                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3326
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of South Dakota.
Rafael Vega-Rico,                       *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: March 15, 2005
                                Filed: August 10, 2005
                                 ___________

Before MURPHY, BYE, and SMITH, Circuit Judges.
                           ___________

SMITH, Circuit Judge.

       Rafael Vega-Rico ("Vega-Rico") pled guilty in the United States District Court
for the District of South Dakota1 to illegal reentry in violation of 8 U.S.C. § 1326.
However, Vega-Rico reserved the right to appeal the district court's denial of his
motion to suppress statements he made to a Department of Homeland Security
("DHS") agent. We affirm.




      1
       The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.
                                     I. Background
       Officer Brad Parker ("Officer Parker") of the Yankton Police Department in
South Dakota stopped a vehicle driven by Loretta Zephier ("Zephier"). Officer Parker
issued Zephier a courtesy warning for failing to signal a lefthand turn. Zephier
informed Officer Parker that her driver's license was either revoked or suspended and
that the vehicle belonged to Vega-Rico, who at the time of the stop was a passenger
in the back seat. While Officer Parker called dispatch for information regarding
Zephier's license status, Officer Jason Foote ("Officer Foote"), along with Rex, a dog
in Officer Foote's canine unit, arrived on the scene as routine backup. At the time of
Zephier's stop, Officer Foote was not involved in any drug investigation and it was
only happenstance that Officer Foote was in a canine unit.

        While Officer Parker interviewed Zephier, Officer Foote approached and
identified the three passengers in the vehicle. Officer Foote walked Rex around the
exterior of the vehicle after the passengers had exited. Rex alerted to the gas fill area
on the driver's side of the vehicle. A search of this area revealed no drugs. Officer
Foote then put Rex in his patrol vehicle and searched the interior of the vehicle,
including the glove box. When Officer Foote located nothing in the interior of the
vehicle, he retrieved Rex and put Rex in the backseat of the vehicle. Rex then went
to the front seat of the vehicle and indicated to the glove box. This time, Officer Foote
found leaves and stems of marijuana in the back corner of the glove box.

      Officer Foote then asked Vega-Rico if he had anything illegal on his person.
Officer Foote arrested Vega-Rico and attempted to read Miranda rights to him in
English, but Vega-Rico could not understand them. Vega-Rico was then searched.
Officer Foote found an expired resident alien card and Vega-Rico was placed on
deportation hold.

      The Yankton Police Department advised DHS Agent Kenneth Baird ("Agent
Baird") that Vega-Rico was in their custody. Agent Baird began an investigation to

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determine Vega-Rico's alien status and also obtained booking information from the
Yankton Police Department, including Vega-Rico's fingerprints. This investigation
revealed that a person with Vega-Rico's identity had been previously deported. Agent
Baird informed the Yankton Police Department that he would be picking up Vega-
Rico.

        Agent Baird transported Vega-Rico to the Sioux Falls Immigration Office
where he was fingerprinted. Agent Baird conducted a query of the Automated
Fingerprint Identification System Database and verified that Vega-Rico had been
previously deported. Agent Baird gave Vega-Rico Miranda warnings in Spanish,
which Vega-Rico understood. Vega-Rico agreed to speak with Agent Baird, and in
a fifteen-minute interview, also conducted in Spanish, revealed his date and place of
birth and the names of his parents. Vega-Rico also admitted to two prior deportations,
two criminal convictions, and his failure to receive permission to return to the United
States. Agent Baird did not reveal to Vega-Rico the information he had on file
regarding the deportations prior to or during the interview.

       Vega-Rico brought motions to suppress the evidence obtained from the vehicle
stop and, most relevant to this appeal, his post-Miranda statements to Agent Baird.
The magistrate judge denied the motions. The district court reversed in part, and held
that the search of Vega-Rico's vehicle violated the Fourth Amendment because Rex
was not sufficiently reliable for drug detection. The district court then suppressed all
evidence, except Vega-Rico's post-Miranda statements to Agent Baird. The district
court held that his statements to Agent Baird were sufficiently an act of free will to
purge the primary taint of the Fourth Amendment violation. Vega-Rico now timely
appeals the denial of the motion to suppress his statements to Agent Baird.

                                   II. Discussion
      We review the motion to suppress de novo, but review the district court's
factual findings in deciding the motion for clear error. United States v. Yousif, 308

                                          -3-
F.3d 820, 827 (8th Cir. 2002). Evidence that is the "fruit" of an illegal search or
seizure is not admissible, and "[t]he exclusionary prohibition extends as well to the
indirect as the direct products of such invasions." Wong Sun v. United States, 371
U.S. 471, 484–85 (1963). "Verbal statements obtained as a result of a Fourth
Amendment violation are as much subject to the exclusionary rule as are items of
physical evidence discovered during an illegal search." Yousif, 308 F.3d at 832
(citing Wong Sun, 371 U.S. at 485 ("the Fourth Amendment may protect against the
overhearing of verbal statements as well as against the more traditional seizure of
'papers and effects'")). Therefore, "[s]tatements that result from an illegal detention
are not admissible." United States v. Hernandez-Hernandez, 384 F.3d 562, 565 (8th
Cir. 2004) (citing United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir. 1994)). To
break the causal chain between an illegal arrest and a statement given later, the
statement must be "sufficiently an act of free will to purge the primary taint." Ramos,
42 F.3d at 1164 (quoting Wong Sun, 371 U.S. at 486).

       "The giving of Miranda warnings, followed by the making of a voluntary
statement, does not, in and of itself, mandate a statement's admissibility." Ramos, 42
F.3d at 1164 (citing Brown v. Illinois, 422 U.S. 590, 602 (1975). "Instead, to decide
whether a confession is the product of a free will, [we] consider Miranda warnings,
the temporal proximity of the arrest and the confession, the presence of intervening
circumstances, and particularly, the purpose and flagrancy of the official misconduct."
Hernandez-Hernandez, 384 F.3d at 565; see also Brown, 422 U.S. at 602. The denial
of a motion to suppress must be affirmed "unless the decision is unsupported by
substantial evidence, is based on an erroneous view of the applicable law, or in light
of the entire record, we are left with a firm and definite conviction that a mistake has
been made." Hernandez-Hernandez, 384 F.3d at 564–65. Vega-Rico contends the
government failed to carry its burden to show his statements to Agent Baird were the
result of an act of free will.




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       This case tracks the facts of Hernandez-Hernandez, where defendant was
arrested after he revealed during a traffic violation that he was working during his
immigration status. Id. at 564. Defendant was then transferred to the custody of
Immigration and Naturalization Service ("INS") agents. Id. After being given Miranda
warnings and signing an advice of rights form, defendant admitted to INS agents that
"he had been deported six or seven months earlier, and had reentered the United States
illegally a couple of months later." Id. The district court denied defendant's motion to
suppress the statements after it had been determined that defendant was illegally
detained. Id. We affirmed the denial of the motion to suppress, reasoning that

      the INS questioning was conducted five days after the initial questioning
      . . . and there is no evidence Hernandez-Hernandez was questioned or
      coerced during those five days in jail. Further, the INS questioning was
      conducted at the INS office, not at the scene of the first round of
      questioning, and was conducted by an INS agent who had no
      involvement in the earlier questioning. Finally, the INS agent did not
      treat his questioning as continuous with the earlier questioning during the
      traffic stop. The different methods and distant timing of the
      interrogations do not indicate intentional, calculated conduct by the
      authorities.

Id. at 566.

       In this case, Vega-Rico's post-Miranda statements were made four days after
the Fourth Amendment violation occurred. The interview was conducted in a different
city by an agent from a separate law enforcement agency, and neither agent nor agency
had any involvement in the initial Fourth Amendment violation. The interview was
conducted for purposes unrelated to the circumstances surrounding the Fourth
Amendment violation. In addition, the official misconduct in this case—reliance on
an unreliable drug-snffing dog—was not flagrant. While Vega-Rico incorrectly




                                          -5-
argues that the statements would only be free of taint if they were made after he was
released and then voluntarily returned to the DHS, relevant precedent says otherwise.
See Hernandez-Hernandez, 384 F.3d at 564–67.

      Vega-Rico also argues that Hernandez-Hernandez was decided under the Fifth
Amendment rather than the Fourth Amendment's exclusionary rule. We disagree, as
Hernandez-Hernandez relied upon Ramos and Yousif, which analyzed the
admissibility of Hernandez-Hernandez's statements under the test set forth in Wong
Sun and Brown, all of which were cited by Vega-Rico in support of his motion to
suppress. We affirm the district court's denial of Vega-Rico's motion to suppress his
statements to Agent Baird.

BYE, Circuit Judge, concurring.

       I concede that United States v. Hernandez-Hernandez, 384 F.3d 562 (8th Cir.
2004) controls the outcome of the present case, but I write separately to voice my
disagreement with its holding. Initially, something must be said in regards to the
court’s confusing analysis in Hernandez-Hernandez. The court began by classifying
the issue as one involving an illegal detention in violation of the Fourth Amendment.
Id. at 565. The court then, after acknowledging the district court’s application of
factors relevant to a Fourth Amendment analysis (Ramos factors), id., proceeded to
analyze the case as one controlled by the Fifth Amendment, id. at 565-67 (discussing
the Fifth Amendment cases of Oregon v. Elstad, 470 U.S. 298 (1985) and Missouri v.
Seibert, 124 S. Ct. 2601 (2004)). The court completed its discussion by inexplicably
concluding factors seemingly relevant to the Fourth Amendment intervened between
the unwarned questioning (i.e., a Fifth Amendment Miranda issue) and the subsequent
postwarning statements. Id. at 567.

      This confusing analysis prompted Vega-Rico to argue Hernandez-Hernandez
was decided under the Fifth Amendment’s exclusionary rule rather than the Fourth

                                        -6-
Amendment’s. If Vega-Rico is correct, Hernandez-Hernandez would not be
controlling or persuasive because the Fourth Amendment requires a broader
application of the exclusionary rule and a more exacting standard to purge the taint of
a violation. United States v. Fellers, 397 F.3d 1090, 1094-95 (8th Cir. 2005). My
careful reading of the opinion, however, does not support Vega-Rico’s position. In
my view, Hernandez-Hernandez was an illegal detention case.2 Although the court in
Hernandez-Hernandez did not explain clearly why or how the defendant was illegally
detained in violation of the Fourth Amendment, it presumably occurred when the
trooper exceeded the scope of the traffic stop. Id. at 564. The unwarned statements
made to the trooper and later to the border patrol agent were fruits of this
unconstitutionally prolonged traffic stop. On appeal, the government apparently
conceded, and rightfully so, the inadmissability of these statements, which were made
contemporaneously to the initial illegal detention and without the prophylactic
warnings of Miranda. The government, however, did not concede the inadmissability
of postwarning statements made five days after the initial illegal detention to a
different border patrol agent at his INS office.

       Without this concession, the court held the five-day delay between the initial
illegality and the postwarning statement, along with the change in interrogating
location and personnel were sufficient intervening circumstances to purge the taint of
the initial illegality. Id. at 567. This holding has served to whittle away important

      2
        Admittedly, certain statements within the opinion cause me to question my
view. Particularly, the court’s reference in the concluding paragraph to unwarned
questioning, rather than an illegal detention, as the event which triggered the need to
purge the taint. Unwarned questioning is, of course, not a violation of the Fourth
Amendment, but a violation of the Miranda warnings designed to protect Fifth
Amendment rights. This reference to unwarned questioning was also preceded by a
discussion of Fifth Amendment case law and by a statement on how the Seibert
factors were similar to the Ramos factors. Id. at 566. Thus, I think it conceivable that
the court’s analysis was a Fifth Amendment voluntariness inquiry which looked
similar to, but was not, a Fourth Amendment analysis under Ramos.

                                          -7-
constitutional protections by ignoring a key constitutional fact and by expanding the
definition of intervening circumstances to include unilateral acts of law enforcement.

       The court’s holding first whittled away important constitutional protections by
overlooking the fact that the five-day interval between the Fourth Amendment
violation and the postwarning statements was spent in custody. Id. at 564. This
prolonged five-day period of incarceration cuts against the confession being of free
will and constitutes a more serious violation than the initial illegal seizure. Dunaway
v. New York, 442 U.S. 200, 220 (1979) (Stevens, J., concurring). In fact, “where no
intervening circumstances are present, a long and illegal detention may in itself impel
the defendant to confess.” People v. White, 512 N.E.2d 677, 688 (Ill. 1987). During
this five-day period of isolation, Hernandez-Hernandez had little or no contact with
anyone other than law enforcement. This isolation and other jailhouse conditions are
less than ideal for the rational decision-making processes required to decide
voluntarily and intelligently whether to confess. Cf. Clewis v. Texas, 386 U.S. 707,
712 (1967). Thus, without an intervening circumstance, a court must assume the
confession was, at least in part, prompted by these less than ideal jailhouse conditions.
Dunaway, 442 U.S. at 220 (Stevens, J., concurring).

       The court then further whittled away important constitutional protections by
expanding the definition of intervening circumstances to include unilateral acts of law
enforcement. Prior to Hernandez-Hernandez I can find no other court which held
unilateral acts of law enforcement to be intervening circumstances. See, e.g., Taylor
v. Alabama, 457 U.S. 687, 692-93 (1982) (rejecting an arrest warrant obtained by law
enforcement ex parte as an intervening circumstance). All other intervening
circumstance cases focus on the conduct of the suspect as in Wong Sun v. United
States, 371 U.S. 471, 491 (1963), or the on the actions of a neutral party such as the
judiciary as in Johnson v. Louisiana, 406 U.S. 356, 365 (1972). Despite the
government’s contention otherwise, the INS agent’s actions in seizing Hernandez-
Hernandez and transporting him to another location for additional investigatory

                                          -8-
interrogation did not purge the taint of the initial constitutional violation, but
exasperated it. In other words, the perpetrators of an illegal search or seizure tagging
off to an agent from a different law enforcement agency is not an intervening
circumstance, not an act of free will sufficient to purge the taint of an initial Fourth
Amendment violation. White, 512 N.E.2d at 689. This is practically black letter law.
See 6 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment
§ 11.4(b), at 298 (4th ed. 2004). Thus, even in the absence of flagrant official
misconduct, the government’s failure to show an intervening act of free will on the
part of Hernandez-Hernandez required suppression of his postwarning statements
which were proximately caused by the Fourth Amendment violation. But, even
though I disagree with its holding, I find Hernandez-Hernandez indistinguishable from
the present case. I therefore reluctantly concur in the judgment of the majority.
                        ______________________________




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