FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10073
Plaintiff-Appellee,
D.C. No.
v. 5:15-cr-00288-BLF-1
JAVIER GARCIA,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Northern District of California
Beth Labson Freeman, District Judge, Presiding
Argued and Submitted March 2, 2020
San Francisco, California
Filed September 10, 2020
Before: Eugene E. Siler, * Kim McLane Wardlaw, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Wardlaw
*
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 UNITED STATES V. GARCIA
SUMMARY **
Criminal Law
The panel vacated a conviction and sentence for
possession with intent to distribute methamphetamine, and
remanded with instructions to suppress evidence found in the
defendant’s home and on his person, as well as statements
he made at the police station following his arrest.
In a prior appeal, this court held that officers violated the
Fourth Amendment when they entered the defendant’s home
without a warrant, ostensibly to determine whether someone
inside posed a threat to their safety or required emergency
assistance. Though the officers knew nothing about the
defendant before entering his home, they discovered him
inside, detained him at gunpoint, took him outside in
handcuffs, and ran a records check that revealed he was
subject to a supervised release condition authorizing
suspicionless searches of his residence. After discovering
this condition, the same officers who had conducted the
initial unlawful entry reentered the home to conduct a full
search, during which they found methamphetamine and
other incriminating evidence.
The panel considered whether, under the attenuation
doctrine, the discovery of the suspicionless search condition
was an intervening circumstance that broke the causal chain
between the initial unlawful entry and the discovery of the
evidence supporting the conviction. The Government
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. GARCIA 3
conceded that the first factor, the temporal proximity
between the unconstitutional conduct and the discovery of
evidence, weighs in favor of suppression. As to the second
factor, intervening circumstances, the panel concluded that
the officers’ discretionary decision to conduct a full
investigatory search of the defendants’ home, combined with
the lack of evidence for why the officers decided to avail
themselves of the search condition, leads to the conclusion
that the discovery of the defendant’s suspicionless search
condition was not a sufficient intervening circumstance. As
to the third factor, the purpose and flagrancy of the violation,
the panel found particularly significant that the officers
entered the defendant’s home without cause, detained him at
gunpoint, and removed him from the premises in handcuffs;
and concluded that whatever role the officers’ subjective
good faith should play in the attenuation analysis, it is not
enough to outweigh the other two factors, which both favor
suppression.
COUNSEL
Jamie Lee Moore (argued), San Rafael, California, for
Defendant-Appellant.
Briggs Matheson (argued), Assistant United States Attorney;
Merry Jean Chan, Chief, Appellate Section; David L.
Anderson, United States Attorney; United States Attorney’s
Office, San Francisco, California; for Plaintiff-Appellee.
4 UNITED STATES V. GARCIA
OPINION
WARDLAW, Circuit Judge:
Javier Garcia again appeals his conviction for possession
with intent to distribute methamphetamine, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(C). In a prior appeal, we
held that officers from the Salinas Police Department
violated the Fourth Amendment when they entered Garcia’s
home without a warrant, ostensibly to determine whether
someone inside posed a threat to their safety or required
emergency assistance. United States v. Garcia, 749 F.
App’x 516, 520 (9th Cir. 2018) (Garcia I). Though the
officers knew nothing about Garcia before entering his
home, they discovered him inside, detained him at gunpoint,
took him outside in handcuffs, and ran a records check that
revealed he was subject to a supervised release condition
authorizing suspicionless searches of his residence. After
discovering this condition, the same officers who had
conducted the initial unlawful entry reentered the home to
conduct a full search, during which they found
methamphetamine and other incriminating evidence.
We must decide whether, under the attenuation doctrine,
the discovery of the suspicionless search condition was an
intervening circumstance that broke the causal chain
between the initial unlawful entry and the discovery of the
evidence supporting Garcia’s conviction in this case and the
revocation of supervised release in the underlying case. 1 We
conclude that the evidence found in the search was not
sufficiently attenuated from the constitutional violation. We
1
This opinion addresses Garcia’s appeal of his criminal conviction.
We decide Garcia’s appeal of the district court’s judgment revoking his
supervised release in a concurrently filed memorandum disposition.
UNITED STATES V. GARCIA 5
therefore hold that the district court erred by denying
Garcia’s motion to suppress, and we reverse his conviction.
I.
A.
Officers Richard Lopez and Raul Rosales of the Salinas
Police Department were on patrol when they saw a man,
later identified as Alfonso Nevarez, run away from them
holding his waistband. Nevarez ignored commands to stop
and ran into an apartment on Fremont Street, where
Defendant Javier Garcia resided. The officers surrounded
the building; Officer Lopez stood guard over the front door
while Officer Rosales guarded the back. Within five
minutes, Officer Rosales informed Officer Lopez by radio
that he had apprehended Nevarez in a nearby backyard
(Nevarez had apparently exited through a window at the
back of the apartment).
Even though Nevarez was now safely in custody, Officer
Lopez and two sergeants who had joined him decided to
enter the apartment without a warrant to check for injured
persons and to conduct a “protective sweep.” The three
officers entered with guns drawn and encountered Garcia,
who was coming out of the bathroom. Garcia told the
officers that he had been asleep, and the officers observed
creases on his face that were consistent with that account.
But the officers nevertheless handcuffed Garcia—for
reasons unexplained—and took him outside.
Once outside, the officers asked Garcia his name, which
they then used to run a records check. The check revealed
that Garcia was subject to a federal supervised release
condition requiring him to “submit his person, residence, . . .
or any property under his control to a search” by “any
6 UNITED STATES V. GARCIA
federal, state or local law enforcement officer at any time
with or without cause.” 2 Purporting to rely on this condition,
Officer Lopez went back inside the apartment to conduct a
full search and found a wallet and bags of methamphetamine
under a sleeping pad on the floor in the living room. Inside
the wallet, Lopez found more methamphetamine and
identification belonging to Garcia.
Officer Lopez placed Garcia under arrest and took him
to the police station. Upon being questioned, Garcia
admitted that the methamphetamine in the wallet was his.
B.
Garcia was charged with possession with intent to
distribute methamphetamine. He filed a motion to suppress
the evidence found in the apartment and his incriminating
statements, arguing that the officers’ initial warrantless entry
into his home violated the Fourth Amendment, and that the
evidence was the fruit of that unlawful entry.
The district court denied this motion on the basis that the
officers’ first entry had been permissible under the
“emergency aid” and “protective sweep” exceptions to the
general Fourth Amendment rule that officers must secure a
warrant from a neutral magistrate before entering to search a
home. See Brigham City v. Stuart, 547 U.S. 398, 403 (2006)
(emergency aid exception); Maryland v. Buie, 494 U.S. 325,
337 (1990) (protective sweep exception). It therefore did not
consider whether the exclusionary rule should apply.
2
The condition had been imposed following a prior federal
conviction for conspiracy to distribute cocaine.
UNITED STATES V. GARCIA 7
Garcia appealed, and a different three-judge panel of our
court reversed. Garcia I, 749 F. App’x at 517. The panel
concluded that the emergency aid exception did not apply
because the officers “lacked an objectively reasonable basis
to believe that there was someone inside of the residence in
need of immediate assistance,” particularly in light of the
fact that the officers already knew that Nevarez was safely
in custody before they conducted their warrantless entry. Id.
at 518–19. Nor did the protective sweep exception apply,
because the officers had no reason to believe that there was
anyone remaining in the apartment, much less someone who
posed a threat to their safety. Id. at 519–20.
Although the panel concluded that the initial warrantless
entry into Garcia’s home violated the Fourth Amendment, it
remanded to the district court to determine in the first
instance whether the exclusionary rule required suppression
of the evidence discovered during, and as a result of, the
second search. Id. at 520.
On remand, the district court denied the motion to
suppress once again, reasoning that, under the attenuation
doctrine, the officers’ discovery of the suspicionless search
condition was an intervening circumstance sufficient to
break the causal link between the unlawful original entry and
the discovery of the inculpatory evidence. It concluded that
the facts here were “on all fours” with Utah v. Strieff, 136 S.
Ct. 2056 (2016), in which the Supreme Court held that the
discovery that a suspect had an outstanding arrest warrant
8 UNITED STATES V. GARCIA
broke the chain of causation between an unlawful street stop
and the discovery of evidence. 3 Garcia again appeals.
II.
We have jurisdiction under 28 U.S.C. § 1291. We
review the denial of the motion to suppress de novo. United
States v. Ped, 943 F.3d 427, 430 (9th Cir. 2019).
III.
The Fourth Amendment protects “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.” The
typical remedy for a Fourth Amendment violation is the
exclusion of evidence discovered as a result of that violation
from criminal proceedings against the defendant. Wong Sun
v. United States, 371 U.S. 471, 484–86 (1963). This rule—
the exclusionary rule—encompasses evidence directly
“seized during an unlawful search” as well as “[e]vidence
derivative of a Fourth Amendment violation—the so-called
‘fruit of the poisonous tree.’” United States v. Gorman,
859 F.3d 706, 716 (9th Cir. 2017) (quoting Wong Sun,
371 U.S. at 484, 488).
It is settled for purposes of this appeal that the officers
violated the Fourth Amendment when they first entered
Garcia’s home without a warrant. Garcia I, 749 F. App’x
at 518–20. Had the officers discovered the evidence at issue
during this first search, there is no doubt that suppression
would be required under the exclusionary rule. And it is
further undisputed that, but for that initial unconstitutional
3
The district court rejected the Government’s argument that the
evidence was also admissible under the good faith exception. The
Government has not disputed that point on appeal.
UNITED STATES V. GARCIA 9
entry, the officers would not have known that Garcia existed,
much less that he was subject to the suspicionless search
condition that the officers relied on to conduct the second
search. Thus, the incriminating evidence would not have
been discovered if not for the unconstitutional entry.
The question before us today is whether, despite these
facts, suppression of the evidence found in Garcia’s home,
and other evidence derived from that evidence, is not
required because, under the attenuation doctrine, the
officers’ discovery of the suspicionless search condition
broke the causal chain between the Fourth Amendment
violation and the discovery of the evidence.
A.
The attenuation doctrine is an exception to the usual rule
of exclusion or suppression of the evidence. It applies when
“‘the connection between the illegality and the challenged
evidence’ has become so attenuated ‘as to dissipate the taint
caused by the illegality.’” Gorman, 859 F.3d at 718 (quoting
United States v. Ramirez-Sandoval, 872 F.2d 1392, 1396
(9th Cir. 1989)); see also Strieff, 136 S. Ct. at 2061. In
determining whether an intervening event has sufficiently
purged the taint of a preceding Fourth Amendment violation,
we consider three factors: (1) “the ‘temporal proximity’
between the unconstitutional conduct and the discovery of
evidence,” (2) “the presence of intervening circumstances,”
and (3) “the purpose and flagrancy of the official
misconduct.” Strieff, 136 S. Ct. at 2061–62 (quoting Brown
v. Illinois, 422 U.S. 590, 603–04 (1975)). This is a fact-
intensive inquiry that turns on the circumstances of a given
case. See Brown, 422 U.S. at 603.
The Supreme Court most recently applied the attenuation
doctrine in Utah v. Strieff, 136 S. Ct. 2056. Because the
10 UNITED STATES V. GARCIA
district court concluded that Strieff directly governed the
result here, we discuss it in some detail.
In Strieff, based on an anonymous tip of narcotics
activity, an officer conducted surveillance of the suspected
residence over the course of about a week, observing visitors
who left only a few minutes after arriving. Id. at 2059. One
day, he observed a man, Strieff, exit the home and walk
toward a nearby convenience store. Id. at 2060. The state
conceded that the officer lacked the requisite reasonable
suspicion to lawfully detain Strieff. Id. But he nonetheless
stopped Strieff in the parking lot, requested his
identification, and ran a records check, which revealed that
Strieff had an outstanding warrant for his arrest. Id. The
officer placed Strieff under arrest and, during a search
incident to that arrest, found drugs and drug paraphernalia in
his pocket. Id.
Applying the attenuation doctrine factors, the Supreme
Court acknowledged that the first factor—the temporal
proximity between the unconstitutional stop and the
discovery of the evidence—favored suppression. Id.
at 2062. But it concluded that the other two factors
counseled in favor of admitting the evidence.
The Court first ruled that the discovery of the arrest
warrant was an intervening circumstance that “strongly
favors the State.” Id. This was not only because the warrant
predated and was “entirely unconnected” with the unlawful
stop, but also because of the unique nature of judicially
issued warrants. As the Court explained, “[a] warrant is a
judicial mandate to an officer to conduct a search or make an
arrest, and the officer has a sworn duty to carry out its
provisions.” Id. (quoting United States v. Leon, 468 U.S.
897, 920 n.21 (1984)). Thus, the Court characterized the
officer’s arrest of Strieff as a mere “ministerial act that was
UNITED STATES V. GARCIA 11
independently compelled by the pre-existing warrant.” Id.
at 2063. And it was this ministerial act that directly led to
the lawful search incident to arrest that revealed inculpatory
evidence.
The Court also concluded that the “purpose and
flagrancy of the official misconduct” factor weighed against
suppression because the officer was “at most negligent.” Id.
(quoting Brown, 422 U.S. at 604). The Court reasoned that
because the officer lacked the reasonable suspicion
necessary to conduct the stop, he should have simply asked
whether Strieff would speak with him voluntarily, rather
than demanding that he do so. Id. But this “error[] in
judgment” did not favor suppression, the Court explained,
because it did not “rise to a purposeful or flagrant violation
of Strieff’s Fourth Amendment rights.” Id.
B.
With Strieff in mind, we turn to the facts here. As the
Government concedes, the temporal proximity factor weighs
in favor of suppression because only a few minutes passed
between the officers’ unconstitutional entry into Garcia’s
home and those very same officers’ reentry into his home to
conduct the investigatory search. Thus, we must determine
whether the other two factors—intervening circumstances
and the purpose and flagrancy of the violation—are
sufficient to outweigh the lack of temporal separation
between the Fourth Amendment violation and the discovery
of the incriminating evidence.
1.
Finding that intervening circumstances favored
suppression, the district court concluded that there was “no
difference” between the discovery of the arrest warrant in
12 UNITED STATES V. GARCIA
Strieff and the discovery of the suspicionless search
condition here. It is true that, as in Strieff, Garcia’s
suspicionless search condition predated and was entirely
unconnected to the officers’ unlawful entry into his home.
See id. at 2062. But a suspicionless search condition differs
from an arrest warrant in a significant respect. As the Court
explained in Strieff, a warrant is a “judicial mandate” that an
officer has a “sworn duty” to carry out, and therefore arrests
pursuant to warrants are mere “ministerial act[s]” that are
“compelled by the pre-existing warrant.” Id. at 2062–63.
The decision to arrest pursuant to a warrant is made by the
judicial officer who issued the warrant, not the police officer
at the scene, who is merely executing it. Id.
The same is not true for conditions of supervised release
that allow for suspicionless searches. While the
suspicionless search condition here granted the officers the
legal authority to search Garcia’s home without cause, it did
not—unlike the warrant in Strieff—require them to exercise
that authority. The officers’ decision to avail themselves of
the suspicionless search condition was volitional, not
“ministerial.” See id. at 2063. This distinction is important
because we have held that the attenuation doctrine does not
apply when an officer’s decision to exercise his discretionary
authority is “significantly direct[ed]” by information learned
during an unlawful search. Gorman, 859 F.3d at 716
(quoting United States v. Johns, 891 F.2d 243, 245 (9th Cir.
1989)).
For example, in Gorman, our first post-Strieff
attenuation doctrine decision, an officer impermissibly
prolonged a traffic stop in an attempt to drum up probable
cause that would allow him to search a vehicle that he
suspected contained drug money. Id. at 709, 715; see also
Rodriguez v. United States, 575 U.S. 348, 354 (2015)
UNITED STATES V. GARCIA 13
(explaining that authority for a traffic stop “ends when tasks
tied to the traffic infraction are—or reasonably should have
been—completed”). When the officer failed in that effort,
he let the driver, Gorman, go but then called another officer
further down the highway, relayed his suspicions (which
were the product of the impermissibly extended stop), and
requested that the second officer pull the vehicle over and
search it with a drug-sniffing dog. Gorman, 859 F.3d
at 709–10. The second officer tailed Gorman until he
observed a traffic violation. Id. at 712. He then pulled the
vehicle over and approached it with the drug-sniffing dog.
Id. The dog alerted to the vehicle, which the officer used as
probable cause to conduct a search that discovered
incriminating evidence. Id. at 712–13.
The question before us was whether the second traffic
stop, which was formally predicated upon a different traffic
violation committed by Gorman after the first, unlawful stop,
was an intervening circumstance that purged the taint of the
earlier Fourth Amendment violation. Id. at 718–19. We
held that it was not. As we explained, the second stop, and
in particular, the decision to conduct a dog sniff, was a
“direct result” of what the first officer had learned during the
unconstitutional seizure. Id. at 718. In those circumstances,
we concluded that “nothing attenuated the connection
between Gorman’s unlawful detention and the seized
[evidence].” Id.
We reached a similar conclusion in Frimmel
Management., LLC v. United States, 897 F.3d 1045 (9th Cir.
2018). There, a local sheriff’s department conducted an
unlawful search that found records suggesting that a business
was employing undocumented immigrants. Id. at 1049. The
sheriff’s department reported the results of the search to
Immigration and Customs Enforcement (ICE), which issued
14 UNITED STATES V. GARCIA
a subpoena requiring the business to produce employer
verification forms and other records. Id. at 1049–50. Based
on information turned over in response to the subpoena, ICE
charged the business with violations of the Immigration and
Nationality Act. Id. at 1050.
Opposing the business’s motion to suppress evidence
obtained through the ICE subpoena, the Government argued
that the ICE investigation was too attenuated from the earlier
illegal search conducted by the sheriff’s department. Id.
at 1053. We disagreed. We concluded that because
information stemming from the unlawful search by the
sheriff’s department had sparked ICE’s interest in
investigating the business, and because “the identity
evidence that resulted from the [sheriff’s department] raid
‘significantly directed’ [ICE’s] subsequent investigation,”
the evidence produced in response to the subpoena remained
tainted by the initial unlawful search. Id. at 1054 (quoting
Johns, 891 F.2d at 244).
Gorman and Frimmel provide the applicable framework
here. Just as in Gorman, where the additional traffic
violation gave the second officer cause to stop Gorman’s car,
and in Frimmel, where ICE’s subpoena power allowed it to
compel the business to produce records, Garcia’s
suspicionless search condition gave the officers authority to
search his home without cause. But as Gorman and Frimmel
make clear, when an officer’s exercise of discretionary
authority is “significantly directed” by information learned
during an unlawful search, the mere existence of that
authority is not an intervening cause that purges the taint of
the earlier constitutional violation. Id.; Gorman, 859 F.3d at
716–17.
Thus, the key question this case presents is whether the
officers’ discretionary decision to conduct a full
UNITED STATES V. GARCIA 15
investigatory search of Garcia’s home was significantly
directed by information they learned during their initial
unlawful entry. And because the Government bears the
burden of showing attenuation, Brown, 422 U.S. at 604, it
was the responsibility of the Government to introduce
evidence on this point. Yet the Government did not present
any evidence regarding the officers’ reasons for entering
Garcia’s home the second time, much less evidence
sufficient to show that this decision had nothing to do with
what they saw inside the home minutes earlier, during their
unconstitutional search.
This dearth of evidence is significant, because the
circumstances strongly suggest that it may have been
something inside the home that piqued the officers’ interest
in investigating further. The district court credited Officer
Lopez’s testimony that the officers entered the home the first
time solely to ensure that there was nobody inside who posed
a threat or needed assistance. Yet it is undisputed that by the
time of their second entry, only a few minutes later, the
officers intended to search for incriminating evidence. Thus,
something must have happened to change the officers’
motives during the short interval between the two searches.
And all that transpired in that time period was that the
officers entered Garcia’s home, encountered Garcia for the
first time, and discovered that he was on supervised release
and subject to a condition allowing for suspicionless
searches. One obvious possibility is that something the
officers saw during their initial entry raised their suspicions
that criminal activity was afoot.
The Government asserts that the only information the
officers learned from the first search was Garcia’s identity.
It argues that this discovery has no relevance to the
attenuation analysis because a person’s identity cannot be
16 UNITED STATES V. GARCIA
suppressed. But even assuming that principle would extend
to the physical evidence the Government seeks to admit, 4 the
Government has not pointed to anything in the record from
which we could conclude that Garcia’s identity was the only
thing the officers learned from the first search.
The officers did not enter Garcia’s home with blinders
on. And the record shows that in the few minutes between
the two searches, the officers’ motives for entering the home
abruptly changed from non-investigatory to investigatory.
Yet the Government offers nothing more than its say-so to
explain this sudden shift. That is not enough to avoid
suppression. Cf. United States v. Bocharnikov, 966 F.3d
1000, 1007 (9th Cir. 2020) (Chhabria, J., concurring) (“To
rule in the government’s favor on this appeal would have
required us to bend over backwards, doing the government’s
work for it. Federal prosecutors should not need that kind of
help from the courts, nor should they expect to receive it.”).
In the absence of evidence showing that the officers’
decision to conduct the second search was untainted by what
they saw during the initial unlawful entry, we conclude that
the Government has not met its burden of showing that the
4
We have held that “the simple fact of who a defendant is cannot be
excluded, regardless of the nature of the violation leading to his identity.”
United States v. Del Toro Gudino, 376 F.3d 997, 1001 (9th Cir. 2004).
However, as we noted in Frimmel, though the defendant’s identity itself
cannot be suppressed, other evidence, including physical evidence, may
be suppressed consistent with the requirements of the exclusionary rule.
Frimmel, 897 F.3d at 1054 (citing Del Toro Gudino, 376 F.3d at 1001).
Here, as in Frimmel, Garcia is not seeking to suppress his identity, but
rather the physical evidence found in his home and on his person, as well
as incriminating statements derivative of that evidence. See id. at 1054–
55.
UNITED STATES V. GARCIA 17
discovery of the suspicionless search condition was a
sufficient intervening circumstance.
Perhaps recognizing the problems posed by the lack of
evidence explaining the basis for the officers’ sudden
development of an investigatory motive, the Government
took the position at oral argument that the attenuation
doctrine would apply even if the officers’ decision to take
advantage of the supervised release condition was
influenced by information they learned during their earlier
unconstitutional entry. This position is contrary to
established precedent, which makes clear that there is no
attenuation when information learned through an unlawful
search “tends to significantly direct the investigation to the
evidence in question.” Gorman, 859 F.3d at 716.
The Government’s citation to Segura v. United States,
468 U.S. 796 (1984), provides no support for its attenuation
argument. Segura involved the independent source doctrine,
which is distinct from the attenuation doctrine and “allows
trial courts to admit evidence obtained in an unlawful search
if officers independently acquired it from a separate,
independent source.” Strieff, 136 S. Ct. at 2061; see Segura,
468 U.S. at 805. It does not apply where, as here, the
evidence is not “separately discovered through an
independent source” but is instead found only as a direct
result of an earlier constitutional violation. Gorman,
859 F.3d at 718. That is presumably why the Government
has never invoked the independent source doctrine as a basis
for admission of the evidence in this case.
Although the Supreme Court discussed Segura in Strieff,
it did so to emphasize the unique nature of a warrant as an
intervening circumstance—the “independent source” in
Segura was a warrant obtained with information entirely
unconnected to a Fourth Amendment violation. Strieff,
18 UNITED STATES V. GARCIA
136 S. Ct. at 2062 (“[T]he Segura Court suggested that the
existence of a valid warrant favors finding that the
connection between unlawful conduct and the discovery of
evidence is ‘sufficiently attenuated to dissipate the taint.’”)
(quoting Segura, 468 U.S. at 805). As we have explained,
the suspicionless search condition here differs from the
warrant in Strieff in that it did not require the officers to
search Garcia’s home but merely granted them discretionary
authority to do so.
Finally, our conclusion that Garcia’s suspicionless
search condition was not a sufficient intervening
circumstance is consistent with our cases holding that
“officers must know about a . . . Fourth Amendment search
waiver before they conduct a search in order for the waiver
to serve as justification for the search.” United States v. Job,
871 F.3d 852, 859 (9th Cir. 2017); see also United States v.
Caseres, 533 F.3d 1064, 1076 (9th Cir. 2008). This rule
reflects the significant discretion officers have in deciding
whether to conduct a search pursuant to a suspicionless
search condition. If they did not, there would be no reason
to require knowledge of the search condition in advance, as
we could assume the evidence would inevitably be
discovered as soon as an officer learned of his authority to
search without cause. See Nix v. Williams, 467 U.S. 431,
443–44 (1984) (describing the inevitable discovery
doctrine). The existence of this discretion, especially
combined with the lack of evidence for why the officers
decided to avail themselves of the search condition, leads us
to conclude that the discovery of Garcia’s suspicionless
search condition was not a sufficient intervening
circumstance.
UNITED STATES V. GARCIA 19
2.
We now address the third attenuation factor—the
purpose and flagrancy of the violation. This factor is aimed
at ensuring that evidence is excluded only “when the police
misconduct is most in need of deterrence.” Strieff, 136 S. Ct.
at 2063.
In evaluating this factor, we find it particularly
significant that the officers entered Garcia’s home without
cause, detained him at gunpoint, and removed him from the
premises in handcuffs. 5 The home is “first among equals”
for purpose of the Fourth Amendment, Florida v. Jardines,
569 U.S. 1, 6 (2013), and it is no trifling matter for police to
storm a residence with guns drawn. Incursions of this nature
can have tragic results. See Hudson v. Michigan, 547 U.S.
586, 594 (2006) (“[A]n unannounced entry may provoke
violence in supposed self-defense by the surprised
resident.”); McDonald v. United States, 335 U.S. 451, 460–
61 (1948) (Jackson, J., concurring). 6 The need for
5
Garcia urges us to conclude that the officers committed two
separate constitutional violations: (1) unlawfully entering his home and
(2) arresting him inside his home without a warrant, or even probable
cause. Though we ultimately need not decide this point, it is troubling
that the officers removed Garcia from his home in handcuffs when they
had ostensibly entered only to see if someone inside the residence needed
assistance or posed a threat, and there is no evidence that Garcia fell into
either category.
6
Recent events have reminded us of the devastating consequences
that can follow when armed officers take the residents of a home by
surprise. See Darcy Costello & Tessa Duvall, Minute by Minute: What
Happened the Night Louisville Police Fatally Shot Breonna Taylor,
Louisville Courier J. (May 29, 2020), https://tinyurl.com/y3ytxuju.
20 UNITED STATES V. GARCIA
deterrence here is therefore much higher than in Strieff,
which involved a stop on a public street. 7
Arguing that the third attenuation factor nevertheless
weighs against suppression, the Government focuses on the
district court’s finding that the officers believed in good faith
that their initial entry into the home was necessary for public
safety reasons. But whatever role the officers’ subjective
good faith should play in the attenuation analysis, 8 it is not
7
An individual’s interest in being free from police intrusion is
higher in the home than in a public place. Compare Terry v. Ohio,
392 U.S. 1, 27–29 (1968) (individual may be seized in public based on
reasonable suspicion that he is engaged in criminal activity), with Payton
v. New York, 445 U.S. 573, 589–90 (1980) (seizures in a home generally
require not only probable cause but also a warrant issued by a neutral
magistrate). Thus, all things equal, Fourth Amendment violations
involving the home will generally be more flagrant than those involving
searches and seizures conducted in public. That said, we do not adopt
Garcia’s argument that attenuation can never be found when the
constitutional violation at issue is an unlawful incursion into a home.
Because the attenuation analysis turns on the facts of each case, it does
not lend itself to categorical rules of this nature. See Brown, 422 U.S.
at 603.
8
It is not settled whether it is appropriate to examine an officer’s
subjective intentions in evaluating the “purpose and flagrancy” of a
Fourth Amendment violation. The word “purpose” suggests a subjective
inquiry. But only rarely are Fourth Amendment questions governed by
subjective standards, and the Supreme Court has made clear in the
context of the related “good faith exception” that the inquiry must remain
objective. See Herring v. United States, 555 U.S. 135, 145 (2009).
Because the good faith exception and the third factor of the attenuation
doctrine are similarly focused on ensuring that evidence is suppressed
only when there is culpable police conduct to deter, it is not obvious why
the analysis would be subjective in one context and objective in the other.
Cf. id. at 142 (explaining that the good faith exception is “perhaps
confusingly” named because it focuses on objective reasonableness); see
also Orin. S. Kerr, The Questionable Objectivity of Fourth Amendment
UNITED STATES V. GARCIA 21
enough to outweigh the other two factors, which both favor
suppression of the evidence.
Our recent decision in United States v. Bocharnikov is
instructive on this point. See Bocharnikov, 966 F.3d
at 1004–05. There, officers who lacked probable cause to
arrest a defendant handcuffed him when he came to the door
of his home and questioned him about an incident in which
someone from the house had pointed a laser beam at a plane
flying overhead. Id. at *1002. Eight months later, an agent
returned to the home and questioned the defendant again,
this time with his consent. Id.
Addressing how the attenuation doctrine applied to
statements made during the second round of questioning, we
noted that there was “no evidence of any subterfuge” by the
officers and that they were “understandably focused on
securing the laser to prevent any further threats to aircraft.”
Id. at 1005. In other words, we accepted the Government’s
assertion that the officers acted in good faith. But at the same
time, we recognized that “the facts f[e]ll short of the type of
exigent circumstances needed to sustain a warrantless arrest
in a home.” Id. Balancing these countervailing
considerations, we concluded that the third attenuation factor
tilted only “slightly” against suppression, and that it was not
enough to counter the other two factors, which both weighed
in favor of suppressing the evidence. Id. at 1005–06.
Law, 99 Tex. L. Rev. (forthcoming) (manuscript at 14–16, 36)
(recognizing ambiguity in the doctrine and arguing that the use of
subjective standards is “particularly problematic” in the context of the
exclusionary rule because of the difficulty of accurately determining an
officer’s mental state).
22 UNITED STATES V. GARCIA
Balancing the three attenuation factors, we reach the
same conclusion here. The Fourth Amendment violation in
this case is at least as egregious as the violation in
Bocharnikov. There, officers conducted a warrantless arrest
on the doorstep when they knew that somebody inside the
home had committed the crime of pointing a laser at an
aircraft, whereas here, the officers physically entered
Garcia’s home with guns drawn even though they had no
knowledge that there was anybody inside, much less
someone who posed a threat or needed assistance. The
temporal proximity factor also weighs much more strongly
in favor of suppression than it did in Borcharnikov—there,
eight months passed between the Fourth Amendment
violation and the discovery of the evidence, whereas here,
the two events were separated by only minutes. And, as we
have explained, the Government has failed to show that the
discovery of the suspicionless search condition was a
sufficient intervening circumstance. See Gorman, 859 F.3d
at 718. Examining the totality of the circumstances, we
conclude that even accepting the district court’s finding that
the officers acted in good faith, this fact alone is not enough
to justify admission of the evidence. Bocharnikov, 966 F.3d
at 1005–06.
IV.
We conclude that the attenuation doctrine does not apply
in the circumstances here. The district court therefore erred
in denying Garcia’s motion to suppress. We vacate Garcia’s
conviction and sentence and remand the case with
instructions to suppress the evidence found in Garcia’s home
UNITED STATES V. GARCIA 23
and on his person, as well as the statements he made at the
police station following his arrest. 9
REVERSED.
9
Though Garcia made the statements at issue after he received
Miranda warnings, the Government has not argued that the Miranda
warnings alone are a sufficient intervening circumstance for purpose of
attenuation. See United States v. Shetler, 665 F.3d 1150, 1159 (9th Cir.
2011) (holding that Miranda warnings “are insufficient to ‘purge the
taint of a temporally proximate prior illegal’ act”) (quoting United States
v. Washington, 387 F.3d 1060, 1075 (9th Cir. 2004)).