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

No. 02-2378
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

MARK A. REED,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
         No. 00 CR 562-2—Rebecca R. Pallmeyer, Judge.
                          ____________
 ARGUED JANUARY 14, 2003—DECIDED NOVEMBER 13, 2003
                    ____________

 Before EASTERBROOK, RIPPLE, and ROVNER, Circuit
Judges.
  ROVNER, Circuit Judge. Mark Reed entered a conditional
guilty plea to a charge of conspiracy to distribute in excess
of 50 kilograms of marijuana, 21 U.S.C. §§ 846, 841(a)(1),
preserving his right to appeal the denial of his motion to
suppress confessions he made five or six hours after what
he contends was an illegal arrest. Although the government
argued that Reed was not arrested until well after he
confessed, the district court, working under the assumption
that Reed had been arrested illegally before he made his
confessions, concluded that his confessions were admissible
because they were sufficiently attenuated from the pur-
2                                                No. 02-2378

ported illegal arrest and thus were acts of Reed’s own free
will. We vacate that decision and remand for further
consideration.
  Around 2:30 p.m. on July 17, 2000, Reed was traveling
south on Interstate 57 near Peotone, Illinois, in a pickup
truck bearing Texas license plates and pulling a horse
trailer. The truck’s owner, Thomas Martin, was also in the
truck, although a third man, Alfonso Garnica, was driving.
In fact, Garnica was driving at a healthy clip. Illinois State
Trooper C.G. Fifield, who at the time was conducting drug
interdiction surveillance, clocked Garnica traveling at 63
m.p.h. Because Illinois restricts vehicles pulling trailers to
55 m.p.h., Fifield initiated a traffic stop. After checking
Garnica’s background on the computer terminal in his
police cruiser, Fifield learned that Garnica’s driving privi-
leges had been suspended. Fifield placed Garnica under
arrest for driving on a suspended license, but Garnica
posted bond on the spot and was immediately released.
Fifield then checked Reed’s and Martin’s backgrounds to
determine whether either was permitted to drive. Fifield
learned that both men had valid licenses, but he also
learned that both had been arrested previously for drug-
related crimes.
  Upon learning this information, Fifield asked the three
men what they were doing in Illinois. Reed explained that
Martin had come to Illinois to finalize his divorce, and that
he was assisting Martin because Martin was in poor health.
Fifield asked Reed whether he was into horses, but Reed
replied that he was not. Reed recollected that Martin then
told Fifield essentially the same story but added that he
also had come to Illinois to buy horses. Fifield on the other
hand recalled that Martin told him only that they had come
to buy horses. Fifield then became suspicious when neither
Martin nor Garnica could explain where or from whom they
had purchased the horses. And Fifield became even more
No. 02-2378                                                3

suspicious when he examined the exterior of the trailer and
observed that its three entrances were padlocked, and that
the rear ramp door was secured with three separate locks.
  By this point, Martin had slid behind the wheel of the
truck and was ready to drive away. Fifield claimed he told
the three that they were free to leave, although Reed did
not recall hearing him say this. Before they left, however,
Fifield asked Martin whether there were any guns, drugs,
or large quantities of cash in the vehicle. Martin said there
was not, but Fifield asked for permission to search the truck
and trailer. Martin consented. Fifield then directed Martin
to drive to a nearby weigh station, where additional police
awaited to assist in the search. The officers placed Reed,
Martin, and Garnica in the weigh station building. At about
4:00 p.m., the officers discovered two pink cellophane-
wrapped bundles containing $93,981 in United States
currency hidden under some hay and plywood in the
“gooseneck” of the horse trailer (the projecting front end of
the trailer overlapping the truck bed). The officers then
confronted Reed, Martin, and Garnica with the money and
asked where it came from. Martin offered the curious
explanation that the cash was the proceeds of an inheri-
tance.
  What transpired after this is significantly disputed.
According to Reed, the police advised him that he was
under arrest, placed him in handcuffs, transported him to
State Police Headquarters, and read him Miranda warn-
ings, which he acknowledged understanding by signing a
form. The form indicates that Reed waived his rights at
4:19 p.m. Reed’s claim that he was arrested around 4:00
p.m. was bolstered by an investigative report prepared by
Special Agent Robert Babcock of the U.S. Customs Service.
Babcock’s report states that Reed, Martin, and Garnica
were arrested immediately after the money was discovered
in the trailer, and notes the time of Reed’s arrest as 1600
hours.
4                                              No. 02-2378

   In contrast to Reed’s claims, Fifield asserted that Reed
was neither arrested nor placed in handcuffs. Although he
acknowledges that he gave Reed Miranda warnings, Fifield
claimed that Reed accompanied him to police headquarters
only “as a passenger.” In support of Fifield’s version of
events, the government introduced Fifield’s own police
report, which contains no information indicating that Reed
was arrested, but at the same time indicates that Garnica
had been placed under arrest for driving on a suspended
license. Fifield’s testimony was also supported, somewhat
surprisingly, by Babcock, who discredited his own report by
claiming that he had no personal knowledge of what time
Reed was arrested. Babcock claimed that he included the
information about Reed’s purported 4:00 p.m. arrest only
because other police officers told him that Reed had been
arrested at 4:00 p.m., and that he did not bother to check
whether that information was accurate. Babcock blamed his
failure to check the information in his report on time
pressures and laziness.
  After arriving at police headquarters sometime after 4:00
p.m., Reed recounted that his handcuffs (which Fifield
insists he was not wearing) were removed, that he was
placed in a conference room, and that he was not told that
he was free to leave. At about 5:30 p.m., Officer Brian
Hafner of the Bollingbrook, Illinois, Police Department, who
was participating in the investigation as part of a multi-
jurisdictional task force, entered the room and administered
a second set of Miranda warnings. Reed again waived his
rights. Reed and Hafner agree that at that point Hafner
informed Reed that he was not under arrest, although Reed
asserted that Hafner did not inform him that he was free to
leave (Hafner does not remember). Reed then agreed to
make a statement. Hafner, along with two other police
officers and another Special Agent with the U.S. Customs
Service interviewed Reed for approximately an hour, but
Reed denied having any knowledge of the money found in
No. 02-2378                                                5

the trailer or any involvement in criminal activity. The
officers then left Reed alone in the room. Hafner said he
believed the conference room was unlocked at all times.
Reed asserted that he does not know if this was true
because he never attempted to leave. Reed claimed that he
did not try to open the door because he believed he was
under arrest, so that attempting to leave would have been
interpreted by the police as an escape.
  After Reed sat alone in the conference room for approxi-
mately 45 minutes, several officers returned and initiated
further questioning. Reed continued to deny involvement in
any criminal activity, but this time he spoke more freely
about his companions, admitting that several weeks earlier
he had seen Martin with a large amount of cash and that he
had previously suspected that Martin was involved in some
sort of criminal activity. The officers then left again, this
time leaving Reed alone in the room until about 8:35 p.m.,
when additional officers arrived to take his fingerprints.
Hafner claimed that at this point he told Reed he was free
to go. Reed claimed he did not recall Hafner telling him
this. Reed claimed, however, that at this point he had a
change of heart brought about by his hours of “solitary
down time” in the conference room reflecting on the kind of
trouble he might be in. His solitary reflection led him to
consider cooperating with the police in order to limit his
criminal exposure (at the time, Illinois was prosecuting
Reed for a controlled substance violation) and, so he
thought, receive a reward for providing information about
drug traffickers. Reed announced to Hafner that he had
decided to cooperate fully, and offered to show him a ranch
near Joliet, Illinois, where Reed claimed that he, Martin,
and Garnica had delivered a shipment of marijuana earlier
in the day.
  At about 9:00 p.m., Reed left for Joliet with Hafner and
several other police officers. Reed claimed he was hand-
cuffed; Hafner claimed that Reed was not restrained. Dur-
6                                                No. 02-2378

ing the drive, Reed further admitted that he was aware that
Martin and Garnica had obtained 100 kilograms of mari-
juana in Mexico and smuggled it into Texas. Reed said he
had met up with Martin and Garnica in Texas, and that the
three had driven the drugs to the ranch using the trailer.
After Reed showed the police the ranch, Hafner returned
him to police headquarters around 10:00 p.m., and he made
additional incriminating statements. Hafner insists that it
was only after this that Reed was formally placed under
arrest.
  Claiming that he had been unlawfully arrested shortly
after 4:00 p.m. when the police discovered the money in the
trailer, Reed moved to suppress his confessions as fruit of
the poisonous tree. The district court denied his motion,
however, concluding that under Brown v. Illinois, 422 U.S.
590, 602 (1975), his statements were admissible because
they were sufficiently attenuated from any police miscon-
duct so as to be considered a product of free will. In so
ruling, the district court did not determine whether Reed
had been arrested after the discovery of the money around
4:00 p.m., as he claimed, or after he finished making his
confessions around 10:00 p.m., as the government claimed.
The district court neither attempted to resolve the compet-
ing stories, nor assessed the credibility of Reed or the police
officers. We review the district court’s legal conclusions de
novo, and its findings of fact for clear error. United States
v. Yang, 286 F.3d 940, 944 (7th Cir. 2002).
  The initial questions presented to the district court were
whether the arrest occurred at 4 p.m. or at 10 p.m., and
whether the arrest was illegal because it was not based on
probable cause. Courts recognize that police officers need
not be legal scholars, and therefore “the arresting officer’s
knowledge of the facts sufficient to support probable cause
is more important to the evaluation of the propriety of an
arrest than the officer’s understanding of the legal basis for
the arrest.” (citations omitted) Williams v. Jaglowski, 269
No. 02-2378                                                  7

F.3d 778, 783 (7th Cir. 2001). Accordingly, an arrest may
satisfy the Fourth Amendment if there was probable cause
to arrest the suspect for the precise offense the officer cited
or, lacking that, for a “closely related charge.” Id.; Driebel
v. City of Milwaukee, 298 F.3d 622, 644 (7th Cir. 2002). In
order to rely on a closely-related charge,
    the officers must show that the charge can reasonably
    be based on the same set of facts that gave rise to the
    arrest and that the charge offered as justification is one
    that “would [have recommended] itself to a reasonable
    police officer acting in good faith” at the time the arrest
    was made. [Richardson v. Bonds, 860 F.2d 1427, 1431
    (7th Cir. 1988).] The justification for the arrest cannot
    be an “ex post facto extrapolation [ ] of all crimes that
    might have been charged on a given set of facts.” Id.
Williams, 269 F.3d at 783. The district court did not make
the probable cause determination in this case, finding only
that the officers claim of probable cause was “not frivolous.”
Moreover, the government does not argue that we should
find probable cause as a matter of law based on the fact
findings before us, as the dissent suggests. Instead, the
government contends that we should remand the case for a
determination of probable cause if we cannot resolve it on
the other issue in the case. We agree that the issue cannot
be determined as a matter of law in this appeal, and
therefore turn to the issue argued in the briefs, which is
whether the confession was an unconstitutional by-product
of the (presumably) illegal arrest.
  A confession obtained through custodial interrogation
after an illegal arrest must be excluded from evidence
unless the confession is attenuated enough from the illegal
arrest that the confession is “sufficiently an act of free will
to purge the primary taint.” Brown v. Illinois, supra, 422
U.S. at 602 (quoting Wong Sun v. United States, 371 U.S.
8                                              No. 02-2378

471, 486 (1963)); United States v. Fazio, 914 F.2d 950, 957
(7th Cir. 1990). Under Brown, the threshold requirement
for admission is that the confession must have been volun-
tary for purposes of the Fifth Amendment. If so, we must
then consider the temporal proximity of the illegal conduct
to the statements, the presence of any intervening circum-
stances, and, most importantly, the purpose and flagrancy
of the police misconduct. Brown, 422 U.S. at 603-04;
Dunaway v. New York, 442 U.S. 200, 218 (1979); Rawlings
v. Kentucky, 448 U.S. 98, 106-07 (1980); Taylor v. Alabama,
457 U.S. 687, 690 (1982). The burden of proving attenuation
rests with the prosecution. Brown, 422 U.S. at 603-04.
  We have little difficulty agreeing with the district court
that Reed’s confessions were voluntary. He twice received
Miranda warnings and each time acknowledged and waived
his rights, and he testified at the suppression hearing that
the impetus for his decision to cooperate was his own self-
interest, namely the possibility of resolving his pending
state criminal charges and receiving a reward. But although
voluntariness is an important factor in the attenuation
analysis, it is not dispositive. Brown, 422 U.S. at 603-04;
Taylor, 457 U.S. at 690.
  Next, we consider the temporal proximity of the state-
ments to the illegal arrest. The parties agree that Reed
made his statements five to six hours after being taken into
custody. The district court concluded that this length of
time favored suppression, “but only slightly.” Although this
case involves more time than in Brown, 422 U.S. at 604-05
(two hours), it involves about the same amount of time as
in Taylor, 457 U.S. at 691 (six hours), where, like Brown,
the statements were excluded. Nevertheless, there is no
“bright-line” test for temporal proximity. See Taylor, 457
U.S. at 691; Fazio, 914 F.2d at 958 & n.11; see also
Dunaway, 442 U.S. at 220 (Stevens, J., concurring) (“the
temporal relationship between the arrest and the confession
No. 02-2378                                                 9

may be an ambiguous factor”); Taylor, 457 U.S. at 700 n.6
(O’Connor, J., dissenting) (illegal arrest can be exploited by
a lengthy detention as easily as a brief detention). Indeed,
in Rawlings, the Court held that a confession made only 45
minutes after an illegal arrest was admissible. 448 U.S. at
107-08. Accordingly, to draw any conclusions from timing of
Reed’s confessions, we must consider the temporal proxim-
ity factor in conjunction with the presence of intervening
circumstances. See Fazio, 914 F.2d at 958.
  The district court found no significant intervening cir-
cumstances present in this case which would purge the
taint of the allegedly illegal arrest. The government urges
us to focus on Reed’s concessions that he twice received
Miranda warnings and that he made his choice to cut his
losses and look out for his self-interest after a period of
“solitary down time” and reflection. But the Supreme Court
rejected this argument in both Brown, 422 U.S. at 605,and
Taylor, 457 U.S. at 690, stating that Miranda warnings by
themselves do not suffice to purge the taint of an illegal
arrest. That is because the question is not simply whether
Reed’s confessions should have been excluded as involun-
tary under the Fifth Amendment (where Miranda warnings
are relevant). Rather, the question is whether the confes-
sions should have been excluded under the Fourth Amend-
ment as the product of an illegal arrest. The exclusionary
rule, when used to effectuate the Fourth Amendment,
serves interests and policies distinct from those it serves
under the Fifth Amendment. See Taylor, 457 U.S. at 690-91.
The government also directs our attention to the lack of
evidence of any attempts by the police to exploit the illegal
arrest, noting that Reed’s interrogation was conducted in a
non-confrontational manner. We are not persuaded. The
type of intervening events that serve to attenuate official
misconduct are those that sever the causal connection
between the illegal arrest and the discovery of the evidence.
10                                               No. 02-2378

See Wong Sun, 371 U.S. at 491 (confession was made
several days after illegal arrest and was preceded by
arraignment and release from custody); Rawlings, 448 U.S.
at 108-09 (discovery of other incriminating evidence
implicating the defendant and causing the defendant to
confess spontaneously); Fazio, 914 F.2d at 958 & n.12
(defendant freely agreed to speak to police at site away from
scene of illegal arrest and drove his own vehicle to the
meeting); United States v. Green, 111 F.3d 515, 521 (7th
Cir. 1997) (proper arrest on unrelated charges following
initial illegal arrest); United States v. Delgadillo-Velasquez,
856 F.2d 1292, 1300 (9th Cir. 1988) (defendant’s subsequent
release from custody, appearance before magistrate judge,
discussions with counsel, or subsequent convictions on
unrelated charges). Under the circumstances of this case,
the non-confrontational interviews between Reed and the
police and Reed’s periods of solitary reflection did not
constitute significant intervening events suggesting that his
subsequent confession was attenuated from his unlawful
arrest. The district court properly concluded that there were
no intervening circumstances sufficient to purge the taint
of the allegedly illegal arrest.
  The final factor in the Brown analysis—the purpose and
flagrancy of the official misconduct—is considered the most
important because it is tied directly to the rationale under-
lying the exclusionary rule, deterrence of police misconduct.
Brown, 422 U.S. at 600; United States v. Ienco, 182 F.3d
517, 526 (7th Cir. 1999); Fazio, 914 F.2d at 958. The district
court found no evidence that the police improperly exploited
any illegal arrest or acted in “bad faith.” In so holding,
however, the district court appears to apply an unduly
narrow interpretation of this factor. In determining the
purpose and flagrancy of the official misconduct, the district
court held that the factor weighed against suppression
because Reed’s interrogation was conducted congenially and
No. 02-2378                                                11

the police judiciously administered Miranda warnings,
suggesting that the manner of the illegal arrest and
subsequent interrogation was not “calculated to cause
surprise, fright, or confusion.” E.g., Brown, 422 U.S. at 605.
But that inquiry, although relevant, is not complete,
because “purposeful and flagrant” misconduct is not limited
to situations where the police act in an outright threatening
or coercive manner similar to what occurred in Brown. See
Dunaway, 442 U.S. at 218-19 (rejecting attempt to distin-
guish Brown on the grounds that the police did not threaten
or abuse the defendant, and were highly protective of the
defendant’s Fifth and Sixth Amendment rights). In both
Dunaway and Taylor the police interrogated the defendants
without incident, and yet the Court held that the actions of
the police still had the sort of “quality of purposefulness”
condemned in Brown. See, e.g., Dunaway, 442 U.S. at 218.
Although Rawlings emphasized the congenial atmosphere
surrounding the defendant’s interrogation, that case
contained a significant intervening circumstance severing
the casual connection between the illegal arrest and the
confession that this case lacks. Conducting a custodial
interrogation after an illegal arrest in a congenial and non-
threatening manner does not in and of itself disprove that
the police acted in bad faith. Unwarranted detentions
following illegal seizures may demonstrate the type of
purposeful and flagrant conduct the exclusionary rule was
designed to prevent, especially if the police lack an arguable
basis for the detention. See Ienco, 182 F.3d at 528; United
States v. Butler, 223 F.3d 368, 376 (6th Cir. 2000); United
States v. Twilley, 222 F.3d 1092, 1097 (9th Cir. 2000);
United States v. Miller, 146 F.3d 274, 280 (5th Cir. 1998);
United States v. Thompson, 712 F.2d 1356, 1362 (5th Cir.
1983); see also Brown, 422 U.S. at 603 (intervening discov-
ery of probable cause cannot assure in every case that the
Fourth Amendment violation has not been unduly ex-
ploited). Without probable cause to believe that a crime has
12                                               No. 02-2378

been committed, the police may not simply seize a person
and hope that over time and after “reflection” the person
decides to cooperate. Dunaway, 442 U.S. at 218 (quoting
Brown, 422 U.S. at 605) (“arrest without probable cause had
a ‘quality of purposefulness’ in that it was an ‘expedition for
evidence’ admittedly undertaken in the hope that some-
thing might turn up”). This was the essential point of
Brown, Dunaway, and Taylor. In fact, the Brown Court
recognized that “the quality of purposefulness” can be
demonstrated when the arrest, in design and execution, is
investigatory in nature.
  Therefore, in addition to examining whether the officer’s
actions were coercive or calculated to cause surprise, fright
or confusion, the district court also must examine whether
the actions were undertaken in an effort to advance the
investigation or to embark on a fishing expedition in the
hopes that it would lead to a confession or other useful evi-
dence. Such actions would undermine the purpose of the
Fourth Amendment, and therefore are relevant to this
analysis that ultimately examines whether suppression is
necessary for purposes of deterrence or judicial integrity.
Because that determination involves issues of fact as well
as law, they are more properly addressed by the district
court in the first instance.
   The dissent opines that Reed would have confessed even
if he had been allowed to go home rather than being held
for hours, because his confession stemmed from a desire to
win favor and reward and was not a consequence of the
illegality. We cannot make that determination as a matter
of law, and the government has the burden to prove that his
confession was attributable to a factor other than the
prolonged detention following the allegedly illegal arrest.
That Reed determined it was in his best interest to coop-
erate does not somehow divorce his decision from the
unlawful detention. A person who believes that he has been
arrested and who experiences a prolonged detention may
No. 02-2378                                                13

well have a different view of what is in his “best interest”
than someone allowed to leave who is making that decision
in his own home. We cannot hold as a matter of law that
the confession in the former circumstance is attenuated
enough from the illegal arrest that the confession is
“sufficiently an act of free will to purge the primary taint.”
Brown v. Illinois, supra, 422 U.S. at 602 (quoting Wong Sun
v. United States, 371 U.S. 471, 486 (1963)); United States v.
Fazio, 914 F.2d 950, 957 (7th Cir. 1990). That determina-
tion turns ultimately on the district court’s resolution of the
factors set forth above, considered in light of our analysis
here.
  As was mentioned, all of this presupposes that Reed in
fact was arrested without probable cause around 4:00 p.m.,
just after the police discovered the money in the trailer, as
he contended and the district court assumed. A separate
issue is whether Reed accompanied the police to headquar-
ters voluntarily and was arrested only after he decided to
cooperate and made his confession, as the government ar-
gued in the district court. Although the parties litigated
these questions, the district court made no findings as to
when the police arrested Reed. The judgment of the district
court is VACATED, and the case is REMANDED for further
proceedings consistent with this opinion.




  EASTERBROOK, Circuit Judge, dissenting. Police stopped,
for speeding, a pickup truck pulling a horse trailer. They
discovered that Alfonso Garnica, the driver, did not have a
valid license. Before allowing the truck and its occupants to
14                                                No. 02-2378

proceed, the police needed to find out whether one of the
passengers (Thomas Martin and Mark Reed) was legally
entitled to drive. A computer check revealed that they
were—and that both also have criminal records as drug
dealers. None of the trio could explain where the horses in
the trailer had come from or what they were planning to do
with the animals. Martin said that he had purchased them
but couldn’t remember where or from whom. Horse trailers
are a popular way to move marijuana, because they have
room to hide that bulky substance and the horses’ odor
masks its smell. See United States v. Torres, 32 F.3d 225
(7th Cir. 1994); see also United States v. Portales, No.
01-4001 (7th Cir. Nov. 22, 2002) (unpublished order).
Suspicions aroused, the officers asked Martin, who owned
the truck, to permit a search; he agreed. Officers found two
bundles hidden under the floor of the trailer and covered by
bales of hay. The bundles contained about $94,000 in
currency wrapped in pink cellophane. Martin called this a
recent inheritance from his mother’s estate. At the
stationhouse, Reed concluded that he was in hot water and
that his best hope of extrication lay in switching sides. He
then revealed the trio’s drug dealings. When he learned
that assistance did not fully exonerate him, Reed moved to
suppress his statement and all evidence based on it.
   In the district court, the parties debated three questions:
first, when was Reed arrested (before the trip to the
stationhouse, as he insists, or only after his confession, as
the prosecutor contends)?; second, if the arrest preceded the
confession, was it supported by probable cause?; third, if the
arrest was not supported by probable cause, is the con-
fession admissible as “an act of free will [sufficient] to purge
the primary taint of the unlawful invasion”? Wong Sun v.
United States, 371 U.S. 471, 486 (1963). See also Kaupp v.
Texas, 123 S. Ct. 1843, 1847 (2003); Brown v. Illinois, 422
U.S. 590 (1975). Pretermitting the first two, the district
No. 02-2378                                               15

judge concluded that Reed’s statement, made about six
hours after he arrived at the stationhouse, stemmed from
a desire to win favor and reward and was not a consequence
of any illegality. This implies that Reed would have reached
the same conclusion, and given the same information
eventually, if he had been allowed to go home right after
the officers seized the cash; Reed still would have known
that the police were onto him and still would have wanted
to reduce his criminal exposure. Most of Reed’s time had
been spent in an empty and unlocked room, the judge
found; there is no doubt that his statement was the result
of free will. Moreover, the judge concluded— and this is a
finding of fact—that the police had acted in good faith and
had not sought to round up the occupants without probable
cause in the hope that, if held long enough, they would
inculpate themselves. This led the district judge to deem
the statements admissible.
  Multi-factor-balancing tests of the sort Brown created
pose tough issues for district judges. The appellate role,
by contrast, is limited to determining whether a clear er-
ror has been committed. Brown said as much. Immediately
after listing the principal considerations that should inform
the analysis, the Court added: “Our approach relies heavily,
but not excessively, on the ‘learning, good sense, fairness
and courage of federal trial judges.’ Nardone v. United
States, 308 U.S. 338, 342 (1939).” 422 U.S. at 604 n.10. This
means that we must review the district court’s resolution
deferentially and must remand (if the district judge left
some stones unturned) rather than make our own findings;
otherwise the Court would have said that it was relying on
the learning, etc., of appellate judges.
  I do not think that the district judge made any clearly
erroneous finding or abused her discretion in balancing
the factors. Brown said, and my colleagues reiterate, that
the most important consideration is whether the police have
acted in bad faith by reeling in suspects without colorable
16                                               No. 02-2378

justification. At 5:30 p.m., well before Reed confessed, the
police told him point blank that he was not under arrest;
this is not the behavior of officers determined to hold
someone until he cracks. What is more, in both Brown and
Kaupp the police lacked any cause to arrest, let alone do so
at a person’s home: both Brown and Kaupp were snatched
in handcuffs from their residences. Here the intrusion is
smaller and the justification greater. At a minimum, the
police had probable cause to believe they had probable
cause. Cf. Hunter v. Bryant, 502 U.S. 224, 228 (1991) (right
question for qualified immunity from damages is whether
“a reasonable officer could have believed that probable
cause existed”). Perhaps the district judge failed to spell out
the thinking behind some of her conclusions (such as the
proposition that Reed would have confessed eventually even
if not in custody), but I think the judge’s assessment
sufficiently straightforward that remand is unnecessary.
  Indeed, the whole “fruits” inquiry is unnecessary, for the
police had probable cause. Although application of the
Brown factors is reviewed deferentially on appeal, probable
cause is assessed independently. See Ornelas v. United
States, 517 U.S. 690 (1996). All findings of historical fact
that influence the probable-cause decision have been made;
what purpose could be served by a remand, when Ornelas
requires us to disregard the district judge’s disposition? And
if I’m wrong about the existence of probable cause, it
remains hard to see how police could be blamed for thinking
that they had enough to act; resolution of a close question
ought not imply that the losing side acted in wilful disre-
gard of the law.
  Before taking Reed to the stationhouse, officers knew that
Reed and Martin had a history of drug dealing; that the trio
had a conveyance that can be used to hide both the bulk
and the odor of marijuana; that a hidden compartment in
the trailer contained almost $100,000; and that Martin’s
No. 02-2378                                                 17

explanations for the money and the horses were not only
implausible but also so lacking in detail (how could Martin
not know where “his” horses had come from and where they
were going?) that the most likely explanation was that
someone else had furnished the trailer to conceal drugs and
their purchase money. The police found proceeds rather
than drugs. If this was not adequate to arrest the trio for
distributing drugs (the crime to which Reed eventually
confessed, telling the police that the trailer had been used
to transport marijuana north and now was taking the
receipts back south), it was more than enough to arrest
them for money laundering. The local police may not have
been able to name the federal crimes involved, but this is
not necessary. See Wayne R. LaFave, 2 Search & Seizure:
A Treatise on the Fourth Amendment §3.2(e) at 72 (3d ed.
1996) (collecting authority). Probable cause is determined
objectively, based on all facts in the collective possession of
the police. See, e.g., Whren v. United States, 517 U.S. 806
(1996). It is accordingly irrelevant what crime particular
officers thought they were arresting for, or indeed whether
they thought they were making an arrest at all. (Officers
who don’t believe that they are making an arrest may not
have any offense in mind, but this too is beside the point
when the inquiry is objective.) Nor should it matter how one
offense is “related” to another. Drug transactions doubtless
are related closely to money laundering. Most traffickers
commit both, and it may be happenstance whether the
police find the drugs before the sale, or the payment
afterward. Still, opinions making something turn on
relations among offenses are hard to reconcile with the
Supreme Court’s objective approach, so I’m loathe to pursue
the link between drug and currency offenses.
  Any currency transaction using the proceeds of a crime,
and structured so as to avoid financial reporting require-
ments, constitutes money laundering under 18 U.S.C.
18                                              No. 02-2378

§1956(a)(1)(B)(ii), (a)(3)(C). The horse trailer contained
more than nine times the trigger for reporting cash trans-
actions. Conviction under §1956 would require proof of an
illegal origin or use of the money, but the officers had rea-
son to suspect this and probable cause is something well
short of evidence required for conviction. See Illinois v.
Gates, 462 U.S. 213, 235 (1983); Beck v. Ohio, 379 U.S. 89,
96 (1964). Reed was then awaiting trial on another drug
charge; none of the occupants could explain where the
horses had come from; and the explanation (“an inheri-
tance”) for the cash was risible. Executors of decedents’
estates do not distribute bequests in pink cellophane. Likely
the police had probable cause to arrest for any of a large
number of offenses that people commit using packets of
currency. The financial-structuring guideline, U.S.S.G.
§2S1.3, offers a list. Some statutes make it a crime to
structure any transaction to avoid reporting the transfer of
more than $10,000 in cash. These have lower penalties than
§1956 but also omit any need to show that the funds have
an illegal genesis. So there was probable cause to arrest
Reed as soon as the money came to light. Further proceed-
ings in the district court would be bootless. And whether or
not this analysis of probable cause is conclusive, it shows
that the district court did not commit a clear error in
finding that the officers acted in good faith.
A true Copy:
      Teste:

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




                   USCA-02-C-0072—11-13-03
