In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-3364

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHN JOHNSON,

Defendant-Appellant.

____________

Appeal from the United States District Court 

for the Southern District of Indiana, Indianapolis Division.

No. IP-03-43-CR-01—Sarah Evans Barker, Judge.

____________

SUBMITTED AUGUST 31, 2005—DECIDED OCTOBER 27, 2005

____________

Before CUDAHY, RIPPLE, and WILLIAMS, Circuit Judges.

CUDAHY, Circuit Judge. John Johnson was convicted of

possession with intent to distribute crack cocaine, 21 U.S.C.

§ 841(a), after the district court denied his motion to

suppress the crack found in his home during a warrantless

search. Although Johnson consented to the search, he

argues that his consent was tainted because he gave it

while being illegally detained. In August 2004 we ordered

a limited remand to permit the district court to consider

further whether the detectives who came to Johnson’s home

to investigate an anonymous tip had reasonable suspicion

for detaining him inside the threshold of his house. In light
2 No. 03-3364

of the district court’s additional findings on remand and the

subsequent concession by the government that the motion

to suppress should have been granted, we now reverse

Johnson’s conviction.

I.

The facts of the case have been presented in detail in both

our August 2004 order and the district court’s June 2005

response; accordingly, we provide only a brief summary

here. On February 27, 2003, Stephen Blackwell, a detective

assigned to a Madison County, Indiana, narcotics task force,

received an anonymous tip that a “John Johnson” was in

possession of a large amount of crack. The female caller

stated that Johnson had picked up the crack in Muncie,

Indiana, and brought it back to his “Fulton Street address”

in the town of Anderson. The tipster also stated that

Johnson picked up crack shipments on Thursdays and drove

a white vehicle, but she offered no other details and did not

explain the basis of her knowledge. The information was

not otherwise corroborated. Blackwell and another detective, Cliff Cole, went to appellant Johnson’s home to

investigate the tip. 

After watching Johnson’s house for about five minutes,

the detectives approached his girlfriend as she was leaving

the house. She verified that Johnson lived there and was

inside at the time. The detectives asked her to knock on the

door, and after she did, Johnson answered. The detectives

told Johnson about the anonymous tip and asked to search

his house. Johnson denied that there were drugs in the

house. After speaking to the detectives for several minutes,

Johnson turned his back on them and retreated down a

hallway. Detective Blackwell responded by drawing his gun,

pointing it at the ground, and saying, “[I]f you go down that

hallway, John, now it’s an officer safety issue.” Johnson

stopped and turned back toward the detectives, and
No. 03-3364 3

Blackwell returned the gun to its holster. Blackwell asked

again if he could search the house while Detective Cole

phoned a supervisor to discuss whether they could get a

search warrant. When Cole returned, Johnson said, “Well,

you might as well come on in.” The detectives entered the

house, and Johnson told them to “go ahead and search.”

They found a package of crack in a dresser.

Johnson later moved to suppress the drugs, arguing that

his consent was involuntary and, in any event, tainted by

his illegal detention. The district court denied the motion

and Johnson appealed. We previously upheld the district

court’s factual finding that the detectives did not coerce

Johnson to consent. But we disagreed with the court’s legal

conclusion that Johnson was not “seized” for Fourth

Amendment purposes when Detective Blackwell raised his

gun and stopped Johnson in his tracks when he began

walking back into the house. We could not, however,

determine from the record whether the seizure was based

on reasonable suspicion because certain facts were still in

dispute. In particular, the district court had not resolved

whether to credit testimony from both detectives that

Johnson appeared agitated during the encounter and from

Blackwell that he believed Johnson was going to retrieve a

weapon when he started walking further into the house. In

light of these open questions, we asked the district court to

supplement the record with additional findings of fact and

to “assess whether the officers reasonably suspected that

Johnson was engaged in or was about to engage in criminal

activity.”

On remand the district court ordered supplemental

briefing and held another hearing. After making supplemental findings, the court concluded that the detectives did

not have reasonable suspicion to justify seizing Johnson.

The court determined that Detective Blackwell wanted to

prolong the encounter until he obtained consent to search,

drawing his gun for that purpose, not because he feared
4 No. 03-3364

that Johnson was retrieving a weapon. The district court

gave little weight to Blackwell’s testimony that Johnson

had been loud and agitated during the conversation, that

Johnson had not asked to end the encounter and that

Johnson left the door open when he went back into the

house. The court noted that Blackwell never asked Johnson

if he was armed or if there were weapons in the house, nor

did he ask similar questions of Johnson’s girlfriend. Upon

concluding that the police lacked reasonable suspicion to

detain Johnson, the court elected to “rescind” its denial of

the suppression motion and to “grant” it instead.

After the district court submitted its supplemental

findings, we asked the parties to address (1) whether the

detectives had reasonable suspicion to seize Johnson; (2)

whether any exception to the exclusionary rule would allow

the evidence to be admitted in the absence of reasonable

suspicion; and (3) whether the conviction could stand if the

evidence was suppressed. Johnson argues that all three

questions must be answered in the negative. The government does not challenge the district court’s conclusion that

the detectives lacked reasonable suspicion to effect a

seizure and that Johnson’s consent was therefore tainted.

The government also concedes that no other exception to

the exclusionary rule allows the admission of the drugs into

evidence and that, without the drugs, the conviction cannot

stand.

II.

The Fourth Amendment’s probable cause and warrant

requirements do not apply where an authorized party

voluntarily consents to a search. Schneckloth v.

Bustamonte, 412 U.S. 218, 219 (1973); United States v.

Melgar, 227 F.3d 1038, 1041 (7th Cir. 2000). However,

consent given during an illegal detention is presumptively

invalid, United States v. Cellitti, 387 F.3d 618, 622-23 (7th
No. 03-3364 5

Cir. 2004), and any evidence discovered in a subsequent

search is inadmissable unless the taint of the illegal

conduct is somehow dissipated, Wong Sun v. United States,

371 U.S. 471, 488 (1963); Cellitti, 387 F.3d at 623. If the

consent to search results from an independent act of free

will, see United States v. Pedroza, 269 F.3d 821, 827 (7th

Cir. 2001), or is sufficiently attenuated from the illegal

police activity, see United States v. Jerez, 108 F.3d 684, 694-

95 (7th Cir. 1997), the taint is “purged” and the consent is

valid. When analyzing whether consent is valid despite

unlawful police conduct, we consider (1) the time elapsed

between the illegal conduct and the discovery of the evidence; (2) the existence of intervening circumstances; and

(3) the nature of the official misconduct. Brown v. Illinois,

422 U.S. 590, 603-04 (1975); Jerez, 108 F.3d at 695. 

 When the police approach an individual in a confined

space, a “seizure” occurs when a reasonable person would

not feel free to decline the officers’ request or otherwise

terminate the encounter. See United States v. Drayton, 536

U.S. 194, 202 (2002); United States v. Adeyeye, 359 F.3d

457, 461 (7th Cir. 2004). As we held earlier, Johnson was

seized inside his house when Detective Blackwell drew his

gun to prevent Johnson from walking further into the

interior. We must now decide whether the detectives had a

reasonable suspicion that Johnson had been, or was about

to be, engaged in criminal activity. See Terry v. Ohio, 392

U.S. 1, 21 (1968); United States v. Lenoir, 318 F.3d 725, 729

(7th Cir. 2003). Absent such reasonable suspicion any

seizure—wherever effectuated—would have been unlawful.

Both parties, in keeping with the district court’ findings,

now take the position that the detectives did not have

reasonable suspicion to detain Johnson. We agree. The

uncorroborated anonymous tip that prompted the visit did

not supply this reasonable suspicion. See Florida v. J.L.,

529 U.S. 266, 270-71 (2000); Alabama v. White, 496 U.S.

325, 329 (1990); United States v. Packer, 15 F.3d 654, 659
6 No. 03-3364

(7th Cir. 1994). And although a law enforcement officer’s

knowledge of a suspect’s criminal history may support the

existence of reasonable suspicion, United States v. Jackson,

300 F.3d 740, 746 (7th Cir. 2002), such knowledge in itself

is not enough, see United States v. Walden, 146 F.3d 487,

490-91 (7th Cir. 1998) (explaining that a criminal record in

conjunction with other information may form the basis of

reasonable suspicion). Here there is little information, other

than the uncorroborated anonymous tip, to add to Johnson’s

criminal record as a basis for reasonable suspicion. Although Detective Blackwell testified that he thought

Johnson might retrieve a weapon when he walked away

from the front door, the district court discredited this

statement and concluded that Blackwell did not really fear

that Johnson was getting a weapon. Instead, the court

determined that Blackwell’s “essential motivation” was to

prolong the encounter until Johnson consented to a search

of his home. This finding is not clearly erroneous. See, e.g.,

United States v. Ford, 333 F.3d 839, 843 (7th Cir. 2003).

And in this case, the unlawful seizure was ongoing when

Johnson voiced his consent, foreclosing the possibility that

the consent was sufficiently attenuated from the unlawful

conduct as to purge the taint. See Jerez, 108 F.3d at 695.

Having decided that the detectives lacked even reasonable

suspicion to seize Johnson, we put aside our fourth question

to the parties—whether police may seize a person inside his

own home without a warrant or at least probable cause

coupled with exigent circumstances, see United States v.

Payton, 445 U.S. 573 (1980); Lenoir, 318 F.3d at 730-31;

United States v. Saari, 272 F.3d 804, 809 (6th Cir. 2001);

LaLonde v. County of Riverside, 204 F.3d 947, 954-55 (9th

Cir. 2000). 

We asked the parties to address whether any exception to

the exclusionary rule would permit the admission of the

crack despite the Fourth Amendment violation, and both

parties have answered in the negative. Indeed, none of the

recognized exceptions, see, e.g., United States v. Leon, 468
No. 03-3364 7

U.S. 897, 927 (1984) (good faith); Nix v. Williams, 467 U.S.

431, 448 (1984) (inevitable discovery), applies here. Accordingly, the drugs discovered in Johnson’s home should not

have been admitted into evidence. See Elkins v. United

States, 364 U.S. 206, 223 (1960); United States v. RobelesOrtega, 348 F.3d 670, 681 (7th Cir. 2003).

Although we agree with the district court’s analysis and

conclusion on remand, we cannot, as the parties request,

“affirm” its decision to grant the motion. Because the appeal

was still pending during the limited remand, the district

court lacked jurisdiction to rescind its denial of the suppression motion and grant it instead. See United States v.

Turchen, 187 F.3d 735, 743 (7th Cir. 1999) (explaining that

the timely filing of a notice of appeal divests the district

court of jurisdiction). To the extent the district court

purported to grant the motion on remand, then, its order

has no effect. The court’s original ruling denying the motion

is still before us, and we now hold that it should have been

granted. We agree with the parties that the conviction

cannot stand without the suppressed evidence, so we

REVERSE Johnson’s conviction and REMAND the case to the

district court.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-27-05