               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 04a0085n.06
                           Filed: November 12, 2004

                                      No. 03-4139

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT

                                                     )
UNITED STATES OF AMERICA,                            )
                                                     )
                       Appellant,                    )
                                                     )       ON APPEAL FROM THE
v.                                                   )       UNITED STATES DISTRICT
                                                     )       COURT FOR THE SOUTHERN
DARYL BALDWIN,                                       )       DISTRICT OF OHIO
                                                     )
                       Appellee.                     )
                                                     )



       Before: DAUGHTREY, SUTTON, Circuit Judges; COOK, District Judge.*


       COOK, District Judge. The Government appeals an order suppressing evidence which, in

its opinion, supports a charge against the Defendant, Daryl Baldwin, of being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court, after concluding that the

investigative stop of the car in which Baldwin was a passenger was illegal, suppressed all of the

evidence which followed the stop. For the following reasons, we affirm.

                                                I.

       Shortly before 5:00 a.m. on January 19, 2003, Officer Thomas Coombs of the Cincinnati

Police Department (“CPD”) was on patrol in a marked police car in the “Over-the-Rhine” area, a



       *
         The Honorable Julian Abele Cook, Jr., United States District Judge for the Eastern
District of Michigan, sitting by designation.
reputed high-crime neighborhood, when he heard the sound of multiple gunshots. After seeing an

individual running from the intersection of Greene and Elm Streets, he and a fellow officer, Carl

Blackwell, gave chase in separate patrol cars in an effort to locate the person who was responsible

for the shooting. Although their collective efforts were unsuccessful, Coombs and Blackwell came

across a parked car near the Greene/Elm intersection on Pleasant Street.1 They got out of their

patrol cars to investigate, approached the parked vehicle on foot without their weapons being

drawn, and found Baldwin and his uncle, Eric Gilchrist, sitting on the front seats.

          When they were questioned about the shooting incident by the officers, Baldwin and

Gilchrist denied having any knowledge about the gunshots. The record is not completely clear as

to what transpired next. The Government claims that Baldwin and Gilchrist consented to a personal

search by the officers. According to Coombs, Gilchrist said, “[w]e don’t have anything on us. You

can check me.” Baldwin, after echoing his uncle’s sentiments, was instructed to exit the vehicle.

Gilchrist, however, testified that Blackwell, without making any introductory comments, opened

the driver’s door and immediately placed him in handcuffs in a squad car.

          As Baldwin attempted to leave his car, he appeared to hesitate. In an effort to prevent

Baldwin from reentering the vehicle, Coombs blocked the passenger doorway, spun him around,

and conducted a pat down search. Baldwin broke free of Coombs’s grasp and ran north on Pleasant

Street. Coombs, along with a third officer, pursued Baldwin who was eventually tackled by them

and subdued with mace.2 During the skirmish, Coombs retrieved a firearm from Baldwin’s coat

pocket.


          1
        Pleasant Street is a northbound one-way street, that was described by Coombs at the
suppression hearing as “small” and “little.” J.A. at 62.
          2
         The encounters with Baldwin and Gilchrist eventually involved a total of four officers.
However, the record does not indicate when the two additional officers appeared on the scene to
assist Blackwell and Coombs during their investigation.

                                                 2
       Following the altercation, Baldwin was placed in the back of Coombs’s squad car where

he was advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Baldwin indicated

that he understood his rights, and then made incriminating statements regarding the firearm.

Baldwin was indicted on March 20, 2003. Four days later, Gwen Gregory, an agent with the

Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), transported him from the county

jail to the federal courthouse for a court appearance. During the trip, Gregory read Miranda

warnings to Baldwin who indicated that he understood them.             Baldwin thereafter made

incriminating statements regarding his purchase of the gun and admitted that he was a convicted

felon. When shown a photograph of the firearm at a later time, he identified it as the gun that was

possessed by him on January 19, 2003.

       On May 2, 2003, Baldwin filed a motion to suppress evidence of the firearm and his two

incriminating statements, contending that the arrest was illegal and all subsequently obtained

evidence was inadmissible. On August 23, 2003, the district court granted the motion, finding that

(1) the police had “seized” Baldwin within the meaning of the Fourth Amendment immediately

upon approaching Gilchrist’s vehicle and (2) the subsequent pat down procedure by Coombs was

an “exploitation of the illegal stop.” J.A. at 28, 31. In making this finding, the district court

reconciled the two different versions of events that had been cited by the parties by accepting the

testimonies of Coombs and Gilchrist. Noting that the “two lines of testimony are not necessarily

incompatible,” the district court gave credence to (1) Coombs, who testified during the suppression

hearing that he had been told by Baldwin and Gilchrist that he could check them since they did not

“have anything” on them, and (2) Gilchrist, whose testimony indicated that he had been ordered

out of the car by Blackwell, handcuffed, and placed in the police cruiser within a minute of the

officers’ approach. J.A. at 25.

                                               II.

                                                 3
       The Court reviews the factual findings of a district court in a suppression hearing for clear

error, and reviews its conclusions of law, such as the existence or absence of probable cause, on

a de novo basis. United States v. Couch, 367 F.3d 557, 560 (6th Cir. 2004). The determination by

the district court as to whether the facts establish an unconstitutional seizure under the Fourth

Amendment is a question of law that we review de novo. United States v. Avery, 137 F.3d 343, 348

(6th Cir. 1997).

                                                 III.

       The Government initially argues that the district court erred in determining that the initial

approach by the CPD officers represented a warrantless seizure in violation of the Fourth

Amendment to the Constitution. According to the Government, no seizure occurred because

Coombs merely directed some questions to Baldwin who subsequently consented to a search.

Accordingly, we must now seek to determine whether the facts in this case support a finding that

the initial contact by the officers constituted a seizure or a consensual encounter. See United States

v. Waldon, 206 F.3d 597, 602 (6th Cir. 2002).

       “[A] warrantless search or seizure is ‘per se unreasonable under the Fourth Amendment –

subject only to a few specifically established and well-delineated exceptions.’ Consent is one such

exception.” United States v. Roark, 36 F.3d 14, 17 (6th Cir. 1994) (quoting Katz v. United States,

389 U.S. 347, 357 (1967)). It is clear that “[l]aw enforcement officers do not violate the Fourth

Amendment’s prohibition of unreasonable seizures merely by approaching individuals on the street

or in other public places and putting questions to them if they are willing to listen.” United States

v. Drayton, 536 U.S. 194, 200 (2002).

       A consensual encounter becomes a seizure when “in view of all the circumstances

surrounding the incident, a reasonable person would have believed that he was not free to leave.”

United States v. Mendenhall, 446 U.S. 544, 554 (1980). In Mendenhall, the Supreme Court set

                                                  4
forth several factors which, if present, indicate that a seizure has occurred. Such factors include

“the threatening presence of several officers, the display of a weapon by an officer, some physical

touching of the person of the citizen, or the use of language or tone of voice indicating that

compliance with the officer’s request might be compelled.” Id. at 554.

       Upon our review of the record, we conclude that the encounter which took place on January

19, 2003, was not consensual. One major factor which supports this conclusion is the setting of the

incident. “[W]hat constitutes a restraint on liberty prompting a person to conclude that he is not

free to ‘leave’ will vary, not only with the particular police conduct at issue, but also with the

setting in which the conduct occurs.” Michigan v. Chesternut, 486 U.S. 567, 573 (1988).

       In this case, the encounter took place during the early morning hours in the middle of

winter. Gilchrist’s vehicle represented the only occupied car in an area that had, according to

Coombs, “no vehicle traffic [and] no pedestrian traffic.” J.A. at 71. Blackwell approached from

the south and parked two feet behind Gilchrist’s car. Coombs, by contrast, approached from the

north and parked his car in front of Gilchrist’s vehicle. The position of the two police cruisers

effectively surrounded and blocked Gilchrist car on what was described by Coombs as a “small”

one-way street. Given this configuration of vehicles at the time of the encounter, a reasonable

person in Baldwin’s situation would not have felt free to leave the area. In fact, it is unclear

whether Gilchrist and Baldwin could have exited the area even if they felt free to do so.3

       The conduct of the police officers also demonstrates that a seizure occurred as soon as they

approached Gilchrist’s vehicle. The police officers did not ask Baldwin or Gilchrist to merely


       3
          The district court “assume[d]” that Gilchrist could not pull his car forward without
hitting Officer Coombs’ car. J.A. at 29. However, the court also noted that this assumption was
not necessary for its finding that the officers seized Gilchrist’s car upon approach. Id. In any
event, the fact that Gilchrist’s vehicle was surrounded by two police cars on a small, one-way
street at 5:00 a.m. gives rise to an inference that Baldwin and Gilchrist may have felt compelled
to stay and answer the police officers’ questions.

                                                 5
answer some questions. Rather, Coombs sought to determine if either of the two men had heard

any gunfire, whereas Blackwell demanded that Gilchrist exit the vehicle.4 The police officers’ tone

and compulsory language suggest that they expected Baldwin and Gilchrist to answer their

questions and fully comply with their demands. Thus, this situation is unlike the factual scenario

in United States v. Buchanon, 72 F.3d 1217 (6th Cir. 1995), which was cited by the Government

in support of its position on this issue. In Buchanon, the Court determined that an initial stop did

not constitute a seizure when a police officer assisted individuals whose vehicle was disabled on

the side of the highway. Unlike the situation in Buchanon, the officers in this case made explicit

demands upon Baldwin and Gilchrist which clearly conveyed a message that their compliance was

required. Under this situation, it is clear that Baldwin did not feel free to “disregard the police and

go about his business.” Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting California v. Hodari

D., 499 U.S. 621, 628 (1991)). Given the presence of two additional law enforcement officers,

coupled with the placement of the patrol cars by Coombs and Blackwell on Pleasant Street, a

reasonable person would have felt threatened or intimidated by this type of overwhelming police

presence.

       Thus, it is our view that the totality of the circumstances surrounding the initial police

approach of Gilchrist’s parked car would communicate to a reasonable person that he was not free

to terminate the encounter. Accordingly, we affirm the conclusion of the district court that the

initial encounter between Baldwin and the police officers amounted to a warrantless seizure.



       4
         It is unclear from the record whether Gilchrist was handcuffed and placed in the squad
car before or after the officers were allegedly told that they could “check” Baldwin and Gilchrist.
Although the district court credited the testimonies of Gilchrist and Coombs, it did not rely upon
Gilchrist’s testimony that he was immediately handcuffed and arrested in concluding Baldwin
was seized. Since we similarly find that other Mendenhall factors were present to signal that a
seizure took place, we need not determine whether Gilchrist’s arrest affected Baldwin’s seizure
or consent.

                                                   6
                                                 IV.

        We now turn to whether the challenged seizure was reasonable under the circumstances.

A warrantless seizure may be justified as a product of a brief investigatory stop under Terry v.

Ohio, 392 U.S. 1 (1968). To justify a Terry stop, an officer must point to specific, articulable facts

which gave rise to a “reasonable suspicion” that the suspect was engaged in criminal activity.

Terry, 392 U.S. at 21.      A reasonable suspicion exists when, based on the totality of the

circumstances, a police officer has a “particularized and objective basis for suspecting the particular

person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18 (1981). The

officer “must be able to articulate something more than an inchoate and unparticularized suspicion

or hunch.” United States v. Sokolow, 490 U.S. 1, 7 (1989). Our review of a determination by a

district court as to whether the police officers possessed a reasonable suspicion must be conducted

on a de novo basis. Ornelas v. United States, 517 U.S. 690, 699 (1996).

        We first turn to an examination of the sequence of events which led to Baldwin’s encounter

with the police. It is undisputed that Coombs heard a series of gunshots in rapid succession. Based

on his experience, Coombs opined that he could “pretty well pinpoint where [the shots were]

coming from.” J.A. at 47-48. Coombs looked to the area (i.e., the intersection of Elm and Greene

Streets) from which he believed the gunshots had originated, and immediately saw someone fleeing

the area. Thereafter, he and Blackwell made an unsuccessful effort in their patrol cars to locate the

individual. We find that the presence of this fleeing individual strongly suggests that the police

officers did not have a particularized suspicion to stop and detain Baldwin as a passenger in a

parked vehicle on Pleasant Street. Even if the fleeing pedestrian may have been involved in the

shooting incident, as the Government contends, there has been no showing of any specific,

articulable facts which gave rise to a reasonable suspicion that Baldwin was connected to the firing

of the gunshots. The district court opined that “[t]he officers had encountered another person, and

                                                   7
that person was fleeing the area. Given that fact, Defendant’s presence in the area alone did not

provide the officers with reasonable suspicion to believe that he was in any way involved in the

suspected shooting.” J.A. at 30.

       We are further convinced by Coombs’ statement that, upon approaching Gilchrist’s vehicle,

he did not notice anything particularly unusual or dangerous about Gilchrist’s vehicle or its

occupants. In fact, neither he nor his fellow officer drew their weapons as they advanced upon the

parked vehicle. Moreover, there is no evidence that (1) any of the officers knew how long the

parked car had been at its location on Pleasant Street prior to their encounter with Baldwin and

Gilchrist, or (2) Coombs believed or had reason to believe that either occupant of the vehicle had

any connection with the shooting incident at or near the Greene and Elm Street intersection.

       The Government submits that there are a number of factors which support a finding of

reasonable suspicion. It points out that Coombs and Blackwell were investigating an incident in

a high crime area in Cincinnati when they came across Baldwin and Gilchrist in a parked car with

its engine and radio off. Although the fact that a stop occurred in a high crime area is “among the

relevant contextual considerations in a Terry analysis,” it is clear that “[a]n individual’s presence

in an area of expected criminal activity, standing alone, is not enough to support a reasonable,

particularized suspicion that the person is committing a crime.” Illinois v. Wardlow, 528 U.S. 119,

124 (2000). Moreover, the fact that Gilchrist’s car was parked with its engine and radio off does

not support a reasonable suspicion that either Baldwin or his uncle were involved in the shooting.

The existence of a solitary parked vehicle during the early morning hours does not present a

sufficient articulable suspicion upon which to justify an arrest.

       Moreover, the case law, which was cited by the Government, is inapposite. In United States

v. Moore, 817 F.2d 1105 (4th Cir. 1987), the Fourth Circuit Court of Appeals justified the pat down

of the suspect in part because “[t]he hour was late, the street was dark, the officer was alone, and

                                                  8
the suspected crime was a burglary, a felony that often involves the use of weapons.” Moore, 817

F.2d at 1108. This case is distinguishable because the officer in Moore determined that the

defendant was the only person in the vicinity of the suspected burglary. Here, however, Coombs

witnessed an unidentified person fleeing the area from which shots had been fired. Furthermore,

Coombs was not alone, but was assisted by three other officers at the scene.

       The Government’s reliance on United States v. Burton, 334 F.3d 514 (6th Cir. 2003), is

similarly misplaced. The issue in Burton involved a request by a police officer to search the vehicle

of an individual who was suspected of drug trafficking. Although the Burton court found it

reasonable for the police officer to ask questions, including his request for consent to search the

defendant’s vehicle, its holding was restricted to those cases involving traffic violations:

“Particularly where, as here, the traffic stop took place on a street known to the police as a high-

crime area, we believe that asking a few questions about illegal activity to the driver of an

automobile stopped for a traffic violation at 11:30 p.m. is not unreasonable.” Burton, 334 F.3d at

519 (emphasis added). Unlike the defendant in Burton, Baldwin and Gilchrist were not stopped

for a traffic violation. Rather, Coombs testified that he found nothing suspicious or dangerous

about Gilchrist’s vehicle. These crucial distinctions underscore the lack of any articulable

suspicion by Coombs and Blackwell when they encountered Baldwin and Gilchrist in the parked

car.

       Given the totality of the circumstances, we conclude that these officers did not have a

reasonable suspicion to conduct a pat down examination under Terry. It is the Government’s

burden to demonstrate that a stop based on reasonable suspicion satisfies the conditions of an

investigative Terry stop. United States v. Winfrey, 915 F.2d 212, 216 (6th Cir. 1990). We find that

the Government has failed to meet its burden here. The district court properly determined that the

officers stopped Baldwin without any reasonable suspicion in violation of the Fourth Amendment.

                                                  9
                                                  V.

       Since we have concluded that (1) the initial encounter between Baldwin and the police

officers was not consensual and (2) the officers did not have any reasonable suspicion to stop and

detain Baldwin, all evidence resulting from the illegal search is inadmissible. “The exclusionary

rule bars the admissibility of items seized during an unconstitutional search... and of testimony

concerning knowledge acquired during such a search.” United States v. Leake, 95 F.3d 409, 411

(6th Cir. 1996) (internal citations omitted); see also Wong Sun v. United States, 371 U.S. 471, 485

(1963). The rule excludes from admissibility evidence later discovered and found to be derivative

of an illegality or “fruit of the poisonous tree.” Segura v. United States, 468 U.S. 796, 804 (1984).

       Notwithstanding, it is the Government’s contention that even if the initial seizure was

illegal, Baldwin’s resistance and flight following the pat down search, as well as his voluntary

incriminating comments to an ATF agent in March 2003, collectively establish independent sources

for the admission of the evidence that was rejected by the district court. In an effort to evaluate the

merits of the Government’s arguments, we will address these two arguments in turn.

       One of the exceptions to the exclusionary rule is the independent source doctrine. In Wong

Sun v. United States, 371 U.S. 471 (1963), the Supreme Court stated that “the exclusionary rule has

no application” when “the government learn [s] ... of the evidence from an independent source.”

Wong Sun, 371 U.S. at 487 (internal quotations omitted). The independent source doctrine deems

“evidence admissible in those situations where an illegal search takes place at some point during

a criminal investigation, but where a proper, independent search led to the evidence in question.”

United States v. Dice, 200 F.3d 978, 984 (6th Cir. 2000).

       On appeal, the Government contends that Baldwin’s struggle with Coombs and his

subsequent flight provided independent grounds for an arrest, which justified the admission of his

initial statement and the firearm. According to the Government, “when Baldwin broke free from

                                                  10
Officer Coombs’ pat-down and fled, he committed a new offense that justified his arrest,

irrespective of the validity of the initial stop and frisk.” Gov’t Final Br. at 23. However, the

Government overlooks one crucial fact in making this argument; namely, the firearm was

discovered by Coombs before Baldwin attempted to resist and flee from the scene. The district

court found that the officer discovered the gun during the initial pat down, but “did not announce

his find aloud.” J.A. at 26. Thus, the subsequent detention following Baldwin’s resistance failed

to reveal any evidence that was not already known to Coombs. Consequently, the independent

source doctrine does not apply in this instance because the Government did not discover any

evidence that was not tainted by the initial illegality.

       We similarly reject the case law cited by the Government in support of its argument on this

issue. In United States v. Dawdy, 46 F.3d 1427 (8th Cir. 1995), for example, a police officer

observed the defendant in an automobile parked near a pharmacy late at night. After some

questioning, the defendant appeared nervous and opened the car door several times as if to exit his

vehicle. Another law enforcement officer found a black leather pouch containing a white, powdery

substance lying on top of the snow near the defendant’s automobile. When the officer tried to

handcuff the defendant, he resisted and attempted to dispose of a trunk key. A subsequent search

of the trunk revealed more white powder which was later tested positive as amphetamine. The

Eighth Circuit reversed the suppression order by the district court, concluding that even if Dawdy’s

initial arrest was invalid, his resistance provided “independent grounds for his arrest” and therefore,

“the evidence discovered in the subsequent searches of his person and his automobile is

admissible.” Id. at 1431 (emphasis added). Here, unlike in Dawdy, the subsequent searches of

Baldwin by the police officers uncovered no new or additional evidence. Rather, the detention of

Baldwin following his resistance revealed only what Coombs already knew – that Baldwin had a

firearm in his possession. This critical fact distinguishes the instant case from the cases that were

                                                  11
cited by the Government. See also United States v. Collins, 200 F.3d 1196 (8th Cir. 2000).

       Since the Government did not acquire its evidence from any “independent source,”

Baldwin’s subsequent detention following his flight does not sufficiently purge the taint of the

illegal arrest. Wong Sun, 371 U.S. at 487. Accordingly, we find that the district court properly

suppressed evidence of the firearm and Baldwin’s first statement to Coombs.

       The Government also contends that even if Baldwin’s initial statement after his arrest on

January 19, 2003 is inadmissible, the district court erred by suppressing the statement that was

made by him to ATF Agent Gregory over two months later on March 24, 2003. In addressing this

issue, the Government submits that this second confession is so attenuated from the initial illegal

seizure to be admissible.

       The Supreme Court has stated that an illegal police action does not render all subsequently

discovered evidence inadmissible per se. See Wong Sun, 371 U.S. at 487-88. Rather, the critical

question is “whether, granting establishment of the primary illegality, the evidence ... has been

come at by exploitation of that illegality or instead by means sufficiently distinguishable to be

purged of the primary taint.” Id. (internal quotation marks omitted). A confession obtained through

custodial interrogation after an illegal arrest must be excluded from evidence unless it is attenuated

enough from the arrest that the confession is “sufficiently an act of free will to purge the primary

taint.” Brown v. Illinois, 422 U.S. 590, 602 (1975).

       The Supreme Court in Brown established a number of factors that a court should take into

account in determining the admissibility of a confession following an unconstitutional arrest:

       The Miranda warnings are an important factor, to be sure, in determining whether the
       confession is obtained by exploitation of an illegal arrest. But they are not the only
       factor to be considered. The temporal proximity of the arrest and the confession, the
       presence of intervening circumstances, and, particularly, the purpose and flagrancy
       of the official misconduct are all relevant.

Brown, 422 U.S. at 603-04 (internal citations omitted). The Government has the burden of proving

                                                  12
the admissibility of a confession following an illegal arrest or search. Kaupp v. Texas, 538 U.S.

626, 633 (2003). We will address these Brown factors seriatim.

        In this case, it is undisputed that Baldwin received fresh Miranda warnings from Agent

Gregory before making an incriminating statement. Although this factor supports the admission

of Baldwin’s second statement, Miranda warnings by themselves are insufficient to purge the taint

of an illegal arrest. See Brown, 422 U.S. at 603; see also United States v. Lopez-Arias, 344 F.3d

623, 630 (6th Cir. 2003).

        Hence, an examination of the second Brown factor – the temporal proximity between the

illegal search and the confession – becomes necessary. The district court concluded that the two

month interval between Baldwin’s arrest and his second statement failed to dissipate the taint of

the illegal stop.

        On the basis of the available record, we agree with the district court that the temporal

proximity factor does not weigh in favor of admissibility. Contrary to the Government’s position,

the “mere passage of time” is insufficient to break the chain of causation between an illegal search

or arrest and a subsequent confession. See United States v. Grant, 822 F.Supp. 1270, 1278-79

(W.D. Tenn.1993); see also United States v. Parker, 722 F.2d 179, 186 (5th Cir. 1983), overruled

on other grounds by United States v. Hurtado, 905 F.2d 74 (5th Cir. 1990) (five month lapse

between arrest and confession, standing alone, does not require admission of confession).

        The temporal relationship between the initial illegality and the confession is “an ambiguous

factor.” Dunaway v. New York, 442 U.S. 200, 220 (1979) (Stevens, J., concurring). Moreover, the

lapse of time between an illegal search and a confession is even less relevant for purposes of

admissibility. One noted commentator explained:

        In the typical case in which the defendant was present when incriminating evidence
        was found in an illegal search or in which the defendant was confronted by the police
        with evidence they had illegally seized, it is apparent that there has been an

                                                 13
       “exploitation of that illegality” when the police subsequently question the defendant
       about that evidence or the crime to which it relates. This is because “the realization
       that the ‘cat is out of the bag’ plays a significant role in encouraging the suspect to
       speak.”

Wayne R. LaFave, Search and Seizure §11.4(b) (3d ed. 1996) (footnotes omitted).

       Here, Baldwin was confronted with incriminating physical evidence – the firearm – after

the illegal search. Faced with this incriminating evidence, he had an incentive to immediately

confess to his possession of the firearm. Baldwin’s incriminating statement is thus inextricably

linked to the discovery of the firearm. Two months later, the link between Baldwin’s second

statement and the physical evidence of the firearm is virtually unchanged in the absence of any

intervening circumstances.5 The fact that Baldwin was in custody throughout this period does not

purge the taint of the illegal search. Indeed, “if there are no relevant intervening circumstances,

a prolonged detention may well be a more serious exploitation of an illegal arrest than a short one.”

Dunaway, 442 U.S. at 220 (Stevens, J., concurring). See also Taylor v. Alabama, 457 U.S. 687,

700 n. 6 (O’Connor, J., dissenting) (illegal arrest may be exploited by lengthy detention).

       Thus, we find that the two month interval between Baldwin’s arrest and his second

statement does not – standing alone – favor admission of the second statement.                   For a

comprehensive evaluation of this factor, we must analyze the temporal proximity of Baldwin’s

seizure and his confession in the context of any intervening circumstances. See United States v.

Reed, 349 F.3d 457, 464 (7th Cir. 2003).

        The Government contends that the administration of fresh Miranda warnings by the ATF



       5
         Two months after his arrest, and in the absence of any intervening circumstances, (1) the
police still had knowledge of physical evidence which connected Baldwin to the crime; (2)
Baldwin was aware that the police had knowledge of this physical evidence; and (3) he remains
unaware that the initial police action was illegal. As Baldwin remains confronted with this
incriminating physical evidence, he continues to have the incentive to confess to possession of
the firearm in question.

                                                 14
agent represents an intervening circumstance which is sufficient to purge the taint of Baldwin’s

initial illegal search. We disagree. The Supreme Court has observed that giving of Miranda

warnings does not sufficiently break the connection between an illegal arrest or search and a

confession. See Taylor v. Alabama, 457 U.S. 687, 691 (1982) (finding that three Miranda warnings

by police officers did not constitute “intervening events” to purge original taint of illegal arrest);

Brown, 422 U.S. at 605. Instead, the types of intervening events that serve to attenuate police

misconduct are those that sever the causal connection between the illegal arrest or search and the

discovery of incriminating evidence. United States v. Reed, 349 F.3d 457, 464 (7th Cir. 2003); see,

e.g., Rawlings v. Kentucky, 448 U.S. 98, 108-109 (1980) (discovery of other incriminating evidence

implicating defendant); Wong Sun, 371 U.S. at 491 (confession was made several days after illegal

arrest and was preceded by arraignment and release from custody); United States v. Green, 111

F.3d 515, 521 (7th Cir. 1997) (proper arrest on unrelated charges following initial illegal arrest);

United States v. Fazio, 914 F.2d 950, 958 (7th Cir. 1990) (defendant freely agreed to speak to

police at site away from scene of illegal arrest and drove own vehicle to meeting); Carnejo-Molina

v. INS, 649 F.2d 1145, 1149 (5th Cir. 1981) (consultation with counsel).

       Here, the Government has not set forth any circumstantial evidence in the record to support

an intervening circumstance that sufficiently purges the taint of the initial illegality. Through her

testimony, Agent Gregory verified that Baldwin was in custody when he was transported to the

federal courthouse. There is no indication that Baldwin was ever released from custody prior to

his statement to Gregory. This agent’s testimony also reveals that Baldwin did not freely volunteer

information to her. Rather, she indicated that it is her general practice to routinely administer

Miranda warnings to defendants en route to the federal courthouse for their arraignment. The

record is devoid of the discovery of additional evidence by the Government or any other

circumstances that would sever the connection between the challenged search of Baldwin and his

                                                  15
subsequent confession in March 2003. Hence, we find that the Government has failed to sustain

its burden of identifying an intervening circumstance such that Baldwin’s confession is

“sufficiently an act of free will to purge the primary taint” of the illegal seizure. Brown v. Illinois,

422 U.S. at 602.

        The final factor in the Brown analysis is the purpose and flagrancy of the conduct by the

police officers. This factor is linked to the purpose of the exclusionary rule; that is, the deterrence

of police misconduct. United States v. Fazio, 914 F.2d 950, 958 (7th Cir. 1990). While we cannot

justifiably characterize the conduct by the investigating officers as “flagrant,” we do find that their

purpose in making this challenged search was “investigatory” in nature, undertaken “in the hope

that something might turn up.” Brown, 422 U.S. at 605. The police officers neither engaged in a

consensual encounter when they approached Gilchrist’s vehicle nor did either of them have any

reasonable suspicion to stop and detain Baldwin prior to discovery of the firearm. This type of

police misconduct – stopping a suspect without probable cause for investigatory purposes – is

precisely the type of conduct that Brown and its progeny seeks to deter. See United States v. Miller,

146 F.3d 274, 280 (5th Cir. 1998); United States v. Gray, 137 F.3d 765, 780 (4th Cir. 1998); see

also Taylor v. Alabama, 457 U.S. 687, 693 (1982) (fact that police effectuated investigatory arrest

without probable cause amounted to police misconduct sufficient for suppression of evidence).

        In summary, we find that the Government has failed to satisfy its burden of proving that

Baldwin’s second statement to Agent Gregory was sufficiently purged of the taint of the initial

illegal search. In light of the relevant Brown factors, we find that any evidence discovered as a

result of Baldwin’s illegal seizure should be suppressed. Accordingly, the district court’s ruling

to suppress Baldwin’s second statement is affirmed.

                                                  V.

        For the reasons stated above, we affirm the district court’s order to suppress evidence of the

                                                   16
firearm and Baldwin’s statements.




                                    17
       SUTTON, Circuit Judge, dissenting. As I see it, we need not address two difficult questions

in this case—whether the initial encounter with Mr. Baldwin was a consensual one and whether in

any event the officers had reasonable suspicion to stop him. Even if we assume that the initial stop

was unjustified, the police independently discovered the key item of evidence about which the

parties are quarreling, the gun, as a result of intervening causes—Baldwin’s resistance and

flight—both of which relieve the evidence of any taint from the allegedly unlawful search.


       In Murray v. United States, 487 U.S. 533 (1988), the Court explained that “evidence

initially discovered during, or as a consequence of, an unlawful search, but later obtained

independently from activities untainted by the initial illegality” does not fall within the

exclusionary rule. Id. at 537. Balancing the “interest of society in deterring unlawful police

conduct and the public interest in having juries receive all probative evidence of a crime,” the

independent-source doctrine permits the introduction of evidence obtained in the absence of any

police misconduct. Id. (quoting Nix v. Williams, 467 U.S. 431, 443 (1984)). Without the doctrine,

in point of fact, the police would be “in a worse position than they would have been in absent any

error or violation.” Id. (quoting Nix, 467 U.S. at 443).

       The “classic independent source situation,” we said in United States v. Leake, 95 F.3d 409

(6th Cir. 1996), occurs when the independent source is “unrelated to and independent of the

unconstitutional search.” Id. at 412. Unrelatedness under the independent-source rule, however,

does not preclude “all evidence [as] ‘fruit of the poisonous tree’ simply because it would not have

come to light but for the illegal actions of the police.” Wong Sun v. United States, 371 U.S. 471,

487–88 (1963) (emphasis added). “[T]he more apt question in such a case is ‘whether, 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


                                                 18
purged of the primary taint.’” Id.; see also United States v. Ceccolini, 435 U.S. 268, 276 (1978)

(declining to adopt a “but for” rule “that would make inadmissible any evidence, whether tangible

or live-witness testimony, which somehow came to light through a chain of causation that began

with an illegal arrest”).

        In this case, any connection between the allegedly improper stop and the discovery of the

weapon was attenuated, and indeed broken, by Baldwin’s independent actions. When an officer

conducts a full-blown search or a Terry pat-down and the subject of the search breaks free from the

grasp of the officer, officers generally pursue the individual, not to exploit the illegal arrest, but

because the intervening act itself creates reasonable suspicion, if not a palpable risk of danger to

officers and citizens in the area. As the Supreme Court explained in Illinois v. Wardlow, 528 U.S.

119 (2000), “evasive behavior is a pertinent factor in determining reasonable suspicion” and

“[h]eadlong flight . . . is the consummate act of evasion.” Id. at 124 (holding that presence in a

high-crime area and flight from police combined to create reasonable suspicion); see also Watkins

v. City of Southfield, 221 F.3d 883, 889 n.3 (6th Cir. 2000) (noting that the development of

reasonable suspicion may take into account all events occurring prior to the physical apprehension

of a suspect who flees); United States v. Garcia, 516 F.2d 318, 320 (9th Cir. 1975) (finding no taint

to evidence discovered after the defendant fled an illegal stop at an immigration checkpoint in his

car and was subsequently stopped after a high-speed chase); United States v. Castillo, No. 99-5463,

2000 WL 1800481, at *5 (6th Cir. Nov. 28, 2000) (unpublished) (noting that “a defendant’s flight

from the scene of an illegal Terry stop and his use of force against an officer dissipated the taint

arising from the illegal seizure”).

        When Baldwin broke free from Officer Coombs’ grasp after the officer placed his hand on

Baldwin’s pocket and when he fled from the officers, he created the necessary reasonable suspicion

to justify a stop. Because this second stop was prompted by Baldwin’s independent actions, was

                                                  19
supported by reasonable suspicion and was not in any way an exploitation of the original stop, cf.

Kaupp v. Texas, 538 U.S. 626, 633 (2003) (observing that the existence (or absence) of police

misconduct is relevant to whether a subsequent confession should be suppressed as tainted), it

provided an independent source for the admission of the gun against Baldwin, untainted by any

illegality of the original stop. To put the point another way, consider what would have happened

if Baldwin had fled as soon as the officers came upon the scene. In that setting—(1) where officers

had been called to a neighborhood in which shots had just been fired (2) in a high-crime area (3)

late at night and (4) with a fleeing suspect—there can be little doubt after Wardlow that reasonable

suspicion would exist. Why should this case be any different? The officers had the first three

pieces of information before they arrived on the scene, and they obtained the last piece of

information not because they did anything unusual in patting down Mr. Baldwin (or in otherwise

exploiting the stop) but because Baldwin independently chose to bolt.

       The majority’s approach, moreover, harms “the public interest in having juries receive all

probative evidence of a crime,”Murray, 487 U.S. at 537, without offering any appreciable

protection to criminal defendants. Consider: a police officer who, like Coombs, pats down a

suspect after an illegal stop must now watch the suspect run off into the distance, without giving

chase, fully knowing that the suspect is armed and quite possibly dangerous. That cannot be right.

The exclusionary rule protects those who follow police direction after an illegal stop, not those who

seek to escape out of a sense of panic or on their own suspicion that a police search is unsupported.

       One other point: I cannot agree with the majority’s apparent reliance on the fact that the

final apprehension of Baldwin “failed to reveal any evidence that was not already known to

Coombs.” Maj. Op. at 11 (emphasis in original). Justice Holmes’s original use of the term

“independent source” specifically applied “to that particular category of evidence acquired by an

untainted search which is identical to the evidence unlawfully acquired.” Murray, 487 U.S. at 538

                                                 20
(emphasis in original); see Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920)

(Holmes, J.). The mere fact that the evidence at issue has once been discovered cannot insulate it

from subsequent independent discovery.

       I would reverse the suppression of the firearm and accordingly respectfully dissent from the

majority’s contrary conclusion.




                                                21
