                                                                   [DO NOT PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                            No. 11-11218             JANUARY 12, 2012
                                        Non-Argument Calendar           JOHN LEY
                                      ________________________           CLERK


                            D.C. Docket No. 2:09-cr-00075-JES-SPC-1


UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                                versus

JASON BERGIN,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Florida
                                 ________________________

                                           (January 12, 2012)

Before HULL, MARCUS and BLACK, Circuit Judges.

PER CURIAM:
      Jason Bergin appeals his conviction for conspiracy to possess with intent to

distribute Oxycodone, Methadone, and Alprazolam. On appeal, Bergin argues that

his motion to suppress should have been granted because: (1) the magistrate and

district court clearly erred by crediting the testimony of Deputy Christopher Canfield

over that of co-defendant Robert Powner; and (2) the post-indictment and arrest

statements and testimony of his co-defendants were not sufficiently attenuated from

an illegal search. After thorough review, we affirm.1

      “A district court’s ruling on a motion to suppress presents mixed questions of

law and fact.” United States v. Ramirez-Chilel, 289 F.3d 744, 748-49 (11th Cir.

2002). We review “findings of fact for clear error and the application of the law to

those facts de novo.” United States v. Martinelli, 454 F.3d 1300, 1306 (11th Cir.

2006). In reviewing the district court’s ruling, we construe the facts in the light most

favorable to the prevailing party below. United States v. Smith, 459 F.3d 1276, 1290

(11th Cir. 2006).

      First, the district court did not clearly err in considering the testimony at the

motion to suppress hearing. Credibility determinations are within the province of the

fact finder “because the fact finder personally observes the testimony and is thus in

a better position than a reviewing court to assess the credibility of witnesses.”


      1
          In addition, we GRANT Bergin’s motion to supplement the record.

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Ramirez-Chilel, 289 F.3d at 749. Furthermore, if testimony presented by opposing

witnesses at the hearing is in “direct conflict,” the district court’s decision to lend

credence to one party’s version should be “conclusive” and warrants reversal only if

the court credits “exceedingly improbable” or unbelievable testimony. Id. (quotations

and emphasis omitted). Likewise, we “must accept the evidence unless it is contrary

to the laws of nature, or is so inconsistent or improbable on its face that no reasonable

factfinder could accept it.” Id. (quotation omitted).

      On this record, the district court did not clearly err in crediting Deputy

Canfield’s testimony over co-defendant Powner’s testimony to determine that Bergin

permitted Canfield to enter the residence. Deputy Canfield, as well as Deputy Corey

Roberts both testified that Bergin was not allowed to re-enter his home to retrieve a

pair of socks and Bergin asked them to enter the home and retrieve his socks.

Powner’s testimony that he was asked to enter the home to retrieve the socks and that

he did in fact enter the home and shut the door behind him is in direct contradiction

to the officers’ testimony.

      While neighbor April Campbell’s testimony -- that she observed officers enter

the house after Powner entered -- in part supports Powner’s testimony, it does not

make Deputy Canfield’s testimony unbelievable as a matter of law. Campbell was

unable to remember if Powner closed the door behind him when he entered the home.

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Additionally, she testified that she never observed the officers speaking to Bergin.

She also had no idea if anyone retrieved Bergin’s socks. Thus, it was within the

province of the magistrate, after observing each witness personally, to find Canfield

more credible than Powner. See Ramirez-Chilel, 289 F.3d at 749.

      As for Bergin’s argument that it is illogical that a person in his position would

permit a police officer to enter his home, it is even more illogical on these facts that

a trained officer while making a felony arrest would allow a person to enter the

residence and close the door. Lastly, the fact that Canfield included incorrect

statements in his arrest report fails to make his overall testimony “exceedingly

improbable.” Canfield was extensively cross-examined about these statements and

explained to the magistrate judge why he made the assumptions.

      We are also unpersuaded by Bergin’s claim that the post-indictment and arrest

statements and testimony of his co-defendants should have been suppressed due to

an illegal search. The Fourth Amendment provides that “[t]he right of the people to

be secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated.” U.S. Const. amend. IV. Generally, evidence

obtained by unconstitutional means is inadmissible because it is the “fruit of the

poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 488 (1963). However,

such evidence is admissible if it has been obtained “by means sufficiently

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distinguishable to be purged of the primary taint.” Id. One such exception is the

attenuation doctrine. See United States v. Terzado-Madruga, 897 F.2d 1099, 1113

(11th Cir. 1990).

       Where the connection between the unlawful conduct and the discovery of the

challenged evidence may be so attenuated as to dissipate the taint, the exclusionary

rule is rendered inapplicable. Etheridge v. United States, 380 F.2d 804, 808 (5th Cir.

1967).2 Whether the discovery of evidence is sufficiently attenuated is an issue that

“cannot be decided on the basis of causation in the logical sense alone, but

necessarily includes other elements as well.” United States v. Ceccolini, 435 U.S.

268, 274 (1978). When considering whether witness testimony is admissible, the

district court must consider “the degree of free will exercised by the witness” and

must balance “the social cost of exclusion that would perpetually disable a witness

from testifying about relevant and material facts against the efficacy of exclusion in

furthering the deterrent purpose of the exclusionary rule.” United States v. Brookins,

614 F.2d 1037, 1042 (5th Cir. 1980) (quotation and brackets omitted). Both the

voluntariness requirement and the greater social cost requirement are more readily

satisfied if the challenged derivative evidence is testimony, rather than physical



       2
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted
as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

                                                 5
evidence. Id. The attenuation analysis need not apply, however, absent an initial

finding that there is at least some causal connection between the illegality and the

testimony. Terzado-Madruga, 897 F.2d at 1116. Illegally obtained evidence is not

excluded from presentation to a grand jury. United States v. Calandra, 414 U.S. 338,

351-52 (1974).

        In this case, the record reflects that after being arrested on September 22 and

23, 2009, co-defendants Bergin, Powner, Shandy Albert, and Theresa Martinez all

made statements that implicated Bergin in the passing of fraudulent prescriptions.

Bergin is correct that knowledge of their identities and involvement in the conspiracy

can be traced back to evidence discovered during the unlawful searches of Bergin’s

home.

        However, their statements and prospective testimony are attenuated from the

illegal searches. See Brookins, 614 F.2d at 1042. As the record reflects, the

statements made by Bergin, Powner, Albert, and Martinez were acts of their own free

will. Each person made the challenged statement almost two months after the illegal

search. The statements were all made after the co-defendants were indicted and

arrested for their own role in the conspiracy. Even though these statements were

made after being arrested, there is nothing to suggest that the statements were

coerced. Each individual was given their Miranda rights, but elected to waive those

                                           6
rights before speaking with Drug Enforcement Agent Amber Baginski and providing

information about the conspiracy. Given the length of time between the illegal

searches and the intervening indictments and arrests, the social cost of excluding such

evidence outweighs the deterrent effect because there is nothing in the record to

suggest that the exclusion of such evidence would have a deterrent effect on law

enforcement misconduct.

      Bergin also argues that the statements of co-defendants Susan Hamilton, Julie

Becker, and Jarrett Sprafka should be suppressed as fruits of the illegal search. Each

of these statements were made after the searches, but prior to the indictment.

However, these statements and prospective testimony are also attenuated from the

illegal searches. See id. As the record shows, each of these individuals made

statements to the authorities of their own free will. While their names were

discovered during the illegal search pursuant to the search warrant, Hamilton and

Becker came to the attention of the police based on their independent arrests for

passing fraudulent prescriptions. After Hamilton was arrested, she called a detective

and requested to speak with him. After Becker was arrested, she elected to speak

with Agent Baginski after being given her Miranda rights. Sprafka voluntarily

contacted the police after learning he was on the pharmacy alert.




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      Additionally, there is no evidence showing that Becker and Sprafka were even

aware of the illegal searches at the time they voluntarily spoke with the police. Given

the circumstances of Hamilton, Becker, and Sprafka’s statements, there is nothing in

the record to suggest that the exclusion of such evidence would have a deterrent

effect on law enforcement misconduct. Accordingly, we affirm.

      AFFIRMED.




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