                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 08-2824
                                 ________________

United States of America,                  *
                                           *
             Appellee,                     *
                                           * Appeal from the United States
      v.                                   * District Court for the
                                           * Southern District of Iowa.
Alphonso Wade Barnum,                      *
                                           *
             Appellant.                    *

                                 ________________

                            Submitted: January 14, 2009
                                Filed: April 28, 2009
                               ________________

Before BYE and GRUENDER, Circuit Judges, and KAYS,1 District Judge.
                        ________________

GRUENDER, Circuit Judge.

       After police officers found a Titan .25 caliber semi-automatic handgun in his
rental vehicle during a consensual search following a traffic stop, Alphonso Barnum
was charged with being a felon in possession of a firearm, a violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2). Barnum moved to suppress the evidence that police seized,
challenging the legality of the traffic stop and alleging that his consent to search his



      1
      The Honorable David Gregory Kays, United States District Judge for the
Western District of Missouri, sitting by designation.
rental vehicle and his person was not voluntarily given. The district court2 denied
Barnum’s motion. Barnum then entered a conditional guilty plea, reserving the right
to appeal the denial of his suppression motion. Barnum now appeals, and for the
reasons discussed below, we affirm.

I.    BACKGROUND

       On the afternoon of July 23, 2007, Officer Jerry Hatler of the Bettendorf, Iowa
Police Department drove through the parking lot of the Traveler Motel as part of his
routine patrol. The Traveler Motel has a reputation among local law enforcement as
a frequent site of illegal drug and prostitution activity. Officer Hatler cross-referenced
the registrations of the vehicles parked in the lot against a list of outstanding warrants.
One of these vehicles was a silver 2005 Dodge Stratus, registered to Kimberly Car
City, an automobile repair shop in Davenport, Iowa. After checking all of the
vehicles, Officer Hatler left the Traveler Motel parking lot and continued his normal
patrol activities.

       A few hours later, around 6:00 p.m., Officer Hatler was driving on Brown
Street when he saw the same silver Dodge Stratus pull out of the Traveler Motel
parking lot onto Brown Street. Officer Hatler followed the vehicle on Brown Street
and then on 14th Street for about twenty seconds before he noticed that the vehicle’s
middle taillight failed to illuminate when the driver, Barnum, applied the vehicle’s
brakes, thereby violating Iowa Code § 321.387. See id. (“All lamps and lighting
equipment originally manufactured on a motor vehicle shall be kept in working
condition . . . .”). Officer Hatler then initiated a traffic stop.




      2
        The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.

                                           -2-
      Officer Hatler approached the stopped vehicle, asked Barnum for his license,
and notified him of the vehicle’s malfunctioning taillight. Barnum explained that he
was not aware that the taillight was out because he did not own the vehicle; it was
loaned to him by an automobile repair shop while his automobile was being repaired.
Barnum gave Officer Hatler his license and the vehicle rental agreement, and Officer
Hatler returned to his patrol cruiser to check the records of Barnum and his female
passenger, Michelle Pugh. The check on Barnum revealed prior involvement with
drugs and a conviction for possession of a firearm by a felon.

       At this time, Officer Colin Ward arrived to back up Officer Hatler. Officer
Hatler prepared a warning ticket for the taillight infraction and returned to Barnum’s
rental vehicle to give Barnum the warning and return his license and the rental
agreement. Officer Hatler asked Barnum to step out of the vehicle to complete the
warning ticket. Together they walked to the rear of the rental vehicle, where Barnum
reviewed the warning and signed it. Officer Hatler then told Barnum that their
business was done.

        Before Barnum returned to his rental vehicle, Officer Hatler engaged Barnum
in a conversation concerning his prior involvement with drugs, his conviction for
possession of a firearm by a felon, his current business, and his church. During this
conversation, which occurred approximately twelve to fifteen minutes after the initial
traffic stop, Officer Hatler asked Barnum if there was anything illegal in the vehicle
and if he could search it. Barnum agreed to the search. For safety reasons, Officer
Hatler patted Barnum down for weapons prior to searching the vehicle. The pat-down
revealed no weapons, and Officer Hatler asked if he could search Barnum’s pockets.
Barnum gave his permission, and Officer Hatler’s search revealed a crack pipe and a
motel room key. Officer Hatler placed Barnum under arrest and finished his search
of Barnum’s person, finding $305 in his shoe.




                                         -3-
       Officer Hatler held Barnum in the back of his patrol cruiser and asked a police
dispatcher to send a female officer to conduct a pat-down of Pugh. After Officer
Guffey arrived on the scene, Barnum volunteered that there was a gun in the rental
vehicle that Barnum’s wife had given to Pugh. Officer Ward retrieved a cocked and
loaded Titan .25 caliber semi-automatic handgun from the vehicle’s center console.
Following this discovery, Officer Hatler read Barnum his Miranda3 rights, and Officer
Ward arrested Pugh.

       A federal grand jury returned an indictment charging Barnum with being a felon
in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Barnum pled not guilty. Before trial, Barnum filed a motion to suppress his post-
arrest, pre-Miranda statement concerning the handgun and the evidence seized from
his person and his rental vehicle, claiming that Officer Hatler did not have probable
cause for the traffic stop and that Barnum’s consent to the searches was not
voluntarily given. At the motion hearing, the Government presented the testimonies
of Officers Hatler and Ward concerning the circumstances of the traffic stop,
Barnum’s consent to search, and the searches of his person and his rental vehicle.
Barnum’s attorney cross-examined Officers Hatler and Ward concerning the
circumstances under which Officer Hatler secured Barnum’s consent to search, the
police department’s practice of checking vehicles in the Traveler Motel parking lot,
and the officers’ explanations for the failure of their patrol-cruiser video cameras to
record the traffic stop. Barnum also presented testimony that Kimberly Car City’s
maintenance records reflected no reported problems with the Dodge Stratus’s center
taillight either before or after the rental.

       The district court denied Barnum’s suppression motion, finding that Barnum
voluntarily consented to the searches and that his consent sufficiently purged the taint
of any potential Fourth Amendment violation arising from the allegedly illegal traffic


      3
       Miranda v. Arizona, 384 U.S. 436 (1966).

                                          -4-
stop. Because Barnum’s voluntary consent provided an independent justification for
the searches, the district court refrained from deciding whether there was probable
cause for the traffic stop. The district court also found that Barnum’s post-arrest, pre-
Miranda statement to Officer Hatler concerning the handgun was not the product of
interrogation. Following the court’s adverse ruling on his suppression motion,
Barnum entered a conditional guilty plea pursuant to Federal Rule of Criminal
Procedure 11(a)(2). The district court sentenced Barnum to 36 months’ imprisonment.

II.   DISCUSSION

       Barnum appeals the district court’s denial of his suppression motion, arguing
that the court clearly erred in finding that he voluntarily consented to the search of his
person and his rental vehicle and that the court erred in finding that his consent purged
the taint of any potential Fourth Amendment violation arising from the allegedly
illegal traffic stop.4 “In an appeal of a denial of a motion to suppress evidence, the
district court’s factual determinations are reviewed for clear error, and we review de
novo its legal conclusions as to whether the Fourth Amendment has been violated.”
United States v. Esquivel, 507 F.3d 1154, 1158 (8th Cir. 2007).

       Where applicable, the judicially-created exclusionary rule to the Fourth
Amendment “forbids the use of improperly obtained evidence at trial.” Herring v.
United States, 555 U.S. ---, 129 S. Ct. 695, 699 (2009).5 However, evidence subject
to the exclusionary rule is still admissible if it is obtained through “an act of free will

      4
       Barnum abandoned any claim concerning his post-arrest, pre-Miranda
statement about the location of the handgun by failing to argue the issue in his
opening brief to this court. See United States v. Fischer, 551 F.3d 751, 756 (8th Cir.
2008); United States v. Aldaco, 477 F.3d 1008, 1016 n.3 (8th Cir. 2007).
      5
       In deciding this appeal, we will assume that the exclusionary rule applies. See
Herring, 129 S. Ct. at 700 (noting “[t]he fact that a Fourth Amendment violation
occurred . . . does not necessarily mean that the exclusionary rule applies”).

                                           -5-
unaffected by the initial illegality.” Brown v. Illinois, 422 U.S. 590, 603 (1975).
Here, the Government argues that Barnum’s voluntary consent to search his person
and his rental vehicle was an act of free will that purged the taint of any alleged Fourth
Amendment violation arising from the traffic stop. Because the purported act of free
will is the defendant’s consent to search, the Government must prove by a
preponderance of the evidence that the defendant’s consent to search was voluntary
and that the defendant’s consent was an act of free will sufficient to purge the taint of
the Fourth Amendment violation. Esquivel, 507 F.3d at 1160 (citing Brown, 422 U.S.
at 603-04); see also United States v. Kreisel, 210 F.3d 868, 869 (8th Cir. 2000). For
the purposes of this inquiry, we assume that Officer Hatler violated the Fourth
Amendment by effecting the traffic stop of Barnum’s rental vehicle without probable
cause. See United States v. Grajeda, 497 F.3d 879, 882 (8th Cir. 2007) (assuming the
existence of a Fourth Amendment violation in considering whether a defendant’s
voluntary consent purged the taint of the alleged violation).

      A. Voluntary Consent to Search

      In United States v. Esquivias, we described our standard for deciding whether
a defendant’s consent to search is voluntary:

      A court determines whether consent is voluntary under the totality of the
      circumstances. The Government . . . must show that the defendant
      behaved in such a manner that the officer reasonably believed that the
      search was consensual. In evaluating the reasonableness of the officer’s
      belief, we consider the characteristics of the person consenting, including
      the party’s age, intelligence and education, whether he was under the
      influence of drugs or alcohol, whether he was informed of his right to
      withhold consent, and whether he was aware of rights afforded criminal
      suspects. We also consider the environment in which the alleged consent
      took place, specifically (1) the length of time he was detained; (2)
      whether the police threatened, physically intimidated, or punished him;
      (3) whether the police made promises or misrepresentations; (4) whether


                                           -6-
      he was in custody or under arrest when the consent was given; (5)
      whether the consent occurred in a public or a secluded place; and (6)
      whether he stood by silently as the search occurred.

416 F.3d 696, 700 (8th Cir. 2005) (internal citations, quotations and alterations
omitted).

        Barnum contends that the district court clearly erred in finding that his consent
to the searches was voluntary for two reasons: (1) Officer Hatler was unreasonable
in his belief that a reasonable person would have felt free to disregard Officer Hatler’s
request based on the presence of three police officers at the scene; and (2) Officer
Hatler’s request to search Barnum’s rental vehicle was “loaded” in the sense that it
was a compound question asked in a manner calculated to guarantee Barnum’s
consent. We disagree.

       First, contrary to Barnum’s argument, the record shows that only two officers,
Officers Hatler and Ward, were present when Barnum consented to the searches.
Officer Guffey did not arrive on the scene until after Barnum consented to the
searches. We have held that the mere presence of “two to three officers being armed
with holstered firearms,” in the absence of evidence of threats or intimidation, does
not negate a defendant’s consent. United States v. Va Lerie, 424 F.3d 694, 710 (8th
Cir. 2005); see also United States v. Vera, 457 F.3d 831, 835 (8th Cir. 2006) (holding
that a police officer’s mere presence without some “physical force or show of
authority” does not establish that a reasonable person would not have felt free to
disregard a police officer’s search request). The district court found, and Barnum does
not dispute, that “he was not threatened, physically intimidated or punished by the
police.” Because there is no evidence in the record showing that Officer Hatler or
Officer Ward intimidated, threatened, or in any other way compelled Barnum to
consent to the searches of his person and his rental vehicle, we reject Barnum’s first
contention.



                                          -7-
       Second, even if we were to accept Barnum’s characterization of Officer Hatler’s
request to search Barnum’s rental vehicle, we still would not find that the question
guaranteed Barnum’s consent. Barnum’s “loaded” question theory is premised on a
single piece of Officer Hatler’s testimony concerning his request to search Barnum’s
rental vehicle: “I just asked him if there was anything illegal in the vehicle and if I
could search it.” According to Barnum, the question’s compound phrasing placed him
between Scylla and Charybdis, requiring him either to give consent or appear to be
concealing contraband. However, Barnum’s premise does not support the conclusion
that the question’s compound phrasing compelled Barnum to respond “yes.” A simple
answer of “no” to Officer Hatler’s allegedly “loaded” question would have denied
consent to the search and presumably terminated the encounter. Cf. Florida v.
Bostick, 501 U.S. 429, 437 (1991) (“[A] refusal to cooperate, without more, does not
furnish the minimal level of objective justification needed for a detention or seizure.”).

       In any event, Barnum’s second contention also fails because the allegedly
compound question pertained only to the search of Barnum’s rental vehicle, not to the
search of his person. After Barnum voluntarily consented to the search of his person,
which revealed a crack pipe and $305 in cash, Officer Hatler placed Barnum under
arrest. As a result, Officer Hatler could have properly searched Barnum’s rental
vehicle, without his consent, for further evidence relevant to the drug offense for
which Barnum had been arrested. See Arizona v. Gant, 556 U.S. ---, No. 07-542, slip
op. at 10 (Apr. 21, 2009) (concluding that police may “search a vehicle incident to a
recent occupant’s arrest” when “the arrestee is unsecured and within reaching distance
of the passenger compartment at the time of the search” or when “it is ‘reasonable to
believe evidence relevant to the crime of arrest might be found in the vehicle’”
(quoting Thornton v. United States, 541 U.S. 615, 632 (2004) (Scalia, J., concurring
in judgment))). Therefore, we reject Barnum’s second contention.

       Moreover, the record demonstrates that the personal and environmental factors
set out in Esquivias support the district court’s finding that Barnum’s consent was

                                           -8-
voluntary. At the time of the encounter, Barnum was thirty-nine years old and
possessed some college education. See United States v. Comstock, 531 F.3d 667, 677
(8th Cir.) (noting that the defendant’s status as an “adult, of apparently average
intelligence” favored a finding that his consent was voluntarily given), cert. denied,
555 U.S. ---, 129 S. Ct. 590 (2008). Based on his previous arrests, we may infer that
Barnum was aware of the rights afforded criminal suspects. See United States v.
Griffith, 533 F.3d 979, 985 (8th Cir. 2008). Barnum was only detained for twelve to
fifteen minutes before he gave his consent to the searches. See United States v.
Becker, 333 F.3d 858, 861 (8th Cir. 2003) (holding that a thirty-minute detention
before the defendant consented to the challenged search was “brief”). Officer Hatler
did not threaten or intimidate Barnum and made no promises or misrepresentations to
induce his consent. See Griffith, 533 F.3d at 985. Barnum was situated behind his
rental vehicle on the side of the road in broad daylight when he gave the consent, and
he was not in police custody. See United States v. Flores, 474 F.3d 1100, 1104 (8th
Cir. 2007) (finding that a daytime, roadside setting was not unduly coercive).
Additionally, Barnum did not object to the searches at any time and was cooperative
throughout the encounter. See Becker, 333 F.3d at 861. Thus, the district court did
not clearly err in finding that the totality of the circumstances demonstrated that
Officer Hatler reasonably believed that Barnum voluntarily consented to the search
of his person and his rental vehicle. See Esquivias, 416 F.3d at 700-01.

      B. Purging the Taint of the Allegedly Illegal Traffic Stop

       “[A] voluntary consent to search, ‘which was preceded by an illegal police
action, does not automatically purge the taint of an illegal detention.’” Esquivel, 507
F.3d at 1160 (quoting Becker, 333 F.3d at 862). To purge the taint, the voluntary
consent must be an independent, lawful cause of the search, as determined by the three
factors discussed in Brown v. Illinois: (1) the temporal proximity between the Fourth
Amendment violation and the grant of consent to search; (2) the presence of any
intervening circumstances; and (3) the purpose and flagrancy of the officer’s Fourth

                                         -9-
Amendment violation. See Brown, 422 U.S. at 603-04; United States v. Herrera-
Gonzalez, 474 F.3d 1105, 1111 (8th Cir. 2007).

       Here, although the district court did not make specific findings concerning each
Brown factor, we can only conclude that the district court found that the Brown factors
favored the Government based on the court’s citation to United States v. Esquivel and
its conclusion that “the defendant’s subsequent voluntary consent [to the searches]
under these circumstances rendered the issue regarding the validity of the initial stop
irrelevant.” See Esquivel, 507 F.3d at 1158-60 (finding it unnecessary to address the
validity of the traffic stop where the Brown factors demonstrated that the defendant’s
voluntary consent purged the taint of the alleged Fourth Amendment violation); see
also Walton v. Arizona, 497 U.S. 639, 653 (1990) (“Trial judges are presumed to
know the law and to apply it in making their decisions.”), overruled on other grounds,
Ring v. Arizona, 536 U.S. 584, 609 (2002).6 In reviewing such an implicit finding,7
we will “uphold a district court’s decision on a motion to suppress despite [a] lack of
factual findings if, on review of the record, [we] find that ‘any reasonable view of the

      6
        Contrary to the dissent’s assertion, the district court never erroneously
“concluded as a matter of law that . . . it [was] unnecessary to make any factual
findings concerning the disputed portions of the stop.” See post at 14, 16, 17-19.
Instead, the district court correctly concluded that a finding of fact concerning whether
Officer Hatler had probable cause to enact the traffic stop was unnecessary if
Barnum’s voluntary consent purged the taint of any alleged Fourth Amendment
violation. United States v. Barnum, No. 3:07-cr-0587, slip op. at 4 (S.D. Iowa Mar.
31, 2008) (“[s]ubsequent events demonstrate that the issues in this case do not depend
in any way upon the finding of probable cause to stop the vehicle” (emphasis added)).
In so doing, the district court did not conclude that findings of fact concerning the
other disputed portions of the traffic stop—those related to the voluntariness of
Barnum’s consent or the purging the taint analysis—were unnecessary.
      7
        We agree with the dissent that specific findings of fact concerning the Brown
factors would have assisted our review, and we suggest that the better practice is for
a district court to make and identify all findings of fact necessary to its legal
conclusion. See Fed. R. Crim. P. 12(d).

                                          -10-
evidence supports the district court’s decision.’” See United States v. Bloomfield, 40
F.3d 910, 913-15 (8th Cir. 1994) (en banc) (alterations omitted) (quoting United
States v. Harley, 990 F.2d 1340, 1341 (D.C. Cir. 1993)); see also United States v.
Cortez-Palomino, 438 F.3d 910, 912 n.3 (8th Cir. 2006) (per curiam) (same).8

       In considering the first Brown factor, the temporal proximity between the
Fourth Amendment violation and the grant of consent to search, we recognize that
“the closer this period, the more likely the defendant’s consent was influenced by, or
the product of, the police misconduct.” See United States v. Simpson, 439 F.3d 490,
495 n.3 (8th Cir. 2006). Here, the record demonstrates that Barnum gave his consent
twelve to fifteen minutes after the allegedly illegal traffic stop. This twelve to fifteen
minute interval supports a finding that the taint of any illegality was purged. See
Esquivel, 507 F.3d at 1160 (finding that a period of nine to ten minutes between “the
time from which the stop became illegal to the time of the consent” suggested that the
taint was purged); United States v. Palacios-Suarez, 149 F.3d 770, 773 (8th Cir. 1998)
(finding that a nine-minute period between the start of the violation and the consent
suggested that the taint was purged). Consequently, the first Brown factor favors the
Government.

       Under the second Brown factor, the presence of any intervening circumstances,
we recognize that an intervening circumstance between the Fourth Amendment
violation and the defendant’s consent indicates that the consent was made of the
defendant’s free will and “that the [officer] was not attempting to exploit an illegal
situation.” Grajeda, 497 F.3d at 882 (quoting United States v. Moreno, 280 F.3d 898,


      8
       Contrary to the dissent’s assertion, we need not and do not make any factual
determinations concerning the Brown factors. See post at 14. Rather, we are charged
with reviewing the record to determine whether the court’s legal conclusion—that
Barnum’s consent purged the taint of any alleged Fourth Amendment violation—is
supported by “any reasonable view of the evidence.” See Bloomfield, 40 F.3d at 914-
15.

                                          -11-
901 (8th Cir. 2002)). Here, the record shows that Officer Hatler returned Barnum’s
license and vehicle rental agreement and told Barnum that the traffic stop was over
before asking to search his person and vehicle. Because this occurred after the
allegedly illegal traffic stop but prior to Barnum’s consent, we find that Officer
Hatler’s return of Barnum’s paperwork and his declaration that the traffic stop was
over constitute intervening circumstances. See Esquivel, 507 F.3d at 1160 (“[T]he
Trooper’s announcement that the traffic stop was over and [the defendant] was free
to leave was also an intervening circumstance between the presumed illegal detention
and the consent.”); cf. United States v. Jenson, 462 F.3d 399, 407 (5th Cir. 2006)
(“[E]vidence that (a) [the defendant] knew he was free to leave or (b) that his license
had been returned to him . . . might be viewed as intervening circumstances.”). Thus,
the second Brown factor also favors the Government.

       With respect to the third Brown factor, the purpose and flagrancy of the
officer’s Fourth Amendment violation, we recognize that a police officer’s purposeful
or flagrant misconduct may demonstrate a causal connection between the violation
and the consent. See Brown, 422 U.S. at 603-04. A Fourth Amendment violation may
be purposeful or flagrant under various circumstances, including where the violation
“was investigatory in design and purpose and executed ‘in the hope that something
might turn up.’” Herrera-Gonzalez, 474 F.3d at 1113 (quoting Simpson, 439 F.3d at
496). Here, a reasonable view of Officer Hatler’s testimony supports a finding that
he did not act purposefully or flagrantly by initiating the allegedly illegal traffic stop.
According to his testimony, Officer Hatler initiated the traffic stop as part of his
routine patrol, doing so only after he observed the rental vehicle’s malfunctioning
center taillight, a violation of Iowa Code § 321.387. Assuming, then, that Officer
Hatler’s observation was objectively unreasonable,9 a reasonable view of Officer

      9
       Our assumptions concerning the allegedly illegal traffic stop are limited to
those necessary to establish a Fourth Amendment violation. See Grajeda, 497 F.3d
at 882. Here, we need only assume that Officer Hatler’s observation concerning the
rental vehicle’s taillight was objectively unreasonable to establish the Fourth

                                           -12-
Hatler’s testimony is that he initiated the stop because of an “unreasonable mistake
of fact . . . [which] does not constitute the type of blatantly unconstitutional or flagrant
behavior condemned in Brown.” See Simpson, 439 F.3d at 496. Because a reasonable
view of the evidence supports the district court’s implicit finding, we need not choose
between this view and Barnum’s competing theory concerning the third Brown
factor,10 nor must we remand for an explicit finding of fact. See Bloomfield, 40 F.3d
at 915 (holding that remand is unnecessary where the district court states its legal
basis for denying the motion to suppress on the record and a reasonable view of the
evidence supports its decision). Thus, the third Brown factor also favors the
Government.

       Because a reasonable view of the evidence demonstrates that the Brown factors
favor the Government, we find that the district court did not err in its conclusion that
Barnum’s voluntary consent to the searches purged the taint of any Fourth
Amendment violation.

III.   CONCLUSION

       For the foregoing reasons, we affirm Barnum’s conviction.



Amendment violation. See Herrera-Gonzalez, 474 F.3d at 1113. We need not and
do not assume that Officer Hatler acted purposefully and flagrantly—that he knew the
taillight was working or that he had any improper motive or malicious intent in
initiating the traffic stop without probable cause. See id.
       10
         Barnum argues that Officer Hatler acted purposefully and flagrantly by
making an illegal traffic stop in the hope that a subsequent search would turn up
illegal activity. Barnum bases his theory on Officer Hatler’s testimony that he knew
of the Traveler Motel’s reputation for illegal activity, that he knew Barnum’s rental
vehicle had been parked at the Traveler Motel, that he initiated the traffic stop as soon
as the rental vehicle pulled out of the Traveler Motel parking lot, and that his cruiser
video camera failed to record the traffic stop.

                                           -13-
BYE, Circuit Judge, dissenting.

       I dissent from the majority’s cavalier usurpation of the district court’s authority
to make evidentiary findings on contested issues of fact. Barnum specifically argued
to the district court that there was no probable cause for his traffic stop because his
center taillight was functioning properly, and Officer Hatler knew it was working
properly yet stopped him anyway in the hope of uncovering criminal activity. The
district court concluded as a matter of law that “[s]ubsequent events demonstrate that
the issues in this case do not depend in any way upon the finding of probable cause
to stop the vehicle.” Thus, the district court found it unnecessary to make any factual
findings concerning the disputed portions of the stop. As explained below, this
conclusion of law is incorrect. Instead of correcting the district court’s erroneous
legal conclusion, the majority—apparently recognizing it does in fact matter whether
Officer Hatler purposely fabricated a reason for stopping Barnum—determines that,
if there was a Fourth Amendment violation, it was only because Officer Hatler made
a reasonable mistake of fact. By doing so, the majority assesses the record, assumes
the district court implicitly made a factual finding that it expressly stated it was not
making, and makes factual determinations that should have been made by, and are
solely within the province of, the district court.

       I agree with the majority’s conclusion that Barnum’s consent was voluntary.
Finding Barnum’s consent was voluntary, however, “is not the end of our inquiry.”
United States v. Esquivel, 507 F.3d 1154, 1160 (8th Cir. 2007). “Because voluntary
consent to search, which was preceded by an illegal police action, does not
automatically purge the taint of an illegal detention, we must next determine if the
voluntary consent was an independent, lawful cause of the discovery of the
[incriminating evidence].” Id. (internal quotation marks omitted). To determine
whether the consent was sufficiently attenuated from the illegal detention, we
consider: “(1) the temporal proximity of his consent and the prior Fourth Amendment
violation; (2) the presence of intervening circumstances; and (3) the purpose and

                                          -14-
flagrancy of the official misconduct.” United States v. Becker, 333 F.3d 858, 862 (8th
Cir. 2003). Of these, “the purpose and flagrancy of the official misconduct is ‘the
most important factor because it is directly tied to the purpose of the exclusionary
rule–deterring police misconduct.’” United States v. Herrera-Gonzalez, 474 F.3d
1105, 1111 (8th Cir. 2007) (quoting United States v. Simpson, 439 F.3d 490, 496 (8th
Cir. 2006)).

      We have “found purposeful and flagrant conduct where: (1) the impropriety of
the official’s misconduct was obvious or the official knew, at the time, that his
conduct was likely unconstitutional but engaged in it nevertheless; and (2) the
misconduct was investigatory in design and purpose and executed in the hope that
something might turn up.” Simpson, 439 F.3d 490, 496 (8th Cir. 2006). The majority
correctly notes that we must presume Barnum’s center taillight was functioning
properly. If we assume the taillight was working, there are two possible scenarios
concerning the traffic stop: either Officer Hatler mistakenly concluded the taillight
was malfunctioning, or he in fact knew it was working properly. I agree with the
majority that if it is the former, then Officer Hatler’s unreasonable mistake of fact
“does not constitute the type of blatantly unconstitutional or flagrant behavior
condemned in Brown.” Ante at 13.11

       If, however, Officer Hatler was aware the taillight was functioning properly (or
never bothered to look at the taillight) before stopping Barnum, then this is precisely
the type of purposeful and flagrant misconduct that taints Barnum’s subsequent
consent to search. If Officer Hatler simply fabricated a reason for stopping Barnum,
then the impropriety of his misconduct would have been obvious, and he would have
known such conduct was unconstitutional. Moreover, there would have been no

      11
         It is worth noting there is no evidence to explain how, if the taillight was
functioning properly, Officer Hatler could have mistakenly concluded it was broke
during the twenty seconds in which he was following directly behind Barnum’s
vehicle.

                                         -15-
purpose for fabricating a reason to stop Barnum other than to hope something might
turn up. To rule otherwise would allow police officers to fabricate reasons for
stopping motorists so long as the officers inform the suspects that the fabricated
purpose of the stop is complete before obtaining their consent. If police officers stop
motorists for reasons they know to be false, then those officers are engaging in
conduct they know to be unconstitutional. Such a blatant disregard of constitutional
rights taints any subsequent consent to search the officers may receive.

       Therefore, the district court incorrectly concluded as a matter of law that the
circumstances of the stop were immaterial to Barnum’s motion to suppress. To the
contrary, the circumstances of the stop were critical to ruling on the motion to
suppress. Instead of correcting the legal error, recognizing the need for further
findings of fact, and remanding to the district court, the majority engages in its own
assessment of the evidence based upon a “reasonable view of Officer Hatler’s
testimony.” Ante at 13. Even more remarkable, the majority—in a footnote—
constructs an entirely new and legally unsupported rule in holding that our
assumptions “are limited to those necessary to establish a Fourth Amendment
violation” such that we “need not and do not assume that Officer Hatler acted
purposefully and flagrantly—that he knew the taillight was working or that he had any
improper motive or malicious intent in initiating the traffic stop without probable
cause.” Ante at 13 n.9. The majority claims that, when a district court presumes a
Fourth Amendment violation but fails to make any findings concerning the nature of
the violation, this Court—if the specifics surrounding the violation are in fact
relevant—will simply assume the least culpable conduct possible of violating the
constitution.

        If the majority is relying on our statement in United States v. Bloomfield, 40
F.3d 910, 915 (8th Cir. 1994) (en banc), that we will affirm in the absence of express
factual findings so long as “any reasonable view of the evidence supports the district
court’s decision,” our subsequent cases have rejected the majority’s application of this

                                         -16-
principle to the present case. The principle enunciated in Bloomfield generally applies
when a district court correctly articulates the law and reaches a result such that certain
factual findings are implicit in the lower court’s holding.12 For example, when the
district court correctly articulates that the legal principle governing a motion to
suppress is the existence of probable cause, and denies the motion to suppress without
making factual findings, we can conclude the district court implicitly found probable
cause, and we need not remand for express factual findings so long as any reasonable
view of the evidence supports a finding of probable cause.

       If, however, the district court reaches an erroneous legal conclusion that it
believes obviates the need for relevant factual determinations, we must correct the
legal error and remand for further proceedings. In such cases, the “absence of an
explicit factual finding . . . precludes us from resolving the appeal at this juncture.”
United States v. Khabeer, 410 F.3d 477, 483 (8th Cir. 2005). The majority avoids this
logic by stating it is simply “reviewing the record to determine whether the district
court’s legal conclusion—that Barnum’s consent purged the taint of any alleged
Fourth Amendment violation—is supported by any reasonable view of the evidence.”
Ante at 11 n.8 (internal quotation marks and citation omitted). The majority, however,
makes no mention of the district court’s preceding legal conclusion that “[s]ubsequent
events demonstrate that the issues in this case do not depend in any way upon the




      12
         Notably, the district court in Bloomfield made some factual findings in favor
of the government based on the police officer’s testimony, which indicated the court
treated the officer’s testimony as credible. Bloomfield, 40 F.3d at 915. In this case,
the district court did not make any factual findings from which we can presume the
court found any portion of Officer’s Hatler’s testimony to be credible. It is entirely
possible the court found Officer Hatler’s testimony to be false, but still denied the
motion based on its determination that the circumstances of the stop were irrelevant;
as previously explained, such an interpretation of the law would be wrong.

                                          -17-
finding of probable cause to stop the vehicle.”13 As discussed, this legal conclusion
is incorrect. The majority ignores this erroneous statement of the law, and instead
presumes that the unmade necessary factual findings—those the district court
expressly stated it was not making—were implicitly determined in favor of the
government. In doing so, the majority fails to heed the Supreme Court’s admonition
that “it is the function of the District Court rather than the Court of Appeals to
determine the facts.” Murray v. United States, 487 U.S. 553, 543 (1988).

        Because the district court’s result was premised solely on an erroneous legal
conclusion, we should not scour an undeveloped record for any reasonable view of the
evidence to support the district court’s result. Bloomfield is meant to apply when “the
trial court omits a finding apparent on the face of the record, or when, under any
possible view of the record, the district court could have reached but one result.”
Bloomfield, 40 F.3d at 914 (quoting United States v. Williams, 951 F.2d 1287, 1290-
91 (D.C. Cir. 1991)). Had the district court correctly recognized that Barnum’s
motion to suppress should be granted if Officer Hatler fabricated a reason for
initiating the traffic stop, but denied his motion to suppress without making any
findings concerning the stop, then we could presume the court implicitly determined
the facts in favor of the government.

       In this case, however, the district court’s erroneous legal conclusion precludes
application of Bloomfield and requires a remand to the district court. It defies logic
for the majority to assume the district court implicitly made a specific factual finding


      13
        The majority claims this statement simply means the district court correctly
concluded that a finding of probable cause was unnecessary if Barnum’s consent
purged the taint of any Fourth Amendment violation. Ante at 10 n.6. Of course, this
ignores the fact that whether Barnum’s consent purged the taint of the violation was
dependent upon the finding of probable cause; if Officer Hatler knew there was no
probable cause, then Barnum’s consent could not have purged the constitutional
violation.

                                         -18-
concerning Officer Hatler’s observations when the district court expressly
stated—because of an incorrect legal conclusion— that it was not making any findings
in that regard. It is one thing to apply Bloomfield to facts the court must have
implicitly made, it is another thing entirely to apply Bloomfield to facts the court
expressly declined to make. While doing so is a convenient method of pretending the
district court’s erroneous legal conclusion had no effect on the outcome, convenience
is no substitute for rigorous analysis and a just result.

       Moreover, the majority, in assessing the evidence, incorrectly implies Barnum’s
theory lacks support in the record. Barnum presented maintenance records reflecting
no reported problems with the taillight either before or after the traffic stop in
question. In addition, employees of the service center testified it is common practice
to check the taillight and to note any malfunction or necessary repairs on the service
records for that vehicle. Furthermore, Officer Hatler had already come across
Barnum’s vehicle in the parking lot of a hotel known as a frequent site of criminal
activity, thereby increasing his motivation for stopping Barnum in the hope of
uncovering criminal activity. In contrast, the only evidence the taillight was
malfunctioning at the time of the stop was Officer Hatler’s testimony. In light of this
evidence, the district court could conclude the taillight was working properly at the
time of the stop. If it determines the light was working properly, the district court
could also conclude Officer Hatler never believed the taillight was malfunctioning.
Officer Hatler followed directly behind Barnum’s vehicle for twenty seconds, and it
is hard to see how Officer Hatler could have mistakenly believed the taillight was not
working properly. While the majority may have such faith in the sanctity of police
officers to find such a scenario impossible as a matter of law, I believe the district
court should resolve this contested factual issue. It is not our responsibility to
determine which interpretation of the evidence is more reasonable. Rather, the district
court should make its own factual findings relevant to Barnum’s motion to suppress,
which we can then review for clear error.



                                         -19-
        I also disagree with the majority’s assessment of the temporal proximity factor.
The majority states that Barnum gave his consent to search twelve to fifteen minutes
after the allegedly illegal traffic stop. In doing so, the majority is calculating the time
between when Officer Hatler first initiated the traffic stop and when Barnum gave his
consent. This fails to recognize, however, that, if the traffic stop was unconstitutional,
then the Fourth Amendment violation continued until the non-consensual portion of
the encounter ended, i.e., when Officer Hatler returned Barnum’s paperwork and
informed him that the purpose of the stop was complete. If we are assessing the taint
of the Fourth Amendment violation, logic dictates that we should consider the time
period between when the Fourth Amendment violation ends and when the consent to
search is given. By concluding otherwise, courts reward officers for prolonging
unconstitutional conduct. Therefore, in assessing the temporal proximity between the
Fourth Amendment violation and the consent to search, I believe we should consider
the time period from the end of the constitutional violation, not the beginning.14

      Accordingly, I dissent.
                      ______________________________




      14
         To the extent our precedent states otherwise, ante at 11, I believe such a rule
is illogical, unsound, and should be reconsidered.

                                           -20-
