                                                                                   [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                                                                                    FILED
                                                                           U.S. COURT OF APPEALS
                                                                             ELEVENTH CIRCUIT
                                                                              DECEMBER 28 2000
                                         No. 99-12086
                                                                               THOMAS K. KAHN
                                                                                   CLERK

                           D. C. Docket No. 98-00794-CR-DLG


UNITED STATES OF AMERICA,

                                                                            Plaintiff-Appellee,

               versus

GLORIA SANTA,
a.k.a. Gloria Santa-Betancur,
                                                                        Defendant-Appellant.



                        Appeal from the United States District Court
                            for the Southern District of Florida

                                    (December 28, 2000)



Before TJOFLAT, HILL, and POLITZ* Circuit Judges.
______________________________________________
       * Honorable Henry A. Politz, U.S. Circuit Judge for the Fifth Circuit, sitting by
designation.
TJOFLAT, Circuit Judge:

                                        I.

                                        A.

      In August, 1998, a Confidential Informant (“CI”) working with the Drug

Enforcement Agency (“DEA”) began communicating with Juan Ramirez and his

wife, Gloria Santa, about purchasing approximately one kilogram of heroin.

Ramirez informed the CI that he expected to receive a kilogram of heroin on or

about October 4, 1998, and that they could arrange a sale then. In the meantime,

the CI kept in touch with Ramirez and Santa by telephone and by visiting them at

their place of employment, Tony’s Furniture Store (“the Store”) in northwest

Miami.

      During a series of recorded telephone conversations, the CI arranged to meet

Ramirez and Santa at the Store on October 5, 1998, to purchase a “sample” amount

of heroin. DEA agents set up surveillance at the Store and equipped the CI with a

body wire. Once inside the Store, the CI purchased 1.7 grams of heroin from

Ramirez for $100, and the two discussed a possible sale of the entire kilogram.

Ramirez told the CI that if the CI found the sample to be acceptable, Ramirez could

arrange a larger transaction at Ramirez and Santa’s residence in Miami Lakes. The




                                         2
CI stated that he first needed to show the sample to his “people,” and that he would

be in touch about the larger deal.

       The CI placed a phone call to Ramirez later that day and told him that he

liked the sample and wanted to make another buy. Ramirez instructed the CI to get

in touch with Santa so that she could contact the heroin supplier and make

arrangements. As directed, the CI called Santa, explained that he had $5,000 to

buy heroin, and asked her to get in touch with the supplier. Santa promised to

notify the CI after speaking with the supplier, but the CI did not hear back from

her.

       The DEA agents continued their surveillance at the Store through

Wednesday, October 7. On that day, the CI called Ramirez to find out whether he

wanted to proceed with the heroin deal.1 Ramirez told the CI that the supplier

would be at the Store at 12:30p.m., and instructed the CI to call back at 1:00p.m. to

find out whether the supplier would agree to make the sale. When the CI called

back as instructed, Ramirez told him that the supplier had agreed to go forward




       1
         While the October 5 conversations between the CI and Ramirez and Santa were
recorded and transcribed, prior and subsequent unrecorded conversations were only summarized
in written DEA reports. Portions of the summarized conversations are inaccessible, as they were
“blacked out” to conceal sensitive information such as the identities of the CI and the undercover
DEA agent. The substance of the DEA reports was introduced by oral testimony during the
suppression hearing.

                                                3
with the transaction and that the CI was to be at the Store in one hour with the

money.

       Although the record is not entirely clear, it appears that the CI showed up to

meet Ramirez and the supplier – Gilbert Gallego – at the Store sometime before

4:00p.m. Plans were made during that meeting to complete the drug transaction at

Ramirez and Santa’s apartment.2 Someone (presumably Ramirez) began to give

directions to the apartment but was interrupted by Gallego, who suggested that the

parties meet back at the Store at 4:00p.m. and then proceed from there to Ramirez

and Santa’s apartment to complete the deal.

       At approximately 4:00p.m., Ramirez, Santa, Gallego, the CI, and an

undercover DEA agent posing as the CI’s “money man” met at the Store. They

confirmed that the transaction would occur at Ramirez and Santa’s apartment in

Miami Lakes. Gallego would leave the Store alone and bring the heroin to the

apartment from an undisclosed location. Ramirez, Santa, and Gallego were led to

believe that the undercover agent’s role was to guard the purchase money

somewhere outside the apartment while the CI went inside to inspect the drugs. If




       2
        Because the CI was not wearing a body wire during this meeting, he left the Store at
some point to inform a surveilling undercover agent that the transaction would take place at
Ramirez and Santa’s apartment.

                                               4
the drugs looked good, the CI would leave the apartment, get the money from the

undercover agent, and return to complete the exchange.

       The parties left the Store at approximately 4:25, with Ramirez and Santa in

the front car leading the way to the apartment. The CI and the undercover agent

followed Ramirez and Santa in another car, and Gallego left in his vehicle to

retrieve the heroin. While en route, the CI and the undercover agent advised the

surveilling agents that the group would complete the heroin transaction at Ramirez

and Santa’s apartment. The DEA had established surveillance at the apartment

earlier in the day because both Ramirez and Santa had indicated during previous

conversations with the CI that the transaction would take place there.3

       Ramirez, Santa, the CI, and the undercover agent arrived at the apartment at

approximately 4:50, and the CI followed Ramirez and Santa inside. The

undercover agent apparently “left the area,” although the record is unclear about



       3
         During a recorded phone conversation on October 5, Ramirez told the CI to “come to
my house, you bring the money.” Later that day, the following exchange took place during a
recorded phone call between the CI and Santa:
        CI:    I will come to your house and pick it up.
        Santa: Fine.
        CI:    When . . .
        Santa: I’ll . . . I’ll talk to the guy, then I will call you.
This information led DEA agents to believe that subsequent transactions would take place at
Ramirez and Santa’s apartment. At the suppression hearing discussed infra, Part I.B., DEA
Agent Jeffrey LeClair testified that “[the DEA] had an agent set up at the Club Lakes Apartment
[on October 7], doing surveillance, figuring they would go back to that location.”

                                               5
where he went.4 The DEA agents had instructed the CI that when he saw the

heroin, he was to tell Ramirez and Santa that he was going outside to get the

money. As he exited the apartment under that guise, he was to give a prearranged

visual signal to the surveilling agents meaning, “I’ve seen the drugs.”

       After Ramirez, Santa, and the CI arrived at the apartment, Gallego called

Ramirez from the road to let them know that he was stuck in traffic. While waiting

for Gallego to arrive, Santa left the apartment briefly to pick up her children, ages

two and four, from somewhere in the apartment complex. The CI also left the

apartment periodically to check in with the undercover agent. After another call

from Gallego, the CI went out to inform the agent that the heroin would soon be at

the apartment.

       At 6:50, approximately fifteen minutes after hearing from the CI that

Gallego was close by, the surveilling agents observed Gallego arrive at the

apartment complex. He emerged from his vehicle carrying a white plastic



       4
         It may be inferred from the record, however, that the undercover agent was probably
within walking distance of the apartment. On cross-examination during the suppression hearing,
DEA Agent Jeff LeClair testified that as soon as the CI exited the apartment, he gave the agents
a prearranged visual signal. When asked whether “the informant, when he came out, . . . went up
to the undercover agent’s car,” Agent LeClair responded, “He never made it that far.” There was
apparently no need to continue the ruse once the agents entered the apartment, which occurred
less than one minute after the CI gave the signal. LeClair’s statement suggests, however, that
had the agents not approached the apartment so quickly, the CI might have reached the
undercover agent’s vehicle.

                                               6
shopping bag. Agents then saw Ramirez exit the apartment, but lost sight of him

for a short time. When agents spotted Ramirez again, he was carrying a white

plastic bag similar to the one Gallego had been carrying. Ramirez brought the bag

into his apartment, according to one of the surveilling agents, “as covertly as

possible.” The CI followed Ramirez into the apartment, and then emerged three to

five minutes later giving the prearranged signal to the DEA agents indicating that

he had seen the heroin. Gallego had already left the area in his truck, never having

entered the apartment.

      Within thirty seconds of seeing the CI’s signal, two DEA agents – LeClair

and Mokwa – and Detective O’Hara of the Hollywood, Florida Police Department

approached Ramirez and Santa’s first floor apartment. Mokwa went around to

guard the sliding glass doors in the back of the apartment, which opened onto a

golf course. Meanwhile, LeClair and O’Hara announced themselves at the front

door by yelling “police,” and found the door locked when they attempted to open

it. LeClair kicked in the front door, and he and O’Hara entered with their guns

drawn. Mokwa then returned from the rear of the apartment and entered through

the front door.

      After entering the apartment, LeClair spotted Ramirez approaching the

agents from a hallway. The agents ordered Ramirez onto the floor and handcuffed


                                          7
him, and then made a protective sweep of the apartment to find any other persons

who were inside. The agents found Santa in the hall bathroom giving her children

a bath. Mokwa told her to wrap them up and bring them into the living room,

which she promptly did. Santa was neither placed on the floor nor handcuffed.

       Approximately two to three minutes after the forced entry, while the other

agents were securing the apartment, Mokwa advised Ramirez of his Miranda

rights. LeClair told Ramirez that the agents knew there were drugs in the

apartment, and asked “if he would just make things easy and tell [the agents] where

the drugs were.” The agents’ weapons were holstered by this time. Ramirez, still

on the floor in handcuffs, told the agents that they could search the apartment, and

that the heroin was beneath the sink in the master bathroom.5

       After finding the heroin precisely where Ramirez said it would be, the agents

led Ramirez to a table in his living room/dining room area. They removed his

handcuffs and asked him to sign a written consent form written in Spanish.6

Essentially, the agents were asking Ramirez to give his written consent to the

search that had just taken place. Ramirez read the consent form silently and signed


       5
        The protective sweep conducted while Ramirez was being detained on the floor did not
uncover the drugs.
       6
        There is evidence that Ramirez understood at least some English, as he had been
speaking to the agents in English prior to being presented with the consent form. Spanish,
however, is Ramirez’s native language.

                                               8
it.7 According to the DEA agents’ testimony at the suppression hearing, a total of

five to ten minutes passed between the initial police entry and Ramirez’s signing of

the consent form.8

       Santa was placed under formal arrest after the heroin was found in the

bathroom, and Gallego was stopped and arrested by agents who had followed his

vehicle from the Miami Lakes apartment. On October 16, 1998, a Southern

District of Florida grand jury returned a two-count indictment against Ramirez,

Santa, and Gallego pursuant to 21 U.S.C. § 846 for conspiracy to possess with

intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1), and, pursuant to 21

U.S.C. § 841(a)(1) and 18 U.S.C. § 2, for possession with intent to distribute

heroin.



                                             B.

       Ramirez and Santa filed motions to suppress the heroin seized during the

search of the Miami Lakes apartment, alleging that the agents’ warrantless entry




       7
         Also added to the consent form, in Ramirez’s handwriting, was Ramirez’s express
consent to a search of his vehicle.
       8
         Agents LeClair and Mokwa testified that only two to three minutes passed between the
police entry and Ramirez’s statement that the drugs were in the master bathroom.

                                              9
was unlawful and that the subsequent consent given by Ramirez was invalid.9 In

response, the Government contended that exigent circumstances – namely, a

possibility that Ramirez or Santa would flee or destroy the drugs – supported their

warrantless entry and search of the apartment. The Government contended in the

alternative that even if the entry were illegal, Ramirez’s subsequent verbal and

written consent to search was voluntary and therefore valid.

       The magistrate judge held a suppression hearing on January 25, 1999, at

which Agent LeClair testified that he felt the warrantless police entry was

necessary because “[the heroin] could be flushed down the toilet. Somebody could

escape through the back door. [The apartment] was on a golf course. It was very

hard to surveil. [Approaching agents could be seen] from the window overlooking

the parking lot . . . .” LeClair further testified that he was afraid a “rip off” would

take place, in which Ramirez and Santa would abscond with the drugs before

Gallego or the CI returned to the apartment. Finally, LeClair stated that the agents

intended to arrest Ramirez, and were afraid he would attempt to leave the

apartment and flee if not apprehended immediately. Despite the agents’ plan to




       9
         Gallego did not file a motion to suppress, as he had no standing to contest the search of
the apartment.

                                                10
arrest Ramirez and seize the drugs, LeClair conceded that the agents never

attempted to obtain an arrest or search warrant.

       In his Report and Recommendation (“R & R”), the magistrate judge found

that probable cause to arrest Ramirez and Santa existed when the warrantless entry

was made, but that “the facts in this case would not lead a reasonable, experienced

agent to believe that evidence might be destroyed at the time entry was made and

before a warrant (at least a phone warrant) could be obtained.” Thus, the

magistrate judge found that there were no exigent circumstances to support the

agents’ warrantless entry. Nonetheless, the magistrate judge recommended that the

motions be denied on the ground that

       the consent given by . . . Ramirez was valid. . . . [T]here were no guns
       drawn on . . . Ramirez when he gave his verbal consent, nor were
       there any threats or coercion. Rather, the evidence shows that . . .
       Ramirez decided to cooperate with authorities once he was informed
       that they were aware the heroin was in the house. The fact that
       Ramirez signed a consent to search form buttresses the finding that the
       consent was voluntary.

       The district court adopted the magistrate judge’s R & R and denied the

motions to suppress.10 Ramirez chose not to appeal the court’s ruling and entered a

plea of guilty to both counts of the indictment. Santa entered a conditional guilty



       10
         The initial district court judge who handled the case adopted only part of the
magistrate’s R & R, but later disqualifed himself upon Santa’s motion.

                                               11
plea and then filed the instant appeal challenging the district court’s denial of the

motion to suppress. We now reverse the district court’s denial of Santa’s motion

and remand the case for further proceedings.



                                           II.

      “A district court's ruling on a motion to suppress presents a mixed question

of law and fact.” United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999).

We are required to accept the district court's factual findings as true, unless those

findings are shown to be clearly erroneous. Id. “We must further construe those

facts in the light most favorable to the party that prevailed in the district court,

which in this case is the United States.” United States v. Gonzalez, 71 F.3d 819,

824 (11th Cir. 1996). The district court's application of the law to those facts,

however, is reviewed de novo. Id.

      The agents’ testimony at the suppression hearing established that law

enforcement officers entered the apartment with two separate goals: (1) to ensure

that evidence of the crime was not destroyed or stolen, and (2) to arrest Ramirez.

Thus, our initial inquiry is whether agents could, absent a search warrant, lawfully

enter the apartment to search for and seize the heroin. If so, the voluntariness of

Ramirez’s consent to search is immaterial; no consent was needed. If the agents


                                           12
could not lawfully enter to search for the heroin, the question then becomes

whether, absent an arrest warrant, police could lawfully enter the apartment to

seize Ramirez. If so, then consent to search areas of the apartment beyond

Ramirez’s wingspan would have been necessary, and the voluntariness of

Ramirez’s consent is of paramount concern. Finally, even if the agents’ entry was

unlawful under theories of both search and arrest, the question remains whether

Ramirez’s consent to the search of his apartment, even if voluntary, was tainted by

the illegality and thereby rendered invalid. We consider each of these issues in

turn.



                                         III.

                                         A.

        “It is a ‘basic principle of Fourth Amendment law’ that searches and seizures

inside a home without a warrant are presumptively unreasonable.” Payton v. New

York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639 (1980). “A

warrantless search is allowed, however, where both probable cause and exigent

circumstances exist.” United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir.

1991) (en banc). There is no dispute in this case that police had probable cause to

search the apartment after the CI signaled that the drugs were inside. The question


                                          13
to be addressed, then, is whether the circumstances were sufficiently “exigent” to

justify the warrantless search.

      Although “[c]ourts have catalogued several situations in which exigent

circumstances exist, . . . it is clear that the exception must be applied carefully to

each factual scenario.” United States v. Lynch, 934 F.2d 1226, 1232 (11th Cir.

1991) (citing United States v. Blasco, 702 F.2d 1315, 1325 (11th Cir. 1983)).

“[T]he general requirement that a search warrant be obtained is not lightly to be

dispensed with, and ‘the burden is on those seeking [an] exemption [from the

requirement] to show the need for it . . . .’” Chimel v. California, 395 U.S. 752,

762, 89 S. Ct. 2034, 2039, 23 L. Ed. 2d 685 (1969) (alterations and omissions in

original) (quoting United States v. Jeffers, 342 U.S. 48, 51, 72 S. Ct. 93, 95, 96 L.

Ed. 59 (1951)). The exigency exception only applies when “the inevitable delay

incident to obtaining a warrant must give way to an urgent need for immediate

action.” United States v. Burgos, 720 F.2d 1520, 1526 (11th Cir. 1983).

Recognized situations in which exigent circumstances exist include: “danger of

flight or escape; danger of harm to police officers or the general public; risk of

loss, destruction, removal, or concealment of evidence; and ‘hot pursuit’ of a

fleeing suspect.” Blasco, 702 F.2d at 1325.




                                           14
      This circuit has recognized that “the need to invoke the exigent

circumstances exception to the warrant requirement is ‘particularly compelling in

narcotics cases’ because narcotics can be so quickly destroyed.” Tobin, 923 F.2d

at 1510 (quoting United States v. Young, 909 F.2d 442, 446 (11th Cir. 1990)).

“The mere presence of contraband, however, does not give rise to exigent

circumstances.” Lynch, 934 F.2d at 1232. “The test of whether exigent

circumstances exist is an objective one . ‘[T]he appropriate inquiry is whether the

facts . . . would lead a reasonable, experienced agent to believe that evidence might

be destroyed before a warrant could be secured.’” Tobin, 923 F.2d at 1510

(quoting United States v. Rivera, 825 F.2d 152, 156 (7th Cir. 1987)).

      In this case, the Government contends that the officers had to secure

Ramirez and Santa’s apartment immediately to prevent the destruction of evidence

and Ramirez’s escape. The occupants of the apartment, however, were unaware

that they were under police investigation. Agent LeClair testified that the

surveilling DEA agents were all in unmarked vehicles and that they had done

nothing to disclose their presence to Ramirez, Santa, or Gallego. The agents had

no cause to believe that the CI had “tipped off” the suspects. Thus, there was




                                         15
nothing to indicate that Ramirez, Santa, or Gallego had become aware of their

presence.11

       It is well settled that “[c]ircumstances are not normally considered exigent

where the suspects are unaware of police surveillance.” Tobin, 923 F.2d at 1511.

Ramirez and Santa, unaware of their impending arrest, had no reason to flee or to

destroy the valuable drugs they were trying to sell. Indeed, they intended to

exchange the heroin for a large sum of money. Moreover, it is unlikely that the

suspects would have left their two and four-year-old children behind (whom the

agents knew were in the apartment), or that they would have gotten very far if they

had chosen to flee with them in tow. “[L]aw enforcement officers confronting this



       11
          The following exchange occurred during LeClair’s cross-examination by defense
counsel during the suppression hearing:
        Q: There was no indication that – there was police surveillance there. Correct? In other
words, you were all in unmarked undercover units?
        A: Yes.
        Q: And there was no indication that any of the individuals, Mr. Ramirez and Ms. Santa,
were aware of police presence, correct?
        A: I don’t know at what point you’re referring to.
        Q: At the very point he comes out, the informant comes out at 7:08, in the evening, when
he comes out, he gives the prearranged signal, you had not at all, referring to law enforcement,
no one from law enforcement had announced their presence, is that correct, prior to that
happening?
        A: No, sir. . . .
        Q: Did law enforcement officers inform any one that they were there conducting
surveillance?
        A: No, sir.
        Q: Did any law enforcement officers ever press a siren or a button I guess in your
vehicles to indicate that the police had arrived?
        A: No, sir.

                                               16
type of situation can, without great difficulty, maintain surveillance of the premises

and either wait to effectuate a valid public arrest when the suspects emerge or seek

[a warrant] from a neutral and detached magistrate.” United States v. George, 883

F.2d 1407, 1413-14 (9th Cir. 1989) (citations omitted).

       The Government argues, however, that waiting for a warrant would have

been too risky. First, it contends that the level of difficulty in surveilling the

apartment made the situation “touch and go”; agents could not get close to the

apartment without being spotted by the suspects, and the suspects had easy access

to an unguarded rear door that opened onto a golf course. Fearing an eventual

“foot pursuit” across the course,12 agents desired to apprehend the suspects before

they had a chance to exit the apartment.

       We flatly rejected an identical argument in United States v. Lynch, 934 F.2d

1226 (11th Cir. 1991), in which the Government contended that exigent

circumstances existed where, among other things,

       police could not maintain effective surveillance in Lynch’s residential
       neighborhood; they were limited to helicopter surveillance which can
       only detect movement by vehicles. Because it would have been
       possible for someone inside the house to flee undetected on foot, the
       Government argues, the police needed to secure the home
       immediately. We will not hold that the warrantless search of an

       12
        The record fails to set forth the layout of the golf course abutting defendants’
apartment, and is silent as to what kind of foliage, if any, lay between the apartment and the golf
course.

                                                17
      individual’s home may be justified by the police’s inability to
      maintain effective surveillance, particularly when no exigency has
      been established. Such
      a holding would run counter to all established [F]ourth [A]mendment
      precedent.

934 F.2d at 1233 n.4. As will be explained below, any exigency perceived by the

agents on the evening of October 7 was either unsupported by the evidence or

created by law enforcement officials themselves. As such, it was no exigency at

all, but merely an inexcusable failure to comply with the Fourth Amendment’s

warrant requirement. Without more, an inability to maintain effective surveillance

will not suffice to overcome the warrant requirement.

      The Government’s next argument in favor of the warrantless entry is that

Ramirez and Santa would have become suspicious if the CI did not return promptly

with the money, and that their suspicion would have motivated them to destroy the

drugs. Indeed, some courts have held that where the evidence supports an

inference that the suspects expect to meet or contact their co-conspirators before

police can obtain a warrant, it is reasonable for police to assume that the suspects’

suspicions create a substantial risk justifying a warrantless entry and search. See,

e.g., United States v. Clement, 854 F.2d 1116, 1120 (8th Cir. 1988) (per curiam)

(failure of courier to return, as expected, with proceeds from specific drug

transaction); United States v. Altman, 797 F.2d 514, 515 (7th Cir. 1986) (per


                                          18
curiam) (same); United States v. Moore, 790 F.2d 13, 16 (1st Cir. 1986) (“Because

the sale and the arrests took place immediately outside the . . . apartment, the

agents could reasonably believe that the failure of [the arrested cohorts] to return to

the apartment promptly with the money could create a substantial risk that

appellant would flee or destroy evidence.”); United States v. Eddy, 660 F.2d 381,

384-85 (8th Cir. 1981) (“the evidence indicates a rather elaborate scheme . . .

which would have required [the arrested cohort’s] speedy return to the

apartment.”).

      There is no evidence in the record, however, to suggest how soon Ramirez

and Santa expected the CI to return with the money. We cannot discern how far

from the apartment the undercover agent – who was supposedly holding the money

– was located. We are also without information regarding what the CI told

Ramirez and Santa about when he would return to the apartment. Mere speculation

about Ramirez and Santa’s suspicions, without any factual support, is not enough

to overcome the warrant requirement. See Lynch, 934 F.2d at 1233; cf. United

States v. Salgado, 807 F.2d 603, 609 (7th Cir. 1986) (“A mere possibility that

evidence will be destroyed . . . is not enough. Otherwise the requirement of a

warrant would have little meaning in the investigation of drug crimes.”).




                                          19
       Even if we assume, however, that Ramirez and Santa expected the CI to

return to the apartment within a few minutes of his departure, the agents’

warrantless entry of the apartment was unlawful. This court has held that “a

warrantless search is illegal when police possess probable cause but instead of

obtaining a warrant create exigent circumstances.” Tobin, 923 F.2d at 1511 (citing

United States v. Scheffer, 463 F.2d 567, 575 (5th Cir. 1972), which held that where

customs agents planned a cocaine delivery and could have controlled the time at

which it took place, the agents had no valid excuse for failing to obtain a search

warrant,13 and United States v. Munoz-Guerra, 788 F.2d 295, 298 (5th Cir. 1986)

(holding that where agents can get a warrant instead of revealing themselves and

making immediate entry a foregone necessity, a warrantless search must be deemed

unreasonable)); see also United States v. Duchi, 906 F.2d 1278, 1285 (8th Cir.

1990) (holding that evidence must be suppressed where the police created the

exigency that the suspect would open a tampered package and destroy the evidence

therein). It is true that the contraband did not actually arrive at Ramirez and

Santa’s apartment until 7:00p.m. on October 7. Thus, probable cause to believe

that the drugs were in the apartment did not exist until that time. With the

       13
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.


                                               20
information gathered on that day and during the preceding two days, however,

agents had probable cause to believe that the drugs would be in the apartment on

that evening. Indeed, they knew how and when the drugs would be transported,

where they would be received, who would deliver them, and who would receive

them. If this information was sufficient to merit the issuance of a search warrant

before 7:00p.m. on October 7, the warrantless entry cannot be justified by exigent

circumstances.

      Anticipatory search warrants, i.e., warrants that become effective upon the

happening of a future event, “have repeatedly been upheld where they are

supported by probable cause and the conditions precedent to the search are clearly

set forth in the warrant or supporting affidavit.” United States v. Loy, 191 F.3d

360, 364 (3d Cir. 1999) (citing United States v. Hugoboom, 112 F.3d 1081, 1085

(10th Cir. 1997) (collecting cases)). Indeed, every circuit to have addressed the

question has held that anticipatory search warrants are not categorically

unconstitutional. See, e.g., United States v. Ricciardelli, 998 F.2d 8, 11 (1st Cir.

1993); United States v. Garcia, 882 F.2d 699, 702-704 (2d Cir. 1989); Loy, 191

F.3d at 364, United States v. Goodwin, 854 F.2d 33, 36 (4th Cir. 1988); United

States v. Wylie, 919 F.2d 969, 974 (5th Cir. 1990); United States v. Rey, 923 F.2d

1217, 1221 (6th Cir. 1991); United States v. Leidner, 99 F.3d 1423, 1425-26 (7th


                                          21
Cir. 1996); United States v. Bieri, 21 F.3d 811, 814-15 (8th Cir. 1994); United

States v. Hale, 784 F.2d 1465, 1468-69 (9th Cir. 1986), abrogation on other

grounds recognized by United States v. Weber, 923 F.2d 1338 (9th Cir. 1990);

Hugoboom, 112 F.3d at 1085-87. While adopted across the board by our sister

circuits, the constitutionality of such warrants is a question of first impression in

this circuit.14

       Anticipatory search warrants have been described as “differ[ing] from

traditional warrants in that they are not supported by probable cause to believe the

items to be seized are at the place to be searched when the warrant is issued.” Loy,

191 F.3d at 364. At first blush, therefore, it would seem as though such warrants

fail to meet the Fourth Amendment’s probable cause requirement. Indeed, the case

law in this circuit demands that “probable cause must exist when the magistrate

judge issues the search warrant.” United States v. Harris, 20 F.3d 445, 450 (11th

Cir. 1994). Construed properly, this statement does nothing to undermine the




       14
          In United States v. Nixon, 918 F.2d 895 (11th Cir. 1990), we addressed the issue in a
footnote, stating that “we note that [anticipatory search] warrants are appropriate only where the
contraband is on a ‘sure course’ to a known destination, such as through the mail.” Nixon, 918
F.2d at 903 n.6. It is well settled, however, “that no opinion can be considered as binding
authority unless the case calls for its expression.” Indiviglio v. United States, 249 F.2d 549, 561
(5th Cir. 1957), rev’d on other grounds by Indiviglio v. United States, 357 U.S. 574, 78 S.
Ct.1381, 2 L. Ed. 2d 1547 (1958). As the court’s statement in Nixon was unnecessary to its
decision, it is dictum and does not control our decision in this case.

                                                22
legality of anticipatory search warrants,15 for such warrants are, when properly

issued, supported by probable cause. “[T]he fact that the contraband is not

presently located at the place described in the warrant is immaterial, so long as

there is probable cause to believe that it will be there when the search warrant is

executed.” Garcia, 882 F.2d at 702 (internal quotes omitted). Indeed, even a

warrant based on a known presence of contraband at the premises rests on the

expectation that the contraband will be there when the warrant is executed. Id.

The rationale for upholding the use of anticipatory search warrants is well set forth

in United States v. Gendron, 18 F.3d 955, 965 (1st Cir. 1994), where Chief Judge

Breyer, now Justice Breyer, spoke for the panel as follows:

       In general, the simple fact that a warrant is “anticipatory” – i.e., that it
       takes effect, not upon issuance, but at a specified future time – does
       not invalidate a warrant or make it somehow suspect or legally
       disfavored. Warrants often do specify that they will take effect upon
       issuance. But the Constitution imposes no such requirement. Rather, it
       says that a search must not be “unreasonable,” and that warrants must
       be supported by “probable cause.” U.S. Const. amend. IV. There is
       nothing unreasonable about authorizing a search for tomorrow, not

       15
           We note that this language most often appears in cases dealing with “stale” search
warrants, i.e., warrants that, when issued, were based on information too old to create a sufficient
probability that the items sought were still at the location to be searched. In other words, the
passage of time made it more likely that the circumstances upon which the warrant was issued
had changed, thus dissipating probable cause. See, e.g. United States v. Bervaldi, 226 F.3d
1256, 1264-65 (11th Cir. 2000). The argument against anticipatory warrants is just the opposite:
that the facts giving rise to probable cause have not yet occurred. The response, simply put, is
that probable cause to believe that the contraband is at the location to be searched exists when
the contraband arrives there. If it does not arrive within the parameters set forth in the warrant,
the warrant does not “mature,” and no search can lawfully be made.

                                                23
      today, when reliable information indicates that, say, the marijuana will
      reach the house, not now, but then. Nor does it seem automatically
      unreasonable to tie the warrant's search authority to the future event
      that brings with it the probable cause (e.g., the time of “delivery of a
      large brown package addressed to X with return address Y”).
      Ricciardelli, 998 F.2d at 10-11. In principle, the use of a “triggering
      event” can help assure that the search takes place only when justified
      by “probable cause”; and anticipatory warrants may thereby offer
      greater, not lesser, protection against unreasonable invasion of a
      citizen’s privacy. As one commentator has put it, “as a general
      proposition the facts put forward to justify issuance of an anticipatory
      warrant are more likely to establish that probable cause will exist at
      the time of the search than the typical warrant based solely upon the
      known prior location of the items to be searched at the place to be
      searched.” 2 Wayne H. LaFave, Search and Seizure § 3.7(c), at 97 (2d
      ed. 1987). Were “anticipatory warrants” unlawful, law enforcement
      agents would have to wait until the triggering event occurred; then, if
      time did not permit a warrant application, they would have to forego a
      legitimate search, or, more likely, simply conduct the search (justified
      by “exigent circumstances”) without any warrant at all. See Vale v.
      Louisiana, 399 U.S. 30, 34-35, 90 S.Ct. 1969, 1971-1972, 26 L.Ed.2d
      409 (1970); 2 LaFave, supra, § 6.5. We are not surprised that courts
      have found “anticipatory warrants,” considered as a class, perfectly
      consistent with the Constitution.

      Based on this reasoning, we hold that anticipatory search warrants are not

per se unconstitutional. In the proper circumstances, such warrants will better

serve the objective of the Fourth Amendment by allowing law enforcement agents

to obtain a warrant in advance of delivery, rather than forcing them to go to the

scene without a warrant and decide for themselves, subject to second-guessing by

judicial authorities, whether the facts justify a search. See Garcia, 882 F.2d at 703.



                                          24
      Our inquiry now focuses on whether authorities in the instant case could

have obtained an anticipatory warrant to search Ramirez and Santa’s apartment on

October 7. If so, we cannot credit the Government’s argument that lack of time to

obtain a search warrant once the drugs were delivered necessitated a warrantless

entry, for the agents need not (indeed, they should not) have waited that long.

      “As with all warrants, there must be a sufficient nexus between the

contraband to be seized and the place to be searched before an anticipatory warrant

can be issued.” Loy, 191 F.3d at 365. Affidavits supporting the application for an

anticipatory warrant “must show, not only that the agent believes a delivery of

contraband is going to occur, but also how he has obtained this belief, how reliable

his sources are, and what part government agents will play in the delivery.”

Garcia, 882 F.2d at 703.

      There is no doubt that agents possessed sufficient information to obtain an

anticipatory search warrant for Ramirez and Santa’s apartment several hours before

the forced entry occurred. It was no later than the early afternoon of October 7

when the DEA knew the location and approximate time of the planned drug

transaction. The parties had agreed that the sale would take place at the apartment

that evening after Gallego delivered the drugs, and the CI promptly imparted this

knowledge to the surveilling agents. Agent LeClair testified that the CI had


                                         25
provided law enforcement agents reliable information in the past, and agents had

independent confirmation of most of the information on audiotape.

       We see no reason why agents, with this information, could not have gone

before a magistrate to obtain a search warrant. In the age of telephonic warrants,16

we doubt that it would have been impossible (or even difficult) to obtain a warrant

by telephone on that Wednesday afternoon. If we were to condone the warrantless

entry of Ramirez and Santa’s apartment under the circumstances presented here,

we would effectively allow officers to create exigencies by failing to procure a

warrant while there was time to do so. Every situation would become an eventual

emergency; the practice of obtaining a warrant would soon fall by the wayside, and

the exception would swallow the rule.17 Thus, we hold that in circumstances such

as those presented here, where law enforcement agents have ample time and

information to secure an anticipatory search warrant, lack of time to obtain a


       16
           Fed. R. Crim. P. 41 (c)(2)(A) states, “If the circumstances make it reasonable to
dispense, in whole or in part, with a written affidavit, a Federal magistrate judge may issue a
warrant based upon sworn testimony communicated by telephone or other appropriate means,
including facsimile transmission.”
       17
          As Justice Jackson aptly noted in Johnson v. United States, 333 U.S. 10, 13-14, 68 S.
Ct. 367, 369, 92 L. Ed. 436 (1948):
       The point of the Fourth Amendment, which often is not grasped by zealous
       officers, is not that it denies law enforcement the support of the usual inferences
       which reasonable men draw from evidence. Its protection consists in requiring
       that those inferences be drawn by a neutral and detached magistrate instead of
       being judged by the officer engaged in the often competitive enterprise of
       ferreting out crime.

                                                26
warrant after delivery of the contraband is insufficient to justify a warrantless

search.



                                               B.

       Just as the warrantless entry was illegal if its purpose was to conduct a

search, so it was if its purpose was to effect Ramirez’s arrest.18 Although Agent

LeClair emphasized the agents’ fear that the suspects would destroy the heroin if

not apprehended immediately, he also stated that the purpose of the warrantless

entry was to arrest Ramirez.19 During the suppression hearing, LeClair was called

as a defense witness after testifying for the Government, and the following

exchange took place during the Government’s cross-examination:




       18
           We note, however, that
         [a]n illegal arrest, without more, has never been viewed as a bar to subsequent
        prosecution, nor as a defense to a valid conviction. The exclusionary principle of
        Wong Sun and Silverthorne Lumber Co. delimits what proof the Government may
        offer against the accused at trial, closing the courtroom door to evidence secured
        by official lawlessness. [Appellant] is not [himself] a suppressible ‘fruit,’ and the
        illegality of his detention cannot deprive the Government of the opportunity to
        prove his guilt through the introduction of evidence wholly untainted by the
        police misconduct.
United States v. Crews, 445 U.S. 463, 474, 100 S. Ct. 1244, 1251, 63 L. Ed. 2d 537 (1980)
(internal citations omitted).

       19
           The magistrate judge acknowledged as much in his R & R, stating that “Agent LeClair
testified that the agents went to the apartment to arrest . . . Ramirez, and possibly . . . Santa.”

                                                27
Q: [Y]ou went into the apartment to arrest, specifically to arrest
Ramirez?

A: Yes.

Q: There was a possibility you would arrest Santa?

A: Yes.

Q: But foremost on your mind was the arrest of Ramirez?

A: Yes.

Q: And ultimately, all these events happened after you went – within
two minutes of your going in to effect the arrest of Ramirez?

A: Yes.

....

Q: Now, along the way, there was a question as to whether agents
were pursuing anyone prior to entering the apartment, but from the
very beginning there was a target in mind. Is that not correct?

A: Yes.

Q: You did enter the apartment for the purpose of arresting Mr.
Ramirez?

A: Yes.

....

Q: You were concerned that he could have left the apartment. Is that
correct?

A: Yes.


                                   28
Q: And, in fact, there was another door that he could have used to
exit?

A: As well as I believe a couple of other windows that could have –

Q: So, earlier when you answered the question as to pursuit[,] were
you thinking about running kind of pursuit or were you thinking of the
broader context of a pursuit of a subject?

A: I believe I was meaning the broader kind of pursuit.

Q: Were you thinking that there was no pursuit in that Mr. Ramirez
might not have gotten out of the apartment window or the back door?

A: No. It was very feasible he could’ve gotten out of the apartment.

Q: So –

A: And foot pursuit, per se.

Q: As far as being on his trail, you were on his trail from the time he
left the furniture store?

A: Correct.

Q: But once the drugs came in and you had the signal, the heat, if you
will, of the circumstances turned up a great deal. Is that not right?

A: Yes, it did.

Q: So, at that point, once you got the signal, you were very concerned
that he might hightail it out of there?

A: Yes.




                                   29
It is clear from LeClair’s testimony that the agents’ goal when entering the

apartment was to arrest Ramirez. What is equally clear, however, is that agents did

not have an arrest warrant empowering them to do so.

       “In terms that apply equally to seizures of property and to seizures of

persons, the Fourth Amendment has drawn a firm line at the entrance to the house.

Absent exigent circumstances, that threshold may not reasonably be crossed

without a warrant.” Payton v. New York, 445 U.S. 513, 590, 100 S. Ct. 1371,

1382, 63 L. Ed. 2d 634 (1980); see also United States v. Sandridge, 810 F.2d 1034,

1036 (11th Cir. 1987) (per curiam). Conceding that the agents had no arrest

warrant, the Government argues in its brief to this court that exigent circumstances

nonetheless justified the agents’ entry of Ramirez and Santa’s apartment in that

      the location of the apartment made it particularly easy for the
      defendants to escape or evade the agents. The apartment was located
      on the first floor of an apartment complex, with a golf course right
      behind it. The apartment had a sliding glass door that opened onto the
      golf course from which defendants could readily escape. The agents
      could not adequately watch the sliding glass door because they would
      be seen by the defendants inside. In addition, the front window of the
      apartment overlooked the parking lot where agents were conducting
      surveillance. Although there was no evidence that Ramirez or Santa
      were actually aware of the law enforcement surveillance prior to the
      agents’ entry into the apartment, it was entirely possible that the
      defendants would have observed the agents through the front window,
      especially because the agents were wearing their DEA jackets and had
      to run thirty or forty yards across the parking lot to get to the
      apartment. In addition, the location of the residence within an


                                         30
       apartment complex created the risk that the suspects could flee and
       endanger the other residents of the complex while evading arrest.

The Government contends that these circumstances would lead a reasonable,

experienced agent to believe that the defendants might escape into the apartment

complex or onto the golf course abutting their apartment before a warrant could be

secured.20 We find no merit in this argument.

       “The government is not compelled to effect an arrest upon the occurrence of

probable cause to believe a crime has been committed,” United States v. Hultgren,

713 F.2d 79, 87 (5th Cir. 1983); they may seek and obtain a warrant with the intent

to exercise it later. The DEA could have secured an arrest warrant for Ramirez as

early as October 5, 1998, when he sold the CI a “sample” amount of heroin at the

       20
           Had Ramirez or Santa left the apartment, the agents would not have needed a warrant
to effect their immediate arrest. In such a case, the necessary inquiry would not be whether there
was a warrant or whether there was time to get one, but whether there was probable cause for the
arrest. 21 U.S.C. § 878 provides that:

       (a) Any officer or employee of the Drug Enforcement Administration or any State
       or local law enforcement officer designated by the Attorney
       General may –
       ....
       (3) make arrests without warrant (A) for any offense against the United
        States committed in his presence, or (B) for any felony, cognizable
        under the laws of the United States, if he has probable cause to believe
        that the person to be arrested has committed or is committing a felony.

21 U.S.C. § 878(a)(3) (1994). Thus, agents could have lawfully arrested Ramirez or Santa
without a warrant the moment they exited the apartment. See United States v. Watson, 423 U.S.
411, 423-24, 96 S. Ct. 820, 827-28, 46 L. Ed. 2d 598 (1976) (holding that an officer may make a
warrantless arrest in a public place if the officer has probable cause to believe that the suspect
has committed a felony).

                                                31
Store. Similarly, probable cause to arrest Santa for conspiracy to possess heroin

with intent to distribute arose on October 5, when she talked with the CI on the

phone about arranging the later sale. Thus, agents could have arrived at the

apartment on October 7 armed with warrants for both suspects. “[W]hile the

opportunity to seek a warrant is not determinative, it is certainly relevant when

exigent circumstances are pleaded.” United States v. Duchi, 906 F.2d 1278, 1283

(8th Cir. 1990) (internal citation omitted).

      Moreover, the circumstances relied upon by the Government were not

exigent. Agents could not have been surprised by the location of the apartment or

its surroundings; they had been surveilling it for some time. They could not have

been surprised by the delivery of heroin; they were behind the entire scheme. As

discussed above, there was no evidence to suggest that either of the suspects was

about to flee or destroy the drugs, or that they were even aware of the agents’

surveillance. The urgency arising after the CI emerged from the apartment was

entirely foreseeable – the agents themselves had concocted the ruse. Ramirez’s

warrantless in-home arrest may not be justified on the basis of exigent

circumstances which were either nonexistent or created by the Government itself.

See Hultgren, 713 F.2d at 86.




                                          32
                                          C.

      While we agree with the district court’s conclusion that no exigent

circumstances supported the agents’ warrantless entry of Ramirez and Santa’s

apartment, this does not end the inquiry. “It is ‘well-settled that one of the

specifically established exceptions to the requirements of both a warrant and

probable cause is a search conducted pursuant to consent.’” United States v.

Freyre-Lazaro, 3 F.3d 1496, 1500-01 (11th Cir. 1993) (quoting Schneckloth v.

Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L. Ed. 2d 854 (1973)).

We must determine, therefore, whether Ramirez’s consent to search the apartment

was valid notwithstanding the illegal entry preceding it.

      For 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. United States v. Robinson, 625 F.2d 1211, 1219 (5th

Cir. 1980). Thus, the voluntariness of consent is only a threshold requirement; a

voluntary consent to search does not remove the taint of an illegal seizure. Id. at

1220. Rather, the second requirement focuses on causation: “[w]hether, granting

establishment of the primary illegality, the evidence to which instant objection is

made has been come at by exploitation of that illegality or instead by means

sufficiently distinguishable to be purged of the primary taint.” Wong Sun v.


                                          33
United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441 (1963)

(internal quotation omitted).

      The question whether consent is the product of free will under Wong Sun

must be answered on the facts of each case; no single fact is dispositive. Brown v.

Illinois, 422 U.S. 590, 603, 95 S. Ct. 2254, 2261, 45 L Ed. 2d 416 (1975). Three

factors to be considered in determining whether a voluntary consent was obtained

by exploitation of an illegal seizure are: the temporal proximity of the seizure and

the consent, the presence of intervening circumstances, and, particularly, the

purpose and flagrancy of the official misconduct . Cf. id. at 603-04, 95 S. Ct. at

2261-62 (applying factors to a confession given after an illegal arrest); Dunaway v.

New York, 442 U.S. 200, 218, 99 S. Ct. 2248, 2259, 60 L. Ed. 2d 824 (1979)

(same); United States v. Valdez, 931 F.2d 1448, 1452 (11th Cir. 1991) (applying

factors to consent given following an illegal traffic stop). We assume without

deciding that Ramirez’s consent to search was voluntary, and dispose of the issue

on the ground that such consent did not purge the primary taint of the illegal entry

and arrest.

      The district court adopted the magistrate judge’s R & R, which summarized

and decided the issue as follows:

      Defendants argue that the illegal entry vitiates the consent given by
      Ramirez. This Court disagrees. In order for Defendants’ position to

                                         34
      be correct, this Court would have to find that Ramirez was so affected
      by the unlawful entry that the consent should be considered
      involuntary. Had the agents followed the CI back into Defendants’
      apartment, albeit illegally, rather than having forcibly entered, and had
      Ramirez consented to the search, the Court would have found the
      consent to be voluntary. There was no evidence presented which
      would lead this Court to find that the method in which the agents
      entered the apartment was so disturbing or had such an effect on
      Ramirez as to make his consent involuntary. This finding is bolstered
      by the fact that Ramirez executed a written consent to search form,
      there was no evidence of hesitation on his part, and indeed Ramirez
      not only consented to the search but also told the agents where to find
      the drugs.

The district court’s focus on “voluntariness” misstates the law in this circuit. The

proper inquiry is not simply whether Ramirez’s will was overborne by the agents’

illegal entry, but also whether his consent was a “product” of that illegality. The

Government has failed to carry its burden of showing that it was not.

      The government may defeat a motion to suppress by demonstrating a
      break in the causal chain. . . . [I]ntervening events or circumstances
      independent of the primary illegality may have so attenuated the
      causal connection as to dissipate the taint of unlawful police action. . .
      .    While a “but for” connection between the unlawful police
      conduct and the defendant’s response will not in itself establish the
      requisite causal link, neither will an act by a defendant, which may in
      some sense be considered “voluntary,” necessarily break the causal
      chain.

United States v. Bailey, 691 F.2d 1009, 1013 (11th Cir. 1982) (internal citations
omitted). In the instant case, Ramirez’s consent to search came approximately

three minutes after DEA agents kicked in his door, entered the apartment, ordered

him onto the floor, and handcuffed him. Ramirez was read his Miranda warnings

                                          35
as agents conducted a protective sweep of the entire apartment, and was then asked

where the drugs were located. After being told to “just make things easy and tell

[the agents] where the drugs were,” Ramirez stated that they were under the sink in

the master bathroom.

       Even assuming that Ramirez’s consent was voluntary, we hold that the

consent was nonetheless a product of the unlawful arrest. “Miranda warnings do

not, without more, dissipate the taint of an illegal seizure.” Robinson, 625 F.2d at

1220 (citing Dunaway, 442 U.S. at 217-20, 99 S. Ct. at 2258-60). Applying the

factors set forth in Brown, 422 U.S. at 603, 95 S. Ct. at 2261, there was neither a

significant lapse of time nor any intervening circumstance which could be said to

have dissipated the effect of the illegality. The agents’ unlawful conduct in

entering the apartment and seizing Ramirez, while not “flagrant,” had no legal

justification.

       Finally, the fact that Ramirez signed a consent form after the search was

complete does not persuade us that his consent was not the product of the illegal

arrest. In Brown v. Illinois, the Supreme Court noted that where Brown had

already given one confession during the course of his illegal detention, believed by

him to be admissible (although it was not), this belief “bolstered the pressures for

him to give the second [confession], or at least vitiated any incentive on his part to


                                          36
avoid self-incrimination.” 422 U.S. at 605 n.12, 95 S. Ct. at 2262 n.12. Thus, the

second confession was held to be “the result and the fruit of the first.” Id. at 605,

95 S. Ct. at 2262. The same reasoning applies here, where Ramirez had already

disclosed the location of the drugs and knew that the agents had found them. After

agreeing to “just make things easy and tell [the agents] where the drugs were,”

Ramirez had no reason to refuse to sign a form memorializing what he had already

done. Thus, the consent form cannot be viewed as an intervening circumstance

sufficient to dissipate the taint of Ramirez’s unlawful arrest.



                                          IV.

      Although the district court was correct in finding that there were no exigent

circumstances to support the warrantless entry of Ramirez and Santa’s apartment,

the district court nonetheless erred by applying the wrong legal standard to

Ramirez’s consent to search. Because Ramirez’s consent was tainted by his

unlawful arrest, it was insufficient to legitimate the search of his residence. Thus,

we REVERSE the district court’s denial of Santa’s motion to suppress and

REMAND the case to the district court for further proceedings consistent with this

opinion.

      SO ORDERED.


                                          37
38
