*

The Honorable Robert H. Cleland, United States District Judge for

the Eastern District of Michigan, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0336P (6th Cir.)

File Name: 03a0336p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

DAVID LOPEZ-ARIAS and

ANTONIO EGUES,

Defendants-Appellees.

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No. 02-5154

Appeal from the United States District Court

for the Western District of Kentucky at Louisville.

No. 00-00094—Thomas B. Russell, District Judge.

Argued: May 2, 2003

Decided and Filed: September 19, 2003 

Before: CLAY and GIBBONS, Circuit Judges;

CLELAND, District Judge.*

2 United States v. Lopez-Arias et al. No. 02-5154

_________________

COUNSEL

ARGUED: Nina Goodman, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Appellant. Patrick J. Bouldin, WESTERN KENTUCKY

FEDERAL COMMUNITY DEFENDER, INC., Louisville,

Kentucky, Martin N. Kute, Louisville, Kentucky, for

Appellees. ON BRIEF: Nina Goodman, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., Terry M.

Cushing, ASSISTANT UNITED STATES ATTORNEY,

Louisville, Kentucky, for Appellant. Patrick J. Bouldin,

WESTERN KENTUCKY FEDERAL COMMUNITY

DEFENDER, INC., Louisville, Kentucky, Martin N. Kute,

Louisville, Kentucky, for Appellees.

_________________

OPINION

_________________

JULIA SMITH GIBBONS, Circuit Judge. Federal drug

enforcement agents arrested defendants-appellees David

Lopez-Arias and Antonio Egues for trafficking in cocaine.

After a federal grand jury indicted them, defendants moved to

suppress certain evidence, alleging that it was obtained as a

result of an unlawful arrest. The district court granted

defendants’ motion to suppress, and the government appeals

from that ruling. For the following reasons, we affirm the

district court’s decision to suppress the evidence. 

I.

On or shortly before July 26, 2000, law enforcement

officials in Louisville, Kentucky, received a tip from a

confidential informant, whose reliability had not yet been

tested, that two Hispanic men from Las Vegas were traveling

to Louisville to distribute cocaine. The informant told the
No. 02-5154 United States v. Lopez-Arias et al. 3

police that the two men intended to stay at the Collier Motel

in Louisville and that a man named Jose intended to deliver

the proceeds of a drug sale to these two men at the motel.

According to the informant, Jose would be driving a white

Toyota with a certain license plate number. A search of state

motor vehicle records revealed that the license plate number

identified by the informant was registered to Jose Barrera

Santiesteban, 104 E. Kingston, Apt. 1, Louisville, Kentucky.

The federal Drug Enforcement Administration (DEA)

began surveillance of the Collier Motel on the afternoon of

July 26, 2000. During their surveillance, DEA agents

discovered that a 1992 blue Ford Crown Victoria, which was

parked in front of Room 17 of the motel, was registered to

David Lopez-Arias, whose address matched Santiesteban’s

except for the apartment number. At around 4:00 p.m. on

July 26, defendants Lopez-Arias and Egues exited Room 17

and departed in the Crown Victoria. The undercover DEA

agents followed defendants as they visited several locations,

including an office supply store, where they purchased a set

of digital scales of the type often used to weigh drugs.

Defendants then returned to the motel. 

At around 8:15 that evening, Santiesteban arrived at the

motel driving the white Toyota described by the informant.

After speaking with Lopez-Arias, who was outside working

on the Crown Victoria, Santiesteban went into Room 17 with

Lopez-Arias. DEA agents observed Santiesteban carrying a

yellow plastic bag into Room 17. Santiesteban stayed in

Room 17 for about forty-five minutes before leaving in his

white Toyota. DEA agents followed Santiesteban out of the

vicinity of the motel and then stopped him. A drug-sniffing

dog alerted on the Toyota, but the DEA agents did not find

any drugs in the Toyota. 

Defendants departed from the motel in the Crown Victoria

shortly after Santiesteban and were followed by DEA agents.

Once the drug-sniffing dog alerted on Santiesteban’s Toyota,

a DEA agent on the scene with Santiesteban ordered the DEA

4 United States v. Lopez-Arias et al. No. 02-5154

agents following defendants to stop the Crown Victoria. Four

DEA agents in four unmarked DEA vehicles activated their

sirens and emergency lights and stopped the Crown Victoria.

The four DEA agents, with weapons drawn, ordered

defendants to exit the Crown Victoria. The DEA agents then

handcuffed defendants and placed them into separate DEA

vehicles. The DEA agents drove the defendants from the

scene of the stop on the street to an adjacent convenience

store parking lot, where they were removed from the DEA

vehicles,read theirMiranda rights, and questioned separately.

The DEA agent questioning Egues conducted a pat-down

search of him and found the motel key in his pocket. Egues

stated that the motel room was registered in his name. The

DEA agent asked Egues for consent to search the motel room

and presented him with a written consent form, which Egues

signed within ten to fifteen minutes from the time the DEA

agents stopped the Crown Victoria. A little more than twenty

minutes from the time the DEA agents stopped the Crown

Victoria, Lopez-Arias gave the DEA agent questioning him

verbal consent to search the motel room.

After receiving consent from both defendants, DEA agents

searched Room 17 of the Collier Motel and found a yellow

plastic bag containing twenty-five individually wrapped

packages of cocaine, a black notebook containing $4,100 in

cash, clear plastic wrappers containing cocaine residue, and

two sets of digital scales. DEA agents then formally arrested

defendants and reread them their Miranda rights. 

The federal grand jury charged defendants with possessing

more than 500 grams of cocaine with the intent to distribute.

Before trial, defendants moved to suppress all the evidence

that the DEA agents found in the motel room. Defendants

argued that they were arrested without probable cause and

that they did not voluntarily grant consent to search the motel

room. The district court referred defendants’ motion to a

magistrate judge, who conducted an evidentiary hearing. The

magistrate judge issued proposed findings of fact and
No. 02-5154 United States v. Lopez-Arias et al. 5

conclusions of law and recommended that the motion to

suppress be denied. The magistrate judge found that

defendants voluntarily gave their consent to search the motel

room during a permissible investigatorydetention that had not

yet risen to the level of an arrest. 

Defendants objected, and the district court rejected the

magistrate judge’s recommendation and granted defendants’

motion to suppress. The district court found that the stop had

risen to the level of an arrest by the time defendants gave their

consent to search the motel room, that no probable cause

existed to support the arrest, and that the consent was

therefore tainted by the illegal arrest. Because the district

court found that the consent was tainted by the illegal arrest,

the district court did not decide whether the consent was

otherwise voluntary. The government appeals the district

court’s ruling to suppress the evidence found in the motel

room.

II.

“This Court reviews the district court’s factual findings in

a suppression hearing for clear error and reviews the district

court’s conclusions of law de novo.” United States v.

Waldon, 206 F.3d 597, 602 (6th Cir. 2000). “A factual

finding will only be clearly erroneous when, although there

may be evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm conviction

that a mistake has been committed. The evidence is reviewed

in the light most likely to support the district court’s

decision.” United States v. Navarro-Camacho, 186 F.3d 701,

705 (6th Cir. 1999) (internal citations and quotation omitted).

However, “this Court reviews de novo the district court’s

determination as to whether certain facts establish a seizure or

detention in violation of the Fourth Amendment.” Waldon,

206 F.3d at 602. 

6 United States v. Lopez-Arias et al. No. 02-5154

A. The Seizure

The government does not argue that the DEA agents had

probable cause to arrest defendants at the time defendants

granted their consent to search the motel room. The

government instead argues that defendants gave their consent

to search the motel room during a permissible investigatory

detention that had not yet risen to the level of an arrest.

Since the Supreme Court decided Terry v. Ohio, 392 U.S. 1

(1968), courts have recognized that a law enforcement officer

who lacks probable cause to justify an arrest may nevertheless

briefly detain an individual without violating the Fourth

Amendment if the officer possesses a reasonable and

articulable suspicion that the individual has committed a

crime. United States v. Heath, 259 F.3d 522, 528 (6th Cir.

2001). The scope of this brief investigative detention,

however, must be limited to “the least intrusive means

reasonably available to verify or dispel the officer’s suspicion

in a short period of time.” Florida v. Royer, 460 U.S. 491,

500 (1983). Although “[t]he scope of the intrusion permitted

will vary to some extent with the particular facts and

circumstances of each case,” in no event may law

enforcement officers “seek to verify their suspicions by

means that approach the conditions of arrest.” Id. at 500, 409.

To determine whether an investigative detention has

crossed the line and become an arrest, this court considers

factors such as “the transportation of the detainee to another

location, significant restraints on the detainee’s freedom of

movement involving physical confinement or other coercion

preventing the detainee from leaving police custody, and the

use of weapons or bodily force.” United States v. Richardson,

949 F.2d 851, 857 (6th Cir. 1991). In Richardson, this court

concluded that law enforcement officers had crossed the line

from an investigative detention into an arrest when they

placed the defendant in the back of a police car. Id. at 857;

see also United States v. Butler, 223 F.3d 368, 375 (6th Cir.

2000) (“We have long recognized that officers cross the line
No. 02-5154 United States v. Lopez-Arias et al. 7

from an investigatory stop into an arrest when they place a

suspect in a police vehicle for questioning.”).

But there is no bright line that distinguishes an investigative

detention from an arrest. Royer, 460 U.S. at 506 (stating that

there is no “litmus-paper test” for distinguishing when a

seizure exceeds the bounds of an investigative stop). In

Houston v. Clark County Sheriff Deputy John Does 1-5, 174

F.3d 809, 814-15 (6th Cir. 1999), a case relied upon heavily

by the government, this court went so far as to decide that an

arrest had not occurred when multiple police officers stopped

two suspects at gunpoint, handcuffed them, and forcibly

placed them into police vehicles. This court found that these

protective measures were reasonably necessary because in

Houston the officers, although lacking probable cause,

reasonably believed that the suspects had just shot another

police officer. Id.

In the present case, the district court did not clearly err in

finding that before defendants gave their consent to search the

motel room, they were (1) stopped by four DEA agents

brandishing firearms, (2) handcuffed, (3) placed into the

backseats of separate DEA vehicles, (4) transported from the

scene of the stop, (5) read their Miranda rights, and

(6) questioned. The government, relying on Houston, argues

that all these measures were reasonably necessary for the

protection of the DEA agents. The seizure in the present case,

however, was more like an arrest than the seizure this court

considered in Houston. In addition to taking the same

protective measures as did the police officers in Houston, the

DEA agents in the present case transported defendants from

the scene of the stop and read them their Miranda rights.

Each of these additional measures made the seizure more like

an arrest. See Heath, 259 F.3d at 531 (holding that “an

investigative stop must be confined to the site of the initial

inquiry”); United States v. Obasa, 15 F.3d 603, 608 (6th Cir.

1994) (holding that the reading of Miranda rights during a

seizure is not dispositive but is evidence that the seizure has

crossed the line into an arrest). 

8 United States v. Lopez-Arias et al. No. 02-5154

Moreover, in this case, defendants were not suspected of

anything so dangerous as shooting a police officer, as was the

case in Houston. In this case, defendants were suspected of

possessing illegal drugs, just as were the defendants in Heath,

Butler, and Richardson. The seizure in this case was at least

as intrusive as the seizures that this court determined were

arrests in Heath, Butler, and Richardson. Heath, 259 F.3d at

530-31 (recognizing that drug crimes are inherently

dangerous but finding that the transport of the suspect

constituted an arrest); Butler, 223 F.3d at 375 (finding that

placing the drug-crime suspect in a police vehicle constituted

an arrest); Richardson, 949 F.2d at 857 (same). We therefore

agree with the district court that the DEA agents had arrested

defendants by the time defendants consented to the search of

the motel room. Because the DEA agents lacked probable

cause, the arrest was unlawful. 

B. The Consent

The government argues that, even if defendants’ consent to

search the motel room was granted during an unlawful arrest,

the district court nevertheless erred in suppressing the

evidence found in the motel room because defendants’

consent to search, according to the government, was

voluntary. For this argument, the government primarily relies

upon United States v. Guimond, 116 F.3d 166 (6th Cir. 1997),

where this court instructed that even if a consent to search

was granted during an illegal seizure, the consent is valid if it

was voluntary, i.e., not the result of coercion. Id. at 170-71

(citing Ohio v. Robinette, 519 U.S. 33, 40 (1996)). 

It is without a doubt true that “[t]he Fourth Amendment test

for a valid consent to search is that the consent be voluntary.”

Robinette, 519 U.S. at 40. But the Supreme Court has made

perfectly clear that the exclusionary rule may operate to

exclude evidence obtained as the result of a valid, voluntary

consent to search. In order to deter unlawful seizures, the

Supreme Court has mandated that courts must generally

suppress otherwise admissible evidence obtained as a result
No. 02-5154 United States v. Lopez-Arias et al. 9

of an illegal seizure. Brown v. Illinois, 422 U.S. 590, 602

(1975). Thus, the Court has held that “statements given

during a period of illegal detention are inadmissible even

though voluntarily given if they are the product of the illegal

detention and not the result of an independent act of free

will.” Florida v. Royer, 460 U.S. 491, 501 (1983) (emphasis

added); see also Kaupp v. Texas, – U.S. –, 123 S. Ct. 1843,

1847 (2003) (per curiam) (reconfirming “well-established

precedent” that requires suppression of a statement given

during a period of illegal seizure unless the statement was an

act of free will sufficient to purge the primary taint of the

unlawful seizure). The Court has applied this analysis to

exclude evidence obtained pursuant to a consent to search that

was granted during an illegal seizure. Royer, 460 U.S. at 507-

08.

Therefore, following Supreme Court precedent, we have

repeatedly held that if a consent to search is given after an

illegal seizure, evidence obtained pursuant to the consent to

search must be suppressed, unless the consent is sufficiently

attenuated from the illegal seizure such that the consent is the

product of an intervening act of free will. United States v.

Caicedo, 85 F.3d 1184, 1190 (6th Cir. 1996); Richardson,

949 F.2d at 858; United States v. Buchanan, 904 F.2d 349,

355-56 (6th Cir. 1990). In other words, not only must the

consent be valid, i.e., voluntary, as required by Robinette, but

the causal chain between the illegal seizure and the consent

must be broken to avoid the consequences of the exclusionary

rule. Dunaway v. New York, 442 U.S. 200, 217-19 (1979)

(holding that a voluntary statement must be suppressed under

the exclusionary rule if it was causally connected to an illegal

seizure); Brown, 422 U.S. at 602-04 (holding that

voluntariness is only a threshold requirement);Buchanan, 904

F.2d at 355-56 (suppressing evidence obtained pursuant to a

consent to search given during an illegal seizure even though

the district court found that the consent was given “freely and

voluntarily”); see also United States v. Santa, 236 F.3d 662,

10 United States v. Lopez-Arias et al. No. 02-5154

1

In Guimond, a panel of this court seemingly held that if the consent

to search was voluntary, it does not matter that the consent occurred

during an illegal seizure. 116 F.3d at 170-71. The panel in Guimond did

not address the implications of the exclusionary rule nor did it distinguish

the Supreme Court’s holdings in Royer, Dunaway, and Brown or this

court’s holdings in Caicedo, Richardson, and Buchanan. The Guimond

panel relied upon the Supreme Court’s 1996 decision in Robinette, but

Robinette did not overrule Royer, Dunaway, Brown, Caicedo, Richardson,

and Buchanan. The Robinette Court did not address the issue of an illegal

seizure. Robinette, 519 U.S. at 35 (“We are here presented with the

question whether the Fourth Amendment requires that a lawfully seized

defendant must be advised that he is ‘free to go’ before his consent to

search will be recognized as voluntary.” (emphasis added)). To the extent

that Guimond conflicts with Royer, Dunaway, Brown, Caicedo,

Richardson, and Buchanan, we follow the earlier authorities. Darrah v.

City of Oak Park, 255 F.3d 301, 310 (6th Cir. 2001) (holding that “when

a later decision of this court conflicts with one of our prior published

decisions, we are still bound by the holding of the earlier case.”); see also

Kaupp, 123 S.Ct. at 1844 (reconfirming the holding in Brown that a

statement obtained by exploitation of an illegal arrest may not be used

against a criminal defendant).

676 (11th Cir. 2000) (holding that “a voluntary consent to

search does not remove the taint of an illegal seizure”).1

To determine whether a consent to search was sufficiently

attenuated from an illegal seizure such that the causal chain

was broken, courts must consider factors such as the length of

time between the illegal seizure and the consent, the presence

of intervening circumstances, the purpose and flagrancy of the

official misconduct, and whether the officers read the suspect

his Miranda rights before he consented. Kaupp, 123 S.Ct. at

1847; Brown, 422 U.S. at 603-04 (finding that no single

factor is dispositive); Richardson, 949 F.2d at 858. The

burden of persuasion regarding this issue is on the

government. Kaupp, 123 S.Ct. at 1847. In the present case,

the district court appropriately considered these factors and

did not err in finding no intervening act of free will on the

part of defendants between their illegal arrest and their

consent to search the motel room. Defendants granted their

consent to search within half an hour from the initial stop and
No. 02-5154 United States v. Lopez-Arias et al. 11

during the illegal arrest. There was no intervening time or

event between the illegal arrest and defendants’ consent. See

Buchanan, 904 F.2d at 356 (“Dissipation of the taint resulting

from an illegal entry ordinarily involves showing that there

was some significant intervening time, space, or event.”

(internal quotation and citation omitted)). Furthermore, asthe

district court found, the illegality of the arrest was blatant.

See Richardson, 949 F.2d at 859 (finding that placing a

suspect into the back of a police car for twenty minutes

without probable cause constituted a blatant constitutional

violation). Although the DEA agents read defendants their

Miranda rights, this alone was insufficient to break the causal

chain between the illegal arrest and defendants’ consent.

Kaupp, 123 S.Ct. at 1847 (holding that the giving of Miranda

warnings alone was insufficient to purge the primary taint of

the unlawful seizure).

In Brown, the Supreme Court held that a separation of less

than two hours between an illegal arrest and a voluntary

statement was insufficient to break the causal chain between

the two when no intervening event of significance had

occurred. 422 U.S. at 604. The Court found that under such

circumstances, Miranda warnings by themselves were

insufficient to purge the taint of the illegal arrest. Id. at 602.

Therefore, the Court ruled that the statement was inadmissible

regardless of its voluntariness. Id. at 604-05. In Richardson,

this court held that evidence discovered pursuant to a consent

to search was inadmissible because the consent to search was

given twenty minutes into a blatantly illegal arrest. 949 F.2d

at 859 (“We do not believe that the taint had dissipated after

merely twenty (20) minutes of continued improper conduct.”).

In Buchanan, we held that the taint of the illegal seizure was

not purged when only approximately one hour passed

between the illegal entry and the consent to search. 904 F.2d

at 356. As in Brown, Richardson, and Buchanan, in the

present case, there was no intervening act of free will

sufficient to break the causal chain between defendants’

illegal arrest and their consent to search the motel room.

Therefore, the district court properly suppressed the evidence

12 United States v. Lopez-Arias et al. No. 02-5154

discovered in the motel room pursuant to the exclusionary

rule.

III.

For all the foregoing reasons, we affirm the district court’s

ruling to suppress the evidence discovered in the motel room.