• Detentions and Plain Sight Seizures
• Prolonged Detentions
• Abandonment
• Intervening Circumstances and Attenuation of the Taint
• Flight as a Possible Attenuation of the Taint

The plain sight observation of a non-contraband item (such as a car key) during a patdown search for weapons does not warrant the seizure of that item.  The continued detention done for the purpose of investigating other non-criminal activity violates the Fourth Amendment.  An “intervening circumstance” (e.g., flight) that occurs after the illegal seizure of property does not make that property retroactively admissible via an “attenuation of the taint” theory.  

Defendant Terrance Baker, along with Walter Collin Beatty, robbed a Sprint store in Los Angeles at gunpoint, taking a bunch of cellphones.  The semi-automatic pistol defendant used had a distinctive black frame and silver slide, as observed on a store’s videotape.  A week after the robbery, LAPD Patrol Officers Byun and Salas observed defendant loitering with others at the Nickerson Gardens housing complex.  The officers knew that defendant was a gang member and that he did not reside at Nickerson Gardens.  Suspecting that he was therefore trespassing (it not being discussed what specific trespass statute might apply), the officers decided to make contact.  Seeing the officers approach, defendant lifted his shirt to show the officers he was unarmed.  Officer Byun, however, patted him down anyway.  No weapons or contraband were found.  Officer Byun did observe, however, a car key attached to defendant’s belt loop. (Although not described, the key was apparently of the now-common type that included an electronic car fob built into it.) After obtaining defendant’s driver’s license, the officer took the car key off of defendant’s belt loop.

Officer Byun then walked away with the car key and defendant’s driver's license to an adjacent parking lot, clicking on the key in an attempt to identify which car matched the key.  Defendant himself was “directed” to follow the officer and then “commanded” to stop and put his hands behind his back.  (The legality of what was at this point—if not earlier—obviously a detention was not contested or discussed.)  Asked if he had a vehicle with him, defendant responded that he did not.  But low and behold, when Officer Byun pressed the car lock on the key, he observed the headlights flash on a nearby red Buick parked on the street.  Officer Byun told defendant: “You don't have a car? That’s your car right there, it’s blinking, man.” Although handcuffed, defendant decided he didn’t want any part of this and took off running—handcuffs and all—only to be apprehended a short distance away. Officer Byun managed to lose the car key in this chase. Defendant told the officers the car belonged to his mother and that he ran “because he was scared.” 

Meanwhile, another officer who responded to the scene looked into the locked Buick, later testifying that he “was able to see underneath the front seat what appeared to be the butt of a handgun.”  Breaking into the car (the key having been lost), a handgun with a distinctive black frame and silver slide was recovered.  It was later determined that this gun matched the description of the gun used in the robbery of the Sprint store.  Defendant was charged in federal court with a “Hobbs Act” robbery (i.e., a robbery affecting interstate commerce) and conspiracy to commit robbery, in violation of 18 U.S.C. § 1951(a), and brandishing a firearm in violation of 18 U.S.C. § 924(c)(1)(A)(ii).  The “brandishing” charge stemmed from defendant holding the pistol to a Sprint store employee’s head as Walter Beatty took iPhones from the store’s safe.  After defendant’s motion to suppress the handgun was denied, a jury (with Beatty—apparently given a deal in exchange for his cooperation—testifying against defendant at the trial) convicted him of all charges.  Sentenced to 209 months (nearly 17½ years) in prison, defendant appealed.

The Ninth Circuit Court of Appeal affirmed in part (the robbery) and reversed in part (the brandishing).  The primary issue on appeal was the legality of the seizure of the car key from defendant’s belt loop and its use in locating the Buick in which the firearm was discovered.  The constitutional principles are well-established.  The Fourth Amendment protects against unreasonable searches and seizures.  Defendant’s car key was “seized” from his person without his permission.  But leading up to the seizure of the key, the parties first debated whether or not defendant himself had been lawfully “seized” (i.e., detained) when first confronted in front of the Nickerson Gardens housing complex. 

The government argued that defendant had been lawfully detained and patted down weapons, while defendant argued that he had been unlawfully arrested (not just detained).  Assuming for the sake of argument that defendant’s detention was lawful, the Court declined to decide this issue as irrelevant and went straight to the issue of the seizure of the key from defendant’s belt loop.  Prior to the seizure of the key, defendant had been patted down for weapons; a procedure which has been approved by the Supreme Court for purposes of insuring the officers’ safety in circumstances where the officers have a reasonable suspicion that the subject may be armed.  (Terry v. Ohio (1968) 392 U.S. 1.) 

In this case, the officers found no weapons, making the legality of having conducted a patdown under these circumstances irrelevant (i.e., because with nothing found, there was nothing subject to suppression).  But assuming the legality of the patdown, it is a rule that officers may also lawfully seize “nonthreatening contraband detected during (the) protective patdown search . . . so long as the officers’ search stays within the bounds marked by Terry.”  (Id., at p. 373.)  In this case, after having determined that defendant did not possess weapons or contraband, the officers “turned to other purposes” when they removed the car key visibly hanging from defendant’s belt loop, and used it to search for any nearby vehicle associated with that key.  As noted by the Court: “The Government is unable to explain how the officers’ post-patdown detention and search for the car was intended to confirm or dispel their suspicions about a crime (of trespass) being committed or to secure the safety of anyone on the scene.” 

The Court found, therefore, that the seizure of the key and the search for a car associated with that key, being unrelated to the purposes of the initial detention and patdown, violated the Fourth Amendment.  Per the Court:  “Had officers limited their Terry stop to a brief detention and protective patdown search of (defendant), they would have had no occasion to search for a car in an adjoining parking lot that matched the key fob hanging from (defendant's) belt loop.” 

As a result, the firearm discovered in defendant’s vehicle should have been suppressed as the product of that Fourth Amendment seizure violation.  In so holding, the Court rejected the government’s rather novel argument that by claiming not to have a vehicle with him, defendant somehow “abandoned” the car key, leaving him without standing to challenge both its seizure and the resulting search of the car.  “That the key was hanging from (defendant’s) belt manifests an objective intent to maintain possession of it.”  Defendant never intended to abandon his car key. 

The Court lastly rejected the government’s argument that defendant’s decision to flee “attenuated the taint” of the illegal confiscation of his key, noting simply that defendant’s choice to flee occurred after the key had already been illegally taken.  In summary, the Court held as follows:  “The discovery of the handgun was the product of illegal police conduct, whether that (illegal) conduct is framed as exceeding the permissible scope of a Terry stop (i.e., an unlawfully ‘prolonged detention’) or as the warrantless seizure of the car key.  Where evidence is obtained from an unlawful search or seizure, the exclusionary rule renders inadmissible both ‘primary evidence obtained as a direct result of an illegal search or seizure’ and ‘evidence later discovered and found to be derivative of an illegality,’ known as ‘fruit of the poisonous tree.’”  As such, the gun should not have been allowed into evidence at his trial.  However, that having been said, the Court held that although the introduction of the gun at trial required the reversal of the “brandishing” (18 U.S.C. § 924(c)(1)(A)(ii)) conviction (there being no other evidence that the gun used in the robbery was in fact a real gun; a necessary element of the federal brandishing charge), use of the gun at trial was “harmless error” as to the robbery charge (18 U.S.C. § 1951(a)).  That’s because there was an abundance of other evidence (particularly with his co-defendant Beatty testifying against him) that defendant did in fact commit the robbery.  So as to the robbery, defendant’s conviction was affirmed.

It’s hard to criticize the officers who—in the heat of the moment—confiscated a car key that is in plain sight, what with the abundance of case law talking about the lack of an expectation of privacy and the admissibility into evidence of anything observed in plain sight.  So I can see why the officers didn’t think they did anything wrong.  But had they had time to think about it, they might have realized that the observation in plain sight of something that is otherwise legal to possess (i.e., the key) is a different issue altogether than the right to “seize” that item and then to use it as a tool to locate a person’s vehicle when neither the item seized (the key) nor the item later searched for (the car) has any connection to the reasons for a detention.  That’s why this case is important.  Officers need to think about the initial justification for the detention and limit any continuing detention and investigation to seeking out evidence relevant to that issue.  The only exception is when during that lawful detention, a new reasonable suspicion develops concerning some other possible crime, thus justifying a further detention to investigate the newly developed suspicion. Applying this rule to the case at issue here:  The officers initially detained defendant for a possible trespass violation, it apparently being illegal to trespass on the grounds of the Nickerson Gardens housing complex (a potential issue that was not discussed).  The officers were legally bound to limit their investigation to that possible trespass charge, being allowed to continue the detention only as long as it reasonably took to resolve that issue.  But they instead wandered off into a side investigation of what might be found in a car defendant may have had with him without any reason to believe that (1) such a car existed, and if so, (2) that it might contain any evidence of a criminal violation.  If there was any connection between such a vehicle or its contents and defendant’s possible trespassing violation, the officers were unable to satisfy the court that such a connection existed.  Absent such evidence, the gun was properly suppressed as fruit of the poisonous tree.