CA9: Govt failed to show attenuation of statement from illegal search

Where the search of defendant’s property was illegal and defendant saw them, confronting him with the product of the search was designed to get him to make a statement which was not attenuated since he had not consulted with a lawyer in the meantime. United States v. Shetler, 665 F.3d 1150 (9th Cir. 2011):

The government did not bear its burden of showing that Shetler’s statements were not the product of the illegal searches. Contrary to the district court’s determination, there is no evidence in the record to support the conclusion that the statements were “the product of the initial legal search of the garage, … and were not tainted by the illegal searches of the garage.” Both the district court and the government appear to presume that the relevant inquiry is whether the agents could have questioned Shetler regarding his drug activities but for the illegal search. The logic underlying this position is as follows: because the government had probable cause, regardless of any evidence revealed during the illegal searches of his house and garage, to arrest and question Shetler as to whether he used or manufactured methamphetamine, the statements he made during that questioning cannot be considered the product of the illegal searches.

Although the presence of probable cause may generally be the “dispositive” issue in determining whether a confession stemming from an illegal detention should be suppressed, see Crawford 372 F.3d at 1056, “[t]he analysis that applies to illegal detentions differs from that applied to illegal searches,” id. at 1054 (citing 5 Wayne R. LaFave, Search and Seizure 273, § 11.4(c) (3d ed. 1996)). As Shetler’s case illustrates, there are at least two additional relevant considerations when a confession follows an illegal search rather than an illegal detention.

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A second, related, consideration in an illegal search case such as this is that the answers the suspect gives to officials questioning him may be influenced by his knowledge that the officials had already seized certain evidence. “Confronting a suspect with illegally seized evidence tends to induce a confession by demonstrating the futility of remaining silent.” 6 Wayne R. LaFave, Search and Seizure 307, § 11.4(c) (4th ed. 2004) (quoting People v. Robbins, 54 Ill. App. 3d 298, 369 N.E.2d 577, 581, 12 Ill. Dec. 80 (Ill. App. Ct. 1977)). The government has produced no evidence to demonstrate that the answers Shetler gave to the government officials’ questions were not induced or influenced by the illegal search; indeed, there is every reason to believe that they were. Nothing in the record suggests that Shetler was aware of the initial, legal search of his garage: he came out of a side door of his house shortly after the officers had already completed their initial sweep. There is, on the other hand, irrefutable evidence that while detained outside his home for more than five hours he witnessed multiple illegal searches of his house and garage, including a set of lengthy searches, using protective clothing and masks, of the garage which he knew contained extensive materials associated with methamphetamine production. Witnessing government officials conduct these extensive searches that uncovered numerous items indicative of methamphetamine production could certainly have led Shetler to make the inculpatory statements he made to the DEA agents. Contrary to the district court’s holding, therefore, these statements cannot be said to be simply the product of the initial legal search (of which Shetler was likely unaware) rather than the extensive subsequent illegal searches (of which Shetler was undoubtedly acutely aware).