* The Ho nora ble RobertH. Clel and, Unit ed Sta tes Dist ric t Ju dge f

or the Eastern Distri ct of Michigan, sit ting by designation. 1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206
ELECTRO NIC CIT

ATION: 2003 FED App . 0336P (6th C ir.) File Name: 03a03 36p.06


### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________ U NITED S TAT ES OF A MERICA , Plaintiff- Appellant
,

v.
D AVID L OPEZ -A RIAS and ANTONIO E GUES , Defenda nts-Appe llees. X - - - -> , - - - - N 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
Befor e: CLA Y and GI BBONS, Circuit Judg es; CLELA ND, District Judge. * 2 United Sta tes v. Lope z-Arias e t al. No. 02-5154

_________________ COUNSEL
ARGU ED: Nina Good ma n, UNITED STATE S DEPARTMENT OF JUSTICE, Washington, D.C., for Appellan t. Patrick J. Bouldin, WESTERN KENTUCKY FEDERAL

COMMUNITY DEFENDE R, I NC., Louisville, Ken tu ck y, Martin N. Kute, Louisville, Kentucky , for Appellee s. ON BRIE F: Nina Goodman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Terry M. Cush ing, ASSISTANT UN IT ED STATES ATTORNEY, Louisvil le , Kentucky, for Appellant. Patrick J. Bouldin, WE STERN

KENTUCK

Y FEDERA

L COMM

UNIT Y DEFEND ER, INC., L ouisville, Ke ntucky, Martin N. Kute, Louisville, Ke

ntucky, for App ellees.

_________________ OPINION

_________________ JU LIASMITH

GIB BONS, Ci

rcuit Judge. Federal drug enforcement

agents arreste d defend

ants

- appelle es David Lopez-Arias and Antonio Egues for trafficking in cocaine. After a federalgrand

jury indicted them, defenda

nts moved t

o suppress certai n evidenc e, alleg

ing that it was obta

ined as a result of an un lawful arrest. The district court grante d defenda nts’ motion to suppress, and the government

appeals fromthat ruling. For the following reasons, we affirm the district court’s decision to suppress the evidence.
I.
Onor shortly before

Jul y 2 6, 2000, law enforcement officia ls in Louisville, Ke nt uc ky, receiv ed a tip f rom a confidential infor

mant , whose reliability had not y et been tested, that two Hispanic men from Las Vega s were traveling to Louisville to distribute cocaine. The informant told theNo. 02-5154 United Sta tes v. Lope z-Arias e t al. 3
police that the two men intended to stay at the Collier Motel inLouisville and that a man named Jose intended to deliver the procee ds of a dr

ug sale to these two men at th e motel. According

to the informant, Jose

would b e driving

a white Toy ota with a certa in license plate num

ber. A se arch of

state motor vehicle records reveal ed that th e licens e plate number identified by t he infor mant wa s registered to Jose Barrera Santiesteban, 10 4 E . K in gs to n, Ap t. 1, Lou is vi ll e, Ke nt uc ky. The fede ral Drug Enforcement Administration (DEA) began surveillance of the Collier M otel on the afternoon of July 26, 2000. D

uring their surv eilla

nce, D EA age

nts discovered

that a 1992 blue Ford Crown Victoria, which was parked in front o f Room 1 7 of the motel, was reg istered t o David Lopez-Arias, whose addre ss matched Santiesteban’s except for the apartment number. At aroun d 4:00 p.m. on July 26, defe ndants Lopez-Arias and Eg ues exitedRoom 17 and depa rt ed in the Crown Victoria. The undercover DEA agents followed defendants as they visited se

veral lo cations, including an office supply store, where they

purchased a set of digital s cales of

the ty pe often use d to weig

h drugs

. Defendants then returned to the motel.
At around 8 :15 that e

vening , Santiest

eban ar riv ed a t the motel driving

the white

Toy ota described by

the infor mant. After speaking with Lopez -Arias , who was outside working onthe Crown Victoria, Sa ntiesteba n went into

Room 17 with Lope z-Arias. DEA agen ts ob served Sant ieste ban car rying a yellow plastic bag into Room 17. Santiesteban s tayed in Room 17 for ab out forty

-five min utes bef ore lea ving in hi s white Toyota. DEA a

gents followed

Santiesteban out of the vicinity of the motel and then stopped him. A drug-sniffing dog alerted on the T oyota, b ut the DEA agents did not find any drug s in the Toyota. Defend ants departed from the motel in the Crown Victoria shortly after Santiesteban and were followed by D EA age

nts. Once the drug-sniffing dog ale rted on Santiesteban’s Toy ota, a DEA agent on

the scene with Santiesteban ordered the DEA 4 United Sta tes v. Lope z-Arias e t al. No. 02-5154

agents following defendants to stop the Crown Victoria. Four DEA agents in four unmarke d DEA v ehicles activate d their sirens and emergency

lights and stopped the Crown Victoria. The four DEA agents, with weapons draw n, ordered defenda nts to exit the Crown Victoria. The DEA agents then handcuffed

defend ants and placed them into separate DEA vehicles

. T he DEA agents drove the defe ndants from the scen e of th e stop on the street to an adjacent convenience store parking lot, where they were removed from the D EA vehicles , read their Mirand a ri gh ts , a nd qu es ti on ed se pa ra te ly.
T he DEA agent questioning Egues conduc ted a pat-down search of him and found

the motel key in his pocket. Eg ues stated that the motel room w as reg ist ered in hi s 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 fiftee n min utes f rom the time the DEA agents stopped the Crown

Victoria. Alittle more

than twen

ty minute s from the time the DEA agents stopped the Crown Victoria, Lope z-Arias g ave the D EA age nt ques tioning h

im verbal c onsent to s earch t he motel r

oom. After receiving consent f rom both de fendant s, DEA ag ents searched Room 17 of the Collier Motel and f ound a yellow plasticbag containing twenty -five individual ly w rapped pac ka ges of coca

ine, a bla ck notebo ok contai

ning $4, 100 in cash, clear plastic wrappers containing c o c aine 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 o f cocai ne with the intent to distribute. Before trial, de fendant s moved to s uppress a ll th e evidence that the DEA agents found in the m otel roo m. Defen dants argued that they were a rrested without pr

obable c ause an d that they did not voluntarily gra

nt consent to search the motel r oom. Th e district court referred defe ndants’ motion to a magistr ate judge, who conducted

an evi denti ary hearin g. The ma gist ratejudge issued proposed findings of fact a ndNo. 02-5154 United Sta tes v. Lope z-Arias e t al. 5

concl usions of law and recommended that the motion t o suppress be denied

. The magistrate judge found that defenda nts voluntar

ily gave thei

r consent to search the motel roomduring a

permissib le invest

igatory d etention that had not yet risen to the leve l of an arrest. Defend ants objected, and t he district court rejected the magistr ate judge’s recommendation and granted defenda nts’ motion to suppress. The district court found that the stop had risento the level of

an arre st by

the time de fendant s gave

their consent to search the motel room , that no proba ble caus e existedto supp ort the arrest, and that the consent was therefore tainted by the illeg al arrest. Because the district court found that the consent was tainted by the illeg al arrest, the di strict co

urt did not

decide w

hether t he conse nt w a s otherwis e voluntary. The government appea ls t he district court’s ruling to suppress the evidenc e found in the motel room. II. “This Court reviews the district court’s factua l finding s in a suppressionhearing for clear e rror and reviews the district cou rt’s conclusions of law de novo.” United Sta tes v

. Waldon , 206 F.3d 597, 602 (6th Cir. 2000). “ A factual finding will only be clearly erroneous when, althoug h the re may be evidence to support it, the reviewing cour t on th e entire e videnc e is left with the definite and firm conviction that a mistake has been committed. The evidence is reviewe d inth e l ig ht mo st li ke ly t o 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 no vo the district court’s determination

as to whether certain facts establish a seizure or de te ntion in violation of the Fourth Amendment.” Waldon , 206 F.3d at 602. 6 United Sta tes v. Lope z-Arias e t al. No. 02-5154

A. The Seizur

e The government does not argue that the D EA a gen ts had pro bablecause to arrest defendants at the time defe n dant s granted their consent t o search the motel room. The government

instead a rgues t hat defe ndants g ave thei

r consent to search the motel room during a permissible investiga tory detention that had

not yet risen t

o the leve l of an ar

rest. Since the Supreme Court decided Terry v. Ohio , 392 U.S. 1 (1968), courts have recognized that a law enforce ment officer who lacks probable cause to justify an arrest may

nevertheless briefly d etain an

individua

l without vi olating

the Four

th Am endment

if the officer possesses a reasonabl e an d articula ble suspicion that the individu al has committed a crime. United Sta tes v. He ath , 259 F.3d 522, 528 (6th Cir. 2001). The s cope of this brief investigative detention, how eve r, must be limited to “the least intrusive means reasona bly availab le to verify or dispe l the officer’s suspicion ina short period of time.” Florida v. Royer , 460 U.S. 491 , 500 (1983 ). Alt hough “[t]he scope of the intrusion permitted will vary to some extent with the particular facts and circum stances of

ea ch ca se ,” in no ev en t m ay l a w enforcement

officers “seek to verify their sus picions by means that

approach the conditions of arrest.” Id. at 500, 409.
To determine whether a n in vestigative detention has crossed the li ne and become an arrest, this court considers factors such as “the transportation of the deta inee to another location, signific ant restr aints o n the detainee’s freedom of movement

involving physical conf

inement or other coercion preventingthe detainee from leaving police custody , and the use of weapons or bodily f orce.” United States v. Richardson , 949 F.2d 851, 857 (6th Cir. 199 1). In Richardson , this court concluded

that law enforcement officers had crossed the line froman inve stigat ive 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 recog nized thatoffice

rs cross the lineNo. 02-5154 United Sta tes v. Lope z-Arias e t al. 7

froman investigatory

stop into an ar

rest wh en they plac e a suspect in a police vehicle for questioning.”).
But there is no bright line that

distinguishes an investigative detentionfrom an a

rrest. Royer , 460 U.S. at 506 (stating that there is no “litmus-paper test” for distinguishing when a seizure exceeds t

he bounds

of an inve stigativ e st op) . In Houston v. Clark Co unty Sher iff Deputy John Does 1-5 , 174 F.3d 809, 814-15 (6th Cir. 1999), a case re lied upon heavily by the gov ernment , this court went so far as to decide that an arrest had not occurred when multiple police officers stopped two sus pects at gunp oint, hand cuffed them, and

forcibly placed theminto police vehicles. This court found that these pr otective measures were reasonably necessary

because i n Houston the officers, althou g h lacking probable cause, reasona b ly believed that the suspects had just shot another police officer. Id.
Inthe present case, the district cour t did not clearly

err in finding that

before defenda nts gave their consent to search the motel room, they wer

e (1) stopped by f

our DE A agents brandishing firearms, (2) handcuffed, (3) placed into the backsea ts of separ

ate DEA vehicles, (4) transported from the scene of the stop, (5 ) read their Miranda rights, and (6) questioned. The government, rely ing on Houston, argues that all these m ea sures were reasonably necessary

for the protection

of the DEA agents. The seizur e in the present case, however, was more like an arrest than the seizure this court considered

in Houston. In a ddit ion to takin g the sa me protective measure s as did the polic e offic ers in

Houston , the DEA agents

inthe present case transported defenda nts from t he scene of the stop and read them their Miranda ri ghts

. Each of these additional measures madethe seizure more like anarrest. See Heath , 259 F .3d at 531 (h oldi ng t ha t “an investigative stop must be confined to the site o f the initial inquiry”); United

States v. Obasa , 15 F.3d 603, 608 (6th Cir. 1994) (holding that the r eading of Miranda rights durin g a seizure is not dispositive butis evidence that the seizure has crossed the line into an arrest). 8 United Sta tes v. Lope z-Arias e t al. No. 02-5154
Moreover, in this case, defendants we r e not suspected of anything so dangerous as shooting a police offic er, as was the casein Houston. In this case, defenda nts were suspected of possessing illega

l drugs, just as were the defendants in Heath , Butler , and Richardson . The seizu re in this c ase was

at least as intrusive as the seizures that this cour t determined were arrests in Heath , Butler , and Richardson

. Heath , 259 F.3d at 530-31 (recog

nizing th a t drug c

rimes ar e inhere ntly dangerous but finding that the transport of t h e suspect consti tuted

an arre st); Butler , 223 F .3d at 375 (f indi ng t ha t placingthe drug-crime suspect in a polic e vehicl e constituted anarrest) ; Richardson , 949 F.2d at 857 (same). We therefore agreewith the district court that the DEA agents had arrested defenda nts by the time defendants consented to the search of the motel room. Because the DEA ag ents lacked prob able cause, the arrest was unlawful.
B. The Conse

nt The gover nment ar gues tha t, even if defendants’ consent to search the motel roomwas gr

anted dur ing an u nlawful a rrest, the district court nevertheless erred in suppressing the evidence f

ou nd in the mo tel room be cause de fendant s’ consent to search, according to the g overnment, was vo lu nt ar y. For this argument, the governme nt primarily relies upon United

States v. Guimond , 116 F.3d 166 (6th Cir. 1997), where this court instructed that even if a co nsent to search was granted during

an illegal seizure, the consent is valid if it was voluntary, i .e. , not t

he result of coercion. Id. at 170-71 (citi ng Ohio v. Ro binette , 519 U.S. 33, 40 (1996)).
It is without a doubt true that “[t]he Fou

rth Amendmen

t test for a valid c onsent to s earch i s that the consent be voluntary.” Robinette , 519 U.S. at

40. But the Supreme

Court has made pe rfectly clear that the exclusionary rule may oper

at e t o exclude evidence obtained as the result of a valid, voluntary consent to search. I

n orde r to deter unlawful seizures, the Supreme Cou rt has man

dated tha t courts mu st gene

rally supp ress otherwis e admissib le evide nce obta ined as a resultNo. 02-5154 United Sta tes v. Lope z-Arias e t al. 9

of an illegal sei zure. Brown v. I llinois , 422 U.S. 590, 602 (1975). Thus, the

Court has held t hat “statements given during a period of illegal detention are inadmissible even though voluntarily given if they are the product of the illegal de tention and not the result of an independent act of f re e will.” Florida v. Royer , 460 U.S. 491, 501 (1983) (emphas is added ); see also Kaupp v. Texas , – U.S. –, 1 23 S. Ct. 1843 , 1847 (2003) (

per cur i am ) (reconfirming “well-established preced ent” that requires suppr e ssion of a statement given during a period of illegal

seizure u nless the statement was an act of free will sufficient to purge the primary ta int of the unlawful seizure) . The Cour t has appl ied this an

aly sis to exclude evidence obtained pursuant to a consent to search

that was granted during an illeg al seizure. Royer, 460 U.S. at 507- 08. Therefore, fo ll owing Supreme Court precedent, we have repe atedly

held that if a consent to search is given aft er a n illegal seizure, evidence obtained pu rsuant to the conse

nt to search must be suppressed, unless theconsent i s sufficie ntly attenuated

from the illegalseizure such that the consent is the product of an intervening act of free wi ll

. United States v. Caicedo , 85 F.3d1184, 1190 (6th Cir. 1 996); Richardson , 9 49 F.2d at 8 58; 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 re qu ir ed by Robinette , but the causal chain between the illegal se izure and the con sent must be broken

to avoid the consequences of the exclusionary rule. Dunaway v. N

ew York , 442 U.S. 200, 217-19 (1979) (holding that a voluntary stateme nt must be suppressed

under the exclusiona

ry rule if it was c ausally

connected to an illegal seizure); Brown , 422 U.S. at 6 02-04 (holding that volunta riness is only

a threshold requi

rement) ; Buchanan , 90 4 F.2d at 355-56 (suppressing evidence obtained pursuant to a consent to search given

during an ille gal sei zure e ven th ough the districtcourt fo

und that the consen

t was given “fre ely

and voluntarily”); see alsoUnited Sta tes v. San ta , 236 F.3d 662, 10 United Sta tes v. Lope z-Arias e t al. No. 02-5154

1 In Guimond , a panel of thi s court seem ingly held that i f the consent to search w a s volun tar y, i t does not matter that the cons ent occur

red during an illegal se izure. 1 16 F .3d a t 170 -71. The panel in Guimond did not addre ss the implications of the exclusion ary rule nor did it distinguish the Supr eme Co urt’s holdings in Royer , Dunaway , an d Brown or this
cou rt’s hold ings in Caicedo , Richards on , and Buchanan. The Guimond panel relied upon the Supr eme Court’s 1996 d ecision in Ro bine tte , but R obin ette did not o verrul e Royer , Dunaway , Brown, Cai cedo , Richards on , and Bu cha nan

. The Ro bine tte Co urt did not add ress the i ssue of an il legal seizur e. Ro bine tte , 519 U.S. at 35 (“ W e are here presented with t he quest ion wheth e r the Four th Amendment r equires that a lawfull

y seiz ed defendant must be advi se d that he is ‘free to go ’ befor e his co nsent to search will be recognized as voluntary.” (emphasis added)). To the extent that Guimond conflicts with Royer , Dunaway , Brown , Caicedo , Richards on , and Buchanan , we follo w the ea rlier autho rities. Darrah v. City of Oak Park , 255 F.3d 30 1, 310 (6th Cir. 2001) (holding that “when
a lat er decis ion of t

his cour t conf lict s wit h one of our prior publis hed decisions, we are st illbound by the h olding of the ear lier

case.” ); see also Kaupp , 123 S.Ct. at 1844 (r ec onfirming the hol ding in Brown that a statement obtained by

exploit ation of an i lleg al arr est may not be used against a cri minal defendant). 67 6 (11th Cir. 2000) (holding that “a voluntary con sent t o search does not remove the taint of an illega l seizure”). 1

To determine whether

a consen t to searc h was suf ficientl y attenuated

from an illegal sei zure su ch that th e causa l chain was broken, courts must consider factors such as the length of time between

the illegal seizure and the consent, the presence of in terven ing circumstances, the purpose and flag rancy 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 (fin ding tha t no singl e factor is dispositi

ve); Richard

s on , 949 F.2d at 858. The burden of per suasion regarding this issue is on the gover nment. Kaupp , 123 S.Ct. at 1847. In the present case, the dis trict court appropriately considered these factors and did not err in

finding no interv ening a

ct o f freewill on the part of defe ndants be

tw ee n their ill egal a

rrest an d their consent to searc h the mote l room. D efenda nts gra nted thei r consent to search within half an

hour from the initial stop andNo. 02-5154 United Sta tes v. Lope z-Arias e t al. 11
during the il lega l arrest. There was no intervening time or event between the illeg al arre st

and defendants’ consent. See Buchanan , 904 F.2d at 356 (“Dissipation of the taint resulting froman illeg al entr

y ordinarily involves showing that ther e was some significant intervening time, space, or e ven t. ” ( internal quotation and citation omitted)). Furthermore, as th e districtcourt found, the illegality of the arrest was blat a nt. S ee Richardson , 949 F .2d at 859 (f indi ng that placi ng a suspect i nto th e back of a police car for twe nty minutes wi th outprobable cause constituted a blatant constitutional violation). Although t

he DEA ag ents rea

d defend ants their Miranda rights, this alone wa s insuffic ient to break the causal chain between the illegal arrest an d defe ndants’ c onsent. Kaupp , 123 S.Ct. at 1847 (holding that the giving of Miranda warni ngs alone was insufficient to purge the primary

taint of the unlawful seizure).
In Brown , the Supre

me Court held

that a se paration of less than two hours between an illegal arre st and a voluntary statement was insufficient to break the causal chain between the two when no intervening event of significa nc e had occurred

. 422 U.S. at 604

. The Court found that under such circumst ances, Miranda warni n gs by themse lves were insufficient

to purge the taint of the illegal arrest. Id. at 602. Therefore, the Court r

uled that th e stateme

nt was ina dmissible regar dless of its voluntariness. Id. at 604-05. In Richardson , this court held that evidence discovered pursuant to a c onsent to search was inadmissible because the consent to search was given twenty minutes int

o a blatantly illega

l arrest. 949 F.2d at 859 (“We do not

believe that the taint had dissipated after merely twenty (20) minu

tes of contin

ued improper conduc t.”). In Buchanan , we held

that the taint of the illegal seizure was notpurged when only

approximately one

ho ur passed between the illega l entry and the c onsent tosearch. 904 F.2d at 356. As in Brown , Richardson , and Buchanan , in t he present cas e, t here wa s no inter vening act of f ree will sufficient to break the ca

usal chain be

tween de fendant s’ illegal arres t and their

consent t

o search the mote l room. Therefore, the district c ourt prop erly suppressed the evidence 12 United Sta tes v. Lope z-Arias e t al. No. 02-5154

discovered

in the m otel room pursuant to the exclusionary rule.
III.
For all the foregoing reasons, we affirm the district court’s ruling to suppre ss the evidence discovered in the motel room.