PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

No. 96-4638

PATRICK ELIE a/k/a Patrick Gerald

Elie, a/k/a Marie Patrick Elie,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Chief District Judge.

(CR-96-203)

Argued: January 28, 1997

Decided: April 24, 1997

Before HALL, LUTTIG, and WILLIAMS,

Circuit Judges.

_________________________________________________________________

Reversed by published opinion. Judge Williams wrote the majority

opinion, in which Judge Luttig joined. Judge Hall wrote a

dissenting

opinion.

_________________________________________________________________

COUNSEL

ARGUED: Marcus John Davis, Assistant United States Attorney,

Alexandria, Virginia, for Appellant. Blair Gerard Brown, ZUCKERMAN, SPAEDER, GOLDSTEIN, TAYLOR & KOLKER, L.L.P.,

Washington, D.C., for Appellee. ON BRIEF: Helen F. Fahey, United
States Attorney, Vincent L. Gambale, Assistant United States Attorney, Alexandria, Virginia, for Appellant. Jonathan H. Levy, ZUCKERMAN, SPAEDER, GOLDSTEIN, TAYLOR & KOLKER, L.L.P.,

Washington, D.C., for Appellee.

_________________________________________________________________

OPINION

WILLIAMS, Circuit Judge:

Patrick Elie was indicted by a federal grand jury on two counts of

making a false statement to a firearms dealer, see 18 U.S.C.A.

§§ 922(a)(6), 924(a)(2) (West Supp. 1997), and on one count of

impersonating an accredited diplomat, see 18 U.S.C.A. § 915 (West

Supp. 1997). Shortly thereafter, Elie moved to suppress, among

other

things, the firearms and firearms receipts found in his hotel

rooms, the

firearms transaction records obtained from Gilbert Small Arms (the

firearms dealer), and the testimony of the individual at Gilbert

Small

Arms who sold Elie the firearms. The district court, in a series of

orders, suppressed the evidence as the "tainted fruit" of a Miranda

violation. The district court also ruled that the warned and

voluntary

statements Elie made at the Arlington County Detention Center, in

which he identified the firearms seized from his hotel rooms and

the

firearms dealer that sold him the weapons, did not constitute an

"independent source" for admitting any of the challenged evidence. Finding that the "fruit of the poisonous tree" analysis is inapplicable

in

cases involving mere departures from Miranda, we reverse.

I.

Based on a complaint that Patrick Elie, a former cabinet member

in the United States-supported Haitian government led by JeanBaptist Aristide, had assaulted Ms. Raymonde Preval-Belot, First

Secretary of the Haitian Embassy in Washington, D.C. and sister of

the current Haitian President, a warrant was issued for his arrest.

The

affidavit in support of the arrest warrant stated that Elie

possessed

firearms and that he also had threatened to harm, among other

people,

the Haitian Ambassador to the United States.

2
On April 23, 1996, several Fairfax County police officers and two

State Department Diplomatic Security Service agents (the officers)

went to the Hunter Hotel in Springfield, Virginia to arrest Elie,

who

was "considered armed and dangerous." Two officers, with guns

drawn, confronted Elie in the hotel restaurant. Elie was ordered to

the

ground, handcuffed, and searched for weapons.1 After being helped

to

his feet, and prior to any police questioning, Elie stated that he

was

a diplomat.

Elie was then escorted out of the dining area and into the hotel

lobby, where he was asked, prior to receiving any Miranda warnings,

whether he had any weapons in his hotel rooms. After responding in

the affirmative, Elie was told that he had the option of having the

weapons and his other possessions secured by either hotel management or the police. Elie elected to have the officers secure and

inventory his property.

Elie accompanied the officers to his rooms. In addition to observing the inventory search from just outside the rooms, Elie

reportedly

"spoke non-stop" during the encounter. Among other things, he

(1)told the officers where they could find certain items, including

weapons; (2)revoked his consent to search a container that

contained

a number of documents; and (3)asked the officers why he had not

been given his Miranda warnings.2

As a result of the search, the officers secured a Colt .223 semiautomatic assault rifle with a round in the chamber and six

magazines

loaded with armor piercing ammunition; a Remington .22 caliber bolt

action rifle equipped with a telescopic sight; a loaded Steyr 9mm

semi-automatic pistol and 264 9mm rounds, including 180 rounds of

hollow-point ammunition; night vision equipment; two knives;

approximately $4,800 in cash; purchase receipts for three

additional

firearms; and documents relating to, among other things, the

activities

of the Haitian Ambassador.

_________________________________________________________________

1 Although the search did not produce any weapons, the officers did

find keys to two hotel rooms.

2 Despite his inquiry, Elie was not read his Miranda rights until

after

arriving at the Arlington County Detention Center for processing on

the

assault charges.
3
After Elie's property was secured, he was taken to the Arlington

Detention Center for processing on the assault charges. Arlington

Detective Lee Ann Petta gave Elie a routine personal history form

to

complete. Elie wrote his name on the front of the form and,

unsolicited, provided an account of his arrest on the back of the form.

With

a tape recorder running, Elie was given his Miranda warnings,

signed

an advice-of-rights form, and was asked if he would like to answer

questions about the assault charges.

In response to Detective Petta's questions, Elie stated that he

wished to ask some questions of his own. Elie, completely unsolicited, then proceeded to tell Detective Petta that he was in the

United

States conducting an undercover investigation of the Haitian Ambassador. In particular, he was investigating allegations that the

Haitian

Ambassador had embezzled millions in state funds, provided Haitian

passports to terrorists and drug dealers, and plotted to

assassinate both

ex-president Aristide and President Preval.

Elie also told Detective Petta, without any prompting, about "the

guns." After Detective Petta asked him to what he was referring,

Elie

identified the two rifles and the handgun seized from his hotel

rooms.

Later in the interview, again without any prompting by Detective

Petta, Elie volunteered that he had purchased the firearms at

Gilbert

Small Arms.

While Elie was detained at the Arlington County Detention Center

on the assault charges, State Department Diplomatic Security

Service

agents (DSS agents) interviewed the employees of Gilbert Small

Arms and reviewed the firearms transaction records related to the

sale

of the aforementioned firearms. As a result of their investigation,

the

DSS agents believed that Elie knowingly made a false statement,

both

to the firearms dealer and on the firearms transaction records,

with

respect to facts material to the lawfulness of the sale of the

weapons.

Specifically, Elie stated that he resided at 2500 Clarendon

Boulevard,

Arlington, Virginia; a claim the DSS agents believed to be false.3 _________________________________________________________________
3 DSS agents believed Elie's claim to be false for several reasons.

First,

the firearm transaction records discovered at Gilbert Small Arms

revealed that the weapons found in Elie's hotelrooms were purchased

4
Thereafter, based on a DSS agent's affidavit that Elie made a false

statement to a firearms dealer, a federal warrant was issued for

his

arrest.

On April 29, 1996, two DSS agents arrived at the Arlington County

Detention Center to execute the federal arrest warrant. However,

before Elie was released into their custody, an official at the

Arlington

County Detention Center asked him several routine discharge questions. Of particular importance in this case, Elie stated, both

orally

and in writing, that he was a resident of "Port Au Prince."

Although DSS agents read him his Miranda warnings as they

placed him under arrest, Elie refused to sign the form

acknowledging

or waiving his rights. Notwithstanding his refusal, Elie engaged

the

DSS agents in conversation while they were en route to the location

where Elie would be processed on the firearms charges. Elie told

the

DSS agents, among other things, that there was a"cancer" in both

the

Haitian police force and the Haitian Embassy in Washington, D.C.,

that he was conducting an undercover investigation of the Haitian

Ambassador, and that he kept weapons in his hotel rooms to defend

himself in case the people whom he was investigating tried to

assassinate him.

_________________________________________________________________

between March 30, 1996 and April 17, 1996. However, after searching

the electronic indices of the Treasury Enforcement Communications

System, DSS agents determined that Elie had entered the United States

most

recently on March 26, 1996. Prior to March 26, 1996, Elie had last

entered the United States on November 9, 1994 and departed on

November 22, 1994. Although a search of the electronic indices of the

NonImmigrant Information System of the Immigration and Naturalization

Service (INS) did not reflect Elie's entry on March 26, 1996, it

did confirm that Elie entered the United States on November 9, 1994 and

departed on November 22, 1994. Second, Ms. Raymonde Preval-Belot,

the woman Elie allegedly assaulted, lived at the address that Elie

gave

to Gilbert Small Arms. Ms. Preval-Belot confirmed that Elie did not

live

at that address. Third, the general manager of the apartment

complex
located at that address stated that Elie did not live there.

Fourth, DSS

agents obtained documentation that Elie was registered at the

Quality

Hotel when he made his first firearms purchase at Gilbert Small

Arms.

5
Elie was subsequently indicted by a federal grand jury on two

counts of making a false statement to a firearms dealer, see 18

U.S.C.A. §§ 922(a)(6), 924(a)(2), and on one count of impersonating

an accredited diplomat, see 18 U.S.C.A.§ 915. Thereafter, Elie

moved to suppress (1)his statement that he was a diplomat; (2)his

statement acknowledging that there were firearms in his hotel

rooms;

(3)all the tangible evidence, including the firearms and firearms

receipts, found in his hotel rooms; (4)his written statements on

the

back of the personal history form; (5)the statements he made to

Detective Petta; (6)his written statement concerning his residency;

and (7)the statements he made to the DSS agents.

After an evidentiary hearing on Elie's motion, the district court

(1)denied suppression of Elie's statement that he was a diplomat,

finding that the statement was not made in response to any police

interrogation; (2)suppressed Elie's statement that he had weapons

in

his hotel rooms, finding that the statement was made while he was

in

police custody, in response to police interrogation, and without

the

necessary Miranda warnings; (3)suppressed all the tangible evidence

found in Elie's hotel rooms, including the firearms and firearms

receipts, finding that the evidence was the "tainted fruit" of the

Miranda violation; (4)denied suppression of Elie's written statements regarding his arrest and his residency, finding that the

statements were made in response to routine booking questions and,

therefore, not given Fifth Amendment protection; and (5)denied suppression of Elie's warned statements to Detective Petta and the DSS

agents, finding that he had waived his Miranda rights.

In assessing whether Elie had voluntarily, knowingly, and intelligently waived his Miranda rights, the district court examined the

totality of the surrounding circumstances, which included the

defendant's age, education, intelligence, and familiarity with the

criminal

justice system. Specifically, the district court found that Elie

was

forty-six years old, was well educated with an advanced degree in

chemistry, spoke fluent English, and was familiar with the criminal

justice system and its consequences.

Shortly thereafter, Elie filed a motion in limine to suppress the

firearms transaction records related to the sale of the weapons found

in

his hotel rooms and the testimony of the individual at Gilbert

Small
6
Arms who sold him the weapons. Reasoning that the Government

identified Gilbert Small Arms from the firearms receipts obtained

during the unlawful search of Elie's hotel rooms, the district

court

held that any evidence obtained from Gilbert Small Arms must also

be the "tainted fruit" of the Miranda violation.

The Government, however, argued that Elie's warned and voluntary statements to Detective Petta, in which he identified the

weapons

seized from his hotel rooms and the firearms dealer that sold him

the

weapons, constituted an "independent source" for admitting the evidence obtained from Gilbert Small Arms -- the firearms transaction

records and the testimony of the individual who sold him the

firearms.

Although noting that Elie voluntarily waived his Miranda rights

before Detective Petta, the district court reasoned that that was

not

sufficient "to break the causal connection between the illegality

of the

search and seizure and [Elie's] responses to Detective Petta's

questions which unduly exploited the Fourth Amendment violation." (J.A.

at 39.) As a result, the district court concluded that Elie's

statements

to Detective Petta did not constitute an "independent source" for

admitting the evidence obtained from Gilbert Small Arms. Accordingly, the district court suppressed both the firearms transaction

reports and the testimony of the individual who sold Elie the

firearms.

This appeal followed.

II.

On appeal, the Government does not contend that the district court

erred in suppressing the statements Elie made prior to receiving

his

Miranda warnings.4 Rather, the Government argues that the district

court erred in suppressing the firearms and firearms receipts found

in

Elie's hotel rooms, the firearms transaction records obtained from

Gilbert Small Arms, and the testimony of the individual at Gilbert

Small Arms who sold Elie the firearms. The Government contends,

specifically, that the district court erred in applying the "fruit

of the

_________________________________________________________________

4 Specifically, the Government does not appeal the suppression of

Elie's statement that he had weapons in his hotel rooms.

7
poisonous tree" doctrine to the challenged evidence in this case.

For

the reasons that follow, we agree.5

In reviewing the district court's suppression rulings, the evidence

must be construed in the light most favorable to Elie. See United

States v. Han, 74 F.3d 537, 540 (4th Cir. 1996) (noting that the

evidence must be construed in the manner most favorable to the

prevailing party below). We review the district court's legal conclusions

de

novo. See United States v. McDonald, 61 F.3d 248, 254 (4th Cir.

1995). As a result, we review the district court's application of

the

"fruit of the poisonous tree" doctrine de novo.

A.

In suppression cases, the challenged evidence is usually "direct"

in

its "relationship to the prior arrest, search,[or] interrogation."

Wayne

R. LaFave & Jerald H. Israel, Criminal Procedure§ 9.3(a), at 734

(1984). Examples of this type of evidence include statements made

in

response to police questioning, such as Elie's statement that he

had

weapons in his hotel rooms, and physical evidence found as a result

of a search or arrest. If the arrest, search, or interrogation was

unlawful, the direct evidence, absent an exception to the exclusionary

rule,

must be suppressed.

In other cases, however, the challenged evidence is"derivative" in

character. See id. Examples of this type of evidence include

physical

evidence discovered as a result of a statement made in response to

police questioning, such as the firearms and firearms receipts

found

in Elie's hotel rooms, and a witness discovered as a result of

physical

_________________________________________________________________

5 In the alternative, the Government contends that the district

court

erred in finding that Elie's warned and voluntary statements to

Detective

Petta did not constitute an "independent source" for admitting both

the

firearms transaction records and the testimony of the individual at

Gilbert

Small Arms who sold Elie the firearms. Because we find that the
district

court erred in its application of the "fruit of the poisonous tree"

doctrine,

we need not, and do not, address whether the district court also

erred in

its application of the "independent source" doctrine. See Karsten

v. Kaiser Found. Health Plan, 36 F.3d 8, 11 (4th Cir. 1994) (per curiam)

(noting that alternative holdings should be avoided).

8
evidence found during a search or arrest. If the arrest, search, or

interrogation is later held to be unlawful and thus requires the

suppression

of the direct evidence, the derivative evidence must also be suppressed in certain circumstances. Specifically, derivative evidence

must be suppressed when, as Justice Frankfurter explained, it is

the

"fruit of the poisonous tree." Nardone v. United States, 308 U.S.

338,

341 (1939).

With that background, our analysis begins with the seminal case of

Wong Sun v. United States, 371 U.S. 471 (1963), in which the

Supreme Court explicitly articulated the "fruit of the poisonous

tree"

doctrine.6 According to the Wong Sun majority, derivative evidence,

such as physical evidence, a confession, or the testimony of a

witness,

is not "`fruit of the poisonous tree' simply because it would not

have

come to light but for the illegal actions of the police." Id. at

488.

Rather, derivative evidence must be suppressed as"fruit of the poisonous tree" if it was discovered by exploiting an illegal search.

See

id.; see also Oregon v. Elstad, 470 U.S. 298, 305-06 (1985) (noting

that the "fruit of the poisonous tree" doctrine is drawn from Wong

Sun, where "the Court held that evidence and witnesses discovered

as

a result of a search in violation of the Fourth Amendment must be

excluded from evidence" (emphasis added)). Consequently, if the

derivative evidence is discovered "by means sufficiently

distinguishable [from the illegality] to be purged of the primary taint," Wong

Sun

371 U.S. at 488, then it is admissible.

In Michigan v. Tucker, 417 U.S. 433 (1974), the Supreme Court

was asked to apply the "tainted fruits" doctrine to the testimony

of a

witness whose identity was discovered as the result of a statement

obtained from the defendant in violation of Miranda. In declining

to

extend the "tainted fruits" doctrine to the facts in Tucker, the

Supreme

Court noted that the unwarned questioning did not abridge the

defendant's Fifth Amendment privilege, "but departed only from the pro-

_________________________________________________________________

6 Although the doctrine traces its roots to the Supreme Court's

decision

in Silverthorne Lumber Co. v. United States, 251 U.S. 385(1920),
and the

phrase itself was coined in Nardone v. United States, 308 U.S. 338

(1939), the doctrine took on its present form in Wong Sun. See

Oregon

v. Elstad, 470 U.S. 298, 305-06 (1985) (noting that the "fruit of

the poisonous tree" doctrine is drawn from Wong Sun ).

9
phylactic standards later laid down by this court in Miranda to

safeguard that privilege." Id. at 445-46. Because the defendant's

constitutional rights were not infringed, the Court in Tucker

determined

that the "fruit of the poisonous tree" doctrine did not apply. Id.

at 445

n.19. As a result, although the direct evidence (the defendant's

unwarned statement) had to be suppressed, the derivative evidence

(the testimony of the witness discovered as a result of the

unwarned

statement) was admissible. Id. at 445-46.

When presented with another opportunity to extend the "tainted

fruits" doctrine, the Supreme Court in Elstad once again declined

the

invitation to do so. In Elstad, two officers went to the

defendant's

home with a warrant for his arrest. 470 U.S. at 300. After

executing

the warrant, the officers questioned Elstad about his role in the

burglary of a neighbor's house. As a result of the interrogation,

Elstad

confessed to his involvement in the crime. See id. at 301. The

defendant was then escorted to the police station where the officers

advised

him for the first time of his Miranda rights. After waiving his

rights,

the defendant once again confessed to the burglary. See id. Later,

the

defendant sought to suppress his second confession as the "fruit of

the

poisonous tree," arguing that it was obtained only as the result of

his

first confession that was made in violation of Miranda. See id. at

302.

The Elstad majority, however, held that the"tainted fruits"

doctrine

did not apply to the second confession for the same reasons the

doctrine did not apply in Tucker. See id. at 308. Specifically, the

Court

held that "[s]ince there was no actual infringement of the

suspect's

constitutional rights, the case was not controlled by the doctrine

expressed in Wong Sun that fruits of a constitutional violation

must

be suppressed." Id. (emphasis added). As a result, although the

direct

evidence (the defendant's first confession) had to be suppressed,
the

derivative evidence (the second confession that was obtained as a

result of the first confession) was admissible. See id. at 309.

Although the Supreme Court has not specifically rejected application of the "fruit of the poisonous tree" doctrine to physical

evidence

discovered as the result of a statement obtained in violation of

Miranda,7 _________________________________________________________________

7 Prior to writing the majority opinion in Elstad, Justice O'Connor

argued against applying the "fruits of the poisonous tree" doctrine

to

10
it is clear to us that the Court's reasoning in Tucker and Elstad

compels that result.8 Accord United States v. Gonzalez-Sandoval, 894

F.2d

_________________________________________________________________

physical evidence discovered as the result of a statement obtained

in violation of Miranda. See New York v. Quarles, 467 U.S. 649, 671 n.4

(1984) (O'Connor, J., concurring) ("Wong Sun is inapplicable in

cases

involving mere departures from Miranda. Wong Sun and its `fruit of

the

poisonous tree' analysis lead to exclusion of derivative evidence

only

where the underlying police misconduct infringes a`core'

constitutional

right."). In Quarles, a young woman told two police officers that

she had

just been raped. After describing Quarles, the victim told the

officers that

he had just entered a store located nearby and that he was carrying

a gun.

After entering the store the officers quickly spotted a man fitting

the

description of Quarles. After a short chase, Quarles was caught and

searched. Because he was wearing an empty shoulder holster, the

arresting officer asked Quarles, prior to reading him his Miranda

warnings,

where the gun was. See id. at 651-52. Quarles nodded in the

direction of

some empty cartons and stated, "the gun is over there." Id. at 652.

The

majority held that the state court had erred in suppressing

Quarles's

statement and the gun. According to the Court, a statement made

without

the necessary Miranda warnings is admissible if obtained under

emergency circumstances. See id. at 655-56. Justice O'Connor, however,

believed that the defendant's statement concerning the location of

the

weapon should have been suppressed, but that the actual weapon

should

have been admitted. See id. at 660 (noting that "nothing in Miranda

or

the privilege itself requires exclusion of nontestimonial evidence

derived

from informal custodial interrogation").

8 In applying the "fruit of the poisonous tree" doctrine to the

facts in

this case, the district court cited for support this Court's
decision in

United States v. Mobley, 40 F.3d 688 (4th Cir. 1994), cert. denied, 115

S. Ct. 2005 (1995). In Mobley, FBI special agents arrived at

Mobley's

apartment with arrest and search warrants. Prior to executing the

search

warrant, Mobley was asked, after he had invoked his right to speak

to an

attorney, whether he had any weapons in his apartment. After

stating that

there was a weapon in his bedroom closet, Mobley led the officers

to it.

See id. at 690-91. Although agreeing that Mobley's answer to the

police's questioning regarding the presence of a gun should have

been

suppressed, the Court held that the gun was admissible because

discovery of it was inevitable. See id. at 693 (noting that the police

had a search

warrant for Mobley's apartment). In addition to so holding, the

Mobley

Court mused that absent the search warrant, the gun obtained as a

result

of the Miranda violation might be suppressed as "fruit of the

poisonous

11
1043, 1048 (9th Cir. 1990) (finding that the "tainted fruits"

doctrine

does not apply to physical evidence obtained as a result of a

Miranda

violation); see also Wayne R. LaFave & Jerald H. Israel, Criminal

Procedure § 9.5(b), at 201 (Supp. 1991) (noting that " Elstad only

rejected application of the fruits doctrine as applied to a

subsequent

confession" and stating that "there is much in the Court's opinion

that

suggests that the fruits doctrine should also be inapplicable to

physical evidence acquired through a Miranda-violative confession"). The

holdings in Tucker and Elstad could not be any clearer: the

"tainted

fruits" analysis applies only when a defendant's constitutional

rights

have been infringed. See, e.g., Elstad at 305 (noting that the

"`fruit of

the poisonous tree' [doctrine] assumes the existence of a constitutional violation"); id. at 308 (noting that "[s]ince there was no

actual

infringement of the suspect's constitutional rights, the case was

not

controlled by the doctrine expressed in Wong Sun "); id. (noting

under

the Wong Sun doctrine "that fruits of a constitutional violation

must

be suppressed"). It is well established that the failure to deliver

Miranda warnings is not itself a constitutional violation.9 As a

result,

_________________________________________________________________

tree." Id. (citing Wong Sun v. United States, 371 U.S. 471 (1963)).

However, the "tainted fruit" discussion in Mobley was neither

necessary for

the Court's actual holding nor asserted as a correct statement of

the law

and can be best described as dicta. See Bettius & Sanderson, P.C.

v. Nat'l

Union Fire Ins. Co., 839 F.2d 1009, 1019 n.3 (4th Cir. 1988)

(Murnaghan, J., concurring in part and dissenting in part) (stating that

"[t]o reach

out and decide what need not be decided is frequently denigrated as

dictum"). As a result, the district court was not bound by Mobley in

this

case. See U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 115

S. Ct. 386, 391 (1994) (observing that a court may refuse to follow

dicta

contained in a prior decision).

9 "The prophylactic Miranda warnings . . . are `not themselves
rights

protected by the Constitution.'" New York v. Quarles, 467 U.S. 649,

654

(1984) (quoting Michigan v. Tucker, 417 U.S. 433, 444 (1974)); see

also

Oregon v. Elstad, 470 U.S. 298, 306 (1985) (noting that the Miranda

exclusionary rule "may be triggered even in the absence of a Fifth

Amendment violation"); Edwards v. Arizona, 451 U.S. 477, 492 (1981)

(Powell, J., concurring) (noting that the Court in Miranda "imposed

a

general prophylactic rule that is not manifestly required by

anything in

the text of the Constitution"); Miranda v. Arizona, 384 U.S. 436,

467

(1966) (disclaiming any intent to create a "Constitutional

straightjacket").

12
we hold that Wong Sun and its "fruit of the poisonous tree"

analysis

is inapplicable in cases involving mere departures from Miranda. Accordingly, derivative evidence obtained as a result of an

unwarned

statement that was voluntary under the Fifth Amendment is never

"fruit of the poisonous tree." See id. at 309; see also Correll v.

Thompson, 63 F.3d 1279, 1290 (4th Cir. 1995) (noting that evidence

obtained in violation of Miranda is not necessarily tainted), cert. denied, 116 S. Ct. 688 (1996); United States v. Crowder, 62 F.3d

782,

786-88 (6th Cir. 1995) (noting that the "fruit of the poisonous

tree"

doctrine does not apply to evidence obtained as a result of an

unwarned statement if the statement was voluntary under the Fifth

Amendment), cert. denied, 116 S. Ct. 731 (1996); United States v.

McCurdy, 40 F.3d 1111, 1116-117 (10th Cir. 1994) (same).

B.

In light of our conclusion that a Miranda violation cannot be a

"poisonous tree," whether the challenged evidence must be suppressed as "tainted fruit" turns on whether Elie's statement that

he had

weapons in his hotel rooms was involuntary under the Fifth Amendment. The Fifth Amendment guarantees that "[n]o person... shall

be

compelled in any criminal case to be a witness against himself . .

.

without due process of law." As a result, a statement is

involuntary

under the Fifth Amendment only if it is "involuntary" within the

meaning of the Due Process Clause. See Elstad , 470 U.S. at 304

(citing Haynes v. Washington, 373 U.S. 503 (1963)); Chambers v.

Florida, 309 U.S. 227 (1940)). In Colorado v. Connelly, 479 U.S.

157

(1986), the Supreme Court held that "coercive police activity is a

necessary predicate to the finding that a [statement] is not

`voluntary'

within the meaning of the Due Process Clause." Id. at 167. The

question before us then is whether Elie's statement was the result of

coercive police conduct or activity. That question can be answered only

_________________________________________________________________

As a result, errors made by law enforcement officers in

administering the

prophylactic Miranda procedures are treated differently from errors

that

violate a constitutional right like the Fourth or Fifth Amendment.

See
Elstad 470 U.S. at 306 (noting that the Court"explained in Quarles

and

Tucker, [that] a procedural Miranda violation differs in

significant

respects from violations of the Fourth Amendment").

13
by reviewing the circumstances under which the statement was made.

See Haynes, 373 U.S. at 513-14 (noting that we must review the

totality of the circumstances surrounding each statement).

After thoroughly reviewing the circumstance under which Elie

stated that he had weapons in his hotel rooms, we can find no evidence that the officers used any technique or method that would

offend due process. The officers did not harm or threaten to harm

Elie

if he did not answer their questions. See, e.g. , Beecher v.

Alabama,

389 U.S. 35, 36 (1967) (statement obtained after police held a gun

to

suspect's head); Payne v. Arkansas, 356 U.S. 560, 564-65 (1958)

(statement obtained after police threatened to turn suspect over to

an

angry mob); Brown v. Mississippi, 297 U.S. 278, 281-82 (1936)

(statement obtained after police whipped suspect). The officers did

not deprive Elie of anything. See, e.g., Malinski v. New York, 324

U.S. 401, 403, 406-07 (1945) (statement obtained after forcing suspect to remain naked); Reck v. Pate, 367 U.S. 433, 441 (1961)

(statement obtained after depriving suspect of adequate food, sleep, and

contact with family); Brooks v. Florida, 389 U.S. 413, 414-15

(1967)

(statement obtained after depriving suspect of food and keeping

suspect naked in a small cell). The officers did not subject Elie to

a

lengthy period of interrogation or isolation. See, e.g., Ashcraft

v.

Tennessee, 322 U.S. 143, 154 (1944) (statement obtained after

interrogating suspect virtually nonstop for 36 hours); Davis v. North

Carolina, 384 U.S. 737, 52 (1966) (statement obtained after

isolating

suspect for several weeks). Nor did the officers try to deceive

Elie.

See, e.g., Spano v. New York, 360 U.S. 315, 323 (1959) (statement

obtained after suspect erroneously told that a friend, who had

three

children and a pregnant wife, would lose his job); Leyra v. Denno, 347 U.S. 556, 559-61 (1954) (statement obtained after hours with

psychiatrist trained in hypnosis, although suspect erroneously told

that doctor was a general practitioner). In short, we cannot find

the

kind of coercive police conduct that is necessary to render Elie's

statement involuntary under the Due Process Clause.

Elie contends that his unwarned statements at the hotel, which

would include his statement concerning the location of the weapons,

were involuntary because they were obtained immediately after he
was arrested at gunpoint and placed in handcuffs. Although Elie was

arrested at gunpoint and handcuffed in the hotel restaurant, his

state14
ment concerning the weapons was made after the police holstered

their guns and moved him to another part of the hotel. In any

event,

we have previously held that neither the drawing of a gun by the

interrogating officer nor the handcuffing of the confessor "establish[es] involuntariness in and of [itself]." United States v.

Seni, 662

F.2d 277, 281-82 (4th Cir. 1981) (holding in custodial

interrogation

case that voluntariness is "to be determined from the `totality of

all

the surrounding circumstances'" (quotation and citations omitted)).

Because a defendant must demonstrate that the police activity used

to elicit the incriminating statement was coercive, it is not

surprising,

as Judge Posner has noted, that "very few incriminating statements,

custodial or otherwise, are held to be involuntary." United States

v.

Rutledge, 900 F.2d 1127, 1129 (7th Cir. 1990). We find that this

case

is no exception. Elie's incriminating statement was elicited

without

the aid of any coercive conduct on the part of the officers.

Specifically, nothing in the record suggests that Elie's"will was

overborne."

See Reck, 367 U.S. at 440. As a result, Elie's statement was

voluntary

under the Fifth Amendment. Accordingly, we find that the district

court erred in suppressing the challenged evidence as "fruit of the

poisonous tree."

III.

Although we conclude that the district court erred in suppressing

the evidence found in Elie's hotel rooms as "fruit of the poisonous

tree," there must be a basis under the Fourth Amendment for

allowing

the Government to introduce the evidence in its case in chief. It

is

well established that "[t]he Fourth Amendment prohibits

unreasonable

searches, and searches conducted without a warrant are per se

unreasonable unless a valid exception to the warrant requirement is

applicable." United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996)

(en

banc). However, voluntary consent to a search, which the Government contends Elie gave, is such an exception. See id.
In determining whether Elie's consent to search was freely and voluntarily given, the totality of the circumstances surrounding the

consent must be examined. See Schneckloth v. Bustamonte, 412 U.S. 218,

227 (1973). In viewing the totality of the circumstances, we look

for

15
guidance to the factors this Court recently set forth in Lattimore,

87

F.3d at 650. According to Lattimore:

[I]t is appropriate to consider the characteristics of the

accused (such as age, maturity, education, intelligence, and

experience) as well as the conditions under which the consent to search was given (such as the officer's conduct; the

number of officers present; and the duration, location, and

time of the encounter).

Id.

Whether Elie voluntarily consented to the search of his hotel rooms

is a factual question. See id. As a result, this court must affirm

the

determination of the district court unless its findings are clearly

erroneous. See id.; cf. Anderson v. City of Bessemer City, N.C., 470

U.S.

564, 573-74 (1985) (holding that a district court's finding that

consent

was voluntary can be reversed only if the district court's view of

the

evidence is implausible in light of the entire record). With that

having

been said, we note that the district court had no occasion to

determine

whether Elie voluntarily consented to the search of his hotel rooms

because it found that Elie's unwarned statement automatically

tainted

the evidence found in the search. Normally we would remand a case

in this situation for the district court to make the necessary

factual

findings. However, we believe, for the reasons that follow, that

remand is unnecessary in this case.

In determining whether consent to search was given voluntarily, we

are instructed by Lattimore to consider the characteristics of the

accused. 87 F.3d at 650 (mentioning age, maturity, education,

intelligence, and experience). These factors are identical to the factors

that

the district court considered when it determined that Elie

knowingly

waived his Miranda rights by speaking to Detective Petta and the

DSS agents. As a result, the district court has already made the

necessary findings of fact.

The district found that Elie was intelligent, well educated, and

familiar with the criminal justice system and its consequences. In

making these findings of fact, the district court noted that Elie
is

forty-six years old, speaks fluent English, holds an advanced

degree

16
in chemistry, and was aware of his Miranda rights. Specifically,

the

district court noted that it was Elie who asked the officers why he

had

not been given his Miranda warnings.

We find that the district court's findings were not clearly

erroneous

and, in fact, were supported by additional evidence in the record.

For

example, the district court's finding that Elie was familiar with

the

criminal justice system extends well beyond his knowledge of

Miranda. Elie claims to have had significant law enforcement

responsibilities with the Haitian Government, at one point boasting to

Detective Petta that he "almost invented law enforcement" in Haiti.

(J.A.

at 47, 51, 76.) In addition, by revoking his consent to search

certain

documents in his hotel rooms, Elie demonstrated that he was aware

of his right to refuse consent to the search of his hotel rooms.

Based

on this record, it is clear that Elie was no newcomer to the law.

See

United States v. Watson, 423 U.S. 411, 424-25 (1976) (noting that

the

absence of any indication that the defendant was a"newcomer to the

law" is an important factor in determining whether consent was voluntary).

In determining whether consent to search was given voluntarily, we

are also instructed by Lattimore that it is appropriate to consider

the

conditions under which the consent to search was given. 87 F.3d at

650 (mentioning factors such as the officer's conduct; the number

of

officers present; and the duration, location, and time of the

encounter). Obviously, the district court did not make these findings

when

it determined that Elie had waived his Miranda rights by speaking

to

Detective Petta and the DSS agents. Nevertheless, after carefully

reviewing the record, we find nothing in the conditions surrounding

Elie's consent that would render it involuntary. Specifically, the

incident occurred during the middle of the afternoon in a hotel lobby

and

was not of inordinate duration. Any tension created by the initial

arrest, where Elie was confronted at gunpoint, ordered to the

floor,
and handcuffed, had been defused by the time Elie consented to the

search. The police had long since holstered their guns and Elie had

been moved from the hotel restaurant, where the arrest occurred, to

another part of the hotel. In any event, as we previously noted,

neither

the drawing of a gun by an arresting officer, nor the handcuffing

of

the accused "establish[es] involuntariness in and of [itself]."

Seni, 662

F.2d at 281 (citations omitted). Moreover, although there were at

least

17
six officers present when Elie granted his consent to search,

nothing

in the record indicates an environment that was coercive or

intimidating. In fact, Elie engaged the officers in friendly conversation

throughout the encounter. As one officer explained, Elie "spoke

nonstop; we couldn't shut him up." (J.A. at 121.)

Furthermore, Elie's warned statements to Detective Petta make it

unmistakably clear that his consent was given voluntarily. For

example, after telling Detective Petta that his hotel rooms contained

the

evidence he had collected during the course of his undercover

investigation of the Haitian Ambassador, Elie warned that he did not "want

to go back to th[ese] room[s] and find that the[y] ha[d] been

cleaned

out by people other than [the police]." (J.A. at 48.) Later, in an

attempt to illustrate the importance of securing the property in

question, Elie dramatically declared: "[The Government can] put me in

solitary, but please, the stuff that I have in the room[s] must be

secured." (J.A. at 72.) In fact, Elie's overriding concern during

his

interview with Detective Petta was not the pending assault charges,

but the security of his property. See, e.g., (J.A. at 57 (stating

that the

contents of his hotel rooms were "extremely important")); (J.A. at

64

(noting that the hotel rooms are not secure and that he feared the

officers did not secure all of his property)); (J.A. at 80 (explaining

that

he insisted that the officers secure the papers in his hotel

rooms)). In

light of the entire record, the only plausible conclusion is that

Elie

voluntarily consented to the search of his hotel rooms.

Elie, of course, disagrees. He argues that his consent to search

the

hotel rooms was not voluntary because it followed a Miranda violation. Although the absence of Miranda warnings is a factor to be

considered in assessing whether a defendant's consent was given

voluntarily, see Watson, 423 U.S. at 424-25, we must look at the

totality of the circumstances in determining whether Elie's consent

was given voluntarily. For the reasons already stated, and in light

of

the fact that the district court specifically found that Elie was

aware
of his Miranda rights, we find this argument to be without merit.

Elie also argues that his consent was not voluntary because the

officers failed to inform him of his right to refuse consent.

However,

"the Government need not demonstrate that the defendant knew of his

right to refuse consent to prove that the consent was voluntary."

18
Lattimore, 87 F.3d at 650. In any event, Elie's argument is belied

by

his own conduct. By revoking his consent to search certain

documents

in his rooms, Elie conclusively demonstrated that he knew of his

right

to refuse consent. See Bustamonte, 412 U.S. at 249 (noting that

although the accused's knowledge of his right to refuse consent is

not

a prerequisite in establishing consent, it is a factor).

Consequently, we

find this argument to be without merit.

Finally, Elie argues that his consent was not voluntary because he

was given a "Hobson's choice" when told that he had the option of

having his weapons and other possessions secured by either hotel

management or the police. We reject this argument as well. The

police can give a defendant truthful information, even if that

information forces the defendant to make a choice between two unpleasant

alternatives. See United States v. Pelton, 835 F.2d 1067, 1072 (4th

Cir. 1987) (noting that "`a law enforcement officer may properly

tell

the truth to the accused'" (quoting United States v. Williams, 479

F.2d

1138, 1140 (4th Cir. 1973)). Indeed, "[t]ruthful statements about

[the

defendant's] predicament are not the type of`coercion' that

threatens

to render a statement involuntary." Id. at 1073.

IV.

In conclusion, we find that the district court erred in suppressing

the challenged evidence as "fruit of the poisonous tree." The

"fruit of

the poisonous tree" doctrine simply does not apply where, as here,

the

fruits are discovered as the result of a statement obtained in

violation

of Miranda. In addition, we find that Elie voluntarily consented to

the

search of his hotel rooms. As a result, the district court's orders

suppressing the firearms and firearms receipts found in Elie's hotel

rooms, the firearms transaction records obtained from Gilbert Small

Arms, and the testimony of the individual at Gilbert Small Arms who

sold Elie the firearms are reversed, and the case is remanded for

further proceedings.

REVERSED
HALL, Circuit Judge, dissenting:

Where an accused's supposed consent to a police search of his person or property is at issue, the law is clear that the reviewing

court

19
must examine the totality of the circumstances to ensure that the

consent was voluntarily given. Schneckloth v. Bustamonte, 412 U.S.

218,

227 (1973). A court should consider (1)the personal characteristics

of the accused, (2)the conditions under which the consent was

obtained, and (3)whether the accused knew that he could lawfully

withhold his consent. United States v. Lattimore , 87 F.3d 647, 650

(4th Cir. 1996) (en banc).

In this case, the court below has made specific findings regarding

only the first of the three Lattimore factors, i.e., that Elie was

a

mature, intelligent, educated adult, who was not entirely

unfamiliar

with our criminal justice system. Confronted with the district

court's

silence as to the second and third factors, the majority has deemed

it

appropriate to make its own findings. See ante at 15-18. In the

course

of its assumption of the district court's role, the majority has

chosen

to emphasize Elie's relative sophistication, while simultaneously

downplaying the manner in which the police obtained Elie's consent

to search his motel rooms.

The conduct of the police in this case was not up to standard.

After

Elie was handcuffed, Sgt. William Desmond asked him whether he

would rather have the contents of his rooms "secured" by the motel

management or by the police. The question is reminiscent of the

hoary chestnut "When did you stop beating your wife?"; it relies on

a wholly speculative assumption to guarantee the answer desired by

the questioner. There was, of course, no reason for Desmond to presume that Elie would wish to have his possessions"secured" by anyone, or that Elie could not himself arrange for the security of his

effects.

Under ordinary circumstances, Desmond's concern for an

arrestee's possessions might have been laudable. But these were no

ordinary circumstances. During the course of the investigation,

Desmond learned (1)that Elie had made serious threats against

officials

of the Haitian embassy and (2)that he had ready access to firearms.

It is certainly understandable that Desmond would be concerned that

the targets of Elie's threats were at considerable risk of bodily

harm.

Unfortunately, Desmond had no probable cause to believe that Elie

had committed any firearms violations; he could arrest Elie only

for
20
assault and battery, a relatively minor charge that would ensure

Elie's

detention for but a short while.

Viewed in the above light, one must acknowledge the probability

that Desmond's questioning was predesigned to trick Elie into

granting the arresting officers permission to search his motel rooms for

evidence of crimes more serious than that described in the arrest

warrant.1 If Desmond were found to have engaged in a deliberate

subterfuge, then that fact -- either alone or in conjunction with the

somewhat intimidating tactics used by the police during the arrest --

would support the conclusion that Elie, notwithstanding the

evidence

of his sophistication, did not voluntarily consent to the search.2

An accurate analysis under Lattimore depends, in this case, on an

evaluation of the credibility of the government's witnesses. The

district court, unlike the majority, has observed the witnesses'

demeanor

and has, no doubt, made a preliminary assessment of their

credibility.

I would afford the district court the opportunity to perform its

assigned role as the finder of fact. On remand, the court might

well

find that Elie, despite his apparent worldliness, did not

voluntarily

consent to the search of his motel rooms. The government could

appeal such a finding, but we would be bound to let it stand unless

it were clearly erroneous. Lattimore at 650-51. The majority has

fore-

_________________________________________________________________

1 Although I do not subscribe to the majority's conclusion that

evidence

may never be suppressed as the "fruit" of a Miranda violation, ante

at

9-13, I agree that the district court's focus on Elie's failure to

receive

Miranda warnings was misplaced in this case. In my view, Desmond

would likely have tried to obtain Elie's consent to search even had

Elie,

in response to Desmond's unwarned questioning, denied having

firearms

in his motel rooms. It seems far more probable that the seized

evidence

were fruits of an invalid consent search than of the Miranda

violation.

2 The government has argued that the testimony and other evidence

obtained from the firearms dealer, who was identified from receipts
found in Elie's rooms, would have been inevitably discovered as the

result of Elie's mentioning the transactions during the course of

his formal interrogation. The government has neglected to acknowledge the

likelihood that, had the arresting officers not searched Elie's

motel

rooms, he would have had no reason to refer to the firearms during

his

questioning.

21
closed this possibility by circumventing the long-settled practice

of

limited appellate review. Though I am certain that the majority

intends nothing more than to achieve the just result in this case,

I cannot approve of its approach; our job is difficult enough without

assuming the mantle of factfinder.

I respectfully dissent.

22