                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             AUG 22, 2008
                              No. 07-12669                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

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

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
                      _________________________

                              (August 22, 2008)

Before BIRCH, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

     Jawan Lequint Myers appeals his conviction on one count of possession with
intent to distribute cocaine and cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1), and (b)(1)(C). Myers contends that the district court erred by

denying his motion to suppress evidence seized at his residence. He argues that the

district court failed to engage in the second part of a two-part inquiry that required

the court to determine whether a prior illegal search in his backyard tainted the

consent by his wife, Ruby Myers, to search his residence.

                                           I.

       In February 2005 in preparation for the Super Bowl, which was to be held in

Jacksonville, Florida, the Jacksonville FBI office requested help with security from

nearby FBI S.W.A.T. teams. The Atlanta team responded and checked into the

Jacksonville Holiday Inn. When the team went to their van on morning of the

Super Bowl, the agents discovered that someone had broken into it and had stolen

four sniper rifles, two M-4 fully automatic rifles and two Springfield .45 caliber

pistols.

       In early September 2005 the burglary division of the Jacksonville Sheriff’s

Office received a tip that Kedrick Ewing had stolen the guns. The tipster told the

police that Ewing might have sold the guns to his cousin, a drug dealer that the

tipster knew as “Red.” The tipster provided Red’s address and told the police that

Ewing often sold stolen items to Red, including a stolen go-kart. He also stated



                                           2
that the go-kart was located behind the house. The police later found out that there

was an outstanding warrant for Ewing’s arrest.

      On September 9, 2005, four law enforcement officers—FBI Special Agents

James Dougal and Graham Grafton and Detective Kipple and Officer Brown from

the Jacksonville Sheriff’s Office—went to the address that the tipster had provided

to find Ewing and to gather information about the stolen guns. When they arrived

Detective Kipple went around the back of the house, Agent Grafton went to the left

front of the house, and the other two officers went to the front door. Officer

Dougal testified at the suppression hearing that this approach was used for their

safety so that all of the exits from the house would be covered.

      While at the back of the house, Detective Kipple entered the fenced yard,

lifted the corner of a tarp, and saw a go-kart. He went back to the front of the

house and told Agent Dougal that there was a go-kart in the backyard. Officer

Brown, who was dressed in his police uniform, then knocked on the front door.

Ruby Myers cracked open the door to talk to Brown. Brown explained that he and

the other officers were looking for Ewing and were investigating the theft of

several guns and a go-kart, and he asked Ruby if anyone else was in the home.

Ruby said no, but when Brown saw someone moving inside the house, Ruby said

her “boyfriend” was there, Jawan Myers, whom she also later identified as her



                                          3
husband.

      Agent Dougal then asked Ruby to come outside to speak with him, and

Myers also came out to the enclosed front porch in front of the house to speak to

Officer Brown. Ruby walked out to the driveway with Dougal, who identified

himself as an FBI special agent and told her that there was a stolen go-kart in her

backyard and that he was investigating the theft of FBI guns. He asked for her

permission to search her house to see if they could find any of the stolen guns, and

she agreed, saying that it “wouldn’t be a problem, sure.”

      Agent Dougal then went to his car to get a consent to search form, and he

brought it back and gave it to Ruby. He then read her the form while she held it.

Ruby asked Dougal if she could ask her husband before she signed the form, and

he said yes, so she walked to the enclosed front porch and handed the form to

Myers. Myers read the form and handed it back to Ruby, telling her that it was

okay. Ruby then signed the form and later explained that she consented to the

search because she didn’t think the officers were going to find anything.

      After she signed the form, Agent Dougal and the other officers searched the

house. The officers found powder and crack cocaine, marijuana, guns unrelated to

the FBI theft, and a FBI firearms manual. Ruby said she had no knowledge of the

drugs, and Myers was arrested but she was not. After his arrest Myers was



                                          4
indicted for possessing with intent to distribute cocaine and cocaine base in

violation of 21 U.S.C. § 841, and possessing a firearm after having been convicted

of a felony in violation of 18 U.S.C. § 922(g).

      Myers moved to suppress the drugs and guns, contending that Detective

Kipple’s search of the backyard violated the Fourth Amendment and that the illegal

search tainted Ruby’s consent to search the home. The district court held a hearing

and denied the motion. In doing so the court assumed that Detective Kipple’s

initial search of the backyard violated the Fourth Amendment but ultimately

concluded that, under the totality of the circumstances, Ruby’s consent to search

her home was voluntary.

      The district court dismissed the firearms charge on the government’s motion

and then conducted a bench trial of the drug charge on stipulated facts. It found

Myers guilty and sentenced him to 84 months imprisonment. Myers appeals and

contends that the district court erred by denying his motion to suppress. According

to Myers, Detective Kipple’s initial entry and search of the fenced yard did, as the

district court assumed, violate the Fourth Amendment. Myers contends that

because of this illegal search the district court was required to engage in two

separate inquiries in deciding the motion to suppress. The district court, Myers

says, was required to examine both whether Ruby’s consent was voluntary, and if



                                           5
so, whether her consent had been tainted by Detective Kipple’s illegal search of the

backyard. Myers contends that Ruby’s consent was tainted by the earlier illegal

search and that the district court committed reversible error by failing to decide the

taint issue.

                                          II.

       In United States v. Delancy, 502 F.3d 1297 (11th Cir. 2007), this Court held

that courts are “required to conduct two separate inquiries where a consent to

search follows prior illegal activity by the police.” Id. at 1308. “First, a court

must determine whether the consent was voluntary. Second, the court must

determine whether the consent, even if voluntary, requires exclusion of the

evidence found during the search because it was the ‘fruit of the poisonous

tree’—the product of an illegal entry.” Id. “[T]he voluntariness of consent is only

a threshold requirement; a voluntary consent to search does not remove the taint of

an illegal seizure. Rather, the second requirement focuses on causation . . . .” Id.

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

bears the burden on both issues.” Id. (citing United States v. Robinson, 625 F.2d

1211, 1219 (5th Cir. 1980)).

       In Robinson, the former Fifth Circuit rejected a magistrate judge’s finding

that the defendant’s voluntary consent to a search removed the taint of an illegal



                                           6
stop and remanded the case because the magistrate judge had failed to engage in

the proper legal analysis. Robinson, 625 F.2d at 1219. In denying the motion to

suppress, the magistrate had stated, “This Circuit has previously held that a

voluntary consent to a search will remove the taint of an illegal arrest. Similarly,

advising a defendant of his right to refuse his consent to a search constitutes a

sufficient intervening factor to remove the taint of a prior Fourth Amendment

violation.” Id. at 1220 (quotation and citations omitted). Because the magistrate

judge had “merely satisfied himself that Robinson’s consent to the search was

voluntary,” this Court held that the magistrate judge had applied the incorrect legal

standard. We explained:

      Contrary to the magistrate’s apparent view of the law, a voluntary
      consent to search does not remove the taint of an illegal seizure.
      Rather, voluntariness is merely a threshold requirement. The “causal
      connection” between the illegal seizure and the consent to search must
      be independently examined, utilizing the factors set out in Brown 1 in
      light of the policies to be served by the [F]ourth [A]mendment
      exclusionary rule.

Id. (footnote omitted). We remanded the case to the district court to make the

appropriate factfindings and conclusions because “it is the district court’s duty to

make findings of fact in the first instance on the attenuation issue.” Id.

      In its order denying Myers’ motion to suppress, the district court described



      1
          Brown v. Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254, 2261-62 (1975).

                                                7
the issues as “whether an Officer’s ‘search’ of the . . . backyard was legal and

whether the consent given to the subsequent house search was voluntary.” The

court assumed that Detective Kipple’s initial search of the backyard was illegal and

went on to examine whether, under the totality of the circumstances, Ruby’s later

consent to search her home was voluntary. The district court concluded that

Ruby’s consent was voluntary, but it did not go on to decide whether her consent

was tainted by what it had assumed to be an illegal search. It should have done so.

See Delancy, 502 F.3d at 1308; Robinson, 625 F.2d 1220. Because the district

court failed to determine whether Ruby’s consent to search the residence was

tainted by a prior illegal search, we vacate and remand to the district court to

decide the issue in the first instance.2 See Robinson, 625 F.2d at 1220.

       VACATED AND REMANDED.




       2
           On remand the district court may wish to decide, rather than assume, whether Detective
Kipple’s initial search of the backyard was illegal. However, that is a decision we leave to the
district court.

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