CA5: Attenuation of statement from arrest found: “Suppression of inculpatory evidence is an extraordinary remedy.”

The Fifth Circuit finds defendant’s statement is attenuated from his arrest. The time factor favors defendant but the rest favors the government. “Finally, the purpose and flagrancy factor favors the Government with respect to both the stop and subsequent search. Suppression of inculpatory evidence is an extraordinary remedy.” United States v. Mendez, 2018 U.S. App. LEXIS 7498 (5th Cir. Mar. 26, 2018):

Having determined that Mendez spoke voluntarily, we move on to the attenuation analysis. Although, as noted previously, the stop and search are analytically distinct in some respects, they were roughly contemporaneous and led to a single challenged confession. Thus, our analyses of the first three Brown factors for the stop and search largely overlap. To the extent that these analyses overlap, we apply the more generous standard of review applicable to our analysis of the stop. Once the analyses begin to part ways, however, a plain error standard will apply to our attenuation analysis of the search.

As noted previously, the officers read the Miranda warnings to Mendez, confirmed that he understood them, and secured a knowing waiver of his rights. This weighs in favor of attenuation.

However, the temporal proximity factor favors Mendez. There are no precise time limits for temporal proximity. See United States v. Montgomery, 777 F.3d 269, 273-74 (5th Cir. 2015). But where relatively little time has elapsed, the determination generally turns on the conditions of custody. See 6 LaFave, supra, § 11.4(b) (“[A] shorter lapse of time will be tolerated when the circumstances of the detention are less severe.”); compare Taylor v. Alabama, 457 U.S. 687, 691, 102 S. Ct. 2664, 73 L. Ed. 2d 314 (1982) (holding that six-hour interval did not favor Government where defendant was “in police custody, unrepresented by counsel, and he was questioned on several occasions”), with Rawlings v. Kentucky, 448 U.S. 98, 107-08, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980) (holding that 45-minute interval favored Government where defendant was allowed to move around house freely and atmosphere was congenial). The parties agree that only a few hours elapsed between the stop and Mendez’s statements. Indeed, the Government estimates that less than two hours may have elapsed between the stop and the custodial statements. Cf. Brown, 422 U.S. at 604 (“Brown’s first statement was separated from his illegal arrest by less than two hours ….”). Moreover, Mendez was continuously in custody—at first in the back of Thurman’s vehicle and then at the DPS office. Consequently, the temporal proximity factor weighs against attenuation. Even so, “temporal proximity is not dispositive,” Montgomery, 777 F.3d at 274, and is typically the “least determinative factor involved,” LaFave, supra, § 11.4(b).

The intervening circumstances, by contrast, favor the Government. In Cherry III, evidence independent from the illegal arrest established probable cause to arrest the defendant. See 794 F.2d at 206. The court concluded that the intervening circumstances favored the Government because “[t]he development of independently procured probable cause following an illegal arrest is a critical factor attenuating the taint of the initial illegal arrest.” Id.; cf. Strieff, 136 S. Ct. at 2062-63 (holding that intervening discovery of valid arrest warrant following unlawful stop “strongly favor[ed] the State”). Shortly after the illegal arrest, the Government discovered ammunition in Mendez’s residence pursuant to the search warrant. Mendez does not dispute that the search warrant was valid—indeed, he conceded during the suppression hearing that it was. Nor does he dispute that officers had probable cause to arrest him after discovering the ammunition. As such, the intervening circumstance of Mendez’s lawful arrest strongly favors the Government.

Finally, the purpose and flagrancy factor favors the Government with respect to both the stop and subsequent search. Suppression of inculpatory evidence is an extraordinary remedy. See Hudson, 547 U.S. at 591. This factor ensures that it is applied only where it serves its purpose of deterring police misconduct. Strieff, 136 S. Ct. at 2063. In order for a violation to be “purposeful or flagrant,” it must be more than just negligent. See id.

We begin with the stop and find that the officers’ actions do not rise above the level of negligence. …