                          NOT RECOMMENDED FOR PUBLICATION
                                  File Name: 12a0808n.06

                                             No. 11-1331

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                                                                        FILED
UNITED STATES of AMERICA,                       )                                   Jul 26, 2012
                                                )
                                                                             LEONARD GREEN, Clerk
        Plaintiff-Appellant,                    )
                                                )
v.                                              )    ON APPEAL FROM THE UNITED
                                                )    STATES DISTRICT COURT FOR THE
CHARLES EARL WATSON,                            )    EASTERN DISTRICT OF MICHIGAN
                                                )
        Defendant-Appellee.                     )
                                                )    OPINION



        Before: GIBBONS, GRIFFIN, and DONALD, Circuit Judges.


        DONALD, Circuit Judge. Defendant-Appellee Charles Earl Watson was charged in the

Eastern District of Michigan with (1) possession with intent to distribute 50 grams or more of

cocaine base, in violation of 21 U.S.C. § 841(a)(1); (2) possession with intent to distribute marijuana,

in violation of 21 U.S.C. § 841(a)(1); (3) possession of a firearm in furtherance of a drug trafficking

crime, in violation of 18 U.S.C. § 924(c)(1)(A); and (4) possession of a firearm by a felon, in

violation of 18 U.S.C. § 922(g)(1). The district court granted Watson’s motion to suppress evidence

found on Watson’s person and his post-arrest statements. The government appeals the district court’s

order granting Watson’s motion to suppress his post-arrest statements. For the following reasons,

we affirm.
No. 11-1331
United States v. Watson

                                                  I.


       At about 4:25 p.m. on April 20, 2010, Deputy Anthony Shepard and Sergeant Tommy

Schuette of the Jackson County Sheriff’s Department, with the assistance of a confidential informant

(“C.I.”), executed a controlled purchase of crack cocaine in Jackson, Michigan. The C.I. arranged

the purchase with a man named Lewis and instructed Lewis to meet him at Lewis’s home at 808

Second Street (“the home”). Lewis and a female companion arrived at the home in a red Ford

Expedition and went inside with the C.I., who paid for the drugs with two $20 bills with pre-

recorded serial numbers.


       After the controlled purchase took place, the C.I. informed the officers that there was an

unnamed man visiting from Detroit in the home and that this man showed him an Arizona Iced Tea

can with a false bottom containing narcotics in the freezer of the home. Sergeant Schuette relayed

this information to Deputy Mark Easter, who was in the area in a marked car. Easter was directed

to go to the Sheriff’s Office and prepare a search warrant for the home.


       While awaiting the search warrant, the officers observed Lewis and his female companion

exit the home and drive off in the red Ford Expedition. Deputy Easter was instructed to perform a

traffic stop of the Expedition in the hope of securing any evidence in the couple’s possession. Easter

conducted the stop about three or four blocks from the home. The driver of the Expedition was

identified as Lewis Timothy Earnest, and the woman was identified as Teresa Ann Adams. Earnest

confirmed to Easter that there was a man visiting from Detroit inside the home. During an inventory


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United States v. Watson

search of the vehicle, Easter discovered one of the pre-recorded $20 bills used in the controlled buy.

After the traffic stop, Deputy Easter returned to the station to prepare a search warrant for the home.


       Deputy Shepard testified that he and Sergeant Schuette had previously worked in the

neighborhood and had determined that it was a high drug activity area. Shepard also testified that

it was customary for people in the neighborhood to alert each other to a traffic stop of one of their

neighbors. Believing that someone would alert the unknown man from Detroit to the traffic stop of

Lewis, Shepard and Schuette decided to secure evidence they thought was in the home, even though

they had not yet obtained the search warrant. The officers called for backup, and Shepard went to

the front door of the house while Schuette went to the back door. Officer Thomas Tinklepaugh of

the Jackson City Police arrived at the scene in full uniform and in a marked car. He joined Shepard

at the front door of the house. Shepard noticed that the front door was open but the screen door was

closed. He testified that he smelled raw marijuana and saw a man, later identified as Watson, inside

the home. Shepard opened the screen door, entered the home with his gun drawn and instructed

Watson to get on the floor. Shepard then holstered his gun and performed a leg sweep to take

Watson to the ground. Officers searched Watson’s person and found crack cocaine and $1,992.00

in cash. One of the pre-recorded $20 bills was also found on Watson. Officers did not question

Watson at the scene, but immediately transported him to the Sheriff’s Department.


       Shepard and Schuette then conducted a protective sweep of the home to secure their safety.

Both officers testified that they did not search the home for contraband, but only for persons. While

awaiting the search warrant, the officers secured the home and stood inside the living room of the

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United States v. Watson

residence. Schuette testified that he instructed all of the officers on the scene to remain with him and

not to search the home until the warrant arrived. A magistrate judge signed the search warrant at

about 5:55 p.m., and Deputy Easter returned to the home with the warrant. The officers first used

a K-9 unit to search for narcotics. The dog alerted the officers to narcotics, and crack cocaine,

marijuana, heroin, and ecstacy were recovered from the home. Officers also found cocaine inside

a beverage can in the freezer and a bloody, loaded .45 caliber semi-automatic pistol underneath the

couch in the living room.


        Once officers completed the search of the home, Deputy Easter returned to the station. Easter

read Watson his Miranda rights, but did not have Watson sign anything. At about 10:15 p.m.,

Watson waived his Miranda rights and voluntarily made a statement to Easter admitting knowledge

and possession of the firearm and drugs seized from the home. Deputy Easter testified that he did

not coerce Watson into making the statement.1 He also testified that Watson did not ask for food or

drink, nor did Watson appear intoxicated at the time of his statement.2


        On September 13, 2010, Watson filed a motion to suppress evidence seized without a warrant

on April 20, 2010. Watson sought suppression of evidence found on his person, evidence found in

the home, and his post-arrest statements. The district court granted the motion as to the evidence


       1
       Deputy Easter initially testified that he did not lie to Watson, but he did tell Watson that his
(Watson’s) fingerprints were found on the firearm and the drugs, and that the Detroit Police
Department had been contacted. Neither of these statements was true at the time.
       2
         Watson did state that he consumed ½ of a ½ pint of alcohol prior to his arrest. Watson does
not claim he was intoxicated at the time of his statement.

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United States v. Watson

found on Watson’s person and denied the motion as to the evidence found in the home. The district

court held a second evidentiary hearing to determine if the post- arrest statements should be

suppressed. The district court ordered supplemental briefing and ultimately granted Watson’s

motion to suppress the post-arrest statements. The district court concluded that the warrantless entry

into the home and arrest of Watson were purposeful and flagrant and that there was no intervening

event sufficient to purge the taint of the illegal entry, and thus Watson’s statements were fruit of the

poisonous tree and must be suppressed. The district court denied the government’s motion for

reconsideration. The government now appeals the district court’s order granting Watson’s motion

to suppress his post-arrest statements.


                                                  II.


        We review a district court’s grant of a motion to suppress under a mixed standard of review.

Findings of fact are reviewed for clear error, and conclusions of law are reviewed de novo. United

States v. Berry, 565 F.3d 332, 338 (6th Cir. 2009). When a motion to suppress is granted by the

district court, this Court reviews the evidence in the light most favorable to the defendant. United

States v. Bailey, 302 F.3d 652, 656 (6th Cir. 2002).


        A. Watson’s Arrest


        The Fourth Amendment prohibits unreasonable searches and seizures and mandates that “no

Warrants shall issue but upon probable cause . . .” U.S. Const. amend. IV. The Supreme Court has



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United States v. Watson

interpreted this as requiring officers to obtain a warrant supported by probable cause before they may

lawfully enter a home. United States v. United States Dist. Ct., 407 U.S. 297, 315-16 (1972).


       While “searches and seizures inside a home without a warrant are presumptively

unreasonable,” the Court instructs that without a warrant, “officers need . . . probable cause plus

exigent circumstances in order to make a lawful entry into a home.” Payton v. New York, 445 U.S.

573, 586; 590 (1980); see also Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (emphasis added). “To

be arrested in the home involves not only the invasion attendant to all arrests but also an invasion

of the sanctity of the home. This is simply too substantial an invasion to allow without a warrant, at

least in the absence of exigent circumstances, even when it is accomplished under statutory authority

and when probable cause is clearly present.” Payton, 445 U.S. at 588-89 (citing United States v.

Reed, 572 F.2d 412, 423 (1978)).


       Based on the controlled buy occurring at the home a short time before the entry, officers did

in fact have probable cause to search Lewis’s home. Officers also claimed that exigent circumstances

existed to overcome the lack of a warrant. The Sixth Circuit defines exigent circumstances as

“situations where ‘real immediate and serious consequences’ will ‘certainly occur’ if the police

officer postpones action to obtain a warrant.” Thacker v. City of Columbus, 328 F.3d 244, 253 (6th

Cir. 2003) (quoting Ewolski v. City of Brunswick, 287 F.3d 492, 501 (6th Cir. 2002)). The “need to

prevent evidence from being lost or destroyed” constitutes exigent circumstances permitting an

officer’s warrantless entry into a home. Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006)

(holding that police may enter a home without a warrant to “prevent imminent destruction of

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United States v. Watson

evidence”); United States v. Sangineto-Miranda, 859 F.2d 1501, 1511 (6th Cir. 1988). Whether

exigent circumstances exist in a given situation is not judged by the subjective belief of the officers.

Brigham, 547 U.S. at 404. “An action is ‘reasonable’ under the Fourth Amendment, regardless of

the individual officer’s state of mind, ‘as long as the circumstances, viewed objectively, justify [the]

action.” Id. (emphasis in original).


        Officer Shepard testified that they entered the home based on exigent circumstances because

they believed that someone in the neighborhood would alert Watson to Lewis’s traffic stop and that

Watson would then attempt to flee the home with evidence or destroy evidence before officers could

obtain a search warrant. The district court did not credit this argument and aptly stated:


        The Prosecution’s argument that “someone” from the neighborhood would send a
        “heads up” to “someone” at the 808 Second residence is too broad and sweeping of
        a statement especially since in this instance the man was not from the neighborhood.
        It may be, as testified to by the deputies at the hearing, that the neighborhood is
        known as a “high crime” area. It may be that the neighbors are well known to each
        other. However, the Court is unable to jump to the conclusion that just because
        “everyone” in the neighborhood knows “everyone else” in the neighborhood, that
        “everyone” or “anyone” or “someone” who saw the traffic stop a few blocks from
        808 Second, would call “someone,” who is not from the neighborhood, at 808
        Second, to report the traffic stop. This would mean that “everyone” in the
        neighborhood was in some way aiding “everyone else” or “anyone else” in the
        neighborhood, in hiding a crime, in this case, distribution of drugs. There was no
        testimony that anyone witnessed the traffic stop a few blocks away from 808 Second.
        There is also no testimony that if witnessed, those persons who witnessed the stop
        knew those who were stopped or knew where they came from or where they lived.
        The Court finds unreasonable that persons who may have witnessed the traffic stop
        a few blocks away, would necessarily know what the traffic stop was about and to
        whom it should be reported. The traffic stop could have very well been a “normal”
        traffic stop, such as speeding, as opposed to a traffic stop in order to prevent the
        destruction of evidence from a controlled buy which occurred a few blocks away
        from 808 Second. How would a person who witnessed a traffic stop a few blocks

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United States v. Watson

          away know that it was a result of a controlled buy which occurred a few minutes
          earlier at that address?


(emphasis in original). The district court correctly found that the officers’ belief that exigent

circumstances existed to enter the home without a warrant was unreasonable in light of the facts of

this case. Since the officers lacked exigent circumstances to enter the home, Watson’s arrest was

the product of an illegal entry and was therefore unconstitutional. Payton, 445 U.S. at 590.


          Because the entry into the home violated the Fourth Amendment, Watson’s subsequent arrest

was unlawful, and his post-arrest statements that flowed from the unlawful arrest are fruit of the

poisonous tree and subject to the exclusionary rule. Id.


          B. Post-Arrest Statements


          “In order to make effective the fundamental constitutional guarantees of sanctity of the home

and inviolability of the person, ... evidence seized during an unlawful search could not constitute

proof against the victim of the search[,] . . . The 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).


          The government relies on New York v. Harris to argue that because Watson’s post-arrest

statements were made at the police department hours after his arrest, the exclusionary rule does not

bar their admission. 495 U.S. 14, 21 (1990). Harris held that “where the police have probable cause

to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the

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United States v. Watson

defendant outside of his home, even though the statement is taken after an arrest made in the home

in violation of Payton.” Harris, 495 U.S. at 21; see also United States v. Hudson, 405 F.3d 425, 439

(6th Cir. 2005). The Harris court’s holding is premised on the existence of probable cause to arrest

prior to entry into the home. Harris specifically states that “[b]ecause the officers had probable

cause to arrest Harris for a crime, Harris was not unlawfully in custody when he was removed to the

station house, given Miranda warnings, and allowed to talk.” Id. at 18. Watson’s case is therefore

distinguishable on the very grounds on which the Harris decision was based.


       Officers did not enter Lewis’s home with the intent to arrest Watson; they instead entered for

the purposes of securing evidence. Given that officers only had probable cause to search Lewis’s

home but lacked probable cause to arrest Watson, Harris does not control. Under Harris, if officers

lack probable cause to arrest, the arrest is illegal, and the officers’ control over the defendant’s

person then results in wrongful detention. Harris, 495 U.S. at 18. Thus, because Watson was

illegally arrested and, as a result, wrongfully detained, his post-arrest statements are not admissible

absent sufficient attenuation.


       C. Attenuation


       In Wong Sun, the Supreme Court explained the doctrine of attenuation by stating, “We need

not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to

light but for the illegal actions of the police. Rather, the more apt question in such a case is

‘whether, granting establishment of the primary illegality, the evidence to which instant objection


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United States v. Watson

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

distinguishable to be purged of the primary taint.’” 371 U.S. 471, 487-88. As such, Brown v. Illinois

suggests four factors relevant to the attenuation analysis: the voluntariness of a confession, the

temporal proximity of the illegality and the evidence at issue, whether intervening circumstances are

present, and whether the official conduct was purposeful and flagrant. 422 U.S. 590, 603-604

(1975); see also United States v. Fofana, 666 F.3d 985, 993 (6th Cir. 2012).


       Thus, the primary inquiry here is whether Watson’s post-arrest statements should be admitted

into evidence despite the illegal actions of the police because they came “by means sufficiently

distinguishable to be purged of the primary taint.” Brown, 422 U.S. at 599. To determine whether

a confession was obtained by exploitation or is sufficiently attenuated from the taint of the illegal

arrest, we first look to see if Miranda warnings were given and if the resulting confession was an act

of free will. Id. at 600-02.


       i. Voluntariness


       While at the police station, Deputy Easter read Watson his Miranda rights. Watson waived

his rights under Miranda and subsequently offered a statement claiming ownership of the gun and

some of the drugs found at the home after the search. Watson does not claim that he was forced or

coerced into making these statements, and thus, they appear to be voluntary under the Fifth

Amendment. Brown, 422 U.S. at 601-602; United States v. Shaw, 464 F.3d 615, 626 (6th Cir. 2006).

Miranda warnings, however, do not, by themselves, “attenuate the taint of an unconstitutional


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United States v. Watson

arrest[.]” Brown, 422 U.S. at 602.


       ii. Temporal Proximity


       “There is no ‘bright-line’ test for temporal proximity.” United States v. Wolfe, 166 F. App’x

228, 234 (6th Cir. 2006) (unreported) (quoting United States v. Reed, 349 F.3d 457, 463 (7th Cir.

2003). Courts have found that, standing alone, as little as two hours of illegal detention to as many

as six hours were insufficient to purge the taint. Dunaway v. New York, 442 U.S. 200, 218 (1979);

Taylor v. Alabama, 457 U.S. 687, 691 (1982).             Here, Watson was illegally detained for

approximately five hours before his statements were made. Because the length of detention is not

dispositive, the temporal proximity factor should be considered “in conjunction with any intervening

circumstances.” Wolfe, 166 F. App’x at 234; see Reed, 349 F.3d at 464.


       iii. Intervening Circumstances


       The government argues that the execution of the search warrant for Lewis’s home serves as

an intervening circumstance sufficient to purge the taint of Watson’s illegal arrest. Case law does

not support this argument. The government cites United States v. Gross, 662 F.3d 393, 402 (6th Cir.

2011),3 to support its contention that the executed search warrant weighs in favor of attenuation. The

Government’s position is based on a mischaracterization of the Gross opinion. Gross specifically



       3
         The government originally cited Unites States v. Gross, 624 F.3d 309, 318-319 (6th Cir.
2010) as authority for this point of law. However, the Gross opinion was amended and is now cited
as United States v. Gross, 662 F.3d 393 (6th Cir. 2011).

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United States v. Watson

states, “We have never adopted ...[the Seventh Circuit’s treatment of a warrant as an intervening

circumstance] approach as the law of this circuit.” Id. at 403. Moreover, attenuation in Gross was

found as it pertained to a DNA swab of the defendant five days after his arrest and only after police

obtained a search warrant. Additionally, the defendant in Gross voluntarily sought out authorities

to give another statement two months after the arrest and a second waiver of his Miranda rights. Id.

That situation is clearly distinguishable from the case at bar where Watson’s statements were made

after a warrantless entry into the home in which he was staying in the immediate aftermath of his

illegal arrest.


        The government’s reliance on Hudson v. Michigan, 547 U.S. 586, 592 (2006), also misses

the mark. The government’s brief quotes Hudson for the proposition that “‘[w]hether that

preliminary misstep of [illegal arrest] had occurred or not, the officers would have executed the

warrant they had obtained, and would have discovered the gun and drugs inside the house.’”

(Appellant’s Br. at 18) (quoting Hudson, 547 U.S. at 592). In Hudson, the Supreme Court held that

violation of the knock-and-announce rule did not require the suppression of all evidence found in

the search. 547 U.S. at 594, 599. The police in Hudson already possessed a valid search warrant and

were executing it on the residence in question when they violated the knock-and-announce rule. Id.

at 588. The Hudson court indicated that “the knock-and-announce rule has never protected . . . one’s

interest in preventing the government from seeing or taking evidence described in a warrant[,]” and

it also has “nothing to do with the seizure of the evidence, [and thus] the exclusionary rule is

inapplicable.” Id. at 594. In contrast, there was no search warrant at the time officers entered


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United States v. Watson

Lewis’s home to arrest Watson. The exclusionary rule is certainly potentially applicable in the face

of this Fourth Amendment violation. See Payton v. New York, 445 U.S. 573, 577 (1980).


       The government further argues that even if they did not have probable cause when Watson

was arrested, they surely had it once the search warrant was executed. Officers must have probable

cause at the time of the arrest, not afterwards. Beck v. State of Ohio, 379 U.S. 89, 91 (1964)

(“Whether [the] arrest was constitutionally valid depends in turn upon whether, at the moment the

arrest was made, the officers had probable cause to make it . . .”) (emphasis added).


       Given the foregoing, we reject the government’s argument that the later-obtained search

warrant serves as an intervening circumstance for attenuation.


       iv. Purpose and Flagrancy of Police Misconduct


       In determining the purpose and flagrancy of police misconduct, we consider whether the

arrest was investigatory by design and execution and also whether the arrest was calculated to “cause

surprise, fright, and confusion.” Wolfe, 166 F. App’x at 236 (citing Brown, 422 U.S. at 605). An

investigatory arrest is prohibited in the absence of probable cause. Shaw, 464F.3d at 631; see also

Brown, 422 U.S. at 606 (finding the arrest investigatory because “the detectives embarked upon this

expedition for evidence in the hope that something might turn up”). Moreover, a finding of

“‘purposeful and flagrant’ misconduct is not limited to situations where the police act in an outright

threatening or coercive manner.” Shaw, 464 F.3d at 630; see Dunaway, 442 U.S. at 218-19.



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United States v. Watson

       The district court found that the officers’ misconduct was purposeful and flagrant.

Purposefulness was found on the basis that officers purposefully entered the home without a warrant,

without probable cause to arrest, and lacking exigent circumstances. Id. The district court reasoned

that the officers’ misconduct was flagrant because after they arrested Watson their “full intent . . .

was to question him after the search had taken place.” Id. The district court’s conclusion was

correct.


       In sum, while Watson’s post-arrest statements were voluntary, the remaining Brown factors

do not support a finding that there was sufficient attenuation between the arrest and his statements

to purge the primary taint.


                                                  III.


       Because officers lacked exigent circumstances to enter Lewis’s home without a warrant,

Watson’s arrest was illegal, and his post-arrest statements were not sufficiently attenuated from the

illegal arrest to purge its taint. We therefore affirm the district court’s order granting Watson’s

motion to suppress his post-arrest statements.




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