                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 04 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-50389

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00760-CAS-1

  v.
                                                 MEMORANDUM *
MARCO JOSHUA PEREZ, AKA Jack
Mario Orfalina, AKA Shy, AKA Shy boy,
AKA Shy One, AKA Victor Wakey, AKA
Wacky,

              Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                       Argued and Submitted January 7, 2013
                               Pasadena, California

Before: CANBY, REINHARDT, and WARDLAW, Circuit Judges.

       Marco Joshua Perez pled guilty to possession of methamphetamine with

intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). His


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

                                          1
plea was conditioned on his right to appeal the district court’s denial of his motions

to suppress evidence recovered from a search of his truck and subsequently of his

home. We hold that the district court erred in determining that the consent to

search Perez’s vehicle was voluntary. The district court made no further finding

with respect to whether the agents would have gone to Perez’s home had they not

seen the evidence seized during the illegal search. Because a hearing is necessary

to determine whether this illegal search prompted the officers’ visit to Perez’s

home, we remand to the district court for further findings on this issue.1

                               Involuntary Consent

      As our precedent makes clear, the “government bears the heavy burden of

demonstrating that the consent was freely and voluntarily given.” United States v.

Chan–Jimenez, 125 F.3d 1324, 1327 (9th Cir. 1997) (citation omitted). The

government did not meet that burden here. We consider five factors to determine

whether consent was voluntarily given: “(1) whether the person was in custody; (2)

whether the officers had their guns drawn; (3) whether a Miranda warning had

been given; (4) whether the person was told that he had the right not to consent;

and (5) whether the person was told that a search warrant could be obtained.”


      1
         Because we reverse on the issue of involuntary consent and remand for
determination of whether the evidence seized thereafter was a fruit of the illegal
vehicle search, we do not reach the other issues raised on appeal.

                                          2
United States v. Reid, 226 F.3d 1020, 1026 (9th Cir. 2000) (citation omitted). The

district court did not engage in an analysis of each of these five factors, but it

nonetheless found the consent given by the driver of Perez’s truck, Garcia, to have

been voluntarily given. An analysis of these factors makes clear, however, that

Garcia’s consent was involuntary and the search was, therefore, illegal.

      As to the first factor, Garcia may not have been under arrest in all respects,

but he was de facto in custody because he was ordered out of the vehicle, frisked,

seated, and forbidden to rise. He was told, “You can’t stand up because we[’]re

ordering you to sit down.” See United States v. Curtis, 568 F.2d 643, 646 (9th Cir.

1978) (“If the person reasonably believes that he cannot leave freely, he is

considered in custody[.]”) (quoting United States v. Luther, 521 F.2d 408, 410 (9th

Cir. 1975)). As to the second factor, Garcia testified that when he was asked to

step out of the vehicle, he saw “guns drawn by uniform[ed] police officers.” The

third and fourth factors favor a finding of involuntariness because Garcia was not

advised of his right to refuse to consent or given a Miranda warning. He was also

denied his right to call his lawyer, despite his repeatedly asking to do so. Perez’s

case meets four of the five factors. In Reid, this court found consent to be

involuntary on facts very similar to this case: “the officers ordered [the individual]

up against the sliding glass door, placed him in a spread eagle position, frisked


                                            3
him, and then handcuffed him[,] . . . at least one officer had his gun drawn[,] . . .

[and] the officers neither read [the individual] his Miranda rights nor informed him

that he had the right not to consent to the search.” 226 F.3d at 1027. In light of

Reid and the totality of the circumstances, Garcia’s consent was involuntary and

the resulting search of Perez’s truck illegal. The district court clearly erred in

concluding otherwise.

                             Fruits of the Illegal Search

      Because the consent to the vehicle search was involuntary, we must next

determine what, if any, evidence should be suppressed as a fruit of the illegal

search. The only evidence directly obtained as a result of that search was Perez’s

home address and Garcia’s cell phone. Because the police were also able to obtain

Perez’s address from the “independent source” of checking the registration of the

vehicle, the address need not be suppressed. United States v. Beardslee, 197 F.3d

378, 386 (9th Cir. 1999). Nor does Perez have standing to challenge the $3,976 in

cash and the criminal case number seized from Garcia’s person. The contrary is

true, however, of the photographs and text messages from the cell phone indicating

that drug transactions were in progress. This evidence was seized and searched

during the illegal search of Perez’s truck and, thus, constitutes “the fruit of the

poisonous tree.”


                                            4
      Perez seeks the suppression of the evidence seized from his home. This

evidence was obtained after the officers went there, according to officer Segura’s

declaration, in order to “ask him if he gave Garcia permission to be in possession

of his vehicle and to see if he would give [the officers] consent to search his

residence for drugs.” The officers’ suspicion that Perez might have drugs at his

home seems to have arisen, at least in part, as a result of their seeing the

incriminating photographs and text messages on Garcia’s phone.

      In Wong Sun v. United States, the Supreme Court made clear that in

determining the “fruit of the poisonous tree” question, we ask “whether, granting

establishment of the primary illegality, the evidence to which instant objection is

made has been come at by exploitation of that illegality or instead by means

sufficiently distinguishable to be purged of the primary taint.” 371 U.S. 471, 488

(1963) (citation omitted). In cases in which we deal with evidence obtained

indirectly, as here, “we have stated the test to be whether the illegal activity tends

to significantly direct the investigation to the evidence in question.” United States

v. Chamberlin, 644 F.2d 1262, 1269 (9th Cir. 1980) (citations omitted) (emphasis

added); see also United States v. Davis, 332 F.3d 1163, 1171 (9th Cir. 2003). The

record before us does not disclose whether the illegally seized evidence from




                                           5
Garcia’s phone “tend[ed] to significantly direct the investigation” to the search of

Perez’s home. Chamberlin, 644 F.2d at 1269 (citations omitted).

       The Supreme Court addressed similar circumstances in United States v.

Murray, 487 U.S. 533 (1988). It explained that a search pursuant to a warrant was

not a “genuinely independent source . . . . if the agents’ decision to seek the

warrant was prompted by what they had seen during the initial entry.” Id. at 542.

Therefore, it remanded for a factual determination as to whether the officers would

have sought a search warrant regardless of the illegal entry. Id. at 543-44; see also

United States v. Duran-Orozco, 192 F.3d 1277, 1281 (9th Cir. 1999) (remanding

for a determination of whether agents would have sought a search warrant absent

their prior illegal search).

       In this case, we cannot determine from the record to what extent the officers’

decision to go to Perez’s home was motivated by the evidence seized from the

illegal search of Perez’s vehicle, and thus, “whether the illegal [vehicle search]

tend[ed] to significantly direct the investigation to [Perez’s home].” Chamberlin,

644 F.2d at 1269 (citations omitted). The district court did not consider this issue

or make any factual findings regarding whether the illegally seized evidence

prompted the officers’ decision to go to Perez’s home because it found the vehicle

search to be lawful. Distr. Ct. Op. at 10 n.9 (“Because the Court finds that the


                                           6
search of defendant’s vehicle . . . was conducted pursuant to lawful consent, the

Court does not reach the question of whether the search of defendant’s residence

and statements he made during that search must be suppressed because they are the

poisonous fruits of the vehicle search.”). In short, our review depends on both a

factual finding and a legal determination that the district court did not make.

      Accordingly, we remand to the district court to determine whether the

officers were prompted to go to Perez’s home by the evidence uncovered as a

result of the illegal search of his vehicle, specifically the photographs and text

messages relating to drugs on Garcia’s cell phone. If the illegally seized evidence

“tend[ed] to significantly direct” the officers’ decision to go to Perez’s home, the

evidence seized in the search of that home must be suppressed. Chamberlin, 644

F.2d at 1269 (citations omitted).




REMANDED.




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