United States of America v. Stephen D. Akridge

*The Honorable David A. Katz, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0351P (6th Cir.)
File Name: 03a0351p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
STEPHEN D. AKRIDGE,
Defendant-Appellant.
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No. 01-6294
Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.
No. 00-00081—Curtis L. Collier, District Judge.
Argued: April 29, 2003
Decided and Filed: October 2, 2003
Before: MOORE and ROGERS, Circuit Judges; KATZ,
District Judge.*
_________________
COUNSEL
ARGUED: Rita C. LaLumia, FEDERAL DEFENDER
SERVICES OF EASTERN TENNESSEE, INC.,
2 United States v. Akridge No. 01-6294
Chattanooga, Tennessee, for Appellant. Gary Humble,
ASSISTANT UNITED STATES ATTORNEY, Chattanooga,
Tennessee, for Appellee. ON BRIEF: Rita C. LaLumia,
FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., Chattanooga, Tennessee, for Appellant.
Gary Humble, ASSISTANT UNITED STATES
ATTORNEY, Chattanooga, Tennessee, for Appellee.
KATZ, D. J., delivered the opinion of the court, in which
ROGERS, J., joined. MOORE, J. (pp. 25-31), delivered a
separate dissenting opinion.
_________________
OPINION
_________________
KATZ, District Judge. Defendant-Appellant Stephen D.
Akridge appeals from his convictions for possessing crack
cocaine with the intent to distribute, conspiring to possess
crack cocaine with the intent to distribute, possessing a
firearm in furtherance of a drug trafficking offense, and
possessing a firearm after having been convicted of a felony.
Akridge’s contention on appeal is that the district court
should have suppressed the pre-trial statements and trial
testimony of Akridge’s alleged co-conspirators, Kevin Ellison
and Tiffany Stewart, as the fruits of an illegal search. The
Government argues that the testimony was admissible under
either the “inevitable discovery” or “attenuation” exceptions
to the exclusionary rule. For the following reasons, we
AFFIRM the district court’s denial of Akridge’s suppression
motion.
I. BACKGROUND
On January 25, 1999 Chattanooga police officers obtained
a warrant to search Kelvin Ellison’s residence, pursuant to
which officers recovered marijuana and firearms. At the time,
Ellison was a convicted felon and the matter was referred to

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No. 01-6294 United States v. Akridge 3
1As discussed further infra, the officers conducted the search
pursuant to the residents’ consent, which the district court ultimately
determined was coerced.
Special Agent Cordell Malone at the Bureau of Alcohol,
Tobacco and Firearms (“ATF”), who in turn presented the
case to the United States Attorney’s Office for prosecution.
In the early morning of May 2, 2000, Chattanooga police
officers received an anonymous telephone tip reporting that
the residents of 824 Arlington Avenue were selling drugs. In
response to the complaint, officers conducted a “knock and
talk” at the residence, which was shared by Akridge and his
roommates Kevin Ellison and Tiffany Stewart. During a
search of the apartment, officers found marijuana, cocaine,
and three loaded semi-automatic pistols.1 At the time of the
search, Ellison was still under federal investigation in relation
to the January 1999 charges.
Following the search an officer suggested that the three
residents decide who would accept the blame for the
contraband, and allegedly indicated that he would see that the
other two residents would not be charged. As a result,
Stewart was taken to jail and Akridge and Ellison were left at
the apartment. Stewart apparently was later released on her
own recognizance.
On June 19, 2000 ATF officials interviewed Akridge,
Ellison, and Stewart regarding the May 2000 search of their
residence. All three admitted to selling crack cocaine and
marijuana, and Akridge allegedly further admitted to firearms
possession and selling drugs from the Arlington Avenue
residence, although he denies making such a confession.
Akridge, Stewart, and Ellison subsequently were arrested
on June 20, 2000 for drug trafficking and firearms possession.
On June 27, 2000 Stewart executed a plea agreement, not
entered of record with the Court until January 5, 2001, in
4 United States v. Akridge No. 01-6294
2The district court determined that the Chattanooga police officers’
method of obtaining consent to search warranted exclusion of not only the
physical evidence seized in the May 2000 search, b ut also A kridge’s
subsequent June 19 confession.
3Akridge’s aunt and neighbor both testified that they had purchased
drugs from Akridge.
which she pled guilty to a charge of aiding and abetting
Ellison and Akridge in drug trafficking. On October 3, 2000
the Government reached a plea agreement with Ellison.
On January 22, 2001 the district court granted Akridge’s
September 11, 2000 motion to suppress evidence seized
during the May 2000 search of his apartment, as well as his
subsequent statement given on June 19, 2000.2 Thereafter,
on April 9, 2001 Akridge filed a motion to enlarge the scope
of the district court’s prior suppression order to encompass all
previous and future testimony of co-defendants Ellison and
Stewart, reasoning that the testimony was a direct result of the
May 2000 illegal search. It is this motion that is at issue on
appeal.
The district court conducted a hearing on the motion on
April 30, 2001. By agreement of the parties, the court did not
hear testimony but rather relied on the factual findings from
the earlier suppression hearing, plus three new affidavits from
Stewart, Ellison, and ATF Agent Malone. After review of the
record, the district court denied Akridge’s motion and on
May 7, 2001 Akridge proceeded to trial.
At trial Ellison and Stewart testified on behalf of the
prosecution. The Government also presented the testimony
of Akridge’s neighbor and Akridge’s aunt,3 as well as a tape

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No. 01-6294 United States v. Akridge 5
4As characterized by the Government, during this phone call Akridge
criticized Ellison’s cooperation with the Government and complained that
Ellison was disclosing everything that Akridge had done since he was
release d from the penitentiary.
of an incriminatory phone call made from the Hamilton
County jail by Akridge to his girlfriend.4
Ellison testified at trial that he had known Akridge for
approximately fifteen years and had lived with him from
October 1999 until June 2000. According to Ellison, he and
Akridge supported themselves during this period by selling
crack cocaine and marijuana. Ellison also testified about
Akridge’s possession and use of firearms.
Stewart, Ellison’s girlfriend, lived with Ellison and Akridge
and testified about her role in distributing drugs for Akridge
and Ellison. Stewart also testified about Akridge’s possession
and use of firearms.
The jury returned guilty verdicts on Counts 1, 4, 5, and 6,
which respectively charged Akridge with conspiracy to
distribute in excess of fifty grams of cocaine base in violation
of 21 U.S.C. § 846, possession with the intent to distribute
cocaine base in violation of 21 U.S.C. § 841(a)(1), possession
of a 9mm semi-automatic pistol in furtherance of drug
trafficking crimes for the period October 1999 to May 2, 2000
in violation of 18 U.S.C. § 924(c)(1)(A), and being a felon in
possession of a 9mm semi-automatic pistol on or about
December 31, 1999 in violation of 18 U.S.C. § 922(g)(1).
A pre-sentence report was prepared, to which Akridge
objected in part because the report included information
predicated upon statements made by Ellison and Stewart. The
district court ultimately sentenced Akridge to 360 months on
Counts 1 and 4 to run concurrently with 120 months on
Count 6. The district court further sentenced Akridge to 300
months on Count 5 to be served consecutively, resulting in a
total of 660 months imprisonment.
6 United States v. Akridge No. 01-6294
Akridge timely filed a notice of appeal on September 21,
2001 and asserts that the exclusionary rule requires
suppression of the statements and trial testimony of Ellison
and Stewart.
II. DISCUSSION
A. Standard of Review
We review the district court’s ruling on Akridge’s
suppression motion under a mixed standard of review. See
United States v. Galloway, 316 F.3d 624, 628 (6th Cir. 2003).
We reverse the district court’s findings of fact only if they are
clearly erroneous, but review de novo the district court’s legal
conclusions. United States v. Hurst, 228 F.3d 751, 756 (6th
Cir. 2000). Where, as here, the district court has denied a
motion to suppress, we review the evidence in a light most
favorable to the Government. See United States v. Harris,
255 F.3d 288, 291 (6th Cir. 2001) (citing United States v.
Garza, 10 F.3d 1241, 1245 (6th Cir. 1993)).
B. Exclusionary Rule
The exclusionary rule generally bars the admissibility at
trial of tangible evidence, as well as verbal statements,
acquired through unconstitutional means. See Wong Sun v.
United States, 371 U.S. 471, 485 (1963). The rule excludes
from admissibility “not only primary evidence obtained as a
direct result of an illegal search or seizure, Weeks v. United
States, 232 U.S. 383 (1914), but also evidence later
discovered and found to be derivative of an illegality or ‘fruit
of the poisonous tree.’” Segura v. United States, 468 U.S.
796, 804 (1984) (quoting Nardone v. United States, 308 U.S.
338, 341 (1939)); see also Murray v. United States, 487 U.S.
533, 536-37 (1988) (“[T]he exclusionary rule also prohibits
the introduction of derivative evidence, both tangible and
testimonial, that is the product of the primary evidence, or
that is otherwise acquired as an indirect result of the unlawful
search, up to the point at which the connection with the

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No. 01-6294 United States v. Akridge 7
unlawful search becomes ‘so attenuated as to dissipate the
taint’”). “The suppression or exclusionary rule is a judicially
prescribed remedial measure and as ‘with any remedial
device, the application of the rule has been restricted to those
areas where its remedial objectives are thought most
efficaciously served.’” Segura, 468 U.S. at 804 (quoting
United States v. Calandra, 414 U.S. 338, 348 (1974)).
As explained in Segura:
Evidence obtained as a direct result of an
unconstitutional search or seizure is plainly subject to
exclusion. The question to be resolved when it is
claimed that evidence subsequently obtained is “tainted”
or is “fruit” of a prior illegality is whether the challenged
evidence was
“‘come at by exploitation of [the initial]
illegality or instead by means sufficiently
distinguishable to be purged of the primary
taint.’”
It has been well established for more than 60 years that
evidence is not to be excluded if the connection between
the illegal police conduct and the discovery and seizure
of the evidence is “so attenuated as to dissipate the taint,”
Nardone v. United States, supra, at 341. It is not to be
excluded, for example, if police had an “independent
source” for discovery of the evidence[.]
Segura, 468 U.S. at 804-05 (internal citation omitted).
Like many legal principles, the exclusionary rule is subject
to numerous exceptions that diminish its scope. In addition
to developing the independent source doctrine, not at issue in
the instant action, the Supreme Court has also endorsed the
inevitable discovery doctrine, see Nix v. Williams, 467 U.S.
431 (1984), under which the exclusionary rule is inapplicable,
even if the initial search and arrest were unlawful, as to
evidence that inevitably would have been discovered by
lawful means. Murray, 487 U.S. at 539 (“The inevitable
8 United States v. Akridge No. 01-6294
discovery doctrine, with its distinct requirements, is in reality
an extrapolation from the independent source doctrine: Since
the tainted evidence would be admissible if in fact discovered
through an independent source, it should be admissible if it
inevitably would have been discovered.”).
Beyond developing the two foregoing exceptions to the
exclusionary rule, the Supreme Court has further delineated
standards applicable to the suppression of live witness
testimony, see United States v. Ceccolini, 435 U.S. 268
(1977), which some courts have come to apply under the
rubric of the “attenuation doctrine.” See, e.g., United States
v. McKinnon, 92 F.3d 244 (4th Cir. 1996); United States v.
Dickson, 64 F.3d 409 (8th Cir. 1995); United States v.
Terzado-Madruga, 897 F.2d 1099 (11th Cir. 1990). Under
Ceccolini, “a witness’ testimony may be admitted even when
his identity was discovered in an unconstitutional search.”
United States v. Leon, 468 U.S. 897, 911 (1984); see also
Ceccolini, 435 U.S. at 275-78 (concluding that “since the cost
of excluding live-witness testimony often will be greater, a
closer, more direct link between the illegality and that kind of
testimony is required”).
In the instant action, the district court determined that under
both Ceccolini and the inevitable discovery doctrine, the
exclusionary rule did not require exclusion of Ellison’s and
Stewart’s testimony. On appeal, Akridge asserts that neither
of these doctrines is applicable to save the testimony from
exclusion. Upon review, we find that the district court
properly denied Akridge’s motion.
C. District Court’s Findings
In the enlargement motion, Akridge moved to suppress
“any and all statements given, [and] previous testimony or
future testimony of co-defendants Kelvin L. Ellison and
Tiffany Stewart . . . [as] directly derived as a result of an
illegal search.” J.A. at 118. In support of the motion,
Akridge argued that “the witnesses were discovered as the

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No. 01-6294 United States v. Akridge 9
direct result of the illegal search of the apartment[;] [t]he
presence and identity of the witnesses and their relationship
to the defendant was not previously known to the police, and
would not have been discovered in the absence of the illegal
search[; and] [t]he witnesses provided statement [sic]
regarding crimes which would not have been discovered
absent the illegal search and consequent prosecution.” J.A. at
124.
In ruling on Akridge’s suppression motion, the district
court articulated two separate bases for denying the motion.
Relying on the fact that Ellison was already under federal
investigation for drug trafficking and firearms possession, the
district court first determined that the trial testimony of
Ellison and Stewart inevitably would have been discovered.
The court reasoned that the investigation of Ellison would
have revealed his relationship to Akridge and Stewart, and in
light of Ellison’s averment that the prior firearms charge
heavily influenced his decisions with respect to the instant
action, the court determined that the exclusionary rule did not
apply to Ellison’s testimony. As to Stewart, the court
reasoned that the Government would have elicited testimony
from Stewart, notwithstanding the May 2000 search, due to
Stewart’s relationship with Ellison and her willingness to
enter her plea, even before the district judge had ruled on
whether to adopt the magistrate’s recommendation to
suppress the evidence of the May 2000 search.
As an alternative basis for its ruling, the district court
determined that the Ceccolini factors weighed against
exclusion. In general, the court reasoned that due to Ellison’s
investigation, law enforcement most likely already knew of
Akridge’s relationship to Ellison. The court was further
persuaded by the timing of Ellison’s and Stewart’s pleas vis-
a-vis the May 2000 search and the magistrate’s
recommendation to grant Akridge’s initial suppression
motion. Although the court found that some of the Ceccolini
factors weighed in favor of exclusion, particularly as to
Stewart since she was previously unknown to investigators,
10 United States v. Akridge No. 01-6294
the court determined that the majority of the factors weighed
against exclusion. After balancing the cost of suppression
against the deterrence effect of exclusion, the court denied
Akridge’s motion to extend the scope of its prior suppression
ruling.
Although the district court relied primarily on the inevitable
discovery doctrine, we first address the district court’s
Ceccolini analysis because we find that it more clearly applies
to the instant action. Because we determine that the Ceccolini
factors weigh against exclusion as to both Stewart and
Ellison, we affirm the district court’s ruling on that basis and
do not reach the merits of the district court’s “inevitable
discovery” determination.
D. Ceccolini
In Wong Sun, the Supreme Court indicated that “the
policies underlying the exclusionary rule [do not] invite any
logical distinction between physical and verbal evidence.”
371 U.S. at 486. In Ceccolini, the Court addressed the
concept of attenuation in the context of verbal evidence,
ultimately rejecting the foregoing pronouncement from Wong
Sun. In so doing, the Court reasoned that “the issue [of
attenuation] cannot be decided on the basis of causation in the
logical sense alone, but necessarily includes other elements as
well.” Ceccolini, 435 U.S. at 274. Thus, the Court expressly
rejected the conclusion that “if the road were uninterrupted,
its length was immaterial.” Id. at 275.
Based on Ceccolini, it is now clear “that the exclusionary
rule does not invariably bar the testimony of a witness whose
identity is revealed to the authorities as the result of an illegal
search.” Unites States v. Reyes, 157 F.3d 949, 954 (2d Cir.
1998). Instead, exclusion is dependent upon the degree of
attenuation between the illegal search and the testimony.
Relying upon the attenuation principle announced in Nardone
v. United States, 308 U.S. 338 (1939), and expounded upon
in Wong Sun, the Ceccolini Court weighed a number of

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No. 01-6294 United States v. Akridge 11
5W e find only one case in this Circuit, albeit an unpublished opinion,
applying Ceccolini in the co ntext of a supp ression determinatio n with
respect to witness testimony. See United States v. M illis, 89 F.3d 836,
1996 U.S. App. LEXIS (6th Cir. June 19, 1996) (rejecting defendant’s
argume nts for exclusion, reasoning that the fact that the co-defendant
witness “initiated his cooperation with authorities on his own initiative,
several days after the arrest” dem onstrated an indep endent willingness to
testify that dissipated the taint of the original stop).
considerations, including that (1) “the testimony given by the
witness was an act of her own free will in no way coerced or
even induced by official authority,” (2) “substantial periods
of time elapsed between the time of the illegal search and the
initial contact with the witness . . . and between the latter and
the testimony at trial,” and (3) the identity of the witness and
her relationship with the defendant “were well known to those
investigating the case.” Ceccolini, 435 U.S. at 279. The
Court ultimately concluded that “application of the
exclusionary rule in this situation could not have the slightest
deterrent effect.” Id. at 280.
We find no published opinions in this Circuit applying
Ceccolini in the context of exclusionary determinations
relating to witness testimony.5 Therefore, we first begin by
setting forth the relevant factors for consideration in our
analysis. After reviewing Ceccolini and surveying our sister
circuits’ application of its holding, we find it appropriate to
consider to following factors in making our determination:
(a) the degree of free will exercised by the witnesses;
(b) the role of the illegality in obtaining the testimony;
(c) the time elapsed between the illegal behavior, the
decision to cooperate, and the actual testimony at trial;
and (d) the purpose and flagrancy of the officials’
misconduct.
Relevant to the foregoing factors, a court might further
consider: the stated willingness of the witness to testify; the
presence of intervening circumstances; the time, place, and
12 United States v. Akridge No. 01-6294
6This list of factors is neither exclusive nor exhaustive, and clearly
not all factors may be relevant to eve ry situation.
manner of the initial questioning of the witness; whether the
witness himself was a defendant; whether the illegally-seized
evidence was used in questioning the witness; the time
between the illegal search and initial contact with the witness;
whether investigators knew of the relationship, if any,
between the witness and the defendant prior to the illegal
search; and whether the police conducted the illegal search
intending to find evidence implicating the defendant.6 See
Ceccolini, 435 U.S. 279-80; see also United States v. Hughes,
279 F.3d 86, 89-90 (1st Cir. 2002); United States v.
McKinnon, 92 F.3d 244, 247-48 (4th Cir. 1996); United
States v. Schaefer, 691 F.2d 639, 644 (3d Cir. 1982); United
States v. Leonardi, 623 F.2d 746, 752 (2d Cir. 1980).
With this framework in mind, we turn to the parties’
contentions.
E. Identity of the Parties
Akridge appears to make two primary contentions on
appeal: first, that were it not for the illegal search, Stewart’s
existence, and the relationship of the parties to one another,
would not have been discovered, and second, even if the
identities and the parties were known or would have become
known, it does not necessarily follow that Ellison and Stewart
would have offered incriminating statements and trial
testimony against Akridge were it not for the illegal May
2000 search.
As to the former assertion, Akridge’s arguments focus
primarily on Stewart. Akridge argues that unlike Ellison,
Stewart was not known to investigators prior to the illegal
search, and although Stewart lived with Ellison, “that fact
alone does not demonstrates [sic] that she or her testimony
would have been inevitably discovered but for the illegal

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No. 01-6294 United States v. Akridge 13
search on May 2, 2000.” Appellant’s Br. at 16-17, 23.
Akridge further argues that “[b]ut for the May 2 search,
[Stewart’s] relationship to Akridge may not have been
discovered.” Appellant’s Br. at 25.
In addressing these contentions, we find crucial the time
line relating to events surrounding the May 2000 search.
According to Appellant’s own recitation of facts, upon arrival
at the 824 Arlington Avenue residence, Chattanooga police
officers Darrell Turner and Anthony Sutton knocked at the
door, spoke with Akridge, and requested consent to search.
In response to this request, Akridge announced that he would
first have to speak with Ellison and Stewart because their
names were on the apartment lease. Akridge then went inside
the apartment and asked Ellison and Stewart to step outside
to speak with officers. Akridge and Ellison apparently
proceeded outside to the yard to speak with the officers, while
Stewart remained in the apartment doorway. During the
ensuing conversation, all three residents gave verbal consent
to search the apartment. However, such consent was
purportedly based on false representations by Turner that he
had specific information regarding two kilograms of cocaine
in the residence and that “the Feds were around the corner and
. . . had a search warrant.”
Based on the foregoing, it is clear that at the moment
Akridge opened the door and identified himself as an
occupant of the apartment and further identified his
roommates as Ellison and Stewart, his identity and a
relationship to Stewart and Ellison were established,
independent of the illegal search. Chattanooga police officers
were legitimately responding to an anonymous tip regarding
drug sales originating from Akridge’s apartment, and there is
no assertion that the apartment’s occupants were lured or
otherwise illegally compelled outside the apartment to discuss
the issue of consent to search.
Although Akridge argues strenuously that his connection to
Stewart and Ellison would have remained unknown were it
14 United States v. Akridge No. 01-6294
7In reasoning that police knew of the link between Stewart, Ellison,
and Akridge only via the illegal search, the dissent ignores the timeline
which we have gone to lengths to set forth. As noted supra, prior to the
illegal entry, Akridge informed officers that he need ed to talk to his
room mates, Ellison and Stewart, and asked them to step outside. A t this
point in the sequence of events, even if officers had walked away from the
scene without illegally entering the apartm ent, they would have known of
Stewart and Ellison and would have known that they were all living
together in an apartment from which drugs allegedly were being sold.
8Even assuming som e illegality, Akridge’s “but for” argument fails.
Under Ceccolini, the mere fact that an illegality is a “but for” cause of
disputed testimony is insufficient to warrant exclusion. See Ceccolini,
435 U.S. at 276 (“Eve n in situations where the exclusionary rule is plainly
applicable, we have declined to adopt a ‘per se or “but for” rule’ that
would make inadmissible any evidence, whether tangible or live-witness
testimony, which somehow came to light through a chain of causation that
began with an illegal arrest.”).
As to the discovery of the parties’ relationship to one another as drug
dealers, as opp osed to merely roo mmates, this information came to light
not only through the evidence found at the apartment, but also from
statements made by the parties during questioning and at trial. We
address Akridge’s ob jections to these statements infra.
not for the subsequent illegal search, this argument ignores
the fact that the identities of Ellison and Stewart and their
status as occupants of the apartment whose consent was
needed prior to search, were made known to the police
officers prior to any asserted illegality.7 Notwithstanding the
fact that the parties have not specifically addressed whether
the witnesses’ identities, as opposed to their testimony, are
separately suppressible, we find that the Government’s
knowledge of the existence of Akridge, Ellison, and Stewart
and their relationship to one another as roommates, arises
from no illegality and thus does not implicate the
exclusionary rule.8
F. Testimony
Regarding the actual statements and trial testimony offered
by Ellison and Stewart, Akridge appears to contest on appeal

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No. 01-6294 United States v. Akridge 15
9These affidavits set forth Ellison’s and Stewart’s reasons for
entering into plea agre ements.
10Ellison’s plea agreement is part of the record on appeal and clearly
contains a cooperation provision. Stewart’s plea agreement is not
included in the jo int appendix, but the Government does not dispute the
assertion that pursuant to her plea, Stewart was obligated to provide trial
testimony against Akridge.
the statements made during the course of three separate
events, i.e., the June 19 interviews, the preparation of
Ellison’s and Stewart’s affidavits used to oppose Akridge’s
enlargement motion,9 and the trial testimony offered by
Ellison and Stewart. The chain of causation Akridge attempts
to establish is that the May 2000 search led to the June
interviews during which certain statements were made,
resulting in the parties’ arrests, leading to Ellison’s and
Stewart’s plea agreements, which in turn required Ellison’s
and Stewart’s cooperation in future investigations and
prosecutions,10 thus resulting in Ellison and Stewart testifying
for the prosecution at Akridge’s trial.
Akridge’s general argument is that every statement made
after the May 2000 search is tainted and thus should be
suppressed. Akridge further argues that the affidavits and
testimony “do not reflect what the respective position of each
witness would have been the instant before the illegal May 2
search.” Appellant’s Reply at 6. Akridge therefore reasons
that the Government cannot establish that the incriminating
information about Akridge contained in the affidavits and
testimony would have been inevitably discovered.
As to the factors set forth above, we find most dispositive
the degree of free will exercised by Ellison and Stewart, as
well as the temporal attenuation between the May search, the
16 United States v. Akridge No. 01-6294
11W e do not find as critical the time elapsed between trial and
original contact with the witnesses in this case, for while a year elapsed
between trial and the May 200 0 search, Stewart and Ellison were
obligated as part of their plea agreements to assist in the G overnment’s
investigation and prosecution of others. Therefore, as of the entry date of
their plea agreements, Ellison and Stewart were essentially bound by their
pleas to offer testimony at Akridge’s trial. Nonetheless, we note that
app roxim ately eight months transpired between the search and actual
entry of Stewart’s plea and five months between the search and Ellison’s
plea.
12As noted in Ceccolini, the analysis might differ “where the search
was cond ucted by the police for the spe cific purpose of discovering
potential witnesses.” Ceccolini, 435 U.S. at 277 n.4. The Court noted
that there was “not the slightest evidence to suggest that [the officer]
entered the shop . . . with the intent of finding tangible evidence bearing
on an illicit gambling operation, much less any suggestion that he entered
the shop and se arched with the intent o f finding a w illing witness to testify
against respondent.” Id. at 279-80.
June questioning, and the subsequent plea agreements and
trial testimony.11 These factors are discussed further herein.
With respect to the purpose and flagrancy of the police
misconduct, Akridge asserts that the sole purpose of the
May 2 search was to uncover evidence of drugs. Certainly, a
clear intent to uncover illegality though illegal means would
seem to weigh in favor of suppression. However, we note
that the police were not specifically in search of the particular
evidence sought to be suppressed in this case, i.e., witness
testimony.12 Instead, officers were responding to a complaint
about drug trafficking from Akridge’s apartment. Moreover,
while the case for suppression is clearer for any tangible
evidence seized during the search, the Supreme Court has
instructed that “since the cost of excluding live-witness
testimony often will be greater, a closer, more direct link
between the illegality and that kind of testimony is required.”
Ceccolini, 435 U.S. at 278.
As to the role that any illegal fruits from the May 2000
search played in obtaining Stewart’s and Ellison’s testimony,

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No. 01-6294 United States v. Akridge 17
we find it beyond dispute that the threat of prosecution played
some role in their decision to submit to questioning in June,
as well as their ultimate decisions to enter into plea
agreements. Even though the Government asserts that no
references were made during questioning to the evidence
seized during the May search, this assertion loses some
significance in light of the fact that Stewart and Ellison were
co-defendants, Stewart had been taken into custody, and both
parties knew, even if evidence was not referenced during
questioning, that they were facing prosecution. Nonetheless,
despite the foregoing circumstances, we find that temporal
attenuation, as well as the degree of free will exercised by
Ellison and Stewart, weigh in favor of affirming the district
court’s decision to deny Akridge’s suppression motion.
1. Ellison
Regarding the June 19 interview, on that day officers
returned to the Arlington Avenue residence to further
question Stewart. Akridge and Ellison initially indicated that
Stewart was not at home, but eventually went inside the
residence to summon Stewart. Affidavits indicate that a
crowd was gathering outside the apartment, so the officers
thought it would be safer to conduct the questioning at the
police station and requested that Akridge, Ellison, and
Stewart all come in for questioning. As recounted by
Akridge, Agent Malone “invited Akridge and Ellison to meet
with officers at the police station to discuss the May 2 search
of their apartment and Stewart’s arrest. The three cooperated
and admitted to selling crack cocaine and marijuana.”
Appellant’s Br. at 10.
Per police procedure, Akridge, Stewart, and Ellison were
handcuffed during transport to the police station, but were not
handcuffed during their interviews. All three parties signed
a waiver of rights, admitted to various drug and weapons
related incidents, and ultimately were arrested.
18 United States v. Akridge No. 01-6294
13Though, as noted by the district court, Ellison and Stewart “were
picked up and interviewed by law enforcement, rather than coming
forward wholly on their own,” J.A. at 165 , and while Ellison, Stewart, and
Akridge were handcuffed during transport to the police station, the
officers made clear that none of the parties were under arrest. The
hand cuffs were removed at the station, and upon arrival all three executed
a waiver of rights prior to issuing stateme nts and confessions.
Akridge emphasizes that it was not until after the June
arrest that Ellison made the “final decision” to plead guilty
and “turn his life around.” However, in the affidavit
presented at the second suppression hearing, Ellison states
that the reason for his decision was that he was facing
exposure to enhanced sentencing as a career criminal under
18 U.S.C. § 924(e) due to the January 1999 firearms charge
and that this charge was “a major factor” in his decision to
enter a plea. Ellison also explained that he knew he had been
a poor role model for his son by getting caught up in selling
drugs and wanted to serve his time to “be a good example for
[his] son.” Ellison’s affidavit further reflects that in deciding
to cooperate, Ellison knew that he would have to disclose
Akridge’s and Stewart’s involvement with guns and drugs,
but having made the decision to cooperate, he “could not do
it half way.” Based on this decision, Ellison testified
favorably for Akridge at the suppression hearing but offered
testimony against Akridge at trial.
Although Ellison’s direct relationship with Akridge may
not have been revealed until May 2000, it is undisputed that
Ellison was facing prosecution as a career offender. While
Ellison appeared for questioning at the Government’s behest,
he did so voluntarily and without coercion.13 It was several
months thereafter, in October, that Ellison entered into a plea
agreement, an agreement that required Ellison’s cooperation
with future investigations and resulted in Ellison’s trial
testimony against Akridge.
We find that the foregoing supports the conclusion that
Ellison’s cooperation and trial testimony resulted from an

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No. 01-6294 United States v. Akridge 19
14Emphasizing the benefit gained by S tewart and E llison, i.e.,
reduced sentences in exchange for their cooperation, and their status as
co-defendants, the dissent discounts any possibility that the witnesses
could have entered plea agreements and offered testimony aga inst
Akridge of their own free will. However, under the rationale espoused by
the dissent, it is difficult to imagine any scenario under which a co-
exercise of Ellison’s free will, and was the “product of
detached reflection and a desire to be cooperative.”
Ceccolini, 435 U.S. at 277. Admittedly, this is not as clear a
case as in Ceccolini, in which the witness was not a putative
defendant, and Akridge asserts that due to their impending
prosecutions, Ellison and Stewart were faced with a Hobson’s
choice that cannot fairly be regarded as a product of their free
wills. However, Ceccolini instructs:
Another factor which not only is relevant in
determining the usefulness of the exclusionary rule in a
particular context, but also seems to us to differentiate
the testimony of all live witnesses–even putative
defendants–from the exclusion of the typical
documentary evidence, is that such exclusion would
perpetually disable a witness from testifying about
relevant and material facts, regardless of how unrelated
such testimony might be to the purpose of the originally
illegal search or the evidence discovered thereby. Rules
which disqualify knowledgeable witnesses from
testifying at trial are, in the word of Professor
McCormick, “serious obstructions to the ascertainment
of truth”’ accordingly, “[f]or a century the course of legal
evolution has been in the direction of sweeping away
these obstructions.” C. McCormick, Law of Evidence
§ 71 (1954). [* * *] For many of these same reasons,
the Court has also held admissible at trial testimony of a
witness whose identity was disclosed by the defendant’s
statement given after inadequate Miranda warnings.
Michigan v. Tucker, 417 U.S. 433, 450-451 (1974).
Ceccolini, 435 U.S. at 277-78.14
20 United States v. Akridge No. 01-6294
defendant witness would be permitted to testify where the co-defendant’s
identity was initially discovered by an illegal search. T he dissent’s
position would invariably preclude the testimony of all such co-
defendants that have ente red plea agreements, merely by virtue of the
benefit received and the witnesses’ status as co -defendants. Notably, this
is the precise outcome exp ressly reje cted b y Ceccolini, i.e., the perpetual
disablement of witnesses, even co-d efendants, from testifying. Post-
Ceccolini, courts have consisten tly rejected the notion that Cecco lini
applies only to the disinterested, non-party, civic minded witness and have
instead applied the case to co-defendants’ testimony under various factual
circumstances. E.g., United States v. P adilla, 960 F.2d 854 , 863 n.7 (9th
Cir. 19 92), rev’d on other grounds, 508 U.S. 77 (1993) (“This court has
never adopted a per se rule limiting Ceccolini to ‘good citizen’ witnesses
who testify ‘out of a se nse of civic duty’”); United States v. Leonardi, 623
F.2d 746, 752 (2d Cir. 1980) (deeming admissible testimony of
coconspirator “confronted with the fruits of the illegal search at the time
his cooperation was first solicited[,]” though witness was facing
substantial jail time for another crime, testified pursuant to a plea bargain,
and viewed by court as likely testifying out of self-interest); United States
v. Brookins, 614 F.2d 10 37, 1043 (5th Cir. 1980) (testimony partially
induced by a grant of immunity); United States v. Stevens, 612 F.2d 1226,
1229-30 (10th Cir. 1979) (deeming admissible testimony from
coconspirator who testified pursuant to plea bargain, reasoning that
witness “was entitled to raise the defense of the illegality of the wiretaps
and the inadmissibility of evidence resulting therefrom in the case against
him[,] [b]ut he offered to testify; his statement declared this decision was
in part motivated by a desire ‘to change his life-style and stay out of
trouble.’”).
15W e also find it of note that not only Ellison, but also Akridge, were
already known drug dealers. Ellison was under investigation and about
to be prosecuted in connection with the 1999 search. Akridge was a prior
offender and the affidavit testimony of Agent Malone reflects that he had
been receiving updates on Akridge’s criminal activities.
Based on the foregoing, and in light of (1) the
Government’s prior knowledge of Ellison and his criminal
background;15 (2) the six week lapse between the illegal
search and the June questioning and arrest; (3) the additional
nearly four month lapse between the arrest and Ellison’s
decision to cooperate; (4) Ellison’s stated willingness to
testify, particularly his cited reasons for deciding to turn his
life around; and (5) the significant impact of Ellison’s

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No. 01-6294 United States v. Akridge 21
impending prosecution and eligibility for a career offender
enhancement relating to the January 1999 charges, we find
that the connection between the illegal search and the
testimony is sufficiently attenuated. See United States v.
Leonardi, 623 F.2d 746 (2d Cir. 1980) (finding it likely that
the witness’ decision to cooperate was based on the strong
possibility of substantial jail time in relation to committing a
crime separate from that at issue on appeal). In making this
determination, we find instructive Wong Sun, in which Wong
Sun’s arrest was deemed illegal due to lack of probable cause
or reasonable grounds. Nonetheless, the Court regarded this
antecedent illegality to be of no evidentiary consequence,
because Wong Sun had been arraigned, released on his own
recognizance, and had returned voluntarily several days later
for interrogation, during which he made the contested
statement. The Court determined that based on the foregoing,
“the connection between the arrest and the statement had
‘become so attenuated as to dissipate the taint.’” Wong Sun,
371 U.S. at 491 (quoting Nardone, 308 U.S. at 341).
2. Stewart
As to Stewart, Akridge argues that “[e]ven if a relationship
had been discovered, Stewart would have had no incentive to
offer testimony against Akridge absent the arrest stemming
from the May 2 search.” Appellant’s Br. at 25-26. Akridge
further submits that “[i]t is illogical to assume that it was an
exercise in free will that caused [Stewart] to plead guilty and
cooperate when all evidence against her could have been
suppressed.” Appellant’s Br. at 18. We draw the opposite
conclusion.
As with Ellison, Stewart voluntarily returned to the station
for questioning. Notably, Stewart entered her guilty plea on
January 5, 2001, after the magistrate recommended that the
court grant Akridge’s motion to suppress all physical
evidence seized, as well as Akridge’s statement, in relation to
the May 2000 search. Via affidavit Stewart averred that she
knew she could attempt to suppress the firearms seized on
22 United States v. Akridge No. 01-6294
16Citing United States v. Ienco, 182 F.3d 51 7 (7th Cir. 1999), the
dissent posits that “other circuits have unflinchingly rejected the
majo rity’s position.” However, Ienco does not stand in contradiction to
our holding and is clearly distinguishable, in that the contested witness’
statements “were made at 4:15 a.m. after he had been in custody and
questioned at the police station for almost eleven hours.” Ienco, 182 F.3d
at 530. The witness was not “Mirandized,” nor did he have an attorney
present during questioning. And, as stressed by that court, the
“subsequent confession and trial testimony were made after Judge Duff
denied the motion to suppress.” Id. Faced with what the court
characterized as “the choice between testifying against Ie nco . . . or going
to trial where tainted and incriminating evidence wo uld be used against
him, Iovine chose to testify.” Id. Here, the parties sub mitted to
questioning after executing waivers, entered pleas well-after the initial
illegality, and did so in the face of a po tentially favorable suppression
ruling.
United States v. Pa dilla, 960 F.2d 854 (9th C ir. 199 2), rev’d on other
grounds, 508 U.S. 77 (1993), also cited by the dissent as repudiating our
free will analysis, is similarly distinguishable. In Padilla, the discovery
of drugs and the questioning of the testifying party “were virtually
simultaneous events,” “the identities of the defendants would not have
been known without the seizure and subsequent questioning,” and there
was “no indication that the informant would have come forward o f his
own accord.” Padilla, 960 F.2d at 863. As noted supra, the plea
agreements here were entered months after the illegal search, the
May 2, 2000 but did not wish to do so due to a desire to
cooperate and tell the truth. Despite a potentially favorable
suppression ruling, Stewart still decided to enter a guilty plea
instead of challenging the evidence against her. Had
Stewart’s motivation been solely to avoid prosecution, she
could have waited for a suppression ruling. Instead, Stewart
entered her plea without challenging the admissibility of the
evidence against her.
As to the earlier statements made on June 19, we note that
unlike Akridge and Ellison, Stewart had been previously in
custody in relation to the events about which she was being
questioned. However, neither Stewart nor Ellison were
“continuously detained and questioned by the police” until
giving their statements mere hours after the illegality. United
States v. Ienco, 182 F.3d 517, 531 (7th Cir. 1999).16 Instead,

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No. 01-6294 United States v. Akridge 23
existence and identities of Stewart and Ellison were made known prior to
the illegal search, and the record is completely devoid of any evidence to
justify the dissent’s supp osition that the affidavits were executed under
threat of revocation of the plea agree ments.
after her initial arrest in May, Stewart was released and was
voluntarily questioned six weeks later in June. As with
Ellison, we find instructive Wong Sun, in which the Court
determined that a matter of days was sufficient to purge the
taint of the illegality, and conclude that the connection
between the illegal search and Stewart’s subsequent
statements was “so attenuated as to dissipate the taint.”
In so ruling, we are mindful of the Supreme Court’s
repeated admonition that the exclusionary rule is not a per se
rule; rather, the rule is to be applied only in those instances
where exclusion would result in the appropriate deterrent
effect.
“[W]e have declined to adopt a ‘per se or “but for” rule’
that would make inadmissible any evidence, whether
tangible or live-witness testimony, which somehow came
to light through a chain of causation that began with an
illegal arrest.” United States v. Ceccolini, 435 U.S. 268,
276 (1978). Rather, in this context, we have stated that
“[t]he penalties visited upon the Government, and in
turn upon the public, because its officers have violated
the law must bear some relation to the purposes which
the law is to serve.” Id., at 279.
New York v. Harris, 495 U.S. 14, 17 (1990). We are also
mindful of the Court’s admonition that “[t]he exclusionary
rule should be invoked with greater reluctance where the
claim is based on a causal relationship between a
constitutional violation and the discovery of a live witness
than when a similar claim is advanced to support suppression
of an inanimate object.” Ceccolini, 435 U.S. at 275. In this
case, we determine that the statements and trial testimony of
Ellison and Stewart were procured through means sufficiently
24 United States v. Akridge No. 01-6294
distinguishable from the illegal search as to be purged from
the primary taint. See Wong Sun, 371 U.S. at 487-88.
III. CONCLUSION
Based on the foregoing, we AFFIRM the judgment of the
district court.

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No. 01-6294 United States v. Akridge 25
______________
DISSENT
______________
KAREN NELSON MOORE, Circuit Judge, dissenting. On
May 2, 2000, police officers approached an apartment where
the defendant Stephen Akridge was living together with
Kevin Ellison and Tiffany Stewart. The police flatly and
repeatedly lied to Akridge to persuade him to let them search
the apartment, rendering the search undisputedly
unconstitutional. In the illegal search, the police seized
significant quantities of crack and marijuana, as well as
several firearms. On June 20, 2000, Ellison, Stewart, and
Akridge were arrested and charged. One week later, on June
27, 2000, Stewart entered into a plea agreement with the
government. Akridge and Ellison both moved to suppress the
search. While their motion was pending, however, Ellison
entered into a plea agreement with the government in October
of 2000, waiving the suppression issue and leaving Akridge
to litigate it on his own. Eventually, on January 22, 2001, the
district court ordered the physical fruits of the search
suppressed. Without this physical evidence being directly
admissible, the prosecution used Ellison and Stewart to
establish its existence indirectly, through testimony. On the
basis of their testimony, Akridge was convicted.
The majority concludes that Ellison’s and Stewart’s
testimony was admissible against Akridge, in spite of the fact
that it was the fruit of the illegal search. It argues that their
testimony was sufficiently “attenuated” from the illegal
search as to fall within the exception to the fruit-of-the-
poisonous-tree doctrine under United States v. Ceccolini, 435
U.S. 268 (1978). After analysis, I must disagree.
Any discussion of the “attenuation” doctrine must begin
with an analysis of Ceccolini itself. In Ceccolini, the FBI was
investigating suspected gambling operations in New York.
The defendant’s flower shop was one of the places under
26 United States v. Akridge No. 01-6294
surveillance. One year after surveillance ended, a local police
officer, Ronald Biro, spent his break casually talking with his
friend Lois Hennessey, who was working at the shop. During
the conversation, Biro picked up an envelope lying on the
drawer of the cash register and discovered that it contained
money and policy slips. Without telling Hennessey what he
had seen, he asked her to whom the envelope belonged.
Hennessey explained that it belonged to the defendant, Ralph
Ceccolini. Biro mentioned this to another local detective,
who passed it along to the FBI. Four months later, the FBI
interviewed Hennessey at her home and asked for information
regarding Ceccolini; the FBI did not mention the earlier
incident with Biro at the flower shop. Hennessey, who was
studying police science in college, was eager to help. She
related to the FBI the events that had occurred during her visit
with Biro. When Ceccolini denied before a grand jury that he
knew anything about any gambling operations, the
government had Hennessey testify in Ceccolini’s resulting
trial for perjury. The question in the case was whether
Hennessey’s testimony was admissible, despite the fact that
it was clearly, though remotely, derived from an admittedly
illegal search — Biro’s improper seizure of the envelope and
discussion with Hennessey.
The Supreme Court held that Hennessey’s later testimony
was sufficiently attenuated from the initial illegal search as to
be admissible on the basis of five considerations. Most
significant to the Court was the fact that Hennessey’s decision
to talk to the police (and later to testify) was not due to any
leverage the police had over her by virtue of the illegal search.
The Court stressed that “the illegality which led to the
discovery of the witness very often will not play any
meaningful part in the witness’ willingness to testify.” Id. at
277. This was true in Hennessey’s case; her testimony, the
Court held, was “in no way coerced or even induced by
official authority as a result of Biro’s discovery of the policy
slips.” Id. at 279. The Court also emphasized, to a lesser
degree, four other factors. First, the gambling slips were not
used in questioning Hennessey. Second, four months passed

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No. 01-6294 United States v. Akridge 27
1Under their plea agreements, Stewart received a 12-month sentence
while Ellison (who had a more extensive criminal history and was
convicted of several additional charges) received a 115-month sentence.
In contrast, Akridge received a 660-month sentence. Given the fact that
Akrid ge had roughly the same role in the alleged offenses as Ellison and
Stewa rt, and received a sentence fifty times more severe than Stewart (and
five times more severe than Ellison, who had roughly the same criminal
history as Akridge), it seems beyond dispute that Ellison and Stewart both
received a significant reduction in prison time by entering into a plea
between the illegal search and any subsequent contact with
Hennessey, and over a year passed between the latter and
Ceccolini’s trial. Third, the police knew of Hennessey’s
relationship with Ceccolini before the illegal search. And
lastly, there was no evidence that Biro conducted this illegal
search in the attempt to find incriminating evidence. See
United States v. McKinnon, 92 F.3d 244, 247 (4th Cir. 1996)
(using these factors), cert. denied, 519 U.S. 1099 (1997);
United States v. Ienco, 182 F.3d 517, 530 (7th Cir. 1999)
(same).
Consideration of the Ceccolini factors in this case can lead
to only one conclusion — that the testimonial evidence in this
case must be suppressed. The first factor, the issue of free
will, is the most fatal to the prosecution’s case. The majority
argues that Ellison’s and Stewart’s testimony was not a
product of any governmental coercion or inducement, but was
a product of their own volition. I completely disagree.
Ellison and Stewart had just been found with large quantities
of drugs and several firearms; the statutory sentencing ceiling
for the charges in their initial indictments was life in prison.
The government offered Ellison and Stewart the following
options in the form of a plea bargain: Testify against Akridge
and receive a lighter sentence, or litigate the suppression issue
and risk a significantly increased prison sentence. Ellison and
Stewart chose the former. Although it is impossible to
discern from the record just how much of a lighter sentence
Ellison and Stewart received by virtue of their cooperation, it
is clear that their sentences were significantly reduced.1 It
28 United States v. Akridge No. 01-6294
arrangement with the government.
2Because Stewart was unknown as a suspected criminal to the police
until the illegal search, all of the charges against her were based on
evidence discovered in the illegal search. And although the police had
found firearms and marijuana in another of Ellison’s residences over a
year earlier, Ellison was also charged with several additional crimes as a
result of the illegal search. As is explained below, it is therefore clear that
the illegal search itself induced (if no t coerced) both Ellison and Stewart
into entering a p lea agreement with the government.
W hile the majo rity emphasizes that the bare identities of Stewart and
Ellison became known to the police before the unlawful search took place,
the difference between knowing the identity of Akridge’s roommates and
being able to charge them with crimes resulting in years in prison is, to
say the least, significant.
therefore seems impossible to say that Ellison and Stewart
were “in no way coerced or even induced by official authority
as a result of [the illegal search].”2 Such a statement ignores
the mutual consideration usually exchanged in plea
agreements: the defendants receive lesser sentences and, in
return, they testify for the prosecution.
Somehow, the majority refuses to acknowledge these basic
facts, pointing to Ellison’s and Stewart’s affidavits. These
affidavits state that Ellison’s and Stewart’s decisions to testify
against Akridge were voluntary, that they wanted to turn their
lives around and tell the truth. Of course, there is a gentle
irony in these affidavits — namely that the government
presumably required Ellison and Stewart to sign these
affidavits under threat of revoking their plea agreements. But
even assuming that Ellison and Stewart were cooperating in
part because they wished to tell the truth, it is clear that they
only wished to tell the truth to avoid the effects of the
incriminating and illegal search. No one argues the
implausible thesis that Ellison and Stewart would have told
the truth had they never been found by the police in the illegal
search.

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No. 01-6294 United States v. Akridge 29
3The majo rity claims tha t the position ad vocated here wo uld lead to
a per se rule that was rejected by Ceccolini and its progeny. This
assertion fails to take account of the particular circumstances that make
this case so clearly one in which the taint of illegality has not been
attenuated. In no case cited by the majo rity where the taint has been held
to be attenuated has the government’s case against a testifying potential
codefendant been so wholly and entirely a product of the illegal behavior.
The position advocated here does not amo unt to a per se rule, but instead
a reco gnition that when the free will of a witness has be en so obviously
affected by the discovery of adverse evidence in an illegal search, it will
take an extremely strong showing in the other factors to shift the balance
towards attenuation.
Of course, Ellison’s and Stewart’s decision to plea bargain
was “voluntary” in the sense that they did choose to plea
bargain over their other alternatives. But that does not make
their decision “voluntary” within the meaning of Ceccolini,
under which we must differentiate between witnesses who
testified of their own volition and those that testified because
of inducement or coercion on the part of the government.3 Cf.
United States v. Ramirez-Sandoval, 872 F.2d 1392, 1397 (9th
Cir. 1989) (noting that the key inquiry is whether the
“witnesses would have come forward of their own volition to
inform officials”). In Ceccolini, the witness was a civic-
minded citizen, “not a putative defendant,” Ceccolini, 435
U.S. at 275, who studied police science and was eager to help
the government. The government offered no benefit in return
for her testimony, and threatened no detriment if she failed to
provide it. Because her testimony was “in no way coerced or
even induced by official authority as a result of [the illegal
search],” id. at 279, her subsequent testimony was considered
attenuated. In contrast, the witnesses here were putative
defendants, clearly induced (if not coerced) into testifying
under the Damocles-like threat of additional years (or
decades, in Ellison’s case) in prison. To say that these
defendants acted “freely” is to strip all the meaning that the
Supreme Court has attached to this phrase. Short of
government agents forcing Stewart and Ellison to testify by
threats of physical violence, I can think of no situation that
would involve less free will than the one here. Accordingly,
30 United States v. Akridge No. 01-6294
4In a case similar to the case at bar, the Seventh Circ uit held that a
putative defendant’s decisio n to enter into a plea agreement that required
him to testify against his codefendant was not “free” bec ause his only
options were “testifying against [his codefendant] for a lighter sentence
or going to trial where tainted and incriminating evidence would be used
against him.” United States v. Ienco, 182 F.3d 517, 530 (7th Cir. 1999).
This could not be a free choice, the court stressed, as “his actions appear
dictated by his own precarious legal situation–a circumstance forged by
the illegal arrest and search.” Id.
Similarly, in Un ited States v. P adilla, 960 F.2d 854 (9th Cir. 1992),
rev’d on other grounds, 508 U.S. 77 (1 993 ), Luis Arciniega had been
illegally stopped and found with hundreds of pounds of cocaine in his car.
Arciniega confessed that he was a drug m ule and led the police to the
heads of the criminal enterprise, including Xavier Padilla. At Pad illa’s
trial, the governm ent argued that Arciniega’s testimony was sufficiently
attenuated from the illegal stop. The N inth Circuit flatly rejected the
gove rnment’s argument that Arciniega was testifying of his own free will,
recognizing “the heavy weight upon a man’s shoulders who has just been
arrested with hundreds of pounds of drugs in the car he was driving.” Id.
at 862.
W hile the majority attempts to distinguish Padilla and Ienco by
asserting that the timing of the witnesses’ co ope ration is key in
determining their free will, it cannot p oint to any similar case where the
testimony of coconspirato rs under threat of pro secution based primarily
or exclusively on evidence seized in an illegal search has been held to be
sufficiently attenuated. T hat Stewart and Ellison surrendered more
quickly to prosecutorial pressure than their cognates in Padilla and Ienco
does not serve to demonstrate their free will, but perhaps even more
clearly their lack of it.
One commentator, noting the practice of the federal courts generally,
remarked that when it “appear[s] that the witness has been pressured and
that the pressure is a consequence of the prior Fourth Amendment
violation . . . a finding of attenuation is unlikely to be justified.” Wayne
R. LaFave, 5 Search And Seizure: A Treatise On The Fourth Amendment
§ 11.4 (3d ed . 1996).
I find it unsurprising that other circuits have unflinchingly
rejected the majority’s position.4
Although I believe this consideration so tilts in favor of the
defendant that the “attenuation” doctrine is no longer
applicable, considerations of the other Ceccolini factors also
support suppression. First, in Ceccolini, “both the identity of

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No. 01-6294 United States v. Akridge 31
Hennessey and her relationship with the [defendant] were
well known to those investigating the case” before the illegal
search. Ceccolini, 435 U.S. at 279. Here, it was the opposite;
while the police may have known about Ellison and Akridge
separately, nothing even suggested that the two were linked
until the police found them together in the illegal search —
and the police did not even know Stewart existed at all.
Second, in Ceccolini, the police never mentioned the earlier
search in their subsequent interview with Hennessey and
never referred to the illegally seized evidence. Id. at 272
(noting that the investigator “did not specifically refer to the
incident involving Officer Biro”). Here, Officer Cordell
Malone seems to acknowledge that he brought up the initial
illegal search with Ellison and Stewart, only testifying that he
refrained from asking them leading questions about it.
Finally, in Ceccolini, Biro entered the flower shop simply to
talk with his friend and inadvertently noticed something he
never should have seen. Although the search was
unconstitutional, it was not done intentionally to find
evidence of criminal wrongdoing; there was “not the slightest
evidence to suggest that Biro entered the shop or picked up
the envelope with the intent of finding tangible evidence
bearing on an illicit gambling operation.” Id. at 279-80. In
this case, the search was designed to obtain evidence against
the defendant — a point so obvious that the government does
not bother to dispute it.
In conclusion, all of the Ceccolini factors point toward
suppression of Ellison’s and Stewart’s testimony. With
Akridge’s conviction, the prosecution has successfully
managed to escape with the fruits of its poisonous search.
What the government could not admit directly because of its
flagrant constitutional violations, it has slipped through the
back door. I respectfully dissent.

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