I.
A.
In August, 1998, a Confidential Informant (“Cl”) working with the Drug Enforcement Agency (“DEA”) began communicating with Juan Ramirez and his wife, Gloria Santa, about purchasing approximately one kilogram of heroin. Ramirez informed the Cl that he expected to receive a kilogram of heroin on or about October 4, 1998, and that they could arrange a sale then. In the meantime, the Cl kept in touch with Ramirez and Santa by telephone and by visiting them at their place of employment, Tony’s Furniture Store (“the Store”) in northwest Miami.
During a series of recorded telephone conversations, the Cl arranged to meet Ramirez and Santa at the Store on October 5, 1998, to purchase a “sample” amount of heroin. DEA agents set up surveillance at the Store and equipped the Cl with a body wire. Once inside the Store, the Cl purchased 1.7 grams of heroin from Ramirez for $100, and the two discussed a possible sale of the entire kilogram. Ramirez told the Cl that if the Cl found the sample to be acceptable, Ramirez could arrange a larger transaction at Ramirez and Santa’s residence in Miami Lakes. The Cl stated that he first needed to show the sample to his “people,” and that he would be in touch about the larger deal.
The Cl placed a phone call to Ramirez later that day and told him that he liked the sample and wanted to make another buy. Ramirez instructed the Cl to get in touch with Santa so that she could contact the heroin supplier and make arrangements. As directed, the Cl called Santa, explained that he had $5,000 to buy heroin, and asked her to get in touch with the *665 supplier. Santa promised to notify the Cl after speaking with the supplier, but the Cl did not hear back from her.
The DEA agents continued their surveillance at the Store through Wednesday, October 7. On that day, the Cl called Ramirez to find out whether he wanted to proceed with the heroin deal. 1 Ramirez told the Cl that the supplier would be at the Store at 12:30p.m., and instructed the Cl to call back at 1:00p.m. to find out whether the supplier would agree to make the sale. When the Cl called back as instructed, Ramirez told him that the supplier had agreed to go forward with the transaction and that the Cl was to be at the Store in one hour with the money.
Although the record is not entirely clear, it appears that the Cl showed up to meet Ramirez and the supplier — Gilbert Galle-go — at the Store sometime before 4:00p.m. Plans were made during that meeting to complete the drug transaction at Ramirez and Santa’s apartment. 2 Someone (presumably Ramirez) began to give directions to the apartment but was interrupted by Gallego, who suggested that the parties meet back at the Store at 4:00p.m. and then proceed from there to Ramirez and Santa’s apartment to complete the deal.
At approximately 4:00p.m., Ramirez, Santa, Gallego, the Cl, and an undercover DEA agent posing as the Cl’s “money man” met at the Store. They confirmed that the transaction would occur at Ramirez and Santa’s apartment in Miami Lakes. Gallego would leave the Store alone and bring the heroin to the apartment from an undisclosed location. Ramirez, Santa, and Gallego were led to believe that the undercover agent’s role was to guard the purchase money somewhere outside the apartment while the Cl went inside to inspect the drugs. If the drugs looked good, the Cl would leave the apartment, get the money from the undercover agent, and return to complete the exchange.
The parties left the Store at approximately 4:25, with Ramirez and Santa in the front car leading the way to the apartment. The Cl and the undercover agent followed Ramirez and Santa in another car, and Gallego left in his vehicle to retrieve the heroin. While en route, the Cl and the undercover agent advised the sur-veilling agents that the group would complete the heroin transaction at Ramirez and Santa’s apartment. The DEA had established surveillance at the apartment earlier in the day because both Ramirez and Santa had indicated during previous conversations with the Cl that the transaction would take place there. 3
Ramirez, Santa, the Cl, and the undercover agent arrived at the apartment at *666 approximately 4:50, and the Cl followed Ramirez and Santa inside. The undercover agent apparently “left the area,” although the record is unclear about where he went. 4 The DEA agents had instructed the Cl that when he saw the heroin, he was to tell Ramirez and Santa that he was going outside to get the money. As he exited the apartment under that guise, he was to give a prearranged visual signal to the surveilling agents meaning, “I’ve seen the drugs.”
After Ramirez, Santa, and the Cl arrived at the apartment, Gallego called Ramirez from the road to let them know that he was stuck in traffic. While waiting for Gallego to arrive, Santa left the apartment briefly to pick up her children, ages two and four, from somewhere in the apartment complex. The Cl also left the apartment periodically to check in with the undercover agent. After another call from Gallego, the Cl went out to inform the agent that the heroin would soon be at the apartment.
At 6:50, approximately fifteen minutes after hearing from the Cl that Gallego was close by, the surveilling agents observed Gallego arrive at the apartment complex. He emerged from his vehicle carrying a white plastic shopping bag. Agents then saw Ramirez exit the apartment, but lost sight of him for a short time. When agents spotted Ramirez again, he was carrying a white plastic bag similar to the one Gallego had been carrying. Ramirez brought the bag into his apartment, according to one of the surveilling agents, “as covertly as possible.” The Cl followed Ramirez into the apartment, and then emerged three to five minutes later giving the prearranged signal to the DEA agents indicating that he had seen the heroin. Gallego had already left the area in his truck, never having entered the apartment.
Within thirty seconds of seeing the Cl’s signal, two DEA agents — LeClair and Mokwa — and Detective O’Hara of the Hollywood, Florida Police Department approached Ramirez and Santa’s first floor apartment. Mokwa went around to guard the sliding glass doors in the back of the apartment, which opened onto a golf course. Meanwhile, LeClair and O’Hara announced themselves at the front door by yelling “police,” and found the door locked when they attempted to open it. LeClair kicked in the front door, and he and O’Hara entered with their guns drawn. Mokwa then returned from the rear of the apartment and entered through the front door.
After entering the apartment, LeClair spotted Ramirez approaching the agents from a hallway. The agents ordered Ramirez onto the floor and handcuffed him, and then made a protective sweep of the apartment to find any other persons who were inside. The agents found Santa in the hall bathroom giving her children a bath. Mokwa told her to wrap them up and bring them into the living room, which she promptly did. Santa was neither placed on the floor nor handcuffed.
Approximately two to three minutes after the forced entry, while the other agents were securing the apartment, Mok-wa advised Ramirez of his Miranda rights. LeClair told Ramirez that the agents knew there were drugs in the apartment, and asked “if he would just make things easy and tell [the agents] where the drugs were.” The agents’ weapons were hol *667 stered by this time. Ramirez, still on the floor in handcuffs, told the agents that they could search the apartment, and that the heroin was beneath the sink in the master bathroom. 5
After finding the heroin precisely where Ramirez said it would be, the agents led Ramirez to a table in his living room/dining room area. They removed his handcuffs and asked him to sign a written consent form written in Spanish. 6 Essentially, the agents were asking Ramirez to give his written consent to the search that had just taken place. Ramirez read the consent form silently and signed it. 7 According to the DEA agents’ testimony at the suppression hearing, a total of five to ten minutes passed between the initial police entry and Ramirez’s signing of the consent form. 8
Santa was placed under formal arrest after the heroin was found in the bathroom, and Gallego was stopped and arrested by agents who had followed his vehicle from the Miami Lakes apartment. On October 16, 1998, a Southern District of Florida grand jury returned a two-count indictment against Ramirez, Santa,. and Gallego pursuant to 21 U.S.C. § 846 for conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1), and, pursuant to 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, for possession with intent to distribute heroin.
B.
Ramirez and Santa filed motions to suppress the heroin seized during the search of the Miami Lakes apartment, alleging that the agents’ warrantless entry was unlawful and that the subsequent consent given by Ramirez was invalid. 9 In response, the Government contended that exigent circumstances — namely, a possibility that Ramirez or Santa would flee or destroy the drugs — supported their war-rantless entry and search of the apartment. The Government contended in the alternative that even if the entry were illegal, Ramirez’s subsequent verbal and written consent to search was voluntary and therefore valid.
The magistrate judge held a suppression hearing on January 25, 1999, at which Agent LeClair testified that he felt the warrantless police entry was necessary because “[the heroin] could be flushed down the toilet. Somebody could escape through the back door. [The apartment] was on a golf course. It was very hard to surveil. , [Approaching agents could be seen] from the window overlooking the parking lot .... ” LeClair further testified that he was afraid a “rip off’ would take place, in which Ramirez and Santa would abscond with the drugs before Gal-lego or the Cl returned to the apartment. Finally, LeClair stated that the agents' intended to arrest Ramirez, and were afraid he would attempt to leave the apartment and flee if not apprehended immediately. Despite the agents’ plan to arrest Ramirez and seize the drugs, LeClair conceded that the agents never attempted to obtain an arrest or search warrant.
In his Report and Recommendation (“R & R”), the magistrate judge found that probable cause to arrest Ramirez and San *668 ta existed when the warrantless entry was made, but that “the facts in this case would not lead a reasonable, experienced agent to believe that evidence might be destroyed at the time entry was made and before a warrant (at least a phone warrant) could be obtained.” Thus, the magistrate judge found that there were no exigent circumstances to support the agents’ warrantless entry. Nonetheless, the magistrate judge recommended that the motions be denied on the ground that
the consent given by ... Ramirez was valid.... [TJhere were no guns drawn on ... Ramirez when he gave his verbal consent, nor were there any threats or coercion. Rather, the evidence shows that ... Ramirez decided to cooperate with authorities once he was informed that they were aware the heroin was in the house. The fact that Ramirez signed a consent to search form buttresses the finding that the consent was voluntary.
The district court adopted the magistrate judge’s R & R and denied the motions to suppress. 10 Ramirez chose not to appeal the court’s ruling and entered a plea of guilty to both counts of the indictment. Santa entered a conditional guilty plea and then filed the instant appeal challenging the district court’s denial of the motion to suppress. We now reverse the district court’s denial of Santa’s motion and remand the case for further proceedings.
II.
“A district court’s ruling on a motion to suppress presents a mixed question of law and fact.”
United States v. Zapata,
The agents’ testimony at the suppression hearing established that law enforcement officers entered the apartment with two separate goals: (1) to ensure that evidence of the crime was not destroyed or stolen, and (2) to arrest Ramirez. Thus, our initial «inquiry is whether agents could, absent a search warrant, lawfully enter the apartment to search for and seize the heroin. If so, the voluntariness of Ramirez’s consent to search is immaterial; no consent was needed. If the agents could not lawfully enter to search for the heroin, the question then becomes whether, absent an arrest warrant, police could lawfully enter the apartment to seize Ramirez. If so, then consent to search areas of the apartment beyond Ramirez’s wingspan would have been necessary, and the voluntariness of Ramirez’s consent is of paramount concern. Finally, even if the agents’ entry was unlawful under theories of both search and arrest, the question remains whether Ramirez’s consent to the search of his apartment, even if voluntary, was tainted by the illegality and thereby rendered invalid. We consider each of these issues in turn.
III.
A.
“It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.”
Payton v. New York,
Although “[c]ourts have catalogued several situations in which exigent circumstances exist, ... it is clear that the exception must be applied carefully to each factual scenario.”
United States v. Lynch,
This circuit has recognized that “the need to invoke the exigent circumstances exception to the warrant requirement is ‘particularly compelling in narcotics cases’ because narcotics can be so quickly destroyed.”
Tobin,
In this case, the Government contends that the officers had to secure Ramirez and Santa’s apartment immediately to prevent'the destruction of evidence and Ramirez’s escape. The occupants of the apartment, however, were unaware that they were under police investigation. Agent LeClair testified that the surveilling DEA agents were all in unmarked vehicles and that they had done nothing to disclose their presence to Ramirez, Santa, or Galle-go. The agents had no cause to believe that the Cl had “tipped off’ the suspects. Thus, there was nothing to indicate that Ramirez, Santa, or Gallego had become aware of their presence. 11
It is well settled that “[c]ircumstances are not normally considered exigent where
*670
the suspects are unaware of police surveillance.”
Tobin,
The Government argues, however, that waiting for a warrant would have been too risky. First, it contends that the level of difficulty in surveilling the apartment made the situation “touch and go”; agents could not get close to the apartment without being spotted by the suspects, and the suspects had easy access to an unguarded rear door that opened onto a golf course. Fearing an eventual “foot pursuit” across the course, 12 agents desired to apprehend the suspects before they had a chance to exit the apartment.
We flatly rejected an identical argument in
United States v. Lynch,
police could not maintain effective surveillance in Lynch’s residential neighborhood; they were limited to helicopter surveillance which can only detect movement by vehicles. Because it would have been possible for someone inside the house to flee undetected on foot, the Government argues, the police needed to secure the home immediately. We will not hold that the warrantless search of an individual’s home may be justified by the police’s inability to maintain effective surveillance, particularly when no exigency has been established. Such a holding would run counter to all established [FJourth [AJmendment precedent.
The Government’s next argument in favor of the warrantless entry is that Ramirez and Santa would have become suspicious if the Cl did not return promptly with the money, and that their suspicion would have motivated them to destroy the drugs. Indeed, some courts have held that where the evidence supports an inference that the suspects expect to meet or contact their co-conspirators before police can obtain a warrant, it is reasonable for police to assume that the suspects’ suspicions create a substantial risk justifying a warrantless entry and search. See,
e.g., United States v. Clement,
There is no evidence in the record, however, to suggest how soon Ramirez and Santa expected the Cl to return with the money. We cannot discern how far from the apartment the undercover agent — who was supposedly holding the money — was located. We are also without information regarding what the Cl told Ramirez and Santa about when he would return to the apartment. Mere speculation about Ramirez and Santa’s suspicions, without any factual support, is not enough to overcome the warrant requirement.
See Lynch,
Even if we assume, however, that Ramirez and Santa expected the Cl to return to the apartment within a few minutes of his departure, the agents’ warrant-less entry of the apartment was unlawful. This court has held that “a warrantless search is illegal when police possess probable cause but instead of obtaining a warrant create exigent circumstances.”
Tobin,
Anticipatory search warrants, i.e., warrants that become effective upon the happening of a future event, “have repeatedly been upheld where they are supported by probable cause and the conditions precedent to the search are clearly set forth in the warrant or supporting affidavit.”
United States v. Loy,
Anticipatory search warrants have been described as “differ[ing] from traditional warrants in that they are not supported by probable cause to believe the items to be seized are at the place to be searched when the warrant is issued.”
Loy,
In general, the simple fact that a warrant is “anticipatory” — i.e., that it takes effect, not upon issuance, but at a specified future time — does not invalidate a warrant or make it somehow suspect or legally disfavored. Warrants often do specify that they will take effect upon issuance. But the Constitution imposes no such requirement. Rather, it says that a search must not be “unreasonable,” and that warrants must be supported by “probable cause.” U.S. Const, amend. IV. There is nothing unreasonable about authorizing a search for tomorrow, not today, when rehable information indicates that, say, the marijuana will reach the house, not now, but then. Nor does it seem automatically unreasonable to tie the warrant’s search authority to the future event that brings with it the probable cause (e.g., the time of “delivery of a large brown package *673 addressed to X with return address Y”). Ricciardelli,998 F.2d at 10-11 . In principle, the use of a “triggering event” can help assure that the search takes place only when justified by “probable cause”; and anticipatory warrants may thereby offer greater, not lesser, protection against unreasonable invasion of a citizen’s privacy. As one commentator has put it, “as a general proposition the facts put forward to justify issuance of an anticipatory warrant are more likely to establish that probable cause will exist at the time of the search than the typical warrant based solely upon the known prior location of the items to be searched at the place to be searched.” 2 Wayne H. LaFave, Search and Seizure § 3.7(c), at 97 (2d ed.1987). Were “anticipatory warrants” unlawful, law enforcement agents would have to wait until the triggering event occurred; then, if time did not permit a warrant application, they would have to forego a legitimate search, or, more likely, simply conduct the search (justified by “exigent circumstances”) without any warrant at all. See Vale v. Louisiana,399 U.S. 30 , 34-35,90 S.Ct. 1969 , 1971-1972,26 L.Ed.2d 409 (1970); 2 LaFave, supra, § 6.5. We are not surprised that courts have found “anticipatory warrants,” considered as a class, perfectly consistent with the Constitution.
Based on this reasoning, we hold that anticipatory search warrants are not
per se
unconstitutional. In the proper circumstances, such warrants will better serve the objective of the Fourth Amendment by allowing law enforcement agents to obtain a warrant in advance of delivery, rather than forcing them to go to the scene without a warrant and decide for themselves, subject to second-guessing by judicial authorities, whether the facts justify a search.
See Garcia,
Our inquiry now focuses on whether authorities in the instant case could have obtained an anticipatory warrant to search Ramirez and Santa’s apartment on October 7. If so, we cannot credit the Government’s argument that lack of time to obtain a search warrant once the drugs were delivered necessitated a warrantless entry, for the agents need not (indeed, they should not) have waited that long.
“As with all warrants, there must be a sufficient nexus between the contraband to be seized and the place to be searched before an anticipatory warrant can be issued.”
Loy,
There is no doubt that agents possessed sufficient information to obtain an anticipatory search warrant for Ramirez and Santa’s apartment several hours before the forced entry occurred. It was no later than the early afternoon of October 7 when the DEA knew the location and approximate time of the planned drug transaction. The parties had agreed that the sale would take place at the apartment that evening after Gallego delivered the drugs, and the Cl promptly imparted this knowledge to the surveilling agents. Agent LeClair testified that the Cl had provided law enforcement agents reliable information in the past, and agents had independent confirmation of most of the information on audiotape.
We see no reason why agents, with this information, could not have gone before a magistrate to obtain a search warrant. In the age of telephonic warrants, 16 we doubt that it would have been *674 impossible (or even difficult) to obtain a warrant by telephone on that Wednesday afternoon. If we were to condone the warrantless entry of Ramirez and Santa’s apartment under the circumstances presented here, we would effectively allow officers to create exigencies by failing to procure a warrant while there was time to do so. Every situation would become an eventual emergency; the practice of obtaining a warrant would soon fall by the wayside, and the exception would swallow the rule. 17 Thus, we hold that in circumstances such as those presented here, where law enforcement agents have ample time and information to secure an anticipatory search warrant, lack of time to obtain a warrant after delivery of the contraband is insufficient to justify a warrantless search.
B.
Just as the warrantless entry was illegal if its purpose was to conduct a search, so it was if its purpose was to effect Ramirez’s arrest. 18 Although Agent LeClair emphasized the agents’ fear that the suspects would destroy the heroin if not apprehended immediately, he also stated that the purpose of the warrantless entry was to arrest Ramirez. 19 During the suppression hearing, LeClair was called as a defense witness after testifying for the Government, and the following exchange took place during the Government’s cross-examination:
Q: [Y]ou went into the apartment to arrest, specifically to arrest Ramirez?
A: Yes.
Q: There was a possibility you would arrest Santa?
A: Yes.
Q: But foremost on your mind was the arrest of Ramirez?
A: Yes.
Q: And ultimately, all these events happened after you went — within two minutes of your going in to effect the arrest of Ramirez?
A: Yes.
Q: Now, along the way, there was a question as to whether agents were pursuing anyone prior to entering the apartment, but from the very beginning there was a target in mind. Is that not correct?
A: Yes.
Q: You did enter the apartment for the purpose of arresting Mr. Ramirez?
A: Yes.
*675 Q: You were concerned that he could have left the apartment. Is that correct?
A: Yes.
Q: And, in fact, there was another door that he could have used to exit?
A: As well as I believe a couple of other windows that could have—
Q: So, earlier when you answered the question as to pursuit[J were you thinking about running kind of pursuit or were you thinking of the broader context of a pursuit of a subject?
A: I believe I was meaning the broader kind of pursuit.
Q: Were you thinking that there was no pursuit in that Mr. Ramirez might not have gotten out of the apartment window or the back door?
A: No. It was very feasible he could’ve gotten out of the apartment.
Q: So—
A: And foot pursuit, per se.
Q: As far as being on his trail, you were on his trail from the time he left the furniture store?
A: Correct.
Q: But once the drugs came in and you had the signal, the heat, if you will, of the circumstances turned up a great deal. Is that not right?
A: Yes, it did.
Q: So, at that point, once you got the signal, you were very concerned that he might hightail it out of there?
A: Yes.
It is clear from LeClair’s testimony that the agents’ goal when entering the apartment was to arrest Ramirez. What is equally clear, however, is that agents did not have an arrest warrant empowering them to do so.
“In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.”
Payton v. New York,
the location of the apartment made it particularly easy for the defendants to escape or evade the agents. The apartment was located on the first floor of an apartment complex, with a golf course right behind it. The apartment had a sliding glass door that opened onto the golf course from which defendants could readily escape. The agents could not adequately watch the sliding glass door because they would be seen by the defendants inside. In addition, the front window of the apartment overlooked the parking lot where agents were conducting surveillance. Although there was no evidence that Ramirez or Santa were actually aware of the law enforcement surveillance prior to the agents’ entry into the apartment, it was entirely possible that the defendants would have observed the agents through the front window, especially because the agents were wearing their DEA jackets and had to run thirty or forty yards across the parking lot to get to the apartment. In addition, the location of the residence within an apartment complex created the risk that the suspects could flee and endanger the other residents of the complex while evading arrest.
The Government contends that these circumstances would lead a reasonable, experienced agent to believe that the defendants might escape into the apartment complex or onto the golf course abutting their apartment before a warrant could be secured. 20 We find no merit in this argument.
*676
“The government is not compelled to effect an arrest upon the occurrence of probable cause to believe a crime has been committed,”
United States v. Hultgren,
Moreover, the circumstances relied upon by the Government were not exigent. Agents could not have been surprised by the location of the apartment or its surroundings; they had been surveilling it for some time. They could not have been surprised by the delivery of heroin; they were behind the entire scheme. As discussed above, there was no evidence to suggest that either of the suspects was about to flee or destroy the drugs, or that they were even aware of the agents’ surveillance. The urgency arising after the Cl emerged from the apartment was entirely foreseeable — the agents themselves had concocted the ruse. Ramirez’s war-rantless in-home arrest may not be justified on the basis of exigent circumstances which were either nonexistent or created by the Government itself.
See Hultgren,
C.
While we agree with the district court’s conclusion that no exigent circumstances supported the agents’ warrantless entry of Ramirez and Santa’s apartment, this does not end the inquiry. “It is ‘well-settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search conducted pursuant to consent.’ ”
United States v. Freyre-Lazaro,
For consent given after an illegal seizure to be valid, the Government must prove two things: that the consent is voluntary, and that the consent was not a product of the illegal seizure.
United States v. Robinson,
The question whether consent is the product of free will under
Wong Sun
must be answered on the facts of each case; no single fact is dispositive.
Brown v. Illinois,
The district court adopted the magistrate judge’s R & R, which summarized and decided the issue as follows:
Defendants argue that the illegal entry vitiates the consent given by Ramirez. This Court disagrees. In order for Defendants’ position to be correct, this Court would have to find that Ramirez was so affected by the unlawful entry that the consent should be considered involuntary. Had the agents followed the Cl back into Defendants’ apartment, albeit illegally, rather than having forcibly entered, and had Ramirez consented to the search, the Court would have found the consent to be voluntary. There was no evidence presented which would lead this Court to find that the method in which the agents entered the apartment was so disturbing or had such an effect on Ramirez as to make his consent involuntary. This finding is bolstered by the fact that Ramirez executed a written consent to search form, there was no evidence of hesitation on his part, and indeed Ramirez not only consented to the search but also told the agents where to find the drugs.
The district court’s focus on “voluntariness” misstates the law in this circuit. The proper inquiry is not simply whether Ramirez’s will was overborne by the agents’ illegal entry, but also whether his consent was a “product” of that illegality. The Government has failed to carry its burden of showing that it was not.
The government may defeat a motion to suppress by demonstrating a break in the causal chain.... [Intervening events or circumstances independent of the primary illegality may have so attenuated the causal connection as to dissipate the taint of unlawful police action. ... While a “but for” connection between the unlawful police conduct and the defendant’s response will not in itself establish the requisite causal link, neither will an act by a defendant, which may in some sense be considered “voluntary,” necessarily break the causal chain.
United States v. Bailey,
Even assuming that Ramirez’s consent was voluntary, we hold that the consent was nonetheless a product of the unlawful arrest.
“Miranda
warnings do not,
without more,
dissipate the taint of an illegal seizure.”
Robinson,
Finally, the fact that Ramirez signed a consent form after the search was complete does not persuade us that his consent was not the product of the illegal arrest. In
Brown v. Illinois,
the Supreme Court noted that where- Brown had already given one confession during the course of his illegal detention, believed by him to be admissible (although it was not), this belief “bolstered the pressures for him to give the second [confession], or at least vitiated any incentive on his part to avoid self-incrimination.”
rv.
Although the district court was correct in finding that there were no exigent circumstances to support the warrantless entry of Ramirez and Santa’s apartment, the district court nonetheless erred by applying the wrong legal standard to Ramirez’s consent to search. Because Ramirez’s consent was tainted by his unlawful arrest, it was insufficient to legitimate the search of his residence. Thus, we REVERSE the district court’s denial of Santa’s motion to suppress and REMAND the case to the district court for further proceedings consistent with this opinion.
SO ORDERED.
Notes
. While the October 5 conversations between the Cl and Ramirez and Santa were recorded and transcribed, prior and subsequent unrecorded conversations were only summarized in written DEA reports. Portions of the summarized conversations are inaccessible, as they were "blacked out" to conceal sensitive information such as the identities of the Cl and the undercover DEA agent. The substance of the DEA reports was introduced by oral testimony during the suppression hearing.
. Because the Cl was not wearing a body wire during this meeting, he left the Store at some point to inform a surveilling undercover agent that the transaction would take place at Ramirez and Santa’s apartment.
. During a recorded phone conversation on October 5, Ramirez told the Cl to "come to my house, you bring the money." Later that day, the following exchange took place during a recorded phone call between the Cl and Santa:
Cl: I will come to your house and pick it up.
Santa: Fine.
Cl: When ...
Santa: I’ll ... I’ll talk to the guy, then I will call you.
This information led DEA agents to believe that subsequent transactions would take place at Ramirez and Santa’s apartment. At the suppression hearing discussed infra, Part I.B., DEA Agent Jeffrey LeClair testified that "[the DEA] hád an agent set up at the Club Lakes Apartment [on October 7], doing surveillance, figuring they would go back to that location.”
. It may be inferred from the record, however, that the undercover agent was probably within walking distance of the apartment. On cross-examination during the suppression hearing, DEA Agent Jeff LeClair testified that as soon as the Cl exited the apartment, he gave the agents a prearranged visual signal. When asked whether "the informant, when he came out, ... went up to the undercover agent’s car,” Agent LeClair responded, "He never made it that far.” There was apparently no need to continue the ruse once the agents entered the apartment, which occurred less than one minute after the Cl gave the signal. LeClair's statement suggests, however, that had the agents not approached the apartment so quickly, the Cl might have reached the undercover agent's vehicle.
. The protective sweep conducted while Ramirez was being detained on the floor did not uncover the drugs.
. There is evidence that Ramirez understood at least some English, as he had been speaking to the agents in English prior to being presented with the consent form. Spanish, however, is Ramirez’s native language.
. Also added to the consent form, in Ramirez's handwriting, was Ramirez's express consent to a search of his vehicle.
. Agents LeClair and Mokwa testified that only two to three minutes passed between the police entry and Ramirez’s statement that the drugs were in the master bathroom.
. Gallego did not file a motion to suppress, as he had no standing to contest the search of the apartment.
. The initial district court judge who handled the case adopted only part of the magistrate's R & R, but later disqualified himself upon Santa’s motion.
. The following exchange occurred during LeClair’s cross-examination by defense counsel during the suppression hearing:
Q: There was no indication that — there was police surveillance there. Correct? In other words, you were all in unmarked undercover units?
A: Yes.
Q: And there was no indication that any of the individuals, Mr. Ramirez and Ms. Santa, were aware of police presence, correct?
A: I don't know at what point you're referring to.
Q: At the very point he comes out, the informant comes out at 7:08, in the evening, when he comes out, he gives the prearranged signal, you had not at all, referring to law enforcement, no one from law enforcement had announced their presence, is that correct, prior to that happening?
A: No, sir....
Q: Did law enforcement officers inform any one that they were there conducting surveillance?
A: No, sir.
Q: Did any law enforcement officers ever press a siren or a button I guess in your vehicles to indicate that the police had arrived?
A: No, sir.
. The record fails to set forth the layout of the golf course abutting defendants' apartment, and is silent as to what kind of foliage, if any, lay between the apartment and the golf course.
. In
Bonner v. City of Prichard,
. In
United States v. Nixon,
. We note that this language most often appears in cases dealing with "stale” search warrants, i.e., warrants that, when issued, were based on information too old to create a é sufficient probability that the items sought were still at the location to be searched. In other words, the passage of time made it more likely that the circumstances upon which the warrant was issued had changed, thus dissipating probable cause.
See, e.g. United States v. Bervaldi,
. Fed.R.Crim.P. 41(c)(2)(A) stales, "If the circumstances make it reasonable to dispense, in whole or in part, with a written affidavit, a Federal magistrate judge may issue a warrant based upon sworn testimony communicated *674 by telephone or other appropriate means, including facsimile transmission.”
. As Justice Jackson aptly noted in
Johnson v. United States,
The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.
. We note, however, that
[a]n illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction. The exclusionary principle of Wong Sun and Silverthome Lumber Co. delimits what proof the Government may offer against the accused at trial, closing the courtroom door to evidence secured by official lawlessness. [Appellant] is not [himself] a suppressible ''fruit,” and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by the police misconduct.
United States v. Crews,
.The magistrate judge acknowledged as much in his R & R, stating that "Agent Le-Clair testified that the agents went to the apartment to arrest ... Ramirez, and possibly ... Santa.”
. Had Ramirez or Santa left the apartment, the agents would not have needed a warrant *676 to effect their immediate arrest. In such a case, the necessary inquiry would not be whether there was a warrant or whether there was time to get one, but whether there was probable cause for the arrest. 21 U.S.C. § 878 provides that:
(a) Any officer or employee of the Drug Enforcement Administration or any State or local law enforcement officer designated by the Attorney General may—
(3) make arrests without warrant (A) for any offense against the United States committed in his presence, or (B) for any felony, cognizable under the laws of the United States, if he has probable cause to believe that the person to be arrested has committed or is committing a felony.
21 U.S.C. § 878(a)(3) (1994). Thus, agents could have lawfully arrested Ramirez or Santa without a warrant the moment they exited the apartment.
See United States v. Watson,