     Case: 18-30366      Document: 00515097985         Page: 1    Date Filed: 08/29/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 18-30366                          August 29, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

              Plaintiff-Appellee

v.

QUINN P. REED,

              Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:16-CR-51-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Quinn P. Reed appeals his conviction for drug
possession with intent to distribute, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2,
and unlawful use of a telephone, 21 U.S.C. § 843(b), on grounds that the district
court should have granted his motion to suppress evidence. For the following
reasons, we AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 18-30366

       At approximately 12:05 a.m. on April 27, 2015, Baton Rouge police
arrested and detained Reed after illegally searching his vehicle and uncovering
narcotics. Reed was suspected of associating with a member of a gang under a
separate investigation, which led to the monitoring of Reed’s telephone calls
from jail. On April 28, 2015, at 9:52 p.m., Reed called his girlfriend, Albertha
Guerin, and instructed her to retrieve containers with false bottoms from his
mother’s house and “put up” “that white stuff” stored inside. 1 According to
authorities, Reed’s reference to “white stuff” in canisters with false
compartments indicated narcotics, and he was “facilitating a crime by asking
his girlfriend” to move and store the narcotics for him.                   Based on this
information, authorities obtained a warrant the next day to search Reed’s
residence. No drugs were found at Reed’s residence, but Reed’s narcotics were
located at Guerin’s residence. Guerin’s mother had provided the authorities
with consent to search the residence at 10:52 p.m. on April 29, 2015.
       The district court suppressed the narcotics seized from Reed’s vehicle
during the initial arrest. Reed filed a second motion to suppress his telephone
call to Guerin, as well as the narcotics found at Guerin’s home, arguing that
they were derived from the unconstitutional search of his vehicle and thus fruit
of the poisonous tree in violation of the Fourth Amendment. The district court
denied the motion, holding that the call and narcotics found in Guerin’s home
were sufficiently attenuated from the unconstitutional search of Reed’s vehicle
and thus not subject to the exclusionary rule.
       In considering the denial of a motion to suppress, “this court reviews the
district court’s fact findings for clear error and its legal conclusions de novo.”
United States v. Rounds, 749 F.3d 326, 337 (5th Cir. 2014). All evidence is


       1The district court erroneously found that Reed’s jailhouse call to Guerin occurred on
April 27, 2015 at 10:00 a.m. The transcript of the call shows that it actually occurred on
April 28, 2015, at 9:52 p.m. Thus, the district court clearly erred in this factual finding.


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                                 No. 18-30366

viewed in the light most favorable to the prevailing party, here the
Government. Id. at 338.
      The statements Reed communicated via jailhouse telephone to Guerin
are not subject to the exclusionary rule because the statements themselves
constitute a crime. See United States v. Garcia-Jordan, 860 F.2d 159, 160-61
(5th Cir. 1988); United States v. Melancon, 662 F.3d 708, 712 (5th Cir. 2011).
Furthermore, the statements are similarly not subject to the Fifth
Amendment’s voluntariness requirement because they are criminal acts, as
well as not confessional in nature; the statements were made to Reed’s
girlfriend as opposed to the police. United States v. Kirk, 528 F.2d 1057, 1062
(5th Cir. 1976).
      It is unclear whether the drugs seized from Guerin’s home as a result of
Reed’s illegal telephone instructions are subject to the exclusionary rule.
Compare United States v. Butts, 729 F.2d 1514, 1518 (5th Cir. 1984)
(authorities may seize evidence from an intervening criminal act under certain
circumstances) with United States v. Nooks, 446 F.2d 1283, 1288 (5th Cir.
1971) (attenuation doctrine applied to evidence incident to a defendant’s crime
committed while in custody after a potentially illegal stop).          However,
assuming the exclusionary rule could apply, the district court correctly denied
Reed’s motion to suppress because the narcotics are sufficiently attenuated
from Reed’s illegal arrest. Utah v. Strieff, 136 S. Ct. 2056, 2061-62 (2016).
      In applying the attenuation doctrine, courts consider three factors: the
temporal proximity “between the unconstitutional conduct and the discovery
of evidence,” intervening circumstances, and the purpose and flagrancy of the
official misconduct. Id. First, the approximately 45 hours between the time of
Reed’s illegal arrest and the subject call and the additional 25 hours before the
police found the drugs at Guerin’s home constitute a “substantial period of



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time” favoring attenuation. See United States v. Cherry, 794 F.2d 201, 206 (5th
Cir. 1986)
      Second, at least three intervening circumstances occurred weighing in
favor of attenuation: Reed’s illegal telephone instructions from jail, see United
States v. Sheppard, 901 F.2d 1230, 1235 (5th Cir. 1990) (defendant’s flight from
police after an illegal stop “constituted criminal activity and functioned to
break any nexus between the challenged” stop and the evidence seized); the
consent that Guerin’s mother provided to the authorities to search her
residence, which led to the discovery of Reed’s narcotics, see United States v.
Cooke, 674 F.3d 491, 495 (5th Cir. 2012); and the information gleaned from
Reed’s illegal telephone instructions regarding the location of the drugs that
constituted probable cause, see Cherry, 794 F.2d at 206.
      Third, Reed concedes that there “is no direct evidence that [he] was
initially stopped, detained, arrested, and incarcerated in order for law
enforcement to listen to his telephone calls.” Furthermore, the record lacks
evidence that the Baton Rouge Police Department exhibited a pattern of
conducting illegal stops and arrests in order to listen to jailhouse calls. Thus,
the purpose and flagrancy of the official misconduct favors attenuation. Strieff,
136 S. Ct. at 2063.
      Taken together, the attenuation factors sever the nexus between Reed’s
illegal arrest and the drugs seized at Guerin’s home. Thus, the district court’s
denial of Reed’s motion to suppress the drugs, as well as the telephone call
itself, is AFFIRMED.




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