N.D.W.Va.: Second entry was in violation of Fourth Amendment, but not flagrant under Brown, so search not suppressed

Second entry to seize a gun was not a flagrant violation of the Fourth Amendment, so the gun would not be suppressed. United States v. Ramage, 2009 U.S. Dist. LEXIS 111639 (N.D. W.Va. July 13, 2009)*:

There are three factors that are relevant and which must be considered by the Court in determining whether the primary taint has been purged: “1) the amount of time between the illegal action and the acquisition of the evidence; 2) the presence of intervening circumstances; and 3) the purpose and flagrancy of the official misconduct.” Id. citing Brown v. Illinois, 422 U.S. 590, 604-604, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). “The burden of showing admissibility rests … on the prosecution.” United States v. Seidman, 156 F.3d 542, 548 (4th Cir. 1998).

Applying the first Brown factor, very little time could have elapsed between Deputy Gearde’s unlawful entry into the Ramage home and when Mrs. Ramage escorted him to the upstairs bedroom and showed him where the gun was located. However, suppression is not necessarily warranted in the face of the lack of a significant intervening period of time. “[T]he Brown test does not require that each of the factors set forth be resolved in favor of the Government.” United States v. Wellins, 654 F.2d 550, 554 (9th Cir. 1981). This is particularly the case where as here the second and third factors weigh heavily in favor of admissibility.

With respect to the second Brown factor, Melissa Ramage’s actions in regard to Deputy Gearde and the gun after the unlawful entry constitute significant intervening circumstances. She was engaged in conversation with Deputy Gearde concerning whether a gun was located in the residence. She indicated to the deputy sheriff that a gun was in a box in her bedroom. When the deputy sheriff asked her if he could go retrieve it, she declined reasoning that her house was a mess. When the deputy sheriff insisted and suggested they go together, she agreed by leading him upstairs directly to the box and gun under the bed. After the unlawful entry into the home, Melissa Ramage never once asked the deputy sheriff to leave.

Finally, with respect to the third Brown factor, the evidence shows that Deputy Gearde only opened the screen door and stepped across the threshold of the Ramage front door to engage the two women who had been watching the events outside through the front windows. While the purpose of coming back and entering the house was to assure that a firearm was not present, the deputy was still processing a domestic call; did not want the husband returning to the house if a firearm was present for fear that the initial dispute would again flare up and deteriorate into a violent episode; and did not have any knowledge or reasonable suspicion that a gun was present. The entry was not made for the purpose of retrieving a firearm that Deputy Gearde had earlier been told was present (when he first talked to Mrs. Ramage) but did not seek to seize until he later learned from his fellow deputy that Defendant Ramage was a convicted felon prohibited from possessing a firearm. The second entry was not made in flagrant disregard of Defendant’s Fourth Amendment rights.

Accordingly, the Court concludes that the United States has carried its burden of proving that the evidence discovered (the scoped gun and ammunition) was acquired “sufficiently independent of the unlawful invasion to purge any taint arising from the initial entry.” United States v. Seidman, supra at 549-550.