CAAF: Attenuation not shown and ER applies: officer conducted ‘unwise, avoidable, and unlawful’ investigation and arrest

Defendant’s arrest was unlawful and the government failed to show attenuation. “However, we do not think it necessary that the agent’s misconduct be outrageous for the third factor in Brown to apply. Though there is no evidence of bad motive or intent on the investigator’s behalf, we do believe that his actions were ‘unwise, avoidable, and unlawful.’ Conklin, 63 M.J. at 339. By all appearances, Agent Pledger conducted a hasty and flimsy initial investigation before apprehending Appellant.” United States v. Darnall, 2017 CAAF LEXIS 652 (C.A. A.F. June 28, 2017):

We do not find any intervening factors sufficient to attenuate the taint of the illegal apprehension on the evidence derived from the phone or from the first or second interviews. The Supreme Court has stated that, in testing for causal connection between an illegal arrest and a subsequent confession, factors that should be considered include “[t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances, … and, particularly, the purpose and flagrancy of the official misconduct.” Brown v. Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975) (footnote omitted) (citations omitted). Here, the initial interview took place directly following the arrest, with no intervening circumstances except the drive to the CID building and Appellant being advised of his rights. Though Appellant did leave the building overnight between the first and second interviews, the fact that Agent Pledger told him to return and that the agent still possessed Appellant’s phone indicate the second interview is best characterized as an extension of the first rather than a fresh start.

This brings us to the third factor, the purpose and flagrancy of the official conduct. The record does not reveal any malignant intent behind Agent Pledger’s actions. However, we do not think it necessary that the agent’s misconduct be outrageous for the third factor in Brown to apply. Though there is no evidence of bad motive or intent on the investigator’s behalf, we do believe that his actions were “unwise, avoidable, and unlawful.” Conklin, 63 M.J. at 339. By all appearances, Agent Pledger conducted a hasty and flimsy initial investigation before apprehending Appellant. He did not seek out and speak to the previous owner of the house to which the package was addressed, attempt to speak to Appellant at all prior to his detention, or even call the telephone number listed on the package. He did not ask Customs and Border Protection for help in running the names and addresses involved through their own records, which would have, and later did, turn up the October 2011 box that had been destroyed. In Agent Pledger’s own words, if Appellant had given no indication during that initial interview that he was the intended recipient of the package, the “investigation probably would have sunk at that time and not been continued.” In Conklin, after executing an illegal search and finding contraband on the appellant’s computer, officers alerted law enforcement agents, who obtained consent from the appellant to search his room and computer. This Court, finding the officers’ actions were “unnecessary and unwise,” determined that the taint of the unlawful search was not attenuated by obtaining subsequent consent to search. Conklin at 63 M.J. at 339-40. As in Conklin, the law enforcement actions in the instant case infringed inexcusably upon Appellant’s Fourth Amendment rights and Agent Pledger openly “exploited the original illegality,” using information obtained from Appellant in his post-apprehension interview to obtain a warrant for his phone. Id. at 339.

The Government argues that even if probable cause to apprehend did not exist, the exclusionary rule should not apply in the circumstances of this case. It cites the Supreme Court’s statement in United States v. Leon that the exclusionary rule “operates as a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” 468 U.S. 897, 906, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) (internal quotation marks omitted) (citation omitted). The exclusionary rule “cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.” Id. at 919. However, we do not view Agent Pledger’s behavior as objectively reasonable law enforcement activity. In Brown, the Supreme Court reminded us that the exclusionary rule “is calculated to prevent, not to repair. Its purpose is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.” 422 U.S. at 599-600 (internal quotation marks omitted) (quoting Elkins v. United States, 364 U.S. 206, 217, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960)). The somewhat sloppy and apathetic investigation conducted by Agent Pledger prior to apprehending Appellant, in clear violation of his Fourth Amendment rights, is one type of law enforcement activity we would certainly hope to deter. Were we to determine that the exclusionary rule did not apply under such circumstances, excusing Agent Pledger’s actions because they were not sufficiently flagrant or purposeful, we “might well be encouraging unlawful conduct rather than deterring it.” Conklin, 63 M.J. at 340.

The Government also suggests that both the inevitable discovery and the good faith exceptions to the exclusionary rule should apply here. We disagree.