                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 09-10018                ELEVENTH CIRCUIT
                                                               JULY 6, 2009
                           Non-Argument Calendar
                                                            THOMAS K. KAHN
                         ________________________
                                                                 CLERK

                   D. C. Docket No. 05-00392-CR-J-25HTS

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

JAWAN LEQUINT MYERS,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                                 (July 6, 2009)

Before EDMONDSON, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

     Jawan Myers was convicted for possession with intent to distribute cocaine
and cocaine base. He appeals his conviction, contending that the district court

erred in denying his motion to suppress evidence of the guns and drugs seized in a

search of the home where his wife, Ruby Myers, lived.1 The district court held that

although an earlier search of the backyard was illegal, that search did not taint the

validity of the later search of the house, which is where the guns and drugs were

found.

                                                I.

         This is the second appeal involving the search of Ruby’s home. The facts of

this case are more fully discussed our first opinion, United States v. Myers, No. 07-

12669 (11th Cir. Aug. 22, 2008). The facts relevant to this appeal are as follows.

At approximately nine o’clock one morning, a team of law enforcement

officers—Detective Kipple and Officer Brown from the Jacksonville Sheriff’s

Office and FBI Special Agents Dougal and Grafton— arrived at Ruby’s house to

investigate a tip from an informant that Myers was storing guns stolen from an FBI

van, as well as a stolen go-cart, there. The police did not have a search warrant for

the house or probable cause to arrest Myers at that time.

         Detective Kipple approached the house through the gated backyard and saw



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         Ruby testified that Myers was not living at her house at the time of the search because
they were having marital problems. Myers did keep some of his things at the house, he stayed
there occasionally, and the utility bill for the house was in his name.

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an object under a black tarp. He lifted the tarp and saw a go-cart, which he

suspected was the stolen go-cart identified by the informant. Before the officers

approached Ruby’s front door, Detective Kipple told the others that he had found a

go-cart in the backyard.

      Detective Brown then walked up on the sun porch and knocked on the door,

and Ruby answered. Eventually, Myers came out onto the porch and also began

speaking with the officers. Agent Dougal asked Ruby to step outside with him.

He told Ruby that they had found a go-cart, which they believed was stolen, in the

backyard. Ruby said that she did not know the go-cart was stolen and stated that

she “didn’t care” about it.

       Agent Dougal then asked Ruby whether she would consent to a search of

the house. Ruby wanted to talk with Myers before consenting, and she and Agent

Dougal returned to the porch so Ruby could talk to Myers. On the porch, Agent

Dougal showed Ruby a written consent form and read it to her. Myers also read

the form and told Ruby that it was okay to sign it. The form stated that Ruby had

the right to refuse consent and that she had the right to stop the search at any time.

Ruby signed the form and the officers searched the house.

      At the suppression hearing, Ruby testified that she understood her rights

under the form and signed it. She also testified that she consented to the search of



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the house because she did not think that there were any drugs in the house and she

did not think the police would find anything. She was mistaken. The search of the

house revealed crack cocaine, powder cocaine, and several guns.

                                          II.

      “Review of a district court’s denial of a motion to suppress is a mixed

question of law and fact.” United States v. Delancy, 502 F.3d 1297, 1304 (11th

Cir. 2007). The district court’s fact findings are reviewed only for clear error,

while its interpretation and application of the law are reviewed de novo. Id.

      The parties do not challenge the district court’s ruling that the search of the

backyard was illegal. Therefore, “[f]or consent given after an illegal seizure to be

valid, the Government must prove two things: that the consent is voluntary, and

that the consent was not a product of the illegal seizure.” Id. at 1308 (quotation

omitted). “This two step approach is mandatory, and the government bears the

burden on both issues.” Id. In our earlier opinion, we held that the district court’s

analysis of the legality of the search was incomplete because although it found that

Ruby’s consent to the search was voluntary, it did not determine whether her

consent was tainted by the earlier illegal search of her backyard. See Myers, No.

07-12669, slip. op. at 8. On remand, the district court determined that Ruby’s

consent was not tainted by the earlier illegal search and therefore again denied



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Myers’ motion to suppress. We now review the district court’s decision about the

second step: “[w]hether the illegal entry tainted [Ruby’s] consent so that the

evidence found after the consent should be excluded.” Delancy, 502 F.3d at 1309

      Myers contends that Ruby’s consent was tainted by the illegal search of his

backyard. To determine whether the consent was tainted, we consider “whether

the consent was sufficiently an act of free will to purge the primary taint of the

unlawful invasion, or, alternatively, whether the causal connection had become so

attenuated as to dissipate the taint.” Id. We have identified three non-exclusive

factors to determine whether consent is tainted by prior illegal conduct: (1)

temporal proximity of the consent to the illegal conduct, (2) intervening

circumstances, and (3) “the purpose and flagrancy of the official misconduct.” Id.

      Applying those factors here, we agree with the district court that Ruby’s

consent was not tainted. We begin with the temporal proximity. Ruby consented

to the search approximately ten minutes after she was told about the go-cart that

Detective Kipple found in the backyard. That is close in time. As noted in

Delancy, however, we should be “mindful of the specific facts of this case.” Id. at

1311. In Delancy, we concluded that the impact of a short temporal proximity was

softened because the woman who consented to the search had not been handcuffed

or detained and the officers were polite and non-threatening. Id. The same is true



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here, and we therefore conclude, as we did in Delancy, that “timing is not the most

important factor.” Id.; compare United States v. Santa, 236 F.3d , 666–67, 678

(relying on temporal proximity in concluding that the search was tainted where the

police obtained the consent only a few minutes after they had illegally entered the

defendant’s home, handcuffed him, and forced him to the ground).

        The second factor cuts strongly against finding Ruby’s consent tainted

because she reviewed and signed a consent form, which advised her of her

constitutional rights. Ruby testified that Agent Dougal read the form to her and

she understood that she had the right to refuse consent to the search. Myers also

reviewed the form and told Ruby it was okay to sign it. That is a “thorough

notification” of her constitutional rights under the Fourth Amendment and

“constitutes an important intervening circumstance” between the illegal search of

the backyard and her consent to the search of the house. Delancy, 502 F.3d at

1311.

        The third factor also cuts against a tainted consent. The district court found

that the illegal search of the backyard “was not the cause of [Ruby’s] consent”

because she did not care about the go-cart, stolen or otherwise. It also found that

she consented to the search because she did not think there were drugs in the house

and, therefore, did not think the police would find anything. Those fact findings



                                            6
are not clearly erroneous. Based on those findings, we agree that the officers did

not exploit the discovery of the go-cart to obtain Ruby’s consent.

      We therefore conclude that the illegal search of the backyard did not taint

Ruby’s later consent to the search of her home. The district court properly denied

Myers’ motion to suppress.

      AFFIRMED.




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