United States v. Stefan Ramirez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES AMERICA, No. 18-10429
Plaintiff-Appellee,
D.C. No.
v. 1:17-cr-00207-
LJO-SKO-1
STEFAN RAMIREZ,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted November 12, 2019
San Francisco, California

Filed September 25, 2020

Before: Sidney R. Thomas, Chief Judge, and Kim McLane
Wardlaw and Daniel P. Collins, Circuit Judges.

Opinion by Judge Wardlaw;
Dissent by Judge Collins
2 UNITED STATES V. RAMIREZ

SUMMARY *

Criminal Law

The panel reversed the district court’s denial of a
suppression motion, and remanded for further proceedings,
in a case in which the defendant entered a conditional guilty
plea to receipt and distribution of material involving the
sexual exploitation of minors.

FBI agents investigating child pornography offenses
obtained a warrant to search the defendant’s residence and
any vehicle registered to him located at or near the residence.
Under the warrant and the law established by Michigan v.
Summers, 452 U.S. 692 (1981), the agents had no authority
to seize the defendant or search his car when they arrived to
execute the warrant, because neither was at the residence.
The agents manufactured the authority to seize them by
falsely claiming to be police officers responding to a
burglary to lure the defendant home. By luring the defendant
home, the agents’ successful deceit enabled them to obtain
incriminating statements from the defendant and evidence
from his car and person.

The panel held that, under the particular facts of this
case, the agents’ use of deceit to seize and search the
defendant violated the Fourth Amendment. Balancing the
Government’s justification for its actions against the
intrusion into the defendant’s Fourth Amendment interests,
the panel concluded that the Government’s conduct was

*
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. RAMIREZ 3

clearly unreasonable. The panel rejected the Government’s
argument that the agents never seized the defendant, and
wrote that the seizures of the defendant and the electronic
devices in his car were the direct result of the FBI agents’
unreasonable ruse. The panel held that the Government
failed to carry its burden to show that the defendant’s
incriminating statements, made after an agent revealed the
true purpose of the investigation and asked to speak with
him, were not obtained through exploitation of illegality
rather than by means sufficiently distinguishable to be
purged of the primary taint.

Dissenting, Judge Collins wrote that the core Fourth
Amendment requirements of probable cause and a
particularized warrant were satisfied with respect to a search
of the defendant’s car for child pornography; that the agent’s
subsequent use of the ruse only affected the manner in which
the search fulfilled the condition that the car be searched
while it was at the defendant’s house, which is not one that
was required by the Fourth Amendment; that even assuming
that a brief initial pat-down of the defendant was an
unconstitutional seizure, the defendant’s subsequent
confession was in no sense a fruit of that momentary frisk;
and that the defendant was not seized during his subsequent
interview with two FBI agents that was conducted in his own
home, so his confession cannot be suppressed on the theory
that it was a fruit of any such alleged seizure.
4 UNITED STATES V. RAMIREZ

COUNSEL

Peggy Sasso (argued), Assistant Federal Defender; Heather
E. Williams, Federal Defender; Office of the Federal Public
Defender, Fresno, California; for Defendant-Appellant.

David L. Gappa (argued), Assistant United States Attorney;
Camil A. Skipper, Appellate Chief; McGregor W. Scott,
United States Attorney; United States Attorney’s Office,
Fresno, California; for Plaintiff-Appellee.

OPINION

WARDLAW, Circuit Judge:

This appeal concerns the Fourth Amendment’s limits on
the government’s use of deceit when executing a valid
search warrant. Agents with the Federal Bureau of
Investigation (FBI) investigating child pornography offenses
obtained a warrant to search the residence of Stefan Ramirez
and any vehicle registered to Ramirez located at or near the
residence. Under the warrant and the law established by
Michigan v. Summers, 452 U.S. 692 (1981), the agents had
no authority to seize Ramirez or search his car when they
arrived to execute the warrant, because neither was at the
residence. The agents manufactured the authority to seize
them by falsely claiming to be police officers responding to
a burglary to lure Ramirez home.

By luring Ramirez home, the agents’ successful deceit
enabled them to obtain incriminating statements from
Ramirez and evidence from his car and person. The district
court denied Ramirez’s motion to suppress the statements
and evidence, and Ramirez thereafter pleaded guilty to
 UNITED STATES V. RAMIREZ 5

receipt and distribution of material involving the sexual
exploitation of minors. We hold that, under the particular
facts of this case, the agents’ use of deceit to seize and search
Ramirez violated the Fourth Amendment. Accordingly, we
reverse the suppression order and remand for further
proceedings.

I.

On November 30, 2016, while conducting an undercover
investigation into the file-sharing of child pornography, an
FBI agent located a network user sharing suspected child
pornography files on a BitTorrent file-sharing network. 1
The FBI traced the internet protocol (IP) address used to
share the files to an account registered to Stefan Ramirez at
a specific address on Archie Avenue (the Archie Avenue
residence). In total, the agent conducted 23 separate
download sessions with the Archie Avenue IP address in
November and December 2016, involving over 4,000 still
images and 20 videos of suspected child pornography.

The FBI conducted surveillance on the Archie Avenue
residence on four occasions in February, March, and May
2017. The FBI confirmed that there were no open wi-fi
networks near the Archie Avenue residence; all available
networks were secured with a password. The FBI also
observed a white Chrysler sedan registered to Stefan
Ramirez parked in the driveway. The agents knew from
experience that computers and other electronic storage

1
According to the warrant application, a BitTorrent network is a
publicly available peer-to-peer file-sharing network that allows a
computer to share and download files from other computers.
6 UNITED STATES V. RAMIREZ

devices potentially storing child pornography are often kept
in vehicles.

Based on the foregoing, the FBI asserted there was
“probable cause to believe that an individual who resides at
the [Archie Avenue] residence. . . is involved in possession,
receipt, and/or distribution of child pornography” and
“probable cause to believe that evidence and
instrumentalities of [such child pornography offenses] are
located in the [Archie Avenue] residence.”

The FBI, however, had not yet identified Ramirez as a
suspect. Although the internet account was in Ramirez’s
name, several people were known to have lived at the Archie
Avenue residence, any one of whom could have used
Ramirez’s computer to share the suspected child
pornography. For example, Ramirez’s mother owned the
home, and a man named Andy Blanch lived there with his
family at the time the FBI had the home under surveillance.

To further the investigation, Special Agent Joshua
Ratzlaff applied for and obtained a warrant to search the
Archie Avenue residence, including “[v]ehicles located at or
near the premises that fall under the dominion and control of
STEFAN RAMIREZ or any other occupant of the
premises.” Thus, though the warrant authorized the search
of the house and car, it did not authorize the FBI to search or
arrest Ramirez himself, and it permitted the FBI to search or
seize Ramirez’s car only if it was located “at or near the
premises.”

Agent Ratzlaff testified that the FBI hoped to speak to
Ramirez when they executed the search warrant, as it was
general FBI practice to interview the internet subscriber as
part of the initial investigation. But Ramirez had left the
house and was at work by 6:00 am that day, and the FBI did
 UNITED STATES V. RAMIREZ 7

not arrive at the house until 9:20 am. In fact, no one was
home, and the car was nowhere near. Instead of conducting
the authorized search at that point, Agent Ratzlaff concocted
a ruse to lure Ramirez home: he would call Ramirez at work,
claim to be a police officer investigating a burglary at the
residence, and tell Ramirez he needed to return home to
confirm what was taken.

Ramirez did not answer when Agent Ratzlaff first called,
so the agent called one of the other known residents, Andy
Blanch, and informed him of the fictional break-in. The
agents, in their fictional roles as investigating police, first
asked Blanch to come to the house, but Blanch informed the
agents that he and his family had moved out about three
weeks earlier. The agents then asked Blanch to notify
Ramirez of the break-in. Blanch complied and left a
message on Ramirez’s voicemail. He also independently
asked Ramirez’s mother to go to the residence to assist the
agents. When Blanch reported back to the agents, Agent
Ratzlaff concluded that Blanch likely was not involved in the
child pornography offenses, and so he came clean about the
true nature of their investigation. Blanch told Agent Ratzlaff
that “it was possible his fifteen-year-old stepson was
involved.”

Once Ramirez’s mother arrived at the Archie Avenue
residence, Agent Ratzlaff explained that he was not
responding to a burglary but executing a search warrant in
furtherance of a child pornography investigation. Ms.
Ramirez unlocked the door to allow the agents to conduct
their search. Agent Ratzlaff then asked Ms. Ramirez to call
her son and to continue the ruse about the burglary so that he
8 UNITED STATES V. RAMIREZ

would return home. 2 Ramirez promptly began driving home
after his mother informed him of the burglary, returning the
missed call from the FBI on the way. Agent Ratzlaff again
identified himself as a police officer, told Ramirez there had
been a burglary at his home, and said that they should wait
until Ramirez arrived to discuss the matter further.

The FBI wore jackets marked “Police” (rather than FBI)
and staged a Fresno police car in front of the home to
elaborate upon their ruse. The agents were armed and wore
full body armor. It was not until Ramirez parked his car and
approached the agents that Agent Ratzlaff finally revealed
the true purpose of their investigation, explaining that he had
used the ruse to induce Ramirez to come home and to speak
to him about the FBI’s child pornography investigation.

After Agent Ratzlaff revealed that he had fabricated the
burglary, he asked Ramirez to put his hands behind his back,
placed Ramirez in a finger hold, frisked his front pockets and
waistband, and seized his phone, wallet, and keys. He then
asked Ramirez if there was a private place where they could
talk. Ramirez said yes, walked with Agent Ratzlaff into the
house, and chose an empty bedroom. Ramirez’s mother was
in the house, but Agent Ratzlaff did not let Ramirez speak
with her, saying that he needed to talk to Ramirez privately.

Agent Ratzlaff and one other agent sat across from
Ramirez, with the second agent closest to the door. The
agents removed their body armor but remained armed, and
they kept the door closed for the entire forty-five-minute
interview. Five other agents and two evidence technicians

2
The district court held that Mrs. Ramirez acted at the behest of law
enforcement when she communicated the purported burglary to her son.
The Government has not challenged this finding on appeal.
 UNITED STATES V. RAMIREZ 9

continued to search the house during the interview. The
agents did not tell Ramirez that he was free to leave,
although Agent Ratzlaff did inform him during the interview
that he was not under arrest. By the end of the interview,
Ramirez had confessed to viewing child pornography on his
laptop. The agents did not return Ramirez’s phone, wallet,
or keys until after the interview. During this time, agents
also searched Ramirez’s car and seized two laptops and two
hard drives.

Ramirez filed a motion to suppress, arguing in relevant
part that the agents unlawfully used a ruse to create the
authority to seize Ramirez and his car, and that his
statements, his phone, and the electronic devices taken from
his car were therefore all obtained in violation of the Fourth
Amendment. The district court denied the motion,
concluding that the FBI had lawfully used its ruse to lure
Ramirez home. Pursuant to a conditional plea agreement
that preserved his right to “appeal the order denying his
motion to suppress evidence . . . and any custodial sentence
imposed as a result of his conviction,” Ramirez then entered
a guilty plea to one count of violating 18 U.S.C.
§ 2252(a)(2). He was sentenced to 151 months in prison
followed by 60 months of supervised release.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. “We
review a district court’s denial of a motion to suppress de
novo.” United States v. Washington, 490 F.3d 765, 769 (9th
Cir. 2007). “Whether an encounter between a defendant and
an officer constitutes a seizure is a mixed question of law
and fact that we review de novo.” Id. “We review the trial
court’s factual findings, however, for clear error.” Id.
10 UNITED STATES V. RAMIREZ

III.

The agents in this case obtained the legal authority to
detain Ramirez for officer safety and brought his vehicle
within the scope of their search warrant by falsely claiming
to be police officers investigating a burglary at Ramirez’s
home. Whether the district court erred by denying Ramirez’s
motion to suppress turns on whether the agents’ use of this
ruse violated the Fourth Amendment.

A.

Our review is guided by the long-standing and
fundamental constitutional requirement that “no warrants
shall issue, but upon probable cause, . . . and particularly
describing the place to be searched, and the persons or things
to be seized.” U.S. Const. amend. IV; see also United States
v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986). The Fourth
Amendment’s particularity requirement is not a mere
technicality; it is an express constitutional command. The
particularity requirement “confines an officer executing a
search warrant strictly within the bounds set by the warrant.”
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388, 394 n.7 (1971). “To the extent
[government] agents want[] to seize relevant information
beyond the scope of the warrant, they should [seek] a further
warrant.” United States v. Sedaghaty, 728 F.3d 885, 914
(9th Cir. 2013).

The particularity requirement serves foundational
constitutional interests and must be zealously protected.
“The requirement that warrants shall particularly describe
the things to be seized makes general searches under them
impossible and prevents the seizure of one thing under a
warrant describing another.” Marron v. United States,
275 U.S. 192, 196 (1927). In addition, the particularity
 UNITED STATES V. RAMIREZ 11

requirement “assures the individual whose property is
searched or seized of the lawful authority of the executing
officer, his need to search, and the limits of his power to
search,” Groh v. Ramirez, 540 U.S. 551, 561 (2004)
(citation omitted), and “greatly reduces the perception of
unlawful or intrusive police conduct,” Illinois v. Gates,
462 U.S. 213, 236 (1983). To serve these ends, the
particularity requirement leaves nothing “to the discretion of
the officer executing the warrant.” Marron, 275 U.S. at 196.
“Absent some grave emergency, the Fourth Amendment has
interposed a magistrate between the citizen and the police.”
McDonald v. United States, 335 U.S. 451, 455 (1948).

Thus, a search or seizure pursuant to an otherwise valid
warrant is unreasonable under the Fourth Amendment to the
extent it exceeds the scope of that warrant. Horton v.
California, 496 U.S. 128, 140 (1990); see also United States
v. Penn, 647 F.2d 876, 882 n.7 (9th Cir. 1980) (en banc). For
example, we have held that a warrant to search the main
house located at a specific address does not provide a license
to search a detached dwelling that is not described in the
warrant. United States v. Cannon, 264 F.3d 875, 879–80
(9th Cir. 2001).

With this fundamental constitutional requirement in
mind, we turn to the question of whether the FBI violated the
Fourth Amendment by using its chosen ruse here.

B.

That the agents had a valid warrant to search the Archie
Avenue residence, including vehicles located at or near the
residence and registered to or accessed by Ramirez, does not
end our inquiry. “An otherwise lawful seizure can violate
the Fourth Amendment if it is executed in an unreasonable
manner,” United States v. Alverez-Tejeda, 491 F.3d 1013,
12 UNITED STATES V. RAMIREZ

1016 (9th Cir. 2007) (citing United States v. Jacobsen,
466 U.S. 109, 124 (1984)), including if it is executed by
means of an unreasonable ruse, id. at 1016–17 (finding the
agents’ “choice of guile” to effect a seizure was reasonable
only because “their vital interest” in using deceit outweighed
the minimal intrusion on the defendant’s Fourth Amendment
interests).

It has long been recognized that law enforcement may
use deceit in certain circumstances. Sorrells v. United
States, 287 U.S. 435, 441 (1932). However, not every ruse
is reasonable under the Fourth Amendment. See Lewis v.
United States, 385 U.S. 206, 209 (1966) (“The various
protections of the Bill of Rights, of course, provide checks
upon such official deception for the protection of the
individual.”); see also Pagan-Gonzalez v. Moreno, 919 F.3d
582, 591–92 (1st Cir. 2019) (“The right to deceive . . . is not
unbounded.”).

“[T]he particular circumstances of each case govern the
admissibility of evidence obtained by stratagem or
deception.” Lewis, 385 U.S. at 208. The court must assess
the reasonableness of law enforcement’s use of deception by
“balanc[ing] the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the
importance of the governmental interests alleged to justify
the intrusion.” Jacobsen, 466 U.S. at 125 (quoting United
States v. Place, 462 U.S. 969, 703 (1983)); Alverez-Tejeda,
491 F.3d at 1016 (“The benchmark for the Fourth
Amendment is reasonableness, which requires us to weigh
the government’s justification for its actions against the
intrusion into the defendant’s interests.”). Thus, we must
decide whether it was reasonable under the Fourth
Amendment for the FBI to use deception in executing the
 UNITED STATES V. RAMIREZ 13

warrant in this case to expand the authorized scope of the
items and persons to be searched and seized.

C.

Although the propriety of a ruse search or seizure
depends on the particular facts of each case, our precedent
draws a clear line between two categories of deception. Law
enforcement’s use of deception is generally lawful when the
chosen ruse hides the officer’s identity as law enforcement
and facilitates a search or seizure that is within its lawful
authority, such as pursuant to a valid search warrant.
Deception is unlawful when the government makes its
identity as law enforcement known to the target of the ruse
and exploits the target’s trust and cooperation to conduct
searches or seizures beyond that which is authorized by the
warrant or other legal authority, such as probable cause.

Undercover operations are a classic example of
permissible deception. “The fourth amendment does not
afford protection to wrongdoers’ misplaced confidences” in
undercover agents. United States v. Little, 753 F.2d 1420,
1435 (9th Cir. 1984). Government agents may conceal their
identities as law enforcement to “afford opportunities or
facilities for the commission of [an] offense” and detect
those engaged in criminal activity. Sorrells, 287 U.S. at 441
(finding no Fourth Amendment violation where an
undercover agent posed as a tourist to ferret out a violation
of prohibition laws); see also Lewis, 385 U.S. at 210 (finding
no Fourth Amendment violation where defendant invited
undercover agent into his home to buy narcotics); United
States v. Garcia, 997 F.2d 1273, 1280 (9th Cir. 1993)
(finding no Fourth Amendment violation when police
officers posing as apartment hunters and speaking with
occupants of an apartment saw defendant holding cocaine
through screen door).
14 UNITED STATES V. RAMIREZ

Similarly, we have found no Fourth Amendment
violation when members of law enforcement conceal their
identities to persuade the subject of a valid arrest warrant to
open his door to facilitate the arrest. In United States v.
Michaud, the FBI lawfully persuaded the subject of a valid
arrest warrant to open her hotel door by claiming to be the
hotel’s assistant manager and falsely stating that her
boyfriend was sick and in need of assistance. 268 F.3d 731,
733 (9th Cir. 2001). Notably, the FBI had full authority to
arrest the defendant pursuant to their valid arrest warrant
before they implemented their ruse, and the agents’ ruse
concealed their identities as law enforcement. Id.

Likewise, the Supreme Court found no Fourth
Amendment violation where law enforcement entered
property covertly and installed electronic bugging devices to
effect a valid search warrant. Dalia v. United States,
441 U.S. 238, 248 (1979). The Supreme Court reasoned that
the electronic surveillance itself was authorized by the
search warrant, and there was a need for covert entry: it was
the “safest and most successful method” of conducting the
authorized surveillance. Id. at 248 & n.8.

However, when the government agent is known to the
suspect as such, and invokes the trust or cooperation of an
individual to search or seize items outside what is lawfully
authorized, such a ruse is unreasonable under Fourth
Amendment. “We take a closer look” at the reasonableness
of the government’s use of deception “when agents identify
themselves as government officials but mislead suspects as
to their purpose and authority.” Alverez-Tejeda, 491 F.3d
at 1017; United States v. Bosse, 898 F.2d 113, 115 (9th Cir.
1990) (explaining that “special limitations apply” in these
circumstances). The balance of interests shifts significantly
when the government’s chosen ruse invokes the public’s
 UNITED STATES V. RAMIREZ 15

trust in law enforcement because of the concern that “people
‘should be able to rely on [the] representations’ of
government officials.” Alverez-Tejeda, 491 F.3d at 1017
(quoting Bosse, 898 F.2d at 115).

“This concern is at its zenith when government officials
lie in order to gain access to places and things they would
otherwise have no legal authority to reach.” Id. “We think
it clearly improper for a government agent to gain access to
[places and things] which would otherwise be unavailable to
him by invoking the private individual’s trust in his
government.” Id. at 1017 (quoting Bosse, 898 F.2d at 115)).
That is, government agents violate the Fourth Amendment if
their authority to access the evidence in question was
obtained by “misrepresenting the scope, nature or purpose of
a government investigation.” Bosse, 898 F.2d at 115.
“[A]ccess gained by a government agent, known to be such
by the person with whom the agent is dealing, violates the
fourth amendment’s bar against unreasonable searches and
seizures if such entry was acquired by affirmative or
deliberate misrepresentation of the nature of the
government’s investigation.” Little, 753 F.2d at 1438
(emphasis added). As the Fifth Circuit has said:

[A] private person has the right to expect that
the government, when acting in its own
name, will behave honorably. When a
government agent presents himself to a
private individual, and seeks that individual’s
cooperation based on his status as a
government agent, the individual should be
able to rely on the agent’s representations.
We think it clearly improper for a
government agent to gain access to records
which would otherwise be unavailable to him
16 UNITED STATES V. RAMIREZ

by invoking the private individual’s trust in
his government, only to betray that trust.

SEC v. ESM Gov’t Sec., Inc., 645 F.2d 310, 316 (5th Cir.
1981).

Thus, we held in United States v. Phillips that federal
agents violated the Fourth Amendment by using a ruse to
execute an arrest. 497 F.2d 1131, 1136 (9th Cir. 1974). In
Phillips, we assumed the agents had probable cause to arrest
the defendant, id. at 1133, but found that the agents did not
have authority to enter the defendant’s office building to
effect his arrest because they lacked probable cause to think
he would be inside, id. at 1136. The agents concocted a ruse
to fill this gap in their authority: the agents directed
uniformed police officers to knock on the building door and
ask another occupant for “permission to enter to investigate
a report of a burglary in the building,” even though there was
no such report. Id. at 1133. After the uniformed officers
obtained “consent” to enter, the agents followed them inside
and arrested the defendant. Id. The defendant’s arrest
violated the Fourth Amendment because the ruse could not
create the authority to access the building the officers did not
already possess, particularly because the agents revealed
their status as law enforcement and misrepresented the
purpose of their investigation. See id. at 1135 & n.4; Bosse,
898 F.2d at 115 (discussing Phillips and explaining that this
type of misrepresentation invalidates consent).

Law enforcement does not have carte blanche to use
deception to effect a search and seizure. A ruse that reveals
the officers’ identity as law enforcement but misrepresents
the purpose of their investigation so that the officers can
evade limitations on their authority raises serious Fourth
Amendment concerns.
 UNITED STATES V. RAMIREZ 17

D.

Under these well-established principles, the ruse used
here was not a permissible means to effect the search and
seizure of Ramirez. The FBI agents posed as police officers
and played on Ramirez’s trust and reliance on their story that
his home had been burglarized to bring Ramirez and his car
within the ambit of the warrant, when they were not
otherwise within its ambit. The FBI had no acceptable
government interest in using this ruse. Thus, balancing the
strong Fourth Amendment interest against the non-existent
government interest, the FBI’s conduct was plainly
unreasonable under the Fourth Amendment.

1.

The Fourth Amendment interest in this case is near its
zenith because the agents’ chosen ruse both revealed the
agents’ identities as law enforcement and created authority
to search items and seize Ramirez that otherwise exceeded
the strict bounds of the warrant. See Alverez-Tejeda,
491 F.3d at 1017.

The search warrant gave the FBI only limited authority
to conduct searches and seizures. The warrant authorized
the agents to search the Archie Avenue residence, where
Ramirez and others were known to reside, and any vehicles
located at or near the premises that fall under the dominion
and control of Ramirez or any other occupant of the
premises. By the plain terms of the warrant, the agents had
no authority to search any vehicle located away from the
residence.

The warrant did not authorize the agents to seize
Ramirez, and the Government does not argue that it had
18 UNITED STATES V. RAMIREZ

reasonable suspicion or probable cause to do so. 3 In fact, the
Government concedes that at the time the agents seized
Ramirez, the agents knew only that child pornography had
been shared from the Archie Avenue residence; it did not
know who was responsible. The Government conceded at
oral argument that the agents’ authority to pat down Ramirez
when he arrived home rested solely on the Summers rule,
which permits officers executing a valid search warrant to
detain occupants within the immediate vicinity of the
premises during the search. See Bailey v. United States,
568 U.S. 186, 195–96 (2013) (discussing Summers, 452 U.S.
at 702–03). “Immediate vicinity” is narrowly defined. In
Bailey, for example, the Supreme Court held that the officers
violated the Summers rule by detaining a defendant who had
“left the apartment before the search began,” and “wait[ing]
to detain him until he was almost a mile away.” Bailey,
568 U.S. at 194, 201. Thus, as with Ramirez’s car, the FBI’s
authority to seize Ramirez depended on his presence at the
residence.

In short, because Ramirez and his car were not located at
the Archie Avenue residence when the FBI arrived to
execute their search warrant, they fell outside the scope of
the warrant. The FBI therefore lacked the legal authority to
seize them when they arrived to execute the warrant, before
they employed their deliberate ruse. See Bivens, 403 U.S.
at 394 n.7 (stating “an officer executing a search warrant [is
confined] strictly within the bounds set by the warrant”). It

3
Our dissenting colleague opines that the FBI had reasonable
suspicion to seize Ramirez, Dissent at 44 n.4, but the Government
waived that argument by failing to raise it in its answering brief. See
United States v. McEnry, 659 F.3d 893, 902 (9th Cir. 2011) (when the
government does not make an argument that “was available at the time
it filed its answering brief . . . [it] has waived that argument.”).
 UNITED STATES V. RAMIREZ 19

was only by posing as police officers investigating a
fictitious home burglary that the agents convinced Ramirez
to drive home, thereby creating the authority to seize him
and his car that did not otherwise exist at the time.

The dissent takes the position that, because the agents
would have had authority to seize Ramirez and his car had
Ramirez voluntarily returned home when the agents were
executing the warrant, the agent’s use of deceit was lawful.
But this is not what happened. The agents chose not to wait
and see if Ramirez returned home of his own accord. It
matters not that the FBI might have been able to search
Ramirez’s car or speak with him had they used a different
method. As we explained in a ruse entry case in which the
homeowner admitted “she would have invited [the detective]
into her home even if she had known” the true nature of his
investigation, “[i]t is entirely immaterial that [the detective]
could have lawfully searched [the owner’s] home by
securing her consent without using a ruse.” Whalen v.
McMullen, 907 F.3d 1139, 1148 (9th Cir. 2018). We are
concerned here with whether the agents’ actual conduct was
constitutional.

When we return from our dissenting colleague’s
hypothetical world to what actually happened, it is clear that
the agents did not have authority to seize Ramirez or his car
because both were at his office and not on the premises to be
searched. If the agents wanted to seize Ramirez or his car
under their existing warrant, they could have waited for
Ramirez to return voluntarily or executed the warrant at a
different time. Or, having ruled out the tenant Blanch and
Ramirez’s mother as suspects, they could have sought a
warrant based on probable cause to arrest Ramirez or search
his car elsewhere. See Sedaghaty, 728 F.3d at 914 (“To the
extent [government] agents want[] to seize relevant
20 UNITED STATES V. RAMIREZ

information beyond the scope of the warrant, they should
[seek] a further warrant.”). The FBI agents did none of these
things. Instead, the agents lied about their identity and the
purpose of the investigation to fill the gaps in their authority.

Permitting the agents’ conduct would eviscerate the
limitations implemented by the Summers rule, allowing law
enforcement to seize people located away from the premises
to be searched. “Conducting a Summers seizure incident to
the execution of a warrant is not the Government’s right; it
is an exception—justified by necessity—to a rule that would
otherwise render the [seizure] unlawful.” Bailey, 568 U.S.
at 204 (Scalia, J., concurring) (internal quotations omitted).
It also risks subverting the particularity requirements of the
Fourth Amendment in future cases. Law enforcement could
turn a warrant to search a home into a warrant to search any
number of items outside the home, so long as they could trick
a resident into bringing those items to the home to be
searched before the warrant was executed. The deceit
employed in this case opens a loophole that the Fourth
Amendment does not condone.

To make matters worse, the FBI’s chosen ruse invoked
Ramirez’s trust in the government and “introduce[d] an
extraneous factor,” a burglary that Agent Ratzlaff refused to
discuss over the phone, which was “calculated to make it
falsely appear that [it] . . . was essential” for Ramirez to
return home. See 4 Wayne R. LaFave, Search and Seizure:
A Treatise on the Fourth Amendment § 8.2(n) & n.424 (5th
ed. 2012 & Supp. 2019). Our cases make clear that a
suspect’s Fourth Amendment interests are at their zenith
where, like here, “government officials lie in order to gain
access to . . . things they would otherwise have no legal
authority to reach.” Alverez-Tejeda, 491 F.3d at 1017.
 UNITED STATES V. RAMIREZ 21

2.

In contrast to the strong Fourth Amendment interests
implicated in this case, the Government’s purported interest
in luring Ramirez home to speak with him is illusory. The
agents’ two stated justifications for using the ruse to secure
Ramirez and his car’s presence on the premises were that
(1) they did not want to breach the front door, which would
inhibit future cooperation, and (2) they wanted to talk to the
subscriber of the internet account, whom they knew was
Ramirez. Neither is sufficient to countervail the Fourth
Amendment interests at stake.

The FBI did not need the ruse to avoid breaking down
doors because Ramirez’s mother arrived shortly after they
did and, despite having had the truth of the agents’
investigation revealed to her, she unlocked the front door for
the agents. Yet the ruse continued. Even after the door had
been opened for the agents by Ms. Ramirez, when the FBI
received a call from Ramirez, who was on the way to what
he thought was his burglarized home, the agents did not
reveal the truth to him.

As for the agents’ second stated interest in the ruse—that
they wanted to speak with the internet subscriber as part of
their initial investigation—they could have spoken with
Ramirez at any time without undertaking this elaborate ruse
to bring him to his house at the same time they were
executing the warrant. The only possible reasons for their
chosen conduct were (1) to seize Ramirez under Summers,
and (2) to secure the car at the residence so they could then
purport to lawfully search it under the warrant. Assuming
the agents saw some efficacy in speaking to Ramirez
specifically at his residence, the Government articulates no
reason why the agents could not have simply waited to
execute the warrant until Ramirez returned home of his own
22 UNITED STATES V. RAMIREZ

accord, or waited to approach Ramirez at a different time or
on a different day entirely. Agent Ratzlaff testified that he
“didn’t believe [the evidence] was going anywhere,” so there
was no need to speed up the process. We have never
recognized inconvenience or impatience as justification for
exceeding the scope of a lawfully issued warrant. See
Bailey, 568 U.S. at 199; McDonald, 335 U.S. at 455
(“[I]nconvenience of the officers and delay in preparing
papers and getting before a magistrate . . . are no justification
for by-passing the constitutional requirement.”).

Thus, there is no governmental interest justifying the
ruse here, because neither stated justification is factually
supported. The absence of any governmental interest places
this case in stark contrast with Alverez-Tejeda, where the
government had a “vital interest” in using the ruse. 491 F.3d
at 1017. In Alverez-Tejeda, federal agents investigating a
drug conspiracy staged a carjacking to seize the appellant’s
car, which they had probable cause to believe he was using
to transport illicit drugs. Id. at 1015. The concern that
“government officials [will] lie in order to gain access to
places and things they would otherwise have no legal
authority to reach” was not present; it was undisputed that
the officers there had full authority to seize the car and arrest
the appellant before the ruse was implemented. Id. at 1016–
17. The government also had a “vital interest” in using a
ruse to avoid tipping off the appellant’s co-conspirators
about their investigation. Id. at 1017–18. In these
circumstances, we held there was nothing “unreasonable in
the agents’ choice of guile to seize the car, rather than taking
it outright, as they were entitled to do.” Id. at 1017.

For the same reason, the Government’s reliance on the
non-binding case United States v. Harris, 961 F. Supp. 1127
 UNITED STATES V. RAMIREZ 23

(S.D. Ohio 1997), is misplaced. 4 In Harris, the court
approved of a ruse that was “reasonable . . . [and] necessary
for the protection of the officers.” Id. at 1133. Police
officers obtained a warrant to search the defendant’s home
after learning that he had ordered and received vials of the
bacteria that caused the bubonic plague. Id. at 1129. The
officers “lured [the defendant] out of his residence by telling
him his car had been involved in a hit-skip accident,” walked
the defendant to his car, and handcuffed him. Id. at 1130.
The defendant was already present at the premises to be
searched when the officers employed their ruse, so there was
no concern that the ruse enabled the officers to expand their
authority by circumventing the Summers rule. The court
found that the ruse was minimally intrusive because the
officers had a valid warrant to enter the defendant’s home
and the ruse lasted only a few moments. Id. at 1133. In
addition, the ruse and the defendant’s detention were
“necessary for the protection of the officers” because they
were facing a “new situation” involving “a potentially
deadly pathogen.” Id. Thus, the ruse served not to expand
the officers’ authority but only to ensure the officers’ safe
entry to the premises to be searched.

In short, the seizures-by-ruse in Alverez-Tejeda and
Harris were permissible because the government had full
and actual legal authority to seize the evidence at issue
before implementing their ruse, and a strong governmental

4
The other case cited by the Government, United States v. Smith,
919 F.3d 1, 10 (1st Cir. 2019), is of no help because the First Circuit
assumed, without deciding, that a constitutional violation occurred when
government agents used a ruse to gain access to the defendant’s property.
24 UNITED STATES V. RAMIREZ

interest justified those chosen ruses. Neither is true in this
case. 5

3.

Balancing the Government’s justification for its actions
against the intrusion into the defendant’s Fourth Amendment
interests, the Government’s conduct was clearly
unreasonable. The Fourth Amendment interest is near its
zenith in this case because the agents betrayed Ramirez’s
trust in law enforcement in order to conduct searches and
seizures beyond what they were lawfully authorized to do.
Ramirez and his car were away from the residence when the
agents arrived to execute the search warrant. Thus, under
5
The cases cited by the dissent are likewise distinguishable. Several
hold that law enforcement may use a ruse to persuade an arrestee to open
the door in order to execute a valid arrest warrant—a point that is not at
issue in this case and that does not conflict with the Summers rule. See
Michaud, 268 F.3d at 733; see also United States v. Alejandro, 368 F.3d
130, 131, 137 (2d Cir. 2004); State v. Bentley, 975 P.2d 785, 788 (Idaho
1999).

The others involve a ruse used to execute a search warrant where
there was a strong governmental interest in using the ruse to safely gain
entry onto the property, or the ruse played no role in gaining authority to
access the thing to be searched. See United States v. Vargas, 621 F.2d
54, 56–57 (2d Cir. 1980) (the ruse-entry, in addition to being
unnecessary to obtain authority to enter the home to be searched, was
justified, “[g]iven the huge amount of pure cocaine known to be in the
apartment and the presence of innocent children[,] . . . to avoid a possible
resort to violence”); State v. Myers, 689 P.2d 38, 40–43 (Wash. 1984)
(the ruse-entry, in addition to being unnecessary to obtain authority to
enter the home to be searched, was justified because the front door was
protected by a cast iron grill and the defendant was known to answer the
door in possession of a handgun); Coleman v. United States, 728 A.2d
1230, 1236–37 (D.C. 1999) (the ruse-entry was permissible where the
officers had a warrant that “gave them the authority to enter and search
the house regardless of the consent or non-consent of anyone inside”).
 UNITED STATES V. RAMIREZ 25

the Summers rule and due to the limited scope of the warrant,
the agents had no authority to seize Ramirez or his car at the
time in question. The agents nevertheless proceeded to
identify themselves as law enforcement and misrepresent the
purpose of their investigation to effect these seizures. There
is no supportable government interest to tip the other side of
the scale. The agents identified no acceptable justification
for using a ruse to lure Ramirez home. In these
circumstances, the deceit employed by the agents violated
the Fourth Amendment.

IV.

A.

The Government argues that there was no Fourth
Amendment violation because the agents never seized
Ramirez. Not so. The agents unquestionably seized
Ramirez after luring him back to the Archie Avenue
residence, when they placed him in a finger hold, frisked
him, and removed his phone, wallet, and keys. Terry v.
Ohio, 392 U.S. 1, 19 (1968). There is also no debate that the
agents seized electronic devices from Ramirez’s car.

Both of these seizures were unconstitutional as they were
the direct result of the FBI agents’ unreasonable ruse.
Ramirez and his car were at the residence, and consequently
within the scope of the warrant and the Summers rule, only
because of the unjustified ruse. Because the FBI obtained
Ramirez’s phone, wallet, keys, and the electronic devices in
Ramirez’s car as a product of these unlawful seizures, that
evidence is tainted by the prior illegality and thus
inadmissible. See Wong Sun, 371 U.S. at 488; United States
v. Landeros, 913 F.3d 862, 870 (9th Cir. 2019) (excluding
evidence seized from unlawful pat down).
26 UNITED STATES V. RAMIREZ

B.

We must next determine whether Ramirez’s statements,
made after Agent Ratzlaff revealed the true purpose of the
investigation and asked to speak with him, should be
suppressed because they were tainted by the illegality of the
initial seizure. 6

“It is well established that, under the ‘fruits of the
poisonous tree’ doctrine, evidence obtained subsequent to a
violation of the Fourth Amendment is tainted by the
illegality and is inadmissible, despite a person’s voluntary
consent, unless the evidence obtained was ‘purged of the
primary taint.’” Washington, 490 F.3d at 774 (quoting Wong
Sun, 371 U.S. at 488). “The test for admissibility of the
evidence under these circumstances is two-fold: not only
must the consent be voluntary, but it must also be
‘sufficiently an act of free will to purge the primary taint’”
of the initial constitutional violation. Id. at 774 (quoting
Wong Sun, 371 U.S. at 466); United States v. Bocharnikov,
966 F.3d 1000, 1004 (9th Cir. 2020) (“[W]hen a confession
results from certain types of Fourth Amendment violations
. . . , the government must go beyond showing that the
confession was voluntary—it must also ‘show a sufficient
break in events to undermine the inference that the
confession was caused by the Fourth Amendment
violation.’” (quoting Oregon v. Elstad, 470 U.S. 298, 306
(1985))).

Ramirez’s statements, even if made voluntarily, are
inadmissible if they were obtained through “exploitation of
illegality,” here, the use of the ruse to circumvent the

6
The district court did not separately analyze this question because
it erroneously determined that the ruse was lawful.
 UNITED STATES V. RAMIREZ 27

Summers rule and unlawfully seize Ramirez, supra IV.A,
and not “by means sufficiently distinguishable to be purged
of the primary taint.” See Wong Sun, 371 U.S. at 488; see
also Washington, 490 F.3d at 774. Three factors are relevant
to assessing this causal connection: “temporal proximity,”
“the presence of intervening circumstances,” and “the
purpose and flagrancy of the official misconduct.”
Washington, 490 F.3d at 776 (quotation marks omitted)
(quoting Brown v. Illinois, 422 U.S. 590, 603–04 (1975));
see also Dunaway v. New York, 442 U.S. 200, 218 (1979).
The government has the burden of showing the taint of the
constitutional violation is attenuated such that the evidence
is admissible. Washington, 490 F.3d at 777.

In United States v. Johnson, in relevant part, the
government arrested the defendant without a warrant in
violation of the Fourth Amendment when the defendant,
standing inside his home, opened his door to two agents who
had misrepresented their identities and had their guns drawn.
626 F.2d 753, 755, 757 (9th Cir. 1980). We held that the
defendant’s subsequent statements, made in his bedroom ten
minutes after this arrest, were “obtained by exploitation of
the illegality of his arrest” and should have been suppressed.
Id. at 758–59 (quoting Dunaway, 442 U.S. at 217). We
reasoned that both temporal proximity and the absence of
any intervening circumstances supported this conclusion, id.
at 759, even though—as in Ramirez’s case—the statements
were made after the agents revealed their true identities and
holstered their weapons, and even though the defendant had
agreed to speak with them, id. at 755. The mere minutes
between the defendant’s illegal detention and his
incriminating statements made “the close causal
relationship” undeniable, notwithstanding the agents’
decision to come clean and the absence of particularly
purposeful or flagrant misconduct. Id. at 759.
28 UNITED STATES V. RAMIREZ

Johnson’s analysis of the Dunaway/Brown doctrine
controls here. Within a mere forty-five minutes of
successfully executing their unlawful ruse, the agents
obtained Ramirez’s confession. There was no meaningful
break or intervening event between the unlawful use of the
ruse to effect Ramirez’s seizure and his incriminating
statements. See Johnson, 626 F.2d at 758–59 (concluding
Johnson’s confession was tainted because it “was made
within ten minutes after the entry and . . . ‘[n]o intervening
events broke the connection between petitioner’s illegal
detention and the confession.’”). Moreover, the purpose and
flagrancy of the misconduct weighs in favor of suppression,
as the Government plainly used its unlawful ruse to
circumvent Summers and the Fourth Amendment’s
particularity requirement. See Dunaway, 442 U.S. at 218
(noting the “quality of purposefulness” of the primary
illegality weighed in favor of suppression). The
Government has not shown that Ramirez’s statements were
“sufficiently an act of free will to purge the primary taint” of
his unlawful seizure. See Wong Sun, 371 U.S. at 486; see
also Johnson, 626 F.2d at 758–59 (suppressing a statement
given ten minutes after unlawful seizure, with no intervening
circumstances); Washington, 490 F.3d at 777 (holding
consent did not purge the taint of an illegal seizure where the
officer “requested . . . consent . . . immediately after he
conducted a search of [the defendant’s] person, and while
[the defendant] was illegally seized,” and there were no
“intervening circumstances.”).

The dissent attempts to undercut the causal connection
between Ramirez’s illegal seizure—effected by the unlawful
ruse—and Ramirez’s subsequent inculpatory statements by
suggesting that the “result might have been different had
Ramirez remained seized” at the time the statements were
made. Dissent at 45, 46. The dissent misapprehends the
 UNITED STATES V. RAMIREZ 29

controlling Fourth Amendment precedent. No requirement
exists that a defendant remain seized following an illegal
seizure for the defendant’s subsequent statements to be
deemed tainted by the illegal seizure. Recently, in
Bocharnikov, for example, officers went to Bocharnikov’s
home after he pointed a laser at a police aircraft. 966 F.3d
at 1001. The officers illegally detained Bocharnikov,
interrogated him, and obtained a confession. Id. at 1002.
Eight months later, an agent returned to Bocharnikov’s home
to ask “follow-up” questions, and Bocharnikov again made
incriminating statements. Id. Although Bocharnikov was
not seized when he made this second set of statements, we
applied the Brown factors to hold that the district court erred
by not suppressing those statements because they were not
“sufficiently attenuated from the illegal detention and
seizure eight months prior.” Id. at 1006.

It is well established that to demonstrate that the
statements were sufficiently attenuated, the government
must prove that the statements were (1) voluntary, and
(2) untainted by the illegal seizure. See Bocharnikov,
966 F.3d at 1004; Washington, 490 F.3d at 774. Notably,
the dissent’s attenuation analysis is largely limited to the
voluntariness inquiry—in which a defendant’s continued
seizure is just one factor. See Washington, 490 F.3d at 775
(identifying “whether defendant was in custody” as one of
five factors to consider in determining whether “consent to
search was voluntarily given”). While we maintain serious
concerns that consent was not voluntary here, 7 we

7
In Washington, we stated that consent provided at a time when a
reasonable person would “not have felt free to terminate the encounter
and leave . . . raises grave questions” as to whether that consent can be
considered voluntary. 490 F.3d at 775–76. We share similar concerns
regarding voluntariness here. Ramirez returned home not to voluntarily
30 UNITED STATES V. RAMIREZ

emphasize that our conclusion does not hinge on this
determination and is instead rooted in our finding that the
Government failed to carry its burden to show that
Ramirez’s incriminating statements were not obtained
through “exploitation of illegality”—the use of the ruse to
circumvent the Summers rule and unlawfully seize
Ramirez— rather than “by means sufficiently
distinguishable to be purged of the primary taint.” See Wong
Sun, 371 U.S. at 488.

speak with the agents about their child pornography investigation, but
because he believed that his house had been burglarized. See Johnson,
626 F.2d at 757 (holding the defendant’s “initial exposure” to
government agents was not consensual or voluntary where he opened his
door to agents who misrepresented their identities). He agreed to speak
to the agents only after he was unlawfully seized, as explained above, by
being placed in a finger hold with his fingers behind his back.

Moreover, although we need not reach the issue of whether Ramirez
remained “seized” during the interview, Ramirez makes a compelling
argument that his seizure continued even after the officer safety search
had been completed. The armed agents, who outnumbered him seven to
one, had impeded his realistic means of leaving the scene by taking his
phone, wallet, and keys. See Washington, 490 F.3d at 773; see also
Royer, 460 U.S. at 501, 503; United States v. Chan-Jimenez, 125 F.3d
1324, 1326 (9th Cir. 1997). And although Agent Ratzlaff informed
Ramirez that he was not under arrest during the interview, no agent
“informed [Ramirez] of his right to terminate the encounter” at any time,
and Agent Ratzlaff affirmatively prevented Ramirez from speaking to
his mother, all of which weigh in favor of finding a seizure. Washington,
490 F.3d at 772.

Despite these concerns, we need not decide the issue of
voluntariness because we conclude that Ramirez’s statements were
tainted by the unconstitutionality of his initial seizure.
 UNITED STATES V. RAMIREZ 31

V.

The district court erred by denying the motion to
suppress Ramirez’s phone, wallet, keys, electronic
equipment, and statements. Because we reverse the denial
of the motion to suppress on Fourth Amendment grounds,
we do not reach Ramirez’s Fifth Amendment argument or
the propriety of his special conditions of release. We also
need not reach Ramirez’s challenge to the district court’s
restitution order, as Ramirez concedes the issue is now moot.
For this same reason, we deny without prejudice the
Government’s motion to supplement the record with
documents demonstrating mootness.

REVERSED AND REMANDED.

COLLINS, Circuit Judge, dissenting:

Defendant Stefan Ramirez was convicted of distribution
of child pornography in violation of 18 U.S.C. § 2252(a)(2)
and sentenced to 151 months in prison and five years of
supervised release. In sentencing Ramirez, the then-Chief
Judge of the district court stated that, in nearly 20 years of
federal judicial service, he had never had a child-
pornography case worse than this one:

I mean we are talking in this case about
the attempted rape of a two- or three-year-old
child. We are talking about tying up a nine-
year-old and having a dog do things to her.
We are talking about things that are just,
beyond description, horrid.

...
32 UNITED STATES V. RAMIREZ

I truly meant it when I said that I have not
seen a group of photos that were more
violative of the decency of humanity than
these. The faces on several of the children
said it all. The fear. The pain.

Today, however, Ramirez escapes justice based on a
wholly illusory Fourth Amendment violation. Here, a
magistrate judge specifically found probable cause to search
Ramirez’s car for child pornography and therefore granted a
search warrant that expressly authorized a search of that car
while it was at Ramirez’s residence. The majority
nonetheless holds that the agents executing the search
warrant violated the Fourth Amendment because, rather than
waiting until Ramirez and his car were home before
executing the search warrant, the lead FBI agent used a ruse
to get Ramirez to return to the house with his car during the
search. The majority therefore suppresses the electronic
devices loaded with child pornography that were found in
Ramirez’s car, as well as the incriminating statements that
Ramirez made after his return. In so doing, the majority
seriously errs.

Contrary to what the majority suggests, the core Fourth
Amendment requirements of probable cause and a
particularized warrant were satisfied with respect to a search
of Ramirez’s car for child pornography, because the warrant
application specifically explained why there was probable
cause to believe that the sought-for electronic devices would
be found in the car and the magistrate judge expressly
granted the requested authority to search Ramirez’s car.
Because (for reasons that are unclear) the FBI only requested
a warrant to search the car while it was at Ramirez’s house,
the agent’s subsequent use of the ruse only affected the
manner in which the search fulfilled that condition of the
 UNITED STATES V. RAMIREZ 33

warrant, which is not one that was required by the Fourth
Amendment. To search Ramirez’s car, as expressly
contemplated by the warrant, the FBI either had to wait for
Ramirez to come home or the FBI had to find a way to get
him to return to the house. The majority is quite wrong in
conjuring a constitutional difference between these two
choices in the circumstances of this case. The result would
be different if the ruse had been used to bring within the
literal scope of the warrant some item that was wholly
outside the contemplation of the warrant application—that
would have operated as a clear evasion of the constitutional
requirements of a determination of probable cause by a
neutral magistrate who then grants a warrant authorizing the
search of that particular item. But that is not at all what
happened here. The agents instead found exactly what they
were looking for in exactly the vehicle they had been granted
permission to search based on an undisputed showing of
probable cause. Far from being “near its zenith,” Ramirez’s
“Fourth Amendment interest” in the particular manner in
which the search warrant was executed here is insubstantial.
Cf. Maj. Opin. at 17, 24.

The majority further errs in holding that the inculpatory
statements made by Ramirez must be suppressed as fruits of
an unconstitutional seizure of Ramirez that resulted from the
supposedly wrongful ruse. Even assuming arguendo that the
brief initial pat-down of Ramirez was an unconstitutional
seizure, Ramirez’s subsequent confession was in no sense a
fruit of that momentary frisk. And I agree with the district
court that Ramirez was not seized during his subsequent
interview with two FBI agents that was conducted in his own
home, and so his confession cannot be suppressed on the
theory that it was a fruit of any such alleged seizure.

I respectfully dissent.
34 UNITED STATES V. RAMIREZ

I

The Fourth Amendment protects the “right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures,” and its Warrant
Clause further specifically provides that “no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.”
U.S. Const. amend. IV. Here, all of the requirements of the
Warrant Clause were clearly satisfied with respect to a
search of Ramirez’s car for child pornography. Moreover,
the manner in which the search of the car was conducted was
not “unreasonable,” despite the FBI agents’ use of deception
in carrying it out. Accordingly, there was no violation of the
Fourth Amendment in the search of Ramirez’s car and no
basis to suppress the evidence seized from it.

A

An FBI agent submitted a warrant application that set
forth detailed and specific facts establishing probable cause
to believe that child pornography was being shared
electronically through an IP address registered to Ramirez at
his home. The application further expressly stated that,
given the portability of many electronic devices today,
“these devices are often stored in vehicles to prevent other
users in the home from discovering the existence of a child
pornography collection,” and the application therefore
sought specific “permission to search vehicles located at or
near the premises that fall under the dominion and control of
the person or persons associated with the premises.” The
application further described a “white Chrysler sedan” with
a specified California license plate as being registered to
Ramirez and as being “operated on a regular basis” from
Ramirez’s home. The agent who authored the affidavit
 UNITED STATES V. RAMIREZ 35

subscribed and swore to it before a magistrate judge who,
after reviewing the application, found probable cause to
believe that child pornography would be found in Ramirez’s
house and his car. The magistrate judge therefore
specifically authorized a search, not just of Ramirez’s house,
but of “any vehicles registered to or accessed by Stefan
Ramirez,” and the warrant authorized the seizure of, inter
alia, any “[c]omputers or storage media” used to share or
store child pornography. 1 After Ramirez returned home
with his white Chrysler sedan as a result of the agents’ ruse,
the agents searched the vehicle pursuant to the warrant and
found in the vehicle four devices containing child
pornography (viz., two laptops and two hard drives). These
were the only four items seized during the search; no child
pornography was found in the house itself.

On these undisputed facts, there can be no denying that
a “neutral and detached magistrate had found probable
cause” to believe (1) that the law was being violated in
Ramirez’s house and (2) that evidence of such violations
might be found in that house and in Ramirez’s car. Michigan
v. Summers, 452 U.S. 692, 701 (1981). The facts
demonstrating such probable cause were “supported by
Oath,” see U.S. Const. amend. IV, and those facts
specifically established probable cause to search Ramirez’s
white Chrysler sedan. Moreover, the warrant issued by the

1
Although the actual warrant does not explicitly replicate the
warrant application’s limitation that the vehicles to be searched must be
“located at or near the premises,” all parties have construed the warrant
as implicitly containing such a limitation. And although the warrant
could arguably be read as also authorizing the search of vehicles under
the control of “any other occupant of the premises,” no such issue is
presented here because no one else’s vehicle was searched. Accordingly,
I construe the warrant as extending only to vehicles registered to, or
accessed by, Ramirez and that are located at or near his home.
36 UNITED STATES V. RAMIREZ

magistrate judge particularly “describ[ed] the place to be
searched” as including Ramirez’s car at his house, and it
likewise specifically described the “things to be seized” as
including laptops and hard drives containing child
pornography. See id. Because probable cause had been
shown, based on sworn-to facts, to specifically justify
searching Ramirez’s white Chrysler sedan and because a
magistrate judge issued a warrant particularly authorizing a
search of that car at Ramirez’s house as well as the seizure
of laptops and hard drives from it, the FBI’s search in this
case satisfied every aspect of the Warrant Clause.

B

Even if the requirements of the Warrant Clause are
satisfied, however, the Fourth Amendment still further
requires that a search must not be “unreasonable.” See U.S.
Const. amend. IV. The majority concludes that the search
here was unreasonable because the FBI’s use of deception in
getting Ramirez to return home with his white Chrysler
sedan supposedly “expand[ed] the authorized scope of the
items and persons to be searched and seized.” See Maj.
Opin. at 12–13. This holding misreads both our precedent
and the record in this case.

As the majority notes, see Maj. Opin. at 13–14, we have
held that, while officers may properly conceal their law-
enforcement status in conducting undercover work, see
Lewis v. United States, 385 U.S. 206, 208–09 (1966), it is
quite another matter for them to reveal themselves to be
government agents and then to “obtain[] entry [to property]
by misrepresenting the scope, nature, or purpose of a
government investigation,” United States v. Bosse, 898 F.2d
113, 115 (9th Cir. 1990). Recognizing the “[s]pecial
limitations,” id., that apply in the latter situation, we have
long held that it is “‘clearly improper for a government agent
 UNITED STATES V. RAMIREZ 37

to gain access to [property] which would otherwise be
unavailable to him by invoking the private individual’s trust
in his government,’” United States v. Alverez-Tejeda,
491 F.3d 1013, 1017 (9th Cir. 2007) (quoting Bosse,
898 F.2d at 115) (further citation omitted). We have
repeatedly applied this principle to invalidate “consent”
searches of otherwise-unavailable property when a known
government officer obtained that consent by misrepresenting
his or her governmental purpose. See Whalen v. McMullen,
907 F.3d 1139, 1147–48 (9th Cir. 2018); Bosse, 898 F.2d
at 115; see also United States v. Robson, 477 F.2d 13, 17
(9th Cir. 1973) (“It is a well established rule in this and other
circuits that a consent search is unreasonable under the
Fourth Amendment if the consent was induced by the deceit,
trickery or misrepresentation of the Internal Revenue
agent.”). Contrary to what the majority contends, see Maj.
Opin. at 17–24, this principle has no application here
because the ruse employed in this case did not have the effect
of allowing the agents “to gain access to places and things
they would otherwise have no legal authority to reach.”
Alverez-Tejeda, 491 F.3d at 1017.

Unlike the cases in which we have found a violation of
this principle, the agents here did not use the ruse to evade
the Fourth Amendment requirements to show probable cause
and to obtain a warrant authorizing the seizure of specified
items from a particular place. In both Bosse and Whalen, for
example, we held that the ruses were impermissible because
the officers had failed to satisfy the core Fourth Amendment
requirements of a warrant and probable cause and were
relying solely upon the ostensible authority obtained from a
fraudulently-induced consent to government entry. See
Whalen, 907 F.3d at 1144 (agent investigating defendant for
disability-benefits fraud was only admitted to suspect’s
house after falsely telling her that he was investigating an
38 UNITED STATES V. RAMIREZ

identity-theft ring in the area); Bosse, 898 F.2d at 114 (ATF
agent accompanied state firearms licensing officer on
consent inspection of defendant’s house without identifying
himself). In sharp contrast, the FBI agent here did make the
necessary sworn showing of probable cause to obtain a
warrant to search Ramirez’s white Chrysler sedan for
devices containing child pornography, and therefore that
specific car was within the FBI’s “legal authority to reach.”
Alverez-Tejeda, 491 F.3d at 1017. The evasion of Fourth
Amendment requirements that was the basis of our rulings
in Bosse and Whelan is thus absent here.

The majority notes that the warrant here only allowed the
search of Ramirez’s car to take place while the vehicle was
at Ramirez’s home, see Maj. Opin. at 17, but that fact
provides no basis for finding an evasion of Fourth
Amendment requirements. This feature of the warrant
effectively imposed a limitation on the manner in which the
authorized search of Ramirez’s car could be conducted, and
here the FBI agents used the ruse to comply with that
manner-of-execution restriction. Nothing about that
limitation, or the manner of the agents’ compliance with it,
detracts from the fact that the agents had done everything the
Fourth Amendment requires to secure explicit legal
authority to search that particular vehicle for the items that
were seized from it. Indeed, the majority concedes that the
agents could have searched Ramirez’s car “under their
existing warrant” simply by “wait[ing] for Ramirez to return
voluntarily or execut[ing] the warrant at a different time,”
see id. at 19, but the majority nonetheless concludes that the
Fourth Amendment was violated simply because, rather than
waiting, the agents tricked Ramirez into coming home early,
see id. at 23–24. The majority, however, is unable to cite a
single case in which this court has ever condemned the use
of deception to facilitate the successful execution of a valid
 UNITED STATES V. RAMIREZ 39

warrant to search or seize the very thing or person specified
in the warrant. On the contrary, both this court and other
courts have broadly held that the Fourth Amendment does
not forbid the use of a ruse in carrying out an otherwise valid
search. See, e.g., United States v. Michaud, 268 F.3d 728,
733 (9th Cir. 2001) (“‘There is no constitutional mandate
forbidding the use of deception in executing a valid arrest
warrant.’” (quoting Leahy v. United States, 272 F.2d 487,
490 (9th Cir. 1959))); see also United States v. Alejandro,
368 F.3d 130, 137–38 (2d Cir. 2004) (“‘[A] ruse in execution
of a search warrant violates neither [18 U.S.C.] § 3109’”—
which addresses the manner of executing search warrants—
“‘nor the Fourth Amendment.’” (citation omitted)); United
States v. Vargas, 621 F.2d 54, 56–57 (2d Cir. 1980) (“The
use of a ruse by the agents to gain admission . . . after the
issuance of the warrant was fully justified.”); State v.
Bentley, 975 P.2d 785, 786, 788 (Idaho 1999) (no Fourth
Amendment violation where, in order to execute warrant that
authorized defendant’s arrest only “in a public place but not
in his home,” officers arrived at defendant’s home and lured
him outside by lying about what they were investigating);
Coleman v. United States, 728 A.2d 1230, 1236–37 (D.C.
1999) (distinguishing Bosse and other cases, and finding no
Fourth Amendment violation where officers gained entry to
execute a search warrant by falsely stating that they were
investigating a burglary); State v. Myers, 689 P.2d 38, 40–
43 (Wash. 1984) (no Fourth Amendment violation where, in
gaining access to execute narcotics search warrant, officers
falsely claimed to have a traffic arrest warrant for
defendant), overruled on other grounds, State v. Lively,
921 P.2d 1035, 1045 (Wash. 1996).

The majority’s only response to these cases is to
distinguish them on their specific facts, see Maj. Opin.
at 23–24 n.5, but that does nothing to avoid their
40 UNITED STATES V. RAMIREZ

reasoning—which cannot be reconciled with the majority’s
novel ruling. In particular, the Idaho Supreme Court’s
decision in Bentley is flatly contrary to the majority’s
holding here. In Bentley, as in this case, the warrant carried
a restriction on its execution that was not required by the
Fourth Amendment. The arrest warrant in Bentley could be
executed only in a “public place” and not in Bentley’s home,
see 975 P.2d at 786, and here the search warrant could be
executed against Ramirez’s car only if that car was at
Ramirez’s home. In both cases, the officers used a ruse in
order to execute the warrants in a manner that fulfilled the
additional condition that was not required by the Fourth
Amendment. In Bentley, the officers came to Bentley’s
home, revealed themselves as officers, and then falsely
stated that they needed him to come outside to address his
car registration and a possible incident in which persons had
been “rummaging in his vehicle.” Id. Under the flawed
reasoning adopted by the majority here, such a “betray[al]”
of the suspect’s “trust in law enforcement in order to conduct
searches and seizures beyond what [the officers] were
lawfully authorized to do” would mean that the “Fourth
Amendment interest is near its zenith” and should have led
to suppression. See Maj. Opin. at 24. But the Idaho Supreme
Court reached the directly opposite conclusion, correctly
holding that, because the arrest “was made for the purpose
set forth in the arrest warrant,” the “use of subterfuge” to
comply with the warrant’s manner-of-execution limitation
did “not violate Bentley’s rights under the Fourth
Amendment to the United States Constitution.” 975 P.2d at
788. So too here.

The majority’s error is further confirmed by this court’s
decision in United States v. Phillips, 497 F.2d 1131 (9th Cir.
1974). In Phillips, the officers pretended to be investigating
a burglary of an office building, but their real purpose was
 UNITED STATES V. RAMIREZ 41

to gain access to the building in order to make a warrantless
arrest of Phillips, whom they had probable cause to suspect
was involved in drug dealing. Id. at 1133–34. We held that,
because there was no probable cause to believe that Phillips
was in the building at the time, the Fourth Amendment
would not allow the officers to enter “absent consent.” Id.
at 1135–36. And because the consent had been obtained by
misrepresenting their official investigative purpose, the
consent was invalid. Id. at 1135 n.4; see also Bosse, 898
F.2d at 115 (citing footnote four of Phillips). We indicated,
however, that if there had been probable cause to believe that
Phillips was in the building, a ruse would have been
permissible to effectuate what would then have been a lawful
arrest. As we explained, “[a]n agent must have probable
cause to believe that the person he is attempting to arrest,
with or without a warrant, is in a particular building at the
time in question before that agent can legitimately enter the
building by ruse or any other means.” Phillips, 497 F.2d
at 1136 (emphasis added).

The majority nonetheless contends that the agents’
actions were unreasonable because the intrusion into
Ramirez’s Fourth Amendment interests was significant,
whereas there was “no governmental interest justifying the
ruse here.” See Maj. Opin. at 22. The majority is wrong on
all counts. By issuing a warrant expressly authorizing a
search of Ramirez’s car for devices containing child
pornography, a “neutral and detached magistrate” had
already “authorized a substantial invasion of the privacy” of
that car’s owner. Summers, 452 U.S. at 701. Because any
residual interest Ramirez might have had in avoiding that
authorized search was quite limited (if not non-existent), the
agents’ use of trickery in carrying out that search imposed,
at most, an insubstantial marginal intrusion on Ramirez’s
Fourth Amendment interests. By contrast, the agents here
42 UNITED STATES V. RAMIREZ

had a substantial interest in ensuring that the warrant was
effectively executed under circumstances that maximized
their control over the places and things to be searched. In
particular, given that—as the warrant application
explained—there was a substantial likelihood that the
sought-for devices would be located in Ramirez’s car, the
agents had a legitimate interest in carrying out the search
while the car was at the residence. And, as the agents noted,
having Ramirez be present at the residence would give them
the opportunity to see whether he would agree to speak with
them. The ruse accomplished all of these legitimate
objectives, thereby easily justifying any limited marginal
intrusion on Ramirez’s Fourth Amendment interests. See
Alverez-Tejeda, 491 F.3d at 1016 (in determining
“reasonableness,” the question is whether “the importance of
the governmental interests alleged to justify the intrusion”
outweighs “the nature and quality of the intrusion on the
individual’s Fourth Amendment interests”) (citation and
internal quotation marks omitted).

Finally, the majority raises the specter that, absent its
novel rule, law enforcement agents could use a ruse to bring
almost anything within the literal scope of a warrant “so long
as they could trick a resident into bringing those items to the
home to be searched before the warrant was executed.” See
Maj. Opin. at 20. This concern is misplaced. I agree that
this would have been a very different case if the agents had
used a ruse to bring within the literal terms of the warrant
some wholly extraneous object (e.g., Ramirez’s office
computer) that was not within the contemplation of the
warrant or as to which no showing of probable cause to
search had been made. But that is not what happened. Here,
the agents merely used a ruse to obtain access to a vehicle
that already was “otherwise . . . []available” to them, because
the warrant specifically gave them “legal authority to reach”
 UNITED STATES V. RAMIREZ 43

that particular item. Alverez-Tejeda, 491 F.3d at 1017.
Under well-settled law, this use of a ruse in executing a
search warrant that specifically covered Ramirez’s car was
not unreasonable under the Fourth Amendment.

Here, the ruse was reasonable because it merely allowed
the agents to accomplish the very search of Ramirez’s car
that the warrant application specifically contemplated and
that the warrant expressly permitted, and the ruse allowed
the agents to do so in a manner that preserved their effective
control over the situation. Nothing in our cases supports the
majority’s contrary holding, which breaks new ground in
imposing unreasonable and unwarranted limitations under
the guise of the Fourth Amendment. 2

II

I also dissent from the majority’s holding that Ramirez’s
confession should have been suppressed as the fruits of an
unlawful seizure of Ramirez. 3 And although the majority
does not reach Ramirez’s Fifth Amendment argument, see

2
Even if I agreed with the majority that the manner in which the
agents executed the warrant was unreasonable, it is not clear that the
exclusionary rule may properly be invoked where, as here, the alleged
violation of the Fourth Amendment relates only to the manner in which
the very thing specified in the search warrant has been searched or
seized. Cf., e.g., Hudson v. Michigan, 547 U.S. 586, 599 (2006)
(declining to apply the exclusionary rule to violations of the Fourth
Amendment’s knock-and-announce requirement). But since the parties
have not raised this point, I do not address it.
3
For purposes of determining what “fruits” (if any) should be
suppressed, the relevant Fourth Amendment violation can only be the
“seizures” that the ruse made possible, and not the ruse itself. See U.S.
CONST. AMEND. IV (securing right “against unreasonable searches and
seizures”).
44 UNITED STATES V. RAMIREZ

Maj. Opin. at 31; see infra note 8, I agree with the district
court’s conclusion that suppression is not warranted on that
basis either.

A

Ramirez was unquestionably seized during the brief
period of time that he was frisked upon his arrival at the
house. He contends that the ruse thus did have the effect of
giving the officers legal authority to seize Ramirez that they
otherwise lacked and that the seizure therefore was
unlawfully procured by the ruse. In my view, this argument
does not support suppression of any evidence.

Because the agents had no warrant for Ramirez’s arrest,
their initial seizure of Ramirez (unlike the search of the car)
cannot be justified on the grounds that the ruse merely
executed the express authority conferred by a warrant. As
the majority notes, the Government appeared to suggest at
oral argument that the search of Ramirez’s person upon
arrival at the house was justified on the theory that Summers
allows such a search during the execution of a warrant. See
Maj. Opin. at 18; see also Summers, 452 U.S. at 702–03
(officers executing a search warrant may briefly detain
persons present at the scene). Even assuming that this would
be an instance in which the use of a ruse had improperly
allowed the Government to acquire search authority it
otherwise lacked, 4 there is ultimately no physical evidence

4
The assumption is questionable, because the agents arguably had
reasonable suspicion to conduct a Terry stop of Ramirez wherever they
may have encountered him. See United States v. Grigg, 498 F.3d 1070,
1075 (9th Cir. 2007) (noting that under United States v. Hensley,
469 U.S. 221, 229 (1985), Terry stops for completed felonies are
generally permissible). The Government, however, has not relied on a
Terry-stop theory, and I therefore do not address the point further.
 UNITED STATES V. RAMIREZ 45

to suppress as a result of that brief frisk, because the cell
phone and other items that the agents found on Ramirez’s
person during the pat-down (which were returned to him
before the completion of the search of the house) had no
evidentiary value vis-à-vis Ramirez’s child-pornography
charges.

Ramirez’s confession is likewise not subject to
suppression on the grounds that it was the fruit of an
unlawful seizure. Even assuming arguendo that the brief
frisk of Ramirez was unlawful, but see supra note 4, his
subsequent inculpatory statements were not the tainted fruit
of that seizure, because the minimal and fleeting intrusion
occasioned by the momentary frisk of Ramirez has no causal
connection to his subsequent confession. This is not, for
example, a case in which the frisk itself produced
incriminating evidence that then led directly to a confession.
Cf. United States v. Foppe, 993 F.2d 1444, 1448–49 (9th Cir.
1993) (where illegal pat-down led to discovery of dyepack-
stained money, which led to confession to bank robbery, the
confession was a fruit of the pat-down). Nor is it a case in
which Ramirez remained seized after the frisk and during his
confession, a circumstance that could taint, as a fruit of the
seizure, even a voluntary confession. Cf. United States v.
Washington, 490 F.3d 765, 776–77 (9th Cir. 2007) (consent
to search, even if voluntarily given, was tainted by the fact
that it was given “while Washington was illegally seized”
(emphasis added)). On this record, the only way in which
the frisk could be said to be causally linked to the subsequent
confession would be if the frisk affected Ramirez’s free will
in deciding to speak with the officers and ultimately to make
the statements that he did. But as the district court noted,
after the brief “force” that was used in the “quick pat-down,”
there is “no indication at all” that Ramirez’s willingness to
speak “was forced, that there was pressure put on him, [or]
46 UNITED STATES V. RAMIREZ

that there . . . was force shown.” And, for the reasons I
explain below, the district court correctly held that Ramirez
was not seized or in custody when his confession was
voluntarily given. See infra at 47–49. In the circumstances
of this case, there simply is no basis for concluding that the
confession was a fruit of the initial momentary pat-down.

As noted, the result might have been different had
Ramirez remained seized after the frisk, 5 and indeed the
majority suggests (but does not hold) that that was the case
here. See Maj. Opin. at 29 n.7. I disagree. Under the totality
of the circumstances, a reasonable innocent person in
Ramirez’s situation would have felt free to leave the agents

5
As Washington illustrates, the fact that an unlawful seizure
continues, and that the suspect’s consent was given during such a
seizure, is certainly relevant in determining whether the consent is a fruit
of the illegal seizure under Brown v. Illinois, 422 U.S. 590 (1975). See
Maj. Opin. at 29. As the Supreme Court has observed, in cases such as
Brown, “the wrong consists of the police’s having control of the
defendant’s person at the time he made the challenged statement. In
these cases, the challenged evidence—i.e., the post arrest confession—
is unquestionably the product of the illegal governmental activity—i.e.,
the wrongful detention.” New York v. Harris, 495 U.S. 14, 19 (1990)
(simplified) (emphasis added); see also id. (noting that whether the
confession is a “product” of the Fourth Amendment violation is a
“threshold” question in assessing whether other factors attenuate the
connection to the illegality). I agree, of course, that there is no
requirement that a suspect remain seized in order to show a link between
an illegal seizure and a subsequent confession. There are alternative
ways in which, in a given case, such a connection might be shown. See,
e.g., United States v. Bocharnikov, 966 F.3d 1000, 1004–05 (9th Cir.
2020) (where a prior confession had been obtained during an unlawful
seizure, the suspect’s subsequent confession given eight months later
was a fruit of that prior seizure, inasmuch as the subsequent confession
was given in response to the agent’s opening comment that he was
“follow[ing] up” on the prior statements). No such alternative causal
link is apparent on the facts of this case.
 UNITED STATES V. RAMIREZ 47

(either by leaving the property or by joining Ramirez’s
mother and, after she later arrived, Ramirez’s girlfriend, both
of whom were in the living room). See United States v.
Redlightning, 624 F.3d 1090, 1102–03 (9th Cir. 2010)
(whether “a reasonable person would have believed that he
was not free to leave” is “an objective test, applied from the
viewpoint of an innocent person” (simplified)).

After the brief pat-down, Ramirez was not placed in
handcuffs, was not told that he was under arrest, and was not
otherwise given any indication that he was still seized. The
lead agent walked with Ramirez back to the house and asked
Ramirez if there was a place where they could talk, and
Ramirez chose the master bedroom. Only two agents were
present during the interview, and although they were armed,
no guns were drawn. No threats were made to Ramirez, no
force was used against him, the door was not blocked, and
he was never ordered to answer the questions. The interview
lasted less than one hour. Although Ramirez testified that
initially he was not affirmatively told that he was free to
leave, he also testified that, toward the middle of the
interview, he was specifically told that he was not under
arrest. 6 Given the lack of any use or show of force, the lack
of any direct commands, the fact that Ramirez was at his own
home and chose the room, and the relatively brief length of
the interview, a reasonable person would have felt free to
leave the officers. See Redlightning, 624 F.3d at 1101,
1103–04 (no seizure of defendant even though he was
frisked, brought from his home to a local FBI office filled

6
The agent testified that, in fact, he told Ramirez at the outset of the
interview that he was not under arrest. The district court, in its ruling,
did not make a specific factual finding as to which witness was correct
on this particular point. But even under Ramirez’s version, I would
conclude that he was not seized.
48 UNITED STATES V. RAMIREZ

with FBI agents, strapped to a polygraph machine, and
informed that he was under investigation for murder).

In stating that Ramirez “makes a compelling argument”
for a contrary conclusion, the majority cites Florida v.
Royer, 460 U.S. 491, 501, 503 (1983) (plurality), and the fact
that Ramirez’s phone, wallet, and keys (which had been
temporarily seized during the pat-down) were not returned
to him until after the interview was completed. See Maj.
Opin. at 29 n.7. But unlike Royer, where the agents retained
the suspect’s airline ticket at the airport, retrieved his
checked luggage, and led him to a “large closet,” 460 U.S.
at 501–03, Ramirez was not questioned in a transit place that
one temporarily visits for the express purpose of boarding a
carrier to leave—he was at home, in a room of his choosing,
and with his mother and girlfriend close by (and at least one
of whom had her car at the house). Likewise, in United
States v. Chan-Jimenez, 125 F.3d 1324 (9th Cir. 1997), the
officer retained the suspect’s driver’s license and vehicle
registration while the suspect and the officer were on “the
side of the road” in “the Arizona desert,” thereby creating
conditions in which a reasonable person obviously “would
not have felt free to leave or to ignore the officer’s presence
and go about his business.” Id. at 1325–26. Ramirez’s
situation at his own home bears no relation to these cases in
which travelers in transit were directly prevented from
continuing those travels, and these cases therefore do not
support the conclusion that Ramirez was seized while he was
in his own home.

Because Ramirez was no longer seized after the pat-
down was completed, his situation is unlike the one in
United States v. Johnson, 626 F.2d 753 (9th Cir. 1980), upon
which the majority relies. See Maj. Opin. at 27–28. There,
the officers illegally arrested Johnson at the outset of the
 UNITED STATES V. RAMIREZ 49

encounter at his home, and he remained under arrest during
the ensuing interview there, in which he made incriminating
statements. 7 Johnson, 626 F.2d at 755–57. Those
statements were obviously the fruit of the unlawful arrest, as
was Johnson’s subsequent confession at the police station, in
which he reaffirmed his earlier inculpatory statements. Id.
at 758–59. Here, unlike in Johnson, Ramirez was not under
arrest (or even seized) during his interview, and his
voluntary confession was not the fruit of any Fourth
Amendment violation. His confession therefore was not
subject to suppression based on that Amendment.

B

For largely the same reasons, I likewise agree with the
district court that Ramirez was not in custody for Fifth
Amendment purposes and that Miranda warnings therefore
were not required. 8

7
To the extent that the majority suggests that Johnson did not
consider the continuing nature of Johnson’s arrest in assessing whether
his statements were the fruit of that unlawful arrest, see Maj. Opin. at 28,
that suggestion finds no support in our decision in that case. In Johnson,
we noted that, after the initial illegal arrest at the doorway of Johnson’s
home, “it [was] extremely doubtful that Johnson would have believed
that he was free to leave at any time or to request the officers to leave
after the initial encounter. A reasonable person, under those
circumstances, would have thought that he was under arrest.” 626 F.2d
at 756 (emphasis added). The statement was tainted because it “was
made within ten minutes after the entry and . . . ‘[n]o intervening events
broke the connection between petitioner’s illegal detention and the
confession.’” Id. at 758–59 (emphasis added) (citation omitted).
8
Ramirez does not contend that his statement was involuntary under
the Fifth Amendment, but only that it was not Mirandized. The majority
expressly declines to reach the issue of voluntariness, see Maj. Opin.
at 29 n.7, and it likewise does not address Ramirez’s Miranda argument.
50 UNITED STATES V. RAMIREZ

In contending otherwise, Ramirez relies principally on
United States v. Craighead, 539 F.3d 1073 (9th Cir. 2008).
Craighead, however, bears no resemblance to this case. In
Craighead, the interview took place at the suspect’s home,
but the home was on a military base, and the suspect knew
that a superior from his Air Force unit and three different law
enforcement agencies were all present at the house during
the execution of a search warrant. Id. at 1078–79; see also
United States v. Quackenbush, 728 F. App’x 777, 778 (9th
Cir. 2018) (distinguishing Craighead based in part on its
“military undertone”). In sharp contrast to this case, the
agents in Craighead chose the venue for the interview—
picking what we characterized as the “dark recess” of an
isolated storage room at the back of the house—and one of
the officers physically leaned with his back to the door, thus
blocking with his body the only way out. 539 F.3d at 1086–
89; see also id. at 1088 (specifically distinguishing
Craighead’s situation from that of someone interviewed “in
a suspect’s kitchen, living room, or bedroom” (emphasis
added)). And, again in contrast to this case, many of the
agents “unholstered their firearms in Craighead’s presence.”
Id. at 1085. Given these significant differences, the
circumstances of Ramirez’s interview did not present a
situation like Craighead in which “there was simply
nowhere for him to go.” Id. at 1089.

Because Ramirez was not in custody, there was no
Miranda violation, and the motion to suppress was properly
denied.

III

In view of its reversal of the denial of Ramirez’s motion
to suppress, the majority has no occasion to address
Ramirez’s challenges to his sentence. See Maj. Opin. at 31.
 UNITED STATES V. RAMIREZ 51

However, since I would affirm his conviction, I will briefly
address these issues. 9

Ramirez challenges the constitutionality of one of the
conditions of his supervised release (restricting his ability to
view adult pornography), but we recently rejected similar
constitutional challenges to a substantively identical
condition imposed by the same district judge. United States
v. Ochoa, 932 F.3d 866, 869–71 (9th Cir. 2019). I would
likewise reject Ramirez’s claims that the district court failed
to provide an adequate explanation for imposing the
condition and that the condition is substantively
unreasonable. See United States v. Gnirke, 775 F.3d 1155,
1159 (9th Cir. 2015) (no procedural error where district court
explained that condition was warranted because of the
connection between adult pornography and child
pornography).

* * *

For the foregoing reasons, I would affirm the judgment
in full. I respectfully dissent.

9
As the majority recognizes, Ramirez’s challenge to the restitution
order is moot, because the restitution has already been fully paid. See
Maj. Opin. at 31. On that score, I would grant the Government’s motion
to supplement the record with respect to pages 4, 8, and 9 of the
Government’s submission, which document the payment and
demonstrate mootness. I would otherwise deny the motion.