U.S. vs. Carter

David R. Carter is charged
with robbery of a Chicago Community Bank branch on
the south side of Chicago in February 2008. The constable
blundered while investigating his case, and the
district court accordingly suppressed much of the
evidence against him. The government now appeals,
arguing that the district court erred by suppressing (1) a
bank teller’s out of court identification of Carter, (2) bait
bills and other evidence taken from an apartment
where Carter was arrested, and (3) Carter’s post-arrest
statement to investigators.

For the following reasons, we reverse the district
court’s order suppressing the disputed evidence.

I. Background
On February 20, 2008, someone robbed the Chicago
Community Bank on the south side of the city by approaching
a teller, reaching into his jacket as though he
had a gun, demanding money, and making off with a
little over $1,000. Unfortunately for the robber, he also
took with him a number of “bait bills,” or easily identifiable
bills used to trace stolen money. Witnesses
described the robber as being a white male in his late
forties or early fifties, standing about 5’10” tall and weighing
about 160 pounds, with facial stubble. Witnesses also
said he was wearing a tan or gray jacket and a blue baseball
cap with white lettering. He fled eastbound from
the bank on foot.

After responding to the robbery, Chicago police officers
sent out a flash message with a description of the robber
and his clothing. Officers questioning potential witnesses
near the bank also learned that the description of the
bank robber matched that of a man who had walked into
a food court on 35th Street the night before, demanded
money, and asked employees, “How about I blow all
your brains out?” The description of the robber also rang
a bell for Chicago police officer Alfred Thome, who
heard the flash message and believed the description
matched a man he had seen earlier in a domestic
violence call in the same neighborhood. Thome was not
assigned to the case, but decided to check out his hunch.
At around 11:00 that morning, he went to the address of
the earlier call, 937 W. 34th Place, to find the suspect.

There are three residences at 937 W. 34th Place; there is
a single-family residence facing the street with a two-flat
building sitting behind that. Thome first went to the
rear building, where he had previously encountered his
suspect, but found the way blocked by a large dog. So
he went around to the front unit. There, he met Barbara
Hunter, the girlfriend of the landlord’s son. Thome
asked Hunter about the residents of the upstairs rear
unit. She told him that nobody was living in the unit at
the time and that the landlord was in the process of
kicking out the residents of that apartment. Hunter
agreed to escort Thome to the apartment with a set of
keys, and Thome radioed for back-up from other officers.
Hunter gave Thome permission to go inside, and three
or four other officers, responding to Thome’s call for backup,
went inside once they arrived.

The apartment was apparently in some kind of disarray,
although Thome did find some personal effects,
including a Cook County Inmate ID Card for a “David
Carter.” Sure enough, the photo on the ID card matched
the description of the bank robber. Thome gave the card
to two other Chicago police officers and asked them to
show it to the employees at the food court. The employees
confirmed to those officers that the man in the ID photo
looked like the man who had tried to rob them the night
before. (The same man had apparently come in to the
food court that morning as well, which presumably
made it much easier to confirm his identity.)

The search of the upstairs apartment caught the
attention of Mark Alvarado, the landlord at the apartment
on 34th Place, who lived in the lower rear unit
and who came out to talk to Thome. Alvarado told
Thome that the people in the upstairs unit had been
“thrown out.” Thome’s search also attracted the
attention of FBI Special Agent Sean Burke, who was
investigating the bank robbery. Burke arrived at the
apartment on 34th Place, and took the Cook County ID
card from Thome. He also spoke with Alvarado, who
said that Carter was receiving mail at the apartment
and may have been staying there, although under the
terms of the lease only Carter’s girlfriend and her son
were supposed to be living in the unit. Alvarado
explained that eviction proceedings were ongoing and
that nobody had paid rent in four months. At some
point in their conversation, Alvarado also supplied
Burke with a list he had created with the names of nine
people who had received mail at the apartment; the list
included David Carter (who was listed on the form
as “David Carter – Sex Offender”).

Burke left 34th Place around noon and went back
to the police station. He used the CLEAR database, a
compilation of Chicago Police Department files, to
look up the criminal history for a “David Carter” associated
with the 34th Place address. This history revealed a
number of run-ins with law enforcement, some as
recently as a month before. The file also contained a
photo of Carter (evidently a different photo from the
ID card) that Burke used to create a six-person photo
array. At around 1:00 p.m., Burke took the photo array
to the bank teller, who identified Carter as the robber.

Chicago police officer Anthony Corral was one of a
number of officers assigned to look for Carter that afternoon.
Corral and his partner learned from a restaurant
employee at 34th and Halsted that Carter was in the
area from time to time; Corral and his partner then continued
asking people in the neighborhood if they recognized
Carter or had seen him recently. An individual
living in the 3300 block of May Street not only recognized
Carter but believed that he was staying at an apartment
at 3326 South May Street. Later, that same person
contacted Corral and told him that Carter was in the
apartment at 3326 South May. Corral and his partner
went to the apartment, knocked on the door, and received
permission to enter from the person who answered.
They found Carter inside, along with several bait bills
from the Chicago Community Bank. Carter signed a
Miranda waiver at the station and agreed to give a statement,
in which he admitted robbing the Chicago Community
Bank.

On March 11, 2008, a grand jury indicted Carter for one
count of bank robbery. On May 28, 2008, Carter filed a
motion to suppress much of the evidence against him,
including the bank teller’s identification from the
photo array, a food court employee’s identification of
Carter from the night before and the morning of the
robbery, and his post-arrest statement. Carter argued
that Thome had illegally searched his residence on 34th
Place without a warrant or permission, and that the case
against him was largely built out of that search, since the
police only learned his identity from the ID card Thome
took from the apartment. The district court initially
granted the motion in part and denied it in part. After
Carter filed a motion to reconsider and the district court
held an evidentiary hearing, however, the district court
ruled that much of the evidence was inadmissible
because it was too closely tied to information gleaned
from the illegal search. As the district court found,

No doubt the officers desired to act quickly to arrest a
suspected robber before he disappeared or committed
another crime, and the officers seized upon the
impermissible fruit and ran with it. No sufficiently
distinguishable source of momentum altered the
trajectory of the officers’ activities. Given both the
short period of time, the direct connection to the illegal
search, and the clear purpose of the illegality, the
attenuation theory does not protect: (1) the out of court
identification by the bank teller; (2) evidence seized
during Carter’s arrest and ensuing search; or
(3) Carter’s post-arrest statement.

The government now appeals the adverse evidentiary
ruling. Before the district court, the government argued
that the evidence is admissible under the inevitable
discovery exception to the exclusionary rule, and alternatively
that at least some of the evidence should be
allowed in because its discovery is attenuated from the
illegal search of Carter’s apartment. The government
does not appeal the district court’s determination that
Thome’s search of Carter’s apartment was illegal and
concedes that the out of court identification of Carter by
a food court employee based on the ID card seized from
the apartment is inadmissible. They argue, however,
that the remaining evidence is admissible because its
discovery was attenuated from the illegal search, and
that the district court was incorrect to conclude otherwise.

II. Discussion
The government’s argument focuses on the attenuation
issue and they have not advanced an inevitable
discovery argument. We review a district court’s order
rejecting an attenuation theory de novo. United States v.
Ienco, 182 F.3d 517, 526 (7th Cir. 1999). We review the
factual findings underlying that decision for clear error.
United States v. Parker, 469 F.3d 1074, 1077 (7th Cir. 2006).

The exclusionary rule requires the suppression of
evidence seized in violation of the Fourth Amendment.
However, “the fact that a Fourth Amendment violation
occurred—i.e., that a search or arrest was unreasonable—
does not necessarily mean that the exclusionary
rule applies . . . [T]he exclusionary rule is not an
individual right, and applies only where it ‘results in
appreciable deterrence.’ ” Herring v. United States, 129 S. Ct.
695, 700 (2009) (quoting United States v. Leon, 468 U.S.
897, 909 (1984)).

The Supreme Court developed an exception to the
exclusionary rule for cases where an arrest or search
involved a Fourth Amendment violation but the connection
between the illegal conduct and the subsequent
discovery of evidence “become[s] so attenuated that the
deterrent effect of the exclusionary rule no longer
justifies its cost.” Brown v. Illinois, 422 U.S. 590, 609 (1975)
(Powell, J., concurring). “[T]he Court has determined
that the exclusionary rule should not apply when the
causal connection between illegal police conduct and
the procurement of evidence is ‘so attenuated as to dissipate
the taint’ of the illegal action.” United States v. Fazio,
914 F.2d 950, 957 (7th Cir. 1990) (internal citation omitted).
Attenuation “mark[s] the point of diminishing returns
of the deterrence principle inherent in the exclusionary
rule.” Ienco, 182 F.3d at 526. “It is critical that courts
wrestling with ‘fruit of the poisonous tree’ issues keep
that fundamental notion in mind, for when it is lost sight
of the results can be most unfortunate.” La Fave, Search
and Seizure, § 11.4(a) at 235 (1996). When determining
whether the causal chain between the illegal police
action and the discovery of the disputed evidence is
sufficiently attenuated to permit introduction of the
evidence, a court examines three factors: “(1) the time
elapsed between the illegality and the acquisition of the
evidence; (2) the presence of intervening circumstances;
and (3) the purpose and flagrancy of the official misconduct.”
Ienco, 182 F.3d at 526. Bearing this standard of
review in mind, we turn to the disputed evidence in
this case.

A. The teller’s out of court identification
The first piece of evidence is the bank teller’s identification
of Carter as the robber based on a photo taken from
the CLEAR database. The government first argues that
the only information gleaned from the search of Carter’s
apartment was his name and a photo of him on an ID card;
the photo simply confirmed that he matched the description
of the robber and the name gave them the identity
of a potential suspect. Burke’s decision to run down
Carter’s criminal history and to assemble a photo array
with a different photo was thus an intervening event
that separated the teller’s identification from the illegal
search. They argue in addition that Burke could
have conducted the database search without any of the
information from Thome because Alvarado supplied him
with Carter’s name and the fact that he was a sex offender.
Given his proximity to the scene of the robbery, Thome’s
suspicions about a man living at his address who resembled
the robber, and his criminal history, the apartment
search was attenuated from the CLEAR search that ultimately
produced the photograph used in the teller’s
identification.

Carter counters that neither circumstance qualifies as
an intervening event. First, he argues that the district
court found that Alvarado talked to the police only
after their illegal search of the apartment upstairs from
him caught his attention. His encounter with the police
was thus directly caused by the illegal search of Carter’s
home. Second, he argues that Burke’s search of the
CLEAR database was not an intervening circumstance
because Burke was only looking to confirm information
that Thome discovered during the illegal search: Carter’s
identity and his criminal history. Burke did not search
the database for any of the other names on Alvarado’s
list, and only looked for a David Carter residing at the
address on 34th Place, and not any of the other David
Carters in the city of Chicago.

The district court found that the teller’s identification
of Carter came about by exploitation of the evidence seized
from his apartment because Burke knew, before ever
running the database search, that Carter was a suspect
in the bank robbery and that he should focus his search
on Carter. The court was thus unimpressed with the
fact that Burke could have learned the same information
by running down the list of names from Alvarado (and
may indeed have focused on Carter first, since the
list revealed his criminal record).

The out of court identification is indeed the most questionable
piece of evidence, but we conclude that is admissible
under an attenuation theory. The district court’s
order suggests that the issue is “why [Burke] was focusing
on Carter” and, in the end, Burke was focusing on Carter
because Thome had taken his ID card during the search.
Few cases, if any, applying the attenuation exception
hold that evidence separately uncovered through completely
lawful means is inadmissible because an illegal
search first made a particular person a suspect in a
criminal investigation.1 The Supreme Court has broadly
rejected that kind of strict but-for causality in this context.
Hudson v. Michigan, 547 U.S. 586, 591 (2006) (“But-for
causality is only a necessary, not a sufficient cause for
suppression.”). Indeed, requiring suppression because
an illegal search made Carter a target of the bank robbery
investigation comes perilously close to Judge Friendly’s
famous hypothetical of “grant[ing] life-long immunity
from investigation and prosecution simply because a
violation of the Fourth Amendment first indicated to
the police that a man was not the law-abiding citizen
he purported to be . . .” United States v. Friedland, 441
F.2d 855, 861 (2d Cir. 1971).

The Ninth Circuit has previously held that “it is not
sufficient in demonstrating taint that . . . an illegal search
uncovers the alleged perpetrator’s identity, and
therefore ‘directs attention to a particular suspect.’ ” United
States v. Smith, 155 F.3d 1051, 1061 (9th Cir. 1998) (citation
omitted). The Eighth Circuit has reached a similar conclusion.
United States v. Watson, 950 F.2d 505, 508 (8th
Cir. 1991) (“[W]e conclude that where a law enforcement
officer merely recommends investigation of a particular
individual based on suspicions arising serendipitously
from an illegal search, the causal connection is sufficiently
attenuated so as to purge the later investigation
of any taint from the original illegality.”).2 Setting aside
the out of court identifications from the food court employees
shown Carter’s ID card (the suppression of those
identifications was proper, and anyway the government
does not appeal the issue), the search supplied investigators
with Carter’s name and (since the investigators
had seen the illegally seized ID card) the knowledge
that Carter matched the description of the bank robber.
However, the fact that the search gave investigators a
lead on a possible suspect does not make a subsequent
identification of that suspect, given by a witness who
had no knowledge of the illegal search and was not
shown any of the evidence produced by it, subsequently
inadmissible.

We also find it important that both Carter’s name and
address were provided to Burke by Mark Alvarado. That
was all the information that Burke needed in order to
run the CLEAR search that, ultimately, produced the
photo used in the bank teller’s identification. Carter
argues that Alvarado’s decision to supply the list of
people who had received mail at the address was not a
sufficient intervening event because Alvarado left his
apartment to talk to the police in response to noise from
the search upstairs, and because he only mentioned
Carter’s name after Burke asked about him. Neither of
those arguments addresses the crucial issue, however. If
a witness gave information to investigators after an
illegal search the issue for purposes of the intervening
factor inquiry is whether the witness voluntarily disclosed
it, not whether the illegal search bore any causal relationship
at all to the disclosure. In United States v. Carsello,
578 F.2d 199 (7th Cir. 1978), we held that evidence given
to investigators by witnesses who were found, in part,
because of records seized during an illegal search
was nonetheless admissible. When the witnesses had
voluntarily cooperated with the investigation and
provided the police with tangible evidence, a court
would not further the deterrent purpose of the
exclusionary rule by suppressing that evidence. Id. at
203 (citing United States v. Ceccolini, 435 U.S. 268 (1978)).

We conclude that Alvarado voluntarily provided the
information about Carter and the other occupants of the
apartment to Burke. Alvarado was not a suspect in the
robbery and was not in custody when the investigators
questioned him. Moreover, he had at least some incentive
to cooperate with investigators, as he was in the process
of evicting Carter and his girlfriend and because Carter
was living in the apartment off-lease. In short, the circumstances
suggest that Alvarado voluntarily cooperated
with Burke’s investigation, and that the information that
he provided should not be discounted because of
Thome’s warrantless search. See Ceccolini, 435 U.S. at 277
(a court should examine “the time, place and manner of
the initial questioning of the witness” in order to determine
whether “any statements are truly the product of
detached reflection and a desire to be cooperative on the
part of the witness.”). Alvarado’s list, which provided
Carter’s name and address and some indication of his
previous criminal record, was itself sufficient to produce
the photograph from the CLEAR database used in the
teller’s out of court identification.

Finally, we conclude that neither the timing of the
events nor the purpose and flagrancy of the search supports
suppression in this case. While the government
concedes that very little time separated Thome’s
search of the apartment on 34th Place from the teller’s
identification, “the time frame [is] only one factor to
consider, and is never dispositive.” Ienco, 182 F.3d at 526.
We have previously held that a search was attenuated
from illegal conduct even where only a few minutes
passed between the conduct and the search. See Parker,
469 F.3d at 1078-79.

Nor do we conclude that the purpose and flagrancy of
the violation supports suppression. The district court
found that this factor weighed against the admissibility of
the evidence because “every activity was undertaken in an
effort to develop the evidence against Carter. There was no
purpose other than to confirm Carter’s name and to
confirm if Carter was the suspect in question.” This way
of phrasing the issue conflates the inquiry between
flagrant and purposeful behavior, however. Courts have
previously found that a Fourth Amendment violation
was flagrant and purposeful where “(1) the impropriety
of the official’s misconduct was obvious or the official
knew, at the time, that his conduct was likely unconstitutional
but engaged in it nevertheless; and (2) the
misconduct was investigatory in design and purpose and
executed ‘in the hope that something might turn up.’ ”
United States v. Simpson, 439 F.3d 490, 496 (8th Cir. 2006)
(quoting Brown v. Illinois, 422 U.S. 590, 605 (1975)). Where
the police erred but the record does not support an inference
of bad faith, however, the violation was not flagrant.
See United States v. Green, 111 F.3d 515, 523 (7th Cir. 1997);
Fazio, 914 F.2d at 958 (“Because the primary purpose of
the exclusionary rule is to discourage police misconduct,
application of the rule does not serve this deterrent
function when the police action, although erroneous,
was not undertaken in an effort to benefit the police at
the expense of the suspect’s protected rights.”).

In this case, we find that the circumstances weigh
against a finding that the Fourth Amendment violation
was flagrant. Thome was acting on good police instincts
in connecting the man he had previously seen at the
apartment on 34th Place with the man who robbed the
Chicago Community Bank. When he reached the apartment
he did not enter straight away but instead spoke
with someone on the premises (Barbara Hunter) who
told him that no one was living in the unit and that the
landlord was in the process of kicking the previous
tenants out. As the district court’s first suppression order
noted, Hunter also told Thome that Carter did not live
in the apartment but only stayed there off and on with
his girlfriend. Hunter also had a set of keys to the unit,
which may have indicated to Thome that she had some
authority to enter the unit. Finally, testimony indicated
that the apartment was in a state of disarray when the
officers entered, further suggesting that the tenants had
already moved out. While in retrospect the search was
constitutionally deficient, we cannot conclude that
under these circumstances Thome knew or should have
known that the apartment was still occupied and that
the search was likely to be unconstitutional. Accordingly,
this case does not involve the sort of flagrant and purposeful
misconduct that merits application of the
exclusionary rule to evidence unearthed subsequent to
the warrantless search.

B. Evidence seized during Carter’s arrest
The government next argues that the district court
erroneously suppressed evidence seized from the
May Street apartment when Carter was arrested, in
particular the bait bills tying Carter to the robbery. As an
initial matter, Carter argues that the government
has not properly presented this issue because they
have not demonstrated that “Individual B,” the anonymous
person who answered the door at the apartment
and gave the officers permission to enter, had actual or
apparent authority to authorize a search. The history of
this issue is a little complicated: The government argued
below that the search was a valid consent search, authorized
by Individual B, who was a guest of the person
leasing the apartment, and the lessee, who returned
home after being contacted by the police and also consented
to a search. If true, this would validate the
warrantless search. At any rate, this argument is no help
to Carter since he has never tried to establish a Fourth
Amendment interest in the May Street apartment where
he was arrested. His larger Fourth Amendment argument
depends on the apartment at 34th Place being his
residence, since that is where the warrantless search
took place. His connection to the May Street apartment
is less clear, but he would need to advance some connection
with the place before he would have standing to
assert Fourth Amendment rights on behalf of the owner.
Without that, he cannot assert someone else’s protected
privacy interest. United States v. Mendoza, 438 F.3d 792,
795 (7th Cir. 2006).

The district court excluded the bait bills because their
admissibility “depends on the admissibility of the bank
teller identification, or something else that would
provide an intervening basis for the CPD’s and FBI’s
interest in Carter as a suspect.” But the court found
that absent the illegal search, there was no basis for
suspecting Carter. The government argues that even if
we rule that the teller’s identification did not provide
the police with probable cause to arrest Carter, Individual
B’s consent to search was a sufficient intervening event
to break the causal chain between the illegal search and
the search of the May Street apartment.

This circuit’s precedents, most importantly United States
v. Liss, 103 F.3d 617 (7th Cir. 1997), support the government’s
contention that the valid consent search of the
apartment on May Street makes the bait bills and other
evidence admissible, regardless of the reason that the
police were looking for Carter. The defendant in Liss
was charged with trafficking crystal methamphetamine
after the police discovered drugs during a consent search
of his home. Id. at 619-20. He argued that the results of
the consent search should have been suppressed
because the police only requested consent to search his
home after discovering marijuana plants during a prior
consensual search of his barn that, he argued, went
beyond the scope of his consent. Id. at 620. Thus, he
claimed that without the first illegal search there would
have been no reason to suspect him of wrongdoing and
no reason to want to search his home. We held that Liss’
consent to search was a sufficient intervening event to
break the causal chain between any illegal search and
the subsequent discovery of incriminating evidence in
his home. Id. at 621.

We reasoned in Liss is that the police do not need a good
reason to request permission to search someone’s home.
Id. (citing Florida v. Bostick, 501 U.S. 429, 434-35 (1991)).
Their motivation is essentially irrelevant because the
person asked can always refuse to grant consent and stop
Liss drew a particularly 3 strong concurrence, which argued that
the Supreme Court has never said that consent, or any other
factor, is per se an intervening event severing an illegal
search from a subsequent discovery of evidence. Id. at 622-23
(Ripple, J., concurring). We subsequently explained in United
States v. Robeles-Ortega, 348 F.3d 679 (7th Cir. 2003), that Liss
is not a per se rule validating every consent search following
a Fourth Amendment violation, and in Robeles-Ortega we
held that it did not apply when the consent was given at the
site of the illegal entry. Id. at 684. In the present case, however,
consent was given by a person unaware of the earlier
warrantless entry, at a different location, and with different
police personnel involved. The holding of Liss would
squarely govern these facts.
the search.3 “The fact that an officer had actual suspicion,
however obtained, cannot render invalid a consent for
which the officer did not need any suspicion at all
to request.” Id.

In part this issue is settled by the resolution of the
earlier issue, since the information Burke gleaned from
the CLEAR database gave the police probable cause for
seeking Carter’s arrest. Even without that evidence,
however, our holding in Liss requires us to conclude
the bait bills taken from the apartment are admissible.

C. Carter’s confession
The government finally seeks admission of Carter’s
statement, made after the police arrested him at the
apartment on May Street. There is no question that
Carter made the statement voluntarily and after receiving
proper Miranda warnings. The district court suppressed
the confession, however, because Carter’s arrest was
dependent upon the validity of the bank teller’s identification;
because that identification was the fruit of the
poisonous tree, there was no probable cause to justify
Carter’s arrest.

Whether the district court’s suppression decision was
appropriate thus depends upon whether the bank teller’s
statement was admissible. As we have already concluded
that the identification is admissible, it would
provide probable cause for Carter’s arrest and makes his
subsequent statement admissible. Even apart from the
teller’s identification, however, Carter was found in the
May Street apartment with bait bills from the robbery,
and he matched the general description of the robber
given in the police department’s flash message, both
facts supporting probable cause for his arrest. Consequently,
the statement is admissible.4

III. Conclusion
For the foregoing reasons, we REVERSE the district court’s
suppression order and remand for proceedings consistent
with this opinion.

Chicago Criminal Lawyer - Robert J Callahan