United States v. Shrum

FILED
United States Court of Appeals
Tenth Circuit

November 15, 2018
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 17-3059
WALT JASPER SAMUEL SHRUM,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 6:15-CR-10032-JTM-1)

Daniel T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public Defender
and Timothy J. Henry, Assistant Federal Public Defender, with him on the briefs),
Kansas City, Kansas, for Defendant-Appellant.

Jared S. Maag, Assistant United States Attorney (Thomas E. Beall, United States
Attorney, with him on the brief), Topeka, Kansas, for Plaintiff-Appellee.

Before MATHESON, BALDOCK, and EID, Circuit Judges.

BALDOCK, Circuit Judge.

Following the unexpected death of Defendant Walt Shrum’s common law

wife at the couple’s home around 5:30 a.m. on March 11, 2015, police officers in

Kingman, Kansas “secured” the home, prohibiting Defendant access. Approximately

three hours later and without access to his home, Defendant signed a consent to
search form permitting an investigator from the Kingman County Sheriff’s Office

(KCSO) to enter his home for the express purpose of retrieving his deceased wife’s

medication in anticipation of an autopsy. While in the home, the investigator saw

ammunition in plain view inside an open bedroom closet. After returning to

headquarters, the investigator learned Defendant was a convicted felon and recalled

seeing the ammunition in the closet. Several hours later, the investigator, based on

what he had seen and learned, contacted a federal agent and asked him to obtain a

search warrant for Defendant’s home. A federal magistrate judge issued the warrant

at 10:00 p.m. A late night search of the home, which local authorities still would

not permit Defendant to access, uncovered not only the ammunition but also two

loaded firearms and 4.4 grams of suspected methamphetamine.

A grand jury subsequently charged Defendant with two counts of being a felon

in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), one count of being

a felon in possession of ammunition, again in violation of § 922(g)(1), and one count

of possessing methamphetamine in violation of 21 U.S.C. § 844(a). Following the

district court’s denial of his motion to suppress the incriminating evidence used to

charge him, Defendant entered a conditional guilty plea to one count of being a felon

in possession of a firearm. After receiving a sentence of time served, Defendant

appealed the district court’s denial of his motion to suppress. Our jurisdiction arises

under 28 U.S.C. § 1291. This appeal presents us with two questions: Did the initial

securing of Defendant’s home constitute an unreasonable seizure in violation of the

2
Fourth Amendment? And if so, did such seizure taint the incriminating evidence

ultimately uncovered in the warrant search of his home? We answer both questions

yes, and reverse.

I.

The historical facts are not in dispute. Defendant and his wife Candice Hill

were at their home in the early morning hours of March 11, 2015. Candice, who

had just showered, was not feeling well. Shortly after telling Defendant she was

very hot, she experienced a seizure and lost consciousness. At 4:54 a.m., Defendant

phoned 911 to report a medical emergency. Defendant informed the 911 operator

that Candice was thirty years old, was not breathing, and may have overdosed on

prescription medication. Within five minutes, Captain Paul Hinton of the Kingman

Police Department (KPD) arrived on the scene. Defendant was performing CPR on

Candice in the bedroom. Captain Hinton relieved Defendant until EMS arrived at

5:11 a.m. About twenty-five minutes later, the ambulance, accompanied by everyone

at the scene including Defendant, departed for the hospital a short distance away.

Medical authorities pronounced Candice dead at 5:45 a.m.

According to a “Crime Scene Entry Log Sheet,” KPD Sergeant Travis Sowers

“secured” Defendant’s home after arriving on the scene at 6:19 a.m. Sergeant

Sowers next phoned Dustin Cooke, an investigator with the KCSO. A few minutes

later, Investigator Cooke received a call from the KCSO assigning him the case. The

police dispatch report indicates Investigator Cooke arrived at the hospital around

3
6:49 a.m. At the suppression hearing, Investigator Cooke testified as to the initial

information he received on the incident: “I was told that they had a 30-year-old

female that . . . it was initially a medical call, and that it needed to be investigated

until otherwise; that it was not a suspicious death.” (emphasis added).

Investigator Cooke asked Defendant, who had not yet returned home but

remained at the hospital with Candice’s body, to accompany him to the Kingman

County Law Enforcement Center to discuss the circumstances surrounding her death.

Defendant agreed. When later questioned about any information he may have had

at this point regarding the cause of Candice’s death, Cooke responded, “I didn’t have

anything.” Investigator Cooke escorted Defendant to a small interview room where

he began questioning him shortly after 7:00 a.m. The audio tape recording of the

interview reveals Defendant was coherent but frequently overwrought with emotion.

Cooke permitted Defendant to make and receive phone calls during the interview.

About thirteen minutes into the interview, Defendant phoned a female friend he

identified as Teresa. When Teresa told Defendant that she “might be over sometime

this morning,” Defendant stated, “I ain’t home yet because they ain’t lettin’ me go

home yet. I’m up here at the Sheriff’s Office.” Defendant told Investigator Cooke

that he wanted an autopsy performed to determine the cause of Candice’s death.

The interview lasted until around 9:20 a.m. with a thirty minute break

beginning about 8:37 a.m. During the break, Investigator Cooke learned that the

coroner had inquired about Candice’s medication as well as other medication in the

4
home. Shortly after the interview resumed around 9:05 a.m., Investigator Cooke told

Defendant the autopsy was scheduled for 1:30 p.m. that day in nearby Wichita.

Cooke stated he would need to retrieve Candice’s medication to determine if she took

too many pills before she seized. He also told Defendant he wanted to help

Defendant get his dogs out of the home. Defendant said he would cooperate because

he wanted to know why Candice died. He mentioned she may have overdosed on

Adderall. Investigator Cooke told Defendant he was going “to ask for your consent

to get her medication.” Defendant responded with a question: “You gonna go with

me?” Cooke answered, “Yeah, and we’re gonna go here in just a second.”

Investigator Cooke also informed Defendant, “I’m gonna go ahead and hold

onto your house as a scene, okay, until I get done with the autopsy.” Defendant

responded, “That’s fine, cause I told the landlord . . . and he said any way he

could help me, he said don’t worry about nothin’.” At the suppression hearing,

Investigator Cooke described the discussion:

Q. And at some point did you advise Mr. Shrum that you
needed to hold onto the house, at least for that day?
A. Yes.
Q. Why did you say that?
A. Just because there was a 36-year-old female that just goes
into a code is not a common—it’s not a normal death. It
does happen, but we have to investigate as to why that
happened, so securing anything that may have given us
information into that was the reason for the scene being
held.
Q. All right. And did you tell Mr. Shrum that you were going
to need to hold onto the house for a little while?
A. Yes I did.

5
 Q. And what was his response to that?
A. Anything that I can do to help. . . .

Investigator Cooke told Defendant he was “going to do what’s called a consent

to search and I’m just going in to retrieve the medication.” Defendant quickly

responded, “I can’t do it unless I have an attorney go over it.” Defendant then began

to sob, “I wanna know what happened to her. I ain’t got nothin’ to hide from you

people. She’s my baby, she’s my everything. I know you have to.” 1 For the next

few minutes, Investigator Cooke and Defendant discussed Candice’s ex-husband and

family before Cooke returned to the topic of Defendant’s home: “Let’s run over to

the house. Let’s get your dogs. Let’s get the medication.” Defendant suggested he

feed his dogs and leave them in the house but Cooke told him the dogs could not stay

there: “I don’t want to leave them in the house not being taken care of.” Cooke

explained to Defendant, “Well, I’m hoping that this is a temporary thing maybe not

but through the end of this afternoon, um, to know what’s going on.”

Defendant sobbed some more while he reminisced about Candice and

how much he missed her. Investigator Cooke again returned the conversation to

Defendant’s home: “Let’s go get your dogs. Let’s get this medication. And that

way I can start moving forward with today and getting to the autopsy and getting the

1
At the suppression hearing, Investigator Cooke testified that after Defendant
mentioned he wanted an attorney to review the consent form, Defendant “in what
was a joking manner to me initially was, quote, ‘Shit, I’m just kidding,’ and we
moved on.” Defendant’s reported statement is inaudible on the interview tape.

6
meds to the doctor and stuff like that . . . .” Defendant again expressed concern that

Candice may have taken too many pills and told Cooke one of her medicine bottles

was empty. Investigator Cooke asked if the empty bottle was in the house and

Defendant said he believed so. Cooke inquired as to the location of the bottle,

reminding Defendant, “I can’t let you go in the house. I’ll just tell you I can’t let

you go in the house, but if you’ll tell me where that stuff is.” Defendant responded

that his medication was on the kitchen counter and Cooke stated he wanted to

retrieve Defendant’s medication as well. The two men then discussed the location

of Candice’s medication. Defendant thought it might be on the bedside table in

the master bedroom. Investigator Cooke stated: “I’ll look when we get over there

but I want you to go with me. I’ll have you sign this consent so I can get your

medication, her medication, . . . .”

The KPD Crime Scene Entry Log shows Investigator Cooke, Defendant, and

Defendant’s friend, Denise Niederman, arrived at Defendant’s home at 9:30 a.m.

Investigator Cooke placed the consent to search form on the hood of his squad car.

Cooke wrote “Retrieve Medication” on the form. He read and explained the form to

Defendant. Defendant indicated he understood, signed the form, and provided Cooke

a key for entry. At some point, Defendant asked Investigator Cooke if he could go

inside his home to urinate. Cooke said no and later acknowledged he forced

Defendant to “relieve himself outside the house where there were other people

standing around.” Once inside the home, Investigator Cooke let the dogs out and

7
retrieved Defendant’s walking stick. Consistent with the information he obtained

from Defendant during the interview, Cooke found prescription medication in the

kitchen and in the master bedroom. Cooke gave Defendant his medication and kept

Candice’s medication for the coroner.

Investigator Cooke was inside Defendant’s home between ten and fifteen

minutes. The entry log shows Cooke departed the scene at 10:05 a.m. while

Defendant and Niederman departed at 10:07 a.m. The log indicates Cooke entered

the home to “retrieve medications / dogs.” Neither Defendant nor Niederman were

permitted to enter the home. While in the home, Cooke took fifty-six photographs

of the kitchen and bedroom from various angles. 2 One of the photographs depicted

ammunition in plain view in the bedroom closet. Cooke testified the closet door was

open when he entered the bedroom. Back at headquarters prior to the scheduled

autopsy, another officer reminded Cooke that Defendant was a convicted felon:

Q. At some later point did you realize that Mr. Shrum was a
convicted felon?
A. I did, and there was two things that kind of sparked that:
One, you heard in the interview where it come to my
recollection and he even said it was almost six years ago
that he and I had talked; and then the other officer that
actually was assigned to that case made a comment, he
says, you know, I think he was a felon and then it dons
[sic] on me, wait a second, I saw ammo in the house. So
I go back to my pictures and I’m like, there’s the

2
Investigator Cooke testified he took the photographs to (1) document the
items he collected and (2) document that he did not remove items other than
medication from the home.

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 ammunition, and that’s what led into this investigation.[3]

Investigator Cooke attended Candice’s autopsy in Wichita that afternoon at

1:30 p.m. 4 The autopsy lasted approximately two hours. That evening, Cooke

contacted Agent Neil Tierney from the Wichita branch of the Bureau of Alcohol,

Tobacco, Firearms, and Explosives (ATF). Cooke asked Tierney to obtain a search

warrant for Defendant’s home based on the ammunition in Defendant’s closet and

his status as a convicted felon. A federal magistrate judge issued the warrant at

10:00 p.m. The Crime Scene Entry Log indicates three ATF agents, including Agent

Tierney, accompanied by Investigator Cooke and Sergeant Sowers, executed the

warrant beginning at 11:18 p.m. The search concluded at 1:20 a.m. on March 12,

2015. According to the Justice Department’s “Report of Investigation,” law

enforcement seized the following items from Defendant’s home: (1) a loaded 12-

gauge pump shotgun, (2) a loaded .45-caliber semi-automatic rifle, (3) an additional

806 rounds of live ammunition, (4) six glass paraphernalia pipes with residue, and

(5) approximately 4.4 grams of suspected methamphetamine.

II.

3
Defendant’s Presentence Report indicates he was convicted in 2001 of
making false statements to the federal government and in 2003 of being a felon in
possession of a firearm. In 2010, Defendant’s criminal conduct came to the attention
of the KPD when he was charged with misdemeanor theft of a lawn mower by
deception.
4
According to the district court, the autopsy found the cause of Candice’s
death to be methamphetamine intoxication.

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 Prior to the suppression hearing, the focus of Defendant’s motion to suppress

was his purported consent to search the home and the scope of this consent. But

Defendant also argued, albeit inartfully, that law enforcement illegally seized his

home immediately after Candice’s death. Following the hearing, the district court

provided some “preliminary thoughts” to the parties that also focused on Defendant’s

consent and its scope. When asked if additional briefing was necessary before the

court rendered its decision, defense counsel reminded the court that one of

Defendant’s prior arguments was that the police seized his home without a warrant

from very early in the morning until very late at night on the day of Candice’s death:

“I would submit . . . that a big part of the motion is not just what happened inside

[the home], . . . but the bottom line is . . . that they secured that house, prevented

[Defendant] access, . . . and that simply cannot be done without a warrant . . . .”

The court subsequently granted Defendant’s request for further briefing. In

his supplemental brief, Defendant quoted directly from the Supreme Court’s decision

in Segura v. United States, 468 U.S. 796, 804–05 (1984), which in turn quoted from

Wong Sun v. United States, 371 U.S. 471, 488 (1963):

Evidence obtained as a direct result of an unconstitutional search or
seizure is plainly subject to exclusion. The question to be resolved
when it is claimed that evidence subsequently obtained is “tainted” or
is “fruit” of a prior illegality is whether the challenged evidence was
“come at by exploitation of [the initial] illegality or instead by means
sufficiently distinguishable to be purged of the primary taint.”

(citation omitted) (brackets and emphasis in original). Defendant concluded by

10
explaining: “Although Segura ultimately upheld the search in that case, its analysis

and reasoning support an opposite conclusion here . . . . The later search is indelibly

tied to the initial illegal seizure of [Defendant’s] home . . . .” 5

In denying Defendant’s motion to suppress, however, the district court never

asked whether an illegal seizure tainted Defendant’s consent to search and the

incriminating evidence Investigator Cooke witnessed as a consequence thereof, a

taint in turn sufficient to invalidate the subsequent search warrant and its “fruits.”

Instead, the court held the seizure of Defendant’s home did not violate the Fourth

Amendment 6:

[G]iven the unexpected death of [Candice], the subsequent
establishment of probable cause after Investigator Cooke observed the
ammunition and learned of defendant’s felon status, and the time it took
to coordinate between state and federal law enforcement to secure a
search warrant, the court finds that the “seizure” of defendant’s
residence was reasonable under the Fourth Amendment.

5
Wong Sun, of course, established the “fruit of the poisonous tree” doctrine
which we will have more to say about shortly. In Segura, the Supreme Court
rejected application of the doctrine and held that despite an illegal entry into a home,
the Fourth Amendment did not require suppression of evidence seized later from the
home pursuant to a valid search warrant issued on information the police obtained
before entry into the home. “[T]he exclusionary rule has no application where the
Government learned of the evidence ‘from an independent source.’” Segura, 468
U.S. at 805 (brackets omitted) (quoting Wong Sun, 371 U.S. at 487).
6
The district court also held Defendant’s subsequent consent to a limited
search of his home was knowing and voluntary, and Investigator Cooke did not
exceed the scope of this consent by photographing the interior of Defendant’s home.
The court concluded, however, that even if Cooke exceeded the scope of Defendant’s
consent by taking photos, Cooke’s observation of the ammunition alone, apart from
any photographs, established probable cause for issuance of the search warrant.

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 III.

The Fourth Amendment provides in relevant part: “The right of the people

to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no Warrants shall issue, but upon

probable cause . . . .” U.S. Const. amend. IV. A defendant seeking to suppress

evidence based on a warrantless seizure of his property bears the burden of proving

the same. 7 United States v. Carhee, 27 F.3d 1493, 1496 (10th Cir. 1994); see also

United States v. Hernandez, 847 F.3d 1257, 1263 (10th Cir. 2017) (recognizing that

a defendant bears the burden of proving whether and when the Fourth Amendment

was implicated). If the defendant meets his burden of establishing a warrantless

seizure, the burden then shifts. The Government must establish the warrantless

seizure was reasonable. Carhee, 27 F.3d at 1496; see also United States v.

Finefrock, 668 F.2d 1168, 1170 (10th Cir. 1982) (recognizing that when a defendant

challenges a warrantless seizure, the Government bears the burden of justifying its

actions). Where, as here, the underlying facts are undisputed, we review de novo the

question of whether those facts establish a warrantless seizure within the meaning

of the Fourth Amendment and, if necessary, the question of when such seizure

occurred. United States v. Roberson, 864 F.3d 1118, 1121 (10th Cir. 2017). We also

review de novo the ultimate determination of reasonableness under the Fourth

7
The controlling standard of proof at a suppression hearing is proof by a
preponderance of the evidence. Nix v. Williams, 467 U.S. 431, 444 n.5 (1984).

12
Amendment. United States v. De La Cruz, 703 F.3d 1193, 1195–96 (10th Cir. 2013).

A.

The Supreme Court has told us a Fourth Amendment “seizure” occurs “when

there is some meaningful [government] interference with an individual’s possessory

interests in . . . property.” United States v. Jacobsen, 466 U.S. 109, 113 (1984); see

also United States v. Hill, 805 F.3d 935, 937 (10th Cir. 2015). Given the Supreme

Court’s description of a seizure, we have little difficulty concluding local law

enforcement in Kingman, Kansas seized Defendant’s home no later than 7:02 a.m.

on March 11, 2015. The police dispatch report indicates Sergeant Sowers arrived at

Defendant’s home at 6:19 a.m. The KPD Crime Scene Entry Log indicates he

promptly began securing the scene upon arrival. According to the dispatch report,

the police were still “securing [the] scene” at 7:00 a.m., and had commenced a

“criminal death investigation” by 7:02 a.m. By this time if not before, the police had

asserted “dominion and control” over Defendant’s home (and effectively everything

within it) as part of their investigation into Candice’s death. See Jacobsen, 466 U.S.

at 120 & n.18.

The Government says the police “understandably” secured Defendant’s home

from the outside. The police never entered the interior of Defendant’s home, let

alone searched it, prior to Defendant’s subsequent consent to search. But how

these observations bear on the question of whether a Fourth Amendment

seizure—defined as a meaningful interference with an individual’s possessory

13
interests in property—occurred when police secured Defendant’s home immediately

following Candice’s death escapes us. We see little difference between a perimeter

stakeout and internal securing of a home from the standpoint of a Fourth Amendment

seizure. Both interfere to the same extent with the possessory interests of those

entitled to occupy the dwelling. See Segura, 468 U.S. at 811 (plurality). The

Government cannot reasonably dispute that the “securing” of Defendant’s home

during the early morning hours of March 11, 2015 infringed not only on his

possessory interest in the home but also on his liberty interest in free movement. See

United States v. Place, 462 U.S. 696, 708 (1983). The police deprived Defendant of

his ability to access his home for his own purposes, in his own way, on his own time,

and at a location where concerned friends and well-wishers would surely come

calling. Cf. California v. Hodari D., 499 U.S. 621, 624 (1991) (“From the time of

the founding to the present, the word ‘seizure’ has meant a “taking possession[.]”).

The Supreme Court reminded us just this past term that “when it comes to the

Fourth Amendment, the home is first among equals. At the Amendment’s very core

stands the right of a man to retreat into his own home and there be free from

unreasonable governmental intrusion.” Collins v. Virginia, 138 S. Ct. 1663, 1670

(2018) (citations and quotation marks omitted); see also Wong Sun, 371 U.S. at 484

(recognizing the “fundamental constitutional guarantee[] of sanctity of the home”).

The right to retreat into one’s abode following the unexpected death of a loved one

would ring hollow if law enforcement could simply “secure” the home under the

14
auspices of a “criminal” investigation and exclude one therefrom without

constitutional implication upon the, in the words of Investigator Cooke, “not normal”

death of a household member. “‘[A] man’s house is his castle,’ whether it is under

siege by police officers prying into his possessions stored within or whether they

exclude him from its sanctuary.” United States v. Song Ja Cha, 597 F.3d 995, 1002

(9th Cir. 2010) (citation omitted) (quoting Payton v. New York, 445 U.S. 573, 598

(1980)).

B.

Of course, not every seizure at the hands of government officials violates the

Fourth Amendment. Only unreasonable seizures are proscribed. Brigham City v.

Stuart, 547 U.S. 398, 403 (2006). At its inception, a seizure must be reasonable to

comport with the Fourth Amendment. Roberson, 864 F.3d at 1121. The seizure must

then remain reasonable “throughout its duration and in the entirety of its scope.”

United States v. Martinez, 518 F.3d 763, 766 (10th Cir. 2008). The reasonableness

of police conduct turns on the facts and circumstances of each case viewed in the

light of established Fourth Amendment principles. Ohio v. Robinette, 519 U.S. 33,

39 (1996); see also United States v. Rabinowitz, 339 U.S. 56, 83 (1950) (Frankfurter,

J., dissenting). In particular, to determine whether the seizure of Defendant’s home

in this case was reasonable we need look no further than the Fourth Amendment

principles established in Illinois v. McArthur, 531 U.S. 326 (2001).

In McArthur, the complaining witness told a police officer that the defendant,

15
her ex-boyfriend, had “dope” in his trailer. When the defendant refused the officer’s

request to search, the officer told the defendant, who was outside the trailer, that he

could not reenter the trailer unless accompanied by an officer. Another officer

returned with a search warrant less than two hours later. The search uncovered a

small amount of marijuana under the sofa. The defendant moved to suppress this

evidence, reasoning the evidence was the “fruit” of the unlawful seizure of his

trailer. The Court held, however, that a police officer could lawfully prevent the

defendant from entering his trailer while another officer diligently obtained a search

warrant. Id. at 328. The Court explained that excluding the defendant from his

trailer was reasonable in light of the following circumstances: (1) the police had

probable cause to believe the defendant’s trailer contained evidence of a crime,

namely his possession of illegal drugs; (2) the police had good reason to fear the

defendant might destroy the evidence before they procured a warrant; (3) the police,

by only preventing the defendant from entering his trailer unaccompanied, made

reasonable efforts to reconcile their law enforcement needs with the demands of

personal privacy; and (4) the police excluded the defendant from his trailer for a

limited time, namely two hours. Id. at 331–33.

McArthur plainly teaches us a police officer armed with probable cause to

believe a home contains evidence of a serious crime that might otherwise be

destroyed may lawfully secure the home and restrict entry while waiting for an

assisting officer to diligently procure a search warrant. See id. at 333–34; see also

16
Segura, 468 U.S. at 798. But here, unlike in McArthur, the Government has never

suggested that probable cause (or any form of articulable suspicion for that matter)

justified the initial seizure of Defendant’s home. And we have news for the

Government. No such thing as a “crime scene exception,” let alone an “unexplained

death scene exception,” to the Fourth Amendment exists. See Flippo v. West

Virginia, 528 U.S. 11, 13–14 (1999) (declining to recognize a crime scene exception

to the Fourth Amendment). In the context of a home seizure, “the mere fact that law

enforcement may be made more efficient can never by itself justify disregard of the

Fourth Amendment[’s]” probable cause requirement. Mincey v. Arizona, 437 U.S.

385, 393 (1978) (holding a warrantless search of the defendant’s apartment was not

permissible simply because a murder recently occurred there).

Neither, unlike in McArthur, has the Government ever suggested that some

sort of exigency justified the seizure of Defendant’s home. Absent valid consent, the

warrantless seizure of a home even in the presence of probable cause “is per se

unreasonable, unless the police can show that it falls within one of a carefully

defined set of exceptions based on the presence of ‘exigent circumstances.’”

Coolidge v. New Hampshire, 403 U.S. 443, 474–75 (1971); see also Brigham City,

547 U.S. at 403. At the suppression hearing, Investigator Cooke stated that when

Defendant’s home was “secured” on the morning of Candice’s death, he “didn’t have

anything” other than a death that was “not normal.” Moreover, Cooke previously

explained that the initial report he received was “it was not a suspicious death.” In

17
other words, the police, according to the record before us, had no knowledge of any

facts suggesting Defendant or his now-deceased wife were engaged in criminal

wrongdoing inside their home. And at least in the context of Fourth Amendment

jurisprudence, the police certainly never have good reason to fear the destruction of

incriminating evidence of which they have no particularized knowledge.

Nor did the police in this case, again unlike in McArthur, make any effort to

reconcile their law enforcement needs with Defendant’s Fourth Amendment interests

in his home as a place of refuge, privacy, and comfort. See Place, 462 U.S. at 703.

This seizure was not minimally intrusive; rather it was the commencement of a

fishing expedition to see what sort and how big of fish the police might catch. The

police completely disregarded Defendant’s constitutional rights and seized his home

so they could find out, again in the words of Investigator Cooke, “what’s going on.”

Inexplicably, Cooke would not even allow Defendant supervised entry into his own

home to urinate. For reasons unclear to us apart from Investigator Cooke’s

preference and convenience, the seizure extended over a period of eighteen hours

even though probable cause arose sometime around 11:00 a.m. or about four hours

into the investigation. By then, Cooke had seen the ammunition inside the bedroom

closet and learned of Defendant’s felony status and had all the probable cause he

needed to procure a search warrant. ATF agents at the behest of Cooke, however,

did not procure a warrant until eleven hours later or 10:00 p.m.

In addition to Candice’s unexplained death, which in itself was no basis for

18
seizing Defendant’s home, the district court provided two ex post facto rationales to

justify the initial seizure. The first rationale was “the subsequent establishment of

probable cause after Investigator Cooke observed the ammunition and learned of

defendant’s felon status.” In answer to this we can only say a Fourth Amendment

seizure unlawful at its inception “does not change character from its success.”

United States v. Di Re, 332 U.S. 581, 595 (1948). The initial legality of a seizure

turns on the facts and circumstances known to the police at the time of the seizure

rather than on facts and circumstances subsequently discovered. United States v.

Cantu, 405 F.3d 1173, 1178 (10th Cir. 2005); see also Wong Sun, 371 U.S. at 484

(recognizing the Supreme Court has “consistently rejected” the proposition “that a

search unlawful at its inception may be validated by what it turns up”).

The court’s second rationale to justify the seizure was “the time it took to

coordinate between state and federal law enforcement to secure a search warrant.”

As for this rationale, we simply observe that the time taken to procure a warrant

to search a previously seized home has no bearing on the legality of the home’s

initial seizure. Rather, the time taken to procure a warrant bears upon the continuing

reasonableness of a seizure reasonable at its inception. See Segura, 468 U.S. at

812 (plurality) (recognizing a seizure reasonable at its inception may become

unreasonable as a result of its duration); see also United States v. Villa-Chaparro,

115 F.3d 797, 801–03 (10th Cir. 1997) (separately addressing the questions of

whether a seizure was reasonable at its inception and whether that seizure became

19
unreasonable based on its duration). The time taken to procure a warrant, no matter

how brief, does not turn a seizure unreasonable at its inception into a reasonable

seizure. An unreasonable warrantless seizure of one’s home, that is, a seizure

unsupported by probable cause and exigent circumstances at the outset, does not

become reasonable based on after-the-fact rationales.

IV.

Having held without any difficulty that law enforcement’s initial securing of

Defendant’s home on the morning of Candice’s death constituted an unreasonable

seizure in violation of the Fourth Amendment, we are now prepared to consider the

effect of this illegal seizure on what followed. 8 A defendant has the initial burden

of establishing a causal connection between an illegal seizure and the evidence he

seeks to suppress. United States v. Torres-Castro, 470 F.3d 992, 999 (10th Cir.

2006). Specifically, the defendant must establish the incriminating evidence “would

not have come to light but for the illegal [seizure].” Wong Sun, 371 U.S. at 488

(emphasis added). “But for” causation, however, is only a necessary condition for

suppression; it is not sufficient. Torres-Castro, 470 F.3d at 999. Once a defendant

establishes “but for” causation, the Government may still avoid suppression. Id. At

this point, the relevant inquiry becomes whether the Government has proven the

8
Quite frankly, this would have been a much more straightforward case both
in the district court and here if the Government had conceded the obvious, that is, the
unconstitutionality of the initial seizure of Defendant’s home.

20
incriminating evidence was discovered by means sufficiently distinguishable from

the initial illegality to be purged of the primary taint. Wong Sun, 371 U.S. at 488.

This latter inquiry is tied to the aims and costs of the exclusionary rule. “The

fact that a Fourth Amendment violation occurred . . . does not necessarily mean that

the exclusionary rule applies.” Herring v. United States, 555 U.S. 135, 140 (2009).

The exclusionary rule is not a constitutional right but a prudential doctrine that the

Supreme Court has created to compel respect for Fourth Amendment guarantees.

Davis v. United States, 564 U.S. 229, 236 (2011). “The rule’s sole purpose . . . is

to deter future Fourth Amendment violations.” Id. at 236–37. Before exclusion

is appropriate, the deterrence benefits of suppression must outweigh the rule’s

“costly toll upon truth-seeking and the law enforcement objectives” of apprehending

criminals and protecting the public. Herring, 555 U.S. at 141.

Where an unlawful seizure of a home precedes a “consensual” search of the

home and the discovery of incriminating evidence then used to procure a search

warrant, the Government’s burden to prove the primary taint of the illegality

has been purged, i.e., that the search warrant and its “fruits” are valid, is two-fold.

See Murray v. United States, 487 U.S. 533, 540 (1988) (recognizing that evidence

discovered as a result of an unlawful entry “cannot be used to establish probable

cause before a magistrate”). The Government must prove the voluntariness of a

defendant’s consent consistent with the principles set forth in Schneckloth v.

Bustamonte, 412 U.S. 218 (1973). But in addition, the Government must

21
demonstrate a break in the causal chain somewhere between the illegality and

discovery of the incriminating evidence used to support the defendant’s prosecution.

United States v. Fox, 600 F.3d 1253, 1257 (10th Cir. 2010). Professor LaFave

explains that while the Government’s dual burdens may overlap, “it is extremely

important to understand that (i) the two tests are not identical, and (ii) consequently

the evidence obtained by the purported consent should be held admissible only if it

is determined that the consent was both voluntary and not an exploitation of prior

illegality.” Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth

Amendment § 8.2(d) at 101 (5th ed. 2012) (emphasis in original). This means “the

fruit of the poisonous tree doctrine [may] also extend[] to invalidate consents which

are voluntary” in the traditional sense. 9 Id. § 8.2(d) at 102 (emphasis in original);

see Florida v. Royer, 460 U.S. 491, 495, 501, 507–08, 509 (1983) (plurality plus

Brennan, J., concurring) (holding an illegal seizure of the defendant tainted

his subsequent consent to search without questioning the trial court’s ruling that

his consent was “freely and voluntarily given”). We require the Government to

demonstrate a break in the causal chain for two reasons. United States v. Melendez-

Garcia, 28 F.3d 1046, 1054 (10th Cir. 1994). First, we are concerned the illegal

seizure may have affected the voluntariness of the defendant’s consent that led to

9
In Schneckloth, the Supreme Court addressed the question of “what must
the prosecution prove to demonstrate that a consent was ‘voluntarily’ given.”
Schneckloth, 412 U.S. at 223. Notably no police misconduct preceded the consent
to search in that case.

22
discovery of the incriminating evidence. Id. (recognizing the Government has a

“heavier burden” to carry when consent follows an illegal seizure). Second, we are

bound, where appropriate, to effectuate the exclusionary rule’s deterrence principle.

Id.

A.

Because here the historical facts are undisputed and the record of the district

court proceedings, which includes Investigator Cooke’s taped interview with

Defendant, was adequately developed, we exercise our discretion to proceed. 10

Accordingly, let us commence the proper analysis by considering whether Defendant

has established “but for” causation. Justifiably apart from any unwarranted

speculation about what might have transpired if the police had not unlawfully seized

Defendant’s home, Defendant can easily meet his burden to show that but for the

illegal seizure, law enforcement would not have discovered the incriminating

evidence he seeks to suppress. If Defendant is allowed to access his home and

10
We have explained that because the district court held the initial seizure of
Defendant’s home complied with the Fourth Amendment and his subsequent consent
to search was knowing and voluntary, the court did not ask whether the challenged
evidence was “come at by exploitation of [the initial] illegality or instead by means
sufficiently distinguishable to be purged of the primary taint.” Wong Sun, 371 U.S.
at 488 (quotation marks omitted). Nonetheless, because proceedings in the district
court “resulted in a record of amply sufficient detail and depth from which th[is]
determination may be made,” we decline to remand this case so that the district court
may undertake the proper analysis in the first instance. Brown v. Illinois, 422 U.S.
590, 604 (1975); accord United States v. Fernandez, 18 F.3d 874, 881 n.7 (10th Cir.
1994).

23
retrieve the medication himself, Investigator Cooke’s entrance into the home to

retrieve the medication pursuant to Defendant’s consent to search is unnecessary.

Absent entry into the home, Investigator Cooke never sees the ammunition he

necessarily relied on to prompt the ATF to procure the search warrant, the execution

of which led directly to the incriminating evidence used to prosecute Defendant.

Next, we must determine whether the Government may avoid suppression of

the evidence notwithstanding the illegal seizure of Defendant’s home. Inevitably,

our analysis at this stage becomes much more complex. Setting aside the question

of whether Defendant’s consent was voluntary in the traditional sense under the

principles established in Schneckloth, we turn our attention to that part of the

Government’s burden requiring it to break the causal chain. Three exceptions to the

exclusionary rule address the “causal relationship between the unconstitutional act

and the discovery of evidence.” Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016). Two

of these exceptions, however, do not address whether the taint has been purged

despite “but for” causation, but rather bear upon “but for” causation itself. The

independent source doctrine permits courts to admit evidence notwithstanding a prior

illegality if law enforcement acquired the incriminating evidence from a separate,

independent source. Id. The inevitable discovery doctrine countenances the

admission of evidence that would have been discovered regardless of prior police

illegality. Id.; see Murray v. United States, 487 U.S. 533, 539 (1988) (recognizing

the latter doctrine “is in reality an extrapolation” of the former doctrine because if

24
“the tainted evidence would be admissible if in fact discovered through an

independent source, it should be admissible if it inevitably would have been

discovered” through such a source).

In this case, nothing in the record remotely suggests law enforcement obtained

the incriminating evidence against Defendant from an independent source, i.e., a

source wholly separate from the illegal seizure of Defendant’s home and what

followed therefrom. See Segura, 468 U.S. at 815 (applying the independent source

doctrine because the unlawful entry into the home “did not contribute in any way to

discovery of the evidence seized under the warrant”). Additionally, any suggestion

that the police inevitably would have discovered the incriminating evidence against

Defendant had they not initially seized his home and prohibited him access is far too

speculative. “[I]nevitable discovery involves no speculative elements but focuses

on demonstrated historical facts capable of ready verification . . . .” Nix v. Williams,

467 U.S. 431, 444 n.5 (1984). What would have transpired had the police not

illegally seized Defendant’s home from the outset and denied him access is

anybody’s guess. This leaves us to examine the third exception to the exclusionary

rule bearing upon causation—the attenuation doctrine.

The notion of attenuation or “‘dissipation of the taint’ [of the prior illegality]

attempts to mark the point at which the detrimental consequences of illegal police

action become so attenuated that the deterrent effect of the exclusionary rule no

longer justifies its cost.” Brown v. Illinois, 422 U.S. 590, 609 (1975) (Powell, J.,

25
concurring in part). This exception may apply even in the presence of “but for”

causation. Attenuation occurs “when the connection between the unconstitutional

police conduct and the evidence is remote or has been interrupted by some

intervening circumstance so that the interest protected by the constitutional guarantee

that has been violated would not be served by suppression of the evidence obtained.”

Strieff, 136 S. Ct. at 2061.

The factors the Supreme Court articulated in Brown and reiterated in Strieff

guide our determination of whether the illegal seizure of Defendant’s home tainted

the incriminating evidence or whether such taint has been purged. Brown, 422 U.S.

at 603–04; Strieff, 136 S. Ct. at 2061–62. First, we consider the temporal proximity

between the illegal seizure and discovery of the incriminating evidence used to

prosecute Defendant to determine whether time has rendered the connection between

the illegality and the evidence remote and suppression inappropriate. Strieff, 136 S.

Ct. at 2062. Second, we look for the presence of any intervening circumstances

during this time period to determine, just as we must under our first inquiry, whether

suppression would serve the interest protected by the Fourth Amendment’s

proscription against unreasonable seizures. Id. Third, “and ‘particularly’

significant,” we examine the purposes and flagrancy of the official misconduct. Id.

(quoting Brown, 422 U.S. at 604). This factor favors exclusion “only when the

police misconduct is most in need of deterrence—that is, when it is purposeful or

flagrant.” Id. at 2063. Where the district court fails to employ the Brown factors

26
and ask whether the taint of a prior illegality has been purged, but the record is

adequately developed, we may undertake our own de novo review of these factors.

Melendez-Garcia, 28 F.3d at 1054; see also supra n.10.

B.

Recall the time line in this case. Local law enforcement seized Defendant’s

home around 7:00 a.m. Defendant spent the next two and a half hours at the police

station speaking with Investigator Cooke and others. About 9:30 a.m., Defendant

signed a limited consent to search form outside his home authorizing Investigator

Cooke to enter the home and retrieve Candice’s medication. Cooke completed his

search of Defendant’s home around 10:00 a.m. By 11:30 a.m. Cooke possessed

sufficient knowledge to procure a search warrant. He knew Defendant was a

convicted felon and had ammunition in his bedroom closet. Cooke did not seek a

search warrant, however, until the early evening hours. 11 The only event of

sufficient note during the period between the establishment of probable cause that

morning and the process of procuring a search warrant that evening was Candice’s

autopsy which began at 1:30 p.m. and concluded around 3:30 p.m. A federal

11
Here we cannot help but note the affidavit in support of the search warrant
represented that “Mr. Shrum and possibly others still have access to the residence
and could remove the ammunition and other evidence if it is not located and removed
immediately. If the search warrant is not executed at night there is the possibility
that evidence of a crime could be removed or destroyed.” This representation, of
course, was simply not true but rather verifiably false and is indicative of the shoddy
course of the investigation into Candice’s death.

27
magistrate judge issued the warrant at 10:00 p.m. Three federal agents together with

Investigator Cooke and another officer executed the warrant beginning at 11:18 p.m.

or twelve hours after probable cause arose. Their search concluded at 1:20 a.m.

In Strieff, the Supreme Court observed that its “precedents have declined to

find that [the temporal proximity] factor favors attenuation unless ‘substantial time’

elapses between an unlawful act and when the evidence is obtained.” Strieff, 136 S.

Ct. at 2062 (quoting Kaupp v. Texas, 538 U.S. 626, 633 (2003) (per curiam)). The

longer the time lapse between the initial illegality and the acquisition of the

challenged evidence, especially where the evidence is verbal, the more likely such

evidence has been purged of the illegality’s primary taint, i.e., has become

attenuated. 12 Wong Sun is the best example. There the Supreme Court held that

where the defendant had been arraigned and released on his own recognizance and

then voluntarily returned several days later to make an incriminating statement, the

12
In United States v. Ceccolini, 435 U.S. 268, 276–77 (1978), the Supreme
Court cogently reasoned that attenuation analysis must account for the difference
between verbal and physical evidence:
Witnesses are not like guns or documents which remain hidden from
view until one turns over a sofa or opens a filing cabinet. Witnesses
can, and often do, come forward and offer evidence entirely of their
own volition. And evaluated properly, the degree of free will necessary
to dissipate the taint will very likely be found more often in the case of
live-witness testimony than other kinds of evidence.
In so reasoning, the Court modified its observation in Wong Sun that “the policies
underlying the exclusionary rule [do not] invite any logical distinction between
physical and verbal evidence.” Id. at 275 (brackets in original) (quoting Wong Sun,
371 U.S. at 486).

28
connection between his unlawful arrest and his statement had “become so attenuated

as to dissipate the taint.” Wong Sun, 371 U.S. at 491 (quoting Nardone v. United

States, 308 U.S. 338, 341 (1939)). In other words, the defendant’s statement on this

later date was “sufficiently an act of free will to purge the primary taint of the

unlawful [arrest].” Id. at 486.

Unlike Wong Sun, however, the facts in this case reveal Defendant had little

time to exercise “free will” between the unlawful seizure of his home and his

execution of the consent to search form two and a half hours later. See Brown, 422

U.S. at 604–05 (concluding a two hour separation between an illegal arrest and

confession without any intervening event did nothing to dissipate the taint). And

once Investigator Cooke had completed the search of Defendant’s home thirty

minutes after that, the length of time taken to procure the search warrant and execute

it rested entirely outside Defendant’s control. While most Fourth Amendment cases

such as those addressing traffic stops or arrests involve relatively brief time spans,

Defendant’s home remained under the dominion and control of the police throughout

the duration of the day long episode. Thus, the time that elapsed between the initial

unlawful seizure and discovery of the incriminating evidence used to prosecute

Defendant in itself no way rendered the connection between the two remote. While

the temporal proximity between an illegal seizure and discovery of the evidence a

defendant seeks to suppress is never immaterial, we conclude here that this factor

does nothing to advance the Government’s burden to prove attenuation. See United

29
States v. Ceccolini, 435 U.S. 268, 275 (1978) (“[T]he Court of Appeals was simply

wrong in concluding that if the road were uninterrupted, its length was immaterial.”).

Turning to a consideration of intervening events, what transpired in the two

and a half hours between the seizure of Defendant’s home and his consent to search

is critical to our analysis. Specifically, we refer here to Investigator Cooke’s

interview with Defendant. The record first reflects Defendant’s knowledge of his

home’s seizure a few minutes after 7:00 a.m. when he called his friend Teresa from

the law enforcement center and told her: “I ain’t home yet because they ain’t lettin’

me go home yet.” Some two hours later, after Defendant had expressed the desire

for an autopsy because he wanted to know why Candice died and Investigator Cooke

had told him the coroner needed Candice’s medication, Cooke informed Defendant

that the police would “hold onto your house as a scene” until the autopsy was

concluded. Defendant responded “[t]hat’s fine” and “[a]nything I can do to help.”

The district court found Defendant “seemingly consented” (whatever that means) to

his home’s seizure when he agreed with Cooke during the interview that the police

should “hold onto” his home. The Government suggests this “agreement” effectively

purged the subsequent taint of any illegal seizure; in other words, this was the first

intervening event that broke the “causal chain” between the illegal seizure and the

evidence Defendant seeks to suppress.

But under the circumstances presented, Defendant’s responses hardly establish

his after-the-fact consent to his home’s unlawful seizure. Investigator Cooke offered

30
Defendant no choice; rather Cooke was telling Defendant how it was. The record in

this case gives us no reason to believe Defendant’s responses were anything other

than “a mere submission to a claim of lawful authority.” Kaupp, 538 U.S. at 631

(quoting Royer, 460 U.S. at 497). Defendant’s statement to Teresa that “they ain’t

lettin’ me go home yet,” indicates to us that Defendant understood he did not have

much say in the matter or much of a choice. Of course, the concept of choice, i.e.

the right to say yes or no, is inherent in the definition of consent. Cf. United States

v. Jones, 701 F.3d 1300, 1314 (10th Cir. 2012). The Government cannot meet its

burden “by showing no more than acquiescence to a claim of lawful authority.”

Bumper v. North Carolina, 391 U.S. 543, 548–49 (1968).

The Government further tells us Defendant’s execution of the consent to

search form authorizing Investigator Cooke to enter his home was the second

intervening event that broke the causal chain. Again the details of what transpired

immediately preceding Defendant’s consent are critical. After Investigator Cooke

informed Defendant he was “going to do what’s called a consent to search and

I’m just going in to retrieve the medication,” Defendant referenced the need for

an attorney (a reference clearly audible on the audio tape) and hesitated before

breaking down: “I wanna know what happened to her. I ain’t got nothin’ to hide

from you people. She’s my baby, she’s my everything. I know you have to.”

Shortly thereafter Cooke sought to prompt Defendant to action while reassuring him:

“Let’s run over to the house. Let’s get your dogs. Let’s get the medication.” Let’s

31
find out “what’s going on.” A few minutes later Cooke repeated himself: “Let’s go

get your dogs. Let’s get this medication,” all the while reminding Defendant: “I

can’t let you go in the house. I’ll just tell you I can’t let you go in the house, but if

you’ll tell me where the stuff is.”

Well established precedent teaches us that the question here is not only

whether Defendant’s consent was voluntary but also whether his consent was “an act

of free will [sufficient] to purge the primary taint of the unlawful invasion.” Kaupp,

538 U.S. at 632 (brackets in original) (quoting Wong Sun, 371 U.S. at 486). Under

the second Brown factor, the Government must establish “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 or attenuated.” Fox, 600 F.3d at 1260

(brackets, ellipses, and quotation marks omitted); see Royer, 460 U.S. at 501

(plurality) (“Brown hold[s] that statements given during a period of illegal detention

are inadmissible even though voluntarily given if they are the product of the illegal

detention and not the result of an independent act of free will.”).

Here the facts suggest Defendant’s consent to search was the direct result

of the illegal seizure of his home rather than an act of free will sufficient to

purge its taint. By all appearances, Investigator Cooke consciously designed the

circumstances under which Defendant provided his consent to convince him that he

had no choice but to accede to the investigator’s wishes. When a police officer

32
claims authority to seize your home because your wife died unexpectedly, and tells

you the coroner needs medication from the home to perform an autopsy but you

cannot go inside the home to retrieve the medication, what choice do you have?

Must you allow law enforcement to seize your home indefinitely? Defendant’s lack

of choice once again is well illustrated by his statement to Investigator Cooke, “I

know you have to,” and Cooke’s subsequent reminder, “I’ll just tell you I can’t let

you go in the house, but if you’ll tell me where the stuff is.” Nothing between the

time of law enforcement’s illegal seizure of Defendant’s home and Investigator

Cooke’s search of the home broke the causal chain. Because Defendant’s consent

was tainted, Cooke’s search pursuant to that consent also was tainted. And any

evidence obtained as a result of an unlawful search cannot be used to establish

probable cause for issuance of a search warrant. See Murray, 487 U.S. at 540.

This leaves us to consider the purpose and flagrancy of the illegal seizure of

Defendant’s home. Because the exclusionary rule “serves to deter deliberate,

reckless, or grossly negligent conduct” in addition to “recurring or systemic

negligence,” only by considering law enforcement’s culpability may we determine

the efficacy of excluding the incriminating evidence against Defendant in deterring

future Fourth Amendment violations and in particular unreasonable seizures of

the home. Herring, 555 U.S. at 144. The Supreme Court has told us a court should

suppress evidence only if a police officer “may properly be charged with knowledge,

that the [seizure] was unconstitutional.” Id. at 143 (quotation marks omitted). “The

33
pertinent analysis of deterrence and culpability is objective, not an inquiry into the

subjective awareness” of the officer. Id. at 145 (quotation marks omitted). We ask

whether a “reasonably well trained officer would have known” the seizure of

Defendant’s home was unlawful under the totality of the circumstances. Id.

(quotation marks omitted).

For reasons we explained in Part III of our opinion, we have no difficulty

concluding that a reasonably well trained officer would have understood the seizure

of Defendant’s home under the circumstances presented was contrary to the Fourth

Amendment. At the suppression hearing, the only explanation Investigator Cooke

gave to justify the warrantless seizure of Defendant’s home following Candice’s

demise was that it was not a “normal death. . . . [S]o securing anything that may have

given us information into that was the reason for the scene being held.” But as the

astute reader well knows by now, Investigator Cooke’s justification falls woefully

short of what the Fourth Amendment requires to justify a warrantless seizure of a

home. Absent consent, the Fourth Amendment requires probable cause and exigent

circumstances. See McArthur, 531 U.S. at 333–334. Neither is it any use to say the

ATF agents who were primarily responsible for obtaining and executing the search

warrant were blameless and acted in good faith. Otherwise a police officer could

illegally seize a home, obtain a tainted consent to search, and then, equipped with

incriminating evidence, rely on colleagues ignorant of the circumstances used to

justify the search warrant to obtain the same. Such an approach would do little to

34
deter unlawful seizures. See Herring, 555 U.S. at 140, 146.

***

To recap: Law enforcement unreasonably seized Defendant’s home in violation of

the Fourth Amendment. Immediately thereafter, Investigator Cooke interviewed

Defendant for over two hours at the police station. Defendant subsequently signed

a consent to search form permitting Cooke to search his home. But given the

undisputed record facts, Defendant’s consent was not an act of free will sufficient

to purge the primary taint of the illegal seizure. Rather, his consent was “come at

by exploitation” of such seizure. Wong Sun, 371 U.S. at 488. Consequently, Cooke

unlawfully searched Defendant’s home and witnessed ammunition in the home’s

bedroom closet. Probable cause, tainted from the unlawful search, arose when Cooke

connected Defendant’s status as a convicted felon with the ammunition. Cooke

requested federal agents to procure a search warrant and a neutral magistrate judge

unknowingly issued a tainted warrant. Law enforcement executed the tainted warrant

and discovered the incriminating evidence Defendant now seeks to suppress.

Necessarily, this evidence too was tainted. While the causal chain is relatively long,

nowhere along the links of the chain were the “fruits” of the unlawful seizure of

Defendant’s home purged of their primary taint. Accordingly, the district court’s

denial of Defendant’s motion to suppress is REVERSED. This cause is

REMANDED for further proceedings consistent with this opinion.

35
United States v. Shrum, No. 17-3059

EID, J., concurring in part and dissenting in part.

I agree with the majority that the seizure of Defendant’s home was unreasonable.

The Fourth Amendment allows for “a temporary seizure [that is] supported by probable

cause and . . . designed to prevent the loss of evidence while the police diligently obtai[n]

a warrant in a reasonable period of time.” Illinois v. McArthur, 531 U.S. 326, 334

(2001). Here, as we conclude today, the seizure was none of those things. I disagree,

however, with the majority’s decision to go on to determine whether the attenuation and

independent source exceptions to the exclusionary rule apply (ultimately deciding that

they do not), rather than remanding the case for such a determination. I come to this

conclusion for three reasons.

First, although the district court made some passing references to Defendant’s

consent to the search, it did not consider whether his consent constituted a break in the

causal chain under the attenuation doctrine because it did not need to under its

understanding of the case – namely, that the initial seizure of the home was reasonable

(an understanding we find erroneous today). Nor did the district court find it necessary to

consider the independent source doctrine. It is the general practice of this court to

remand for determination of such issues, see, e.g., United States v. Carter, 360 F.3d

1235, 1243 (10th Cir. 2004) (concluding that “the district court is better able to address”

whether defendant’s consent was the product of the preceding illegal search and

remanding for such a determination), and indeed the Supreme Court did so, after it
declined to recognize a “crime scene exception” to the warrant requirement. Flippo v.

West Virginia, 528 U.S. 11, 15 (1999) (per curiam) (remanding for consideration, inter

alia, of whether defendant impliedly consented to the search); Maj. Op. at 17 (citing

Flippo). I see no reason to depart from this general practice in this case. Thus, while I do

not question the court’s authority to decide the issues here, I would not exercise our

discretion to do so in this case.

Second, the issues of attenuation and independent source received virtually no

attention in the briefing before this court. And significantly, to the extent they did

receive attention, Defendant urged this court to remand for their determination. See, e.g.,

Aplt. Br. at 35 (arguing that “[t]he district court should decide, in the first instance,

whether Mr. Shrum’s consent purged the taint of the unconstitutional seizure”); id. at 42

(“This court should also remand for an additional determination on the independent-

source doctrine”).1 The lack of adequate briefing on these issues further convinces me

that they are best left to a remand.

Finally, the majority interprets and applies Utah v. Strieff, ___ U.S. ___, 136 S. Ct.

2056, 2061 (2016), the Court’s most recent pronouncement on the doctrines of

attenuation, independent source, and inevitable discovery – three exceptions to the

1
Defendant also argues that the district court erroneously concluded that he had
abandoned his involuntary-consent argument, and asks this court to remand for the
district court to adequately address the voluntariness of consent issue. Aplt. Br. at 37.
The majority does not address the abandonment issue, and instead finds that Defendant’s
consent was involuntary without the benefit of adequate consideration of this issue by the
district court. Maj. Op. at 31. I agree with Defendant that the district court erred in
finding voluntariness abandoned, and would remand that issue as well.
2
exclusionary rule that “involve the causal relationship between the unconstitutional act

and the discovery of evidence.” The majority opinion in this case marks the first time in

a published opinion this court has interpreted and applied Strieff. In my view, the better

course of action would be to explore the parameters of Strieff in a case in which there is a

district court decision on the matter as well as adequate briefing before this court.

For these reasons, I would remand this case to the district court to consider the

issues of attenuation and independent source in the first instance. Accordingly, I dissent

from that portion of the majority opinion declining to remand the case.

3