                              In the
 United States Court of Appeals
                For the Seventh Circuit
                          ____________

No. 03-3364
UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,

                                 v.

JOHN JOHNSON,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
         No. IP-03-43-CR-01—Sarah Evans Barker, Judge.
                          ____________
 SUBMITTED AUGUST 31, 2005—DECIDED OCTOBER 27, 2005
                    ____________



  Before CUDAHY, RIPPLE, and WILLIAMS, Circuit Judges.
  CUDAHY, Circuit Judge. John Johnson was convicted of
possession with intent to distribute crack cocaine, 21 U.S.C.
§ 841(a), after the district court denied his motion to
suppress the crack found in his home during a warrantless
search. Although Johnson consented to the search, he
argues that his consent was tainted because he gave it
while being illegally detained. In August 2004 we ordered
a limited remand to permit the district court to consider
further whether the detectives who came to Johnson’s home
to investigate an anonymous tip had reasonable suspicion
for detaining him inside the threshold of his house. In light
2                                               No. 03-3364

of the district court’s additional findings on remand and the
subsequent concession by the government that the motion
to suppress should have been granted, we now reverse
Johnson’s conviction.


                             I.
  The facts of the case have been presented in detail in both
our August 2004 order and the district court’s June 2005
response; accordingly, we provide only a brief summary
here. On February 27, 2003, Stephen Blackwell, a detective
assigned to a Madison County, Indiana, narcotics task force,
received an anonymous tip that a “John Johnson” was in
possession of a large amount of crack. The female caller
stated that Johnson had picked up the crack in Muncie,
Indiana, and brought it back to his “Fulton Street address”
in the town of Anderson. The tipster also stated that
Johnson picked up crack shipments on Thursdays and drove
a white vehicle, but she offered no other details and did not
explain the basis of her knowledge. The information was
not otherwise corroborated. Blackwell and another detec-
tive, Cliff Cole, went to appellant Johnson’s home to
investigate the tip.
  After watching Johnson’s house for about five minutes,
the detectives approached his girlfriend as she was leaving
the house. She verified that Johnson lived there and was
inside at the time. The detectives asked her to knock on the
door, and after she did, Johnson answered. The detectives
told Johnson about the anonymous tip and asked to search
his house. Johnson denied that there were drugs in the
house. After speaking to the detectives for several minutes,
Johnson turned his back on them and retreated down a
hallway. Detective Blackwell responded by drawing his gun,
pointing it at the ground, and saying, “[I]f you go down that
hallway, John, now it’s an officer safety issue.” Johnson
stopped and turned back toward the detectives, and
No. 03-3364                                                3

Blackwell returned the gun to its holster. Blackwell asked
again if he could search the house while Detective Cole
phoned a supervisor to discuss whether they could get a
search warrant. When Cole returned, Johnson said, “Well,
you might as well come on in.” The detectives entered the
house, and Johnson told them to “go ahead and search.”
They found a package of crack in a dresser.
   Johnson later moved to suppress the drugs, arguing that
his consent was involuntary and, in any event, tainted by
his illegal detention. The district court denied the motion
and Johnson appealed. We previously upheld the district
court’s factual finding that the detectives did not coerce
Johnson to consent. But we disagreed with the court’s legal
conclusion that Johnson was not “seized” for Fourth
Amendment purposes when Detective Blackwell raised his
gun and stopped Johnson in his tracks when he began
walking back into the house. We could not, however,
determine from the record whether the seizure was based
on reasonable suspicion because certain facts were still in
dispute. In particular, the district court had not resolved
whether to credit testimony from both detectives that
Johnson appeared agitated during the encounter and from
Blackwell that he believed Johnson was going to retrieve a
weapon when he started walking further into the house. In
light of these open questions, we asked the district court to
supplement the record with additional findings of fact and
to “assess whether the officers reasonably suspected that
Johnson was engaged in or was about to engage in criminal
activity.”
  On remand the district court ordered supplemental
briefing and held another hearing. After making supple-
mental findings, the court concluded that the detectives did
not have reasonable suspicion to justify seizing Johnson.
The court determined that Detective Blackwell wanted to
prolong the encounter until he obtained consent to search,
drawing his gun for that purpose, not because he feared
4                                               No. 03-3364

that Johnson was retrieving a weapon. The district court
gave little weight to Blackwell’s testimony that Johnson
had been loud and agitated during the conversation, that
Johnson had not asked to end the encounter and that
Johnson left the door open when he went back into the
house. The court noted that Blackwell never asked Johnson
if he was armed or if there were weapons in the house, nor
did he ask similar questions of Johnson’s girlfriend. Upon
concluding that the police lacked reasonable suspicion to
detain Johnson, the court elected to “rescind” its denial of
the suppression motion and to “grant” it instead.
  After the district court submitted its supplemental
findings, we asked the parties to address (1) whether the
detectives had reasonable suspicion to seize Johnson; (2)
whether any exception to the exclusionary rule would allow
the evidence to be admitted in the absence of reasonable
suspicion; and (3) whether the conviction could stand if the
evidence was suppressed. Johnson argues that all three
questions must be answered in the negative. The govern-
ment does not challenge the district court’s conclusion that
the detectives lacked reasonable suspicion to effect a
seizure and that Johnson’s consent was therefore tainted.
The government also concedes that no other exception to
the exclusionary rule allows the admission of the drugs into
evidence and that, without the drugs, the conviction cannot
stand.


                             II.
  The Fourth Amendment’s probable cause and warrant
requirements do not apply where an authorized party
voluntarily consents to a search. Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973); United States v.
Melgar, 227 F.3d 1038, 1041 (7th Cir. 2000). However,
consent given during an illegal detention is presumptively
invalid, United States v. Cellitti, 387 F.3d 618, 622-23 (7th
No. 03-3364                                                  5

Cir. 2004), and any evidence discovered in a subsequent
search is inadmissable unless the taint of the illegal
conduct is somehow dissipated, Wong Sun v. United States,
371 U.S. 471, 488 (1963); Cellitti, 387 F.3d at 623. If the
consent to search results from an independent act of free
will, see United States v. Pedroza, 269 F.3d 821, 827 (7th
Cir. 2001), or is sufficiently attenuated from the illegal
police activity, see United States v. Jerez, 108 F.3d 684, 694-
95 (7th Cir. 1997), the taint is “purged” and the consent is
valid. When analyzing whether consent is valid despite
unlawful police conduct, we consider (1) the time elapsed
between the illegal conduct and the discovery of the evi-
dence; (2) the existence of intervening circumstances; and
(3) the nature of the official misconduct. Brown v. Illinois,
422 U.S. 590, 603-04 (1975); Jerez, 108 F.3d at 695.
   When the police approach an individual in a confined
space, a “seizure” occurs when a reasonable person would
not feel free to decline the officers’ request or otherwise
terminate the encounter. See United States v. Drayton, 536
U.S. 194, 202 (2002); United States v. Adeyeye, 359 F.3d
457, 461 (7th Cir. 2004). As we held earlier, Johnson was
seized inside his house when Detective Blackwell drew his
gun to prevent Johnson from walking further into the
interior. We must now decide whether the detectives had a
reasonable suspicion that Johnson had been, or was about
to be, engaged in criminal activity. See Terry v. Ohio, 392
U.S. 1, 21 (1968); United States v. Lenoir, 318 F.3d 725, 729
(7th Cir. 2003). Absent such reasonable suspicion any
seizure—wherever effectuated—would have been unlawful.
  Both parties, in keeping with the district court’ findings,
now take the position that the detectives did not have
reasonable suspicion to detain Johnson. We agree. The
uncorroborated anonymous tip that prompted the visit did
not supply this reasonable suspicion. See Florida v. J.L.,
529 U.S. 266, 270-71 (2000); Alabama v. White, 496 U.S.
325, 329 (1990); United States v. Packer, 15 F.3d 654, 659
6                                                No. 03-3364

(7th Cir. 1994). And although a law enforcement officer’s
knowledge of a suspect’s criminal history may support the
existence of reasonable suspicion, United States v. Jackson,
300 F.3d 740, 746 (7th Cir. 2002), such knowledge in itself
is not enough, see United States v. Walden, 146 F.3d 487,
490-91 (7th Cir. 1998) (explaining that a criminal record in
conjunction with other information may form the basis of
reasonable suspicion). Here there is little information, other
than the uncorroborated anonymous tip, to add to Johnson’s
criminal record as a basis for reasonable suspicion. Al-
though Detective Blackwell testified that he thought
Johnson might retrieve a weapon when he walked away
from the front door, the district court discredited this
statement and concluded that Blackwell did not really fear
that Johnson was getting a weapon. Instead, the court
determined that Blackwell’s “essential motivation” was to
prolong the encounter until Johnson consented to a search
of his home. This finding is not clearly erroneous. See, e.g.,
United States v. Ford, 333 F.3d 839, 843 (7th Cir. 2003).
And in this case, the unlawful seizure was ongoing when
Johnson voiced his consent, foreclosing the possibility that
the consent was sufficiently attenuated from the unlawful
conduct as to purge the taint. See Jerez, 108 F.3d at 695.
Having decided that the detectives lacked even reasonable
suspicion to seize Johnson, we put aside our fourth question
to the parties—whether police may seize a person inside his
own home without a warrant or at least probable cause
coupled with exigent circumstances, see United States v.
Payton, 445 U.S. 573 (1980); Lenoir, 318 F.3d at 730-31;
United States v. Saari, 272 F.3d 804, 809 (6th Cir. 2001);
LaLonde v. County of Riverside, 204 F.3d 947, 954-55 (9th
Cir. 2000).
  We asked the parties to address whether any exception to
the exclusionary rule would permit the admission of the
crack despite the Fourth Amendment violation, and both
parties have answered in the negative. Indeed, none of the
recognized exceptions, see, e.g., United States v. Leon, 468
No. 03-3364                                                  7

U.S. 897, 927 (1984) (good faith); Nix v. Williams, 467 U.S.
431, 448 (1984) (inevitable discovery), applies here. Accord-
ingly, the drugs discovered in Johnson’s home should not
have been admitted into evidence. See Elkins v. United
States, 364 U.S. 206, 223 (1960); United States v. Robeles-
Ortega, 348 F.3d 670, 681 (7th Cir. 2003).
   Although we agree with the district court’s analysis and
conclusion on remand, we cannot, as the parties request,
“affirm” its decision to grant the motion. Because the appeal
was still pending during the limited remand, the district
court lacked jurisdiction to rescind its denial of the suppres-
sion motion and grant it instead. See United States v.
Turchen, 187 F.3d 735, 743 (7th Cir. 1999) (explaining that
the timely filing of a notice of appeal divests the district
court of jurisdiction). To the extent the district court
purported to grant the motion on remand, then, its order
has no effect. The court’s original ruling denying the motion
is still before us, and we now hold that it should have been
granted. We agree with the parties that the conviction
cannot stand without the suppressed evidence, so we
REVERSE Johnson’s conviction and REMAND the case to the
district court.
A true Copy:
       Teste:

                         ________________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit




                   USCA-02-C-0072—10-27-05
