*3 PREGERSON, Circuit Judge: court Berry district denied Ronald suppress motion to evidence (“RPD”) Department that Reno Police offi- during cers obtained a search Washing- * Beam, The Honorable C. sitting designation. Arlen Senior United Circuit, Judge Eighth States Circuit for the heavy room. “foot traffic” on ton’s residential hotel the fifteenth appeals. Washington contends floor. violated his Fourth repeatedly Tygard Officer learned that Defendant con- rights; that his written occupant was the of Room coerced; and sent to search his room was 1524 and prior that he had convictions that, coerced, even if not the consent itself substance, unlawful use a controlled car- pursuant and the evidence obtained rying a weapon, obstructing concealed po- officers’ viola- consent were tainted officers, giving lice false information to rights. Fourth Amendment tions of his a police approximately officer. At 8:30 agree Washington that the offi- We p.m., Tygard returned to the Comstock *4 repeatedly cers violated his Fourth uniform four with other uniformed RPD rights and that both Sceirine, Soto, officers—Officers Manda- ton’s written consent and the evidence ob- garan, and Sergeant Partyka one —and pursuant tained to it were tainted. Ac- plain-clothed RPD Bri- officer—Detective cordingly, explained greater as in detail an Chittenden. The six officers went to below, we reverse the district court’s deni- talk,”2 Room 1524 to conduct a “knock and suppress. al of motion to with a view to questioning Washington about whether he was involved in manufac- I. FACTUAL BACKGROUND1 turing distributing methamphet- and/or 25, 2001, February On RPD officers re- Upon amine. their arrival on the fifteenth tip ceived a that an individual named floor, three of the six approached operating “Shane” was an active metham- According door. to Officer
phetamine laboratory in Room 319 of the testimony suppression Sceirine’s (the “Comstock”) Comstock Hotel hotel—a hearing, remaining three officers hid apartments— converted into residential hallway five to ten feet down the “to elimi- occupants and that unidentified room defense,” nate the coercion should Wash- in on the fifteenth floor were also involved ington later assert that he was coerced manufacturing distributing meth- and/or opening his door. Sceirine also admit- amphetamine. suppression hearing ted at the that before Tygard RPD Officer Robert learned speaking Washington, “there was no from the Comstock’s desk clerk that Room get cause to a search warrant for 319 was vacant because its former occu- [Washington’s] room.” pant, Leffingwell, Shane had been evicted. knock, Responding to Officer Sceirine’s response questions possible In about door, Washington exited his opened the methamphetamine taking place sales room, hallway, entered the hotel floor, Ty- the fifteenth the desk clerk told him. “large closed the door behind When Wash- gard Room 1524 received a all telephone ington number of calls” and that there exited his he could see six following undisputed privacy, anyone openly peaceably, 1. The facts are unless for noon, high up steps otherwise noted. to walk any knock on the front door of man’s "cas- 2. We have described a “knock and talk” in asking ques- tle” with the honest intent of following terms: occupant there of whether the tions of salesman, express person questioner pollster, Absent orders from the be a or an possession against any possible trespass, officer of the law. Cormier, public private there is no rule of conduct United States v. States, se, illegal (quoting per which makes it or a con- Davis v. United (9th Cir.1964)). right person’s demned invasion of the main officers, hotel-style carried visible fire- with one room and an five of whom adjacent testified that when the arms. Sceirine bathroom. talking Washington, all
officers started time, For a third Officer Sceirine re- “around” him. six were Washington minded that he had failed to Washington Shortly after entered register with RPD and that his failure to hallway, Washington reminded Sceirine charge.” do so was “an arrestable Scei- had been arrested for previously questioned Washington rine then about weapon a concealed and that he carrying Washington methamphet- had a with the RPD —in Scei- registered had not amine lab his room and whether he was misdemeanor, words, “a rine’s arrestable selling drugs. Washington emphatically charge.”3 requested Sceirine also unequivocally denied that he was run- pat-down submit to a ning methamphetamine room lab weapons. Washington complied, methamphetamine involved in dis- and/or weapons revealed no or evi- the search tribution. activity. drug-related dence of hallway, in the Officer Still Sceirine The six officers walked cooperate asked and ex- *5 twenty thirty hallway to feet down the and plained that the officers wanted his con- away hallway, from his door. While sent to search: Partyka Sergeant realized that someone Well, here’s what we want to do. We Washington’s else was in room. Officer us, usually wanna ... with we want to called for that individual to exit Sceirine being long avoid this a drawn out inves- so, and, him waiting again for to do while tigation. you saying? Do hear what I’m that Washington his failure to reminded why you And that’s contacting we’re the RPD an register with was “arrestable manner, doing we’re this in such a for charge.” your cooperation, to make sure there’s to request, Pursuant Officer Sceirine’s there, your no for permission lab to Washington’s Leo Nolan exited “Libo” anything any search for that would have room, leaving open. Washington the door relationship to a lab. OK? door,” “please asked Nolan to close the but “Uh, Washington responded, sure.” Scei- responded Officers Soto and Sceirine suppression hearing rine claimed at the leaving like this door “d[id not] response communicated to closed” and refused let Nolan close it. his first consent to room.4 that, Officer Sceirine testified with the conversation, fairly the officers “had a After further open, ample door Officer Scei- room,” again view of the which was studio—or rine suggested Washington let suppression Washing- Sceirine admitted at the 4. Officer The district court concluded that hearing "conveying Washing- that he was to ton did not consent a to search when he ton ... could arrest him at that "Uh, [he] responded sure” because his statement point.” clear, insufficiently positive, was and intelli- forward, point exactly From this we know view, gent. Washing- In the district court’s Washington what the officers and said to each likely acknowledg- ton’s statement was other because Officer Sceirine activated a purpose ment of Officer Sceirine’s stated pocket-sized tape recorder to record the offi- viz., contacting him at his "to make room— Washington. cers’ encounter with The audio- sure no there’s lab in there.” The Govern- tape accompanying transcript of the con- challenge finding ap- ment does not this versation were admitted into evidence and the peal. tape played suppression audio was at the hearing. “go any during inside and talk.” nied involvement. Sometime just respond “yes” with a exchange, Washing- did not an officer moved answer, asked, instead “can “no” but or a ton’s coat and discovered Almost immedi- my get here first?” wife methamphetamine. line of thereafter, outside but ately Sceirine—still placed permis- Officer Sceirine then asked, “Is that into the able to see room— sion to search form front of Washington respond- bed?” gun on the sign him and asked the bottom section ed, pager.” That’s a Sceirine “No sir.... form: of the “OK, go.” suggested, let[’]s then well search, permission This is OK? And “OK.” Sceirine and Washington responded, said, explained you why like I I we’re claimed that this re- Detective Chittenden here and what for. You looking we’re Washington’s second communicated sponse already got ... some evidence some of his room.5 consent to search dope here. we want to do is avoid What Sceirine, he and According to Officer taking apply the time to for a search Chittenden entered Detective go along your coopera- warrant Washington to sit room and directed ton’s tiveness and this to search Sergeant Partyka stood on the bed while bang it quick. out real That’s what admitted doorway.6 Sceirine also in the looking for here. we’re Permission that, he and Chittenden were by the time search.... room, Washington inside sign the form refused to otherwise terminate not free to leave or here, protested, anything “I don’t have the encounter. you can see that.” Officer Sceirine admit- questioning resumed Wash- The officers *6 that, at that suppression hearing ted at the drug in traf- ington about his involvement methamphet- he had no point, observed ficking Leffingwell, and his connection to e.g., glass- lab amine instrumentalities — occupant of Room 319. In the former ware, mechanisms, venting jars of tubing, asked particular, Detective Chittenden plates or hot Wash- phosphorous, red —in un- anything whether he had Washington ington’s again requested room. Sceirine in room. admitted lawful his Washington sign the form: “So can methamphet- a line of possessed that he get your permission to search here? we location.7 general amine and indicated its here, your name sign right this is Just questioned Detective further Chittenden is, right permission here. All this is a being involved meth- Washington about nothing point, else.” At that Wash- amphetamine production distribu- and/or ington signed the form. The Washington again unequivocally de- tion. Chitten- Again, Sceirine’s version of the events over
5. the district court concluded that Washington did not consent to search when Tygard’s. den’s and responded his statement "OK” because clear, insufficiently positive, and intelli- was culture, drug ‘doing a line’ 7.“Within gent. particular, found In the district court powdered segregating pile means small significant Washington's was statement drugs, typically methamphetamine cocaine or request response a clear to search not in inches approximately lines one to two into his room. The Government does not chal- blade, card, long. Typically a razor credit lenge finding appeal either. object is used to form the line' other like through the substance the user will snort testimony, Sceirine's In contrast to Officer cylindrical other ob- nostrils with a straw or Tygard and Officer testi- Detective Chittenden Cravens, ject.” 56 M.J. the six officers entered Wash- fied that five of (C.A.A.F.2002). ington’s district court credited room. The signed p.m., ap- Washington’s at 8:45 cause search form was statements were insuf- offi- proximately clear, fifteen minutes after the ficiently positive, intelligent to the Comstock. cers returned entry Washington’s that the officers’ was, therefore,' room unconstitutional. search, ensuing During the Detective Nevertheless, that, the district court found handgun. Chittenden discovered The Terry, under right officers retained the questioned Washington about to detain' Washington in his room—their probe him about gun continued prior unconstitutional conduct notwith- operating he had been a metham- phetamine standing lab his room. written —and any involvement in manufac- again denied voluntary purged any consent was turing distributing methamphet- taint caused and/or 'violations of owning gun. amine but confessed to rights. his constitutional 11, 2002, Washington On June entered a II. PROCEDURAL HISTORY guilty conditional plea, reserving right 25, 2001, April On appeal the district court’s denial of his charged in a one-count indictment with suppress. motion to timely appeal This firearm, being possession felon of a 18 followed. 924(a)(2). §§ 922(g)(1), U.S.C. suppress handgun
ton moved to
recov-
III. DISCUSSION
ered
the officers and his
confession
A. Standard of Review
21, 2002,
May
he owned it. On
the district
evidéntiary
court
hearing
held
on We review a district
ruling
court’s
on a
motion to
suppress.
suppress
motion to
de novo and its under
lying
findings
factual
for clear error. See
following day,
The
the district court de-
Fernandez-Castillo,
United States v.
nied
motion to suppress.
Cir.2003).
1114, 1117(9th
analyzed Washington’s
The district court
encounter with the RPD officers as a “Ter-
B. Analysis
Ohio,
ry-stop”
Terry v.
under
(1968).'
1. Washington’s Detention in the Hall-
that,
*7
court concluded
togeth-
district
taken
way Outside His Room
(1)
er,
tip
occupants
the
of an uniden-
Because the district court analogized
tified room on the fifteenth floor were
Washington’s encounter with the
RPD
six
in manufacturing
involved
distribut-
and/or
Terry-stop,
officers to a
and because
(2)
ing methamphetamine;
the Comstock
Washington argues that the officers first
desk clerk’s statement that room 1524 re-
violated
rights
his Fourth Amendment
“large
telephone
ceived a
number of
calls”
they unconstitutionally
when
him
seized
in
heavy
and that there was
“foot traffic” on
hallway
outside
analy-
of'his
our
(3)
floor;
fifteenth
and
necessarily begins
sis
with a discussion of
prior
convictions
unlawful use of a con-
Terry
encounter with
carrying
trolled substance and
a concealed
the six RPD
in
hallway
officers
outside
weapon, gave the officers “a
suspi-
founded
his room.
cion or
suspicion
reasonable
to detain
Terry,
police
In
a
officer
suspi-
became
[Washington] ...
question
him about
standing
what
cious of two men
on a
going
was
on in
street
the room.” The
concluded,
however,
district' court
corner
a downtown area.
also
See 392 U.S.
5,
purported
being
first two
oral con-
began speaking
preme
approval
Court’s
of the officer’s
individually repeated
Both men
S.Ct. 1868.
brief,
limited,”
“carefully
public
them,
ritual, until,
between
had
suspects,
began
of the three
courts
refer-
a
times. See
approximately
done so
dozen
ring
“Terry-stops.”
to such encounters as
began speaking
two men then
id. The
See,
Burrell,
e.g.,
A.2d
and,
man
about ten minutes
with a third
(D.C.1972)
845,
J.,
(Gallagher,
dissent-
up
departure,
after the third man’s
headed
ing) (referring,
pub-
for the first time
a
The
the street
in his direction. See id.
lished
to a
opinion,
“Terry-stop”).
officer,
that the three men were
concerned
Supreme
Terry,
Since the
Court decided
“casing”
possible
the store for a
armed
expanded
scope
it has
of permissible
a
robbery,
followed and confronted them.
Terry-stop
simply conducting weap-
from
6-7,
The officer
See id. at
ther. See id. 648, 657, 99 S.Ct. weapon a concealed and moved to carrying being (comparing public on foot on pistol prod- as the suppress recovered being in an on sidewalks automobile uct of an unconstitutional search. See id. public roadways). But it has ex- never Supreme 1868. The Court to allow a at an panded Terry Terry-stop Terry’s upheld the trial court’s denial of individual’s home. suppress, finding motion to Indeed, for a Terry’s twin rationales police officer unusual where observes investigatory brief detention —the evasive reasonably conduct leads him which activities nature of the observe light experience conclude of his limited nature of the the street and the activity may criminal be afoot and that intrusion, 20-26, 88 see 392 U.S..at dealing he is persons with whom *8 inapplicable to to an en- appear be 1868— dangerous, and may be armed where on suspect’s counter at a home. Officers investigating behavior the course of this may suspect a the the beat lose before policeman himself as a and he identifies gathered enough officers have information inquiries, and where makes reasonable an In to have cause for arrest. nothing stages in the initial of the en- contrast, where a sus- officers who know dispel his counter serves reasonable pect opportunity have the to investi- lives safety, his own or others’ he is fear for cause, all gate they develop probable until and protection entitled for the of himself the sus- knowing the while where to find carefully others in the area to conduct a “[njowhere protective is the pect. Because of clothing limited search of the outer more pow- force of the fourth amendment persons attempt such discover 1068 567, 569, 1975, sanctity the of the 108 S.Ct. [within]
erful
than
Albrektsen,
home,”
(1988),
D.,
v.
151
States
citing
United
and
v. Hodari
California
(9th Cir.1998),
951,
the second
F.3d
953
621, 628,
1547,
111
499 U.S.
S.Ct.
113
Terry-stop
a
seems almost
rationale for
(1991)).
L.Ed.2d 690
when the intrusion is
absent
definition
INS,
In Orhorhaghe v.
1069 sufficiently one-room residence. was not brief and not minimal- ued ly intrusive. 495. The six officers moved Wash- Id. at Miles, twenty thirty away to feet from his
ington In v. United States F.3d [247 (9th door, Cir.2001),] Washington’s re- 1012 refused to heed we described for determining Terry- resi- test when a to shut the door to his own quest stop becomes arrest: whether dence, repeated and thrice stop, detention exceeded “a brief inter- failing charge ton faced an arrestable and, rogation proper under circum- Moreover, by with the RPD. Offi- register stances, weapons.” a brief check for admission, repeated- he cer Sceirine’s own Then, “if the stop proceeds beyond these the ar- ly Washington admonished about limitations,” if, ... “an arrest occurs charge convey Washington restable circumstances, under the a reasonable if he did not that he could be arrested person would conclude that he was not and that he was not free cooperate questioning.” free to leave after brief Finally, encounter. the offi- terminate the Bravo, v. United States Washington that he had cers never notified Miles, 1011 n. 8 (quoting right questions to refuse to answer their 1012). Taking to terminate the encounter. circumstances, we into account all of these Washington After left room Washington conclude that was seized when hallway, voluntarily entered the con A confronted six officers. rea- he was sented to request Officer Sceirine’s for “a position weapons.” in his not check for person (quoting sonable would brief Id. Miles, 1012). 247 F.3d at liberty pat-down The ignore have felt “at weapons drug revealed no or evidence of presence go about his business.” Id. manufacturing or Officer distribution. at 494. Washington Sceirine then asked whether Washington analysis Our of whether was methamphetamine he had a in his lab unconstitutionally seized does not end selling drugs. room and whether he was there, however; Orhorhaghe only answers emphatically unequivocal question ly running denied that he was a metham un- seized—not whether his seizure was phetamine lab his room or involved constitutional. methamphetamine distribution. The offi cers’ encounter should b. Whether Seizure Was there, it did not. have ended but See Unconstitutional Knapp, Ganwich premised A seizure on reasonable Cir.2003) (“A (9th seizure becomes unlaw Terry-stop, per is not suspicion, such as it is ‘more than neces ful when intrusive unconstitutional under the Fourth se sary.’ scope of a detention ‘must be Amendment, long sufficiently as it so justifi carefully underlying tailored to its ” minimally intrusive. See United brief Royer, Florida v. (quoting cation.’ 675, 685, Sharpe, U.S. 491, 500, 504, 1319, 75 U.S. (examin 1568, L.Ed.2d 605 (1983))). Instead, the officers L.Ed.2d ing, Terry, under “whether the seizure is Washington into allow press continued to minimally justifiable as to so intrusive be and, room ing them to enter his notwith Here, suspicion”). on reasonable Wash standing their failure to obtain so, RPD officers ington’s detention six to do entered it in violation of the it Amendment.9 violated the Fourth Amendment because Fourth at, 111(B)(3). infra, 9. See discussion Part *10 let Nolan “underlying justification” the officers refused to
The officers’ detaining Washington was to him initially close the door after asked for he was in- that, him about whether question to do so. Officer Sceirine testified distributing producing volved and/or “had a open, with the door the officers But the offi- See id. methamphetamine. fairly the room.” ample view of detention of extended cers’ necessary” than be-
was “more intrusive clearly It “is established Federal particular, actions—in cause the officers’ may only police gain law” that officers entry into attempts gain to repeated their (1) to a room if visual access hotel “carefully room—were not occupant voluntarily opens the ho room’s “underlying detention’s tailored” to the (but response request tel room door in to a Rather, we find that the justification.” Id. (2) command), not a threat or a the officers calculated to circum- officers’ actions were warrant, have a or the officers have require- Amendment’s the Fourth vent exceptions cause and one of the probable be obtained to search ment that a warrant requirement to the warrant exists.10 Bai Lalonde, 204 an home. See individual’s Newland, 1022, 1030-31, ley v. (“The pro- Fourth Amendment F.3d at 954 (9th Cir.2001); Winsor, see also making from a war- police hibits officers (holding F.2d at 1573-74 “that home, a unless entry person’s rantless they gained did effect ‘search’ when visu probable have cause and are the officers al entry through into the room the door exigent presented with circumstances.” command,” opened that was at their which 590, (citing Payton, 445 U.S. justi probable the officers needed cause to Prescott, 1371; fy). opened a hotel room Whether door is (9th Cir.1978))). Thus, the offi- in response to a threat or a command or is cer’s seizure of extended kept against open the wishes of the room’s any beyond scope permissible deten- occupant, police officers obtain ac visual Amendment. tion under the Fourth cess to using power the room their require open. 2. The Unconstitutional Visu- that the door be Both sce Officer’s Washington’s Room al Search narios result in a search within the mean Amendment, ing of the Fourth and both claims that the six Washington also consent, warrant, require scenarios unconstitutionally gained RPD vi- probable plus exception cause to the they required sual room access when Here, requirement. warrant the officers open. the door to his room be left possessed legal grounds none of these Officer Sceirine admitted he and the gaining visual access to approached Washington’s other officers Thus, probable room cause to it. room. the officers violated Wash without friend, Nolan, ington’s rights After exited Fourth Amendment when rule, (1933)). general satisfy the Fourth 54 S.Ct 78 L.Ed. "As " sup- circumstances,' a search of a home must be '[EJxigent need include the cause, ported by probable and there must be a protect public an officer or the from dan- authorizing the search.... Even warrant ger, the need to avoid the imminent destruc- shown, is when cause warrantless evidence, entry pursuit’ tion of in 'hot when normally be invalid there search will unless necessary prevent suspect's a criminal es- 'exigent justify pro- are circumstances' cape, respond and to to fires or other emer- ” ceeding without a warrant.” United States v. (citations gencies.' Id. at 1133 n. 5 omit- Brooks, ted). States, (citing v. United Nathanson
1071 he was in- by Washington about whether access to his room visual they gained manufacturing close its door. in distribut- refusing to let Nolan volved and/or ing methamphetamine, one of the officers En- Unconstitutional The 3. Officers’ Washington’s Washington’s room moved Washington’s Room try into methamphet- coat and discovered a line of Washing- found that district court The amine. to Officer Sceirine’s two responses ton’s Washington’s pos- admission that he Washington’s to enter requests
verbal methamphetamine certainly permit- sessed of not statements consent room were ted the officers to look the area Wash- Thus, the district or to search it. enter if ington indicated to see the line was the RPD officers also found court view, provide it did not the offi- plain but room in violation entered legal lifting a his coat. cers basis See Fourth Amendment. Government Hicks, 321, 326, 107 Arizona v. 480 U.S. any findings of these challenge not does (moving it free to do so. though even appeal, something a few inches constitutes even See, Burlington N.R.R. e.g., Engleson v. plain view ex- search and falls within Cir.1992) 1041(9th Co., F.2d ception only probable if the officer had (“ judgment support ‘[Arguments thing being cause to moved is believe ... even where can be made’ as entered of a crime at the time he moved evidence explic- being raised has been argument Davis, it); see also United States (quot- the district court.” itly rejected by n. 3 F.3d Cooper, Federal ing Wright, 15A Miller & (“[E]ven [containing prohibited if bag 2d and Procedure: Jurisdiction Practice (1992))). the fact that it shotgun] open, had been Thus, for the § at 195-96 bed, requiring was stored under the thus appeal, given we take as purposes of it, required to move would have the officers violated cause, rights Amendment when en- since such movement Fourth Hicks, obtaining valid (citing his room without first tered would constitute search.” 1149)). consent. Thus, movement of Violated Wash- 4. Whether Officers was an unconstitutional search ton’s coat Rights ington’s Fourth Amendment under the Fourth Amendment. Physically They Began When Searching His Room His Without Repeated Vio- Whether Officers’ Consent Washington’s Fourth lations unconstitutionally the officers en- After Sup- Rights Require room, Detective Chit- tered pression any- Washington if he had tenden asked repeatedly violat After the officers in the room. thing unlawful Washington’s Fourth Amendment ed possessed a line of meth- admitted signed rights, Washington general its lo- amphetamine and indicated form, gave his purportedly which search Sceirine and Detec- cation. While Officer room. consent to search his question continued to tive Chittenden judgment exercised applied and question of must be 11. "We review de novo the mixed the Fourth deriving the values that animate evidence from about fact and law whether Johns, sufficiently illegal tainted to re- Amendment.” (9th Cir.1989). legal concepts quire suppression, because *12 search, suppressed”); officers found been see also the have United During their Hotal, (9th 1223, v. resulted his arrest and States 143 F.3d 1228 gun the Cir.1998) (“Consent being given a felon in of to search that is possession conviction for an illegal entry court found that after tainted and invalid a firearm. The district is Amendment.”). signature on the Fourth Put an- Washington’s permission the under way, within freely given the other search form meaning of the Fifth Amendment and that law, established evidence ob- [u]nder taint that from purged any it resulted the through “exploitation” ille- tained the of Washington’s prior officers’ violations of police gal by behavior cannot be rights. need not Fourth Amendment We into an [0]nce admitted evidence.... Washington’s signing of address whether shown, illegality has been we must de- permission to search form was volun- whether evidence cide “the has been Fifth tary under the Amendment.12 Even at by exploitation come of that illegality voluntary, if it was the district court erred by sufficiently or instead means distin- that the concluding purged consent guishable purged primary to be of the prior taint of officers’ of violations taint.” Fourth' rights. Amendment 1048, Crawford, United States v. 372 F.3d “ 1092(9th Cir.2004) banc) (en (W.Fletcher, ... ‘Under the Fourth Amendment Brown, J., subsequent illegal dissenting) (quoting
evidence obtained
422
at
U.S.
599).
investigation
by
illegality
tainted
determining
is
and
test for
whether
inadmissible, notwithstanding
prior
thus
primary
taint of a
constitutional
consent,
subsequent
commonly
purged
unless
events have violation has been
is
”
purged
v.
analysis”
the taint.’ United States Bau
referred to as an “attenuation
Cir.2004)
tista,
584,
(9th
E.g.,
362 F.3d
592
an “attenuation
id.
test.”
at 1092-
94,
2254(W.Fletcher, J.,
(quoting
States v.
S.Ct.
United
Chavez-Valen
95
dissent-
727(9th
zuela,
719,
Cir.2001),
ing) (referring, interchangeably
to “atten-
test”).
(2002),
analysis”
amended
279
by,
F.3d 1062
and
uation
and “attenuation
holding
analysis
that “consent was
and the An
tainted
attenuation
advances the ex-
pursuant
clusionary
evidence
it
obtained
should
rule’s
aims of
“twin
deterrence
express
opinion
We
no
on whether Wash-
made' had to be
for the
broken
statements to
ington's signature
on the
to search
despite
be admissible
Fourth
Amendment
voluntary.
form was
a consent to
Whether
violation, regardless of whether
the state-
voluntary
search is
under the Fifth Amend-
satisfied
ments
the Fifth
volun-
Amendment’s
entirely separate question
ment is an
from
test].”)
Illinois,
(quoting Brown
tariness
v.
by
whether a consent to search
tainted
a
590, 602,
2254,
422 U.S.
95 S.Ct.
45 L.Ed.2d
prior
Amendment
See New
Fourth
violation.
(1974));
Furrow,
416
United States v.
229
Harris,
14, 23,
York v.
110 S.Ct.
805,
(9th Cir.2000) (“For purposes
F.3d
813
1640,
(1990) ("Attenuation
Amendment,
the Fourth
determination
analysis assumes that the
is 'volun-
statement
voluntarily
'only
that a consent was
made
tary' [under
Fifth
Amendment]
asks
requirement.’
satisfies
threshold
The mere
illegal
whether the connection between the
fact
voluntariness does not mean that
conduct
the statement nevertheless
prior
is not
consent
tainted
Fourth
requires suppression to deter Fourth Amend-
violation.”)
(quoting
United
violations.”);
Patzer,
ment
United States v.
1407,
(9th
George,
v.
States
1415
("Because
(9th Cir.2002)
277 F.3d
1085
Cir.1989),
citing
Delgadil-
States v.
United
the consent was tainted ... we
not
need
re-
(9th
lo-Velasquez, 856 F.2d
1299
Cir.
solve
it
was nonetheless volun-
1988)),
Farmon,
grounds,
...");
overruled on other
tary.
F.3d
Garvin
258
Johnson,
(2001) (en
("The
'causal chain be-
banc).
illegal
tween the
arrest and
statements
permission to search form
signing
of the
Id. at
judicial integrity.”
Brown, 422
(citing
U.S.
from the officers’ unconstitutional visual
Brown,
2254);
room,
also
U.S.
see
their uncon-
95 S.Ct.
search of
that “con-
2254(noting
entry
stitutional
judicial
and of
of deterrence
siderations
their unconstitutional search for meth-
now,
rather
have become
integrity,
little time
amphetamine. Such
between
[Supreme]
in the
Court’s
commonplace
*13
repeated
of
violations Wash-
(citations and
[exclusionary
cases”
rule]
rights
Fourth Amendment
ington’s
omitted)).
that
Upon
finding
quotation
Washington’s signing
permission
of the
by
by illegal
tainted
behavior
evidence is
purge
form was insufficient to
the
search
...
obtained
as
“all evidence
police,
the
repeated
taint of the officers’
unconstitu-
sup-
of it” must be
causal result
direct
See,
Brown, 422
e.g.,
tional conduct.
U.S.
(em-
Grubbs,
at 1079
377 F.3d
pressed.
(less
604,
2254
than
hours
at
95 S.Ct.
two
Hotal,
(citing
143
original)
phasis
taint); Taylor
v. Ala-
purge
insufficient
1053-54;
1228;
F.3d at
Crawford, 372
at
bama,
691,102
687,
2664,
457 U.S.
S.Ct.
73
471,
States, 371 U.S.
Wong Sun v. United
(1982) (six
insufficient);
hours
L.Ed.2d 314
(1963)).
407,
485,
S.Ct.
83
Perez-Esparza,
609 F.2d
United States
ille
prior
To determine whether
1290(9th Cir.1979) (three
1284,
hours insuf-
to the sub
sufficiently connected
gality is
ficient);
George,
F.2d at 1416
see also
consent,
look to three factors:
sequent
we
(“As
aware,
are
no court has
best we
(1)
ille
“temporal proximity
between
weighed
against
the first factor
a defen-
(2)
consent;”
of
presence
“the
gality and
inculpatory
statement fol-
dant when
circumstances;” and
“the
intervening
illegal police
by only
conduct
a few
lowed
official mis
flagrancy
of the
purpose
hours.”).
Chavez-Valenzuela,
at
268 F.3d
conduct.”
(citations omitted).
727-28
Intervening
b.
Circumstances
Next,
determining
in
Proximity
Temporal
a.
may
purged
tervening circumstances
have
inter
significant
“The lack of a
not at
prior illegality,
taint of a
we look
itself,
not,
time does
vening period of
conduct,
at “in
but rather
the defendant’s
suppressed
the evidence be
require
significance”
of
tervening event[s]
attenuation,”
of sufficient
want
the deterrence and
inapplicable
“render
(9th
Wellins,
550,
justify
ex
judicial integrity purposes
Cir.1981),
directly
...
but it does “bear
Perez-Esparza,
cluding” tainted evidence.
taint,” Delgadillo-Velas
of
probability
(quoting
n. 3
Duna
at
Here,
tempo
at 1300.
quez, 856 F.2d
York,
way v. New
U.S.
the officers’ viola
proximity
ral
between
(1979));
2248,
We
act
sign-
of
would have to
form,
purge
do to
ing the
the taint of
permission to search
which
earlier illegal conduct would be to
right
notify
advised him of
to
refuse to con-
(or,
remind)
sent,
cases,
in some
suspect
examples
distinct from
of “inter-
before they consent
vening
they
are
circumstances” that have been con-
free to
sidered
refuse to do so.
sufficient
This would
purge
effectively
taint of
prior
eviscerate the exclusionary
constitutional
goal
violations. See id.
rule’s
of
'
deterring police
Unlike releasing an
from
individual
custo-
misconduct because it
dy, bringing
give
an
would
magis-
before a
officers who recently
individual
violated a
trate, or allowing
suspect’s
individual
consult
constitutional rights a chance to
with an attorney, signing
grant
pass
themselves a free
by uttering a
form,
right
which
magic
advises
to few
words and encourage —rather
consent,
refuse to
does not
have
tenden-
than discourage investigatory shortcuts.
—
that,
matter,
14. We note
case,
as a factual
present
it is
15. In the
the officers conducted
uhclear
actually
read the
three
different unlawful searches of
signing
form before
it. The district court
meaning
ton's room within the
of the Fourth
recognized only Washington
given
"was
by illegally gaining visual ac-
Amendment'—
a chance to read it.” It is clear from the
it,
it,
by illegally
cess to
entering
transcript
tape
of the officers' encounter
illegally beginning to
they
search it—before
however,
Washington,
that the form was
Washington's signature
obtained
per-
on the
never read to
and that he was
mission to search form.
never otherwise told that he
refuse to
could
consent.
(7th
Brown,
beles-Ortega, 348 F.3d
Cir.
422 U.S. at
S.Ct.
See
2003) (holding that written consent was
to avoid Fourth
(“Any incentive
entry
by illegal
tainted
of five federal
would be eviscerat-
violations
warnings,
agents
request
for consent was
where
by making
]
the [Miranda
ed
effect,
‘cure-all,’
“[i]mmediately
protective]
made
after [a
and the constitutional
sweep”).
agree
with the Seventh Cir-
unlawful searches
We
against
guarantee
government’s attempt
‘a
“[t]he
reduced to
cuit that
could be said
be
seizures
Seibert,
”).
turn all written consents into an ‘interven-
Missouri v.
form of words.’
Cf.
—
breaking the causal
U.S.-,
ing
159 L.Ed.2d
circumstance’
Supreme
chain is inconsistent with
opinion) (suppressing
(plurality
intentionally
rejection
argument
de-
of a similar
Court’s
confession where
warnings
respect
warnings
until after with
to Miranda
giving Miranda
layed
obtained).
Id.
Brown.”
confession was
Miranda-warning-
in the
Significantly,
Flagrancy
of the
Purpose
c.
Official
context,
rejected in
Supreme Court
Misconduct
analogous to the Gov-
argument
Brown an
Finally,
if law
suppression
courts favor
viz., that Mi-
argument
ernment’s
here —
illegal
enforcement officials conducted the
may
warnings by
purge
themselves
randa
purpose
extracting
search with the
evi-
prior
temporally proximate
of a
the taint
if
against
dence
the defendant or
*15
arrest at
a confession was
illegal
which
in
flagrantly
conducting
broke the law
the
Brown,
603, 95
422 U.S. at
obtained. See
Broum,
603-04,
422
See
U.S. at
search.17
(“Miranda
warnings, alone
S.Ct. 2254
95 S.Ct.
se,
the act suffi-
always
cannot
make
per
break,
hand,
frequently
one
courts
hesitate
ciently
of free will
On
product
[and]
of the
to find that an officer’s violation
law
purposes,
for Fourth Amendment
“flagrant”
when the
illegality
“purposeful”
connection between the
was
causal
acting
good
in
faith.
They cannot assure in officer broke the law
and the confession.
Boone,
See,
62 F.3d
e.g., United States v.
every
the Fourth Amendment
case
“a
(noting that
unduly exploited.”).
325
violation has not been
Brown,
“had
re- mistaken belief’ that
defendant
Following
the Seventh Circuit
...
rises to the
to the search
cently rejected precisely the Government’s
consented
violation,
of a Fourth Amendment
United States v. Ro-
level
argument here. See
218-19,
(only "purpose”);
position
also
99 S.Ct
Government's
would
16. The
Jenkins, 938 F.2d
United States v.
Amendment voluntariness
conflate the Fifth
Cir.1991)
(9th
(only "flagrancy”); George,883
analysis
Amend
with Brown’s distinct Fourth
"flagrancy”).
(only
F.2d at 1416
analysis.
supra
See
note 12.
ment attenuation
wrong
... consent
It "is ...
to conclude that
that,
Brown,
previously
in
the Su-
We
noted
un
be double counted as consent
... should
prong of
preme Court indicated that this third
and as an interven
der the Fifth Amendment
"particularly” impor-
the attenuation test
ing
the Fourth.” United
circumstance under
(discussing
George,
the officers’ less, con- room—much their I concur in the reached result and extended encounter presence tinued court. “obvious.... —becomes design and in execu- [entry], both tion, The detectives investigatory. for evi- expedition upon
embarked might something hope in the
dence Brown, U.S. up.”
turn
2254. en- purpose of officers’ Because INC., Debtor, In re MEDIA FOCUS particular, counter with —in Rubin, Appellant, E. Thomas repeated efforts to conduct of warrantless v. ordinary evidence of room—was to “detect Pringle, Chapter P. John City Indianapo- wrongdoing,” criminal Trustee, Appellee. Edmond, 32, 41, 121 S.Ct. lis (2000), L.Ed.2d 333 and because No. 03-55858. strong there is evidence Appeals, United States Court good faith toward did not act Circuit. Ninth ton, “purpose conclude that we sup- weighs factor in favor of flagrancy” Argued Sept. Submitted Indeed, only suppression will pression. 2, 2004. Filed Nov. principle inherent serve the “deterrence exclusionary rule.” United (7th Cir.1999). lenco, 517, 526 *17 CONCLUSION
IV. reasons, conclude foregoing
For we violated
that the six RPD officers Wash- four rights Fourth Amendment
ington’s throughout their en-
separate occasions him. conclude that
counter with We also
Washington’s written consent discovery of gun, Washington’s confession
ton’s tainted those four
owning gun were Accordingly, the
constitutional violations. granted court should have Wash-
district suppress.
ington’s motion