United States of America v. Fode Amadou Fofana

*The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0018p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA ,
Plaintiff-Appellant,
v.
FODE AMADOU FOFANA ,
Defendant-Appellee.
X---->
,---
N
No. 09-4397
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 09-00049—Algenon L. Marbley, District Judge.
Argued: October 11, 2011
Decided and Filed: January 24, 2012
Before: MOORE and ROGERS, Circuit Judges; HOOD, District Judge.*
_________________
COUNSEL
ARGUED: Christopher K. Barnes, ASSISTANT UNITED STATES ATTORNEY,
Cincinnati, Ohio, for Appellant. Brian C. DiFranco, DiFRANCO LAW OFFICE,
Columbus, Ohio, for Appellee. ON BRIEF: Christopher K. Barnes, ASSISTANT
UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellant. Brian C. DiFranco,
DiFRANCO LAW OFFICE, Columbus, Ohio, for Appellee.
ROGERS, J., delivered the opinion of the court, in which HOOD, D. J., joined.
MOORE, J. (pp. 11–19), delivered a separate dissenting opinion.
1

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_________________
OPINION
_________________
ROGERS, Circuit Judge. As a result of a presumably illegal airport search, the
Government learned that Fode Fofana used “Ousmane Diallo” as an alias. Identification
bearing Diallo’s name was previously used to open two bank accounts, through which
Fofana allegedly committed bank fraud. In Fofana’s federal bank fraud case, the district
court suppressed any evidence bearing Diallo’s name, and the Government appeals that
order. Although the actual documentation seized during the search must be suppressed,
evidence obtained legally and independently of the search is not suppressible, even if the
Government cannot show that it would have discovered its significance without the
illegal search. Under the facts of this case, the minimal deterrent effect of suppression
is far outweighed by the sweeping burden on the truth-seeking function of the courts.
I.
On November 29, 2007, two U.S. Bank checking accounts were opened in
Cincinnati, Ohio, in the name of Ousmane Diallo. The man produced a passport from
Guinea bearing the name Ousmane Diallo for the purpose of opening the accounts, and
a photocopy of the passport was added to the record. On February 15, 2008, the IRS
directly deposited $3,787 into one of the checking accounts. Diallo withdrew $2,500
from that account before U.S. Bank discovered that the money was a tax return
belonging to an individual named Allison Miller. The account was blocked, a police
report filed, and U.S. Bank notified the IRS. On December 12, 2008, the IRS made two
direct deposits to one of the checking accounts. Those deposits were tax returns
belonging to an individual named Christopher Marks. Diallo attempted to make a large
cash withdrawal from one of the checking accounts on January 31, 2009, but the
transaction was not processed due to the block. The Government alleges that at this
point, the Secret Service had already begun an investigation of the accounts.

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Later in the day on January 31, 2009, Fofana arrived at the Port Columbus
International Airport. His boarding pass was flagged to identify him as a “Selectee” for
additional screening. After Fofana presented a valid state driver’s license in the name
of Fode Fofana at the security checkpoint, the screening agent informed Fofana that he
would need to undergo additional screening. During the search of Fofana’s personal
items, a TSA agent found various envelopes containing large amounts of cash. The TSA
agent then found two unsealed envelopes that “contained something hard and
unbendable,” but unidentifiable. The TSA agent opened the envelopes and found three
passports bearing Fofana’s picture but different names. One of the passports contained
Fofana’s picture and the name Ousmane Diallo.
Upon discovering the passports, the TSA agent contacted law enforcement
officers, who subsequently arrested Fofana. The information found pursuant to the
search was conveyed to U.S. Bank, and U.S. Bank filed a Suspicious Activity Report
(SAR) on February 18, 2009. The bank concluded in the SAR that “the Guinea Passport
belonging to Ousmane Diallo was fraudulent” and the actual individual was Fofana.
Fofana was indicted on three counts of possession of a false passport in violation
of 18 U.S.C. § 1546(a) as well as two counts of bank fraud in violation of 18 U.S.C.
§§ 1344 and 1028A(a)(1). Fofana filed a motion to suppress “all evidence obtained as
the result of the unlawful search and seizure of his persons and belongings” at the
airport. The district court granted Fofana’s motion, finding that the Government failed
to meet its burden of establishing that the search was constitutional. The district court
concluded that “the extent of the search went beyond the permissible purpose of
detecting weapons and explosives and was instead motivated by a desire to uncover
contraband evidencing ordinary criminal wrongdoing.” The district court stated that
“[a]ny evidence that was seized or subsequently obtained as a result of Fofana’s
unlawful search, including the three passports, will be suppressed.” The Government
consequently moved to voluntarily dismiss the three counts relating to possession of a
false passport.

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Fofana then filed a motion in limine “to bar introduction of U.S. Bank account
records in the name of Ousmane Diallo, U.S. Bank surveillance videos, and photos of
Ousmane Diallo and IRS payment records for Ousmane Diallo’s U.S. Bank accounts as
fruits of the unlawful search.” The district court granted Fofana’s motion, concluding
that “the Government has not alleged sufficient facts to meet [the] burden of proof to
show that the connection of Fofana to his alias would have been made through an
independent source or through inevitable discovery.” The district court further
concluded that the identity exception to the exclusionary rule did not apply because
“Fofana is not challenging the presence of his body or identity, but rather evidence of
an alias.” It is this grant of the motion in limine that the Government timely appeals.
II.
There is a difference between evidence that the Government obtains because of
knowledge illegally acquired, and evidence properly in the Government’s possession
that it learns the relevance of because of knowledge illegally acquired. It may be that
the latter must be suppressed in some cases. But in the context of the present case, bank
records and other evidence that the Government obtained independently of the airport
search do not have to be suppressed on account of the unconstitutionality of that search,
merely because the relevance or usefulness of that evidence became apparent because
of the search.
The reasoning behind this conclusion is strongly supported by case law, although
the precise combination of circumstances appears to be unprecedented. First, the actual
documents whose suppression is at issue—the bank records reflecting the fraud—were
in the possession of the Government entirely free of illegal means. Secondly, the illegal
search was not directed to the crime, or even the type of crime, for which the discovered
information turned out to be useful, thereby eliminating much of the deterrent effect of
suppression in this case. Third, an alternate, more direct deterrent to such searches is
clearly present, in the form of excluding the passports from evidence. Fourth, exclusion
of the bank records in this case unduly burdens the truth-seeking function of courts by
effectively precluding relevant and legitimately obtained evidence from ever being used.

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First, the bank records at issue were in the Government’s possession entirely free
of illegal taint. Indeed, they were largely if not entirely in the Government’s possession
before the illegal search, and included at least one photograph of Fofana that could link
him to the U.S. Bank account once his identity was known. “[T]he government cannot
be made worse off because of misconduct than it would have been if the misconduct had
not occurred.” United States v. Alexander, 540 F.3d 494, 503 (6th Cir. 2008) (citing Nix
v. Williams, 467 U.S. 431, 443-44 (1984)). To the extent that any of the records at issue
were obtained by the Government after the airport search, our analysis extends only to
those records clearly related to the crime regardless of the Government’s knowledge of
Diallo’s identity. Our holding does not extend beyond such records and those in the
Government’s possession prior to the search.
The importance of the fact that the evidence was properly in the Government’s
possession is supported by the holdings of the Supreme Court that voluntary testimony
of witnesses is admissible even though information from an illegal search led to the
witness’s testimony. In United States v. Crews, 445 U.S. 463 (1980), the Supreme Court
upheld the admissibility of a victim’s in-court identification of the defendant even
though a photo of the defendant used in a preliminary photo lineup had been
unconstitutionally obtained. As the plurality reasoned, “the Fourth Amendment
violation . . . yielded nothing of evidentiary value that the police did not already have in
their grasp.” Id. at 475. Similarly, in United States v. Ceccolini, 435 U.S. 268 (1978),
the Supreme Court upheld the admission of a flower shop employee’s testimony
impeaching that of a gambling scheme operator accused of perjury where the police
learned of the flower shop employee’s knowledge as a result of an inquiry following an
illegal search of an open drawer in the shop. The Supreme Court emphasized the degree
to which the flower shop employee was willing to testify freely, because “[t]he greater
the willingness of the witness to freely testify, the greater the likelihood that he or she
will be discovered by legal means and, concomitantly, the smaller the incentive to
conduct an illegal search to discover the witness.” Id. at 276. The Court reasoned 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. The underlying idea

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is that a voluntary witness’s testimony is independent because it is freely available to be
found and used without the necessity of the illegal search.
The same can perforce be said in the present case because the records were not
only freely available, but actually were in the possession of the Government independent
of the illegal search. It is only incidental that an illegal search speeded the recognition
of the usefulness of the available evidence, or in other words narrowed the investigation.
That aspect of Ceccolini is just like this case. Ceccolini is not distinguishable because
of the Supreme Court’s focus on the voluntariness of the testimony. The voluntariness
of the testimony shows the free availability of the evidence; such a showing is entirely
unnecessary where the evidence is not only available but independently possessed. In
Crews, the Supreme Court explained that “the victim’s capacity to identify her assailant
in court neither resulted from nor was biased by the unlawful police conduct committed
long after she had developed that capacity.” Crews, 445 U.S. at 473. In this case, if the
evidence in the Government’s possession obtained before or independently of the search
has the capacity to identify Fofana as Diallo, that capacity is wholly separate from the
unlawful conduct that first made the police aware of the potential link.
Second, the focus of the airport search was in no way related to the usefulness
to the bank fraud prosecution of the information obtained. The deterrent effect of
excluding the evidence is therefore minimal. The Supreme Court so reasoned in
Ceccolini. In that case, there was
not the slightest evidence to suggest that [the policeman] entered the shop
or picked up the envelope with the intent of finding tangible evidence
bearing on an illicit gambling operation, much less any suggestion that
he entered the shop and searched with the intent of finding a willing and
knowledgeable witness to testify against respondent. Application of the
exclusionary rule in this situation could not have the slightest deterrent
effect on the behavior of an officer such as [this policeman].
Id. at 279-80. In United States v. Akridge, 346 F.3d 618, 628 (6th Cir. 2003), we noted
that the fact that the officer in Ceccolini was “not specifically in search of the particular
evidence sought to be suppressed” weighed against suppression when considering the
purpose of the misconduct at issue. In this case, the TSA agent admitted to looking for

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contraband. The passports found may be considered such contraband, but what Fofana
is moving to suppress is not the passports, but rather the link between him and his alias.
That evidence is quite remote from what could reasonably have been expected to result
from the search. Suppressing it would have a minimal deterrent effect in the future.
Third, and relatedly, there is a far more direct and effective way to deter illegal
searches like the one in this case. The tangible evidence actually found cannot be
admitted. In this case the Government was not permitted to use the passports as
evidence, and the Government does not challenge this on appeal. Similarly, in Crews
the Government could not use the photo lineup as evidence against the defendant, and
in Ceccolini the Government could not use the gambling slips that the policeman
wrongly examined. The deterrent effect that results from these suppressions renders
minor any additional deterrence from suppression of the testimony, or, in this case, the
link between Fofana and Diallo. The deterrent effect of the exclusion of the passports
here is particularly powerful since it effectively eliminates the possibility of convicting
Fofana of the first three counts of his indictment. Other circuits have held that the
exclusionary rule did not apply when a second, more remote set of charges was brought
on the same evidence illegally obtained, since the deterrent effect was achieved by
suppressing the evidence on the initial charges. See United States v. Awadallah, 349
F.3d 42 (2d Cir. 2003); United States v. Varela, 968 F.2d 259 (2d Cir. 1992); United
States v. Paepke, 550 F.2d 385 (7th Cir. 1977). The Supreme Court has held that “the
benefits of deterrence must outweigh the costs. We have never suggested that the
exclusionary rule must apply in every circumstance in which it might provide marginal
deterrence.” Herring v. United States, 555 U.S. 135, 141 (2009) (internal citations and
quotation marks omitted). The suppression of the passports achieves a significant
deterrent effect; any marginally increased effect from further suppression cannot be
justified when one considers the substantial costs of such an action.
Fourth, exclusion of the bank records in this case would burden the truth-seeking
function of the courts in a way closely analogous to the concern expressed by the
Supreme Court in Ceccolini. See 435 U.S. at 277-78. Once the Government learns who

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Diallo really is, how is the Government to identify him free of the taint of the underlying
knowledge? No matter how investigators finally identify Diallo, the Government will
be accused of having used its ill-gotten knowledge in narrowing the investigation. And
requiring the police to follow a lot of known false leads appears an undue cost of the
exclusionary rule. A more reasonable cost is that the police must find new or different
untainted evidence, as they have in this case.
As an example, suppose a girl’s body, hidden in a house by a depraved
kidnapper, is noticed by an officer conducting an unconstitutional narcotics search. Let
us say the officer is relying on a warrant based on a barebones affidavit. How can the
police proceed without risking immunizing the kidnapper from prosecution? Do they
have to ignore the information by assigning the kidnapping investigation to officers who
are unaware of the discovery, thereby continuing an expensive city-wide manhunt? Or
by focusing their investigation on the house in question, do they risk the exclusion of any
evidence they find as a result of such a focused but otherwise constitutionally conducted
investigation? The exclusionary rule cannot force such a Hobson’s choice. Instead, the
police must proceed by constitutional means to get admissible evidence, but without
putting valuable information out of their heads. This approach more properly balances
the deterrent rationale of the exclusionary rule with the truth-seeking function of the
courts.
In Ceccolini, the Supreme Court relied on a similar concern, reasoning that
exclusion of live testimony of witnesses “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.” 435 U.S. at 277. In this case, upholding suppression would just as perpetually
keep the very evidence of the bank fraud—the bank records of the fraud—from being
presented to the criminal fact finder. The Supreme Court has repeated that “when
balancing the interests involved, we must weigh the strong interest under any system of
justice of making available to the trier of fact all concededly relevant and trustworthy
evidence which either party seeks to adduce.” Id. at 278 (quoting Michigan v. Tucker,

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417 U.S. 433, 450 (1974)). Balancing this interest against the comparatively weak
Fourth Amendment interests in this case compels the conclusion that the bank records
be admitted.
The Eight Circuit reasoned similarly when it encountered a situation similar to
the one before us. In United States v. Watson, 950 F.2d 505 (8th Cir. 1991), police wrote
down banking information during a search for marijuana and illegal weapons, and
subsequently began to investigate Watson’s financial activities. The only information
used from the search was Watson’s alias and the names of some banks. The court
presumed that the records search was illegal, but nevertheless held that the evidence
subsequently obtained was sufficiently attenuated to purge it of possible taint. “The
mere fact that information gained during at illegal search gives rise to a subsequent,
separate investigation of an individual does not necessarily taint the later
investigation. . . . Furthermore, if the information merely facilitates or shortens the
subsequent investigation, it does not taint the investigation’s results.” Id. at 507-08. To
find otherwise “would amount to granting the suspect ‘life-long immunity from
investigation and prosecution.’ In such situations, the societal cost of imposing the
exclusionary rule outweighs any deterrent effect.” Id. at 508 (quoting United States v.
Friedland, 441 F.2d 855, 861 (2d Cir. 1971)).
Finally, our holding is consistent with our decision in United States v. Leake,
95 F.3d 409 (6th Cir. 1996). In that case, police learned as a result of an illegal search
that Leake went by the alias John Sandusky and that he was involved in a marijuana
trafficking conspiracy. Prior to the search, the police had acquired no evidence linking
even Sandusky, Leake’s alias, to the conspiracy. Further, at the suppression hearing, the
Government did not produce any evidence linking Leake to Sandusky not the result of
the search. We refused to give the Government a second chance, two years later, to
provide such evidence, in a case “brimming with loose ends.” Id. at 418 n.18.

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III.
We reverse the judgment of the district court and remand for proceedings
consistent with this opinion.

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________________
DISSENT
________________
KAREN NELSON MOORE, Circuit Judge, dissenting. The majority’s decision
today avoids exclusion of the evidence at issue by patching together elements of various
established exceptions to the exclusionary rule and discounting the deterrent value of the
rule’s application in this instance. The result is troubling and inconsistent with our prior
Fourth Amendment jurisprudence. Because none of the established exceptions to the
exclusionary rule apply and because there is meaningful and important deterrence to be
gained by the evidence’s exclusion, I respectfully dissent.
I. INEVITABLE DISCOVERY, INDEPENDENT
SOURCE, AND ATTENUATION
In support of its decision, the majority asserts that “the bank records at issue were
in the Government’s possession entirely free of illegal taint.” Maj. Op. at 5. In making
this argument, the majority blurs elements of three exceptions to the fruit-of-the-
poisonous-tree doctrine: (1) inevitable discovery; (2) independent source; and
(3) attenuation. None of these exceptions apply.
Citing United States v. Alexander, 540 F.3d 494 (6th Cir. 2008), the majority
invokes the inevitable-discovery doctrine and accompanying principle that the
exclusionary rule cannot be applied so as to make the government worse off than if the
illegal search or seizure had not occurred. As recognized by the Supreme Court in Nix
v. Williams, 467 U.S. 431, 443-44 (1984), the inevitable-discovery doctrine provides “an
exception to the exclusionary rule for evidence . . . that inevitably would have been
discovered by lawful means,” United States v. Keszthelyi, 308 F.3d 557, 573-74 (6th Cir.
2002). However, by the government’s own admission, there is no indication that the
connection between Fofana and Ousmane Diallo would have inevitably been made. See
R. 55 (Pretrial Tr. at 6) (government acknowledging that, because of the passport, “law
enforcement was able to put [] together” the fact that Fofana was the person who opened
the accounts under the alias Ousmane Diallo and that it was “pure speculation” whether

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1As with inevitable discovery, the government bears the burden of proving that such evidence
was in fact available via an independent, untainted source. United States v. Leake, 95 F.3d 409, 412 (6th
Cir. 1996).
such connection would have been made otherwise). In fact, the government did not even
raise the application of the inevitable-discovery doctrine on appeal. Without evidence
that the connection between Fofana and Ousmane Diallo would have inevitably been
made regardless of the illegal search, I cannot perceive how the majority concludes that
exclusion of the bank records places the government in a worse position. To the
contrary, exclusion in this instance returns the parties to the status quo prior to the illegal
search.
The majority also alludes to the independent-source doctrine, emphasizing that
the bank records were lawfully in the government’s possession prior to the illegal
search. While the independent-source doctrine does provide that evidence need not be
excluded “where a proper, independent search led to the evidence in question,” it is
inapplicable here. United States v. Baldwin, 114 F. App’x 675, 681 (6th Cir. 2004)
(unpublished opinion) (quoting United States v. Dice, 200 F.3d 978, 984 (6th Cir. 2000))
(internal quotation marks omitted). The majority’s argument misses the proper focus of
the analysis. The bank records, which bore the alias Ousmane Diallo, were meaningless
as against Fofana until the discovery of the passports in Fofana’s possession established
the connection between Fofana and the alias Ousmane Diallo. Thus, it matters not that
the government had the bank records prior to the illegal search because the government
would never have known to use those bank records in prosecuting Fofana if not for the
illegal search. It is the establishment of the connection between Fofana and the alias
Ousmane Diallo that is important for our analysis—not the prior legal possession of the
bank records themselves. To make out an independent-source exception the government
needed to demonstrate that it had knowledge of the connection between Fofana and
Ousmane Diallo via an independent source.1 The district court was correct in
concluding that the government failed to carry its burden in this respect.
Finally, the government invokes the attenuation doctrine citing United States v.
Crews, 445 U.S. 463 (1980), and United States v. Ceccolini, 435 U.S. 268 (1978). The

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Supreme Court has explained the attenuation doctrine as follows: “We need not hold
that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come
to light but for the illegal actions of the police. Rather, the more apt question in such a
case is ‘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.’” Wong Sun v.
United States, 371 U.S. 471, 487-88 (1963). The Supreme Court has suggested three
factors to guide the attenuation analysis: “the temporal proximity of the [illegality] and
the emergence of the incriminating evidence at issue, the presence of intervening
circumstances, and, particularly, the purpose and flagrancy of the official misconduct.”
United States v. Williams, 615 F.3d 657, 669 (6th Cir. 2010) (alterations in original
omitted) (quoting Brown v. Illinois, 422 U.S. 590, 603-04 (1975)).
The cases that the majority cites in support of its attenuation argument are not
analogous. The Supreme Court in Crews based its finding of attenuation on the fact that
“the police’s knowledge of respondent’s identity and the victim’s independent
recollections of him both antedated the unlawful arrest and were thus untainted by the
constitutional violation.” 445 U.S. at 477. In other words, the Supreme Court found that
the identifying link connecting the defendant to the crime, i.e., the witness’s independent
knowledge, existed prior to and independent of the illegality. Although the police had
knowledge of the bank records’ existence prior to the illegality, as the police in Crews
had knowledge of the “respondent’s identity,” the police did not have knowledge of the
link between Fofana and the alias. The link between Fofana and the alias is the
identifying link crucial to the Crews holding: “the victim’s independent recollections”
connecting the respondent to the crime. As a result, the illegal search at issue here, as
opposed to that in Crews, did provide something “of evidentiary value that the police did
not already have in their grasp” by “link[ing] together two extant ingredients in [the]
identification”—Fofana and the alias Ousmane Diallo. Id. at 475.
In Ceccolini, the Supreme Court concluded that witness testimony given as “an
act of . . . free will” after “[s]ubstantial periods of time elapsed between the time of the

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2Moreover, the majority’s statement that “[i]t is only incidental that an illegal search speeded the
recognition of the usefulness of the available evidence” confuses attenuation with inevitable discovery.
Maj. Op. at 6.
illegal search and the initial contact with the witness . . . and the testimony at trial” was
sufficiently attenuated. 453 U.S. at 279. The present case involves physical evidence
rather than witness testimony and, therefore, excludes the possibility that free will could
remove the taint. See United States v. Akridge, 346 F.3d 618, 633-34 (6th Cir. 2003)
(Moore, J., dissenting) (listing five considerations informing the Supreme Court’s
inquiry in Ceccolini and identifying the element of free will as the most important). The
bank records in question, unlike the testifying witness in Ceccolini, have no independent
identifying ability and, therefore, are unable to bridge the connection between Fofana
and Ousmane Diallo apart from the taint of the illegal search. In addition, there was not
a significant lapse in time between the illegal search and use of information gained by
the illegal search. The illegal search occurred in November 2007 and U.S. Bank filed
the Suspicious Activity Report implicating Fofana less than three months later. R. 46
(Suspicious Activity Report at 4).2 In short, there is no attenuation to purge the taint
between the illegal search and the identification of Fofana as synonymous with Ousmane
Diallo. It is clear that the illegal search has been exploited in order to marshal the bank
records in the government’s possession against Fofana.
II. DETERRENCE AND SOCIAL COSTS
The majority’s final three arguments relate to deterrence and the attendant social
costs of exclusion. Specifically, the majority argues that: (1) exclusion would serve
only minimal deterrent value because the illegal search was not conducted for the
purpose of uncovering the evidence at issue; (2) exclusion of the bank records provides
only minimal incremental deterrence because the passports have already been excluded;
and (3) exclusion would burden the truth-seeking function of the courts. I disagree.
First, the majority states that the evidence should not be excluded because “the
focus of the airport search was in no way related to the usefulness of the information
obtained to the bank fraud prosecution” and, therefore, the “deterrent effect of excluding

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3In this sense, this case is distinguishable from United States v. Akridge, 346 F.3d 618, 628 (6th
Cir. 2003). In that case, the “officers were responding to a complaint about drug trafficking from
Akridge’s apartment” and “not specifically in search of the particular evidence sought to be suppressed
in this case, i.e., witness testimony.” Id. Moreover, in Akridge, this Circuit recognized that “a clear intent
to uncover illegality through illegal means would seem to weigh in favor of suppression.” Id.
4Transportation Security Administration, TSA Myth or Fact: Leaked Images,
Handcuffed Hosts, Religious Garb, and More!, T HE TSA B LOG (Nov. 18, 2010),
http://blog.tsa.gov/2010/11/tsa-myth-or-fact-leaked-images.html (last visited Jan. 18, 2012).
the evidence is . . . minimal.” This statement is simply inaccurate. Maj. Op. at 6. By
the Transportation Security Administration (“TSA”) agent’s own admission, the purpose
of the illegal search was to uncover contraband. R. 26 (Suppression Hr’g Tr. at 97).
Thus, while we do not know precisely what the agent expected (or hoped) to find, we do
know that the agent’s searching activities were aimed at implicating Fofana in criminal
wrongdoing. By finding the passports connecting Fofana to Ousmane Diallo, the agent
succeeded in this aim regardless of whether the agent specifically foresaw and intended
this exact result.3 Allowing successful prosecution based on the fruits of this search
creates incentives for agents to engage in similar conduct in the future.
Moreover, the circumstances of this search are sufficiently distinguishable from
those in Ceccolini. In Ceccolini, the officer observed an envelope with incriminating
evidence while in a flower shop “spending his short break engaged in conversation with
his friend Lois Hennessey.” 435 U.S. at 270. Given the incidental, casual encounter in
Ceccolini between the officer and his friend, the flower shop employee, it is easy to see
how the Court was confident that there was no future misconduct to deter. In contrast,
the search in question occurred in conjunction with an administrative TSA search, to
which TSA reports approximately two million travelers are subjected each day.4 Given
the broad discretion already granted to TSA agents to search the traveling public, it is
important to deter unconstitutional conduct and to ensure that TSA’s broad powers are
not improperly exploited for law-enforcement purposes. Suppressing the bank records
serves this precise deterrent purpose.
Second, the majority states that because the passports have been suppressed,
suppression of the bank records will achieve only minimal incremental deterrence. I
disagree. Although suppression of the passports has some deterrent effect, it is not

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5Moreover, the cases the majority cites as supporting its position are distinguishable. Each case
involved the use of evidence obtained via illegal means in support of charges lodged in response to
criminal activity undertaken after the illegal search or seizure took place—not in support of charges lodged
as a result of knowledge obtained pursuant to the illegal search or seizure about previous criminal
wrongdoing. See United States v. Awadallah, 349 F.3d 42, 73-75 (2d Cir. 2003) (admitting false
statements to grand jury obtained in conjunction with an illegal detention in aid of perjury charges lodged
after the false grand jury testimony because “it is untenable to say that the FBI agents . . . sought to elicit
perjury rather than truthful information”); United States v. Varela, 968 F.2d 259, 260, 262 (2d Cir. 1992)
(holding that the exclusionary rule does not bar “the use of unlawfully obtained post-arrest statements . . .
to prove that [a defendant] subsequently committed” perjury where the perjury occurred after the “unlawful
arrest or seizure . . . instead of preceding it”). United States v. Paepke, 550 F.2d 385, 389-91 (7th Cir.
1977) (upholding the use of evidence previously deemed inadmissible in a narcotics prosecution where
it was relevant to a tax-fraud charge arising from conduct occurring after the narcotics charges were
dismissed).
6In this regard Watson is distinguishable from the present case. In Watson, the key factor to the
Eighth Circuit’s holding was that a “subsequent, separate investigation” initiated after acquisition of the
evidence rendered said evidence “sufficiently attenuated from the presumably illegal search so as to purge
enough given the significant benefit in using the information obtained from the passports
to pursue the bank-fraud prosecution. In fact, in light of the usefulness of the
information obtained from the illegal search, the government may view the suppression
of the passports as a worthwhile sacrifice. Particularly in the context of airport
administrative searches, it is important to maintain an incentive structure that does not
encourage illegal behavior by ultimately permitting law enforcement to utilize evidence
obtained as a result of misconduct in aid of significant prosecutions.5 Suppressing the
bank records achieves precisely this deterrent effect.
Third, the majority argues that the bank records should not be excluded because
doing so “would burden the truth-seeking function of the courts.” Maj. Op. at 8. In
support, the majority presents a kidnaping hypothetical and admonishes the use of the
exclusionary rule to “force . . . a Hobson’s choice.” Id. This argument overlooks a
crucial reality of this case: The government was in no way forced into a Hobson’s
choice. The government could have structured its investigation to insulate the
admissibility of the bank records as against Fofana via the various established exceptions
to the fruit-of-the-poisonous-tree doctrine. After learning of the connection between
Fofana and Ousmane Diallo, the government could have pursued an independent
investigation to procure this connection via an independent source. See Wong Sun, 371
U.S. at 487. This is in fact more or less what occurred in United States v. Watson, 950
F.2d 505 (8th Cir. 1991), which the majority cites favorably in support of its position.6

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No. 09-4397 United States v. Fofana Page 17
the evidence of any possible taint.” 950 F.2d at 507. The government has presented no evidence of a
similar subsequent and separate investigation in this case.
7Such an approach would work equally well in the government’s depraved-kidnapper scenario
because the government need not continue the expensive city-wide manhunt so long as it could
demonstrate that its investigatory procedures would have eventually procured the same result. See Nix,
467 U.S. at 449-50. In the alternative, were the kidnaping victim still alive, the victim’s ability to testify
by virtue of his or her own free will as to the kidnapper’s identity would seem sufficient to attenuate the
taint of the initial illegality per Ceccolini.
In the alternative, had the government wished to avoid exerting investigatory resources,
under established Sixth Circuit precedent, it could have simply asserted its typical
processes for investigating bank fraud to demonstrate that it would have inevitably
discovered the connection between Fofana and Ousmane Diallo. See Keszthelyi, 308
F.3d at 574 (“The government can satisfy its burden by showing that routine procedures
that police would have used regardless of the illegal search would have resulted in the
discovery of the disputed evidence.”) (internal quotation marks omitted).7 The
government, however, did not make either effort and instead asks this court to sanction
its inaction by allowing it to rely on the illegality for the evidence’s admission. The
Fourth Amendment requires more. With an array of established exceptions providing
the government with safety valves to the exclusionary rule’s application, it is not only
unnecessary but also improper to indulge the government’s request.
The conclusion that the majority reaches today is inconsistent with our prior
decision in United States v. Leake, 95 F.3d 409, 417-418 (6th Cir. 1996), in which this
Circuit suppressed evidence discovered pursuant to an illegal search that provided the
necessary connection between the defendant and an alias. In Leake, an independent
investigation by the Drug Enforcement Agency (“DEA”) had been initiated prior to an
illegal search of Leake’s home by Kentucky police officers. As a result of the illegal
search, the police officers were able to contact Leake’s girlfriend, who provided a list
of information, which included the fact that Leake’s alias was “John Sandusky.” Id.
Subsequent investigation by the DEA utilizing information resulting from the illegal
search led to utility and vehicle registration records in the name of John Sandusky that
linked Leake to the conspiracy previously under investigation. Id. at 414. Although the
government admitted that the list provided by the girlfriend that contained the alias was

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No. 09-4397 United States v. Fofana Page 18
inadmissible, id. at 415 n.9, it argued that other evidence thereby derived was admissible
pursuant to the inevitable-discovery or independent-source doctrines, id. at 417. The
court held that all evidence “connecting Leake to the alias ‘John Sandusky’” must be
suppressed, id. at 421, noting that “[w]hile it is conceivable that investigators might have
worked their way” to the evidence relating to the alias John Sandusky, “the government
has failed to carry its burden of proof” in this regard, id. at 418 (citing Nix, 467 U.S. at
444-45). I find it is difficult to square the careful exclusion of the alias evidence and the
various connections it facilitated to other incriminating evidence in Leake with the
majority’s holding today. There was no evidence linking Fofana to Ousmane Diallo
prior to the illegal search, and the government made no effort to demonstrate its ability
to establish this link independent of the illegality. Just like Leake, this is a case
“brimming with lose ends.” Id. at 418 n.18.
Had the government taken simple, independent investigatory steps to solidify its
case against Fofana we would be deciding a very different case today. In fact, we would
very likely have a case in which we could unanimously agree that at least one of the
established exceptions to the fruit-of-the-poisonous-tree doctrine applied. However,
such is not the case before us. As Justice Stevens so aptly stated in Nix v. Williams:
“The majority refers to the ‘societal cost’ of excluding probative
evidence. In my view, the more relevant cost is that imposed on society
by police officers who decide to take procedural shortcuts instead of
complying with the law.”
Nix, 467 U.S. at 457 (Stevens, J., concurring) (citation omitted). While it is often the
unhappy result of the exclusionary rule that those who are culpable go free, this is the
cost of ensuring meaningful protection of important constitutional rights. See Mapp v.
Ohio, 81 U.S. 643, 659 (1961) (“The criminal goes free, if he must, but it is the law that
sets him free. Nothing can destroy a government more quickly than its failure to observe
its own laws, or worse, its disregard of the character of its own existence.”). I cannot
condone the government’s brazen disregard of the Fourth Amendment in this instance.
Doing so is inconsistent with prior precedent and diminishes the importance of
constitutional liberties. Accordingly, I respectfully dissent.

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