United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-3071

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United States of America, *

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Bryan Lee Simpson, *

*

Defendant-Appellant. *

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Submitted: January 12, 2006

Filed: February 27, 2006

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Before WOLLMAN, LAY, and ARNOLD, Circuit Judges.

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LAY, Circuit Judge.

I. BACKGROUND

In the morning hours of January 21, 2004, Des Moines Police Officers Tim

Morgan and Jeff Cronin were on patrol in an unmarked, white Pontiac Grand Am.

Both officers wore jeans and winter jackets. During the course of their patrol, the

officers drove by an apartment complex in Des Moines, Iowa, in an area known for

drug trafficking. As the officers drove into the complex, they spotted a pedestrian.

Officer Morgan believed the pedestrian was Jerome Shade, a man he knew from a

prior arrest. Officer Cronin did not know Shade by sight. However, because there

was an outstanding warrant for Shade’s arrest, Officer Cronin was equipped with a
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photograph of Shade and a written report describing his physical characteristics. As

the officers’ car approached the suspect, Officer Morgan told Officer Cronin he

believed the man was, in fact, Shade. 

The suspect wore a stocking cap and a bulky winter jacket. The officers

initially spotted him from approximately thirty to forty yards away. As the officers

drew closer, the suspect placed his hand beside his face, obstructing the officers’ view.

As the car passed, Officer Morgan slowed the car to approximately ten miles per hour

and watched, from the rear view mirror, as the suspect paid close attention to the car.

The distance between the car and the suspect was approximately twenty to thirty feet.

Once the car passed, the suspect began to walk more rapidly and eventually

broke into a run around one of the nearby apartment buildings. In response, Officer

Morgan stopped the car and began to pursue the suspect on foot. During the chase,

Officer Morgan radioed back to police dispatch to inform other officers of the status

of his pursuit. At no time during the chase did Officer Morgan communicate directly

with Officer Cronin.

During the chase, Officer Morgan twice identified himself as a police officer,

but was unsure whether the suspect could hear him. As the suspect was fleeing, he

removed his coat and stocking cap, and Officer Morgan immediately realized he was

not Shade. Shade stands six feet, two inches and weighs approximately 210 pounds.

Simpson, by contrast, is five feet, six inches and weighs approximately 150 pounds.

Despite this realization, Officer Morgan continued to chase the suspect because

he believed the man knew he and Officer Cronin were police officers and, as a result,

had intentionally concealed his identity and taken flight to evade them. The chase

ultimately ended after two or three blocks when Officer Cronin, pursuing the suspect

from the opposite direction, cut the suspect off and announced he was a police officer.

Officer Cronin attempted to arrest the suspect, but he resisted. Officer Cronin then
1

The Honorable Robert W. Pratt, United States District Judge for the Southern

District of Iowa.

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forced the suspect to the ground and subdued him with the help of other officers who

had, by now, arrived on the scene. Officer Cronin was unaware the person he chased

down was not Shade.

Shortly after the suspect’s arrest, the officers identified him as Bryan Simpson

and discovered an outstanding warrant for his arrest. While officers verified

Simpson’s identity, Officer Morgan and others retraced the chase route and discovered

two magazines containing ammunition and an assault rifle on the ground. The officers

then searched Simpson’s person and recovered three bullets. These bullets matched

the ammunition found in the two magazines recovered by police.

Approximately two hours after his arrest, authorities read Simpson his Miranda

rights. Simpson also signed a Miranda waiver. Police then interrogated him for

approximately one hour, during which time Simpson told officers they would likely

find his prints on the rifle. Simpson also identified the man who sold him the rifle.

At no time during the interview did Simpson ask for an attorney.

Simpson was subsequently charged as a felon in possession of a firearm, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Simpson moved to suppress

admission of his post-arrest statements. The district court1

 denied Simpson’s motion

even though it ruled his initial seizure violated the Fourth Amendment. Simpson

subsequently filed a motion in limine to exclude admission of the rifle, the two

magazines, and the three bullets. This motion was also denied.

On March 9, 2005, Simpson entered a conditional plea of guilty to being a felon

in possession of a firearm, reserving the right to appeal the district court’s rulings on

his motion to suppress and motion in limine. Simpson now appeals each of these
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rulings. Simpson also appeals the district court’s sentence, alleging it violates his

Sixth Amendment right to a trial by jury.

II. DISCUSSION

A. Admissibility of the Rifle and Magazine Clips

Simpson first argues the rifle and magazine clips recovered on the ground by

the officers are inadmissible under the Fourth Amendment as fruit of the poisonous

tree. We review the district court’s Fourth Amendment rulings de novo. United

States v. Brown, 49 F.3d 1346, 1348-49 (8th Cir. 1995). 

“Under the ‘fruit of the poisonous tree’ doctrine, the exclusionary rule bars the

admission of physical evidence and live witness testimony obtained directly or

indirectly through the exploitation of police illegality.” Hamilton v. Nix, 809 F.2d

463, 465 (8th Cir. 1987) (citing Wong Sun v. United States, 371 U.S. 471, 484-88

(1963)). The district court ruled, and the government does not dispute, that law

enforcement had neither probable cause nor reasonable suspicion to seize Simpson.

We will therefore assume, without deciding, that Simpson’s initial seizure was

unconstitutional. Given this background, we must now address whether the rifle and

magazines recovered on the ground after Simpson’s seizure were obtained through an

improper exploitation of the initial police illegality. 

Simpson concedes he was first seized, for purposes of the Fourth Amendment,

when Officer Cronin tackled him. Simpson’s chase by law enforcement was, in all

respects, lawful, and his relinquishment of the rifle and magazines was an act

preceding the police illegality. See California v. Hodari D., 499 U.S. 621, 629 (1991)

(holding that pursuit by law enforcement, even where law enforcement makes a “show

of authority,” does not constitute a Fourth Amendment “seizure”). The mere fact that

police recovered the rifle and magazines after Simpson’s unlawful seizure does not
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render this evidence inadmissible. Had authorities not arrested Simpson, they would

have been free to retrace the search route and recover any and all evidence they

encountered on the way. Evidence recovered under these circumstances is ordinarily

admissible. See United States v. Liu, 180 F.3d 957, 962 (8th Cir. 1999). Simpson’s

unlawful seizure does not change the fact that he relinquished control over the rifle

and magazines prior to any police misconduct. We therefore reject Simpson’s fruit

of the poisonous tree argument because the rifle and magazines were obtained through

conduct that preceded the police illegality. Instead, the more relevant inquiry is

whether Simpson abandoned the rifle and magazines such that they may be properly

admitted as evidence. 

We review a district court’s abandonment rulings for clear error. United States

v. Segars, 31 F.3d 655, 658 (8th Cir. 1994). Generally, abandoned property may be

recovered by police and used for evidentiary purposes. See Hester v. United States,

265 U.S. 57, 58 (1924); United States v. Hollman, 541 F.2d 196, 199 n.8 (8th Cir.

1976). When determining if evidence has been abandoned, courts must consider

whether the defendant relinquished his reasonable expectation of privacy over the

objects. See United States v. Hoey, 983 F.2d 890, 892-93 (8th Cir. 1993). This

determination is made based on the objective facts available to the officers at the time

they recovered the evidence, taking into account the totality of the circumstances.

United States v. Tugwell, 125 F.3d 600, 602 (8th Cir. 1997). Under this test, courts

typically consider two critical factors – whether the defendant physically relinquished,

and denied ownership over, the challenged evidence. Id. 

Here, Simpson threw the rifle and magazines on the ground while being chased

by police. This act suffices to establish the evidence was physically relinquished.

Further, the district court found, and we agree, that at the time Simpson discarded the

rifle and magazines, he was attempting to disclaim ownership over this evidence so

authorities could not trace the objects back to him. Therefore, we conclude the district
2

The Supreme Court has also recognized two additional exceptions to the

exclusionary rule – the “independent source” and “inevitable discovery” doctrines,

neither of which is applicable to the facts of this case. See Hamilton, 809 F.2d at 465-

66.

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court did not clearly err when it found that Simpson abandoned the rifle and

magazines and, as such, this evidence is admissible.

B. Admissibility of the Bullets and Simpson’s Post-Arrest Statements

Simpson alleges the three bullets recovered from his person, as well as the

statements he made to police some two hours after discovery of his outstanding arrest

warrant, are inadmissible as fruit of the poisonous tree. We review these claims de

novo. Brown, 49 F.3d at 1348-49. 

Although the United States Supreme Court has refused to adopt a per se, or “but

for,” rule that would make inadmissible any evidence, whether tangible or live-witness

testimony, where such evidence is obtained through a chain of causation that began

with an illegal arrest, United States v. Ceccolini, 435 U.S. 268, 276 (1978), we note,

once again, the familiar precept that “the indirect fruits of an illegal search or arrest

should be suppressed when they bear a sufficiently close relationship to the underlying

illegality.” New York v. Harris, 495 U.S. 14, 19 (1990). Nevertheless, evidence

obtained under these circumstances may be admissible if “the unlawful conduct has

become so attenuated or has been interrupted by some intervening circumstance so as

to remove the ‘taint’ imposed upon that evidence by the original illegality.” United

States v. Crews, 445 U.S. 463, 470 (1980).2

In this case, Simpson’s initial seizure violated the Fourth Amendment. The

three bullets and his post-arrest statements were obtained, respectively, after police

discovered the outstanding warrant for his arrest. The only question is whether there

was sufficient attenuation to dissipate the taint of Simpson’s unlawful seizure such
3

However, in cases where, for example, the defendant consents to a search, the

time between the initial illegality and the defendant’s consent is critical because the

closer this period, the more likely the defendant’s consent was influenced by, or the

product of, the police misconduct. Brown, 111 F.3d at 522. Evidence recovered

under these circumstances is ordinarily considered tainted and therefore inadmissible.

E.g., United States v. Patino, 830 F.2d 1413, 1419 (7th Cir. 1987). 

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that the bullets and his post-arrest statements are admissible. When determining if

sufficient attenuation exists, we must focus on three specific factors: (1) the time

elapsed between the illegality and acquisition of the evidence; (2) the presence of

intervening circumstances; and (3) the purpose and flagrancy of the official

misconduct. Brown v. Illinois, 422 U.S. 590, 603-04 (1975). 

In instances where the intervening circumstance is the discovery of an

outstanding arrest warrant, courts have held the first factor – the time elapsed between

the initial illegality and the acquisition of the evidence – is less relevant because the

intervening circumstance is not a voluntary act by the defendant. See United States

v. Green, 111 F.3d 515, 522 (7th Cir. 1997). In these cases, there is “no chance that

the police have exploited an illegal arrest by creating a situation in which [the]

criminal response is predictable.” Id. (internal citations omitted).3

 Here, the

intervening circumstance is an arrest warrant, not a voluntary act by Simpson.

Therefore, our review need not focus on the first Brown factor. Instead, the

appropriate analysis must consider the nature of the intervening circumstance and the

purpose and flagrancy of the official misconduct.

Where the discovery of an arrest warrant constitutes the intervening

circumstance, “it is an even more compelling case for the conclusion that the taint of

the original illegality is dissipated.” Id. Accordingly, we rule Simpson’s outstanding

arrest warrant constitutes an extraordinary intervening circumstance that purges much

of the taint associated with the officers’ unconstitutional conduct.
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The final issue is whether Officers Morgan and Cronin acted purposefully and

flagrantly to violate Simpson’s Fourth Amendment rights. The purpose and flagrancy

of the official misconduct is considered the most important factor because it is directly

tied to the purpose of the exclusionary rule – deterring police misconduct. United

States v. Reed, 349 F.3d 457, 464-65 (7th Cir. 2003). Application of the exclusionary

rule, however, “does not serve this deterrent function when the police action, although

erroneous, was not undertaken in an effort to benefit the police at the expense of the

suspect’s protected rights.” United States v. Fazio, 914 F.2d 950, 958 (7th Cir. 1990).

Courts have found purposeful and flagrant conduct where: (1) the impropriety

of the official’s misconduct was obvious or the official knew, at the time, that his

conduct was likely unconstitutional but engaged in it nevertheless; and (2) the

misconduct was investigatory in design and purpose and executed “in the hope that

something might turn up.” Brown, 422 U.S. at 605; see also United States v. Cantu,

230 F.3d 148, 160 (5th Cir. 2000); United States v. Causey, 818 F.2d 354, 358-59 (5th

Cir. 1987).

Simpson alleges Officers Morgan and Cronin acted purposefully and flagrantly

because no reasonable officer would confuse him with Shade in light of the dramatic

physical disparities between the two men. However, there is no evidence that either

officer acted with the knowledge his conduct was likely unconstitutional, illegal, or

improper. Instead, the facts demonstrate Officer Cronin believed, albeit erroneously,

that Simpson was Shade when he tackled and arrested him. Similarly, Officer Morgan

continued in pursuit even after realizing the suspect was not Shade under the belief the

suspect was intentionally trying to evade police. We note that law enforcement may

conduct an investigative stop when a suspect flees from the police without

provocation, and where the area in question is known for heavy narcotics trafficking.

Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000). In this case, however, the district

court found, and we will assume for purposes of this appeal, that there was insufficient

suspicion to justify an investigative stop based, in part, on the lack of physical
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similarities between Shade and Simpson. Yet the officers’ unreasonable mistake of

fact on this point does not constitute the type of blatantly unconstitutional or flagrant

behavior condemned in Brown. 

Moreover, there is no indication Officers Cronin and Morgan pursued Simpson

in a purposeful effort to gather evidence against him. Instead, both officers initially

pursued Simpson under the belief he was Shade. See Green, 111 F.3d at 523 (noting

officers were not engaged in an effort to gather evidence against the defendant where

they believed the defendant was another person). Even though Officer Morgan

realized the man he was chasing was not Shade, neither Morgan, nor any other officer,

exploited Simpson’s unconstitutional seizure. The three bullets and Simpson’s

subsequent inculpatory statements were obtained only after discovery of the

outstanding warrant for his arrest, which itself provided officers with independent

grounds to search and question him. 

Therefore, we rule the three bullets recovered from Simpson’s person, as well

as his post-arrest statements, were not obtained through an improper exploitation of

his arrest and, as such, this evidence is admissible.

C. Constitutionality of the District Court’s Sentence 

Finally, Simpson alleges the district court violated his Sixth Amendment rights

when it found, independent of a jury, that he had been convicted of two prior felonies.

This finding, taken in conjunction with Simpson’s conviction under 18 U.S.C.

§§ 922(g)(1) and 924(e)(1), rendered him eligible for sentencing as an armed career

criminal under United States Sentencing Guidelines § 4B1.4. 

However, “the fact of prior conviction is for the court to determine, not a jury.”

United States v. Nolan, 397 F.3d 665, 667 n.2 (8th Cir. 2005); see also United States

v. Booker, 543 U.S. 220, ___; 125 S. Ct. 738, 756 (2005) (“Any fact (other than prior
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conviction) which is necessary to support a sentence exceeding the maximum . . . must

be admitted by the defendant or proved to a jury beyond a reasonable doubt.”).

Therefore, the district court’s sentence was proper.

III. CONCLUSION

For the foregoing reasons, we affirm each of the district court’s challenged

rulings. 

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