1

The Honorable Joseph F. Bataillon, Chief Judge, United States District Court

for the District of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-1764

___________

United States of America, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Trinidad Villa-Gonzalez and *

Jose Manuel Villa-Gonzalez, *

* 

Appellees. *

___________

Submitted: May 11, 2010

Filed: November 1, 2010

___________

Before WOLLMAN, BYE, and MELLOY, Circuit Judges.

___________

BYE, Circuit Judge.

Brothers Trinidad Villa-Gonzalez (Trinidad) and Jose Villa-Gonzalez (Jose)

were indicted in 2008 on various criminal charges after police discovered

methamphetamine, guns, money, and scales during a search of the brothers’ residence.

The district court1

 granted the brothers’ motion to suppress the physical evidence

discovered during the search of their residence, as well as certain incriminating

statements they made to police. The government appeals, arguing the district court
-2-

erred by concluding (1) Trinidad’s initial encounter with the police was not

consensual and statements he made during the encounter were involuntary, and (2) the

evidence discovered during the search of the brothers’ residence was inadmissible

fruit of the poisonous tree. We affirm.

I

Keith Bignell, a drug investigator with the Nebraska State Patrol, received

information in February 2008 that Trinidad and Jose Villa-Gonzalez were selling

methamphetamine out of their trailer residence on 61st Avenue in Columbus,

Nebraska. While driving by the trailer on the morning of May 29, 2008, Bignell saw

a vehicle at the trailer and a person standing near the trailer. Bignell decided to

attempt a “knock and talk” consensual contact at the residence. Bignell was driving

an unmarked sedan at the time and was accompanied by Investigator Molczyk of the

Columbus police. Bignell was armed with a pistol in a holster visible on his belt; he

was wearing blue jeans, a t-shirt, and a vest displaying a badge emblem and marked

with the word “police.” Molczyk was wearing plainclothes with no visible weapon.

Before he approached the trailer, Bignell called for assistance and was joined

by a uniformed officer, Trooper Dain Hicks, who was driving a marked patrol car.

Trooper Hicks was visibly armed. As Bignell and the other officers approached the

trailer, Bignell saw an individual later identified as Esau Valenzuela-Machado

standing near the trailer. Bignell asked Valenzuela-Machado for identification, and

Valenzuela-Machado provided a Mexican voter registration card. Bignell asked

Valenzuela-Machado to accompany Trooper Hicks to the front of the trailer. Hicks

then placed Valenzuela-Machado in the rear seat of his police cruiser and stood in the

driveway near the front of the trailer.

Bignell and Molczyk approached the main door of the trailer and knocked. Jose

answered the door. Bignell, standing on a deck outside the main door of the trailer,
-3-

identified himself as a police officer, and he asked Jose for “some identification.”

Bignell also asked if he could come inside the trailer. Jose did not answer, but

Trinidad came to the door and told Bignell he could not come inside. Bignell asked

Trinidad for identification, and Trinidad responded by closing the door partially and

leaving the doorway area. Trinidad then returned with a Nebraska identification card.

Bignell and Trinidad then engaged in a brief conversation on the deck during which

Trinidad told Bignell that he lived in the trailer along with his brother Jose. Jose

returned to the door with his identification – a State of Washington driver’s license

– handed the ID to Trinidad, and returned once again inside the trailer. Trinindad

handed over his and Jose’s ID cards to Bignell. Trinidad asked Bignell what he

wanted, and Bignell explained that he believed Trinidad and Jose were drug dealers.

Trinidad denied the accusation. In response to a few more questions from Bignell,

Trinidad stated that he was born in Mexico and that he did not have any additional

forms of identification. Bignell asked Trinidad a second time for permission to search

the trailer, and Trinidad again declined to consent to a search.

Bignell returned to his car and used his cell phone to call Mike Becker, an

Immigration and Customs Enforcement (ICE) officer with the Department of

Homeland Security in Omaha, and asked him to run immigration checks based on the

information provided by the three men at the trailer. Becker ran the requested checks

and called Bignell back in “five minutes or less.” At that time, Becker told Bignell

he wanted to speak with each of the individuals on the cell phone. While Bignell was

talking with Becker, Trinidad stood just “outside the trailer on the deck with

Investigator Molczyk.” Pursuant to Becker’s request to speak with each of the three

men, Bignell “approached Trinidad on the — on the deck and handed him the cell

phone.” The nature of the interaction between Bignell and Trinidad is disputed by the

parties. The district court found that Bignell “told” Trinidad to talk on the phone with

Becker. The government asserts that this finding is clearly erroneous, and suggests,

instead, that Bignell merely handed the phone to Trinidad. If Bignell said anything

to Trinidad when he handed Trinidad the phone, the record is silent on the point.
2

The record is silent on when, if ever, Bignell returned Trinidad and Jose’s

identification cards.

-4-

In a “short conversation,” Trinidad told Becker he was from Mexico, that he

had entered the United States on a visitor’s visa in June 2007, and that his documents

were in the trailer. After Becker finished speaking to Trinidad, Bignell then entered

the trailer, without consent, and handed the phone to Jose. Jose admitted to his status

as an illegal immigrant. Finally, Bignell handed the phone to Valenzuela-Machado,

who also admitted to his status as an illegal alien. At the conclusion of Becker’s cell

phone conversation with the men, Becker told Bignell to administratively arrest all

three men as suspected illegal aliens, on the basis of Jose and Valenzuela-Machado’s

admission of their illegal status, and Becker’s failure to find any record in his

immigration database corroborating Trinidad’s statement that he entered the United

States on a visitor’s visa in June 2007.

At this point, Bignell handcuffed Trinidad and placed him under arrest.2

 The

three detained men were taken to the Platte County jail where Becker and another ICE

investigator promptly arrived from Omaha to interview them regarding their

immigration status. With respect to Trinidad, the government’s computer records did

not support his claim that he had lawfully entered the country, but Becker wanted to

interview him because “sometimes there can be errors in databases.” Becker testified

the general purpose of his interviews with suspected illegal aliens is to seek

information for administrative removal from the United States. Becker testified he

conducts an “identity interview” addressing the person’s

name, date of birth, family’s name, do they have kids, are they married,

are they sick, where do they live, where were they born, and then we

have their entry data, because under the Immigration and Nationality

Act, how an alien enters the United States determines [] which course of

action that you actually take in the administrative process . . . for

removal.
-5-

Becker does not typically give Miranda warnings at the outset of these interviews, and

he did not do so when he interviewed Trinidad at the jail. When Becker interviewed

Trinidad, he inquired about the names of Trinidad’s parents and his exact address in

Mexico. When Becker told Trinidad the government did not have a record of him

coming into the United States with a passport and visa as he had claimed, Trinidad

incriminated himself, admitting he used fraudulent documents to gain entry. Because

Trinidad appeared to Becker to have admitted to committing a felony by fraudulently

using another person’s documents to enter the United States, Becker immediately

stopped questioning Trinidad.

On the assumption Trinidad likely kept the fraudulently-used documents at his

residence, Becker decided to seek a warrant to search for such documents in Trinidad

and Jose’s trailer. The government applied for and obtained a search warrant, with the

probable cause showing for the warrant based principally on Trinidad’s disclosure that

he had fraudulently used another person’s documents to illegally enter the United

States, along with his earlier statement that he stored the documents in his trailer. The

warrant affidavit also relied on the fact that both Jose and Valenzuela admitted to their

status as illegal aliens.

The search warrant for the trailer was executed at around 6 p.m. on the same

day, May 29, 2008, by Becker and other ICE agents, along with Bignell and Molczyk.

In the residence, officers discovered about $32,000 in currency, two handguns, two

scales, and a quantity of methamphetamine.

On June 18, 2008, a federal grand jury in the District of Nebraska returned a

five-count indictment against Trinidad and Jose. Count One charged both Trinidad

and Jose with conspiring to distribute and possess with intent to distribute

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count Two

charged both Trinidad and Jose with possessing methamphetamine with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1). Count Three charged both Trinidad
-6-

and Jose with unlawful possession of firearms by an alien illegally in the United

States, in violation of 18 U.S.C. § 922(g)(5)(A). Count Four charged Trinidad with

unlawfully reentering the United States after having been deported following

conviction for an aggravated felony, in violation of 8 U.S.C. § 1326. Count Five was

a forfeiture count under 21 U.S.C. § 853.

In September 2008, Trinidad and Jose filed motions to suppress all their

statements to law enforcement officers as well as the evidence seized in the search of

their residence. A magistrate judge conducted an evidentiary hearing on Trinidad and

Jose’s suppression motion and entered a Report and Recommendation recommending

that the motions be granted in part and denied in part. The magistrate concluded the

initial “knock and talk” interaction between Bignell, Trinidad and Jose was a

consensual encounter and found no reason to suppress Trinidad’s cell phone

conversation with Becker. The magistrate judge found that Bignell had “approached

Trinidad on the deck and handed him a cell phone, at which time Trinidad spoke with

Officer Becker,” and he noted that “[t]here is no evidence that Trinidad objected to

talking to Becker on the telephone or that he was forced to do so.” The magistrate

judge further concluded Trinidad was not “in custody” when he talked to Becker on

the cell phone. The magistrate judge also found that because Becker was unable to

find any record that Trinidad had entered the United States with a passport and visa

in 2007 as he had claimed, Becker had sufficient cause at the conclusion of the cell

phone conversation to direct Bignell to make an administrative arrest and detain

Trinidad. Turning to Becker’s questioning of Trinidad at the jail, the magistrate judge

concluded Becker should have provided Miranda warnings to Trinidad. In the

magistrate judge’s view, Becker’s questioning of Trinidad as to his manner of entry

– in which he confronted Trinidad with the fact that the government’s records did not

support his claim that he used a passport and visa to legally enter in 2007 – was

“reasonably likely to elicit an incriminating response,” and Miranda warnings were

therefore required. The magistrate judge contrasted Becker’s interrogation at the jail

from the “mere[] . . . administrative inquiry [conducted] when Becker interviewed
-7-

Trinidad over the telephone.” Because of Becker’s failure to provide Miranda

warnings prior to the jail interview, the magistrate judge recommended that Trinidad’s

statements in that interview be suppressed. Relying on United States v. Patane, 542

U.S. 630, 636 (2004), the magistrate judge rejected Trinidad and Jose’s argument that

the “fruit of the poisonous tree”doctrine required suppression of the physical evidence

later seized at the trailer. The magistrate judge explained, under Patane, there is no

constitutional basis for suppressing physical evidence obtained as a result of voluntary

statements, even if there was a Miranda violation in the jailhouse questioning.

Assessing the totality of the circumstances, the magistrate judge concluded Trinidad’s

statements at the jail were voluntary. The magistrate judge noted in particular that

“[t]he record in this case is devoid of any indication that either Trinidad or Jose were

particularly susceptible to pressure that may have been asserted by law enforcement,”

and that “[t]he evidence does not suggest that their wills were overborne at any time

during these events.” Finally, the magistrate judge concluded that the facts included

in the application for the search warrant, including Trinidad’s statements, were

sufficient to establish probable cause for the search of the trailer for evidence of

immigration law violations.

The district court subsequently entered a suppression order granting Trinidad

and Jose’s motion to suppress in its entirety. The district court agreed with the

magistrate judge that the incriminating statements Trinidad made at the Platte County

jail required Miranda warnings and must be suppressed. In addition, however, the

district court found that although Bignell’s initial contact with Trinidad was

consensual, the encounter became an unlawful detention at the time of Trinidad’s cell

phone conversation with Becker. In addition, the district court concluded Trinidad

was “in custody” on the deck of his residence and that Miranda warnings were

therefore required before his cell phone conversation with Becker. The district court

further found the government had failed to prove the voluntariness of Trinidad’s

statements in light of the coercive atmosphere and the fact that “the defendants were

told, not asked, to answer the questions propounded by the ICE officer on the phone.”
-8-

Because the information supporting probable cause for the search warrant was derived

from the arrest which resulted from what were, according to the district court,

Trinidad’s involuntary statements to Becker on the cell phone during a period of

unlawful detention, the court ultimately concluded that the fruit of the poisonous tree

doctrine required suppression of the physical evidence seized in the search.

The government now appeals the district court’s adverse suppression order. We

have jurisdiction over the government’s appeal pursuant to 18 U.S.C. § 3731.

II

The first issue we must confront is whether Trinidad was seized within the

meaning of the Fourth Amendment by the time he made an incriminating statement

over the phone to Becker.

We review a district court’s factual determinations in ruling on a motion to

suppress for clear error and its conclusions of law de novo. United States v. Griffith,

533 F.3d 979, 982 (8th Cir. 2008).

Although the Fourth Amendment prevents police from seizing a person without

a reasonable suspicion of criminal activity, the Amendment is not triggered by a

consensual encounter between an officer and a private citizen. Id. at 983. “[M]ere

police questioning does not constitute a seizure.” Florida v. Bostic, 501 U.S. 429, 434

(1991). “Even when law enforcement officers have no basis for suspecting a

particular individual, they may pose questions, ask for identification, and request

consent to search . . . provided they do not induce cooperation by coercive means. If

a reasonable person would feel free to terminate the encounter, then he or she has not

been seized.” United States v. Angulo-Guerrero, 328 F.3d 449, 451 (8th Cir. 2003).

“A consensual encounter becomes a seizure implicating the Fourth Amendment when,

considering the totality of the circumstances, the questioning is ‘so intimidating,
-9-

threatening, or coercive that a reasonable person would not have believed himself free

to leave.’” United States v. Flores-Sandoval, 474 F.3d 1142, 1145 (8th Cir. 2007),

quoting United States v. Hathcock, 103 F.3d 715, 718 (8th Cir. 1997).

Two relevant Supreme Court cases bear examination. In United States v.

Drayton, the Supreme Court held no seizure occurred when officers boarded a bus

during a scheduled stop and began questioning passengers about their travel plans and

baggage in a routine drug and weapons interdiction effort. 536 U.S. at 196. And

while the police officers in Drayton were not in uniform or visibly armed, the Court

stated that “those factors should have little weight in the analysis.” Id. at 204. The

Court noted that

[o]fficers are often required to wear uniforms and in many circumstances

this is cause for assurance, not discomfort. Much the same can be said

for wearing sidearms. That most law enforcement officers are armed is

a fact well known to the public. The presence of a holstered firearm thus

is unlikely to contribute to the coerciveness of the encounter absent

active brandishing of the weapon.

Id. at 204-05. The Court ruled the encounter was not a seizure within the meaning of

the Fourth Amendment. Id. at 207.

In another case, the Supreme Court held INS questioning of factory workers in

their workplace about their citizenship was not a seizure even though uniformed INS

agents were posted at the workplace exits and the workers were not told they need not

respond. I.N.S. v. Delgado, 466 U.S. 210, 216 (1984). The Court stated, “[w]hile

most citizens will respond to a police request, the fact that people do so, and do so

without being told they are free not to respond, hardly eliminates the consensual

nature of the response.” Id. The Court noted there was nothing in the record showing

the agents stationed at the factory doors prevented anyone from leaving, and the
-10-

obvious purpose of the agent’s presence at the doors was to ensure all the workers

were questioned. Id. at 218.

This court has also affirmed on numerous occasions that the knock-and-talk

procedure used here is a consensual encounter under normal circumstances. See, e.g.,

United States v. Spotted Elk, 548 F.3d 641, 655 (8th Cir. 2008) (“As commonly

understood, a knock and talk is a consensual encounter and therefore does not

contravene the Fourth Amendment, even absent reasonable suspicion.”) (citations

omitted); United States v. Vera, 457 F.3d 831, 835 (8th Cir. 2006) (indicating that a

request to see identification is not a seizure, as long as the police do not convey a

message that compliance with their request is required); United States v. Coney, 456

F.3d 850, 858 (8th Cir. 2006) (finding encounter with police officer consensual where

officer “did not use physical force, make a show of authority, or use demanding

language,” and two defendants exercised their right to deny request for consent to

search).

In making the ultimate determination of whether a reasonable person would feel

free to terminate the encounter with police, we have in past cases examined the

presence or absence of seven nonexclusive factors. In Griffith, we stated that 

[s]ome circumstances which inform our decisionmaking include: officers

positioning themselves in a way to limit the person’s freedom of

movement, United States v. White, 890 F.2d 1412, 1416 (8th Cir. 1989),

the presence of several officers, the display of weapons by officers,

physical touching, the use of language or intonation indicating

compliance is necessary, the officer’s retention of the person’s property,

or an officer’s indication the person is the focus of a particular

investigation, Ninety One Thousand Nine Hundred Sixty Dollars, 897

F.2d at 1461.

Griffith, 533 F.3d at 983.
3

Because we conclude the remaining circumstances are sufficient to support the

district court’s conclusion Trinidad was seized, we assume, without deciding, that the

district court clearly erred when it found that Bignell “told” Trinidad to speak on the

phone to Becker. 

4

We emphasize that we do not apply any rigid mathematical formula with

respect to the relevant factors in our analysis. We count factors merely to organize

our analysis.

5

The factual record is clear that Bignell took possession of Trinidad and Jose’s

identification cards during the early stages of the encounter. The record is silent,

-11-

Turning to the facts of this case, we conclude the district court did not err when

it concluded Trinidad was seized by the time he spoke to Becker on the phone. To be

sure, two of the relevant factors support the government’s argument that the encounter

between Trinidad, Jose, and the police remained a consensual encounter. First, there

is no evidence in the record that any physical touching occurred, and second, there

was no language or intonation used indicating compliance was necessary.3

 Five of the

relevant factors, however, weigh in favor of Trinidad and Jose.4

 Three officers were

present at the trailer. The officers in this case positioned themselves so as limit

Trinidad and Jose’s freedom of movement. Trooper Hicks described his role as

“security” and stood in the driveway as Bignell and Molczyk went to the door of the

trailer. When Bignell returned to his vehicle to phone Becker, Molczyk remained near

the trailer door with Trinidad. Although we do not give the circumstance a great deal

of weight, see Drayton, 536 U.S. at 204-05, two of the officers were visibly armed.

The two remaining factors weigh most heavily in our analysis. First, in the course of

the encounter, Bignell told Trinidad he believed Trinidad and Jose were drug dealers.

Such inquisitorial statements are not present in the vast run of consensual encounters

between police and individuals, and certainly make any encounter more coercive. See

United States v. Drinkard, 900 F.2d 140, 142 (8th Cir. 1990) (concluding a seizure

occurred where DEA agents asked the defendant if he had drugs in his luggage).

Second, there is no indication that Bignell ever returned Trinidad’s identification card

before Trinidad spoke to Becker over the phone.5

 Without his identification card, a
however, on if, and, more importantly when, Bignell returned the cards to the

brothers. After Bignell took possession of the cards, he returned to his car for roughly

five minutes where he telephoned Becker, relaying to him the names and information

for Trinidad, Jose, and Valenzuela-Machado. Bignell, while on the phone with

Becker, walked back to the trailer and handed the phone to Trinidad. Given these

historical facts, the district court inferred Bignell had not returned the cards before

Trinidad’s conversation with Becker. Giving “due weight to inferences drawn from

those facts by resident judges and local law enforcement officers,” United States v.

Gomez, 312 F.3d 920, 923 (8th Cir. 2002), we accept the district court’s finding as a

reasonable inference.

6

The district court also held, alternatively, Trinidad’s statements over the phone

to Becker were made involuntarily and while “in custody” for purposes of Miranda

v. Arizona. Although the government asserts error in the district court’s conclusion

that Trinidad’s statements were involuntary, we need not review the district court’s

voluntariness determination because our conclusion that Trinidad was illegally seized

is ultimately sufficient to uphold the district court’s suppression order. The

government does not challenge the district court’s determination that Trinidad was in

custody. Therefore, we decline to review and express no opinion on the district

court’s conclusions that Trinidad’s statements to Becker were involuntary and made

while in custody.

-12-

reasonable person is much less likely to believe he can simply terminate a police

encounter. See Florida v. Royer, 460 U.S. 491, 503 n. 9 (1983) (noting that officers

taking possession of defendant’s airline ticket, luggage, and identification contributed

to the determination defendant had been seized because “[a]s a practical matter, Royer

could not leave the airport without them.”). Looking at all the circumstances, we

agree with the district court that a reasonable person in Trinidad’s circumstances

would not have felt free to terminate the police encounter and walk away (or attempt

to do so). Therefore, the district court did not err when it concluded Trinidad was

seized within the meaning of the Fourth Amendment by the time he spoke to Becker

on the phone.6
7

Evidence obtained as a result of a constitutional violation may still be

admissible if the later discovery is significantly attenuated from the primary violation,

see, e.g., Brown v. Illinois, 422 U.S. 590, 604-05 (1975), if the later discovery was

inevitable, see, e.g., Nix v. Williams, 467 U.S. 431, 446 (1984), or if the later

discovery was supported by an independent, taint-free source, see, e.g., Murray v.

United States, 487 U.S. 533, 539-41 (1988). The government does not argue any of

these exceptions to the fruit of the poisonous tree doctrine apply in this case.

8

The reasoning behind Patane’s holding is difficult to follow due to the

fractured opinion issued by the Supreme Court. A three-judge plurality reasoned

-13-

III

Having concluded that Trinidad was illegally seized without reasonable

suspicion of wrongdoing, we must next examine whether the district court erred, as

the government asserts, when the court determined the “fruit of the poisonous tree”

doctrine necessitated suppression of the physical evidence discovered during the

search of Trinidad and Jose’s residence.

The exclusionary rule “reaches not only primary evidence obtained as a direct

result of an illegal search or seizure . . . but also 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) (internal marks omitted).7

The government argues that under the authority of United States v. Patane, 542

U.S. 630 (2004), suppression is inappropriate in this case. In Patane, the defendant

was lawfully arrested for violating a restraining order. Id. at 635. After his arrest, a

police officer attempted to read the defendant his Miranda rights, but was interrupted.

Id. Responding to a question by the police officer, the defendant admitted there was

a firearm in his bedroom. Id. The police officer seized the firearm. Id. The Court

held that although the defendant’s statement about the location of the gun must be

suppressed, the gun itself was admissible. Id. at 642.8

 In so doing, the Court
Miranda is not violated until the prior testimony is admitted at trial. Id. at 641. A

concurrence written by Justice Kennedy and joined by Justice O’Connor stated that

“[i]n light of the important probative value of reliable physical evidence, it is doubtful

that exclusion can be justified by a deterrence rationale sensitive to both law

enforcement interests and a suspect's rights during an in-custody interrogation.” Id.

at 645 (Kennedy, J., concurring).

9

The government does not dispute the district court’s conclusion that Trinidad’s

unwarned statements made to Becker at the Platte County jail ran afoul of Miranda.

-14-

announced a rule that the lack of a Miranda warning does not justify the suppression

of the physical evidence seized pursuant to a search warrant derived from a voluntary

“un-warned” statement. Id.

We find Patane inapplicable here. Rather, we are guided by Wong Sun v.

United States, 371 U.S. 471 (1963). In Wong Sun, law enforcement officers entered

a man’s residence without a warrant, in violation of the Fourth Amendment. Id. at

474. Once inside, the owner of the residence made an incriminating statement to

police–telling the police he knew someone who sold narcotics. Id. Acting on the

statement, the police went to the home of the second man and discovered drugs. Id.

at 475. The Supreme Court held the drugs must be suppressed. Id. at 488. The Court

reasoned (1) the warrantless entry into the first home was an illegal search, (2) the

admission of the owner of the first home as to the identity of the drug dealer was the

direct result of the illegal search, and not the result of “an intervening independent act

of a free will,” id. at 486, and (3) the drugs were found as a direct result of the

admission, id. at 488.

Although Patane, like this case, involved a Miranda violation,9

 the similarities

end there. In Patane, the unwarned statements were made after a lawful arrest.

Patane, 542 U.S. at 635. In this case, by contrast, Trinidad’s unwarned statements to

Becker were themselves fruits of an illegal seizure. Applying Patane’s rule in this

context would swallow up the entirety of the fruit of the poisonous tree doctrine.
10The lone affidavit supporting the warrant application also referred to Jose’s

admission to Becker over the phone that he (Jose) was an illegal alien. The

government does not quarrel with the district court’s finding that Jose’s admission is

itself fruit of the poisonous tree because Bignell illegally entered the brothers’

residence to hand the phone to Jose after twice being denied consent to enter the

trailer.

-15-

Here, like in Wong Sun, the initial constitutional violation was a Fourth Amendment

violation. Trinidad was illegally seized without reasonable suspicion, which led

directly to his phone conversation with Becker about the details of his immigration to

the United States. The phone conversation supplied the only basis to arrest Trinidad,

and the arrest led directly to Trinidad’s subsequent admission he had entered the

United States illegally using fraudulent documents. Finally, the warrant application

to search Trinidad and Jose’s residence for the fraudulent documents was supported

by Trinidad’s admissions to Becker.10

Therefore, the district court did not err when it concluded the fruit of the

poisonous tree doctrine necessitated suppression of evidence discovered during the

search of Trinidad and Jose’s residence.

IV

For the foregoing reasons, we affirm.
-16-

WOLLMAN, Circuit Judge, dissenting.

Because I believe that the magistrate judge’s factual findings and legal

conclusions find support in the record, I would reverse the district court’s judgment

and hold that the items seized during the warrant-based search are admissible at trial.

My disagreement with the court’s holding lies not with its factual recitation of

the events that culminated in the arrest and detention of the defendants, but with its

conclusion that the facts require a holding that Trinidad was seized by the time he

spoke with Becker on the cell phone. I agree with the court that the first two of the

Griffith factors support the government’s argument that the interaction between

Trinidad, Jose, and the officers remained a consensual encounter throughout its

duration. I would hold, however, that the remaining Griffith factors, when viewed in

the light of the attendant circumstances, do not support a conclusion that a seizure

occurred.

First, the fact that Trooper Hicks described his role as “security” does not count

for much in my estimation in light of the fact that he had no contact with Trinidad and

Jose upon arriving at the scene. He testified that, after parking at the front of the

trailer, he watched the back portion of the trailer and was not in a position to observe

what was happening at the scene. True enough, he also testified that it would have

been his job to stop anyone who came from the trailer, but there is no evidence that

either Trinidad or Jose was aware of this fact. Indeed, as to them, Trooper Hicks

could justifiably be described as “little more than [a] passive observer[].” United

States v. White, 81 F.3d 775, 779 (8th Cir. 1996).

I give no weight to the fact that two of the officers were visibly armed, since

most members of the public expect law enforcement officers to be armed, and there

is no evidence that either of these officers ever by word or gesture in any way

indicated that the use of those side arms was being contemplated.
-17-

This brings us to the two factors that the court concludes most heavily weigh

in favor of a conclusion that a seizure occurred. As the court says, Bignell told

Trinidad during the course of the encounter that he believed that Trinidad and Jose

were drug dealers. This statement was made in response to Trinidad’s inquiry as to

what Bignell wanted and not in an introductory, accusatory manner. Trinidad’s

response to Bignell’s statement was to deny the allegation and to once again deny

Bignell’s request for consent to enter the trailer, hardly the response of one who

believed that he was powerless to do other than to comply with the officer’s requests.

I agree with the magistrate judge’s analysis and conclusion on this issue:

Up to this point, the record does not suggest that Trinidad and Jose

were coerced into talking to the police or that they were susceptible to

any pressure that may have been asserted by the officers. Indeed, they

affirmatively refused to allow the officers into the residence or to search

the residence.

Turning to the matter of the unreturned identification cards, one must weigh the

significance of that fact in the light of the circumstances. In contrast to the situation

in Florida v. Royer, there is no evidence that Trinidad and Jose were about to catch

a soon-to-depart airline flight or to undertake a cross-country journey. Accordingly,

I place no significance on the fact that their identification cards were not returned to

them before Trinidad’s telephone conversation with Becker.

In summary, I agree with the magistrate judge’s conclusion that Trinidad had

not been seized at the time he was handed the cell phone by Bignell and thereafter

conversed with Becker.

Likewise, I agree with the magistrate judge’s finding that Trinidad’s statements

to Becker at the jail were voluntarily made and its conclusion that in light of the

holding in United States v. Patane, the evidence seized pursuant to the warrant should

be held to be admissible at trial.
-18-

Having reviewed the challenge to the sufficiency of the warrant set forth in

Jose’s brief, I conclude that it without merit.

______________________________