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Ninth Circuit: Mere Passage of Time Doesn’t Attenuate Evidence From Initial Constitutional Violation

In July 2017, a police aircraft flying over Gresham, Oregon, was struck by a green laser, temporarily blinding the pilot. The plane’s equipment was able to determine the laser was beamed from Bocharnikov’s residence. After midnight, officers from the Multnomah County Sheriff’s Department (“MCSD”) arrived at the residence. Bocharnikov, wet from his shower and wearing only his boxer shorts, came to the door.

When asked about the laser, he said “[i]t was the kids.” An officer then handcuffed Bocharnikov, sat him on the front steps of his house, explained “the seriousness of the incident,” and said that they “were there only to recover the laser in question.” Bocharnikov then admitted to shining the laser at the plane, stating he did not think it could reach that far. After apologizing, he handed over the laser to the officers. The officers released Bocharnikov and left.

Eight months later in March 2018, FBI Special Agent Adam Hoover of the FBI Joint Terrorism Task Force questioned Bocharnikov at his residence. Hoover asked if he “could ask some follow-up questions regarding the laser strike from the previous summer.” Almost immediately Bocharnikov said it “was a stupid thing to do” and “it was a mistake.” Their conversation lasted between 20 and 40 minutes.

Bocharnikov was indicted on one count of aiming a laser at an aircraft in violation of 18 U.S.C. § 39A. He moved to suppress his statements to Hoover because they were tainted by the illegality of the detention and interrogation by the MCSD. The district court denied the motion, ruling that the March 2018 interview “was not a continuation of the July 2017 interrogation.” The court reached this conclusion based on Bocharnikov’s willingness to speak with Hoover, the different circumstances of the two interviews, and the time that elapsed between the two interviews.

Bocharnikov appealed. On appeal, the Government conceded that MCSD’s initial encounter with Bocharnikov violated at least the Fourth Amendment but that Hoover’s encounter with him was sufficiently attenuated from the initial encounter.

The Ninth Circuit observed that “[t]he Fourth Amendment protects ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The “exclusionary rule” provides that evidence obtained through a violation of the Fourth Amendment should be excluded from trial. Wong Sun v. United States, 371 U.S. 471 (1963). The rule applies to the direct fruits of a Fourth Amendment violation and indirect fruits of the illegal search if they “bear a sufficiently close relationship to the underlying illegality.” United States v. Ladum, 141 F.3d 1328 (9th Cir. 1998).

The Government bears the burden of proving the taint of the prior illegality has been attenuated enough to allow the statements made during the second interrogation into evidence. United States v. Cella, 568 F.2d 1266 (9th Cir. 1977). Because the Government conceded that MCDS illegally detained Bocharnikov, the Government must prove his second statement was voluntary and that it was “sufficiently an act of free will to purge the primary taint.” Brown v. Illinois, 422 U.S. 590 (1975). That is, the Government must “show a sufficient break in events to undermine the inference that the confession was caused by the Fourth Amendment violation.” Oregon v. Elstad, 470 U.S. 298 (1985). Three factors are relevant to make this determination: (1) the temporal proximity of the search to the confession, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. United States v. Shelter, 665 F.3d 1150 (9th Cir. 2011).

The first factor weighed in Bocharnikov’s favor. Even though eight months had elapsed between interviews, one of the first things Hoover said was that he was there to “ask some follow-up questions.” By using this phrasing, the second encounter was a de facto extension of the first incident, the passage of time notwithstanding, the Court determined.

With regard to the second factor, there were no intervening circumstances to separate the interviews. This factor weighed in favor of Bocharnikov.

As for the third factor, nothing shows the MCSD’s misconduct was purposeful or flagrant. The officers were understandably focused on securing the laser to prevent any further threats to aircraft. Still, the Government conceded that the facts did not rise to create exigent circumstances to sustain a warrantless arrest in a home. While this factor tilted slightly against suppression, it was not dispositive in light of the other factors.

The Court concluded that the Government failed to carry its burden of proving Bocharnikov’s statements were sufficiently attenuated from the earlier illegal seizure. His statements should have been suppressed.

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Related legal case

United States v. Bocharnikov



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