USA v. Burk

U.S. v. Burk
3:15-cr-00022-RRB-DMS
Recommendation Regarding Objections 	Page 1 of 11
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOHNNYLEE PRESTON BURK,
Defendants.
Case No. 	3:15-cr-00022-RRB-DMS
RECOMMENDATION REGARDING
GOVERNMENT’S OBJECTIONS
(DOC. 166)
In the Initial Report and Recommendation, this Court recommended that
Defendant Johnnylee Burk’s Motion to Suppress be granted. (Doc. 160). The
government filed numerous objections, (Doc. 166), and Burk responded, (Doc. 169).
Notably, the government did not object to the Court’s findings that the act of
driving Burk away from the scene of his initial detention was made without an
investigative purpose or out of a concern for officer safety. Filed simultaneous with
these recommendations is the Court’s Final Report and Recommendation.
I. 	The Government’s Objections
A. Objection 1: The Tracker Warrant Did Not Violate the Fourth
Amendment.
The government reasserts its argument that the state GPS tracking warrant
did not violate the Fourth Amendment. (Doc. 166 at 1). As the Court explained in
section III(A) of its Final Report and Recommendation, it is unnecessary to reach
this issue because the Court finds that it must recommend suppression even if the
warrant was valid under the Fourth Amendment.
Case 3:15-cr-00022-RRB-DMS Document 171 Filed 03/17/16 Page 1 of 11

U.S. v. Burk
3:15-cr-00022-RRB-DMS
Recommendation Regarding Objections 	Page 2 of 11
B. Objection 2: The Alaska State Troopers’ Reliance on the Warrant Was
Proper.
The government reasserts its argument that even if the GPS tracker warrant
was invalid, Sgt. Nelson of the Alaska State Troopers acted in good faith in relying
on a warrant issued by a neutral and detached magistrate. (Doc. 66 at 1-2). It is
unnecessary to reach this issue, as the Court must recommend suppression even if
the warrant was valid under the Fourth Amendment, or, in the alternative, law
enforcement acted in good faith in executing an invalid warrant. See Section III(A)
of the Final Report and Recommendation.
The Court reiterates its conclusion in section III(F)(3) of the Final Report and
Recommendation: the warrant in this case did not authorize an arrest without
probable cause to facilitate the replacement of the GPS tracking device following a
Terry stop in an unrelated investigation. Accordingly, the government cannot rely
on the officer’s good-faith reliance on the warrant to justify the arrest of Burk that
occurred when he was driven away from the scene of his initial detention without
justification.
The Supreme Court and the Ninth Circuit have rejected a good-faith
exception premised on an officer’s mistake of law. See, e.g., Taylor v. Alabama, 457
U.S. 687, 693 (1982) (rejecting, without discussion, a good faith exception to the
exclusionary rule where law enforcement conducted an investigatory arrest without
probable cause); United States v. Lopez-Soto, 205 F.3d 1101, 1106 (9th Cir. 2000)
Case 3:15-cr-00022-RRB-DMS Document 171 Filed 03/17/16 Page 2 of 11

U.S. v. Burk
3:15-cr-00022-RRB-DMS
Recommendation Regarding Objections 	Page 3 of 11
(acknowledging that an officer’s good-faith mistake of fact can form the basis of an
exception to the exclusionary rule, while rejecting “a good-faith exception to the
exclusionary rule for police who do not act in accordance with governing law.”).
However, this should not be confused with the Supreme Court’s rulings in
United States v. Leon and Davis v. United States. In United States v. Leon, 468 U.S.
897 (1984), the Supreme Court held that the exclusionary rule is inapplicable where
law enforcement obtained evidence in objectively reasonable, good-faith reliance on
a warrant erroneously issued through the legal error of a neutral, detached
magistrate. Similarly, the Supreme Court has extended the Leon good-faith
exception to the exclusionary rule to instances where law enforcement reasonably
relied on binding appellant precedent that was later overruled. Davis v. United
States, 564 U.S. 229 (2011).
As noted, the evidence at issue here cannot be saved from suppression by
claiming good-faith reliance upon the warrant pursuant to Leon. The warrant did
not authorize the arrest without probable cause of Burk following a Terry stop in an
unrelated investigation.
In addition, it is irrelevant to the resolution of this motion whether Sgt.
Nelson, Trooper Cook and Officer Smylie believed in good faith that it was lawful to
drive Burk away from the scene to facilitate the placement of the GPS device. Such
detention was unlawful under the established Supreme Court precedent in Florida
v. Royer, 460 U.S. 491 (1983) (plurality opinion) and Rodriguez v. United States, 135
S. Ct. 1609, 1616 (2015) (extension of traffic stop for eight minutes to allow for a
Case 3:15-cr-00022-RRB-DMS Document 171 Filed 03/17/16 Page 3 of 11

U.S. v. Burk
3:15-cr-00022-RRB-DMS
Recommendation Regarding Objections 	Page 4 of 11
drug detection dog to arrive made stop an illegal detention absent a reasonable
suspicion the car contained narcotics. Whether the officers made a mistake of law in
good faith or bad faith is irrelevant to this analysis. 1
C. Objection 3: The Replacement of the GPS Tracker on Burk’s Vehicle
Was Proper
The government reasserts its argument that the placement of a second GPS
tracking device on Burk’s vehicle was proper. (Doc. 66 at 2). As the Court explained
in section III(B) of its Final Report and Recommendation, it is unnecessary to reach
this issue, because the Court finds it must recommend suppression even if the
placement of a second GPS unit was proper.
D. Objection 4: The Initial Detention of Burk Was Proper; the Court
Erred in Concluding that the Initial Detention Transformed into an
Illegal Arrest.
The government reasserts its argument that the initial detention was legal.
(Doc. 166 at 2). As the Court explained in section III(C) of its Final Report and
Recommendation, the Court assumes that the initial detention of Burk at the scene
of Gregory and Reed’s arrest was legal, but must nevertheless recommend
suppression.
The government also objects to this Court’s finding that the act of driving
Burk away from the scene without an investigative purpose amounted to an
unlawful arrest. (Doc. 166 at 2-3). The government points to Officer Smylie’s
1 As noted in the Final Report and Recommendation, this Court cannot find the good faith of the
officers on this record due to the contradictory and evasive testimony from law enforcement officers.
See footnote 18 of the Final Report and Recommendation.
Case 3:15-cr-00022-RRB-DMS Document 171 Filed 03/17/16 Page 4 of 11

U.S. v. Burk
3:15-cr-00022-RRB-DMS
Recommendation Regarding Objections 	Page 5 of 11
testimony that he and the other Wasilla Police Department officers intended, but
ultimately did not, conduct an investigation of Burk’s involvement with Gregory
and Reed. (Doc. 166 at 2-3). Observing that the act of driving Burk away from and
back to the scene of his initial detention lasted approximately five minutes, the
government argues that no illegal arrest occurred because the Wasilla Police
Department’s continued investigation, which did not actually occur, would have
lasted longer. The government cites to no authority to support this argument.
This Court is unable to determine how long an investigation that never
occurred would have taken. In any event, the reasonableness of a seizure “depends
on what the police in fact do.” Rodriguez v. United States, 135 S. Ct. 1609, 1616
(2015) (emphasis added) (citing Knowles v. Iowa, 525 U.S. 113, 115-16 (1998)
(reversing the Iowa Supreme Court’s determination that a search could be justified
as a search incident to arrest where the defendant had not been placed under arrest
prior to the search)). Even if courts were permitted to determine the reasonableness
of police conduct according to alternative, hypothetical versions of events, as
opposed to what actually occurred, the government’s argument would still fail.
The law is clear that the length of a Terry stop is determined by the stop’s
mission and concerns of officer safety. Rodriguez, 135 S. Ct. at 1614. A Terry stop
may last no longer than is necessary to effectuate the purpose of the stop.
United States v. Sharpe, 470 U.S. 675, 684–85 (1985). While law enforcement is
permitted to make inquiries unrelated to the stop’s mission, these inquiries may not
measurably extend the stop without transforming the stop into an illegal arrest.
Case 3:15-cr-00022-RRB-DMS Document 171 Filed 03/17/16 Page 5 of 11

U.S. v. Burk
3:15-cr-00022-RRB-DMS
Recommendation Regarding Objections 	Page 6 of 11
Rodriguez, 135 S. Ct. at 1616. In Rodriguez, the Supreme Court squarely rejected
the government’s argument that law enforcement may prolong the duration of a
stop for reasons unrelated to the stop’s mission so long as officers are reasonably
diligent and the overall duration of the stop remains reasonable.2 Id.
This Court finds no merit to the government’s objection, and reiterates that
the reasonableness of a police encounter turns on events as they occurred and not
on what might have been. Id. at 1616 (“The reasonableness of a seizure. . .depends
on what the police in fact do.”).
E. Objection 5(a): The Court Improperly Relied On a “But For” Test.
The government objects, arguing that this Court used a “but for” test to
determine that the methamphetamine seized on January 29, 2015, was a fruit of
the illegal arrest that occurred on January 28, 2015. (Doc. 166 at 3). As the
government observes in the very same objection, “but for” causality is one of the
necessary conditions for suppression under the exclusionary rule. (Doc. 166 at 3
2 	At the evidentiary hearing, Officer Smylie of the Wasilla Police Department testified that
had the Troopers not arrived on scene to place a second GPS tracking device on Burk’s vehicle, he
would have continued Burk’s detention in order to: (1) allow dispatch time to run a “drug history”
check on the defendant; (2) allow himself time to look through the windows of Burk’s car to search
for contraband in plain sight; and (3) to allow time for a K-9 unit to arrive on scene to conduct a sniff
search of Burk’s car. See Section II(E) of the Final Report and Recommendation.
As noted, under Rodriguez, police may not extend a stop to bring a drug dog to the scene
absent a reasonable suspicion that the suspect’s vehicle contains narcotics. 135 S. Ct. at 1615-16.
The government has not asserted, and this Court cannot find, that law enforcement reasonably
suspected Burk’s vehicle to contain narcotics on January 28, 2015.
The record is silent as to how long a drug history check would have taken at the time of
Burk’s detention. Officer Smylie testified that drug history checks take a few minutes, or, at times,
“longer.” (Tr. I at 50). Nor is it clear how Officer Smylie intended to use the drug history information
in his investigation of Burk’s involvement with Gregory and Reed. (Id.). It clear that it would have
taken less than a minute to look through the window of Burk’s vehicle to see if there was contraband
in plain view.
Case 3:15-cr-00022-RRB-DMS Document 171 Filed 03/17/16 Page 6 of 11

U.S. v. Burk
3:15-cr-00022-RRB-DMS
Recommendation Regarding Objections 	Page 7 of 11
(quoting Hudson v. Michigan, 547 U.S. 586, 592 (2006)); Wong Sun v. United States,
371 U.S. 471, 488 (1963) (rejecting “but for” as the sole test under the exclusionary
rule and directing courts to assess whether, “‘granting establishment of the primary
illegality, the evidence to which instant objection is made has been come at by
exploitation of that illegality or instead by means sufficiently distinguishable to be
purged of the primary taint.’”).
A “but for” test is the first step in determining whether suppression is
necessary. The second stop is to determine whether the taint of a Fourth
Amendment violation is sufficiently attenuated from the seizure of evidence to
purge the violation’s taint. Accordingly it was not error for this Court to apply a
“but for” test to determine whether, in the first instance, the methamphetamine in
this case was a fruit of the illegal arrest. Hudson, 547 U.S. at 592 (“Our cases show
that but-for causality is only a necessary, not a sufficient, condition for
suppression.”).
This Court did not solely apply a “but for” test to determine the applicability
of the exclusionary rule, but also, as a second step, conducted an attenuation
analysis utilizing the Brown factors in section III(F) of the Final Report and
Recommendation. The Court finds no merit to the government’s objection.
F. Objection 5(b): The Court Erred In Finding That Attenuation
Analysis under Brown v. Illinois Requires a Significant Intervening
Circumstance.
The word “significance” is defined as the “[q]uality of being important;
importance; moment; weight; consequence; as a matter of significance.” Webster's
Case 3:15-cr-00022-RRB-DMS Document 171 Filed 03/17/16 Page 7 of 11

U.S. v. Burk
3:15-cr-00022-RRB-DMS
Recommendation Regarding Objections 	Page 8 of 11
New International Dictionary 2335 (2d ed. 1934) (emphasis in original). In turn, the
word significant is defined as “[h]aving meaning.” Id. The government objects to
this Court’s conclusion that the second factor in the attenuation analysis under
Brown v. Illinois—the presence or absence of intervening circumstances—requires
that the intervening circumstance be significant, i.e. have meaning or importance.
The government urges that “[r]equiring a significant intervening circumstance asks
too much.” (Doc. 166 at 4) (emphasis original).
While this Court agrees that the second Brown factor is generally referred to
as “the presence of intervening circumstances,” the Supreme Court clearly held in
Brown that the taint of an illegal arrest was not attenuated where “there was no
intervening event of significance” and the defendant’s “first statement was
separated from his illegal arrest by less than two hours.” Brown v. Illinois, 422 U.S.
590, 604 (1975); see also 6 Search & Seizure § 11.4(b) (5th ed.) (noting that the
Brown court “cited these factors as being most relevant: . . .(ii) ‘there was no
intervening event of significance whatsoever’[. . .]”).
In recognition of this, at least eight of the twelve circuit courts of appeals,
including the Ninth, have explicitly recognized the second Brown factor as referring
to significant intervening circumstances. United States v. Littlebird, 461 F. App'x
644, 645 (9th Cir. 2011) (“More importantly, significant intervening circumstances
exist to sufficiently purge the taint of the illegal stop.”); United States v. Jenkins,
938 F.2d 934, 941 (9th Cir. 1991) (“Thus, we find that the coercive environment had
not been cured by the presence of significant intervening circumstances.”); Lawhorn
Case 3:15-cr-00022-RRB-DMS Document 171 Filed 03/17/16 Page 8 of 11

U.S. v. Burk
3:15-cr-00022-RRB-DMS
Recommendation Regarding Objections 	Page 9 of 11
v. Allen, 519 F.3d 1272, 1291 (11th Cir. 2008) (“A significant intervening
circumstance is indicated where the defendant ‘volunteered a desire’ to talk to the
law enforcement officials ‘soon after a lawful arrest, after advice of rights, and while
his detention was plainly legal.’”); United States v. Torres-Castro, 470 F.3d 992,
1001 (10th Cir. 2006) (“A Miranda warning itself may be a significant intervening
circumstance that can break any factual nexus between an illegal search and
subsequent incriminating statement.”); Mosby v. Senkowski, 470 F.3d 515, 522 (2d
Cir. 2006) (“In addition, there were significant intervening circumstances between
the warrantless arrest and the confession . . .”); United States v. Reed, 349 F.3d
457, 464 (7th Cir. 2003) (“The district court found no significant intervening
circumstances present in this case which would purge the taint of the allegedly
illegal arrest.”); United States v. Cantu, 230 F.3d 148, 159 (5th Cir. 2000) (“In
Brown the court found no ‘significant’ intervening circumstance from the
defendant's initial illegal arrest and his eventual confession”); Brummett v. Collins,
980 F.2d 1443 (5th Cir. 1992) (“There were also significant intervening
circumstances.”); United States v. Scios, 590 F.2d 956, 993 (D.C. Cir. 1978) (Wilkey,
J., dissenting) (“More important than their absence, however, is the presence here
of the other attenuating factors cited in Ceccolini and Brown v. Illinois: the lapse of
a substantial period of time; the presence of significant intervening circumstances;
the non-flagrant nature of the original search; and the degree of volition exercised
by the witness.”); United States v. Tovar, 687 F.2d 1210, 1215 (8th Cir. 1982) (“The
removal hearing is a significant intervening circumstance not present in Brown.”).
Case 3:15-cr-00022-RRB-DMS Document 171 Filed 03/17/16 Page 9 of 11

U.S. v. Burk
3:15-cr-00022-RRB-DMS
Recommendation Regarding Objections 	Page 10 of 11
In another formulation of the standard, the Ninth Circuit has stated that
intervening circumstances must be “sufficiently important” to purge the taint of an
illegal search or arrest. See, e.g., United States v. Washington, 387 F.3d 1060, 1073-
74 (9th Cir. 2004) (emphasis added and citations omitted). This Court finds no merit
to the government’s objection.
G. Objection 5(c): Law Enforcement Did Not Act Purposefully or
Flagrantly
Without making further argument, the government cites to section (V)(a)(iii)
of its response in opposition to Burk’s motion to suppress, (Doc. 115 at 24-27),
reasserting its argument that Sgt. Nelson’s “coordination with Wasilla Police
officers” to place the second GPS unit was not flagrant misconduct. (Doc. 166 at 4
(citing Doc. 115 at 24-27)).
In section III(F)(3) of the Initial Report and Recommendation, the Court
found that there was a purposeful and flagrant violation of Burk’s Fourth
Amendment rights by the Wasilla Police Department and the Alaska State
Troopers. There is no indication in the record that the officers acted non-
purposefully, and the government has proffered none. See Washington, 387 F.3d at
1075, n.17 (“In reciting the third attenuation factor, courts usually choose a
conjunctive phrasing (‘purpose and flagrancy’), but then find in favor of taint if
there is evidence of either purposeful extraction of evidence or flagrant illegality.”);
see also Taylor, 457 U.S. at 693 (rejecting the argument that police conduct was
neither purposeful nor flagrant where the police had arrested an individual without
probable cause on the basis of an uncorroborated informant’s tip).
Case 3:15-cr-00022-RRB-DMS Document 171 Filed 03/17/16 Page 10 of 11

U.S. v. Burk
3:15-cr-00022-RRB-DMS
Recommendation Regarding Objections 	Page 11 of 11
Further, Officer Smylie’s act of driving Burk away from the scene did not
further the Wasilla Police Department’s investigation of Burk’s involvement with
Gregory and Reed—the basis for their detention of Burk—or in any way ensure
officer safety. The illegality was committed in a flagrant and improper attempt to
facilitate the placement of the second GPS device so as to gather further evidence.
Cf. Brown v. Illinois, 422 U.S. at 605. In Brown, the Court found flagrant and
purposeful police misconduct where “[t]he impropriety of the arrest was obvious;
awareness of that fact was virtually conceded by the two detectives when they
repeatedly acknowledged, in their testimony, that the purpose of their action was
‘for investigation’ or for ‘questioning.’” Id. Here, the government has conceded that
there was no investigative purpose for removing Burk to the Creekside Plaza, (Tr.
III at 190), other than to replace the GPS device in an attempt to gather further
evidence against Burk. Nor has the government objected to the Court’s finding that
there were no concerns of officer safety justifying Burk’s removal.
The Court finds the government’s objection meritless.
II. 	Conclusion
For the foregoing reasons, the Court recommends that the District Court find
the objections to be without merit and GRANT the defendant’s Supplemental
Motion to Suppress.
DATED this 17th day of March, 2016 at Anchorage, Alaska.
S/Deborah M. Smith
CHIEF U.S. MAGISTRATE JUDGE
Case 3:15-cr-00022-RRB-DMS Document 171 Filed 03/17/16 Page 11 of 11