FILED

United States Court of Appeals

Tenth Circuit

March 22, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v. No. 09-5131

LUCAS GREGORY FOX,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 4:09-CR-00038-TCK-1)

Stephen J. Greubel, Assistant Federal Public Defender, Office of the Federal

Public Defender, Tulsa, Oklahoma, for Defendant-Appellant.

Janet S. Reincke, Assistant United States Attorney, (Thomas Scott Woodward,

Acting United States Attorney, with her on the brief), Tulsa, Oklahoma, for

Plaintiff-Appellee.

Before BRISCOE, SEYMOUR, and LUCERO, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant-Appellant Lucas Gregory Fox entered a conditional guilty plea

to one count of possession of an unregistered shotgun with a barrel less than 18

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inches long, in violation of 26 U.S.C. §§ 5841, 5845(a), 5861(d), and 5871. Law

enforcement officers found the firearm in Fox’s home after his wife consented to

the search. Fox appeals the denial of his motion to suppress evidence, arguing

that his wife’s consent to search the home was invalid. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291, and reverse and remand for further proceedings.

I

At approximately 9:45 p.m. on February 4, 2009, Officers Dupler, Jenkins,

Lamb, and Osterdyk of the Tulsa Police Department were in plain clothes and

unmarked cars, conducting surveillance on Fox’s home in Tulsa, Oklahoma. 

Officer Dupler had received information from a confidential informant that Fox

was driving a stolen silver Jeep Wrangler and that he might have drugs with him. 

Officer Dupler also learned that Fox was wanted on an outstanding arrest warrant. 

While the officers were observing Fox’s house, they saw a black Ford Mustang

park near the house and a woman (later identified as Shawna Chiles) get out of

the Mustang and enter the house. Approximately thirty minutes later, Ms. Chiles

left the house, got back in her car, and drove away. Two officers, Officers Lamb

and Osterdyk, followed the black Mustang in their unmarked police car. 

Shortly after Officers Lamb and Osterdyk drove away, the silver Jeep

Wrangler pulled into Fox’s driveway. Fox got out of the Jeep, and Officers

Dupler and Jenkins arrested him. By this time, Officers Lamb and Osterdyk had

lost the black Mustang and had returned to Fox’s house. While Officers Lamb

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 It is unclear from the record precisely what Officer Osterdyk told Ms.

Chiles. When Officer Osterdyk was cross-examined by defense counsel at the

evidentiary hearing, the following exchange took place: 

Q. And then you directed her to move her vehicle somewhere else?

A. Yes.

Q. And that was to a corner of a convenience store?

A. Yes, to get her out of the roadway.

Q. So she knew you were an officer?

A. She did.

Q. And was following your directions?

A. Yes.

Q. And once you got her to the store, did you have her get out of the

vehicle?

A. Yes.

ROA, Vol. II, at 48.

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and Osterdyk were walking towards the house, Ms. Chiles returned in the black

Mustang. Ms. Chiles stopped the car in the middle of the street and asked

“what’s going on?” ROA, Vol. II, at 34. Officer Osterdyk approached Ms.

Chiles, identified himself as a Tulsa police officer, and showed her his badge. 

Officer Osterdyk then got in her car and directed her to pull into a nearby

convenience store parking lot across the street,1

 which was where the officers had

been conducting their surveillance.

Officer Osterdyk then had Ms. Chiles get out of the car, and he asked her if

she had a driver’s license or any other identification. She replied that she had not

had a license for some time. After getting her name and information, Officer

Osterdyk checked with the records division to see if she had a driver’s license and

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 At the evidentiary hearing, Officer Osterdyk testified that he told Ms.

Chiles “that we were more interested in the individual that we were doing

surveillance on,” and he mentioned Fox by name. ROA, Vol. II, at 37.

4

any outstanding warrants. While he was waiting to receive that information, he

asked Ms. Chiles if she had anything illegal in the car, and she said that she did

not. He then asked her if “she minded if [he] looked real quick and she said, no,

go ahead, there’s nothing to hide.” ROA, Vol. II, at 35. Officer Osterdyk looked

around the front compartment of the car and found a bag that contained what

appeared to be methamphetamine. Although the substance was not field tested,

Ms. Chiles “acknowledged that it was an illegal substance.” ROA, VOL. II at 54. 

Ms. Chiles was not arrested, but was told by Officer Osterdyk that the police were

more interested in Fox.2

 She replied that Fox was her husband and that they lived

together. Officer Osterdyk asked if she was on the lease for the house, and she

said that she was. He also asked her if there was anything illegal in their house,

and she said “nothing that she knew of.” ROA, Vol. II, at 37. Officer Osterdyk

then asked if the police could search the house, and she responded: “that would be

fine. There’s nothing to hide.” ROA, Vol. II, at 38. Officers Osterdyk and Lamb

then walked over to the house with Ms. Chiles, and she unlocked the door, letting

the officers inside. 

Once inside the house, the officers asked if she would sign a search waiver

form, and she said that she would. Although the officers did not have a waiver

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form with them, they began to search the house. While searching Fox’s bedroom,

the officers discovered a sawed-off shotgun and ammunition. Following the

search, the officers obtained a search waiver form, “read over it with [Ms.

Chiles], explained everything on it, and asked her if she understood.” ROA, Vol.

II, at 39. She then signed the form.

Throughout the encounter, the officers spoke in a calm, conversational tone

with Ms. Chiles. They never displayed their weapons, nor did they make any

explicit threats or promises. 

As a result of the officers finding the shotgun and ammunition in his house,

Fox was indicted on one count of being a felon in possession of a firearm and

ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and one count

of possession of an unregistered shotgun with a barrel less than 18 inches long, in

violation of 26 U.S.C. §§ 5841, 5845(a), 5861(d), and 5871. Fox filed a motion

to suppress the evidence found in his home, arguing that Ms. Chiles’s consent to

search the home was not voluntary. The district court held an evidentiary hearing

and denied Fox’s motion to suppress, ruling that Ms. Chiles voluntarily consented

to the search. Fox sought reconsideration of the district court’s order, arguing

that the testimony elicited at the evidentiary hearing indicated that Ms. Chiles was

illegally seized, and thus, her subsequent consent was invalid under Brown v.

Illinois, 422 U.S. 590 (1975). The district court ruled that the encounter between

Officer Osterdyk and Ms. Chiles was consensual and not a seizure, and even if

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she was illegally seized, application of the Brown factors indicated that her

subsequent consent to search the home was not tainted by any illegality. 

Fox entered a conditional guilty plea to count two of the indictment,

knowing possession of an unregistered sawed-off shotgun, reserving the right to

appeal the denial of his motion to suppress. The government dismissed count one

of the indictment, being a felon in possession of a firearm and ammunition. The

district court sentenced Fox to 48 months’ imprisonment. Fox appeals the denial

of his motion to suppress the evidence found in his home. 

II

 In reviewing the denial of a motion to suppress, we review the factual

findings of the district court for clear error, viewing “the evidence in the light

most favorable to the government.” United States v. Chavez, 534 F.3d 1338,

1343 (10th Cir. 2008) (quotation omitted). We “review de novo the

reasonableness of the government’s action under the Fourth Amendment.” Id.

A warrantless search of an individual’s home is “per se unreasonable under

the Fourth Amendment unless the government can show that it falls within one of

a carefully defined set of exceptions.” United States v. Cos, 498 F.3d 1115, 1123

(10th Cir. 2007) (quotation omitted). Here, the government relied on Ms.

Chiles’s consent to search the home as an exception to the general warrant

requirement. Fox argues that Ms. Chiles’s consent was invalid because it was

tainted by a prior illegal seizure and, as a result, her consent was not voluntary. 

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When a consensual search follows a Fourth Amendment violation, the

government must prove both (1) that the consent was voluntary under the totality

of the circumstances, and (2) that there was “a break in the causal connection

between the illegality and the evidence thereby obtained.” United States v.

Melendez-Garcia, 28 F.3d 1046, 1053 (10th Cir. 1994) (internal citations,

quotation, and footnote omitted). “Although the two requirements will often

overlap to a considerable degree, they address separate constitutional values and

they are not always coterminous.” Id. at 1054. “We require the government to

demonstrate that any taint of an illegal search or seizure has been purged or

attenuated not only because we are concerned that the illegal seizure may affect

the voluntariness of the defendant’s consent, but also to effectuate the purposes of

the exclusionary rule.” Id.

A

In order to determine whether Ms. Chiles’s consent was tainted by an

unlawful seizure, we must first determine whether Ms. Chiles was unlawfully

seized. We review de novo the district court’s determination that the encounter

between Ms. Chiles and the police was consensual and not a seizure. See United

States v. Abdenbi, 361 F.3d 1282, 1291 (10th Cir. 2004). 

We have identified three general categories of encounters between police

and citizens: 

(1) consensual encounters which do not implicate the Fourth

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Amendment; (2) investigative detentions which are Fourth Amendment

seizures of limited scope and duration and must be supported by a

reasonable suspicion of criminal activity; and (3) arrests, the most

intrusive of Fourth Amendment seizures and reasonable only if

supported by probable cause.

United States v. Lopez, 443 F.3d 1280, 1283 (quoting United States v. TorresGuevara, 147 F.3d 1261, 1264 (10th Cir. 1998)). Fox argues that although the

encounter was initially consensual when Ms. Chiles stopped her car and asked

what was going on, it soon became a seizure. Specifically, he contends that when

Officer Osterdyk entered Ms. Chiles’s car and directed her to drive to a nearby

parking lot, Ms. Chiles was seized under the Fourth Amendment. We agree. 

“[A] person has been ‘seized’ within the meaning of the Fourth Amendment

only if, in view of all of the circumstances surrounding the incident, a reasonable

person would have believed that [s]he was not free to leave.” United States v.

Mendenhall, 446 U.S. 544, 554 (1980). The critical inquiry is whether “the police

conduct would have communicated to a reasonable person that [s]he was not at

liberty to ignore the police presence and go about [her] business.” Florida v.

Bostick, 501 U.S. 429, 437 (1991) (quotation omitted). 

In determining whether an individual has been seized, we have considered

several factors, including:

(1) the threatening presence of several officers; (2) the brandishing of

a weapon by an officer; (3) physical touching by an officer; (4)

aggressive language or tone of voice by an officer indicating

compliance is compulsory; (5) prolonged retention of a person’s

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 We note that there is no indication in the record that Officer Osterdyk

(continued...)

9

personal effects; (6) a request to accompany the officer to the police

station; (7) interaction in a small, enclosed, or non-public place; and (8)

absence of other members of the public.

United States v. Rogers, 556 F.3d 1130, 1137–38 (10th Cir. 2009). No single

factor is dispositive, and this list is not exhaustive. Id. at 1138. Another relevant

factor that suggests an encounter is not consensual is whether the officer advised

an individual that she is free to leave. United States v. Ledesma, 447 F.3d 1307,

1314 (10th Cir. 2006). 

With these principles in mind, we conclude that under the totality of the

circumstances, a reasonable person in Ms. Chiles’s position would not have felt

free to ignore Officer Osterdyk’s presence in her car and go about her business. 

The initial encounter between Officer Osterdyk and Ms. Chiles, when Ms. Chiles

stopped her car and asked the officers what was going on, was consensual.

However, Officer Osterdyk’s subsequent actions changed the nature of the

encounter from a consensual encounter to a seizure. See Lopez, 443 F.3d at 1284

(“[I]t is settled that the nature of the police-citizen encounter can change—what

may begin as a consensual encounter may change to an investigative detention if

the police conduct changes and vice versa.” (quotation omitted)). Officer

Osterdyk identified himself as a police officer, displayed his badge, entered Ms.

Chiles’s car,3

 directed her to drive to a nearby parking lot, and never advised her

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(...continued)

asked permission to enter Ms. Chiles’s car or that she invited him into her car. 

Cf. United States v. Spence, 397 F.3d 1280, 1284 (10th Cir. 2005) (concluding

that an encounter was consensual and noting that “agents asked for permission to

enter [the defendant’s] home and that [the defendant] invited them inside”). 

10

that she was free to leave. Under these circumstances, the officer’s coercive show

of authority would communicate to a reasonable person that she was not free to

terminate the encounter. Cf. United States v. Elliott, 107 F.3d 810, 814 (10th Cir.

1997) (considering as a “coercive show of authority” whether an officer was

leaning against or touching an individual’s car). Although the government

contends that Ms. Chiles could have told Officer Osterdyk to get out of her car,

we do not think that under the circumstances a reasonable person would have felt

free to do so. Accordingly, we conclude that Ms. Chiles was seized within the

meaning of the Fourth Amendment. 

Because we conclude that Ms. Chiles was seized, we must next determine

whether that seizure was lawful. An individual “may not be detained even

momentarily without reasonable, objective grounds for doing so . . . .” Florida v.

Royer, 460 U.S. 491, 498 (1983). The reasonableness of investigative detentions

is outlined in Terry v. Ohio, 392 U.S. 1 (1968), which also applies to traffic stops. 

See United States v. Stephenson, 452 F.3d 1173, 1176 (10th Cir. 2006). 

Investigative detentions are reasonable if “the detaining officer has a reasonable

suspicion that criminal activity may be afoot.” Stephenson, 452 F.3d at 1176. 

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 At the evidentiary hearing, Officer Dupler testified he received

information from the confidential informant on “the female involved.” ROA, Vol.

II, at 18. When asked what information he had “on the female,” Officer Dupler

said: “Oh, drugs. Same kind of issue, I think.” ROA, Vol. II, at 18. This single,

vague statement does not constitute reasonable and articulable suspicion that

would have justified detaining Ms. Chiles. 

11

Reasonable suspicion requires “‘a particularized and objective basis’ for

suspecting the person stopped of criminal activity . . . .” Ornelas v. United

States, 517 U.S. 690, 696 (1996) (quoting United States v. Cortez, 449 U.S. 411,

417 (1981)).

The government has not argued (either to the district court or on appeal)

that the seizure of Ms. Chiles was supported by reasonable suspicion. 

Additionally, our review of the record indicates that the officers did not have

reasonable suspicion to justify the seizure.4

 The district court made no

determination regarding reasonable suspicion. Rather, the district court appears

to have justified the intrusion because “it was the easiest way to get her out of the

street . . . .” ROA, Vol. II, at 77. In addition to being factually dubious, this

conclusion does not address whether the seizure was justified by reasonable

suspicion of criminal activity. Regardless of whether it was the easiest way to get

her out of the street, it was a seizure, and therefore, must be supported by

reasonable suspicion. See United States v. Alarcon-Gonzalez, 73 F.3d 289,

292–93 (10th Cir. 1996) (“[W]hether or not the command to ‘freeze’ was justified

is immaterial because its effect was to turn the encounter that followed into a

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 Additionally, we note that there is no suggestion that the seizure was

supported by probable cause. See United States v. Sokolow, 490 U.S. 1, 7 (1989)

(“[T]he level of suspicion required for a Terry stop is obviously less demanding

than that for probable cause.”).

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nonconsensual seizure. . . . Once the reason that justified the initial stop is

dispelled, further detention unsupported by reasonable suspicion violates the

Fourth Amendment.”). Because the officers did not have reasonable suspicion to

detain Ms. Chiles, the seizure was unlawful. See id.5

 

B

We now turn to whether the unlawful seizure rendered Ms. Chiles’s consent

to search the home invalid and the subsequently discovered evidence

inadmissible. See Wong Sun v. United States, 371 U.S. 471, 487–88 (1963). To

demonstrate that the taint of an illegal seizure has dissipated, “the government

must prove, from the totality of the circumstances, a sufficient attenuation or

break in the causal connection between the illegal detention and the consent.” 

United States v. Gregory, 79 F.3d 973, 979 (10th Cir. 1996) (quotation omitted). 

This is a heavy burden. See id. In Brown v. Illinois, the Supreme Court

articulated three factors especially relevant to this inquiry: “1) the temporal

proximity between the police illegality and the consent to search; 2) the presence

of intervening circumstances; and particularly 3) the purpose and flagrancy of the

official misconduct.” Melendez-Garcia, 28 F.3d at 1054 (citing Brown, 422 U.S.

at 603–04). Because this analysis is fact-intensive, “the district court’s findings

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must be upheld unless they are clearly erroneous.” United States v. EylicioMontoya, 70 F.3d 1158, 1165 (10th Cir. 1995). A factual finding is clearly

erroneous if “it is without factual support in the record or, after reviewing all the

evidence, we are left with a definite and firm conviction that a mistake has been

made.” United States v. Barnhardt, 93 F.3d 706, 710 (10th Cir. 1996).

Beginning with the first factor, the district court found there was close

temporal proximity between Ms. Chiles’s seizure and her subsequent consent to

search the house. The record does not reveal the exact length of the encounter

between Ms. Chiles and Officer Osterdyk, but during that encounter, Ms. Chiles

drove across the street to a parking lot, Officer Osterdyk ran a records check, and

he searched the front compartment of her car. The district court concluded that

this close temporal proximity weighs against a finding of attenuation. We agree.

 See United States v. McSwain, 29 F.3d 558, 563 (10th Cir. 1994) (first factors

“weigh[ed] heavily against finding the taint cleansed” where the defendant

consented “only a few minutes after being illegally detained”); United States v.

Mendoza-Salgado, 964 F.2d 993, 1012 (10th Cir. 1992) (thirty to forty-five

minute period by itself “reveal[ed] little about whether the [time] that elapsed had

any effect on [the] decision to permit the search”); United States v. Maez, 872

F.2d 1444, 1455 (10th Cir. 1989) (thirty minute time period between “the arrest

and Mrs. Maez’ consents clearly indicate that [the] taint [of the Fourth

Amendment] violation was not purged”).

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Turning to the second Brown factor, the district court found that there was

an intervening circumstance, stating: 

[T]here was a significant intervening circumstance, namely at the

time [Ms. Chiles] consented to search, she had voluntarily agreed to let

the officers inside, had walked them up to the house, and had let them

into the home with a key.

The intervening circumstances, or the intervening circumstance

in this case was the other [sic] lack of confinement, interrogation or any

other coercive circumstance at the time she consented to the search.

Thus, the consent to search was not given in any type of

detention setting.

ROA, Vol. II, at 78. This finding was clearly erroneous.

The district court clearly erred in suggesting that Ms. Chiles’s voluntary

consent itself was an intervening circumstance. Her consent is not in itself an

intervening event which could remove the taint of the prior illegal seizure. See

Melendez-Garcia, 28 F.3d at 1054 (clarifying the distinction between the “dual

requirement” that consent be voluntary in fact and free of the taint of police

illegality, and rejecting the rule that “consent that is voluntary in fact is in itself

an intervening act that purges any police illegality”). Under the facts presented,

there was no basis for finding an intervening circumstance. 

Under the second Brown factor, “there must be proof of facts or events

which ensure that the consent provided . . . [was] not the fruit of the illegal

[seizure]. The facts or events must create a discontinuity between the illegal

[seizure] and the consent such that the original illegality is weakened and

attenuated.” Gregory, 79 F.3d at 980; see also United States v. Reed, 349 F.3d

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 According to the officers’ testimony, Ms. Chiles signed a consent form,

and Officer Osterdyk went over the form with her and told her that she had the

right to tell him to stop searching at any point. ROA, Vol. II, at 52. However,

the officers went over the form with Ms. Chiles after they had already obtained

the initial consent and searched the house. Thus, we do not see how this could be

an “intervening” event. See United States v. Santa, 236 F.3d 662, 678 (8th Cir.

2000) (“[T]he fact that [the defendant] signed a consent form after the search was

complete does not persuade us that his consent was not the product of the illegal

arrest.”). 

15

457, 464 (7th Cir. 2003) (“The type of intervening events that serve to attenuate

official misconduct are those that sever the causal connection between the illegal

[seizure] and the discovery of the evidence.”). Some examples of intervening

circumstances include “carefully explain[ing]” a consent form and advising an

individual of the right to withhold consent, see Mendoza-Salgado, 964 F.2d at

1012,6

 “release from custody, an appearance before a magistrate, or consultation

with an attorney,” United States v. Washington, 387 F.3d 1060, 1074 (9th Cir.

2004), to name a few. After reviewing the record, we conclude there were no

intervening events that would have broken or attenuated the causal connection

between the illegal seizure and the consent. Thus, the district court clearly erred

in concluding that this factor weighed towards a finding of attenuation. 

Finally, we look at the third factor, whether the officer’s misconduct was

purposeful or flagrant. The district court found that “any official misconduct that

did occur was in no way flagrant. The Court finds that nothing the police did

during the alleged detention would have impacted Chiles’ decision to consent to

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search.” ROA, Vol. II, at 78. But the inquiry under this factor is not whether the

officers’ conduct—apart from the illegal seizure—coerced Ms. Chiles to consent. 

See Reed, 349 F.3d at 465 (“‘[P]urposeful and flagrant’ misconduct is not limited

to situations where police act in an outright threatening or coercive manner . . .

.”). Rather, purposeful and flagrant misconduct is generally found where: “(1) the

impropriety of the official’s misconduct was obvious or the official knew, at the

time, that his conduct was likely unconstitutional but engaged in it nevertheless;

and (2) the misconduct was investigatory in design and purpose and executed ‘in

the hope that something might turn up.’” United States v. Simpson, 439 F.3d 490,

496 (8th Cir. 2006) (quoting Brown, 422 U.S. at 605). Additionally, it may be

significant that the “officers ha[d] no right whatsoever to detain the person from

whom consent is sought.” Melendez-Garcia, 28 F.3d at 1055–56; see also United

States v. Chanthasouxat, 342 F.3d 1271, 1280 (11th Cir. 2003) (noting that the

third factor “weigh[ed] toward suppression because . . . the initial stop violated

Defendants’ Fourth Amendment rights”). It does not appear from the record that

the district court conducted the proper analysis under the third Brown factor.

In discussing whether Ms. Chiles was seized, the district court found that

Officer Osterdyk “[e]ntered the car merely because he was on foot, it was the

easiest way to get [Ms. Chiles] out of the street and he directed her to a nearby

parking lot.” ROA, Vol. II, at 77. Arguably, this finding might weigh against the

flagrancy and purposefulness of the officer’s conduct. However, the district

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court’s conclusion is without support in the record. Officer Osterdyk did not

explain why he got in Ms. Chiles’s car. Indeed, he never testified that he got in

her car at all; that information came to light only during the testimony of the

government’s final witness, and Officer Osterdyk’s partner, Officer Lamb. The

district court’s conclusion that the seizure was merely “the easiest way to get her

out of the street,” ROA, Vol. II, at 77, is not supported by the record, is pure

speculation, and is not a reasonable inference. 

The record suggests that the officer’s conduct was purposeful and flagrant. 

Without probable cause or an articulable reasonable suspicion justifying the

seizure of Ms. Chiles, see Melendez-Garcia, 28 F.3d at 1055–56, Officer

Osterdyk got in her car and directed her to drive across the street to a parking lot

where the police were conducting surveillance. Once there, he asked for her

identification, learned that she did not have a license, and then asked to search her

car. Upon searching her car he found what he thought were illegal drugs and told

Ms. Chiles that they were “more interested” in Fox. ROA, Vol. II, at 37. At that

point, she said that Fox was her husband and they lived together; Officer

Osterdyk then asked if she was on the lease to the house, and then asked for her

consent to search the house. At no time did the officers inform Ms. Chiles that

she was free to leave. See United States v. Fernandez, 18 F.3d 874, 882 (10th

Cir. 1994) (although not a prerequisite, informing an individual of the right to

refuse consent is “a factor particularly worth noting”). These circumstances

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 Because we conclude that the district court clearly erred in determining

that the taint of the illegal seizure was sufficiently attenuated, we need not

address Fox’s separate argument that Ms. Chiles’s consent was not voluntary

under Schneckloth v. Bustamonte, 412 U.S. 218 (1973). 

18

indicate that Officer Osterdyk detained Ms. Chiles “with a quality of

purposefulness, embarking upon a fishing expedition in the hope that something

might turn up.” McSwain, 29 F.3d at 563 (internal quotations and citations

omitted). This factor also weighs against a finding that the taint of the illegal

seizure had been purged.

 After reviewing the totality of the circumstances, including the three

Brown factors, and viewing the evidence in the light most favorable to the

government, we conclude that the district court clearly erred in finding that there

was sufficient attenuation between the illegal seizure of Ms. Chiles and her

subsequent consent. See id. (circumstances indicated that the taint was not

purged—the officer leaned over and rested his arm on the driver’s door when

asking for consent, did not specifically inform the driver that he was free to leave

or refuse to consent, and the illegality had a quality of purposefulness). We are

left with the firm conviction that the government failed to meet its heavy burden

of establishing that Ms. Chiles’s consent was purged of the taint of her unlawful

seizure. Accordingly, the evidence found as a result of that consent must be

suppressed.7

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III

We REVERSE the district court’s denial of Fox’s motion to suppress and

REMAND for further proceedings.

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