United States v. Hill

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 10-4320
TORRANCE G. HILL,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Anthony J. Trenga, District Judge.
(1:09-cr-00454-AJT-1)

Argued: March 23, 2011

Decided: August 18, 2011

Before GREGORY, AGEE, and KEENAN, Circuit Judges.

Vacated and remanded with instructions by published opin-
ion. Judge Gregory wrote the majority opinion, in which
Judge Keenan joined. Judge Agee wrote a dissenting opinion.

COUNSEL

ARGUED: Caroline Swift Platt, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. Mysti Dawn Degani, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
2 UNITED STATES v. HILL
ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Kevin R. Brehm, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Michael P. Ben’Ary,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee

OPINION

GREGORY, Circuit Judge:

This case is about the "centuries-old principle of respect for
the privacy of the home." Wilson v. Layne, 526 U.S. 603, 610
(1999). Defendant, Torrance G. Hill, filed a motion to sup-
press evidence obtained in his residence without a warrant.
The district court denied the motion, and determined that the
police acted legally when they entered Hill’s home. Hill sub-
sequently entered a conditional guilty plea while reserving his
right to appeal the denial of his motion to suppress. We now
hold that the district court erred in finding that the police’s
initial entry into the house was valid, but that it properly
found Ms. Alvarez’s consent for the second search was valid.
We remand to the district court for a determination as to
whether the taint from the initial illegal entry into the house
was dissipated by Ms. Alvarez’s consent.

I.

The pertinent facts of this case take place over the span of
a month and a half. On June 25, 2009, Hill was informed by
Virginia State Trooper Cox that his license was suspended.
When asked, Hill gave the officer an address in Alexandria,
Virginia. Hill testified that he told Trooper Cox that the
address was out of date because he could not remember his
new mailing address in Lorton, Virginia (hereinafter "the Lor-
 UNITED STATES v. HILL 3
ton townhouse") where he had moved with his girlfriend, Ms.
Alvarez, and their eight-year-old son in May of 2009.

On July 12, 2009, Officer Albert from the Fairfax Police
Department approached a group of men, including Hill, who
were allegedly loitering, and obtained their identification.
Later, after the men had dispersed, Officer Albert discovered
an electronic scale and concealed marijuana near where the
group of men were gathered. Early the next morning, he
swore out an affidavit to obtain an arrest warrant for Hill. The
warrant for Hill’s arrest listed his address as "unknown."

On July 17, 2009, Ms. Alvarez called 911 from the Lorton
townhouse because of an argument she was having with Hill.
Ms. Alvarez testified at the suppression hearing that she hung
up the phone before speaking with the 911 operator, but Offi-
cer Coligan was dispatched to the Lorton townhouse nonethe-
less. Ms. Alvarez also testified that the argument did not
involve physical violence. Officer Coligan testified that when
he arrived Ms. Alvarez told him that Hill resided at the Lorton
townhouse, but had left because of the outstanding warrant for
his arrest. Officer Coligan also testified that the door frame of
the house was damaged when he arrived, and he discussed
having it fixed by the landlord with Ms. Alvarez. He for-
warded his report to Sergeant Milam from the warrant depart-
ment.

Hill spent more than half of his nights at the Lorton town-
house between the July 17th incident and July 29th, 2009, but
this was not known to police at the time.

On July 29, 2009, Sergeant Milam, Detective Studer, Offi-
cers Pleva, and Officer Kroll from the Fairfax Police Depart-
ment arrived at the Lorton townhouse with a warrant for
Hill’s arrest. The warrant indicated that Hill’s address was
unknown. Sergeant Milam testified that he thought there was
an eighty percent chance that Hill would not return to the Lor-
ton townhouse to avoid being apprehended by police. Instead,
4 UNITED STATES v. HILL
Sergeant Milam reported, the police were trying to communi-
cate with Ms. Alvarez concerning Hill’s whereabouts.

Upon arrival, the police knocked on the door. They heard
noises which they believed could have been voices or the tele-
vision. The noises were completely unresponsive to police
knocking. Milam noted that the doorframe was damaged. He
placed a call to Ms. Alvarez who indicated that she was at
work and that the only person who could be at the Lorton
townhouse was her sister. Neither the police nor Ms. Alvarez
expressed concern about Ms. Alvarez’s sister’s safety, and,
notably, Milam did not obtain consent to enter the house dur-
ing this conversation. Shortly thereafter, Milam decided to
turn the doorknob and opened the door. Upon opening the
door, Milam discovered Hill and a friend sitting on the couch.
They confiscated Hill’s phone, which had a text message from
Ms. Alvarez indicating that the police were at the front door.

Officer Pleva conducted a protective search of the home
allegedly looking for Ms. Alvarez’s sister. Pleva also testified
he smelt burnt marijuana. The officers located a small amount
of marijuana and a grinder on the kitchen table. About an hour
later, upon arriving home from work, Ms. Alvarez gave her
consent to search the house. There is a factual dispute about
whether Ms. Alvarez freely gave her consent to search the
house. Despite her allegedly valid consent, police took steps
to obtain a search warrant. However, the search of the Lorton
townhouse was conducted by the time the search warrant was
executed by Officer Kroll. The search turned up a two-shot
revolver, an empty holster, a bulletproof vest, scales, ammuni-
tion, marijuana, and crack cocaine.

Hill was charged in a superseding indictment with one
count of possession with intent to distribute cocaine base in
violation of 21 U.S.C. § 841(a) and one count of possession
of a firearm in connection with a drug trafficking crime in
violation of 18 U.S.C. § 924(c).
 UNITED STATES v. HILL 5
Before trial, Hill filed a motion to suppress evidence
obtained as a result of the search of the Lorton townhouse.
The court denied the motion first orally and later in a written
order.

Hill entered a conditional plea of guilty to the first count
while retaining his right to appeal the denial of his motion to
suppress. The district court entered a judgment of conviction
and sentenced him to 120 months of incarceration. Hill timely
appealed.

II.

On appeal from a motion to suppress, this Court reviews
the factual findings of a district court for clear error, and
reviews legal determinations de novo. United States v. Kel-
lam, 568 F.3d 125, 132 (4th Cir. 2009).

This case requires an analysis of four doctrines in order to
determine whether or not the fruits of the search of Hill’s
home should be suppressed. First, we determine whether the
search of Hill’s residence was justified as a valid execution of
Hill’s arrest warrant. Second, we determine whether the exi-
gency doctrine permits entry into the house. Third, we deter-
mine whether Ms. Alvarez’s consent to search the house was
valid. Finally, we determine whether the taint from the initial
entry was dissipated by Ms. Alvarez’s consent.

A.

i.

The police did not have sufficient reasons upon which to
base their belief that Hill was present in the home to execute
their arrest warrant. In Payton v. New York, the Supreme
Court concluded that police may enter into a home without a
search warrant in order to execute an arrest warrant only if
"there is reason to believe [that the subject of the warrant] is
6 UNITED STATES v. HILL
within." 445 U.S. 573, 602 (1980). Generally, circuits have
broken the analysis of whether the entry was lawful into two
conjunctive parts: (1) whether there is reason to believe that
the location is the defendant’s residence, and (2) whether or
not there was a "reasonable belief" that he would be home.
See, e.g., United States v. Graham, 553 F.3d 6, 13 (1st Cir.
2009); United States v. Magluta, 44 F.3d 1530, 1535 (11th
Cir. 1995), cert. denied, 116 S. Ct. 189 (1995).

Circuits have employed a variety of approaches in defining
reasonable belief and its relationship to probable cause. Some
circuits have found that reasonable belief is the same as prob-
able cause. See United States v. Hardin, 539 F.3d 404, 416
(6th Cir. 2008) (probable cause is the correct standard to use
in determining an officer’s reasonable belief that the subject
of a warrant is present in the home); United States v. Gorman,
314 F.3d 1105, 1114 (9th Cir. 2002) (same); see also United
States v. Jackson, 576 F.3d 465, 469 (7th Cir. 2009) (noting
an inclination to believe "that ‘reasonable belief’ is synony-
mous with probable cause.").

Other circuits have simply found that the distinction
between reasonable belief and probable cause is indefinite or
negligible. See United States v. Barrera, 464 F.3d 496, 501
n.5 (5th Cir. 2006) (noting that the distinction between proba-
ble cause and reasonable belief is "more about semantics than
substance"), cert. denied, 550 U.S. 937 (2007); Magluta, 44
F.3d at 1535 (noting that it is "difficult to define the Payton
‘reason to believe’ standard, or to compare the quantum of
proof the standard requires with the proof that probable cause
requires.").

While still other circuits have found that the requirements
of reasonable belief are something less than probable cause.
See United States v. Thomas, 429 F.3d 282, 286 (D.C. Cir.
2005) ("reasonable belief" requires less than probable cause),
cert. denied, 549 U.S. 1055 (2006); Valdez v. Machetes, 172
F.3d 1220, 1227 n.5 (10th Cir. 1999) (same); United States v.
 UNITED STATES v. HILL 7
Later, 57 F.3d 212, 215 (2d Cir. 1995) (same). A final set of
circuits has taken no position as to the relationship between
"reasonable belief" and probable cause. United States v.
Weems, 322 F.3d 18, 22 (1st Cir. 2003); United States v. Rise,
83 F.3d 212, 216 (8th Cir. 1996); United States v. Edmonds,
52 F.3d 1236, 1248 (3d Cir. 1995), vacated in part on other
grounds, 52 F.3d 1251.

In light of the diverse views taken by our sister circuits, we
decline to reach a conclusion as to whether ‘reason to believe’
is as stringent as ‘probable cause’ because we conclude below
that the police entry was not justified even under the less
stringent interpretation of the standard.

ii.

Next we apply the two-part test to determine whether
police could lawfully enter Hill’s home to execute their arrest
warrant. First, we must decide whether police had reason to
believe that the Lorton townhouse was Hill’s residence. At the
suppression hearing, Hill essentially conceded this point
because in order to have standing to contest the search he had
to establish that he had an expectation of privacy at the resi-
dence. Additionally, the report stemming from Ms. Alvarez’s
domestic violence call stated that the Lorton townhouse was
his residence. Therefore, we find that there was reason to
believe that Hill was a resident of the Lorton townhouse.

The second part of the test is whether or not the police had
reason to believe that Hill was present; and we conclude that
the evidence weighs against so finding. First, there is testi-
mony from Sergeant Milam, the lead officer on the scene, that
he did not believe Hill would be present at the home since he
had previously been identified at the home by police and fled.
Milam even stated that he believed there was an eighty-
percent chance Hill would not be present.1 In fact, Officer
1
It is true that the subjective beliefs of an officer are not relevant here.
Whren v. United States, 517 U.S. 806, 813-814 (1996). However, Sergeant
8 UNITED STATES v. HILL
Kroll, another arresting officer, characterized the trip to the
residence as a "follow up visit to the residence to gain infor-
mation in regards to a fugitive investigation that [Sergeant
Milam] was conducting." J.A. 171. Additionally, the police
had documented another primary residence for Hill based on
this recent traffic citation, further lessening the chances that
Hill would be present in the home.

The officers relied on hearing unresponsive noises from
inside the house, which could have been voices or a televi-
sion, to support their belief that Hill was present. However,
noise coming from inside of a house is not enough to give the
police a reason to believe that a defendant is present. This is
especially true because before entering the house, Sergeant
Milam was informed by a resident of the house, Ms. Alvarez,
that Hill was not there and that the noise was most likely com-
ing from her sister who might have been in the house.

In the Fourth Circuit, courts have sanctioned entry only
where multiple facts support a reason to believe that the sub-
ject of the arrest warrant is present at the time of entry. See,
e.g., United States v. Young, 609 F.3d 348 (4th Cir. 2010)
(finding that where police established surveillance of the
home, were sure that the subject of the arrest warrant was
present, and had just confiscated drugs from someone exiting
the home, Payton supported entry into the home); United
States v. Morgan, No. 92-5068, 1992 U.S. App. LEXIS
20235, at *2 (4th Cir. Aug. 4, 1992) (unpublished) (the police
"observed that the interior lights were on and that Morgan’s
car was parked at the rear of the house" and "saw Morgan run
across the yard toward his house.").

Milam’s belief was held as a result of the objective fact that Hill was
unlikely to return to a residence he had recently fled in order to avoid con-
tact with the police. As such, Milam’s view is evidence of a reasonable
reading of the objective facts from an experienced officer’s perspective.
 UNITED STATES v. HILL 9
The government also relies on several cases from outside
the Fourth Circuit to conclude that they had sufficient evi-
dence that Hill was present in the home to justify their entry.
For instance, it relies on United States v. Lloyd for the propo-
sition that noise inside a house is sufficient to give police a
reason to believe someone is inside. 396 F.3d 948 (8th Cir.
2005). However, in that case, police had a complaint from
neighbors about an abandoned car, the smell of ether emanat-
ing from the house, noise from a fan and other sources com-
ing from inside the house, as well as evidence from a
neighbor that the defendant had been home earlier that day.
Id. at 950-952. These robust facts point to a far more sound
conclusion that someone, specifically the defendant, was pres-
ent at the time of the entry.2

Similarly, the government’s reliance on United States v.
Route is misplaced. 104 F.3d 59 (5th Cir. 1997). In Route the
police had more facts to rely on in determining that they had
a reasonable belief that the defendant would be present. These
facts included that the home was defendant’s primary resi-
dence, a known co-conspirator was seen leaving the house
shortly before the search, there was a television on inside the
house, and an additional car was parked in the driveway. Id.
at 62.3

In all of these cases, the police had several reasons to
believe that the subject of the warrant was present. Here, at
best, the police had reason to believe that someone was pres-
ent and that the individual inside was Ms. Alvarez’s sister.
We find that in order to have reason to believe that the defen-
dant is in the home, police cannot solely rely on an unidenti-
fied noise coming from within the home.
2
The court in Lloyd also relied on the fact that the smell of ether permit-
ted the officers to enter the home as a result of the exigent circumstances.
Id. at 955.
3
The government also cites United States v. Philips, 593 F. 2d 553, 556
(4th Cir. 1978), but this case has no precedential value since it was
decided before Payton and thus analyzed the issue according to a different
test.
10 UNITED STATES v. HILL
Therefore, we conclude that the officers’ entry into Hill’s
home was not a proper entry in order to execute an arrest war-
rant.

B.

The government also contends that its entry was justified
by the exigency doctrine. The district court, in determining
that the exigency doctrine would apply, provides scant rea-
soning except to say that "the Court finds that it would have
been reasonable for [the police] to enter or certainly simply
open the door to determine whether the sister was facing some
safety issues." J.A. 268. We disagree and hold that the evi-
dence does not support a finding that the entry was justified
by the exigency doctrine.

In analyzing whether exigent circumstances justified a war-
rantless search, we ask whether the circumstances would
cause an officer to have an "objectively reasonable belief that
an emergency existed that required immediate entry to render
assistance or prevent harm to persons or property within."
United States v. Moss, 963 F.2d 673, 678 (4th Cir. 1992). The
Supreme Court has emphasized that "[a]n action is ‘reason-
able’ under the Fourth Amendment, regardless of the individ-
ual officer’s state of mind, as long as the circumstances,
viewed objectively, justify the action." Brigham City v. Stu-
art, 547 U.S. 398, 404 (2006) (citation and quotations omit-
ted). Examples of such emergencies include "to assist persons
who are seriously injured or threatened with such injury." Id.
at 403.

This Court recently cited with approval a non-exhaustive
list of factors to consider:

(1) the degree of urgency involved and the amount
of time necessary to obtain a warrant; (2) the offi-
cers’ reasonable belief that the contraband is about
to be removed or destroyed; (3) the possibility of
 UNITED STATES v. HILL 11
danger to police guarding the site; (4) information
indicating the possessors of the contraband are aware
that police are on their trail; and (5) the ready
destructibility of the contraband.

United States v. Mowatt, 513 F.3d 395, 399 (4th Cir. 2008)
(citation omitted). In the present case, only the first factor is
alleged by the government, and we proceed with an analysis
of whether there was sufficient evidence of urgency to justify
police entry.

The Supreme Court has found that where officers were cal-
led to a house, observed underage drinking, and an alterca-
tion, the exigency doctrine was correctly applied. See
Brigham, 547 U.S. at 407. For this doctrine to justify an entry,
courts require police to have substantial evidence of wrongdo-
ing or imminent danger. See States v. Taylor, 624 F.3d 626
(4th Cir. 2010) (police sought to identify the parents of a four
year old child, and she identified the house as being her resi-
dence); United States v. Dean, No. 06-5028, 243 F. App’x.
780, 782 (4th Cir. July 17, 2007) (unpublished) (police had
reports of a gas leak in a wood framed house); United States
v. Jones, 204 F.3d 541, 543 (4th Cir. 2000) (where defendant
placed a small baggy with white powder in his mouth and
walked into a residence); United States v. Masko, No. 99-
4681, 2000 U.S. App. LEXIS 19057 (4th Cir. Aug. 9, 2000)
(unpublished) (where an occupant of a motel room asked the
staff to call 911); cf. Hunsberger v. Wood, 570 F.3d 546, 549
(4th Cir. 2009) (in a civil case against a police officer, the
court determined that "circumstances confronted by defendant
on the night in question suggested that plaintiffs’ home was
being vandalized and that a missing teenage girl was in the
house and in need of assistance" and therefore he acted prop-
erly).

Where the police have evidence that the danger in question
was not imminent, an entry is not justified. United States v.
Shea, No. 99-4723, 2000 U.S. App. LEXIS 15441 (4th Cir.
12 UNITED STATES v. HILL
June 30, 2000) (unpublished) (police received a call that
defendant was engaged in underage sex and found defendant
outside the room, and therefore, had no reason to believe that
underage girl was in danger and subsequent search was ille-
gal).

Here, the police did not have a sufficiently reasonable basis
to justify this entry under the exigency doctrine. The factors
Sergeant Milam identified to support his contention that his
emergency entry was justified are not sufficient. First, Milam
suggests that "the door appeared to be very old, and [he]
noticed around the frame and the top area to be some damage
to the frame a little bit like it had been previously kicked in
or broken in." J.A. 140 (emphasis added). However, slight
damage to a door frame is not sufficient to justify an entry
without a warrant.4

Second, Sergeant Milam expressed concern that there was
someone inside the house who was not answering and "that’s
not normal behavior." J.A. 141. Again, this is simply not suf-
ficient evidence to support a warrantless entry into a private
home without some articulable fact that justified urgent entry
by police. This is especially true since the unresponsive noise
could easily have been a television or radio accidentally left
on.

Next, Milam indicated that he was concerned about Ms.
Alvarez’s sister who he was told might be home, but was not
answering the door. However, Milam can point to nothing
4
Practically speaking, if the police had concerns about the door frame
they could have asked Ms. Alvarez about it while they were talking to her
on the phone. Instead of taking the extreme step of entering a private home
without a warrant, the police had a clearly less invasive means of ascer-
taining what, if anything, was transpiring within the house. Ms. Alvarez
was cooperative and forthcoming from the perspective of the police hav-
ing previously informed them that Hill fled as a result of an outstanding
warrant.
 UNITED STATES v. HILL 13
that would suggest that Ms. Alvarez’s sister was in distress or
required police assistance.

Milam also expressed concern about Ms. Alvarez because
she had previously called the police to remove Hill. However,
any concern about Ms. Alvarez and Hill should have been
eliminated when Milam spoke with Ms. Alvarez who was at
work and who had assured him that she was fine and sug-
gested her sister would be the only one in the house. Addi-
tionally, the 911 call that Ms. Alvarez placed was weeks
before the search and no allegations of violence were made
against Hill.

Finally, Milam indicated that he heard what sounded like
someone attempting to lock a latch on the door. However, the
door was not locked when police entered. Furthermore, this
evidence does not point to any exigency. Circuit precedent
supports a finding that entry was not justified. In Moss, a For-
est Service Officer noticed a car parked illegally along the
side of the road in a national park. Moss, 963 F.2d at 674. He
radioed to dispatch and was wrongly told that the closest
cabin was unoccupied. Id. at 675. When he came upon the
cabin, he discovered fresh bike tracks and an unlocked door.
Id. He proceeded to search the cabin and discovered mari-
juana. Id. This Court concluded that his search of the cabin
was not justified under the exigency doctrine because there
was no evidence of "an emergency that required immediate
identification of the occupants in order to give them assis-
tance — or indeed that assistance was needed." Id. at 679.

This case is very much like Moss in several respects. In
both cases, the officer was under some mistaken impressions,
which led to his suspicion. In Moss it was that the cabin was
not occupied, and, in this case, that the damage on the door
was recent.5 Similarly to Moss, and unlike cases where the
5
In fact, police had previous knowledge that the door frame had been
damaged because when the police were called to the house on July 17,
2009, the damage was noted.
14 UNITED STATES v. HILL
exigency doctrine has been applied, there were no reports of
yelling from within the home that would support a sense of
emergency or signals of distress.

The Fourth Amendment protects the rights of citizens to
refuse to have their homes searched. In order for a search to
be legal, the police must have a warrant or their conduct must
fall within an exception to the Fourth Amendment. We hold
that damage to the door, unsupported hunches of the police,
and noises from within are not sufficient to suggest that there
was an emergency taking place inside the residence.

Therefore, we find that the initial entry into the Lorton
townhouse was unlawful.

C.

Having concluded that the initial entry into the house was
unlawful, we turn our analysis to the issue of whether the con-
sent provided by Ms. Alvarez was valid. "The voluntariness
of consent to search is a factual question, and as a reviewing
court, we must affirm the determination of the district court
unless its finding is clearly erroneous." United States v. Latti-
more, 87 F.3d 647, 650 (4th Cir. 1996). District courts are
given deference where their determination on the issue of
consent is based on oral testimony where they had an opportu-
nity to make a credibility determination. Id. at 651.

The district court concluded, after weighing the evidence
presented to it by Ms. Alvarez and the police, that Ms. Alva-
rez’s consent to the search of her home when she arrived after
Hill’s arrest was voluntary. The district court credited the offi-
cer’s testimony over that of Ms. Alvarez. We can find nothing
on the record which would support a finding that the district
court committed clear error in determining that the consent
was valid.
 UNITED STATES v. HILL 15
D.

We have determined that the initial entry into the Lorton
townhouse was illegal, but that Ms. Alvarez gave her valid
consent to the search. Therefore, it becomes necessary to
evaluate whether the taint from the initial illegal search was
dissipated when Ms. Alvarez gave her consent for the second
search.6

This Court must evaluate whether the taint is sufficiently
dissipated using the "fruit of the poisonous tree" doctrine.
Wong Sun v. United States, 371 U.S. 471 (1963). In Brown v.
Illinois, the Supreme Court articulated three factors that are
used to determine whether the taint from an illegal search has
dissipated: (1) the time between the Fourth Amendment viola-
tion and the consent, (2) the presence of intervening circum-
stances, and (3) the flagrancy of the official misconduct. 422
U.S. 590, 603-04 (1975). In evaluating whether the taint has
dissipated, courts conduct a case by case analysis of the facts.
United States v. Ceccolini, 435 U.S. 268, 276 (1978).

If the government wishes to argue that taint from an initial
search is dissipated by the validly obtained consent, it bears
the burden of so showing. United States v. Seidman, 156 F.3d
542, 548 (4th Cir. 1998).

We have previously found that an individual’s consent can
be sufficient to dissipate the taint of an illegal search. See
Seidman, 156 F.3d at 548 (taint had dissipated from an infor-
mant’s illegal entry into subject’s house when he was warmly
greeted by subject who explained not answering the door
because he was in the basement and carried on a 45 minute
conversation with informant); see also United States v.
6
In the initial briefing for this case, neither party raised this issue. How-
ever, the court ordered additional briefing with respect to this issue prior
to oral argument. Since the burden to prove dissipation rests with the gov-
ernment, this question was not waived by Hill.
16 UNITED STATES v. HILL
Meece, 580 F.3d 616, 619 (7th Cir. 2009) (a girlfriend’s con-
sent was sufficient to dissipate taint where the court found she
was not influenced by news of arrest and wanted police to
find any guns in her home to protect her children). But in
other cases, we have found that consent does not dissipate the
taint. In United States v. Gooding, we found that an illegal
Terry stop tainted all subsequently obtained evidence even
when the defendant consented to the search. 695 F.2d 78, 84
(4th Cir. 1982). Other courts have also found that consent
does not necessarily dissipate the taint. In United States v.
Alvarez-Manzo, the Second Circuit found that consent to
search a wallet subsequent to a Fourth Amendment violation
where police seized defendant’s bag from the bus cargo did
not dissipate the taint. 570 F.3d 1070, 1077 (8th Cir. 2009).
The court relied on the fact that the government bears the bur-
den of showing that the taint has dissipated. Id.; see also
United States v. Valentine, 539 F.3d 88 (2d Cir. 2008) (man’s
arrest and search of car were illegal, the police proceeded to
his apartment and, with the consent of his girlfriend, searched
it, the court remanded the case to district court to determine
whether the subsequent search of the apartment was lawful);
United States v. Jaquez, 421 F.3d 338 (5th Cir. 2005) (consent
to search car given after illegal traffic stop not sufficiently an
act of free will to break causal chain of events flowing from
constitutional violation); United States v. Washington, 387
F.3d 1060, 1063 (9th Cir. 2004) (written consent did not dissi-
pate taint); United States v. Yousif, 308 F.3d 820 (8th Cir.
2002) (consent does not always purge prior illegal action);
United States v. Caro, 248 F.3d 1240 (10th Cir. 2001) (same);
United States v. Valdez, 931 F.2d 1448 (11th Cir. 1991) (same).7
7
The government’s reliance on United States v. Liss is misplaced since
the majority in that opinion does not even perform a Brown analysis. 103
F.3d 617 (7th Cir. 1997). Furthermore, in a concurrence, Judge Ripple
characterized the majority opinion’s failure to consider Brown as "frontal
assault on the precedents of the Supreme Court of the United States and
this Court". Id. at 622.
 UNITED STATES v. HILL 17
In a similar case, the Eleventh Circuit has taken a more lim-
ited view of the taint doctrine. In United States v. Delancy, the
Eleventh Circuit found that the written and oral consent from
a girlfriend was sufficient to dissipate the taint of the illegal
entry by police. 502 F.3d 1297, 1309 (11th Cir. 2007). The
case before us is factually different in two ways: (1) the police
obtained written consent in Delancy, and (2) the girlfriend in
Delancy did not arrive home to multiple police officers
already in her home after learning of the arrest of her boy-
friend.

The first factor that the Supreme Court identified in Brown
requires us to consider the time that elapsed between the ini-
tial "illegal" search and the subsequent consent. There is a
factual dispute between the parties as to how much time
elapsed between the two searches. Since the record is under-
developed as to this issue, this factor weighs in favor of
remanding the case to the district court in order for it to con-
duct a further factual inquiry.

The second factor to consider is the existence and impor-
tance of any intervening circumstances. This Court and the
Supreme Court have consistently held that an analysis of the
voluntariness of a statement is a separate inquiry from deter-
mining whether the taint from a Fourth Amendment violation
has dissipated. Cf. Taylor v. Alabama, 457 U.S. 687, 690
(1982) ("[T]his Court [has] firmly established that the fact
that the confession may be ‘voluntary’ for purposes of the
Fifth Amendment . . . is not by itself sufficient to purge the
taint of the illegal arrest."). In a concurrence, Judge Michael
summarized the Supreme Court jurisprudence on this topic:

[T]he Supreme Court has found intervening circum-
stances only when the events were sufficient to break
the "causal chain[ ] between the [Fourth Amendment
violation] and the statements made subsequent
thereto." Brown at 602. Examples of intervening cir-
cumstance sufficient to break that chain include a
18 UNITED STATES v. HILL
hearing before a magistrate judge at which the defen-
dant was advised of his rights, see Johnson v. Louisi-
ana, 406 U.S. 356, 365 (1972); an arraignment plus
a six-day release from custody, see Wong Sun, 371
U.S. at 491; and the issuance of a valid search war-
rant that resulted in the independent discovery of
drugs and a spontaneous admission, see Rawlings v.
Kentucky, 448 U.S. 98, 108-09 (1980). See also
United States v. Wellins, 654 F.2d 550, 555 (9th Cir.
1981) (finding intervening circumstance when
defendant was allowed to consult with his lawyer).

Seidman, 156 F.3d at 555.8

Here, the continued presence of the law enforcement offi-
cers inside the home, subsequent to their illegal search, is a
significant consideration in determining whether the taint had
dissipated. "[W]here government agents inform a defendant
that they have entered his house and are in control thereof and
that they have found contraband, there is a strong possibility
that the consent is a fruit of the original illegal entry." United
States v. Collazo, 732 F.2d 1200, 1204 (4th Cir. 1984); see
also Thomas, 955 F.2d at 211.

Another significant consideration is the fact that the person
providing consent in this case was not the defendant, but
instead was the defendant’s girlfriend, Ms. Alvarez. Addition-
ally, Ms. Alvarez was not present in the home at the time that
the police entered the residence.
8
The inevitable discovery doctrine is not appropriate here since "[t]he
premise of the inevitable discovery doctrine is that the illegal search
played no real part in discovery of incriminating evidence. Only then, if
it can be shown that the taint did not extend to the second search, would
the product of the second search be admissible." United States v. Thomas,
955 F.2d 207, 209 (4th Cir. 1992). Here, it is obvious that the police’s
desire to search the Lorton townhouse stemmed from the initial illegal
search.
 UNITED STATES v. HILL 19
There is limited evidence in this record regarding the cir-
cumstances surrounding Ms. Alvarez’s consent. For example,
we do not know: how many police officers were present in the
house and whether their weapons were visible; what freedom
of movement Ms. Alvarez had during the search; and whether
Ms. Alvarez might have to fear prosecution if she did not
cooperate. Consequently, we find that no conclusion can be
drawn on this factor, and it should be remanded for further
development on this issue.

The third factor to consider in this analysis is the flagrancy
of the police conduct. This analysis turns at least in part on
whether the violation "is the sort of police behavior that the
Brown . . . test is meant to discourage." United States v. Mil-
ler, 146 F.3d 274, 279 (5th Cir. 1998). There are numerous
factors to consider when evaluating the flagrancy of the con-
duct. Some factors may weigh in favor of finding the conduct
to be flagrant including that the illegal conduct involves "the
physical entry of the home[,] [which] is the chief evil against
which the wording of the Fourth Amendment is directed."
Payton, 445 U.S. at 585.

Other factors may weigh in favor of finding the conduct
was not flagrant, including that the officers did not use or
exploit the evidence that they obtained during the initial
search to gain consent. See Seidman, 156 F.3d at 549; see also
Delancy, 502 F.3d at 1313.

It will ultimately be the district court’s role to weigh the
evidence alongside these factors, and evaluate the flagrancy
of the police conduct.

Therefore, since the district court has not addressed this
issue, it is appropriate to remand the case for a full factual
development of the record and a determination of whether the
taint had dissipated by the second search. Collazo, 732 F.2d
at 1204.
20 UNITED STATES v. HILL
We vacate the district court’s denial of Hill’s motion to
suppress, and remand this matter to develop the record and
determine whether Ms. Alvarez’s consent was sufficient to
dissipate the taint from the initial illegal search of the Lorton
townhouse.

Accordingly, this case is

VACATED AND REMANDED WITH INSTRUCTIONS.

AGEE, Circuit Judge, dissenting:

As an appellate court, we are to review the record in the
light most favorable to the prevailing party below, which, in
this case, is the Government. United States v. Branch, 537
F.3d 328, 337 (4th Cir. 2008) (stating that when assessing a
district court’s decision on a motion to suppress, the Court
must construe the evidence in the light most favorable to the
prevailing party); see also United States v. Humphries, 372
F.3d 653, 657 (4th Cir. 2004) (stating that "[i]n our deference
to fact-finding, we also give due weight to inferences drawn
from those facts by resident judges and local law enforcement
officers") (internal quotation marks omitted). The majority
opinion fails to follow this fundamental rule of appellate
review. When the facts are viewed in their proper light under
the accepted standard of judicial review, they satisfy the stan-
dard set forth in Payton v. New York, 445 U.S. 573 (1980),
that permits police entry into a dwelling without a search war-
rant in order to execute an arrest warrant. Accordingly, I can-
not join the majority opinion.

I.

The Supreme Court’s decision in Payton articulates the rel-
evant standard: "for Fourth Amendment purposes, an arrest
warrant founded on probable cause implicitly carries with it
the limited authority to enter a dwelling in which the suspect
lives when there is reason to believe the suspect is within." Id.
 UNITED STATES v. HILL 21
at 603 (emphasis added). As the majority opinion observes,
courts have generally recognized two components of this
analysis: first, that the dwelling entered is the residence of the
subject of the arrest warrant; and, second, that the police pos-
sess "reason to believe the suspect is within" when they enter.
See Maj. Op. at 5-6 (citing cases).1

I agree with the majority that the first prong of the Payton
analysis is satisfied: the Lorton townhouse was Hill’s resi-
dence. Not only has Hill conceded this point, but the district
court had ample basis on which to conclude that Hill did
reside there. Hill does not challenge the district court’s deter-
mination on appeal, so that issue is not before us. See Rosen-
berger v. Rector & Visitors, 18 F.3d 269, 276 (4th Cir. 1994),
rev’d on other grounds, 515 U.S. 819 (1995) (holding that
appellant’s failure to raise an issue in the opening brief results
in the issue being abandoned for failure to comply with the
requirements of Federal Rule of Appellate Procedure 28(a)).

II.

Where the majority opinion and I part ways is with respect
to the second prong of the Payton test: did the police have
reason to believe that Hill was present at the Lorton town-
house at the time they entered? A full review of the factual
record shows that they did.

Although the majority opinion recites the proper standard
of review, it fails to apply that principle. When a motion to
suppress has been denied, we are to review the evidence in the
light most favorable to the Government. See Branch, 537 F.3d
at 337. In my view, that is not what the majority opinion does
1
The majority opinion correctly notes a split among the circuits as to
what constitutes the "reason to believe" standard. See Maj. Op. at 5-6. No
published Fourth Circuit case has previously addressed the application of
Payton in this regard, but I agree with the majority that this is not the
proper case to address this issue.
22 UNITED STATES v. HILL
in this case. The majority opinion not only omits any refer-
ence to several factors supporting the conclusion that the
police had reason to believe Hill was inside the residence
entered, but also mischaracterizes portions of the factual
record, the effect of which is to present the evidence in the
light most favorable to Hill and least favorable to the Govern-
ment.

The police learned that Hill resided at the Lorton town-
house after Alvarez placed a 9-1-1 call on July 17, twelve
days before the events at issue in this appeal. The responding
officer, Kirk Coligan, testified that Hill and Alvarez were
arguing. When Officer Coligan asked both of them to "get
back and get down" in order to assess what was happening,
Hill "approached [him] walking towards the front door like he
was about to lay [sic] down on the ground in front of [him].
As soon as [Hill] reached that threshold of the doorway, he
ran from [Coligan]" out the front door and "around another
block of townhouses." (J.A. 113.) Officer Coligan initially
pursued Hill on foot, but broke off the pursuit because he had
no back up and no reason to detain Hill at that time. Officer
Coligan returned to the townhouse and spoke to Alvarez, who
told him she and Hill had an argument after Hill told her there
was a warrant out for his arrest. Alvarez provided Hill’s iden-
tity to the officer and gave the Lorton townhome as Hill’s
address, indicating that he stayed with her and did not have
a current permanent address elsewhere. Officer Coligan sub-
sequently gave Sergeant Milam this information.2

Although this incident provides only background informa-
tion to the subsequent entry of the townhouse, it is particu-
larly significant because it provided the police with specific
information that Hill knew of the arrest warrant, had previ-
ously attempted to flee from police, and therefore would
likely seek to avoid them in the future. Courts have routinely
2
While the majority recites this encounter, it fails to note that Hill fled
the residence upon seeing Officer Coligan.
 UNITED STATES v. HILL 23
observed that "officers may take into account the fact that a
person involved in criminal activity may be attempting to
conceal his whereabouts" when assessing the on-scene cir-
cumstances. See, e.g., United States v. Gay, 240 F.3d 1222,
1227 (10th Cir. 2001) (quotation marks and citation omitted).
This is true even where no specific information is available to
suggest that the suspect will avoid the police; it is all the more
true where, as here, there is specific evidence to support that
belief.

The majority recites the testimony of Sergeant Milam and
Officer Kroll that they did not believe Hill would be at the
Lorton townhome and that the purpose of their visit was
investigational. However, that account does not fully repre-
sent the record. The recited testimony is immaterial to the rel-
evant inquiry not simply because it relates Sergeant Milam
and Officer Kroll’s subjective beliefs, but because it also
relates to views held prior to arriving at the townhouse. That
partial testimony does not account for the circumstances the
officers observed and encountered upon arriving at the scene.
Our review is based on the totality of the circumstances
known to the police at the time they entered the residence.
Regardless of the reasons for initially arriving at a residence,
police officers can encounter a variety of circumstances once
on the scene that may or may not support the conclusion that
they possessed the reasonable belief that a suspect would be
inside his residence. E.g., United States v. Werra, 638 F.3d
326, 338-39 (1st Cir. 2011) (focusing on evidence to support
a reasonable belief the suspect was inside the house "at the
time [the police officers] entered"); United States v. Veal, 453
F.3d 164, 167 (3d Cir. 2006) (same); Gay, 250 F.3d at 1227
(same). Sergeant Milam and Office Kroll’s testimony neither
supports nor detracts from the salient inquiry because their
recited views were formed prior to arriving at the residence
and assessing the situation first-hand.

To the extent that — as the majority expresses it — the
subjective views of Sergeant Milam are relevant as "evidence
24 UNITED STATES v. HILL
of a reasonable reading of the objective facts from an experi-
enced officer’s perspective," Maj. Op. at 7-8 n.1, the record
shows Milam’s belief evolved from that relied on by the
majority opinion. Sergeant Milam testified that he had a
"sneaking suspicion" Hill would be inside the residence based
on how events unfolded once he and the other officers arrived
at the townhouse. (J.A. 164.) This "on-scene" assessment was
formed precisely at the relevant moment of the proper inquiry
as opposed to Sergeant Milam’s belief formed prior to going
to the residence.

Next, the majority opinion points out that "the police had
documented another primary residence for Hill based on [his]
recent traffic citation, further lessening the chances that Hill
would be present in the home." Maj. Op. at 8. This conclusion
is flawed for at least three reasons. First, it calls into question
the issue whether the Lorton townhouse was Hill’s residence,
which — as discussed above and the majority opinion agrees
— is not at issue on appeal. The Lorton townhouse was Hill’s
residence. Second, it conveniently ignores the information
Hill actually provided to police at the time he received the
traffic citation, which was that he no longer lived at the
address listed on his driver’s license. That driver’s license
address was not the townhouse address. Third, it ignores
Alvarez’s statement to police days before the search that Hill
lived at the Lorton townhouse with her and did not have any
other permanent residence.

The majority opinion next discounts the probative value of
the noises the police heard from inside the Lorton residence
as evidence that Hill was present. When the police arrived at
the townhouse, Sergeant Milam knocked on the front door
and announced that it was the police. He heard "voices or a
TV inside" and "[a]t one point, it sounded like the door—the
lock on the door was clicking, but I wasn’t for certain what
that was." (J.A. 138-39, 149-50; 164; 174.) No one responded
to the officers’ repeated, loud knocking and announcing. Due
to his familiarity with the general layout and size of the town-
 UNITED STATES v. HILL 25
houses in that area, Sergeant Milam believed that "it would be
pretty much impossible not to hear those knocks." (J.A. 152.)

The noises the police officers heard from inside the town-
house are similar to the noises identified in other cases as part
of the totality of the circumstances test. Contrary to the major-
ity opinion’s implication, there is no requirement that noises
be "responsive" to the officers’ knocking in order to be part
of an objective basis for believing that an individual is pres-
ent. See, e.g., United States v. Lloyd, 396 F.3d 948, 952 (8th
Cir. 2005) (police heard "a fan and other noises," which sub-
sequently turned out to be from a dog); Valdez v. McPheters,
172 F.3d 1220, 1226 (10th Cir. 1999) (listing "operation of
lights or other electrical devices" as one factor suggesting the
presence of an individual inside an unresponsive residence);
see also United States v. Phillips, 593 F.2d 553, 556 (4th Cir.
1978) (in a case pre-dating Payton, holding "[e]manation of
a noise from the second floor strengthened [the officers’] con-
viction of the presence of someone in the apartment," even
though the noise was not identified).

Another of the majority opinion’s misleading interpretation
of the facts concerns Alvarez’s statements to Sergeant Milam
during their telephone conversation. The testimony at the sup-
pression hearing showed that when no one responded to the
knocks, Sergeant Milam called Alvarez’s cell phone. Alvarez
indicated that she was not at home and that "her sister should
be home." (J.A. 102, 140-42, 150-51.) The majority opinion
casts this testimony as Alvarez "indicat[ing] that she was at
work and that the only person who could be at the Lorton
townhouse was her sister." Maj. Op. at 4 (emphasis added).
The record reflects this characterization is incorrect; Alvarez
neither included nor excluded Hill as being in the townhouse.
At most, Alvarez’s testimony indicates she had no first-hand
knowledge because she was not at the townhouse, and that
she believed her sister may be there.

Here, Alvarez was at work, and thus had no way of ensur-
ing the veracity of her statements to the police. Instead, she
26 UNITED STATES v. HILL
could only offer her belief based on the information she
believed to be true at the time. Significantly, and contrary to
the majority opinion’s interpretation of her statements, Alva-
rez offered no tangible information that would lead the police
to conclude Hill could not be inside the residence. Viewing all
the circumstances, courts have held there to be a reasonable
belief to proceed with entering a residence even where an
individual on-the-scene states that the suspect is probably —
or even definitively — not inside, where other circumstances
support a contrary conclusion. See e.g., Veal, 453 F.3d at 166
(concluding "reason to believe" existed despite suspect’s wife
answering the door and informing the police that her husband
was not at home); Lloyd, 396 F.3d at 952 (concluding "reason
to believe" existed despite a neighbor telling the officers he
did not think the suspect was home even though he had been
there earlier in the day).

At bottom, the majority’s review of the factual basis for the
officers’ determination that Hill was inside the Lorton town-
house does not accurately and fully reflect the facts developed
in the district court and does not state those facts in the light
most favorable to the Government. Properly viewed, the
record below established at least the following facts:

• Hill had fled police at the Lorton townhouse
twelve days earlier;

• No one responded to the officers’ repeated, loud
knocks and announcement as to their presence;

• The townhouse was small and laid out in such a
way that an individual inside should hear the
knocks;

• Police heard noises — voices or possibly the tele-
vision — inside the townhouse, and at one point
an officer believed he heard a lock turning; and
 UNITED STATES v. HILL 27
• Alvarez was not at the Lorton townhouse, but
thought that her sister may have been inside.

In addition to these facts, at least two permissible inferences
also existed — Hill would most likely not respond to the
police if he was inside the residence, and Alvarez’s sister had
no known reason not to answer the door.

III.

The foregoing facts, viewed in light of the Supreme Court’s
instruction in Payton, lead me to conclude that the district
court did not err in holding that the police had reason to
believe Hill was inside the Lorton townhouse at the time they
entered. Although there is scant Fourth Circuit precedent
available, persuasive authority from other Circuit Courts of
Appeals is helpful in applying the standard set forth in Pay-
ton.

At the outset, I note that the majority opinion wrongly
articulates how courts are to assess whether the police had
reason to believe the suspect was inside the residence. It states
that courts within the Fourth Circuit "have sanctioned entry
only where multiple facts support a reason to believe that the
subject of the arrest warrant is present at the time of entry."
Maj. Op. at 8. The first case referenced, United States v.
Young, 609 F.3d 348 (4th Cir. 2010), is inapposite because the
parties did not dispute that the police had reason to believe the
subject of the arrest warrant was present. Id. at 353 ("Young
does not contend . . . that the police lacked reason to believe
he was inside the house."). The only issue in the case was
whether a twenty-second delay between the "knock and
announce" and entry was sufficient. Id. No reading of Young
can sustain it as authority for the proposition stated by the
majority.

The second case cited, United States v. Morgan, No. 92-
5068, 1992 U.S. App. LEXIS 20235, at *2 (4th Cir. Aug. 24,
28 UNITED STATES v. HILL
1992) (unpublished), is unpublished, and of course lacks pre-
cedential weight. Moreover, a case where the defendant is
observed running toward his house just before the police then
observe lights in the house turning off, hardly sets out the
outer limits of the Payton inquiry. Id. Payton does not hold,
and indeed no court applying it has ever held, that the police
must have seen the defendant nearby or have actual knowl-
edge that he is inside a residence before they can enter. See,
e.g., Gay, 240 F.3d at 1227 ("The officers are not required to
actually view the suspect on the premises.") (citation omit-
ted); Valdez, 172 F.3d at 1226 ("Direct surveillance or the
actual viewing of the suspect on the premises is not
required."); United States v. Terry, 702 F.2d 299, 319 (2d Cir.
1983) (noting that the Second Circuit previously "rejected the
contention that the police must first conduct a thorough inves-
tigation to obtain evidence of an arrestee’s actual presence
before entering his residence.").

Instead, as Payton and courts in other circuits have
observed, the test is a totality-of-the-circumstances analysis.
The analysis does not require a court to find a certain number
of facts, and could be based on one fact bearing sufficient
gravitas. We are not called to itemize the factors favoring and
opposing the conclusion purely to assess which side is greater
in number. Instead, as the Tenth Circuit noted in Valdez, we
are called to be

sensitive to common sense factors indicating a resi-
dent’s presence. Direct surveillance or the actual
viewing of the suspect on the premises is not
required. Indeed, the officers may take into account
the fact that a person involved in criminal activity
may be attempting to conceal his whereabouts. The
suspect’s presence may be suggested by the presence
of an automobile, the time of day, observing the
operation of lights or other electrical devices, and the
circumstances of a suspect’s employment. And the
officers may consider an absence of evidence the
 UNITED STATES v. HILL 29
suspect is elsewhere. No single factor is, of course,
dispositive. Rather, the court must look at all of the
circumstances present in the case to determine
whether the officers entering the residence had a rea-
sonable belief that the suspect resided there and
would be found within.

172 F.3d at 1226 (internal quotation marks and citation omit-
ted).

Here, as detailed above, the police had sufficient reason to
believe Hill was inside the townhouse based on several pieces
of information. This is not the situation identified in the
majority opinion where the police "solely rel[ied] on an
unidentified noise coming from within the home" as the basis
for their entry. Maj. Op. at 9. The officers knew Hill would
likely try to hide from them because he had fled the residence
a few days before upon seeing police approach the town-
house. They had a reasonable basis on which to conclude that
an individual inside the house would hear their knocks, they
heard noises like voices emanating from inside the home, and
Alvarez was not at home to confirm or deny Hill’s presence.
Similarly, as the district court found, if Alvarez’s sister was
present, she had no reason not to answer the door, while Hill
had every reason not to do so. The police were not required
to ascertain that Hill was, in fact, inside the residence; they
are only required to have "reason to believe" he was there.
Viewed in the totality, this record satisfies the standard set
forth in Payton.

For the foregoing reasons, I respectfully dissent. I would
affirm the district court’s judgment finding that the entry sat-
isfied the requirements of the Fourth Amendment.3 As to the
3
Since the police entry satisfied Payton, I do not believe it is necessary
to address the district court’s alternative holding that the police were justi-
fied in entering based on exigent circumstances, although I concur with
the majority’s analysis in section II.B. that the district court erred in that
analysis.
30 UNITED STATES v. HILL
second issue Hill raises on appeal, I concur with the majori-
ty’s conclusion in section II.C. as to the validity of the con-
sent Alavarez gave to police to search her residence. Because
I conclude that the initial entry and protective sweep were
constitutional, the taint issue raised by the majority is not
before the court.4 I would therefore affirm the district court’s
denial of Hill’s motion to suppress the evidence seized from
the Lorton townhouse and would affirm the judgment ren-
dered.

4
Even if a remand to consider the "taint" issue were appropriate, it is an
issue never raised to, argued in, or addressed by the district court. The
majority’s speculation on what the district court should do on remand is
thus unnecessary and speculative.