UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION. Plaintiff, CR. NO MOTION TO SUPPRESS ARGUMENT

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1 2:15-cr NGE-MKM Doc # 27 Filed 07/31/15 Pg 1 of 15 Pg ID 177 UNITED STATES OF AMERICA, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION v. Plaintiff, CR. NO HONORABLE NANCY G. EDMUNDS DWIGHT ROBINSON, Defendant. / MOTION TO SUPPRESS ARGUMENT A. Mr. Robinson s Fourth Amendment Rights Were Violated When Officer Steen Stopped and Searched Him Based on an Unreasonable Interpretation of (b). The Fourth Amendment protects individuals against unreasonable searches and seizures. U.S. Const. Amend. IV. When an officer conducts a warrantless search based on an unreasonable mistake of law, that search is unconstitutional. Heien v. North Carolina, U.S., 135 S. Ct. 530, (2014). The Fourth Amendment tolerates only reasonable mistakes, and an officer s actions are not protected by sloppy study of the laws he is duty-bound to enforce. Id. The reasonableness of the officer s mistake is an objective inquiry, and his subjective understanding of the law is irrelevant. Id. at

2 2:15-cr NGE-MKM Doc # 27 Filed 07/31/15 Pg 2 of 15 Pg ID 178 In Heien, the Supreme Court held that an officer made a reasonable mistake when he interpreted a state statute to require two working brake lights when in fact it required only one. Id. at 540. This interpretation turned on the statute s use of the singular form of lamp, but the Court concluded the officer s mistake was reasonable since a nearby code provision required all rear lamps to be functional. Id. at 535. Justices Kagan and Ginsberg concurred, emphasizing that reasonableness requires the statute to be genuinely ambiguous and require hard interpretive work. Heien, 135 S.Ct. at 541 (Kagan, J., concurring). Additionally, an inquiry into objective reasonableness under Heien is more strict than if the court were deciding whether the officer is entitled to qualified immunity. Heien, 125 S.Ct. at 539. In United States v. Sanders, a district court held that construction of a nearly-identical statute in the Ninth Circuit was sufficient to make an officer s interpretation in Nevada objectively unreasonable according to Heien. United States v. Sanders, F.Supp. 3d, No. 2:14-cr GMN- PAL, 2015 WL (D. Nev. March 27, 2015). Officer Steen s conclusion that Detroit Code 1964, Art. XII, (b) criminalizes every instance of crossing outside of a crosswalk in the City of Detroit is objectively unreasonable. The ordinance reads in full: 2

3 2:15-cr NGE-MKM Doc # 27 Filed 07/31/15 Pg 3 of 15 Pg ID 179 It shall be unlawful for a pedestrian, while crossing the street at a point other than a crosswalk to step suddenly, run or jump into the path of a moving motor vehicle when such motor vehicle is so close as to constitute a hazard; provided, that this subsection shall not be construed to relieve the operator of a motor vehicle of his responsibilities as defined in section Officer Steen testified that he interprets this ordinance to mean that it is illegal for an individual to cross the street outside of a crosswalk under any circumstances. He also testified that he always stops individuals that he sees cross outside a crosswalk to inform them that what they are doing is illegal and dangerous, and he issues citations for entering roadway not in crosswalk when he deems it necessary (b) does not require hard interpretive work to conclude that Officer Steen is incorrect. Unlike Heien, where the statute s interpretation was not intuitive and appeared to contradict other sections of the code, Detroit s ordinance states its meaning on its face. The text clearly limits the ordinance s scope to make only certain acts unlawful: to step suddenly, run or jump into the path of a moving motor vehicle, with the further limitation that even this behavior is only unlawful when the vehicle is so close as to constitute a hazard (b) (emphasis added). While crossing outside of a crosswalk is an element of the violation, the ordinance s language makes it clear that this conduct alone is lawful unless there are additional, hazardous circumstances. In contrast, an ordinance in the Virgin Islands makes crossing outside a crosswalk in itself a violation: No pedestrian 3

4 2:15-cr NGE-MKM Doc # 27 Filed 07/31/15 Pg 4 of 15 Pg ID 180 shall cross a street other than at a marked crosswalk or at any crosswalk at an intersection except as directed by sign or order of a police officer. V.I. Code Ann. tit. 23, 420 (2014). Although Detroit s ordinance has not previously been construed by Michigan state courts, almost identical ordinances have been construed in other jurisdictions. The Kentucky Supreme Court has determined that an ordinance stating that No pedestrian shall suddenly leave a curb or other place of safety and suddenly walk or run into the path of a vehicle which is so close as to constitute an immediate hazard does not render crossing a roadway outside of a marked or unmarked crosswalk... per se illegal. Louisville/Jefferson Cty. Metro Gov t v. TDC Grp., LLC, 283 S.W.3d 657, 663 (Ky. 2009). Whether this Court considers (b) on its face, compared to the nearly-identical Kentucky statute, or contrasted against the Virgin Islands statute, it is clear that no genuine ambiguity exists in this ordinance. Indeed, the only explanation for Officer Steen s interpretation of (b) is a careless, subjective reading of the ordinance circumstances that Heien explicitly states cannot support a reasonable mistake of law. This Court should find that Officer Steen s unreasonable mistake of law violated Mr. Robinson s Fourth 4

5 2:15-cr NGE-MKM Doc # 27 Filed 07/31/15 Pg 5 of 15 Pg ID 181 Amendment rights. B. Officer Steen s Arrest and Search of Mr. Robinson Are Not Protected by the Plain View Doctrine Because They Derive From an Unlawful Encounter and the Evidence s Incriminating Nature Was Not Immediately Apparent. The plain view doctrine protects a seizure when the officer had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971). A prior justification constitutes a valid warrant or a recognized exception to the warrant requirement. Id. at Officer didn t perceive the marijuana until after he stopped Robinson, Robinson dropped the bag, and officer approached on foot. Officer s presence was due only to an unlawful stop and seizure of Robinson s person, so no plain view protection. - Not immediately apparent, since officers didn t know if Robinson had a medical marijuana license when they arrested him for possession. United States v. Szymkowiak, 727 F.2d 95 (6th Cir. 1984). C. All Evidence Seized from Mr. Robinson As a Result of Officer Steen s Fourth Amendment Violations Should be Suppressed. 5

6 2:15-cr NGE-MKM Doc # 27 Filed 07/31/15 Pg 6 of 15 Pg ID Physical evidence of drugs and gun should be suppressed as the fruit of an unlawful search and seizure. Evidence that is seized in violation of the Fourth Amendment is subject to the exclusionary rule. Weeks v. United States, 232 U.S. 383, 398 (1914). The underlying purpose of the exclusionary rule is to deter unlawful police conduct. Davis v. United States, 131 S.Ct. 2419, 2422 (2011). Whether evidence should be excluded is determined by balancing the deterrent benefits against the cost of suppression. Davis, 131 S.Ct. at When police misconduct is part of a pattern or course of behavior, or when the police act objectively unreasonably, the benefits of exclusion tend to outweigh the costs. See id. Exclusion is the appropriate remedy when an officer makes an objectively unreasonable mistake of law according to Heien. See United States v. Sanders, supra at *11 (granting motion to suppress); United States v. Black, F.3d, No CR-W-BP-01, 2015 WL (W.D. Mo. April 22, 2015) (granting motion to suppress based on officer s objectively unreasonable belief ordinance was violated). The Government has argued, however, that this case falls within the good faith exception to the exclusionary rule. The Supreme Court held in United States v. Leon that evidence should not be excluded when an officer acts in objective good faith, in spite of an unconstitutional search or seizure. 468 U.S. 897, 922 6

7 2:15-cr NGE-MKM Doc # 27 Filed 07/31/15 Pg 7 of 15 Pg ID 183 (1984). This good faith rule has been applied in four circumstances: (1) reasonable and good faith reliance on a warrant subsequently declared invalid, see id. at 922, (2) a warrantless search based on a statute that is later declared unconstitutional, see Illinois v. Krull, 480 U.S. 340, (1987), (3) good faith reliance on mistaken information indicating an outstanding warrant exists, United States v. Herring, 129 S.Ct. 695, (2009), and (4) objectively reasonable reliance on binding circuit precedent that is later found unconstitutional, Davis, 131 S.Ct. at The Government argues that in United States v. Master, the Sixth Circuit redefined the exclusionary rule to require showing deliberate, reckless, or grossly negligent conduct to justify any suppression. 614 F.3d 236, 242 (6th Cir. 2010), citing Herring, 129 S.Ct. at 700. This reading stretches Master and Herring beyond their legal contexts and disregards Sixth Circuit precedent finding that Herring is confined to violations that fall within the good faith exception. Both Master and Herring involved officers who reasonably relied on facially valid warrants that were later deemed defective. 614 F.3d at 241; 129 S.Ct. at United States v. Godfrey, the additional Sixth Circuit case the Government cites, also involved an officer s good faith mistake regarding a warrant: in that case, an officer mistyped the defendant s license plate number before pulling him over and 7

8 2:15-cr NGE-MKM Doc # 27 Filed 07/31/15 Pg 8 of 15 Pg ID 184 failed to thoroughly confirm the details of the outstanding, otherwise valid, warrant that came up. 427 Fed. Appx, 409, 411 (6th Cir. 2011). As such, all of these cases involved circumstances that fell squarely within the Supreme Court s definition of good faith reliance, where a police officer believes the external authority he relied upon is lawful. Herring does not apply outside of the good faith exception, however. This conclusion is supported by United States v. Lazar, in which the Sixth Circuit determined that Herring did not protect evidence seized pursuant to a facially invalid warrant. 604 F.3d 230, 238 (6th Cir. 2010). In Lazar, the court held that since the warrant fell outside of Leon s good faith protection, [t]his case does not involve the sort of police error or misconduct present in Herring. Id. at 237. Similarly, the Sixth Circuit in United States v. Washington distinguished Herring where an officer unreasonably concluded that a warrantless search was justified, holding that no exception to the exclusionary rule covers the case where the police officer s own conclusion was unreasonable. 573 F.3d 279, 289 (6th Cir. 2009). See also United States v. Stokely, 733 F.Supp.2d 868, 906 (E.D. Tenn. 2010) (holding that exclusion is proper and Herring does not apply where officers made an unreasonable determination based on their own assessment of the circumstances). 8

9 2:15-cr NGE-MKM Doc # 27 Filed 07/31/15 Pg 9 of 15 Pg ID 185 In this case, Officer Steen s behavior falls outside of the good faith exception s protection. His stop of Mr. Robinson did not fall within any of the circumstances in which good faith reliance could arise: he was not acting pursuant to a warrant, he did not rely on a statute that was later declared unconstitutional, nor did he rely on binding circuit court precedent. Rather, Officer Steen relied entirely on his own erroneous assessment that Mr. Robinson had violated (b). As in Stokely and Washington, this case is an instance in which the officer s internal, unreasonable conclusion is the heart of the Fourth Amendment violation: suppression is necessary to ensure these circumstances are not repeated. Additionally, this case is one in which suppression is uniquely suited to deter future violations. Officer Steen testified that he believes it is his duty to stop citizens when they cross outside of a crosswalk and that he always stops individuals to inform them that crossing outside of a crosswalk is illegal. This means that not only did Officer Steen conducts an unlawful stop in Mr. Robinson s case, but that he routinely conducts unlawful stops when he is on patrol. And, as evidenced by the citation Mr. Robinson received and Officer Steen s testimony, Officer Steen issues citations for entering in roadway not at crosswalk an act which in and of itself is perfectly legal. Suppression in this case will not only address the unlawful stop at issue here, but will also deter Officer Steen and other 9

10 2:15-cr NGE-MKM Doc # 27 Filed 07/31/15 Pg 10 of 15 Pg ID 186 police officers from conducting a myriad of future unlawful stops, from issuing invalid citations, and from misinforming the public about (b). 2. Mr. Robinson s statements made at the Tenth Precinct were tainted by his illegal stop and arrest, and should be suppressed as fruit of the poisonous tree. In addition to the gun and drugs found on his person, this Court should suppress the statements Mr. Robinson made during a custodial interrogation at the police station after his arrest. Secondary evidence that is tainted by an initial illegal arrest is excludable as a fruit of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 487 (1963). Miranda warnings by themselves cannot dispel the taint of an unlawful arrest. Brown v. Illinois, 422 U.S. 590, (1975); Dunaway v. New York, 442 U.S. 200, (1979). Instead, the court must consider the circumstances of the confession, including the temporal proximity of the unlawful arrest, the presence of intervening circumstances, and purpose and flagrancy of official misconduct. Brown, 422 U.S. at Temporal Proximity: The passage of time between the illegal act and the defendant s confession contributes to breaking the causal chain that ties them. Brown, 422 U.S. at 603. In Brown, the Court found that a break of less than two hours was insufficient, emphasizing that the confession in Wong Sun came after the defendant voluntarily returned to the police station several days later. Id. at

11 2:15-cr NGE-MKM Doc # 27 Filed 07/31/15 Pg 11 of 15 Pg ID 187 n.11. In Taylor v. Alabama, the Supreme Court held that a break of six hours was insufficient to dispel the taint, and noted that it was significant that the defendant was in police custody and unrepresented by counsel during those six hours. 457 U.S. 687, 691 (1982). The Sixth Circuit has held that an hour is not long enough for a defendant to consent to a search of his home, and that six hours was insufficient where an interrogation began shortly after arrest and continued until the defendant s confession. United States v. Buchanan, 904 F.2d 349, 356 (6th Cir. 1990); United States v. Shaw, 464 F.3d 615, 628 (6th Cir. 2006). Temporal proximity weighs in favor of finding that Mr. Robinson s confession was a fruit of his illegal arrest in this case. Mr. Robinson was stopped and arrested around 11:40 a.m.; Officer Steen testified that he promptly arrested Mr. Robinson and transported him to the 10th Precinct. Mr. Robinson s constitutional rights certificate indicates that he was Mirandized at 12:15 p.m., less than half an hour after his arrest. [Gov t Br. Exht. 2, R.24-3, Pg ID# ]. The police statement indicates that Mr. Robinson signed an initial statement at 12:37 p.m. and an identical copy of that statement at 12:46 p.m. [Id. at 112, 111]. The entire process was complete within barely an hour of Mr. Robinson s arrest, during which time he was handcuffed, searched, transported in a police vehicle to the station, and subjected to custodial interrogation. These facts clearly indicate that 11

12 2:15-cr NGE-MKM Doc # 27 Filed 07/31/15 Pg 12 of 15 Pg ID 188 there was insufficient time or opportunity to distance Mr. Robinson s confession from the taint of his illegal arrest. Intervening Circumstances: Intervening circumstances that sever the causal connection between illegal act and confession have in past cases included discussions with counsel, several days and a voluntary return for interrogation, or subsequent conviction on unrelated charges. See United States v. Shaw, 464 F.3d 615, 630 (6th Cir. 2006) (internal citations omitted). The Sixth Circuit has rejected, however, the proposition that discovery of additional evidence after an illegal arrest is in itself sufficient to constitute an intervening circumstance. Id. at 629. In this case, there was no intervening circumstance to dispel the initial illegality of Mr. Robinson s arrest. Mr. Robinson was swiftly transported to the police station and interrogated, all the while interacting only with police officers. He was never released from custody or given an opportunity to voluntarily depart or visit the precinct of his own free will. While additional evidence was found at the precinct, that search was a continuation of the search officers began when Mr. Robinson was arrested and cannot be considered an intervening event. Police Misconduct: Misconduct requires only a quality of purposefulness to satisfy Brown; threats or abuse are not necessary to perpetuate the initial illegal taint in a confession. Dunaway, 442 U.S. at 218. In both Dunaway and Brown, the 12

13 2:15-cr NGE-MKM Doc # 27 Filed 07/31/15 Pg 13 of 15 Pg ID 189 Court found that the police acted in the hope that something might turn up. Id; see also Shaw, 464 F.3d at In this case, two police officers on a routine patrol through a residential neighborhood watched a man four houses away walk across the street. Officer Steen testified that there were no other cars in sight and that his own vehicle was traveling slowly because he was on patrol. Mr. Robinson made the same, innocent judgment-call that many others make every single day: to cross from the curb in front of him instead of walking down the street to a crosswalk on a quiet day with no apparent danger. But Officer Steen felt this behavior was so illegal and dangerous that it was necessary for him to drive up to Mr. Robinson in a marked police car, call stop, police!, get out of his vehicle, and educate Mr. Robinson face-to-face about the perils of crossing outside of a crosswalk. Although Officer Steen protested at the evidentiary hearing that his sole concern was for Mr. Robinson s safety and to enforce (b), and that it did not occur to him that Mr. Robinson might have drugs, the officer s response to Mr. Robinson s innocuous behavior was well out of proportion. Additionally, Officer Steen testified that he began arresting Mr. Robinson the moment he saw what he believed was marijuana (which we dispute) in the grocery bags, without asking if Mr. Robinson had a medical marijuana license or 13

14 2:15-cr NGE-MKM Doc # 27 Filed 07/31/15 Pg 14 of 15 Pg ID 190 even confirming what the substance was. Even if Officer Steen reasonably believed that Mr. Robinson violated (b), he should have realized as an experienced patrol officer of more than twenty years that he was arresting Mr. Robinson without probable cause. Indeed, the officers were aware that Mr. Robinson was not committing a crime if he had a license, and did finally ask this question after they brought him back to the precinct for a custodial interrogation. Viewed as a whole, Officer Steen s course of conduct and the swift progression of this encounter from an unlawful stop for crossing the street to an unlawful arrest lacking probable cause satisfies Brown s misconduct consideration. Officer Steen s behavior indicates that his encounter and subsequent arrest of Mr. Robinson were purposefully conducted in the hope that they would uncover evidence of wrongdoing. This Court should find that Mr. Robinson s statements were tainted by his illegal stop and arrest, and suppress these statements as fruit of the poisonous tree. 14

15 2:15-cr NGE-MKM Doc # 27 Filed 07/31/15 Pg 15 of 15 Pg ID 191 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION UNITED STATES OF AMERICA, v. Plaintiff, CR. NO HON. NANCY G. EDMUNDS DWIGHT ROBINSON, Defendant. / CERTIFICATE OF SERVICE I hereby certify that on July 30, 2015, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to the following: Andrew J. Lievense Assistant United States Attorney 211 West Fort Street, Suite 2001 Detroit, MI FEDERAL DEFENDER OFFICE LEGAL AID & DEFENDER ASSN., INC. s/ Andrew Densemo Attorney for Defendant 613 Abbott, 5 th Floor Detroit, MI Phone: (313) andrew_densemo@fd.org P 37583