                     FOR PUBLICATION

        UNITED STATES COURT OF APPEALS
             FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                          No. 19-30163
                 Plaintiff-Appellee,
                                                      D.C. No.
                      v.                           3:18-cr-00159-
                                                        BR-1
 NIKOLAY P. BOCHARNIKOV,
              Defendant-Appellant.                    OPINION


         Appeal from the United States District Court
                  for the District of Oregon
          Anna J. Brown, District Judge, Presiding

             Argued and Submitted May 14, 2020
                      Portland, Oregon

                        Filed July 27, 2020

   Before: Jay S. Bybee and Lawrence VanDyke, Circuit
       Judges, and Vince Chhabria,* District Judge.

                  Opinion by Judge Bybee;
                Concurrence by Judge Chhabria




    *
      The Honorable Vince Chhabria, United States District Judge for the
Northern District of California, sitting by designation.
2               UNITED STATES V. BOCHARNIKOV

                            SUMMARY**


                            Criminal Law

    The panel reversed the district court’s denial of a motion
to suppress inculpatory statements in a case in which the
defendant entered a conditional guilty plea to aiming a laser
at an aircraft in violation of 18 U.S.C. § 39A.

    After someone at the defendant’s address pointed a laser
at a police aircraft in flight, officers went to the defendant’s
home, illegally detained him, interrogated him without
Miranda warnings, and after the defendant confessed, seized
the laser. Eight months later, an FBI agent approached the
defendant outside his home and stated he was there to ask
“follow-up” questions about the incident. The defendant
again admitted to shining the laser at the plane. The
defendant moved to suppress the inculpatory statements he
made to the FBI agent because the illegality of the first
encounter tainted the second. The government did not
dispute that the initial encounter violated at least the Fourth
Amendment.

    The panel explained that when a confession results from
certain types of Fourth Amendment violations, the
government must go beyond proving that the confession was
voluntary—it must also show a sufficient break in events to
undermine the inference that the confession was caused by
the Fourth Amendment violation. After considering together
the relevant factors set forth in Brown v. Illinois, 422 U.S.

    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             UNITED STATES V. BOCHARNIKOV                  3

590 (1975), the panel was persuaded that the second
encounter, introduced as a “follow up” to the first, was
directly linked to the original illegalities. The panel
explained that although significant time had passed, and the
record does not show that the officers’ conduct was
purposeful or flagrant, the eight-month time period was
collapsed by the agent opening the conversation by stating
that he was following up on the original investigation.
Without other intervening circumstances that act to separate
the incidents, the panel concluded that the government cannot
carry its burden of proving that the defendant’s statements
were sufficiently attenuated from the illegal detention and
seizure eight months prior.

    Concurring, District Judge Chhabria wrote separately to
emphasize that reversal is warranted only because of how this
case was presented to the panel: instead of meaningfully
analyzing the defendant’s first encounter with law
enforcement to help the panel determine what sort of
violation occurred, the government joined the defendant in
the view that because his rights were violated in the first
encounter (and regardless of which particular rights were
violated), the panel must conduct the attenuation analysis
outlined in Brown to determine whether the confession must
be excluded.


                        COUNSEL

Conor Huseby (argued), Assistant Federal Public Defender,
Portland, Oregon, for Defendant-Appellant.
4             UNITED STATES V. BOCHARNIKOV

Peter Davis Sax (argued), Assistant United States Attorney;
Kelly A. Zusman, Appellate Chief; Billy J. Williams, United
States Attorney; United States Attorney’s Office, Portland,
Oregon; for Plaintiff-Appellee.


                          OPINION

BYBEE, Circuit Judge:

    In the early morning hours of July 12, 2017, officers went
to the home of defendant-appellant Nikolay Bocharnikov
after someone at his address pointed a laser at a police aircraft
in flight. The officers illegally detained Bocharnikov,
interrogated him without Miranda warnings, and, after
Bocharnikov confessed, seized the laser. Eight months later,
an FBI agent approached Bocharnikov outside his home and
stated he was there to ask “follow-up questions” about the
incident. Bocharnikov again admitted to shining the laser at
the plane. When Bocharnikov was charged with violating
18 U.S.C. § 39A, he moved to suppress the inculpatory
statements he made to the FBI agent because the illegality of
the first encounter tainted the second. The district court
denied the motion. We reverse.

                                I

    In July of 2017, a Portland police aircraft flying over
Gresham, Oregon, was struck by a green laser, temporarily
blinding the pilot. The plane’s equipment was able to
determine the laser’s source as Bocharnikov’s residence.
Shortly after midnight, three uniformed officers from the
Multnomah County Sheriff’s Department (MCSD) arrived at
Bocharnikov’s home. Bocharnikov’s wife answered the door
             UNITED STATES V. BOCHARNIKOV                     5

and said that only she and her husband were home and her
husband was in the shower. A few minutes later,
Bocharnikov, still wet from the shower and wearing only his
boxer shorts, came to the door. When asked about the laser
strike, Bocharnikov said that “[i]t was the kids.”

    An officer then handcuffed Bocharnikov, sat him on the
front steps of his house, explained “the seriousness of the
incident,” and said that they “were there only to recover the
laser in question.” Bocharnikov then admitted to shining the
laser at the plane, stating that he did not think it could reach
that far. He apologized and had his wife retrieve the laser and
hand it over to the officers. The officers took the laser,
released Bocharnikov, and left. At no time was Bocharnikov
told that he was under arrest, nor was he given Miranda
warnings. He did not hear from the Sheriff’s Department
again.

    About a month later, FBI Special Agent Adam Hoover
was assigned to the case. Agent Hoover became concerned
about the legality of the July questioning. Some eight months
later, in March of 2018, he drove to Bocharnikov’s house to
interview him again. Agent Hoover parked across the street
and waited for his partner to arrive. While waiting, Agent
Hoover saw Bocharnikov come out of his house and walk to
his van. Agent Hoover got out of his car, waved to get
Bocharnikov’s attention, and crossed the street. He
introduced himself as a member of the FBI Joint Terrorism
Task Force and showed Bocharnikov his credentials. Agent
Hoover was dressed in plain clothes and his weapon and
handcuffs were not visible.

    Agent Hoover stayed on the sidewalk, about five to ten
feet away from Bocharnikov, and asked if he “could ask some
6            UNITED STATES V. BOCHARNIKOV

follow-up questions regarding the laser strike from the
previous summer.” Almost immediately, Bocharnikov said
that it “was a stupid thing to do” and “it was a mistake.”
Their conversation lasted between twenty and forty minutes,
with Agent Hoover’s partner arriving about five minutes in.
Agent Hoover did not specifically mention the details of the
July 2017 detention, interrogation, seizure, or confession. He
also did not read Bocharnikov Miranda warnings.

    Bocharnikov, however, referred to the July incident and
explained that he initially denied shining the laser because,
having grown up in Kyrgyzstan, he had an innate fear of the
police. He said that, in his experience, it was not a good thing
for the police to come to one’s home. Nevertheless, the
conversation between Bocharnikov and Agent Hoover was
“friendly,” “polite,” and “relaxed,” and Bocharnikov did not
appear to hesitate to speak with Agent Hoover.

    At the end of the interview, Bocharnikov asked what
would happen next. Agent Hoover said that he would write
a report and the U.S. Attorney’s office would decide how to
proceed. The men shook hands and Agent Hoover left.

    Three weeks later, a grand jury indicted Bocharnikov on
one count of aiming a laser at an aircraft in violation of
18 U.S.C. § 39A. Bocharnikov moved to suppress his
statements to Agent Hoover, arguing that they were tainted by
the illegality of the detention and interrogation the previous
July. After an evidentiary hearing, the district court denied
Bocharnikov’s motion, holding that the March 2018 interview
“was not a continuation of the July 2017 interrogation.” In
reaching this conclusion, the court highlighted Bocharnikov’s
willingness to speak with Agent Hoover, the different
circumstances of the two events, and the time that elapsed
               UNITED STATES V. BOCHARNIKOV                         7

between the two interviews. Bocharnikov then pleaded
guilty, reserving his right to appeal the denial of his motion
to suppress. This appeal followed.1

                                  II

    The Fourth Amendment protects “[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. Const.
amend. IV. For more than a century the Supreme Court has
held that evidence obtained through a violation of the Fourth
Amendment should be excluded from trial. Wong Sun v.
United States, 371 U.S. 471, 484–85 (1963); Weeks v. United
States, 232 U.S. 383, 398 (1914). The exclusionary rule is
not a remedy prescribed by the Constitution, but a
prophylactic measure. It serves to enforce the underlying
personal right to be free from unreasonable searches and
seizures by deterring violations of the Fourth Amendment.
See Davis v. United States, 564 U.S. 229, 236–37 (2011).
The rule applies both to direct products of a Fourth
Amendment violation and to indirect products of the illegal
search if they “bear a sufficiently close relationship to the
underlying illegality.” United States v. Ladum, 141 F.3d
1328, 1336 (9th Cir. 1998).

    Bocharnikov argues that his statements in March 2018
should be suppressed because they were tainted by the
illegality of his detention and the seizure of the laser in July
2017. The government does not dispute that the initial




    1
      We review the district court’s denial of a motion to suppress de
novo. United States v. Norris, 942 F.3d 902, 907 (9th Cir. 2019).
8               UNITED STATES V. BOCHARNIKOV

encounter violated at least the Fourth Amendment.2 The only
question before us, then, is whether the taint of the illegal
seizure was sufficiently attenuated to render Bocharnikov’s
statements to Agent Hoover admissible.

    The government bears the burden of proving that the taint
of the prior illegality has been attenuated enough to allow the
second interrogation into evidence. United States v. Cella,
568 F.2d 1266, 1285 (9th Cir. 1977). Because the
government effectively concedes that the police detained
Bocharnikov in his own home without probable cause, the
government must prove that Bocharnikov’s second statement
was voluntary and that it was “sufficiently an act of free will
to purge the primary taint.” Brown v. Illinois, 422 U.S. 590,
602 (1975).3 Put differently, when a confession results from
certain types of Fourth Amendment violations (rather than a
Fifth Amendment violation), the government must go beyond
proving that the confession was voluntary—it must also
“show a sufficient break in events to undermine the inference
that the confession was caused by the Fourth Amendment
violation.” Oregon v. Elstad, 470 U.S. 298, 306 (1985); see
also Dickerson v. United States, 530 U.S. 428, 441 (2000)
(“[Elstad] recognizes the fact that unreasonable searches
under the Fourth Amendment are different from unwarned
interrogation under the Fifth Amendment”); United States v.
Shetler, 665 F.3d 1150, 1159–60 & n.4 (9th Cir. 2011)

    2
      The government does not argue that the MCSD officers had
probable cause to arrest Bocharnikov despite the lack of a warrant.
    3
      The nature of the constitutional violations in the first encounter was
never decided. But here and before the district court, the government
agreed that the attenuation analysis applied. Having no pushback on the
nature of the violations in the first encounter, we analyze the problem as
invited by the parties.
              UNITED STATES V. BOCHARNIKOV                     9

(explaining the difference between confessions resulting from
Fourth Amendment violations and Fifth Amendment
violations). This is a fact- and case-specific inquiry. Brown,
422 U.S. at 603. Three factors are relevant in our analysis of
whether Bocharnikov’s statements were “sufficiently
attenuated from the underlying illegality to be admissible:
(1) the temporal proximity of the search to the confession;
(2) the presence of intervening circumstances; and (3) the
purpose and flagrancy of the official misconduct.” Shetler,
665 F.3d at 1159 (citations omitted).

    At first blush, the first factor would appear to work
strongly in the government’s favor. Indeed, eight months is
a considerable time for the memory of the violation to
dissipate in Bocharnikov’s mind. But one of the first things
that Agent Hoover said to Bocharnikov was that he was there
to “ask some follow-up questions.” That phrase was innocent
enough, identifying in conversational fashion why Agent
Hoover wished to speak with Bocharnikov, but it also served
to refer Bocharnikov back to his prior detention and
confession. In our view, referring back to the initial illegality
by using the “follow-up” phrasing made the second encounter
a de facto extension of the first incident, the passage of time
notwithstanding.

    The government argues that the passage of eight months
is sufficient alone to purge the taint of the initial encounter
and points us to several cases in which shorter periods of time
were found sufficient. But those cases rested their analysis
on more than just the mere passage of time. For example, in
United States v. Ceccolini, 435 U.S. 268, 279–80 (1978), the
Supreme Court held that the taint of an initial Fourth
Amendment violation was sufficiently attenuated after four
months. Although the Court stated that the length of time
10           UNITED STATES V. BOCHARNIKOV

was material, id. at 275, the Court was more concerned with
the fact that the Fourth Amendment violation had led to
discovery of a live witness rather than evidence. “Witnesses
are not like guns or documents which remain hidden from
view until one turns over a sofa or opens a filing cabinet.” Id.
at 276. The witness was already known to police, was not a
suspect, and her testimony “was an act of her own free will in
no way coerced or even induced” by the Fourth Amendment
violation. Id. at 279. Likewise, in United States v. Conrad,
673 F.3d 728, 733–34 (7th Cir. 2012), the Seventh Circuit
found the taint of an illegal entry sufficiently attenuated after
only two hours. But there were several significant
intervening circumstances that led to the court’s conclusion,
including the defendant being read his Miranda rights
(despite his not being in custody), a change in location, the
defendant’s signing two consent forms advising him of his
right to refuse the search, and the fact that the defendant had
the chance to speak with his father over the phone. Id. at 735;
see also United States v. Shi, 525 F.3d 709, 727 (9th Cir.
2008) (noting “several significant intervening events” that
occurred in the day between events in holding that the taint of
an involuntary confession was attenuated).

    The mere fact that time has passed is not the deciding
factor in any case.        We must consider all of the
circumstances, including the fact that there were no other
“intervening events” besides the passage of time. Cf. Shetler,
665 F.3d at 1159 (stating that “there is no reason to think that
the passage of 36 hours would have weakened the causal
connection between the illegal searches and Shetler’s
statements, particularly because the DEA agents may have
confronted Shetler with illegally seized evidence during the
interview in which he made those statements” and concluding
that “[a]lthough Shetler received Miranda warnings on at
               UNITED STATES V. BOCHARNIKOV                          11

least three occasions after the illegal searches and before his
confession in the DEA office, such warnings [were]
insufficient to ‘purge the taint of a temporally proximate prior
illegal act’” (citation omitted)). No one from the Sheriff’s
Department contacted Bocharnikov after their one-time
encounter at his house. Bocharnikov had cooperated with the
officers and given them the laser, which is all they asked from
him. After eight months, he had no reason to believe that
there were further consequences. Unlike the cases cited by
the government, there are no intervening circumstances here
that separate the incidents besides the passage of time.

    Significantly, Bocharnikov was not read his Miranda
rights during either encounter. So, even though he was
released from the high-stress interrogation by the MCSD
officers, nothing happened to help him understand that he did
not have to cooperate with Agent Hoover and reaffirm what
he had already confessed. Agent Hoover’s reference to
“follow-up questions” made clear to Bocharnikov that Agent
Hoover knew what he had already told the officers. The
government points to nothing else in the intervening eight
months that could serve to make Bocharnikov think he had
anything to gain from walking back the statements he made
during the illegal detention in July.4

   As to the final factor, the record does not show that the
conduct here was purposeful or flagrant. There is no

    4
      It is irrelevant for our purposes whether Miranda warnings were
required before the second encounter, which was, by all accounts,
friendly, noncoercive, and noncustodial. The two encounters were, quite
naturally, linked in Bocharnikov’s mind. We note the absence of a
Miranda warning because the issuing of a Miranda warning, though not
required in a noncustodial situation, might have served to break the link
between the two questionings. See Elstad, 470 U.S. at 314.
12           UNITED STATES V. BOCHARNIKOV

evidence of any subterfuge on the part of the officers or
Agent Hoover. See Missouri v. Siebert, 542 U.S. 600,
609–10 (2004) (plurality opinion) (describing a deliberate
strategy of withholding Miranda warning, obtaining a
confession, and then issuing Miranda warnings and securing
a second confession). The officers were understandably
focused on securing the laser to prevent any further threats to
aircraft. However, as the government concedes, “the facts
fall short of the type of exigent circumstances needed to
sustain a warrantless arrest in a home.” This factor tilts
slightly against suppression, but in light of the other factors,
it is not dispositive.

    As we consider these factors together, we are persuaded
that the March 2018 encounter, introduced as a “follow up”
to the first, was directly linked to the original illegalities.
While significant time had passed, that time was collapsed by
Agent Hoover opening the conversation by stating that he
was following up on the original investigation. Without other
intervening circumstances that act to separate the incidents,
the government cannot carry its burden of proving that
Bocharnikov’s statements to Agent Hoover were sufficiently
attenuated from the illegal detention and seizure eight months
prior. His statements should have been suppressed.

                              III

   The district court’s denial of Bocharnikov’s motion to
suppress is REVERSED.
             UNITED STATES V. BOCHARNIKOV                    13

CHHABRIA, District Judge, concurring:

    I concur in the result reached by the majority. I write
separately to emphasize that reversal is warranted only
because of how this case was presented to us. At no point has
the government meaningfully analyzed Bocharnikov’s first
encounter with law enforcement to help us determine what
sort of violation occurred. Instead, the government joins
Bocharnikov in the view that because Bocharnikov’s rights
were violated in the first encounter (and regardless of which
particular rights were violated), we must conduct the three-
factor “attenuation” analysis outlined in Brown v. Illinois to
determine whether his confession during the second
encounter must be excluded. See 422 U.S. 590, 603–04
(1975).

    The nature of the initial violation actually matters a great
deal: only some constitutional violations are capable of
tainting subsequent confessions. If the only transgression by
the police in the first encounter was a Miranda violation,
there would be no need to conduct the attenuation analysis
that the government has asked us to conduct—the only
question would be whether Bocharnikov’s second confession
was voluntary (and it obviously was). Oregon v. Elstad,
470 U.S. 298, 318 (1985). Similarly, no attenuation analysis
would be required if the police committed a Fourth
Amendment violation by arresting Bocharnikov in his home
without a warrant (but with probable cause). New York v.
Harris, 495 U.S. 14, 21 (1990); United States v. Crawford,
372 F.3d 1048, 1056 (9th Cir. 2004) (en banc); see also
Payton v. New York, 445 U.S. 573, 576 (1980). In contrast, if
the police violated the Fourth Amendment by arresting
Bocharnikov without probable cause, we would need to
conduct the attenuation analysis. Crawford, 372 F.3d at 1056.
14            UNITED STATES V. BOCHARNIKOV

An attenuation analysis would also be required if
Bocharnikov’s initial confession were coerced. Elstad,
470 U.S. at 310.

    In the district court, without much analysis, Bocharnikov
described the officers’ conduct in the first encounter as
violating Miranda, the Fourth Amendment, and the Fifth
Amendment. He took the position that any of these violations
required an attenuation analysis. The government responded
by agreeing that the three-part attenuation test applies,
arguing simply that it should win under that test. Because the
parties set up the case this way, the district court did not rule
on what sort of violation occurred during the first incident.

    In his appellate brief, Bocharnikov goes into more detail
about the alleged violations during the first incident. He
contends that the officers committed a Miranda violation by
interrogating him without advising him of his rights, and he
says the officers violated the Fourth Amendment because
they lacked a warrant to enter Bocharnikov’s home. He also
asserts a Fourth Amendment violation based on a lack of
probable cause to seize him, saying that “the officers lacked
probable cause to believe that Mr. Bocharnikov—as opposed
to any other individuals observed by the aircraft—had pointed
the laser at the aircraft.” And he says the officers violated the
Fifth Amendment by coercing a confession out of him.

    The government has not pushed back on any of these
arguments. To the contrary, at different points in its appellate
brief, the government variously seems to refer to the first
incident as involving a Miranda violation, a “warrantless
arrest,” and an “arrest unsupported by probable cause.” In one
paragraph, the government even appears to assume for
purposes of the appeal that Bocharnikov’s confession during
              UNITED STATES V. BOCHARNIKOV                    15

the first encounter was a “coerced initial statement.” And at
oral argument, despite suggestions from the bench that the
attenuation analysis would be unnecessary if the police had
probable cause to arrest Bocharnikov and if his first
confession was not coerced, the government declined to adopt
that position. In short, the government has disavowed the
argument that an attenuation analysis need not be conducted,
and left us with little choice but to assume for purposes of
this analysis that all four violations took place.

     Had the government pressed Bocharnikov on the nature
of the first constitutional violation—or itself taken care to
identify the violations and the legal consequences that flow
from each—I strongly suspect we would have been
compelled to rule the other way. At least on this record
(which admittedly is not fully developed as it relates to the
first encounter), it seems to me that the only true violations
were a Miranda violation and a Fourth Amendment violation
based on the failure to secure a warrant before seizing
Bocharnikov inside his home. It appears that the police had
probable cause to arrest him, and his first confession does not
appear to have been involuntary. Accordingly, even though
we have been drawn into an attenuation analysis here, nobody
should interpret this case as actually requiring an attenuation
analysis on similar facts.

    Regarding the attenuation analysis itself, that too is
affected by the government’s decision not to contest
Bocharnikov’s various arguments about how the police
violated his rights in the initial encounter. The third factor we
consider in deciding whether to exclude evidence as the fruit
of prior unlawful police conduct is the flagrancy of that
conduct. Brown, 422 U.S. at 603–04. It would be difficult to
conclude that this factor cuts in favor of the government when
16           UNITED STATES V. BOCHARNIKOV

it does nothing to contest Bocharnikov’s argument that the
police arrested him at home without a warrant and without
probable cause, interrogated him without giving him Miranda
warnings, and coerced a confession out of him. Against that
backdrop, I agree with the result reached by the majority on
the question of attenuation.

    To rule in the government’s favor on this appeal would
have required us to bend over backwards, doing the
government’s work for it. Federal prosecutors should not
need that kind of help from the courts, nor should they expect
to receive it.
