{"id":1472,"date":"2008-05-23T18:20:36","date_gmt":"2007-10-24T05:26:42","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-10-24T05:26:42","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1472","title":{"rendered":"Removing keys from pocket after frisk and asking about car exceeded scope of Terry<\/em> stop"},"content":{"rendered":"

Defendant was standing near a person the police believed was a prostitute, and, when they saw the police, they went in different directions. When officers followed defendant, he ran. When he was stopped, officers patted him down, found car keys, and questioned him about the car since he was on Maryland parole but in D.C. They obtained a consent to search the car after defendant admitted it was nearby and they walked around until the remote car lock showed the car. The D.C. Cir. suppressed the search of the car because taking the keys was beyond the scope of a Terry<\/em> stop and frisk. The government’s alternative arguments of inevitable discovery and attenuation of the taint were also rejected. United States v. Holmes<\/a>, 378 U.S. App. D.C. 277, 505 F.3d 1288 (2007). As to the frisk:<\/p>\n

Next, the defendant must make a prima facie showing of a causal nexus between the Fourth Amendment violation and the evidence he seeks to suppress. See United States v. Crews<\/em><\/a>, 445 U.S. 463, 471 (1980). In this case, Holmes has met his burden of showing that, but for the illegal seizure of the keys, the officers likely would not have discovered the gun and ammunition in his car. If they had not removed Holmes’s keys during the patdown, the officers would not have been able to visibly inspect them to determine whether Holmes possessed a car key. Visual confirmation that Holmes was carrying car keys gave the officers reason to continue their line of questioning about how Holmes came to the area that night. Additionally, Officer Greene testified that he used the remote opener on the keychain to both locate and unlock Holmes’s vehicle on the adjacent street. Each of these factors contributed to the pistol’s discovery, and we are satisfied Holmes met his burden of showing a prima facie causal nexus between the illegal seizure and the challenged evidence.<\/p>\n

After the defendant has met his burden, the evidence must be suppressed unless the government proves, by a preponderance of evidence, that the evidence would have been discovered inevitably, was discovered through independent means, or that its discovery was so attenuated from the illegal search or seizure that the taint of the unlawful government conduct was dissipated. See Alderman<\/em><\/a>, 394 U.S. at 183; United States v. Kornegay<\/em>, 410 F.3d 89, 93-94 (1st Cir. 2005).<\/p>\n

Because the district court did not hold that the key seizure violated Holmes’s Fourth Amendment rights, it failed to shift the burden at this point. The district court should have placed on the government the burden of proving that the gun would have been discovered inevitably even without the illegal seizure or, alternatively, that Holmes’s consent to search his vehicle attenuated the taint, the two arguments it now advances. Though the government argues that the district court made findings favorable to the government on both issues which should now be accepted by this Court, to the extent that this is true, the district court arrived at those conclusions after incorrectly assigning the burden of proof.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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