On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. No. 04-cr-00190). District Judge: Honorable John R. Padova.
The opinion of the court was delivered by: Fisher, Circuit Judge
Before: FISHER, CHAGARES and REAVLEY,*fn1 Circuit Judges.
We are presented here with a casebook-ready fact pattern implicating an area of Fourth Amendment law that has long been a source of confusion. Today we explain, as clearly as we can, how the exclusionary rule applies in cases in which evidence obtained during an illegal traffic stop is introduced against a passenger with no possessory interest in the vehicle.
We hold that when a vehicle is illegally stopped by the police, no evidence found during the stop may be used by the government against any occupant of the vehicle unless the government can show that the taint of the illegal stop was purged. The metaphorical bubble of causation encapsulates the entire vehicle and links the illegality of the stop to the Fourth Amendment rights of all of the occupants.
In so holding, we join all of our sister circuits that have directly faced this issue. We will canvass that caselaw, and explain why we agree with it.
On the night of October 28, 2003, Robert Mosley went to the Diamond Dolls nightclub in Philadelphia with his nephew Jerome Small, who drove. While they were at the club, Small received a telephone call from a romantic acquaintance, and told Mosley that he was leaving the club to go meet her. Not wanting to leave Mosley without a ride home, Small introduced Mosley to his friend Julian Hayes, who agreed to drop Mosley off on his way home. At around 1:30 a.m., Mosley left the club with Hayes and Erica Scott, a dancer at the club who was accompanying Hayes. Hayes and Scott got in the front seat of Hayes' vehicle, a green Suzuki SUV, and Mosley got in the back.
At about the same time, a police radio call went out advising officers to be on the lookout for a black man with dreadlocks driving a green SUV. The source of the information relayed in the radio call is not reflected in the record. Police officers on patrol in the neighborhood of the nightclub heard the call and shortly thereafter saw Hayes' SUV, a green SUV with a black driver, as it was pulling away from the nightclub. They immediately pulled the car over. Upon approaching the car, the responding officers observed a gun on the floor under the driver's seat. They then ordered Hayes, Scott, and Mosley to get out of the car, and searched it, recovering a second gun from the front seat, two from the floorboards of the back seat area, and one from the back seat itself. Hayes and Mosley were arrested and charged with gun possession.
However, the Supreme Court has held that anonymous tips do not provide sufficient justification for an investigatory stop, see Florida v. J.L., 529 U.S. 266 (2000), and the officers did not observe Hayes committing any traffic violation that would have justified the stop under Whren v. United States, 517 U.S. 806 (1996). The government conceded that the stop was illegal, and dropped all charges against Hayes.
The government proceeded, however, with the gun possession case against Mosley, arguing that because he was a passenger in the vehicle, he could not seek to suppress the guns, notwithstanding the illegality of the stop. Mosley contended that insofar as he had been illegally seized by the traffic stop, he should have the same suppression claim as Hayes. The District Court agreed with the government, and admitted into evidence the guns found in the back seat of the vehicle.*fn2 Mosley was convicted under 18 U.S.C. § 922(g) for possessing a firearm following a felony conviction.*fn3 He appeals on several grounds; we will decide the case on the suppression issue.*fn4 "We review the denial of a motion to suppress for clear error as to the underlying factual determinations and exercise plenary review over the application of the law to those facts." United States v. Williams, 417 F.3d 373, 376 (3d Cir. 2005).
When one peruses the traffic-stop suppression caselaw, one is struck by how rarely a traffic stop is found to have been illegal. In United States v. Whren, 517 U.S. 806 (1996), the Supreme Court established a bright-line rule that any technical violation of a traffic code legitimizes a stop, even if the stop is merely pretext for an investigation of some other crime. And once a car has been legally stopped, the police may "escalate" the encounter by visually inspecting the interior of the car, and checking credentials and asking questions of the occupants. See United States v. Givan, 320 F.3d 452, 458 (3d Cir. 2003) ("After a traffic stop that was justified at its inception, an officer who develops a reasonable, articulable suspicion of criminal activity may expand the scope of an inquiry beyond the reason for the stop and detain the vehicle and its occupants for further investigation."). Courts give considerable deference to police officers' determinations of reasonable suspicion, see, e.g., United States v. Nelson 284 F.3d 472, 482 (3d Cir. 2002), and the cases are steadily increasing the constitutional latitude of the police to pull over vehicles.*fn5
Passengers in cars, unlike owners or licensees, have no reasonable expectation of privacy in the interior of the vehicle in which they are riding. Because the Fourth Amendment's protection against unreasonable searches is predicated on the invasion by the government of a person's reasonable expectation of privacy, passengers are generally held to lack "standing"*fn6 to object to evidence discovered in a search of a vehicle. See Rakas v. Illinois, 439 U.S. 128 (1978). Fourth Amendment rights are personal rights, and a search of a car does not implicate the rights of non-owner passengers: the car is treated conceptually like a large piece of clothing worn by the driver.
But we should not be distracted by the fact that this case involves evidence found in a car. This is not an "auto search" case. The search of the car is not before us; the seizure of Mosley is. This case is about an illegal seizure by the police of the defendant, pursuant to which evidence was discovered. The violation of Mosley's Fourth Amendment rights was the traffic stop itself, and it is settled law that a traffic stop is a seizure of everyone in the stopped vehicle, see Delaware v. Prouse, 440 U.S. 648, 653 (1979).*fn7 Thus passengers in an illegally stopped vehicle have "standing" to object to the stop,*fn8 and may seek to suppress the evidentiary fruits of that illegal seizure under the fruit of the poisonous tree doctrine, as expounded in the line of cases following Wong Sun v. United States, 371 U.S. 471 (1963). The dispositive legal issue is the causal relationship between the traffic stop and the discovery of the evidence: whether the evidence found in the car was "fruit" of the illegal stop. The question that bedeviled the proceedings below is whether the evidence found in the car was causally linked to the illegal seizure of Mosley, the passenger.
In analyzing that causal connection, the District Court relied on a Tenth Circuit case, United States v. DeLuca, 269 F.3d 1128 (10th Cir. 2001), in which a passenger sought to suppress evidence found during a traffic stop. Taking its cue from that case, the District Court proposed various hypotheticals to test the "factual nexus" between the violation of Mosley's Fourth Amendment rights and the discovery of the evidence. Specifically, the District Court pondered whether, if Mosley had asked for and received permission to leave the scene immediately after the car was stopped, the evidence in the car would still have been discovered. Since the answer to that question is obviously "yes," the District Court ruled that Mosley had failed to demonstrate an adequate "factual nexus" between the illegal government action and the discovery of the challenged evidence. Although the government had clearly violated Mosley's Fourth Amendment rights, the District Court determined that the specific violation of Mosley's rights -- as opposed to Hayes' rights -- did not have a sufficiently close causal connection, or "factual nexus," to the discovery of the evidence to support Mosley's suppression claim.
The general requirement of a "factual nexus" between a specific Fourth Amendment violation and a specific piece of evidence derives from two Supreme Court cases on wiretap evidence. In those cases, the government had gathered thousands of discrete pieces of evidence over many months of investigation. Over the course of the investigation, the government committed various illegal acts, and the question for the Court was how to determine which pieces of evidence were tainted by the particular illegal actions. See United States v. Nardone, 308 U.S. 338, 341 (1939); United States v. Alderman, 394 U.S. 165, 183 (1969). Because of the multiplicity and complexity of the investigation and the evidence, there was no commonsense causal relationship between any given Fourth Amendment violation and any given piece of evidence. Rather than hold all the evidence to have been tainted by the violations, the Court held that the proper course is for district courts to probe more deeply, and employ thought experiments to determine which violation was causally connected to which piece of evidence.*fn9 These cases express the commonsense proposition that a single Fourth Amendment violation does not taint an entire case, but only the evidence uncovered as a result of that violation.
Prior to DeLuca, courts had not generally thought that traffic stops presented sufficiently complex investigatory contexts to warrant such an added layer of causal analysis. In DeLuca, however, a panel of the Tenth Circuit, over a heated dissent by former Chief Judge Seymour, applied that counterfactual -- "What if?" -- approach to a suppression motion brought by a passenger who was illegally detained during a traffic stop. The application of "factual nexus" hypotheticals to a traffic stop suppression case was a novel idea. The majority view in the circuits was and remains that in a traffic stop, there will always be a sufficient "nexus" between the stop and the search, unless there are significant intervening events that sever or attenuate the causal chain. There is generally no "nexus" problem in illegal traffic stop cases, as the leading treatise puts it, because the connection between the illegal action and the discovery of the evidence is straightforward: If the police had not pulled over the vehicle, they would not have discovered the evidence. See 6 Wayne R. LaFave, Search and Seizure § 11.4(d) (4th ed. 2004) (summarizing caselaw).
We can understand why the DeLuca majority thought that the case required some revision to the traditional fruits analytical apparatus. DeLuca did not involve an illegal traffic stop. It involved instead a legal traffic stop that became illegal when the police continued to detain the vehicle and its occupants after the legitimate purposes of the stop had been completed.*fn10 Because the stop itself was legal, the court reasoned that whatever government actions violated the defendant's rights must be analytically separable from the traffic stop. The Fourth Amendment violation in DeLuca was the detention of the defendant passenger, along with the other occupants of the car, beyond the period necessary to complete the legitimate purposes of the stop. But at the point that the detention of the defendant passenger became illegal, the police already had control over the vehicle. The court therefore tried to tease out the causal efficacy of the precise illegality raised by the defendant passenger. The court asked whether, if the passenger had been allowed to leave the scene before the detention became illegal, the incriminating evidence would still have been discovered. The answer was "yes": it wasn't his car, so his leaving would not have removed the evidence.
The question in DeLuca was thus whether the police would still have discovered the challenged evidence if they had let the passenger go before doing anything illegal to him. On the DeLuca facts, if the police had let the passenger go after the initial legal stop but before the subsequent illegal prolongation of the stop, then nothing illegal would have been done to him -- and the evidence would still have been discovered. Therefore the passenger had no suppression claim. So reasoned the Tenth Circuit.*fn11
But we agree with Mosley that DeLuca is inapposite here. The hypothetical, and the holding, are relevant only to situations in which the initial traffic stop is legal, and that is not our case. We express no opinion on the viability in this Circuit of the DeLuca test on DeLuca facts; we decide the case before us, not a different one.*fn12 But whatever its viability on appropriate facts, this case does not present such facts. If the initial traffic stop is illegal, then even if the passenger is allowed to leave the scene before the search, it will not be the case that the police have not violated his Fourth Amendment rights. Where the traffic stop itself is illegal, it is simply impossible for the police to obtain the challenged evidence without violating the passenger's Fourth Amendment rights. DeLuca says nothing about such situations.
The Tenth Circuit itself has addressed the question whether DeLuca applies to traffic stops illegal from their inception, and stated clearly that it does not. It applies, the court explained in a recent suppression case applying DeLuca, only to cases in which the illegal police conduct occurred after the police had legally gained control of the vehicle.*fn13 The temporal sequence of events makes all the difference, said the court:
[Wong Sun] and its progeny, see, e.g., United States v. Melendez-Garcia, 28 F.3d 1046, 1053-54 (10th Cir. 1994), are readily distinguishable insofar as in those cases the illegal police conduct preceded the means by which the evidence was obtained, thus establishing the requisite factual nexus between the evidence and the illegal conduct. By contrast, any unlawful police activity here occurred after voluntary consent had been obtained. Consequently, [the defendant] could not establish that, but for the alleged illegal seizure, the evidence would not have come to light as required by DeLuca.
United States v. Roberts, 91 Fed. Appx. 645, 648 (10th Cir. 2004) (emphasis added).
The District Court's application of DeLuca to the case at bar, in which the illegal police conduct preceded the means by which the evidence was obtained, was error, because even under the Tenth Circuit's heightened "factual nexus" test, such a temporal scenario would appear to clearly supply the requisite "factual nexus."*fn14
It is clear, so far, that an illegal traffic stop constitutes a seizure of all occupants of a vehicle, including passengers, and that whatever the utility of the DeLuca counterfactual analysis to fact patterns not before us, it is not the proper analytical model for the case that is before us.