FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 23, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-17005

Non-Argument Calendar

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D. C. Docket No. 07-00375-CR-1-WSD-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

THOMAS GLEN HILL,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(July 23, 2009)

Before DUBINA, Chief Judge, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

Appellant Thomas Glen Hill appeals his conviction for receipt of child
pornography, in violation of 18 U.S.C. § 2252A(a)(2). Hill argues that the district

court erred in denying his motions to suppress evidence unlawfully seized from his

residence. Specifically, Hill claims that police officers unlawfully entered his

residence based on information from firefighters responding to a residential fire at

his home who observed child pornographic images on his computer. Additionally,

Hill argues that his arrest was not supported by probable cause and, therefore, his

post-arrest statements, given almost four hours after he was arrested, should have

also been suppressed as fruit of the poisonous tree.

I.

A ruling on a motion to suppress presents “a mixed question of law and

fact.” United States v. Steed, 548 F.3d 961, 966 (11th Cir. 2008) (quoting United

States v. Boyce, 351 F.3d 1102, 1105 (11th Cir. 2003)). We accept the district

court’s factual findings unless they are clearly erroneous, construing all facts in the

light most favorable to the prevailing party below. Id. The district court’s

application of the law to the facts is reviewed de novo. Id.

The Fourth Amendment “protects the citizen against invasion of privacy.”

United States v. Brand, 556 F.2d 1312, 1317 (5th Cir. 1977). “[T]he Fourth

Amendment has drawn a firm line at the entrance to the house. Absent exigent

circumstances, that threshold may not reasonably be crossed without a warrant.”

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Payton v. New York, 445 U.S. 573, 590, 100 S. Ct. 1371, 1382, 63 L. Ed. 2d 639

(1980); see also United States v. McGough, 412 F.3d 1232, 1237 (11th Cir. 2005)

(holding that searches and seizures inside a home without a warrant are

presumptively unreasonable). The salvage procedure used by the firefighters here

clearly qualifies as a search within the Fourth Amendment, even if not conducted

by law enforcement officers. United States v. Parr, 716 F.2d 796, 811 (11th Cir.

1983) (“salvage and overhaul” involved looking for spot fires to insure all are

extinguished, for information revealing the identity of the owner, and for

salvageable valuables in order to protect them).

A warrantless search of a home may be justified, however, “where both

probable cause and exigent circumstances exist.” United States v. Davis, 313 F.3d

1300, 1302 (11th Cir. 2002). The exception applies only if the police reasonably

believe that an emergency situation justified warrantless action. United States v.

Holloway, 290 F.3d 1331, 1337 (11th Cir. 2002). The government bears the

burden of proving an exception to the warrant requirement. Id.

A burning residence clearly presents an exigent circumstance, and

firefighters are charged with extinguishing the fire, protecting valuables from fire,

and also determining the cause of the fire. Parr, 716 F.2d at 811-12. The Supreme

Court “imposed the warrant requirement on all searches undertaken to investigate

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the cause of the fire, excepting only those where the officials ‘remain in a building

for a reasonable time to investigate the cause of a blaze after it is extinguished.’”

Id. at 812 (quoting Michigan v. Tyler, 436 U.S. 499, 510, 98 S. Ct. 1942, 1950, 56

L. Ed. 2d 486 (1978)). Searches conducted after the initial entry must be within

the scope of the exigency justifying the original warrantless entry to extinguish the

fire, which serves two interests, (1) preventing fires and (2) discovering evidence

of criminal activity related to the cause of the fire. Id. at 812, 813 n.19 (noting

that, in Tyler, a reasonable time was a “few hours,” and primarily focusing on the

purpose, rather than the temporal connection, between the subsequent warrantless

searches and the initial exigency).

Consequently, although we have held that, once one official has intruded a

citizen’s residence legally, additional officials may also enter, even though the

exigent circumstances justifying the initial entry no longer exist, see United States

v. Schuster, 684 F.2d 744, 748 (11th Cir. 1982), the subsequent entries must be

within the scope of the initial entry. Parr, 716 F.2d at 813. Where subsequent

searches exceed the scope of the exigency, a warrant must be obtained. Id.; see

also Brand, 556 F.2d at 1317 n. 9 (holding that an officer entering a home under

the exigent circumstances exception may not search the premises beyond the scope

justified by the emergency without obtaining a warrant). While validly on the

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property in response to an emergency situation, officers are authorized to seize any

evidence found in plain view. See Holloway, 290 F.3d at 1340.

However, if evidence is seized after an illegal search, it should be suppressed

as the “fruit of the poisonous tree.” Davis, 313 F.3d at 1302-03 (citation omitted).

“Although its purpose is to prevent lawless conduct by law enforcement officials,

the exclusionary rule is not to be ‘interpreted to proscribe the use of illegally seized

evidence in all proceedings or against all persons.’” Parker v. Allen, 565 F.3d

1258, 1290 (11th Cir. 2009) (quoting Brown v. Illinois, 422 U.S. 590, 600, 95 S.

Ct. 2254, 2260, 45 L. Ed. 2d 416 (1975)). In determining whether evidence is

“fruit of the poisonous tree” and, therefore, must be excluded, the relevant question

is whether the evidence was obtained “by exploitation of that illegality or instead

by means sufficiently distinguishable to be purged of the primary taint.” United

States v. Delancy, 502 F.3d 1297, 1309 (11th Cir. 2007) (quoting Wong Sun v.

United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441 (1963)). The

government may “purge the taint” by establishing that the evidence in question

was seized pursuant to an independent source. Davis, 313 F.3d at 1303. Under the

“independent source” doctrine, the challenged evidence is admissible if it was

obtained from a lawful source, independent of the illegal conduct, provided that the

law enforcement officer’s decision to seek the warrant was not prompted by the

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information gained during the illegal search. United States v. Chaves, 169 F.3d

687, 692-93 (11th Cir. 1999).

Since the warrant affidavit contains hearsay, it is necessary to evaluate if the

affidavit presented sufficient facts which allow the magistrate to determine

independently whether probable cause existed. A warrant affidavit may be based

on hearsay information, so long as the magistrate was informed of (1) the

underlying circumstances that the informant relied on to conclude that some

criminal activity was taking, or had taken, place, and (2) some facts that

established the probable credibility of the informant or the reliability of his

information. United States v. Martin, 615 F.2d 318, 323 (5th Cir. 1980).

Additionally, the warrant affidavit must demonstrate: (1) a connection between the

defendant and the location to be searched; (2) a link between the location and

criminal activity; and (3) the informant’s veracity and basis of knowledge. United

States v. Martin, 297 F.3d 1308, 1314 (11th Cir. 2002); see also United States v.

Brundidge,170 F.3d 1350, 1352-53 (11th Cir. 1999) (holding that “veracity” and

“basis of knowledge” are considered in the totality of the circumstances analysis

and “a deficiency in one may be compensated for . . . by a strong showing as to the

other”) (citation omitted).

Here, it is undisputed that firefighters and police officers entered Hill’s

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home without a warrant. Hill does not dispute that the initial entries into his home

by firefighters were lawful, as they were responding to an emergency. Even if we

assume, arguendo, that subsequent entries in the interim were illegal because there

was no exigent circumstance to justify these entries and they exceeded the scope of

the initial entry, a lawful search was later conducted pursuant to a valid search

warrant. Although the search warrant was based on hearsay, the hearsay was based

on the personal and reliable observations of firefighters who, while lawfully in

Hill’s residence, observed the child pornographic images in plain view. The

magistrate was informed of the underlying circumstances that firefighters relied on

to conclude that some criminal activity was taking, or had taken, place.

Consequently, we conclude that the warrant affidavit established probable cause

that a search would uncover evidence of a crime, and there is nothing in the record

that suggests that the police officers sought the warrant because of what they saw

during any unauthorized entry into Hill’s home. Accordingly, we hold that the

district court properly denied Hill’s motion to suppress physical evidence.

II.

“[T]he Fourth Amendment permits warrantless arrests in public places

where an officer has probable cause to believe that a felony has occurred.” United

States v. Goddard, 312 F.3d 1360, 1362-63 (11th Cir. 2002) (quotation omitted).

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Probable cause exists when “the facts and circumstances within the officer’s

knowledge, of which he or she has reasonably trustworthy information, would

cause a prudent person to believe, under the circumstances shown, that the suspect

has committed, is committing, or is about to commit an offense.” United States v.

Lyons, 403 F.3d 1248, 1253 (11th Cir. 2005) (quotation omitted). “For probable

cause to exist, an arrest must be objectively reasonable based on the totality of the

circumstances.” United States v. Street, 472 F.3d 1298, 1305 (11th Cir. 2006)

(quotation and ellipsis omitted). As such, the officer’s own subjective opinions or

beliefs about probable cause are irrelevant. Id. “Because sufficient probability,

not certainty, is the touchstone of reasonableness under the Fourth Amendment,

probable cause itself is a doctrine of reasonable probability and not certainty."

Craig v. Singletary, 127 F.3d 1030, 1042 (11th Cir. 1997) (addressing a federal

habeas petition filed pursuant to 28 U.S.C. § 2254) (internal quotations and citation

omitted).

In determining whether statements are tainted by a prior violation of

constitutional rights, we ask whether, “granting establishment of the primary

illegality, the [statements] . . . [were derived] by exploitation of that illegality or

instead by means sufficiently distinguishable to be purged of the primary taint.”

United States v. Lopez-Garcia, 565 F.3d 1306, 1315 (11th Cir. 2009) (citation

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omitted). “This inquiry is fact-sensitive, and no single fact is decisive.” Id.

However, we have listed three non-exclusive factors to guide the inquiry into

whether a defendant’s statements were tainted by his illegal arrest: “[1] the

temporal proximity of the seizure and the consent, [2] the presence of intervening

circumstances, and, particularly, [3] the purpose and flagrancy of the official

misconduct.” Id. (citation omitted).

Here, the record evidence demonstrates that probable cause for Hill’s arrest

was established prior to the warrantless entry of his home by law enforcement

officers, as the firefighter’s information was “reasonably trustworthy” and would

have caused a “prudent person” to believe that Hill was committing a felony.

Based on the eyewitness information provided by the firefighter and the

unlikelihood that he would have lied about observing child pornography, the

arresting officer had sufficient reason to believe that Hill had committed a crime.

Even if we assume, arguendo, that Hill’s arrest was tainted by the officer’s

arguably illegal entry into Hill’s home in the interim, which led to the officer’s

plain view observation of child pornography, we nevertheless conclude that Hill’s

statements were too removed from the arrest to have suffered any taint. First, the

temporal proximity between Hill’s confession and his arrest was limited, as he

provided statements to detectives almost four hours after being arrested. Second,

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different law enforcement officers conducted Hill’s arrest and questioning. Third,

there is no evidence of any flagrant behavior during Hill’s interrogation or that he

was coerced, intimidated, or tricked in any way. Moreover, police officers read

Hill his Miranda rights, he indicated that he understood them, and he validly

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waived them before providing incriminating statements. Thus, even if the

underlying arrest violated Hill’s Fourth Amendment rights, there is no basis for

concluding that the allegedly illegal arrest tainted the statements he provided to law

enforcement officers regarding his possession of child pornography. Accordingly,

we affirm Hill’s conviction.

AFFIRMED.

 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 1

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