Evidence From Search May Be Used Even If Search Was Illegal, Eleventh Rules – U.S. v. Bush

September 11, 2013 by David S. Seltzer

As a rule, if a search is ruled unconstitutional, the results of that search—whatever the police found—must not be used in court because it is “the fruit of a poisoned tree.” This helps defendants on occasion, because in order to penalize officers who violate defendants’ civil rights, courts are willing to throw out even the key evidence against those defendants. But in United States v. Bush, the Eleventh U.S. Circuit Court of Appeals declined to suppress evidence against Dennis Calvin Bush, Jr., saying that although the searches that produced it were violations of the Fourth Amendment, they fell under an exclusion. Bush was already a felon when he was found in possession of a firearm and possession of cocaine allegedly intended for sale. The Eleventh affirmed his conviction for those crimes, plus possession of a firearm in the furtherance of a drug crime and conspiracy to possess cocaine.

A sheriff’s office obtained a warrant to search the home of Kendra Stadmire in Panama City. Stadmire had been observed before to rent cars for trips between Panama City and “source cities” like Atlanta. Bush was one of Stadmire’s drivers for these rented cars. In April of 2011, a K-9 unit from the sheriff’s office sniffed the air around the house and indicated drugs nearby. That month, officers also placed a tracking device on Bush’s rental car, tracking him on alleged drug-buying runs. The next month, officers went through the home’s trash and found drugs and drug residue. On that basis, they got a search warrant. Inside the house, they found substantial marijuana, a small amount of cocaine, paraphernalia consistent with drug sales, two handguns and lots of cash. Bush moved to suppress the evidence from the tracking device, but the district court denied the motion, saying investigators relied in good faith on precedent from before a U.S. Supreme Court ruling forbidding warrantless tracking, the dog sniff was lawful, and enough other evidence supported the warrant to preserve the evidence.

Bush appealed those rulings to the Eleventh Circuit, but that court found no reason to suppress the evidence. Even if the dog sniff or the tracking device were unconstitutional, the court said, the independent source doctrine would permit admission of the evidence anyway. The court analyzed the search warrant and concluded that the it would likely have been granted even without the allegedly unconstitutional searches. Without the GPS device, the court said, officers would still have been able to cite the mileage on the rental cars, Bush’s history of drug offenses, activity at the house consistent with drug transactions, visitors with known drug records, and the trash pull. And nothing in the record shows that officers requested the warrant mainly because of the allegedly illegal searches, the court said. Indeed, one officer testified that he intentionally held back on a warrant because of concerns about the dog sniff, and the GPS device far from the most incriminating evidence, the Eleventh said. Thus, there was no need to bar admission of the fruits of the search.

Because drug crimes are frequently possession crimes—that is, just being caught with something is adequate to support a serious criminal charge—it’s common to see challenges to the legality of a search. In fact, both of the Supreme Court cases on which this appeal is based happened in drug cases; the dog sniff case was part of a drug case here in Miami-Dade County. While these restrictions may not be popular with law enforcement, they’re absolutely vital to protect the privacy of ordinary Americans. After all, if law enforcement is permitted to violate the Fourth Amendment without consequences, what would stop them from doing it routinely, just in case they happen to catch someone in a crime? That’s why I challenge potentially illegal searches any time my clients bring one to my attention.

From offices in south Florida, Seltzer Law, P.A., represents clients across Florida who are charged with serious crimes. We know police don’t stop making arrests just because business hours are over, so we answer our phones 24 hours a day and seven days a week. For a free consultation, send us a message or call 1-888-THE-DEFENSE (1-888-843-3333).

Similar blog posts:

One-Week Delay Between Suspicious Behavior and Warrantless Search Was Too Long – U.S. v. Valerio

Police May Not Use Drug Sniffing Dogs Outside Front Doors, Supreme Court Rules – Florida v. Jardines

Eleventh Circuit Remands Marijuana Case for Reconsideration of Evidence Suppression – U.S. v. Noriega