in officers either (1) getting consent from Victim to search the vehicle, or (2) receiving a search warrant for its contents after canvassing the vehicle and seeing the gun in plain view. Id. This argument is not persuasive.
The Fourth Circuit has previously stated that the Government cannot rely on a theory that "[i]f we hadn't done it wrong, we would have done it right" with respect to inevitable discovery. United States v. Thomas, 955 F.2d 207, 210 (4th Cir. 1992); see also United States v. Allen, 159 F.3d 832, 841 (presence of drug dog that could have sniffed marijuana in defendant's bag not sufficient to make illegal search inevitable). Instead, courts typically find inevitable discovery when routine or factually established investigative steps would have inevitably led to discovery of the evidence without undertaking any search. See Nix, 467 U.S. at 449-50, 104 S.Ct. 2501 (finding that victim's body could be admitted as evidence despite obtaining illegal statement from defendant to find body because intense parallel searches were approaching and would have inevitably found the body); United States v. Melgar, 139 F.3d 1005, 1016 n.3 (4th Cir. 1998) (defendant's unauthorized presence in United States admissible despite obtaining illegal statement from defendant because the government would have inevitably discovered status by running routine computer check on false identification card), abrogated on other grounds by Texas v. Cobb, 532 U.S. 162, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001). In the instant case, the Government's justifications for inevitable discovery fall squarely in the "we would have done it right" category. Thomas, 955 F.2d at 210. The Government merely lists two possible ways of legally searching the vehicle but does not provide sufficient evidence that they are routine or factually established investigative steps that would have led to inevitable discovery. Resp. in Opp'n at 17, ECF No. 22; see Allen, 159 F.3d at 840 (inconsistent testimony about whether using a drug sniffing dog would have occurred absent the illegal search caused inevitable discovery argument to fail). As such, the inevitable discovery doctrine does not apply to the instant case.
iii. Independent source
Finally, the Government argues that the independent source doctrine justifies admitting evidence from the vehicle search and in-custody interview. Resp. in Opp'n at 17, ECF No. 22. The Government claims that Victim's 911 call and Defendant's outstanding warrants serve as an independent source of information for events to follow. Id. The Government's argument is very brief (only three sentences), which makes it difficult for the Court to analyze the applicability of the independent source argument without extensive conjecture on officers' actions. For example, the independent source doctrine typically applies to evidence obtained during a warrantless search that is later obtained pursuant to a valid warrant. Murray, 487 U.S. at 539, 108 S.Ct. 2529. However, the Government makes no mention of whether the officers would have sought a warrant. Resp. in Opp'n at 17, ECF No. 22. Instead, the Government only opines on what the officers "could" have done. Id. Because the Government fails to provide sufficient evidence to demonstrate that the officers would have independently obtained information from the tainted vehicle search or custodial interview, the Court finds that this argument is not persuasive. As such, the independent source doctrine does not apply to the instant case.
E. Defendant's in-custody interview must also be suppressed as fruits of the unreasonable search.
The exclusionary rule also bars the Government from introducing evidence that is the indirect product of an illegal search under the "fruit of the poisonous tree" doctrine. Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In particular, the Court looks to whether the evidence was obtained as a result of exploiting the primary illegal search. Id. at 488, 83 S.Ct. 407. In the instant case, Defendant's in-custody interview clearly falls under this category of derivative evidence. Mot. to Suppress at 10, ECF No. 21. The in-custody interview focused almost entirely on the guns and drugs in Defendant's car. Gov't Ex. 5 at 3-4, ECF No. 25. Paragraph 19 of the interview report is the only substantive portion of the in-custody interview that did not result from the officers' vehicle search. Id. at 4; Resp. in Opp'n at 6, ECF No. 22 (noting that Officer Aning discovered just under ½ ounce of marijuana on Defendant's person). Because the in-custody interview is fruit of the poisonous tree, the interview will be suppressed.
IV. CONCLUSION
For the foregoing reasons, Defendant's Motion to Suppress (ECF No. 21) is GRANTED. The parties are DIRECTED to contact the Courtroom Deputy within seven (7) days of the entry of this order to schedule a jury trial date.
IT IS SO ORDERED.