* This order and judgment is not binding precedent, except

under the doctrines of law of the case, res judicata, and

collateral estoppel. The court generally disfavors the citation

of orders and judgments; nevertheless, an order and judgment may

be cited under the terms and conditions of 10th Cir. R. 36.3.

 

** The Honorable Thomas M. Reavley, United States Court of

Appeals, Fifth Circuit, sitting by designation.

 

1 See 18 U.S.C. § 3731

 

2 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A); 18 U.S.C. § 2.

UNITED STATES COURT OF APPEALS

Filed 8/26/96

TENTH CIRCUIT

 

UNITED STATES OF AMERICA, )

)

Plaintiff-Appellant, )

v. ) No. 95-2216

) (D.C. No. CR-95-130-JP)

ESSEX DWAYNE COOK, ) (D. New Mexico)

)

Defendant-Appellee. )

 

ORDER AND JUDGMENT*

 

Before TACHA, REAVLEY** and LUCERO, Circuit Judges.

 

The government appeals the district court’s decision to

grant Cook and Smith’s motions to suppress. 1 Cook and Smith were

indicted for possession with intent to distribute more than 50

grams of cocaine base, and for the possession of a firearm during

that crime.2 The district court determined that the police

violated the defendants’ Fourth Amendment rights, and that the
2

evidence should be suppressed.

Cook and Smith were traveling from Little Rock, Arkansas, to

California aboard an Amtrack train. Sometime prior to arriving

in Albuquerque, New Mexico, the two men upgraded from coach class

to a private sleeper. When the train arrived in Albuquerque, it

was met by Albuquerque police officer Tate. She was a member of

a drug interdiction unit being operated by local police. Officer

Tate regularly met the Eastbound and Westbound Amtrack trains, to

look for drugs or drug money being transported aboard the train. 

After checking other unsuccessful leads, Tate and her partner

asked the conductor if any passengers had upgraded from coach to

a private sleeper compartment recently. She testified that in

her experience drug traffickers tended to travel in the private

compartments and often upgraded once aboard. The conductor

informed her that Cook and Smith had recently upgraded.

Officer Tate went to Cook and Smith’s compartment and

knocked on the door, while her partner remained in the hallway. 

Officer Tate recorded her entire confrontation with the

defendants on an audio tape recorder. Cook answered the door,

and Tate identified herself as a police officer and asked whether

she could ask them some questions. The private compartment

contained a lower and upper berth on one side of the room and was

approximately three feet wide by six feet deep. Cook was sitting

upright on the lower berth, and Smith was sitting above him on

the upper berth. Tate asked for their tickets and

identification. Cook and Smith produced their tickets and Smith
3

produced his identification. Cook informed Officer Tate that he

had left his identification at a cousin’s house in Arkansas.

After a brief inspection, Officer Tate returned the

documents. Officer Tate then began asking a series of questions

regarding the individuals’ luggage. Tate noticed a blue duffel

bag in the room and began to inquire whose bag it was. The

following exchange occurred:

Tate: Would you give me permission to search your bag?

Uh, Kevin, or, I don’t know whose bag it is. 

Whose bag is it?

Smith: It’s his bag.

Cook: Yea.

Detective Tate began conducting the search of bag, then inquired,

Tate: Uh, what I do is work an interdiction program here

with Drug Enforcement, and we just talk to people

everyday going east to west as well as west to

east. Starting to use the train to transport

narcotics and large sums of money associated with

narcotics. Um, this is your bag? All your stuff

is in here? (Emphasis added).

The district court determined that Cook’s answer only indicates

that he claimed ownership of the bag, and that it does not

demonstrate consent for the officer to search the bag. The lack

of consent, according to the district court, is further supported

by officer Tate’s inquiry as to the ownership of the bag a second

time after she had searched the bag. While no incriminating

evidence was found in this bag, the district determined that the

search was conducted without consent and in violation of the

defendants’ Fourth Amendment rights. 

On the heels of the unlawful search, Tate inquired about the
4

two other bags in the room. After obtaining Smith’s consent to

search his black bag, Tate discovered a handgun which Cook

admitted owning. Officer Tate testified that she was aware at

that moment that Cook believed he was about to be arrested. 

While talking with Cook at that time, officer Tate stated, “Well,

I just want to search your stuff first, okay.” The officer then

attempted to discover who owned the last remaining bag, a bowling

ball bag. Both Smith and Cook denied ownership, and informed her

that the bag had been on board when the two arrived. Tate

searched that bag and discovered approximately 400 gross grams of

crack cocaine in fourteen clear plastic packages. The district

court suppressed the evidence obtained from the later two bags

based upon officer Tate’s actions in searching the first bag. 

The government does not appeal the district court’s finding that

the defendant’s Fourth Amendment rights were violated in regard

to the search of the blue duffle bag; rather, the government

argues that Smith’s consent to search of the black bag and that

the defendants’ abandonment of the bowling bag were not tainted

by the earlier Fourth Amendment violation.
 

3 United States v. Boone, 62 F.3d 323, 325 (10th Cir.

1995), cert. denied, 116 S.Ct. 576 (1996). 

 

4 United States v. Botero-Ospina , 71 F.3d 783, 785 (10th

Cir. 1995) (en banc); United States v. McSwain, 29 F.3d 558, 560

(10th Cir. 1994).

 

5 Id. (citing Wong Sun v. United States, 83 S.Ct. 407,

415-16 (1963)). 

 

6 McSwain, 29 F.3d at 562; United States v. Fernandez, 18

F.3d 874, 881 (10th Cir. 1994). 

 

7 McSwain, 29 F.3d at 562; Fernandez, 18 F.3d at 881. 

5

 Discussion

We review the factual findings underlying the district

court’s ruling under a clearly erroneous standard; Fourth

Amendment reasonableness is a question of law reviewed de novo. 3

We view the evidence in the light most favorable to the

prevailing party.4

“Generally, evidence that is acquired because of prior

illegal activity must be excluded as fruit of that illegality.” 5

“A search preceded by a Fourth Amendment violation remains valid

if the consent to search was voluntary in fact under the totality

of the circumstances.”6 The burden of proof is upon the

government to demonstrate the voluntariness of the consent, that

burden is heavier where the consent is given after a Fourth

Amendment violation.7 It is not always that the evidence is to

be excluded, the question is whether the evidence “has been

obtained ‘by means sufficiently distinguishable to be purged of
 

8 Boone, 62 F.3d at 325 (quoting Wong Sun, 83 S.Ct. at

417). 

 

9 Brown v. Illinois, 95 S.Ct. 2254, 2261-62 (1975);

Boone, 62 F.3d at 325-26. 

 

10 United States v. Eylicio-Montoya , 70 F.3d 1158, 1165

(10th Cir. 1995). 

6

the primary taint.’”8 To determine whether the taint has been

purged we look to three factors: the time lapse between the

illegality and the acquisition of the evidence, the purpose and

flagrancy of the official misconduct, and the presence of

intervening circumstances.9 “Because the question is fact

intensive, the district court’s findings must be upheld unless

they are clearly erroneous.”10 We are presented with a very

close case; however, based upon the district court’s factual

findings, we affirm.

The district court held that the taint of illegality was not

purged in this case. There were no intervening circumstances

between the illegal search of the blue bag and the subsequent two

searches. The search of the other two bags occurred within

seconds (26 seconds later for the black bag and 45 seconds after

that search for the bowling bag.) Finally, while officer Tate

testified that she believed she had consent, it is clear from her

questions that she was not even sure of the ownership of the blue

bag before she began her search. Additionally, due to Tate’s

actions, Smith testified that “he felt powerless to contest

[Tate’s] actions after she searched the blue bag without

consent.” As the district court summarized, Smith believed it
 

11 United States v. Ward, 961 F.2d 1526, 1535 (10th Cir.

1992). 

7

would have been pointless to object. 

The government argues that Smith and Cook abandoned the

bowling bag, and therefore, could not assert their Fourth

Amendment rights. However, “[w]hen an alleged abandonment

follows a Fourth Amendment violation, the issue is whether he

abandonment of the property was voluntary.” 11 Because, Smith

believed he was powerless to object to Tate’s actions, that is

based upon her past performance she was going to search their

bags anyway, the abandonment was not voluntary.

Based upon the factual findings of the district court, we

affirm.

Entered for the Court

Thomas M. Reavley

Circuit Judge