           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2    United States v. Lopez-Arias et al.        No. 02-5154
        ELECTRONIC CITATION: 2003 FED App. 0336P (6th Cir.)
                    File Name: 03a0336p.06                                                   _________________
                                                                                                  COUNSEL
UNITED STATES COURT OF APPEALS
                                                                          ARGUED:          Nina Goodman, UNITED STATES
                  FOR THE SIXTH CIRCUIT                                   DEPARTMENT OF JUSTICE, Washington, D.C., for
                    _________________                                     Appellant. Patrick J. Bouldin, WESTERN KENTUCKY
                                                                          FEDERAL COMMUNITY DEFENDER, INC., Louisville,
 UNITED STATES OF AMERICA ,      X                                        Kentucky, Martin N. Kute, Louisville, Kentucky, for
          Plaintiff-Appellant,    -                                       Appellees. ON BRIEF: Nina Goodman, UNITED STATES
                                  -                                       DEPARTMENT OF JUSTICE, Washington, D.C., Terry M.
                                  -  No. 02-5154                          Cushing, ASSISTANT UNITED STATES ATTORNEY,
           v.                     -                                       Louisville, Kentucky, for Appellant. Patrick J. Bouldin,
                                   >                                      WESTERN KENTUCKY FEDERAL COMMUNITY
                                  ,                                       DEFENDER, INC., Louisville, Kentucky, Martin N. Kute,
 DAVID LOPEZ-ARIAS and            -
 ANTONIO EGUES,                                                           Louisville, Kentucky, for Appellees.
                                  -
        Defendants-Appellees. -                                                              _________________
                                  -
                                 N                                                               OPINION
      Appeal from the United States District Court                                           _________________
   for the Western District of Kentucky at Louisville.
   No. 00-00094—Thomas B. Russell, District Judge.                          JULIA SMITH GIBBONS, Circuit Judge. Federal drug
                                                                          enforcement agents arrested defendants-appellees David
                      Argued: May 2, 2003                                 Lopez-Arias and Antonio Egues for trafficking in cocaine.
                                                                          After a federal grand jury indicted them, defendants moved to
            Decided and Filed: September 19, 2003                         suppress certain evidence, alleging that it was obtained as a
                                                                          result of an unlawful arrest. The district court granted
         Before: CLAY and GIBBONS, Circuit Judges;                        defendants’ motion to suppress, and the government appeals
                  CLELAND, District Judge.*                               from that ruling. For the following reasons, we affirm the
                                                                          district court’s decision to suppress the evidence.
                                                                                                       I.
                                                                            On or shortly before July 26, 2000, law enforcement
                                                                          officials in Louisville, Kentucky, received a tip from a
                                                                          confidential informant, whose reliability had not yet been
                                                                          tested, that two Hispanic men from Las Vegas were traveling
    *
     The Ho norable Robert H. Cleland, United States District Judge for   to Louisville to distribute cocaine. The informant told the
the Eastern District of Michigan, sitting by designation.

                                  1
No. 02-5154         United States v. Lopez-Arias et al.    3    4    United States v. Lopez-Arias et al.         No. 02-5154

police that the two men intended to stay at the Collier Motel   agents following defendants to stop the Crown Victoria. Four
in Louisville and that a man named Jose intended to deliver     DEA agents in four unmarked DEA vehicles activated their
the proceeds of a drug sale to these two men at the motel.      sirens and emergency lights and stopped the Crown Victoria.
According to the informant, Jose would be driving a white       The four DEA agents, with weapons drawn, ordered
Toyota with a certain license plate number. A search of state   defendants to exit the Crown Victoria. The DEA agents then
motor vehicle records revealed that the license plate number    handcuffed defendants and placed them into separate DEA
identified by the informant was registered to Jose Barrera      vehicles. The DEA agents drove the defendants from the
Santiesteban, 104 E. Kingston, Apt. 1, Louisville, Kentucky.    scene of the stop on the street to an adjacent convenience
                                                                store parking lot, where they were removed from the DEA
  The federal Drug Enforcement Administration (DEA)             vehicles, read their Miranda rights, and questioned separately.
began surveillance of the Collier Motel on the afternoon of
July 26, 2000. During their surveillance, DEA agents               The DEA agent questioning Egues conducted a pat-down
discovered that a 1992 blue Ford Crown Victoria, which was      search of him and found the motel key in his pocket. Egues
parked in front of Room 17 of the motel, was registered to      stated that the motel room was registered in his name. The
David Lopez-Arias, whose address matched Santiesteban’s         DEA agent asked Egues for consent to search the motel room
except for the apartment number. At around 4:00 p.m. on         and presented him with a written consent form, which Egues
July 26, defendants Lopez-Arias and Egues exited Room 17        signed within ten to fifteen minutes from the time the DEA
and departed in the Crown Victoria. The undercover DEA          agents stopped the Crown Victoria. A little more than twenty
agents followed defendants as they visited several locations,   minutes from the time the DEA agents stopped the Crown
including an office supply store, where they purchased a set    Victoria, Lopez-Arias gave the DEA agent questioning him
of digital scales of the type often used to weigh drugs.        verbal consent to search the motel room.
Defendants then returned to the motel.
                                                                  After receiving consent from both defendants, DEA agents
  At around 8:15 that evening, Santiesteban arrived at the      searched Room 17 of the Collier Motel and found a yellow
motel driving the white Toyota described by the informant.      plastic bag containing twenty-five individually wrapped
After speaking with Lopez-Arias, who was outside working        packages of cocaine, a black notebook containing $4,100 in
on the Crown Victoria, Santiesteban went into Room 17 with      cash, clear plastic wrappers containing cocaine residue, and
Lopez-Arias. DEA agents observed Santiesteban carrying a        two sets of digital scales. DEA agents then formally arrested
yellow plastic bag into Room 17. Santiesteban stayed in         defendants and reread them their Miranda rights.
Room 17 for about forty-five minutes before leaving in his
white Toyota. DEA agents followed Santiesteban out of the         The federal grand jury charged defendants with possessing
vicinity of the motel and then stopped him. A drug-sniffing     more than 500 grams of cocaine with the intent to distribute.
dog alerted on the Toyota, but the DEA agents did not find      Before trial, defendants moved to suppress all the evidence
any drugs in the Toyota.                                        that the DEA agents found in the motel room. Defendants
                                                                argued that they were arrested without probable cause and
  Defendants departed from the motel in the Crown Victoria      that they did not voluntarily grant consent to search the motel
shortly after Santiesteban and were followed by DEA agents.     room. The district court referred defendants’ motion to a
Once the drug-sniffing dog alerted on Santiesteban’s Toyota,    magistrate judge, who conducted an evidentiary hearing. The
a DEA agent on the scene with Santiesteban ordered the DEA      magistrate judge issued proposed findings of fact and
No. 02-5154          United States v. Lopez-Arias et al.       5    6    United States v. Lopez-Arias et al.          No. 02-5154

conclusions of law and recommended that the motion to               A. The Seizure
suppress be denied. The magistrate judge found that
defendants voluntarily gave their consent to search the motel         The government does not argue that the DEA agents had
room during a permissible investigatory detention that had not      probable cause to arrest defendants at the time defendants
yet risen to the level of an arrest.                                granted their consent to search the motel room. The
                                                                    government instead argues that defendants gave their consent
   Defendants objected, and the district court rejected the         to search the motel room during a permissible investigatory
magistrate judge’s recommendation and granted defendants’           detention that had not yet risen to the level of an arrest.
motion to suppress. The district court found that the stop had
risen to the level of an arrest by the time defendants gave their     Since the Supreme Court decided Terry v. Ohio, 392 U.S. 1
consent to search the motel room, that no probable cause            (1968), courts have recognized that a law enforcement officer
existed to support the arrest, and that the consent was             who lacks probable cause to justify an arrest may nevertheless
therefore tainted by the illegal arrest. Because the district       briefly detain an individual without violating the Fourth
court found that the consent was tainted by the illegal arrest,     Amendment if the officer possesses a reasonable and
the district court did not decide whether the consent was           articulable suspicion that the individual has committed a
otherwise voluntary. The government appeals the district            crime. United States v. Heath, 259 F.3d 522, 528 (6th Cir.
court’s ruling to suppress the evidence found in the motel          2001). The scope of this brief investigative detention,
room.                                                               however, must be limited to “the least intrusive means
                                                                    reasonably available to verify or dispel the officer’s suspicion
                               II.                                  in a short period of time.” Florida v. Royer, 460 U.S. 491,
                                                                    500 (1983). Although “[t]he scope of the intrusion permitted
   “This Court reviews the district court’s factual findings in     will vary to some extent with the particular facts and
a suppression hearing for clear error and reviews the district      circumstances of each case,” in no event may law
court’s conclusions of law de novo.” United States v.               enforcement officers “seek to verify their suspicions by
Waldon, 206 F.3d 597, 602 (6th Cir. 2000). “A factual               means that approach the conditions of arrest.” Id. at 500, 409.
finding will only be clearly erroneous when, although there
may be evidence to support it, the reviewing court on the             To determine whether an investigative detention has
entire evidence is left with the definite and firm conviction       crossed the line and become an arrest, this court considers
that a mistake has been committed. The evidence is reviewed         factors such as “the transportation of the detainee to another
in the light most likely to support the district court’s            location, significant restraints on the detainee’s freedom of
decision.” United States v. Navarro-Camacho, 186 F.3d 701,          movement involving physical confinement or other coercion
705 (6th Cir. 1999) (internal citations and quotation omitted).     preventing the detainee from leaving police custody, and the
However, “this Court reviews de novo the district court’s           use of weapons or bodily force.” United States v. Richardson,
determination as to whether certain facts establish a seizure or    949 F.2d 851, 857 (6th Cir. 1991). In Richardson, this court
detention in violation of the Fourth Amendment.” Waldon,            concluded that law enforcement officers had crossed the line
206 F.3d at 602.                                                    from an investigative detention into an arrest when they
                                                                    placed the defendant in the back of a police car. Id. at 857;
                                                                    see also United States v. Butler, 223 F.3d 368, 375 (6th Cir.
                                                                    2000) (“We have long recognized that officers cross the line
No. 02-5154          United States v. Lopez-Arias et al.       7    8     United States v. Lopez-Arias et al.          No. 02-5154

from an investigatory stop into an arrest when they place a           Moreover, in this case, defendants were not suspected of
suspect in a police vehicle for questioning.”).                     anything so dangerous as shooting a police officer, as was the
                                                                    case in Houston. In this case, defendants were suspected of
  But there is no bright line that distinguishes an investigative   possessing illegal drugs, just as were the defendants in Heath,
detention from an arrest. Royer, 460 U.S. at 506 (stating that      Butler, and Richardson. The seizure in this case was at least
there is no “litmus-paper test” for distinguishing when a           as intrusive as the seizures that this court determined were
seizure exceeds the bounds of an investigative stop). In            arrests in Heath, Butler, and Richardson. Heath, 259 F.3d at
Houston v. Clark County Sheriff Deputy John Does 1-5, 174           530-31 (recognizing that drug crimes are inherently
F.3d 809, 814-15 (6th Cir. 1999), a case relied upon heavily        dangerous but finding that the transport of the suspect
by the government, this court went so far as to decide that an      constituted an arrest); Butler, 223 F.3d at 375 (finding that
arrest had not occurred when multiple police officers stopped       placing the drug-crime suspect in a police vehicle constituted
two suspects at gunpoint, handcuffed them, and forcibly             an arrest); Richardson, 949 F.2d at 857 (same). We therefore
placed them into police vehicles. This court found that these       agree with the district court that the DEA agents had arrested
protective measures were reasonably necessary because in            defendants by the time defendants consented to the search of
Houston the officers, although lacking probable cause,              the motel room. Because the DEA agents lacked probable
reasonably believed that the suspects had just shot another         cause, the arrest was unlawful.
police officer. Id.
                                                                    B. The Consent
   In the present case, the district court did not clearly err in
finding that before defendants gave their consent to search the        The government argues that, even if defendants’ consent to
motel room, they were (1) stopped by four DEA agents                search the motel room was granted during an unlawful arrest,
brandishing firearms, (2) handcuffed, (3) placed into the           the district court nevertheless erred in suppressing the
backseats of separate DEA vehicles, (4) transported from the        evidence found in the motel room because defendants’
scene of the stop, (5) read their Miranda rights, and               consent to search, according to the government, was
(6) questioned. The government, relying on Houston, argues          voluntary. For this argument, the government primarily relies
that all these measures were reasonably necessary for the           upon United States v. Guimond, 116 F.3d 166 (6th Cir. 1997),
protection of the DEA agents. The seizure in the present case,      where this court instructed that even if a consent to search
however, was more like an arrest than the seizure this court        was granted during an illegal seizure, the consent is valid if it
considered in Houston. In addition to taking the same               was voluntary, i.e., not the result of coercion. Id. at 170-71
protective measures as did the police officers in Houston, the      (citing Ohio v. Robinette, 519 U.S. 33, 40 (1996)).
DEA agents in the present case transported defendants from
the scene of the stop and read them their Miranda rights.             It is without a doubt true that “[t]he Fourth Amendment test
Each of these additional measures made the seizure more like        for a valid consent to search is that the consent be voluntary.”
an arrest. See Heath, 259 F.3d at 531 (holding that “an             Robinette, 519 U.S. at 40. But the Supreme Court has made
investigative stop must be confined to the site of the initial      perfectly clear that the exclusionary rule may operate to
inquiry”); United States v. Obasa, 15 F.3d 603, 608 (6th Cir.       exclude evidence obtained as the result of a valid, voluntary
1994) (holding that the reading of Miranda rights during a          consent to search. In order to deter unlawful seizures, the
seizure is not dispositive but is evidence that the seizure has     Supreme Court has mandated that courts must generally
crossed the line into an arrest).                                   suppress otherwise admissible evidence obtained as a result
No. 02-5154          United States v. Lopez-Arias et al.      9    10       United States v. Lopez-Arias et al.                No. 02-5154

of an illegal seizure. Brown v. Illinois, 422 U.S. 590, 602        676 (11th Cir. 2000) (holding that “a voluntary consent to
(1975). Thus, the Court has held that “statements given            search does not remove the taint of an illegal seizure”).1
during a period of illegal detention are inadmissible even
though voluntarily given if they are the product of the illegal       To determine whether a consent to search was sufficiently
detention and not the result of an independent act of free         attenuated from an illegal seizure such that the causal chain
will.” Florida v. Royer, 460 U.S. 491, 501 (1983) (emphasis        was broken, courts must consider factors such as the length of
added); see also Kaupp v. Texas, – U.S. –, 123 S. Ct. 1843,        time between the illegal seizure and the consent, the presence
1847 (2003) (per curiam) (reconfirming “well-established           of intervening circumstances, the purpose and flagrancy of the
precedent” that requires suppression of a statement given          official misconduct, and whether the officers read the suspect
during a period of illegal seizure unless the statement was an     his Miranda rights before he consented. Kaupp, 123 S.Ct. at
act of free will sufficient to purge the primary taint of the      1847; Brown, 422 U.S. at 603-04 (finding that no single
unlawful seizure). The Court has applied this analysis to          factor is dispositive); Richardson, 949 F.2d at 858. The
exclude evidence obtained pursuant to a consent to search that     burden of persuasion regarding this issue is on the
was granted during an illegal seizure. Royer, 460 U.S. at 507-     government. Kaupp, 123 S.Ct. at 1847. In the present case,
08.                                                                the district court appropriately considered these factors and
                                                                   did not err in finding no intervening act of free will on the
   Therefore, following Supreme Court precedent, we have           part of defendants between their illegal arrest and their
repeatedly held that if a consent to search is given after an      consent to search the motel room. Defendants granted their
illegal seizure, evidence obtained pursuant to the consent to      consent to search within half an hour from the initial stop and
search must be suppressed, unless the consent is sufficiently
attenuated from the illegal seizure such that the consent is the
product of an intervening act of free will. United States v.            1
                                                                         In Guimond, a panel of this court seemingly held that if the consent
Caicedo, 85 F.3d 1184, 1190 (6th Cir. 1996); Richardson,           to search was voluntary, it does not matter that the consent occurred
949 F.2d at 858; United States v. Buchanan, 904 F.2d 349,          during an illegal seizure. 116 F .3d at 170 -71. The panel in Guimond did
355-56 (6th Cir. 1990). In other words, not only must the          not address the implications of the exclusionary rule nor did it distinguish
consent be valid, i.e., voluntary, as required by Robinette, but   the Supreme Court’s holdings in Royer, Dunaway, and Brown or this
the causal chain between the illegal seizure and the consent       court’s holdings in Caicedo, Richardson, and Buchanan. The Guimond
must be broken to avoid the consequences of the exclusionary       panel relied upon the Supreme Court’s 1996 d ecision in Robinette, but
                                                                   Robinette did not overrule Royer, Dunaway, Brown, Caicedo, Richardson,
rule. Dunaway v. New York, 442 U.S. 200, 217-19 (1979)             and Bucha nan . The Robinette Court did not address the issue of an illegal
(holding that a voluntary statement must be suppressed under       seizure. Robinette, 519 U.S. at 35 (“W e are here presented with the
the exclusionary rule if it was causally connected to an illegal   question whether the Fourth Amendment requires that a lawfully seized
seizure); Brown, 422 U.S. at 602-04 (holding that                  defendant must be advised that he is ‘free to go ’ before his consent to
voluntariness is only a threshold requirement); Buchanan, 904      search will be recognized as voluntary.” (emphasis added)). To the extent
                                                                   that Guimond conflicts with Royer, Dunaway, Brown, Caicedo,
F.2d at 355-56 (suppressing evidence obtained pursuant to a        Richardson, and Buchanan, we follow the ea rlier autho rities. Darrah v.
consent to search given during an illegal seizure even though      City of Oak Park, 255 F.3d 30 1, 310 (6th Cir. 2001) (holding that “when
the district court found that the consent was given “freely and    a later decision of this court conflicts with one of our prior published
voluntarily”); see also United States v. Santa, 236 F.3d 662,      decisions, we are still bound by the holding of the earlier case.”); see also
                                                                   Kaupp, 123 S.Ct. at 1844 (reconfirming the holding in Brown that a
                                                                   statement obtained by exploitation of an illegal arrest may not be used
                                                                   against a criminal defendant).
No. 02-5154           United States v. Lopez-Arias et al.      11    12   United States v. Lopez-Arias et al.         No. 02-5154

during the illegal arrest. There was no intervening time or          discovered in the motel room pursuant to the exclusionary
event between the illegal arrest and defendants’ consent. See        rule.
Buchanan, 904 F.2d at 356 (“Dissipation of the taint resulting
from an illegal entry ordinarily involves showing that there                                      III.
was some significant intervening time, space, or event.”
(internal quotation and citation omitted)). Furthermore, as the        For all the foregoing reasons, we affirm the district court’s
district court found, the illegality of the arrest was blatant.      ruling to suppress the evidence discovered in the motel room.
See Richardson, 949 F.2d at 859 (finding that placing a
suspect into the back of a police car for twenty minutes
without probable cause constituted a blatant constitutional
violation). Although the DEA agents read defendants their
Miranda rights, this alone was insufficient to break the causal
chain between the illegal arrest and defendants’ consent.
Kaupp, 123 S.Ct. at 1847 (holding that the giving of Miranda
warnings alone was insufficient to purge the primary taint of
the unlawful seizure).
   In Brown, the Supreme Court held that a separation of less
than two hours between an illegal arrest and a voluntary
statement was insufficient to break the causal chain between
the two when no intervening event of significance had
occurred. 422 U.S. at 604. The Court found that under such
circumstances, Miranda warnings by themselves were
insufficient to purge the taint of the illegal arrest. Id. at 602.
Therefore, the Court ruled that the statement was inadmissible
regardless of its voluntariness. Id. at 604-05. In Richardson,
this court held that evidence discovered pursuant to a consent
to search was inadmissible because the consent to search was
given twenty minutes into a blatantly illegal arrest. 949 F.2d
at 859 (“We do not believe that the taint had dissipated after
merely twenty (20) minutes of continued improper conduct.”).
In Buchanan, we held that the taint of the illegal seizure was
not purged when only approximately one hour passed
between the illegal entry and the consent to search. 904 F.2d
at 356. As in Brown, Richardson, and Buchanan, in the
present case, there was no intervening act of free will
sufficient to break the causal chain between defendants’
illegal arrest and their consent to search the motel room.
Therefore, the district court properly suppressed the evidence
