                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4160


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

RONNIE GERALD BELT,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins.      John Preston Bailey,
Chief District Judge. (2:13-cr-00030-JPB-JSK-1)


Argued:   January 29, 2015                 Decided:   April 28, 2015


Before DUNCAN, WYNN, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.     Judge Wynn wrote a
dissenting opinion.


ARGUED: Brian Joseph Kornbrath, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Clarksburg, West Virginia, for Appellant.     Stephen
Donald Warner, OFFICE OF THE UNITED STATES ATTORNEY, Elkins,
West Virginia, for Appellee.    ON BRIEF: William J. Ihlenfeld,
II, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Ronnie Gerald Belt (“Appellant”) claims West Virginia

State Police troopers ran afoul of the Fourth Amendment when

they entered his home at the invitation of his eleven-year-old

son.     Following       this    entry,      Appellant             provided    the    troopers

information they then used to obtain a search warrant.                                       The

search    revealed        various       items,         including          items      used    for

manufacturing         methamphetamine.             As     a    result,        Appellant      was

charged with possession of material used in the manufacture of

methamphetamine         and    maintaining         a    drug       involved       premises    in

violation of 21 U.S.C. §§ 843 and 856, respectively.

               Asserting the evidence seized from his home and the

statements       he     made     to    the    troopers             were    fruits      of    the

unconstitutional entry of his home, Appellant moved to suppress

both.      The    district       court       denied       the       motion     to    suppress,

concluding that the troopers’ entry did not offend the Fourth

Amendment.

               We affirm the district court’s denial of Appellant’s

motion    to    suppress.         In     doing      so,       we    assume     the    troopers

violated the Fourth Amendment when they entered Appellant’s home

but     hold     that     Appellant’s             statements          were      sufficiently

attenuated       from      the        constitutional               violation        such    that

suppression is not warranted.



                                              2
                                        I.

             The facts underlying this appeal are undisputed.                  In

early April 2013, West Virginia State Police Sergeant Gerald D.

Dornburg received a phone call from an unidentified woman.                   This

anonymous    tipster    told   Sergeant      Dornburg     that   methamphetamine

was being produced or used at Appellant’s home and that a child

was   present   in     the   home.      In    response,     Sergeant    Dornburg

contacted    Troopers     Steven     Blake   and   S.C.    Baier.      The   three

troopers intended to travel to Appellant’s home and conduct a

“knock and talk,” hoping to find Appellant at home and to engage

him in conversation regarding the information provided by the

tipster. 1   J.A. 35. 2

             When the trio of troopers arrived at Appellant’s home,

they noticed a young boy outside near a four-wheeler off to the

side of the home.            Sergeant Dornburg estimated that the boy

appeared to be ten to twelve years old.                   The troopers, all of

whom were in uniform, approached the home.                 One of the troopers

asked the boy whether the home was Appellant’s; the boy replied

      1
       Prior to going to Appellant’s home, the troopers obtained
Appellant’s criminal history.       Appellant was, among other
things, previously convicted for making illegal purchases of
ephedrine or a like substance. Ephedrine is a chemical that can
be used to produce methamphetamine. See, e.g., Zhenli Ye Gon v.
Holder, 992 F. Supp. 2d 637, 658 (W.D. Va. 2014).
      2
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                        3
that it was and that he was Appellant’s son.                  The boy then told

the troopers that his father was inside and proceeded to invite

the troopers into the home through the side door connected to

the kitchen.        The troopers followed the boy into Appellant’s

home.

             Once inside the home, Sergeant Dornburg waited alone

in the kitchen while Troopers Blake and Baier went to speak with

Appellant.       The two troopers, led by the boy, found Appellant in

the     living   room   of    his    home.       Once    there,    they     informed

Appellant about the anonymous call received earlier in the day.

Then one of the troopers asked Appellant if he would consent to

a search of the home.           He refused to consent and informed the

troopers they were going to need a warrant.                 In response, one of

the troopers asked Appellant, “What are you worried about?                      What

are you concerned with?”            J.A. 48.     Appellant replied that there

were “two jars upstairs that had been used for something.”                       Id.

Appellant explained that the jars contained “[t]hat stuff that

everybody’s making.”         Id. at 49.

             Considering     the     anonymous    tipster’s       information    and

Appellant’s       statements    and     criminal        history,    the     troopers

believed Appellant was referring to methamphetamine.                      With that,

the troopers secured the home.                Trooper Blake left to secure a

warrant; Sergeant Dornburg, Trooper Baier, Appellant, and the

boy stayed behind in Appellant’s kitchen.

                                          4
              Based on the information provided by Trooper Blake,

the magistrate court issued a search warrant.                              The resulting

search of Appellant’s home turned up firearms and various items

used     in         the    shake-and-bake              method        of     manufacturing

methamphetamine.            The     troopers         arrested       Appellant,      who   was

subsequently charged with possession of material used in the

manufacture of methamphetamine and maintaining a drug involved

premises in violation of 21 U.S.C. §§ 843 and 856, respectively.

              Appellant moved to suppress the evidence seized from

his home and the statements he made to the troopers for several

reasons.      Among these reasons and pertinent on appeal, Appellant

claimed the evidence and statements were tainted by the initial

unconstitutional          entry   of     his       home.      The    initial      entry    was

unconstitutional, Appellant argued, because his son did not have

apparent      authority     to    consent       to    the    troopers’      entry    of    the

home.

              The     district      court       disagreed         and     found     apparent

authority existed under the circumstances.                           The district court

also    noted    that,     even     if    the       troopers      violated     the    Fourth

Amendment,      “the      initial      entry       into     the   home    [was]     far   too

attenuated to the ultimate discovery of the evidence.”                                    J.A.

111.    Accordingly, the district court denied Appellant’s motion

to suppress.



                                               5
           Thereafter,           Appellant          pled    guilty    to   possession      of

material used in the manufacture of methamphetamine.                                However,

he reserved his right to appeal the district court’s denial of

his motion to suppress.             The district court entered its judgment

on February 21, 2014.            Appellant timely appealed.

                                            II.

           Our       review        of     the       district      court’s        ruling    on

Appellant’s    motion       to     suppress         is     twofold.        We    review   the

district   court’s      conclusions         of       law    de   novo;     we    review   the

district court’s factual findings for clear error.                               See United

States v. Buckner, 473 F.3d 551, 553 (4th Cir. 2007).

                                            III.

           Appellant argues that the troopers violated the Fourth

Amendment by entering his home.                      He contends that the troopers

could not reasonably believe the boy had authority to invite

them    into   the     home.            Accordingly,          Appellant         asserts   his

statements to the troopers, which were used to secure a warrant

and led to the discovery of incriminating evidence, were tainted

by the Fourth Amendment violation; therefore, the statements and

physical evidence should be suppressed.

           Appellant asks us to define the contours of third-

party    consent      and     to        decide       when    government         agents    can

reasonably conclude that a minor has the apparent authority to

extend an invitation to enter a home.                        We do not need to reach

                                                6
this issue, however, because this case presents a more narrow

ground on which we can affirm the district court’s denial of

Appellant’s       motion     to    suppress.           The    attenuation     doctrine

compels the outcome of this case.

            Although        evidence       obtained      as     a   result     of    an

unconstitutional search is suppressed under most circumstances,

the attenuation doctrine allows us to assume a constitutional

violation occurred and decide instead whether an intervening act

dispelled the taint of the violation.                        See United States v.

Seidman, 156 F.3d 542, 548 (4th Cir. 1998) (“[A]n intervening

‘act of free will [may] purge the primary taint of the unlawful

invasion.’” (quoting Wong Sun v. United States, 371 U.S. 471,

486    (1963))).     If     the    taint    of    the   violation    is     dispelled,

suppression is not available.               The Government bears the burden

of establishing admissibility.              See id.      Our analysis of whether

an act is sufficiently intervening focuses on “(1) the amount of

time    between    the     illegal   action       and   the    acquisition     of   the

evidence; (2) the presence of intervening circumstances; and (3)

the purpose and flagrancy of the official misconduct.”                       Id.    Our

analysis is guided by a “careful sifting of the unique facts and

circumstances      of      the    case.”         Id.    (quoting    Schneckloth     v.

Bustamonte, 412 U.S. 218, 233 (1973)) (internal quotation marks

omitted).



                                           7
                                                 A.

             Assuming          the        troopers     ran       afoul      of     the     Fourth

Amendment and upon review of the circumstances of this case, we

conclude        the   taint         of     any   Fourth        Amendment      violation      was

dispelled.        Accordingly, Appellant’s statements and the physical

evidence        seized    form       Appellant’s          home       are    not    subject    to

suppression.

                                                 1.

                Time -- the first Seidman factor -- is not on the

Government’s side.             Upon entering the home, Appellant’s son led

Troopers    Blake        and    Baier       directly      to    his    father.       And     upon

finding     Appellant,          Troopers          Blake        and    Baier       began    their

conversation with Appellant.                      Little time passed between when

the troopers entered Appellant’s home and when they found and

spoke with Appellant.                However, a single factor weighing against

attenuation does not end our inquiry.                           See, e.g., Seidman, 156

F.3d at 549 (noting this inquiry “does not require that each of

the factors set forth be resolved in favor of the Government”

(internal quotation marks omitted)).

                                                 2.

                Intervening              circumstances         --     the   second        Seidman

factor     --    weighs        in    favor       of   finding        the    statements       were

attenuated from the entry of the home.                              The circumstances here

are similar to those in Seidman, where this factor weighed in

                                                  8
favor    of   a     finding       of   attenuation.        In     Seidman,         “[a]lmost

immediately after [the government agent] entered the home, any

taint arising from [his] entry was attenuated by [appellant’s]

consent to the conversation.”                      156 F.3d at 549.           The same is

true here.         Rather than asking the troopers to leave, Appellant

willingly engaged in a conversation with the officers about the

jars upstairs in his house that contained “[t]hat stuff that

everybody’s making.”          J.A. 49.

              The differences between this case and Seidman do not

make     Seidman      --     as    the     dissent      puts      it     --     “manifestly

distinguishable.”          The factual fit between this case and Seidman

may not be exact, but it is sufficient.                    Appellant did not close

the door behind the troopers and motion for them to join him as

had Seidman.        Importantly, however, he did not ask the troopers

to leave when they arrived in his living room.                            Instead, after

reminding the troopers they would need a warrant to search the

house,     Appellant       continued       to       converse    with      the      troopers,

willingly         engaging        in     the       conversation.        The     consensual

conversation with the troopers, the willingness to engage the

troopers      --    an     independent         act    of   free        will   --     severed

Appellant’s statements from the troopers’ initial entry into the

home.    And thus any taint that may have existed was dispelled.




                                               9
                                                3.

            Purpose          and     flagrancy         --      constituting         the    third

Seidman factor -- also weigh in favor of finding the statements

were attenuated from the entry of the home.                             The troopers did

not act with a flagrant disregard of the law.                                  Cf. Brown v.

Illinois,       422    U.S.        590,    593        (1975)     (officers       broke     into

apartment and held individual at gunpoint); Wong Sun, 371 U.S.

at 474 (officers broke open a door and placed individual under

arrest and in handcuffs); see also Seidman, 156 F.3d at 550

(discussing Wong Sun and Brown in the context of this factor).

            Although we certainly question the choice to simply

follow    Appellant’s         eleven-year-old            son     into    the     home,     this

choice    does    not      rise      to    a    flagrant       disregard       of    the    law.

Nothing indicates the troopers acted with an improper purpose.

The   troopers        intended       to    conduct       a     “knock   and     talk”      until

Appellant’s son invited them into the home, and after Appellant

refused to permit the troopers to search his home, one trooper

merely    asked       what    worried      Appellant.            Appellant       could     have

refused to answer this question.                       The fact that Appellant felt

comfortable      refusing          consent      to    search     the    home    reflects      an

absence    of    intimidation         in       this    scenario.        And    although      the

troopers    asked      a     few    questions         after    being    denied      access   to

search the home, the voluntary nature of the discussion between

Appellant and the troopers did not change.                              The circumstances

                                                10
here are not as extreme as those presented in Wong Sun and

Brown; just as in Seidman, “[t]he degree of coercion resulting

from the police officers’ illegal acts in Wong Sun and Brown

. . . simply was not present here.”     Seidman, 156 F.3d at 550.

            Discussing the purpose and flagrancy of the troopers’

actions, the dissent focuses on what the troopers could have

done under the circumstances.     To be sure, the troopers’ conduct

here leaves much to be desired.        But this is not the focus of

our inquiry, despite our belief that the troopers should have

proceeded   with   greater   caution   and   respect   for   Appellant’s

privacy.    The dissent offers reasonable alternatives -- advice

troopers should heed in the future -- but nothing here suggests

that the troopers here intimidated or coerced Appellant.              In

fact, Appellant conceded as much at oral argument. 3         Under these

circumstances, this factor weighs against suppression.

            Considering all of these factors, we conclude that the

district court did not err by finding Appellant’s statements

were attenuated from the entry of his home.       There may have been

little time between the entry of the home and the conversation

between Appellant and the troopers, but the circumstances here

     3
       “We can’t argue that it wasn’t a voluntary process. [The
troopers] didn’t berate [Appellant], they didn’t coerce anything
out of him.” Oral Argument at 6:09, United States v. Belt, No.
14-4160,      available     at      http://coop.ca4.uscourts.gov/
OAarchive/mp3/14-4160-20150129.mp3.



                                  11
and     the     actions     of    the       troopers       do     not    reveal     any

perniciousness.         If the entry of Appellant’s home was poisonous,

Appellant provided the antidote when he engaged the troopers in

conversation.

                                            B.

              Although    we     do   not        decide    whether      the   troopers

violated the Fourth Amendment, we digress to express our concern

with the actions of the troopers in this case.                       On brief and at

argument, the Government was unwavering in its support of the

district court’s conclusion that the troopers could rely on the

apparent authority of Appellant’s eleven-year-old son when they

followed the boy into the home.

              Limited     information        should       limit   the    actions    of

government agents.        When the apparent authority of a minor is at

issue,    the    touchstone      of   the    apparent       authority     inquiry   is

whether a reasonable person would believe the child could invite

others into the home.            Cf. United States v. Cazun, 62 F. App’x

441, 442 (4th Cir. 2003) (concluding apparent authority turns on

“whether the facts available . . . at the time would justify a

reasonable person to believe the consenting party had authority

to allow entry”).          The troopers in this case had very little

information;      they    only    knew   the       young    boy   they    encountered

outside was Appellant’s son and that they were at Appellant’s

home.

                                            12
            But    our    cause   for   concern     does    not    end    with    the

limited information available to the troopers.                    Before inviting

the troopers into the home, Appellant’s son told them his father

was inside.       Upon encountering a child who is standing outside a

home and who says a parent is inside, any reasonable person

whose purpose was to speak with the adult of the house would not

simply barge into the home.           For this trio of troopers, however,

these facts were no reason to hesitate.                To the contrary, they

simply   took     this   fortuitous     set   of   circumstances     as    an    open

invitation to enter the home.                 We are inclined to believe a

reasonable officer, knowing the stranger he has come to visit is

home,    would    ask    the   stranger’s      child   to   fetch    the   parent,

waiting to enter until an adult extended an invitation.

                                        IV.

            We conclude that the district court properly denied

Appellant’s motion to suppress because the statements he made to

the troopers were attenuated from the presumed unconstitutional

entry of his home.

                                                                           AFFIRMED




                                        13
WYNN, Circuit Judge, dissenting:

     Acting      on   an    anonymous      tip,     three    armed    and    uniformed

police officers drove to Defendant Ronnie Belt’s residence to

investigate potential drug activity.                   Upon seeing his eleven-

year-old son playing outside the home, the officers told the

child     they   needed      to    speak     with    Belt.       At    the    child’s

invitation, the officers entered the home—not through the front

door, as an ordinary visitor might, but through the kitchen.

They did not knock on the kitchen door.                     Nor did they announce

their presence in any way.           Rather, chaperoned by the young boy,

the officers walked through Belt’s kitchen and confronted him in

his living room.           There they immediately began questioning him

about suspected drug activity.              His responses to those questions

enabled    the   officers     to    obtain      a   warrant,   which    led    to   the

discovery of methamphetamine manufacturing evidence in a matter

of hours.

     The majority holds that Belt’s responses to the officers’

interrogatories       constituted     intervening       acts    that    severed     the

causal connection between the officers’ illegal entry and the

discovery of incriminating evidence.                 However, Belt’s answers to

the officers questions came on the heels of their illegal entry

into his home as part of an “an uninterrupted course of events.”

United States v. Watson, 703 F.3d 684, 697 (4th Cir. 2013).                         And

nothing in the record warrants an inference that the officers’

                                           14
discovery     of       the   evidence      was      “unaffected      by   the    initial

illegality”—the officers’ illegal entry into his home.                            Id. at

698.     Thus,     I    cannot     agree     with    the    majority’s     decision    to

affirm the district court’s denial of Belt’s motion to suppress

on this basis.

       Because no intervening acts severed the causal connection

between the officers’ entry and the discovery of the evidence

Belt sought to exclude, the constitutional question in this case

is squarely before us.               Addressing this question leads to the

conclusion the officers’ entry into Belt’s home violated the

Fourth   Amendment.           No     reasonable      officer     would    believe     that

Belt’s eleven-year-old child had authority to consent to the

officers’ entry into Belt’s home, nor does the record establish

that the child had actual authority to give such consent.



                                             I.

       The   majority        holds    that     Belt’s      motion    to   suppress    was

properly denied because the officers’ discovery of evidence was

too attenuated from their entry, which the majority assumes was

illegal.     I disagree because the officers’ discovery of evidence

was part of an “an uninterrupted course of events” arising from

their illegal entry.           Id.

       Evidence    discovered         as   a    result      of   a   Fourth     Amendment

violation     is       generally       subject       to    suppression        under   the

                                             15
exclusionary rule.           United States v. Andrews, 577 F.3d 231, 235

(4th Cir. 2009).          The exclusionary rule is a prudential doctrine

meant to “compel respect” for the freedoms guaranteed by the

Fourth Amendment.          Davis v. United States, 131 S. Ct. 2419, 2426

(2011)    (internal        quotation      marks     and    citation      omitted).      By

excluding    evidence        discovered       by     way    of   a   Fourth    Amendment

violation, the rule “safeguard[s] against future violations of

Fourth Amendment rights through [its] general deterrent effect.”

Arizona v. Evans, 514 U.S. 1, 10 (1995).

      The rule is not without its exceptions, however.                           Indeed,

evidence derived from an illegal search may be admissible where

the   evidence       was     not    come      at    “‘by     exploitation      of    that

illegality’” but instead “‘by means sufficiently distinguishable

to be purged of the primary taint.’”                       United States v. Gaines,

668 F.3d 170, 173 (4th Cir. 2012) (quoting Wong Sun v. United

States,     371    U.S.     471,    488     (1963)).         Thus    “where    there    is

sufficient        attenuation       between       the   unlawful      search   and     the

acquisition of evidence, the ‘taint’ of that unlawful search is

purged.”     Id.

      The    Supreme        Court     has     prescribed         three     factors     for

determining whether the taint from a Fourth Amendment violation

had   dissipated:      “(1)     the    time        between   the     Fourth    Amendment

violation and the [acquisition of evidence], (2) the presence of

intervening circumstances, and (3) the flagrancy of the official

                                             16
misconduct.”      United States v. Hill, 649 F.3d 258, 267 (4th Cir.

2011) (citing Brown v. Illinois, 422 U.S. 590, 603–04 (1975)).

                                             A.

       The majority concludes, and I agree, that the first Brown

factor quite clearly cuts in favor of suppression.                          Very little

time   passed    between       the    officers’        illegal    entry    into   Belt’s

residence and their successful attempt to elicit incriminating

statements    regarding        drug    activity     in    his    home.      Within   two

hours,    a     warrant     had       been    issued      and     the     evidence    of

methamphetamine manufacturing obtained from Belt’s home.

                                             B.

       But I part ways with the majority in its application of the

second Brown         factor—the      presence     of    intervening       circumstances

sufficient      to     break    the     causal     chain        between     the   Fourth

Amendment violation and the discovery of evidence.                         The majority

relies in large part on this Court’s ruling in United States v.

Seidman, 156 F.3d 542 (4th Cir. 1998).

       In Seidman, after an informant acting as a government agent

illegally     entered     the        defendant’s       home,     the    informant    was

greeted by the defendant, who explained that he had not answered

the door because he had been in the basement.                             The defendant

then closed the door behind the informant, waived him into his

kitchen, and carried on a forty-five minute conversation with

him “regarding their families, personal lives, Union business,

                                             17
and [the informant]’s tax dilemma.”                      Id. at 549.             In a divided

opinion,      this    Court    held       that    the    taint     of      the    informant’s

illegal entry had been purged by “the intervening independent

acts    of     Seidman      shutting      the     door       behind       [the    informant],

motioning [the informant] into his kitchen, and engaging [the

informant] in conversation for a substantial period of time.”

Id. at 550.

       Seidman is manifestly distinguishable from this case.                                Belt

did not welcome the officers into his kitchen.                             He did not shut

the door behind them.               He did not waive the officers into his

living   room.         Nor    did    he    willingly          engage      them    in   lengthy

conversation.          The    officers       walked          through      his    kitchen    and

appeared suddenly and without warning in his living room.                                   They

asked questions; he answered them.                       Nothing suggests that Belt

would have engaged the officers in conversation but for their

illegal entry into his home.                     The officers’ illegal entry was

thus    part     of    an    unbroken      chain        of    events       leading     to    the

discovery of evidence.

       With    great     respect     to    my    colleagues,          I   must    express     my

belief that the majority is truly grasping at straws when it

suggests that the facts of this case “sufficient[ly]” align with

Seidman because Belt “did not ask the troopers to leave.”                                   Ante

at 9.        In Seidman, the defendant’s actions made it abundantly

clear that he would have welcomed the government informant into

                                             18
his home even if the informant had not let himself in—indeed,

the defendant stated that the only reason he did not open the

door was because he had been in the basement.                           Seidman, 156 F.3d

at    549.      Thus,       the       defendant’s        decision      to   speak   to     the

informant      was    clearly         unaffected     by       the    informant’s    unlawful

entry.       The government, which bears the burden of proving that

the taint of their unlawful entry had dissipated, id. at 548,

has presented no analogous evidence whatsoever in this case.

      To     read     the       majority       opinion,        which      repeatedly      uses

verbiage such as “willing[]” and “consensual” to describe Belt’s

conversation with the police officers, one would think our task

here was to determine whether Belt’s statements were voluntary

under    the   Fifth      Amendment.           However,         “[t]his     Court   and    the

Supreme Court have consistently held that an analysis of the

voluntariness        of     a     statement         is    a    separate      inquiry      from

determining whether the taint from a Fourth Amendment violation

has   dissipated.”             Hill,     649    F.3d     at     269    (citing    Taylor    v.

Alabama, 457 U.S. 687, 690 (1982) (“[T]his Court [has] firmly

established that the fact that a confession may be ‘voluntary’

for purposes of the Fifth Amendment . . . is not by itself

sufficient to purge the taint of an illegal arrest.”)).                                    The

appropriate      inquiry         is    not     whether        Belt    was   physically      or

otherwise coerced into making incriminating statements.                             Rather,

we    must     look       to      whether       Belt’s         statements        constituted

                                               19
intervening acts that severed the causal connection between the

officers’ unconstitutional entry into the home and the discovery

of evidence.

       Further, particularly when viewed in the context of our

precedent,    Seidman       does    not    stand      for   the        proposition        that

voluntary     incriminating         acts   or        statements        by     a     defendant

necessarily purge the taint of a constitutional violation.                                 In

United States v. Gooding, for example, police officers illegally

stopped the defendant at a bus stop, suspecting him of carrying

drugs.     695 F.2d 78, 84 (4th Cir. 1982).                       Moments later, the

officers requested permission to search his briefcase and flight

bag.     The defendant opened his briefcase and bag, and actively

handed    items     to    the   police      officers.             We    held       that   the

defendant’s       voluntary     decision        to     facilitate           the     officer’s

search did not constitute intervening circumstances sufficient

to purge the taint of the illegal stop.                  Id.

       Indeed,    the     Supreme    Court      itself      has    found          intervening

circumstances only where the defendant had the opportunity “to

consider carefully and objectively his options and to exercise

his free will.”          Taylor, 457 U.S. at 691.            The Supreme Court has

therefore found intervening circumstances to have occurred where

the defendant appeared at a hearing before a magistrate judge

and was advised of his rights, see Johnson v. Louisiana, 406

U.S. 356, 365 (1972), or was arraigned and released from custody

                                           20
for six-days before making incriminating statements, see Wong

Sun, 371 U.S. at 491.             Under such circumstances, the causal

chain    between     the   initial    illegality    and       the     defendant’s

statements is clearly broken.         Brown, 422 U.S. at 602.

     Here,     by     contrast,    Belt’s    answers     to    the        officers’

questions came after their sudden appearance in his home, on the

heels of their illegal entry, and were thus part of an “an

uninterrupted course of events.”            Watson, 703 F.3d at 697.            The

government has not established that their subsequent discovery

of the evidence was “unaffected by the initial illegality.”                    Id.

at 698. 1

     Given the absence of intervening circumstances, this Brown

factor weighs in favor of suppression.

                                      C.

     The     third    Brown   factor—the     flagrancy    of        the   official

misconduct—presents a somewhat mixed picture.                 As the majority

notes, the officers’ conduct in this case certainly pales in

comparison to the egregious misconduct present in some Supreme

Court cases.        See ante at 10 (collecting cases).              On the other

hand, we recently held that “flagrancy” within the context of a

     1
       It should go without saying that refusing to speak with
uniformed, armed police officers who suddenly appear in one’s
living room is an altogether different prospect than declining
to do so when they stand outside one’s door as a normal visitor
would.



                                      21
Fourth   Amendment      violation       is    more   likely   to    exist       when    the

police misconduct “involves ‘the physical entry of the home,

which is the chief evil against which the wording of the Fourth

Amendment is directed.’”              Hill, 649 F.3d at 270 (quoting Payton

v. New York, 445 U.S. 573 (1980)).

       The Supreme Court has also directed courts to look to the

“quality of purposefulness” of the Fourth Amendment violation to

determine whether the taint of that violation is attenuated.

Brown, 422 U.S. at 605.            The officers in this case purported to

rely   upon    the    consent    of    Belt’s      eleven-year-old        son    to    gain

entry into his home.             Upon learning that Belt was home, the

officers      could    easily    have    knocked       on   his    door,    identified

themselves, and sought Belt’s consent before entering.                                 They

chose not to do so.        Nor did they ask Belt’s son to retrieve his

father from the home.           These alternatives would have avoided not

only violating Belt’s Fourth Amendment rights but also the oft-

cited safety risks involved when officers confront individuals

in their homes without warning.                   Cf. United States v. Dunnock,

295 F.3d 431, 434 (4th Cir. 2002) (recognizing that the knock

and announce rule “(1) protect[s] the safety of occupants of a

dwelling and the police by reducing violence; (2) prevent[s] the

destruction      of    property;      and    (3)     protect[s]     the    privacy      of

occupants.”).         Instead, the officers, fully aware that they had

not obtained a warrant to search Belt’s home, exploited Belt’s

                                             22
minor son to gain entrance into the home.                                   This enabled them to

conduct a plain view search of the interior and to question Belt

in his living room on their own terms.

       Taking the Brown factors together, it must be concluded

that     the     taint         from      the        officers’         illegal        entry     had    not

dissipated and that the district court thus erred in admitting

the challenged evidence on that basis.



                                                     II.

        Having       determined            that        no     intervening              circumstances

existed, there remains to be addressed what ought to be the

central    issue          in    this     case—whether           the        officers’       entry     into

Belt’s    home       on    the      supposed          authority           of   an    eleven-year-old

child     violated         the        Fourth        Amendment         to       the    United     States

Constitution.

                                                     A.

       Although           the         Fourth          Amendment            generally         prohibits

warrantless searches, see Maryland v. Dyson, 527 U.S. 465, 466,

(1999),    a     valid         consent         to    search       a       residence     provides      an

exception to the usual warrant requirement, see Schneckloth v.

Bustamonte, 412 U.S. 218 (1973).                            Where the defendant moves to

suppress       the    fruits        of    a     warrantless           search,        the     government

bears    the     burden        of     establishing,          by       a    preponderance        of   the



                                                     23
evidence,    that     it   obtained    valid   consent.      United   States     v.

Buckner, 473 F.3d 551, 554 (4th Cir. 2007).

      It   is    well-established       that   consent      to   search   may    be

obtained from a third party.            However, two criteria must be met

for such a consent to be effective.              First, the third party must

have authority to consent to the search.              Trulock v. Freeh, 275

F.3d 391, 402-03 (4th Cir. 2001) (citing Stoner v. California,

376 U.S. 483 (1964)).          Second, “the third party’s consent must

be voluntary.”        Id. at 403 (citing Bumper v. N. Carolina, 391

U.S. 543, 548 (1968)).

      In United States v. Matlock the Supreme Court held that a

third party has actual authority to consent to a search when the

third party possesses “common authority over or other sufficient

relationship to the premises . . . sought to be inspected.”                     415

U.S. 164, 171 (1974).         The Court explained:

      The authority which justifies the third-party consent
      does not rest upon the law of property, with its
      attendant historical and legal refinements, but rests
      rather on mutual use of the property by persons
      generally having joint access or control for most
      purposes, so that it is reasonable to recognize that
      any of the co-inhabitants has the right to permit the
      inspection in his own right and that the others have
      assumed the risk that one of their number might permit
      the common area to be searched.

Id.   at   172   n.   7    (emphasis   added).      Thus,    a   co-tenant      will

generally have authority to consent to police searches to the




                                        24
co-tenant’s own private rooms or of common areas in the home

when other co-tenants are absent or do not object.

       Even    where    the     consenting      third      party    lacks    “actual

authority”     to     consent,    a    third    party   may       nonetheless     have

“apparent authority” if “the facts available to the officer at

the moment warrant a person of reasonable caution [to believe]

that   the    consenting       party   had    authority”     to    consent   to   the

search.       Buckner, 473 F.3d at 555 (alterations and quotation

marks omitted).         Thus, under the apparent authority doctrine,

the Fourth Amendment is not violated when officers reasonably,

although erroneously, believe that the person who consents to

their entry has the authority to do so.                 Illinois v. Rodriguez,

497 U.S. 177, 188 (1990).

                                         B.

       No   Supreme    Court    case   has     addressed    whether    or    to   what

extent the Matlock test applies to minor children who consent to

entry into or searches of a parent’s home.                  Nor has this Circuit

addressed this issue.            Some of our sister circuits, however,

have, and in doing so applied the Matlock test in child-consent

cases with little to no regard for the special dynamic that such

cases present, as though children could be the gatekeepers of

their parents’ Fourth Amendment rights.

       In Lenz v. Winburn, the Eleventh Circuit considered whether

a nine-year-old child had authority to consent to her guardian

                                         25
ad litem’s entry into her grandparents’ home.                               51 F.3d 1540

(11th Cir. 1995).          The court concluded that the child’s age was

irrelevant under Matlock.                The court reasoned that “the third-

party consent rule recognizes that sharing space with another

lessens    the    expectation       of    privacy      in    that      space,”    and    that

“[t]his compromise of the expectation of privacy is no less the

case for a minor co-occupant than for an adult.”                         Id. at 1543.

       In United States v. Clutter, the Sixth Circuit held that a

search     of    a    residence      conducted           with     the    consent        of    a

defendant’s      fourteen-,    twelve-,          and     ten-year-old         children       was

valid.       914 F.2d 775 (6th Cir. 1990).                       The court found that

where the children routinely were left in exclusive control of

the house, “the government satisfied its burden of demonstrating

that   the      initial    warrantless          search      of   the    bedroom      was     by

consent,     since    the    boys    enjoyed       that      degree      of    access        and

control over the house that afforded them the right to permit

inspection of any room in the house,” and the defendants assumed

that risk.       Id. at 778.

       In United States v. Gutierrez–Hermosillo, the Tenth Circuit

held that a warrantless search by the police following their

admission into the defendant’s motel room by his fourteen–year–

old    daughter      was   valid.         142    F.3d     1225      (10th     Cir.   1998).

Analyzing the case through the lens of “apparent authority,” the

court concluded that the officers could have reasonably believed

                                            26
that the daughter had the authority to allow them to enter the

motel room where she appeared to be fourteen years old, she

answered the door, and the officers knew that she was traveling

with her father.        These facts, the court stated, were sufficient

to establish the officers’ reasonable belief that the daughter

had   “mutual    use”    of   the    motel    room    and    that   the    defendant

“assumed the risk” that she would permit the officers to enter.

Id. at   1231.      Applying        similar   reasoning,      the   Tenth    Circuit

recently held in United States v. Sanchez that the defendant’s

fifteen-year-old daughter, who “was home babysitting her younger

brother, a task she regularly performed alone,” and who thus was

“routinely . . . in charge of the family’s house,” could consent

to probation officers’ plain-view inspections of the premises.

608 F.3d 685, 689-90 (10th Cir. 2010).

                                         C.

      Some lower federal courts and state courts have been less

willing to apply such third-party consent reasoning blindly to

cases involving minors.

      For instance, in Abdella v. O’Toole, officers knocked on

the door of the defendant’s residence and were greeted by an

eleven-year-old     child.      343     F.    Supp.   2d    129,    134    (D.   Conn.

2004).     When    the    officers      asked   if    they    could       search   the

upstairs of the home, the child responded by saying, “I don’t

care.”   Id.      The court assumed arguendo that the statement was

                                         27
tantamount to consent to search and thus analyzed whether the

child had authority to grant consent.                   In framing the Matlock

test, the court stated that “the threshold inquiry in finding

the common authority necessary for actual third-party authority

to consent to a warrantless search of property is whether the

owner, co-owner or co-inhabitant of the property has assumed the

risk    that   the     third-party     will     permit      the   property     to    be

searched.”     Id. at 135.         The court concluded that “[t]here is no

basis,    on   the     facts      presented     here,    to   conclude      that     the

[parents] assumed the risk that their eleven-year old daughter

would    permit      the   police    to    search    their     home    or    personal

property.”     Id.

       The Abdella court was highly critical of Lenz, rejecting

the Eleventh Circuit’s assumption that minors have authority to

consent   to   searches      of    their    parents’     homes    based     merely    on

their shared access to common areas:

       It is not reasonable or realistic to assume that an
       eleven-year old child, home alone, has always been
       authorized to act as an independent co-tenant, such
       that the parents should be on notice that their
       expectation of privacy is compromised.  The factual
       record must show some clear sign that the child had
       responsibility for the home and the property the
       police desired to search.

Id. at 136-37.

       Similarly, in United States v. Barkovitz, a district court

held    that   a   twelve-year-old         child   lacked     actual   or    apparent


                                           28
authority to consent to a search of his father’s bedroom.                                  29 F.

Supp. 2d 411, 413-16 (E.D. Mich. 1998).                       In Barkovitz, officers

responded     to    a   “shots       fired”    call    placed       by    the    defendant’s

neighbor.     Id. at 412.            When the officers arrived, they noticed

a twelve-year-old boy standing on the porch of the defendant’s

home.     The officer’s asked the child “Where is the gun?,” and

the   child    walked     the        officers      into     the    home    and       into    his

father’s bedroom, where his father’s gun was kept.                                   Id.     The

court    distinguished         the    Sixth     Circuit’s         decision      in    Clutter,

noting that there was no evidence that the twelve-year-old was

“regularly     left     alone.”         Id.    at    414.         The    court    concluded,

“[t]he government failed to show that [the child] had the actual

authority to allow anyone in the house, much less his father’s

bedroom.”     Id.

      Some state courts have been less willing to find that a

child’s access to a shared family space imbues the child with

actual or apparent authority to allow visitors into the home.

Most notably, in People v. Jacobs, 729 P.2d 757 (Cal. 1987),

police   officers       went    to     the    defendant’s         house    and       asked   his

eleven-year-old         stepdaughter,         who     answered      the    door,       if    the

defendant was home.            Id. at 759.          The child, who was babysitting

her younger siblings at the time, admitted the officers into the

“front room” of the residence and told the officers that the

defendant would be home in one hour.                        Id.     The officers asked

                                              29
for    a   quick    tour    of   the   house    to    confirm   the    defendant’s

absence.       The child accompanied the officers through the rooms

of the house.         On the way out, the officers noticed in plain

view a television set matching the description of one that had

been stolen.        The officers seized the set as contraband, and the

defendant was later arrested.

       In applying the Matlock test, the California Supreme Court

noted that the consent given by minor children must be analyzed

in    light    of   the    disparate   levels    of    authority      possessed   by

parent and child: “Minor children . . . do not have coequal

dominion over the family home.                Although parents may choose to

grant their minor children joint access and mutual use of the

home, parents normally retain control of the home as well as the

power to rescind the authority they have given.”                       Id. at 482.

The court stated that “a child cannot waive the privacy rights

of her parents” and that the evidence “viewed most favorably to

the prosecution, does not support a finding that [the child] had

the actual or apparent authority to permit even a superficial

survey of the rooms of the house.”              Id.    Rather than establish a

per se rule against searches based on a minor’s consent, the

court recognized that “as a child advances in age she acquires

greater discretion to admit visitors on her own authority.”                       Id.

at 483.       The California Supreme Court also noted that exceptions

can allow a minor to consent to, for example, “searches made at

                                         30
the request of a child or when a child is the victim of or a

witness to a crime.”      Id.

                                      D.

      While the United States Supreme Court has yet to address

whether or to what extent the Matlock test applies to minor

children, the Court recently made clear that for purposes of

analyzing consent under the Fourth Amendment, the relationship

between a parent and a child must be treated differently from

that of co-tenants with equal authority over common premises.

      In   Georgia   v.   Randolph,        the   Supreme   Court   considered

whether third-party consent is valid when another co-occupant

who is physically present at the scene refuses to consent.                547

U.S. 103 (2006).      The Court concluded that “it is fair to say

that a caller standing at the door of shared premises would have

no confidence that one occupant’s invitation was a sufficiently

good reason to enter when a fellow tenant stood there saying,

‘stay out.’”     Id. at 113.     A reasonable visitor would assume

that the a resolution must be reached between the co-occupants

“through voluntary accommodation, not by appeals to authority.”

Id. at 114.

      On the other hand, the Court said that the Fourth Amendment

calculus changes when the relationship between co-occupants is

hierarchical in nature, such as that between “parent and child.”

Id.   Common sense dictates that one would not expect that an

                                      31
eleven-year-old child could override the valid consent given by

a parent to the search of a common area of the home by raising

his or her own objection.        The simple fact that a child has

joint access to that area of the home does not imbue the child

with authority to prevent officers from searching that area when

a parent has authorized such a search.        This alone suggests that

a child fundamentally lacks “joint access or control” even over

the common areas of the home within the meaning of Matlock.

     A close examination of the principles that underlie the

Matlock decision reveals that the mere notion of “joint access”

cannot control the outcome in cases such as this one.              Indeed,

Matlock turned on the premise that when a co-occupant has “joint

access or control” over property “for most purposes,” it becomes

“reasonable   to   recognize   [the    co-occupant]   has   the   right   to

permit the inspection in his own right.”          415 U.S. at 172 n.7.

This premise breaks down when applied to minor children.                  As

Judge Lucero explained in his separate concurring opinion in

Sanchez: 2

     The common understanding of an adult co-occupant’s
     authority stands in stark contrast to that of a child.

     2
       While Judge Lucero recognized that the Tenth Circuit’s
reasoning in Gutierrez–Hermosillo necessitated the outcome
reached by the majority, he wrote separately to express his
“dismay” with the court’s application of “third-party consent
principles designed for adult relationships to relationships
involving children.” Id. at 692.



                                      32
        Although we would expect a roommate to be free to
        invite whatever guests she chooses into the shared
        home, we cannot apply that presumption for most minor
        children. That is, one normally assumes that a minor
        child is not allowed to invite guests into the home
        absent a parent’s approval.

Sanchez,     608    F.3d   at   694     (Lucero,       concurring).        Indeed,

“[c]hildren do not generally possess authority to permit guests

simply because they have joint access to the family home.”                      Id.

at 696.     Put simply, “[a] child is not a roommate.”                Id. at 692.

Thus,    “the   default    assumption      when   a    minor   answers   the   door

should be that the child lacks authority to consent to a home

search.”    Id. 697-98.

    Nor can the Eleventh Circuit’s age-blind reasoning in Lenz

withstand a close reading of Matlock.                   In Lenz, the Eleventh

Circuit viewed the right of a co-occupant to consent to the

search of a shared space solely through the lens of “assumption

of risk.”       Yet, in myopically focusing on assumption risk, the

court    ignored     the   second    and     equally    significant      rationale

underlying the Matlock decision.               Matlock emphasized that the

authority of the co-occupant must be such that he or she has may

permit the entry of a visitor “in his own right.”                  415 U.S. 164,

172 n.7 (emphasis added).           Yet, a child’s rights to come and go

within any area of the home exists at the discretion of his or

her parent.        Thus, it makes little sense to say that because a

child is permitted access to the common areas of a home that the


                                        33
child      has   authority      to   grant    visitor’s      access     “in    his   own

right.”       Id.    As the California Supreme Court put it:

       It does not startle us that a parent’s consent to a
       search of the living room in the absence of his minor
       child is given effect; but we should not allow the
       police to rely on the consent of the child to bind the
       parent. The common sense of the matter is that the .
       . . parent has not surrendered his privacy of place in
       the living room to the discretion of the . . . child.

Jacobs, 729 P.2d at 763 (quoting Lloyd L. Weinrab, Generalities

of the Fourth Amendment, 42 U. CHI. L. REV. 47 (1974)).                       Reasoning

to     the    contrary      would    lead     to    the     startling    and     absurd

conclusion       that   Judge    Lucero      so    fervently   cautioned       against:

that    “a    parent    surrenders     a    portion    of    her   Fourth     Amendment

rights simply by bearing and raising a child.”                          Sanchez, 608

F.3d at 696.

       I     would   hold   that,    absent       evidence   establishing       that   a

child has been given the authority “to permit the inspection [of

his parents home] in his own right,” Matlock, 415 U.S. at 172

n.7, the government cannot meet its burden in establishing the

elements of valid consent under the Fourth Amendment. 3                        The mere

fact that a child answers the door or has been left home alone

will be insufficient.



       3
       Like other courts to who have reached similar conclusions,
I would recognize exceptions where, for instance, the child’s
own welfare is at risk.



                                            34
                                          E.

         Turning to the undisputed facts of this case, even drawing

all   inferences       in   the   government’s      favor,   there    can   be   no

question that Belt’s son lacked actual or apparent authority to

grant the officers entry into Belt’s home.

         The officers approached Belt’s residence on an anonymous

tip regarding drug activity.              The officers encountered a child

between the ages of ten and twelve playing outside the home.

They learned that this young boy was Belt’s son.                     They learned

that Belt was inside the home.                 The fact-gathering ended there.

On this information alone, the officers determined that this

child had the authority to admit visitors through a side door

into the home, through the kitchen, and into the living room.

         That Belt did not chastise his son in front of the officers

for letting them in or immediately order the officers to leave

tells us very little, if anything, regarding the reasonableness

of their conduct.           The officers did not ask Belt whether they

had permission to be in his home, and we may not imply consent

based on Belt’s silence alone.                 See generally WAYNE R. LAFAVE, 4

SEARCH    AND   SEIZURE: A TREATISE ON   THE   FOURTH AMENDMENT § 8.2(b), at 61

(4th ed. 2004) (“[F]or constitutional purposes nonresistance may

not be equated with consent.”).

         The officers could have asked Belt’s son to retrieve Belt

from the residence.           They could have knocked on Belt’s front

                                          35
door as an ordinary visitor might and sought to engage Belt in

conversation.    They did not.         Instead, they relied upon the

“consent” of Belt’s minor child to gain entry into his home,

where they then sought to gain incriminating evidence from Belt.

In doing so, they violated his Fourth Amendment rights.



                                 III.

     The officers’ illegal entry into Belt’s home led to the

discovery   of   evidence   under       circumstances   that   warrant

application of the exclusionary rule.        Because, in my view, the

district court erred in denying Belt’s motion to suppress and

should be reversed, I respectfully dissent.




                                  36
