                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-1502
                        ___________________________

                             United States of America,

                       lllllllllllllllllllll Plaintiff - Appellee,

                                           v.

                            Andrew David Brandwein,

                      lllllllllllllllllllll Defendant - Appellant.
                                       ____________

                     Appeal from United States District Court
               for the Western District of Missouri - Jefferson City
                                 ____________

                           Submitted: January 16, 2015
                             Filed: August 12, 2015
                                 ____________

Before COLLOTON, BEAM, and KELLY, Circuit Judges.
                          ____________

COLLOTON, Circuit Judge.

      Andrew Brandwein was charged with unlawful possession of firearms as a
previously convicted felon and attempted manufacturing of methamphetamine.
Before trial, he moved to suppress evidence seized during a search of his residence
and statements made as a result of the search. The district court1 denied the motion,
and a jury convicted Brandwein of unlawful possession of a firearm, but acquitted
him of the methamphetamine charge. Brandwein appeals the district court’s denial
of his motion to suppress, and we affirm.

                                          I.

       On January 8, 2011, a shed on the rural property leased by Andrew Brandwein
and his wife, Debra, caught fire. Two neighbors placed a call for emergency
assistance and then approached the nearby house where the Brandweins lived. One
of the neighbors knocked on the door and shouted to determine if anyone was present,
but received no response. Concerned that a pickup truck parked very close to the
burning shed would catch fire, the neighbor moved the truck using keys he found in
the truck’s ignition. The neighbor also noticed a small dog inside the pickup truck,
and a rifle laying on the ground near the truck.

        When Deputy Arthur Brown of the Cole County, Missouri Sheriff’s
Department arrived at the scene at approximately 7:15 p.m., the fire department was
already present. A firefighter told Brown about the truck that had been moved, the
rifle, and the small dog. Brown thought all of these circumstances were suspicious,
and he placed a call to Sergeant Troy Thurman to request his assistance at
approximately 7:30 p.m. After Sergeant Thurman arrived at 7:45 p.m., Deputy Brown
briefed him on information he had learned from the firefighters. Thurman examined
the rifle and discovered that it was loaded. He also noted that the rifle was found in
what appeared to be a makeshift firing range consisting of a sandbag placed on a log.




      1
       The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri, adopting the report and recommendation of the Honorable Matt
J. Whitworth, United States Magistrate Judge for the Western District of Missouri.

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       The two police officers spoke with the son of the man who owned the property
where the Brandweins resided. According to the officers, he informed them that all
of the Brandweins’ vehicles were present on the property. At this point, several
emergency vehicles had responded to the scene, and their lights and sirens had
operated directly outside of the house. Sergeant Thurman and Deputy Brown also
knocked loudly on the door four or five times and announced their presence. The
officers professed concern that the circumstances suggested that there may be injured
or deceased persons inside the home. The district court, after evaluating the
testimony of the officers, found that they were “very concerned for the welfare of the
residents of the home and assumed or suspected they were likely inside and possibly
deceased or injured.”

       After receiving no response to their knocks, the officers used the keys that had
been found in the truck to enter the house. Once inside, they observed drug
paraphernalia in plain view on the dining room table. The police also saw several
firearms in plain view in the living room. The officers continued to announce their
presence, and Brandwein emerged from the master bedroom. He was fully dressed,
sweating profusely, and seemed to be disoriented and confused. Brandwein informed
the officers that Debra was out shopping.

       Debra called the Brandwein residence at shortly after 8:00 p.m. and returned
home when she was informed of the fire. When Debra arrived at the property,
Detective Colin Murdick first allowed her to check on her husband. Detective
Murdick then interviewed her separately, first outside the house and then in the
kitchen, explaining that he suspected the fire may have been caused by a
methamphetamine lab. While they were speaking in the kitchen, Murdick noticed
two large glass jars containing a white residue that he believed to be
methamphetamine. Accordingly, Murdick informed Debra that he was going to
secure the residence and apply for a search warrant. Officers told Debra that she was
free to leave, but then acceded to her request to stay with her husband in the living

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room. The officers instructed Debra not to touch anything, referring specifically to
the jars in the kitchen that were believed to contain methamphetamine.

       Detective Murdick then contacted Sergeant Shannon Jeffries with the area drug
task force to request his assistance, and he arrived at approximately 9:00 p.m.
Murdick and Jeffries interviewed Debra a second time outside the house. Jeffries
asked Debra for permission to search the residence. The district court found that
Debra first asked Jeffries why they wanted to search the house, and he responded that
the officers had found items associated with the manufacture of methamphetamine
and wanted to determine if there were any other illegal items in the house. The
district court found that Debra then consented to the search.

        Detective Murdick returned to the kitchen, where he saw that the two jars
containing the white residue suspected to be methamphetamine had been washed and
placed in the sink. Murdick asked Deputy Brown whether anyone had accessed the
kitchen. Brown, who had not been aware of the jars, responded that he had permitted
Debra to fetch a glass of water from the kitchen. Debra was placed under arrest for
suspected tampering with evidence. According to the government, she later admitted
to the tampering in an interview at the local jail. Brandwein also made incriminating
statements. The government alleged that Brandwein admitted that his wife had
cleaned the jars, that he used and manufactured methamphetamine, and that he owned
one of the firearms found in the residence.

       A grand jury charged Brandwein with the unlawful possession of six firearms
as a previously convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2),
and attempted manufacturing of methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(C), and 846. He moved to suppress all evidence obtained during
the search of his home, including the firearms, drug paraphernalia, and statements he
later made to the police. The district court denied the motion, ruling that the entry to



                                          -4-
the house was permissible under the “community caretaker” doctrine and that Debra
freely and voluntarily consented to the search.

                                           II.

      Brandwein contends on appeal that police violated the Fourth Amendment by
searching his house. He contends that evidence found in the house, and statements
made after the search, should have been suppressed as the fruits of an unlawful
search. We review the district court’s findings of fact for clear error and its
application of the Fourth Amendment de novo.

       The Fourth Amendment generally prohibits police from entering a residence
without a warrant, Payton v. New York, 445 U.S. 573, 589-90 (1980), but there are
exceptions to the rule. One exception, invoked by the government here, is the
authority of police to undertake so-called “community caretaking functions.” These
are activities “totally divorced from the detection, investigation, or acquisition of
evidence relating to the violation of a criminal statute.” Cady v. Dombrowski, 413
U.S. 433, 441, 447-48 (1973). They include actions “undertaken to help those in
danger and to protect property.” United States v. Quezada, 448 F.3d 1005, 1007 (8th
Cir. 2006). Police, therefore, may enter a home without a warrant, in the exercise of
community caretaking, “where the officer has a reasonable belief that an emergency
exists requiring his or her attention.” Id. at 1007; see Burke v. Sullivan, 677 F.3d 367,
371 (8th Cir. 2012).

       Whether community caretaking justified the warrantless entry to Brandwein’s
home presents a debatable question here. The district court reasoned that Deputy
Brown and Sergeant Thurman reasonably believed that someone likely was present
in the residence and in need of assistance. The government defends this conclusion,
citing the burning shed, the unattended loaded rifle and small dog, the officers’ belief



                                          -5-
based on the presence of vehicles that someone likely was home, and the failure of
anyone inside the house to respond to knocks, shouts, lights, and sirens.

       Brandwein contends that there was no reasonable basis for believing that an
emergency existed in his residence, because there was no sign that anyone was home
or was injured. He argues that the officers misconstrued statements that all of the
vehicles on the property belonged to the Brandweins to mean that all of the
Brandweins’ vehicles were present, and therefore drew an unreasonable inference that
someone must be inside. In his view, the entry was a pretext for investigating
criminal activity. Brandwein also asserts that the officers did not enter the residence
until an hour after Deputy Brown first arrived, and that this timing suggests they did
not really believe there was an emergency.

       We may affirm on any ground supported by the record, United States v. Wells,
347 F.3d 280, 287 (8th Cir. 2003), and we find it unnecessary to resolve whether
community caretaking justified the entry. Even assuming for the sake of analysis that
the circumstances fell short of supporting a reasonable belief in the existence of an
emergency, the district court found that Debra Brandwein later consented voluntarily
to a search of the residence. We conclude that her consent was sufficient to purge any
taint of an unlawful entry that we will assume had occurred and to support admission
of the disputed evidence.

       Brandwein argues that the district court clearly erred in finding that Debra’s
consent was voluntary. His argument relies in part on a challenge to the court’s
credibility findings. The district court believed the testimony of the officers that
Debra consented, and this credibility finding is virtually unreviewable on appeal. The
court, citing Debra’s efforts to protect her husband by destroying evidence in the
kitchen, permissibly rejected Debra’s contrary testimony as lacking in credibility.




                                         -6-
       Brandwein also contends that the environment in which Debra consented
undermines its voluntariness. He claims that police officers already had entered the
home before Debra arrived, that police escorted her to the residence, that numerous
officers were present in the home, that his own movement was restricted, and that an
officer previously told Debra that police were securing the home to obtain a search
warrant. Other circumstances, however, support the district court’s finding of
voluntariness. The district court found that Debra gave consent when asked by two
officers who did not make any threats or promises. Officers told Debra that she was
free to leave; although she chose to stay with her husband, Debra was not detained
or under arrest. That police were present and told Debra about efforts to obtain a
search warrant does not dictate a finding that later-given consent was the product of
coercion or duress. United States v. Williams, 760 F.3d 811, 816 (8th Cir. 2014);
United States v. Muhlenbruch, 634 F.3d 987, 999 (8th Cir. 2011); United States v.
Larson, 978 F.2d 1021, 1024 (8th Cir. 1992). We do not think restrictions on
Brandwein’s movement undermine the district court’s finding about Debra’s free
will. Under the totality of the circumstances, there was no clear error in finding
voluntary consent.

       To vitiate the unlawfulness of an entry, consent to a search must be both
voluntary and “an intervening independent act of a free will” sufficient “to purge the
primary taint of the unlawful invasion.” Brown v. Illinois, 422 U.S. 590, 598 (1975)
(internal quotation marks omitted); see United States v. Greer, 607 F.3d 559, 563-64
(8th Cir. 2010). Whether consent sufficiently disperses the taint of an unlawful entry
is determined by reference to “temporal proximity” between the entry and the
consent, “the presence of intervening circumstances, and, particularly, the purpose
and flagrancy of the official misconduct.” Brown, 422 U.S. at 603-04 (internal
citation omitted). Observance of the Miranda rule is also relevant where applicable.
Kaupp v. Texas, 538 U.S. 626, 633 (2003).




                                         -7-
       The Supreme Court places a particular emphasis on any “purpose and flagrancy
of the official misconduct” in effecting the initial illegal entry. Brown, 422 U.S. at
603-04; see Greer, 607 F.3d at 564. Although we have assumed, for the sake of
analysis, that the initial entry to Brandwein’s home was unlawful, the district court
found no bad faith by the officers. The court found that Brown and Thurman
sincerely believed that an emergency was unfolding in the house and suspected that
someone inside the residence could have been injured or deceased. This finding of
good faith is well supported by the record, and we perceive no clear error. Any police
misconduct in the initial entry of the home was thus taken in the good faith belief that
assistance was required, not with the purpose to investigate the Brandweins.

      The passage of time between entry and consent, and the presence of intervening
circumstances, also indicate that Debra’s consent was not the product of police
misconduct. At least an hour passed after the officers first entered the house before
Debra consented to the search—significantly more than the fifteen minutes we
previously have deemed “sufficient to demonstrate an attenuation of the illegality.”
United States v. Whisenton, 765 F.3d 938, 941-42 (8th Cir. 2014); see United States
v. Barnum, 564 F.3d 964, 972 (8th Cir. 2009). According to Debra, she sat with her
husband in the living room for “quite a while,” or fifteen to twenty minutes, before
Sergeant Jeffries and Detective Murdick asked her about consent.

       Before Debra consented, Detective Murdick informed her that he suspected the
fire was caused by a methamphetamine lab, and cautioned her not to touch the glass
jars containing suspected residue of methamphetamine. The officers told Debra that
she was free to leave or to remain with her husband in the living room. When Debra
inquired why Sergeant Jeffries wanted her consent to search, Jeffries told her that
police already had found some evidence of drug manufacturing. These intervening
circumstances permitted Debra “opportunities . . . to pause and reflect, to decline
consent” after deliberate consideration if she wished. Greer, 607 F.3d at 564; see
Whisenton, 765 F.3d at 942. We therefore conclude that Debra’s consent was an

                                          -8-
independent act of free will that purged any taint arising from what we have assumed,
but not decided, was an unlawful entry of the residence.

                                    *       *       *

      The judgment of the district court is affirmed.

KELLY, Circuit Judge, concurring.

        Three relevant factors for determining whether consent purges the taint of a
Fourth Amendment violation include: (1) the passage of time between the Fourth
Amendment violation and the voluntary consent; (2) the existence of intervening
circumstances; and (3) the purpose and flagrancy of the Fourth Amendment violation.
See United States v. Barnum, 564 F.3d 964, 971 (8th Cir. 2009) (citing Brown v.
Illinois, 422 U.S. 590, 603–04 (1975)). I write separately to express my concern with
how the court considers the first two factors. With respect to the first factor, the court
notes that Debra Brandwein consented to the search at least an hour after the officers
first entered the house, and that she had been sitting in the living room for fifteen to
twenty minutes before any officer asked her about consent to search. See United
States v. Whisenton, 765 F.3d 938 (8th Cir. 2014). But counting the passage of time
between the presumed unlawful entry and the voluntary consent in this way ignores
the fact that the officers never left the house. Because the officers unlawfully
remained, their presence was a “continuing violation with no intervening time
between the illegality and consent.” Whisenton, 765 F.3d at 944 (Bye, J., dissenting).
The Fourth Amendment violation was still occurring at the time the officers obtained
Debra Brandwein’s consent. As a result, there was never a break between the
officers’ unlawful conduct and the voluntary consent to support a finding that the
taint had been purged.




                                           -9-
        Similarly, I question whether any intervening circumstances were present.
Debra Brandwein was told that she could not touch certain items in her home, that
evidence of drug manufacturing had already been found, and that officers intended
to obtain a search warrant. Perhaps these circumstances gave her an opportunity “to
pause and reflect, to decline consent.” See United States v. Greer, 607 F.3d 559, 564
(8th Cir. 2010). But it may very well be that these circumstances, occurring as they
did while the officers remained unlawfully in her home, simply reinforced her fear
and, thus, her decision to acquiesce to the search. Whisenton, 765 F.3d at 944 (Bye,
J., dissenting) (“asking for permission to smoke in one’s own home is evidence the
prolonged unlawful intrusion had a coercive effect on [the person who ultimately
gave consent]”).

       Because this case bears such close factual similarity to Whisenton, I concur in
the judgment of the court. Had these issues been presented to us as a matter of first
impression, however, I would view these two factors as weighing in favor of the
conclusion that Debra Brandwein’s consent was not “an independent act of free will”
sufficient “to purge the primary taint of the [illegal] entry” into the Brandwein home.
Whisenton, 765 F.3d at 941 (alteration in original) (quotation and internal quotation
marks omitted).
                        ______________________________




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