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UNITED STATES v. ORTIZ

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


November 8, 1993

UNITED STATES OF AMERICA
v.
JOSE ORTIZ, a/k/a RAOUL RAMOS

The opinion of the court was delivered by: BY THE COURT; STEWART DALZELL

MEMORANDUM

 Dalzell, J.

 November 8, 1993

 The Government has filed a motion to reconsider our ruling of October 26, 1993 in which we suppressed evidence seized from the defendant after what we held to have been an unlawful arrest, or, alternatively, an "investigatory stop." The essence of the Government's reconsideration motion is that a second "arrest" took place of this defendant after it was learned that his real name was Jose Ortiz and not "Raoul Ramos" and that there were three extant arrest warrants outstanding for Jose Ortiz. As a result, the Government contends that the evidence seized could not have been the unlawful "fruit" of the tree that was tainted by the jetway arrest of the defendant within the meaning of Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441 (1963).

 For reasons we will now set forth, we reject the Government's twelfth hour contentions as being incompatible with well-established principles of Fourth Amendment jurisprudence. *fn1"

  The Government proffers as the theoretical basis of its argument views that the Government originally attributed to the late Judge Friendly, but after our query now concedes are those of a student commentator in the University of Pennsylvania Law Review :

 

The purpose of depriving the government of any gain is to remove any incentive which exists toward the unlawful practice. The focus is forward - to prevent future violations, not punish past ones. Consequently, where the chain between the challenged evidence and the primary illegality is long or the linkage can be shown only by "sophisticated argument", exclusion would seem inappropriate. In such a case it is highly unlikely that the police officers foresaw the challenged evidence as a probable product of their illegality; thus it could not have been a motivating force behind it. Absent this, exclusion carries with it no benefit to society and should not prejudice society's case against a criminal.

 Comment, 115 U.Pa.L.Rev. 1136, 1148-49 (1967), referencing Justice Frankfurter's statement in Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct. 266, 268, 84 L. Ed. 307 (1939), that "sophisticated argument may prove a causal connection" that in reality "may have become so attenuated as to dissipate the taint." *fn2" Taking this as an accurate summary (whatever its parentage) of the policies animating the exclusionary rule, we find as a fact that the obtaining of the physical evidence from this defendant was necessarily linked to what we held to be the unlawful jetway handcuffing of Ortiz.

 The first confirmation that the unlawful jetway seizure had not "become so attenuated as to dissipate the taint" is that Ortiz's admission about his real name occurred no more than six to eight minutes after the handcuffing. *fn3" Between the handcuffing and the admission, no exogenous, lawful event happened to break the flow of action that began with the jetway handcuffing *fn4" . All of the additional information obtained after Ramos/Ortiz was seized rapidly and without interruption followed from the fact that he was in (unlawful) custody. *fn5"

 The Government contends, however, that the questions Detective Kosmalski asked at the police station were "routine booking questions" and were, therefore, exempt within the "routine booking exception" it says exists to Miranda. See Government's Motion to Reconsider at 10, n. 6, citing Pennsylvania v. Muniz, 496 U.S. 582, 110 S. Ct. 2638, 2650, 110 L. Ed. 2d 528 (1990). The Government, however, miscites Muniz.

 In this portion in his opinion for himself and Justices O'Connor, Scalia and Kennedy, Justice Brennan was referring in Muniz to "routine booking questions" asked "to secure the biographical data necessary to expedite booking or pretrial services." Id. But the premise of the Muniz plurality was that the defendant was already subject to "booking" and therefore such "biographical data" was not investigatory and, thus, was exempt from Miranda's application. The ordinary English usage of the verb to book means that the defendant is already arrested. *fn6" That is to say, he could not have been booked unless he was arrested, and if such "routine booking questions" are to receive the Muniz vaccine they must be made as part of a lawful arrest. Manifestly, here they were not.

 The Government's argument thus drives us to reaffirm our October 26 holding that Ortiz was arrested in the jetway. The information obtained minutes after that unlawful event was therefore necessarily linked to it. *fn7"

 A simple hypothetical further demonstrates the extravagance of the argument the Government makes here. Late one night three police officers randomly burst into a Philadelphia row home. They wake up the occupant and rummage through the house. Six to eight minutes later, one of the officers sees a card on a nighttable, bearing the name "Jose Ortiz." The occupant admits that is his name, and a computer check reveals three arrest warrants outstanding in that name. Ortiz is arrested. While leaving, Ortiz identifies the black bag near the card as his. The bag contains fourteen bricks of cocaine.

 To accept the Government's argument here and apply it to the hypothetical, we would not suppress the bag's contents because the arrest would not be unlawful and "not achieved through the exploitation" of the illegal search. *fn8" But to find no link or "taint" in such a case would be to repeal the Fourth Amendment. The temporal and physical proximity of the identity admission to the wantonly unlawful search shows it to be the sap of the same poisoned tree.

 We are ultimately fortified in our rejection of the Government's post-decision afterthoughts by referring to the law review commentary the Government proffered to us. The purpose of Wong Sun surely is "to prevent future violations, not punish past ones." To excuse what Detective Kosmalski did in this case, as the Government for the fourth time urges us to do, would be to encourage the lawlessness that took place here. Any modern air traveller can easily recognize himself or herself walking onto a jetway holding carry-on baggage, and looking remarkably like Ortiz on July 13, 1993. In order to protect those countless and innocent passengers from the kind of unwarranted seizure that occurred as Delta flight 904 discharged its passengers that day, we must adhere to our October 26, 1993 ruling and reject the Government's esprit de l'escalier.

 ORDER

 AND NOW, this 8th day of November, 1993, upon consideration of the Government's motion to reconsider the Court's ruling of October 26, 1993 suppressing evidence, the defendant's response, and for the reasons set forth in the foregoing Memorandum, it is hereby ORDERED that the Government's motion is DENIED.

 BY THE COURT:

 Stewart Dalzell, J.


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