U.S. v. Millis, No. 09-10134 (9-2-10) (Thomas with McKeown; dissent by Bybee).

Here is no water but only rock
Rock and no water and the sandy road
The road winding above among the mountains
Which are mountains of rock without water
If there were water we should stop and drink
Amongst the rock one cannot stop or think
Sweat is dry and feet are in the sand
If there were only water amongst the rock
Dead mountain mouth of carious teeth that cannot spit
Here one can neither stand not lie nor sit
There is not even silence in the mountains
But dry sterile thunder without rain

T.S. Eliot. The Waste Land (1922)(V. What the Thunder Said).

This case is about leaving water in the desert for undocumented immigrants crossing. The organization, "No More Deaths" places gallon-sized plastic water bottles at various points along crossing trails to alleviate the immigrants' exposure and prevent deaths. The water was placed in the Buenos Aires National Wildlife Refuge. The defendant admitted to U.S. Fish & Wildlife Service agents that he had placed the gallons and the reason. The agents explained that littering was a problem, and that water drums had been set up two miles way. The agents also explained that special use permits were required to allow such resources. The defendant picked up the bottles his organization had left. The agents then instructed the defendant to meet them at the next trail to retrieve other bottles. The defendant thought the agents said the next trail that had water that was hard to retrieve. The agents waited at the next trail, and when the defendant did not show up, the agents decided to issue a citation for "disposal of waste" under 50 CFR 27.94(a). The defendant argued before the court that humanitarian aid is never a crime. The magistrate court convicted, and the district court affirmed. On appeal, the defendant argued that the water was not garbage, refuge, sewage, or debris as defined under the CFR regulation as "disposal of waste." The government argued that plastic bottles were indeed garbage, and that littering was a serious problem. The 9th, using the rule of lenity, reversed the conviction. It held that whether bottles of water on trails were garbage was sufficiently ambiguous to invoke the rule of lenity. The water left was for human consumption and so arguably was not garbage. It was ambiguous. The defendant could have been charged with abandonment of property or failure to get a special use permit under that regulatory scheme, but he was not. In dissent, Bybee argues that the majority tortures the rule of lenity to reach that result, because the plastic water bottles could be clearly defined as garbage. Such bottles were a problem on the refuge, was littering, and constituted a danger to wildlife. The water bottles were for "illegal immigrants" but it would not matter if what was left were sleeping bags by an inattentive Cub Scout troop. Litter is litter. There is nothing ambiguous about it. Bybee would not invoke the rule of lenity.

Alert as to Stops & Warrants: Here is a heads up from AFPD Edie Cunningham, FPD Arizona (Tucson). If the police discover an outstanding warrant during an unlawful detention and find contraband in a search incident to arrest, the exclusionary rule might not apply. Some federal circuits and state courts have found the warrant to be an intervening factor that purges the taint of the illegality. See, e.g., United States v. Green, 111 F.3d 515 (7th Cir. 1997); United States v. Simpson, 439 F.3d 490, 496 (8th Cir. 2006); People v. Brendlin, 195 P.3d 1074, 1081 (Cal. 2008); State v. Hummons, --- P.3d ----, 2010 WL 2951468 (Ariz. App. 2010).

Unfortunately, this issue is on the Supreme Court’s radar. At oral argument in Brendlin v. California, in 2007, some of the justices questioned whether the illegality of a traffic stop makes any difference when evidence is uncovered only after the discovery of an outstanding warrant during the stop. Brendlin, which held that a passenger is seized by virtue of a traffic stop and can therefore challenge its lawfulness, remanded to the state courts to "to consider in the first instance whether suppression turns on any other issue." 551 U.S. 249, 263 (2007). The California Supreme Court subsequently held that suppression was unnecessary because discovery of the unlawful warrant purged the taint of the illegal traffic stop, but it emphasized that a finding of attenuation is appropriate only in the "unusual case" where a questionable stop results in the "chance discovery" of an outstanding warrant. Brendlin, 195 P.3d at 1081.

Accordingly, some courts have maintained that suppression is necessary when an officer detains a person solely to check for warrants because application of the exclusionary rule is the only way to deter the police from randomly stopping people for that purpose. People v. Mitchell, 824 N.E.2d 642 (Ill. App. 2005); State v. Soto, 179 P.3d 1239 (N.M. App. 2008); see also United States v. Hudson, 405 F.3d 425, 440 (6th Cir. 2005) (when police make an illegal stop for the very purpose of arresting the person stopped, they are thereby exploiting the illegal stop and evidence obtained must be suppressed). And some courts that have held the exclusionary rule inapplicable when an unlawful detention results in discovery of a warrant have stressed that, although ultimately mistaken, the officer honestly believed that he or she had lawfully seized the suspect. Simpson, 439 F.3d at 492, 496; Brendlin, 195 P.3d at 1076-77, 1080; Jacobs v. Oklahoma, 128 P.3d 1085, 1087, 1089 (Okl. App. 2006).

We can only hope that other courts will apply this limitation of the exclusionary rule narrowly, if at all. But, as some of these cases illustrate, it is all too easy for courts to downplay the gravity of police misconduct and ignore the far-reaching implications of arbitrary warrant checks. See, e.g., Hummons, 2010 WL 2951468, ¶11 (finding no flagrant violation, and therefore no grounds for suppression, even if officer unlawfully detained and ran a warrants check on an African-American defendant because he was carrying a weed-eater and extension cord down the street at 9:00 A.M. despite officer’s admitted lack of reasonable suspicion); Green, 111 F.3d at 523 (no evidence of bad faith, and no suppression, where police stopped car in hope of finding fugitive but continued to unlawfully detain and run a warrants check on car’s occupants after confirming that fugitive was not present).