IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-30366

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

QUINN P. REED,

Defendant-Appellant

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:16-CR-51-1

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Quinn P. Reed appeals his conviction for drug 

possession with intent to distribute, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, 

and unlawful use of a telephone, 21 U.S.C. § 843(b), on grounds that the district 

court should have granted his motion to suppress evidence. For the following 

reasons, we AFFIRM.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 29, 2019

Lyle W. Cayce

Clerk

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At approximately 12:05 a.m. on April 27, 2015, Baton Rouge police

arrested and detained Reed after illegally searching his vehicle and uncovering 

narcotics. Reed was suspected of associating with a member of a gang under a 

separate investigation, which led to the monitoring of Reed’s telephone calls 

from jail. On April 28, 2015, at 9:52 p.m., Reed called his girlfriend, Albertha

Guerin, and instructed her to retrieve containers with false bottoms from his 

mother’s house and “put up” “that white stuff” stored inside.1 According to 

authorities, Reed’s reference to “white stuff” in canisters with false 

compartments indicated narcotics, and he was “facilitating a crime by asking 

his girlfriend” to move and store the narcotics for him. Based on this 

information, authorities obtained a warrant the next day to search Reed’s 

residence. No drugs were found at Reed’s residence, but Reed’s narcotics were 

located at Guerin’s residence. Guerin’s mother had provided the authorities 

with consent to search the residence at 10:52 p.m. on April 29, 2015.

The district court suppressed the narcotics seized from Reed’s vehicle 

during the initial arrest. Reed filed a second motion to suppress his telephone 

call to Guerin, as well as the narcotics found at Guerin’s home, arguing that 

they were derived from the unconstitutional search of his vehicle and thus fruit 

of the poisonous tree in violation of the Fourth Amendment. The district court 

denied the motion, holding that the call and narcotics found in Guerin’s home 

were sufficiently attenuated from the unconstitutional search of Reed’s vehicle

and thus not subject to the exclusionary rule.

In considering the denial of a motion to suppress, “this court reviews the 

district court’s fact findings for clear error and its legal conclusions de novo.” 

United States v. Rounds, 749 F.3d 326, 337 (5th Cir. 2014). All evidence is 

 

1 The district court erroneously found that Reed’s jailhouse call to Guerin occurred on 

April 27, 2015 at 10:00 a.m. The transcript of the call shows that it actually occurred on 

April 28, 2015, at 9:52 p.m. Thus, the district court clearly erred in this factual finding.

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viewed in the light most favorable to the prevailing party, here the 

Government. Id. at 338.

The statements Reed communicated via jailhouse telephone to Guerin

are not subject to the exclusionary rule because the statements themselves 

constitute a crime. See United States v. Garcia-Jordan, 860 F.2d 159, 160-61 

(5th Cir. 1988); United States v. Melancon, 662 F.3d 708, 712 (5th Cir. 2011). 

Furthermore, the statements are similarly not subject to the Fifth 

Amendment’s voluntariness requirement because they are criminal acts, as 

well as not confessional in nature; the statements were made to Reed’s 

girlfriend as opposed to the police. United States v. Kirk, 528 F.2d 1057, 1062 

(5th Cir. 1976).

It is unclear whether the drugs seized from Guerin’s home as a result of 

Reed’s illegal telephone instructions are subject to the exclusionary rule.

Compare United States v. Butts, 729 F.2d 1514, 1518 (5th Cir. 1984)

(authorities may seize evidence from an intervening criminal act under certain 

circumstances) with United States v. Nooks, 446 F.2d 1283, 1288 (5th Cir. 

1971) (attenuation doctrine applied to evidence incident to a defendant’s crime 

committed while in custody after a potentially illegal stop). However, 

assuming the exclusionary rule could apply, the district court correctly denied

Reed’s motion to suppress because the narcotics are sufficiently attenuated 

from Reed’s illegal arrest. Utah v. Strieff, 136 S. Ct. 2056, 2061-62 (2016).

In applying the attenuation doctrine, courts consider three factors: the 

temporal proximity “between the unconstitutional conduct and the discovery 

of evidence,” intervening circumstances, and the purpose and flagrancy of the 

official misconduct. Id. First, the approximately 45 hours between the time of 

Reed’s illegal arrest and the subject call and the additional 25 hours before the 

police found the drugs at Guerin’s home constitute a “substantial period of 

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time” favoring attenuation. See United States v. Cherry, 794 F.2d 201, 206 (5th 

Cir. 1986)

Second, at least three intervening circumstances occurred weighing in 

favor of attenuation: Reed’s illegal telephone instructions from jail, see United 

States v. Sheppard, 901 F.2d 1230, 1235 (5th Cir. 1990) (defendant’s flight from 

police after an illegal stop “constituted criminal activity and functioned to 

break any nexus between the challenged” stop and the evidence seized); the 

consent that Guerin’s mother provided to the authorities to search her 

residence, which led to the discovery of Reed’s narcotics, see United States v. 

Cooke, 674 F.3d 491, 495 (5th Cir. 2012); and the information gleaned from 

Reed’s illegal telephone instructions regarding the location of the drugs that 

constituted probable cause, see Cherry, 794 F.2d at 206.

Third, Reed concedes that there “is no direct evidence that [he] was 

initially stopped, detained, arrested, and incarcerated in order for law 

enforcement to listen to his telephone calls.” Furthermore, the record lacks 

evidence that the Baton Rouge Police Department exhibited a pattern of 

conducting illegal stops and arrests in order to listen to jailhouse calls. Thus, 

the purpose and flagrancy of the official misconduct favors attenuation. Strieff, 

136 S. Ct. at 2063.

Taken together, the attenuation factors sever the nexus between Reed’s 

illegal arrest and the drugs seized at Guerin’s home. Thus, the district court’s 

denial of Reed’s motion to suppress the drugs, as well as the telephone call 

itself, is AFFIRMED.

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