*

The Honorable William H. Stafford, Jr., Senior United States District Judge for the Northern

District of Florida, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0238p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellant,

v.

JOSE M. CLARIOT; FRANKLIN GUZMAN;

OSCAR TOLEDO,

 Defendants-Appellees.

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No. 09-5783

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 08-00023—John T. Nixon, District Judge.

Argued: July 26, 2011

Decided and Filed: August 25, 2011 

Before: SUTTON and WHITE, Circuit Judges; STAFFORD, District Judge.*

_________________

COUNSEL

ARGUED: Brent A. Hannafan, ASSISTANT UNITED STATES ATTORNEY,

Nashville, Tennessee, for Appellant. Michael D. Noel, Brentwood, Tennessee, Jodie A.

Bell, BELL, TENNENT & FROGGE, Nashville, Tennessee, Kimberly S. Hodde,

HODDE & ASSOCIATES, Nashville, Tennessee, for Appellees. ON BRIEF: Heather

G. Childs, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for

Appellant. Michael D. Noel, Brentwood, Tennessee, Jodie A. Bell, BELL, TENNENT

& FROGGE, Nashville, Tennessee, Kimberly S. Hodde, HODDE & ASSOCIATES,

Nashville, Tennessee, Benjamin H. Perry, BALTHROP, PERRY & NOE, Ashland City,

Tennessee, for Appellees. 

SUTTON, J., delivered the opinion of the court, in which STAFFORD, D. J.,

joined. WHITE, J. (p. 10), delivered a separate opinion concurring in the reversal.

1
No. 09-5783 United States v. Clariot Page 2

_________________

OPINION

_________________

SUTTON, Circuit Judge. When three men landed an airplane at an unstaffed

airport in Jackson, Tennessee at 9:00 p.m., local law enforcement investigated. Five

officers approached the plane, and they asked for identification. A warrant check on the

individuals came up clean and the officers returned the identifications, after which they

chatted with the men about their travel plans.

Roughly ten to fifteen minutes of conversation later, the officers asked for

consent to search the plane. The pilots refused—nervously, as the officers tell it. After

declining to give consent for the search, the three men climbed back into the plane and

flew to Nashville, where local police discovered 70 kilograms of cocaine hidden in the

plane. Facing federal drug charges, the three men filed a suppression motion. Although

permitting the admission of the 70 kilograms of cocaine, the district court suppressed the

officers’ account of what happened at the Jackson airport—the defendants’ reactions to

the request to search and their prompt take-off to Nashville. Because the suppressed

evidence was not the product of an illegal seizure, the exclusionary rule does not apply.

We reverse.

I.

On January 29, 2008, Franklin Guzman and Oscar Toledo flew a Cessna airplane,

apparently originating in the Southwest, over rural Tennessee, with Jose Clariot as a

passenger. At 9:00 p.m., the pilots landed at an airport in Jackson, population 62,000

or so. Having been tracking the path of the private plane, the Department of Homeland

Security asked Lieutenant William Carneal of the local sheriff’s office to investigate the

plane after it touched down. The plane landed after dark and after the airport staff had

gone home for the day—not an everyday occurrence at the Jackson airport—prompting

Carneal to call four other officers to meet him at the airport. 
No. 09-5783 United States v. Clariot Page 3

The officers entered the airport and approached the plane. Carneal asked

Guzman whether the men needed help—they did not—then asked for identification. He

took the identifications to a police car parked fifteen to twenty feet behind the airplane’s

tail and called the Department of Homeland Security to check whether the men had any

outstanding warrants. After five to ten minutes, the agency replied that they did not.

Carneal returned the identifications to the men and discussed their options for spending

the night in Jackson and the possibility of leaving the plane unattended at the airport for

the night. 

While the officers waited to hear back from airport personnel about leaving the

plane there overnight, Lieutenant Carneal asked to search the plane. According to

Carneal, both Guzman and Toledo grew “nervous” and spoke anxiously back and forth.

“[N]o, we are going to go, we are going to go,” Guzman finally responded. After further

discussion, the pilots continued to refuse permission to search the plane, then flew to

Nashville. 

Later that night, the three men landed in Nashville, registered their plane and

took a shuttle to a hotel. Federal officers told local police that the plane had taken an

irregular flight pattern, prompting the police to examine the outside of the plane with a

narcotics dog, which signaled the presence of drugs. Claiming to be airport personnel,

the officers called Guzman’s hotel room and told him that police had expressed interest

in the aircraft and would be arriving soon to inspect the plane. Guzman immediately left

his room. A Nashville detective stopped him and asked to search the airplane. He

consented. The officers found 70 kilograms of cocaine packed in three suitcases. 

 A federal grand jury indicted Guzman, Toledo and Clariot for conspiring to

distribute cocaine. 21 U.S.C. §§ 841(a)(1), 846. The defendants filed a motion to

suppress several pieces of evidence, including Lieutenant Carneal’s testimony that the

pilots appeared nervous and abruptly left the Jackson airport after he asked to search the

plane. The district court suppressed Lieutenant Carneal’s observations. The United

States filed this interlocutory appeal. See 18 U.S.C. § 3731.
No. 09-5783 United States v. Clariot Page 4

II.

Section 3731 provides a one-party path for interlocutory review of suppression

orders. It allows the government, but not criminal defendants, to challenge a suppression

ruling prior to trial. Id. Before us then is just one of the many Fourth Amendment

questions raised by the parties below about this search: Did the district court err in

suppressing Lieutenant Carneal’s observations of the defendants’ reactions at the

Jackson airport after he took their identifications?

In suppressing this evidence, the district court made two relevant legal

conclusions: (1) the initial seizure of the men (while Lieutenant Carneal checked their

identifications) lacked reasonable suspicion, and (2) the evidence disclosed later in the

encounter should be suppressed as the tainted fruit of an illegal seizure. The government

and the defendants focus on the second conclusion, and so will we. For the purpose of

deciding this case, we thus will assume for the sake of argument that the initial encounter

violated the Fourth Amendment and consider only whether the court should have applied

the exclusionary rule in this setting.

The Fourth Amendment safeguards “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.”

Missing from this language, as the Supreme Court has pointed out, is anything about

“precluding the use of evidence obtained in violation of its commands.” Arizona v.

Evans, 514 U.S. 1, 10 (1995). The exclusionary rule is a judicial innovation, developed

by the federal and state courts in construing their respective constitutions. The first

federal decision arises under the Fifth and Fourth Amendments and excludes private

papers obtained through a subpoena based on self-incrimination and privacy concerns.

See Boyd v. United States, 116 U.S. 616, 633, 638 (1886). Early state court decisions

follow a similar path. See, e.g., People v. McCoy, 45 How. Pr. 216, 217–18 (N.Y. Sup.

Ct. 1873); State v. Height, 91 N.W. 935, 938–40 (Iowa 1902); State v. Newcomb, 119

S.W. 405, 409 (Mo. 1909).
No. 09-5783 United States v. Clariot Page 5

In 1914, the United States Supreme Court embraced the exclusionary rule for

stand-alone violations of the Fourth Amendment by federal law enforcement. See Weeks

v. United States, 232 U.S. 383, 398. By 1961, more than 25 state courts had embraced

the exclusionary rule under their own constitutions or statutes, see Mapp v. Ohio, 367

U.S. 643, 651, and the Supreme Court extended the rule to state law enforcement

through the Fourteenth Amendment, id. at 655. 

The driving force behind the rule, for the last half century, has been

deterrence—to discourage the police from violating the Fourth Amendment by

prohibiting them from leveraging illegal encounters into criminal convictions. See

Elkins v. United States, 364 U.S. 206, 217 (1960). If the courts, the thinking goes,

suppress evidence of wrongdoing discovered through illegal searches and seizures,

colorfully labeled the “fruit of the poisonous tree,” the police will be discouraged from

crossing Fourth Amendment lines in the first place. Wong Sun v. United States, 371 U.S.

471, 488 (1963); Davis v. United States, 564 U.S. __, 131 S. Ct. 2419, 2426 (2011)

(“The rule’s sole purpose, we have repeatedly held, is to deter future Fourth Amendment

violations.”).

The deterrence rationale for the exclusionary rule limits its reach. Evidence “will

not be excluded . . . unless the illegality is at least the ‘but for’ cause of the discovery of

the evidence,” unless that is “‘the challenged evidence is in some sense the product of

illegal governmental activity.’” Segura v. United States, 468 U.S. 796, 815 (1984)

(quoting United States v. Crews, 445 U.S. 463, 471 (1980)). After all, there is little to

deter if the officers’ conduct is not the “unattenuated causation” of the evidentiary

discovery. Hudson v. Michigan, 547 U.S. 586, 594 (2005). Yet “but-for causality is

only a necessary, not a sufficient, condition for suppression.” Id. at 592. In addition to

the imperative of causation, a criminal suspect invoking the exclusionary rule must show

that “its deterrence benefits outweigh its substantial social costs.” Pa. Bd. of Prob. &

Parole v. Scott, 524 U.S. 357, 363 (1998) (internal quotation marks omitted). The

defendants in this case come up short on both fronts.
No. 09-5783 United States v. Clariot Page 6

In the first place, any causative link between the seizure and the defendants’ later

behavior is a stretch. The record contains no explanation why or how the warrant check

caused the defendants to act nervously or to depart the airport abruptly, and they offer

no such explanation on appeal. Even if we assume the seizure was illegal, it was brief

and stemmed from an understandable request for identification after a moonlit landing

at a small unstaffed airport. When the warrant check on the identifications yielded

nothing incriminating and when the officers returned the identifications to the

defendants, they were free to leave, cf. Ohio v. Robinette, 519 U.S. 33, 40 (1996), as

indeed they did a few minutes later. Thus, even if we assume the officers seized the men

while they held the defendants’ identifications and ran a warrant check, any seizure

became consensual once they returned the identifications and commenced a conversation

that had no threatening or incriminating overtones to it.

The testimony of one of the defendants confirms that any potential causative link

between the initial seizure and the defendants’ visual and verbal responses to the request

to search dissipated after the officers returned the identifications. Guzman testified that

he heard his personal information “coming back over the radio,” from which he deduced

that Carneal had run a background check. Suppress. Hr’g Tr. at 438. Guzman knew the

check would come back clean, so he “felt at ease at that point.” Id. If he eventually felt

“at ease” during the allegedly illegal seizure, how could he feel cowed after it was

over—after the warrant checks had come out clean, after the identifications had been

returned and after they were free to leave? 

Any alleged anxiety, moreover, had nothing to do with the officers’ conduct

during and immediately after the initial seizure. According to Guzman, when Carneal

returned the identifications, he apologized for the inconvenience, and Guzman said, “that

is fine, I understand.” Id. at 437. Carneal and the men then engaged in a friendly

discussion: Carneal told Guzman, Toledo and Clariot that the officers were trying to

obtain permission for the men to leave their plane unattended at the airport overnight.

They chatted about whether Jackson had taxi service, and Carneal offered to drive the

men to a hotel. Guzman described Carneal as “very courteous” and “friendly” during
No. 09-5783 United States v. Clariot Page 7

this exchange. Id. at 437–38. While Carneal had been “demanding” and “intimidating”

before the warrant check, “his tone of voice was totally different” and his body language

“was friendly” afterward. Id. at 430, 432, 438.

Lieutenant Carneal’s account is similar. He tried to get permission for the men

to leave their plane at the airport overnight. While they waited for permission, the men

discussed with Carneal whether they needed a ride to a hotel, and they were

“cooperative,” “polite” and “very nice.” Id. at 64, 80, 96, 118. Only when Carneal

requested consent to search the plane did Guzman “bec[o]me very nervous” and insist

that the three men fly to Nashville. Id. at 97. Far from suggesting the earlier seizure

caused them to become nervous and fly away, these facts strongly suggest, if not

demonstrate, that the men would have reacted this way even without the seizure. The

seizure did not cause the government’s discovery of the challenged evidence, and in the

absence of any cognizable claim that the disputed evidence was the “product” of illegal

conduct the exclusionary rule does not apply.

Temporal proximity is the only arrow in the defendants’ quiver, and it pierces

nothing. No doubt, a brief gap in time between illegal police conduct and the discovery

of illicit evidence is a factor in the suppression analysis, see Brown v. Illinois, 422 U.S.

590, 603–04 (1975), but no case (to our knowledge) holds that temporal proximity alone,

without any other indicia of causation, justifies suppression. The exclusionary rule

forbids the government from using evidence caused by an illegal seizure, not evidence

found around the time of a seizure.

In view of the failure to establish any causative link between the alleged

misconduct and the evidentiary discovery, it follows that the deterrent value of

suppressing this evidence is small. As suggested above, the government gained no

unfair advantage by its conduct, and the evidence suggests no reason why the defendants

would have responded any differently had the officers asked to search the plane before,

rather than after, the seizure. Carneal learned nothing during the seizure that led him to

seek consent to search the plane, and nothing about the seizure caused the pilots to

become nervous or to fly off. They do not argue otherwise. Where suppressing
No. 09-5783 United States v. Clariot Page 8

evidence would not “yield appreciable deterrence, exclusion is clearly . . . unwarranted,”

Davis, 564 U.S. __, 131 S. Ct. at 2426–27 (internal quotation marks omitted) (alteration

in original), and that is so here.

The only reason to suppress the evidence on this record is the theory, now

discredited, that all Fourth Amendment violations must be punished by prohibiting the

introduction of any evidence discovered after a violation, no matter how attenuated the

connection to the underlying violation. As the defendants put it, “[t]he only way that

police will follow the law and respect the Constitution is if [they are] prohibited from

benefitting from [their] own wrongdoing.” Defendants’ Br. at 48. A series of recent

Supreme Court cases—Hudson, Herring and Davis among them—reject this all-ornothing-at-all approach. The approach also fails on its own terms here, as suppression

is not the only deterrent available. See, e.g., Bivens v. Six Unknown Named Agents of

Fed. Bureau of Narcotics, 403 U.S. 388, 395–97 (1971); see also 42 U.S.C. § 1983.

The defendants add that “the Government’s ability to prosecute this case is not

undone by the district court’s ruling.” Defendants’ Br. at 48. That is a fair point. If the

courts are going to insist that any exclusion of evidence be proportionate to the

advantage the government gained by illegal activity, defendants should be permitted to

argue that the challenged evidence will not make or break the prosecution. In view of

the district court’s ruling that the government may introduce the 70 kilograms of cocaine

found in this small plane, among other evidence, it is doubtful that the exclusion of the

evidence at issue today will cause the United States to drop any charges. Also

supporting the defendants’ point is the de minimis value of this evidence. The exercise

of a constitutional right, whether to refuse to consent to a search, to refuse to waive

Miranda rights or to decline to testify at trial, is not evidence of guilt. Florida v.

Bostick, 501 U.S. 429, 437 (1991); Wainwright v. Greenfield, 474 U.S. 284, 295 (1986);

Griffin v. California, 380 U.S. 609, 615 (1965). And evidence of nervousness in the

context of being asked to waive some of these rights is a weak, if indeed even legitimate,

indicator of criminal behavior. Florida v. Royer, 460 U.S. 491, 507 (1983). All of this
No. 09-5783 United States v. Clariot Page 9

shows that both sides of the exclusionary-rule balancing inquiry are weak, not that the

evidence should be excluded. 

The defendants argue that the United States failed to press this exclusionary-rule

argument below. True or not, there can be no forfeiture “where the district court

nevertheless addressed the merits of the issue.” Blackmon-Malloy v. U.S. Capitol Police

Bd., 575 F.3d 699, 707 (D.C. Cir. 2009); cf. United States v. Williams, 504 U.S. 36,

40–45 (1992). No one disagrees that the district court addressed the issue. It concluded

that “Defendants[’] contact with police was continuous and relatively short in duration,”

and so the challenged evidence was not “sufficiently attenuated with respect to the

earlier detention to permit exception to the exclusionary rule.” Dist. Ct. Op. at 71.

When a district court resolves an issue, the losing party can challenge it. Otherwise, the

more surprising a district court decision in terms of resolving unbriefed and unargued

points, the more insulated from review that decision would be.

III.

For these reasons, we reverse.
No. 09-5783 United States v. Clariot Page 10

______________________________________

CONCURRING IN THE REVERSAL

______________________________________

HELENE N. WHITE, Circuit Judge, concurring. I concur in the reversal. I agree

that at the time the observations were made, the encounter was consensual and that the

connection with the assertedly unconstitutional seizure is so attenuated as to remove any

possible taint.