United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-3152

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United States of America, *

*

Appellant, *

* Appeals from the United States

v. * District Court for the

* District of Nebraska.

Richard D. Marasco; Angela D. Harms, *

*

Appellees. *

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No. 06-3238

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United States of America, *

*

Appellee, *

*

v. *

*

Angela D. Harms, *

*

Appellant. *

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Submitted: March 13, 2007

Filed: June 1, 2007

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Before RILEY, BOWMAN, and ARNOLD, Circuit Judges.

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1

The government has filed a motion to dismiss Richard D. Marasco from this

appeal. Inasmuch as the appeal pertains only to the government's case against Harms,

and does not affect the government's case against Marasco, we grant the motion and

dismiss Marasco from this appeal.

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BOWMAN, Circuit Judge.

Angela Harms pleaded not guilty to three counts of manufacturing

methamphetamine. Harms filed a motion to suppress (1) items found in a search of

a motel room and (2) statements she made to police. The District Court denied the

motion as to the items found in the room and granted the motion as to the statements.

Both the government and Harms appeal.1

 We reverse the District Court's suppression

of Harms's statements. We lack jurisdiction over Harms's cross-appeal concerning the

items found in the motel room.

I.

On August 24, 2005, members of the Bellevue, Nebraska, Police Department

were conducting surveillance of an area of suspected drug trafficking. During this

surveillance, Sergeant Robert Wood noticed a vehicle, parked at a motel, bearing

license plates from Cass County. Wood requested from Detective Zeb Simones a

check of the plate number because several methamphetamine labs involving

individuals from Cass County had been discovered at this motel. The check revealed

that the vehicle was registered to Richard Marasco, who had an outstanding felony

warrant for his arrest. Later that evening, another vehicle arrived at the motel and

parked next to Marasco's vehicle. Harms and Marasco exited the vehicle and entered

a motel room. At this point, Simones met with the motel manager to determine

whether Marasco was staying at the motel. The manager told Simones that Marasco

was not registered as a guest but that an individual matching Marasco's description

was staying in a room rented by Harms.
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Soon thereafter, five officers converged on the room, and Simones knocked on

the door. Marasco answered the door but then stepped back into the room. Three

officers entered the room and arrested Marasco. Wood asked Marasco if there was

anything dangerous on his person or in the room, and Marasco responded that acid

was in the room. During this exchange, Wood observed glass methamphetamine

pipes and a scale in the room. 

While Wood questioned Marasco, Simones asked Harms to step outside the

room, where Harms told Simones that she had rented the room, but Marasco had paid

for it and may have changed the registry to his name. Harms stated that she and

Marasco shared the room equally and could come and go as they pleased. Eventually

Simones asked Harms for her consent to search the room. Harms responded that she

did not want the officers looking through her "stuff" or "things." Hr'g Tr. at 68;

Supplemental Hr'g Tr. at 93, 104.

Meanwhile, Wood conducted a search incident to the arrest of Marasco and

discovered three bags of methamphetamine in his pockets. Wood then asked Marasco

for consent to search the room, and Marasco consented.

Wood met with Simones outside the room to determine whether the officers had

authority, based on consent, to search the room. Simones informed Wood of Harms's

statement about "her stuff." Wood believed that a purse and craft items he had

observed in the room belonged to Harms.

Wood and Simones returned to the room to discuss with Marasco the extent of

his control over the room. Marasco informed Wood and Simones that he rented the

room, had paid for the room, and carried a key to the room. The officers determined

that Marasco's consent to search the room gave them valid authority to do so. While

in the room, Wood told Simones that he had seen drug-related items in the room that

Wood believed could be linked to Harms.
2

Miranda v. Arizona, 384 U.S. 436 (1966).

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Simones went back outside and questioned Harms about her history of

manufacturing methamphetamine. Simones told Harms that methamphetamine and

items used to manufacture methamphetamine had been found in the room. Simones

read Harms her Miranda2

 rights, and she then made incriminating statements to

Simones.

While Simones was speaking with Harms this second time, the officers

conducted a search of the room and found several items related to the manufacture of

methamphetamine. The officers also searched Harms's purse, notwithstanding her

comments about "her stuff," and found methamphetamine paraphernalia.

Harms filed a motion to suppress her incriminating statements and the items

found during the search of the room. The District Court suppressed Harms's

statements as fruits of the illegal search of Harms's purse. The District Court denied

the motion as to the evidence found in the room, holding that Marasco's consent was

valid against both Marasco and Harms and that Harms's refusal to consent to the

search of "her stuff" did not apply to the rest of the room. Both parties appeal.

II.

Although the parties have not raised the issue, we are obligated to consider

whether we have jurisdiction to hear Harms's cross-appeal challenging the District

Court's denial of her motion to suppress evidence found in the motel room. See

United States v. Duke, 50 F.3d 571, 574 (8th Cir.), cert. denied, 516 U.S. 885 (1995).

Our jurisdiction over the government's appeal is based on 18 U.S.C. § 3731 (2000),

which provides,
3

The government incorrectly asserts both in its opening brief and in its reply

brief that jurisdiction in this case is based on 28 U.S.C. § 1291, which provides

appellate jurisdiction over final decisions of district courts. This appeal does not

involve a final decision of the District Court but rather involves an order on a pretrial

suppression motion.

4

A defendant in opposing the government's § 3731 appeal may, however, raise

alternate arguments to those relied on by the district court in granting a defendant's

suppression motion. See Valle Cruz, 452 F.3d at 705 ("[I]t makes sense . . . to address

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An appeal by the United States shall lie to a court of appeals from a

decision or order of a district court suppressing or excluding evidence

. . . if the United States attorney certifies to the district court that the

appeal is not taken for purpose of delay and that the evidence is a

substantial proof of a fact material in the proceeding.3

While § 3731 gives the government the ability to appeal from an order granting

a pretrial motion to suppress, this statute does not provide for a cross-appeal by the

defendant. See United States v. Valle Cruz, 452 F.3d 698, 705 (8th Cir. 2006) ("The

right of interlocutory appeal from a district court's decision on a motion to suppress

is the government's alone."). Accordingly, we lack jurisdiction over Harms's crossappeal from the portion of the District Court's order denying her motion to suppress

evidence found in the motel room. We note that other circuits have reached the same

conclusion regarding the effect of § 3731. See United States v. Shameizadeh, 41 F.3d

266, 267 (6th Cir. 1994) ("Although 18 U.S.C. § 3731 permits the government to take

an immediate appeal from an order granting a pretrial motion to suppress, that statute

does not provide for a cross-appeal by a defendant."); United States v. Eccles, 850

F.2d 1357, 1362 (9th Cir. 1988) ("[W]e decline to find that Congress intended to

create an exception [for jurisdiction over the defendant's cross-appeal] applicable in

the unusual circumstance where the district court grants in part and denies in part a

defendant's motion to suppress statements."); United States v. Johnson, 690 F.2d 60,

63 (3d Cir. 1982) ("§ 3731 gives the right to appeal suppression orders to the

government alone"), cert. denied, 459 U.S. 1214 (1983).4
an argument presented to the District Court and raised in an appellee's brief in a

§ 3731 appeal if the issue would 'provide an alternative basis for affirming the order

of suppression.'" (quoting Shameizadeh, 41 F.3d at 267 (collecting cases))). Harms's

arguments concerning the grant of the suppression motion are discussed in part III,

infra.

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III.

We now consider the government's appeal challenging the suppression of

Harms's statements. The government argues that the statements were not the fruits of

the illegal search (the search of Harms's purse) but rather were obtained as a result of

legally obtained evidence (the items observed in plain view and the items seized from

Marasco incident to his arrest) and therefore should not have been suppressed by the

District Court. 

On appeal from a grant of a motion to suppress, we review a district court's

findings of fact for clear error and its legal conclusions de novo. United States v.

Flores, 474 F.3d 1100, 1103 (8th Cir. 2007). Evidence obtained in violation of the

Fourth Amendment may be subject to exclusion. See Hudson v. Michigan, 126 S. Ct.

2159, 2163–65 (2006). The exclusionary rule applies to both direct and indirect fruits

of the constitutional violation, including verbal statements. Wong Sun v. United

States, 371 U.S. 471, 484–85 (1963). There is no reason to exclude evidence,

however, if "the police misconduct is not even a 'but-for' cause of [the] discovery" of

the evidence. Hamilton v. Nix, 809 F.2d 463, 465 (8th Cir.) (en banc), cert. denied,

483 U.S. 1023 (1987). In other words, "but-for causality is only a necessary, not a

sufficient, condition for suppression." Hudson, 126 S. Ct. at 2164. When the issue

is whether challenged evidence is the fruit of a Fourth Amendment violation, the

defendant bears the initial burden of establishing the factual nexus between the

constitutional violation and the challenged evidence. See Alderman v. United States,

394 U.S. 165, 183 (1969) (citing Nardone v. United States, 308 U.S. 338, 341 (1939));

see also United States v. Kornegay, 410 F.3d 89, 93–94 (1st Cir. 2005); United States
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v. Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir.), cert. denied, 531 U.S. 887 (2000);

United States v. Kandik, 633 F.2d 1334, 1335 (9th Cir. 1980).

In this case, there is no dispute that the warrantless search of Harms's "stuff,"

that is, her purse, was illegal on account of Harms's express refusal to consent. What

is in dispute is whether Harms's incriminating statements were the fruits of this illegal

search and therefore must be suppressed.

Harms cannot satisfy her burden of establishing the causal nexus between the

illegal search of her purse and her statements. At best, Harms shows that it is

remotely possible that she made her statements after the search of her "stuff" began.

The record indicates that Simones informed Harms that methamphetamine and items

used to manufacture methamphetamine were in the motel room, and then Harms made

incriminating statements. Harms argues that these referenced items were discovered

during the search of her purse, but there is nothing in the record to indicate that the

referenced items came from the search of Harms's "stuff." These items could have

been those observed in plain view (the pipes and scale), those legally seized from

Marasco incident to his arrest (the bags of methamphetamine), those discovered

during the search of the room, or those found in Harms's "stuff." Harms's scenario is

the least likely to have occurred because although the record is unclear on when the

search of the room began, the record indicates that most of the search occurred while

Simones was questioning Harms.

Because the record lacks support for Harms's contention that Simones

confronted her with evidence obtained during the illegal search of her purse before she

made the incriminating statements, the District Court's finding that Harms's statements

were "given immediately after the search" is clearly erroneous. Mem. & Order of July

24, 2006, at 21. And since Harms cannot show that the illegal search of her "stuff"

was a but-for cause of her statements, Harms's argument for exclusion fails. Thus, we

reverse the suppression of Harms's statements.
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IV.

For the foregoing reasons, the District Court's suppression of Harms's

statements is reversed. Harms's cross-appeal is dismissed for lack of jurisdiction.

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