N.-M.: Statement attenuated from unlawful cell phone seizure

Defendant was arrested after NCIS forced entry into his barracks room arresting him at gunpoint coming out of the shower for allegations of sexual conversations with an minor. NCIS seized his cell phone without a search authorization. Ultimately, his cell phone was suppressed, but his incriminating statements were found sufficiently attenuated from the seizure of the phone. United States v. Bickford, 2021 CCA LEXIS 643 (N.-M. Ct. Crim. App. Nov. 29, 2021):

Finally, the third and most critical Brown factor, the purpose and flagrancy of the official misconduct, weighs in favor of the Government when considering the potential taint from the unlawful apprehension. Assuming the apprehension violated his Fourth Amendment rights, there is no evidence that NCIS designed the apprehension to gain any investigative advantage. There is simply no indication that the aggressive manner of the apprehension was intended to “soften up” Appellant to confess during the subsequent interrogation.

As to the potential taint from the unlawful seizure of the cell phone, the third factor weighs again in favor of the Government. NCIS did not exploit the phone’s contents in order to compel or coerce Appellant’s statements during the course of the interrogation. The unlawful seizure of the cell phone was not designed to achieve an investigatory advantage, and the agents did not review the contents of the phone prior to questioning Appellant. Additionally, the agents did not discuss the phone until after Appellant provided a full confession to every element of the offense.

Unlike the circumstances in United States v. Washington, where our sister service court suppressed statements made by the appellant following an illegal search, the NCIS agents in this case never confronted Appellant with the unlawfully obtained evidence. The agents never stated or implied that Appellant should confess because they already possessed the phone. In fact, the evidence demonstrated Appellant actually believed that there was no evidence of the crime remaining on the cell phone. Moreover, because the agents elected to continue the ruse that Mackenzie was an actual minor, they never confronted Appellant with the communications that were already in their possession from the sting operation. Thus, although the seizure of the phone was unlawful, the suppression of the cell phone and its contents was the sole appropriate remedy. Unlawfully obtained evidence does not render all later statements fruit of the poisonous tree when the police misconduct or the unlawfully obtained evidence in no way impacts a suspect’s subsequent statement. Regardless of the length of time or intervening circumstances, there must be some exploitation of the unlawfully obtained evidence. Here, we find none.

I read it, read it again, and I’m not persuaded.