UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                        No. 96-4013

MILTON EARL FAIRCLOTH,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
William L. Osteen, Sr., District Judge.
(CR-94-300)

Submitted: February 25, 1997

Decided: August 15, 1997

Before NIEMEYER and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

J. Clark Fischer, RANDOLPH & FISCHER, Winston-Salem, North
Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney,
Paul A. Weinman, Assistant United States Attorney, Timika Shafeek,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Milton Earl Faircloth appeals his conviction for his role in a con-
spiracy to distribute crack cocaine. See 21 U.S.C. § 846 (1994). His
only assignment of error is his contention that the district court
improperly allowed one of Faircloth's co-conspirators, Lee Marvin
Settle, to testify regarding a telephone conversation he had with Fair-
cloth. The subject of the conversation, and the source of this contro-
versy, was Faircloth's arrest in New York City.

Faircloth successfully argued in the district court that the arrest and
subsequent search, which yielded a quantity of cocaine, were unsup-
ported by probable cause. Consequently, the court suppressed the
arresting officer's testimony and the drugs seized. However, the court
allowed the Government to present Settle's testimony about Fair-
cloth's telephone call from the New York jail. In the call, Faircloth
described to Settle the circumstances of the arrest and the discovery
of the drugs.

Faircloth urges this court to find that the district court's decision
to allow this testimony was error. In support of this claim, Faircloth
claims Settle's testimony was the "fruit of the poisonous tree" har-
vested from his illegal arrest in New York. Wong Sun v. United
States, 371 U.S. 471, 487 (1963). As a threshold matter, in order to
warrant suppression, Settle's testimonial evidence must be the prod-
uct of the illegal government conduct. New York v. Harris, 495 U.S.
14, 19 (1990).

Rather than being a product of the illegality, the information is
more accurately described as deriving from an "independent source,"
and is therefore admissible. Murray v. United States, 487 U.S. 533,
542 (1988). Although the Government in this case presumably ini-
tially learned of Faircloth's arrest in the possession of drugs through

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the arresting officer, and therefore as a consequence of the illegal
activity, the prosecutors also learned of the arrest and possession of
drugs through Settle, whose testimony was obtained through entirely
lawful activities. Id.

Even assuming the testimony is actually the product of the illegal
arrest, there was no error in allowing the evidence. In addition to the
requirement of a "closer, more direct link" to suppress live testimony,
United States v. Ceccolini, 435 U.S. 268, 278 (1977), the evidence is
sufficiently attenuated from the original illegality of the arrest and
search. See Brown v. Illinois, 422 U.S. 590, 603-04 (1975). We
employ a three-factor test to evaluate the degree of attenuation and
consider (1) the time elapsed between the illegality and the acquisi-
tion of the evidence, (2) the presence of intervening circumstances,
and (3) the purpose and flagrancy of the official misconduct. Id.

In this case all three factors weigh in favor of the admission of the
evidence. There was significant delay between the illegal arrest in
New York and Settle's contact with the Government. Faircloth was
arrested twice more on suspicion of distribution of cocaine after the
illegal arrest. Furthermore, the arresting officer's misconduct had
nothing to do with the investigation into the conspiracy of which Fair-
cloth and Settle were a part. The officer was merely overzealous in
investigating what he believed was a robbery attempt. There was no
error in admitting the evidence.

Faircloth urges this court to adopt a "but for" test in analyzing the
admissibility of the evidence of the illegal arrest. This argument goes
too far. While there must be at least "but for" causation, that causation
alone is not sufficient to render evidence irretrievably "fruit of the
poisonous tree." Segura v. United States, 468 U.S. 796, 815 (1984).
As explained above, Settle's testimony evidence is not only suffi-
ciently attenuated from the officer's illegal conduct, it is also from a
sufficiently independent source to be admissible. As a result, we
affirm Faircloth's conviction. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED

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