United States v. Beauchamp

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0284p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 10-5102
v.
,
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Defendant-Appellant. -
GEVOYL N. BEAUCHAMP,
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Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 08-00086-001—David L. Bunning, District Judge.
Argued: July 22, 2011
Decided and Filed: October 25, 2011
Before: MOORE and KETHLEDGE, Circuit Judges; MARBLEY, District Judge.*

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COUNSEL
ARGUED: Curtis Lee Blood, Collinsville, Illinois, for Appellant. Elaine K. Leonhard,
ASSISTANT UNITED STATES ATTORNEY, Fort Mitchell, Kentucky, for Appellee.
ON BRIEF: Curtis Lee Blood, Collinsville, Illinois, for Appellant. Elaine K. Leonhard,
ASSISTANT UNITED STATES ATTORNEY, Fort Mitchell, Kentucky, Charles P.
Wisdom Jr., ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, for
Appellee.
MARBLEY, D. J., delivered the opinion of the court, in which MOORE, J.,
joined. KETHLEDGE, J. (pp. 19–24), delivered a separate dissenting opinion.

*
The Honorable Algenon L. Marbley, United States District Judge for the Southern District of
Ohio, sitting by designation.

1
No. 10-5102 United States v. Beauchamp Page 2

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OPINION
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ALGENON L. MARBLEY, District Judge. Defendant-appellant Gevoyl
Beauchamp appeals the judgment entered following his plea of guilty to possession with
intent to distribute crack cocaine. Beauchamp challenges the district court’s denial of
a motion to suppress evidence obtained pursuant to a seizure. Because the police
officer’s seizure of Beauchamp was neither consensual nor based on reasonable and
articulable suspicion, and because the consent given to search was involuntary and did
not purge the taint of the illegal seizure, we reverse the district court’s order denying the
motion to suppress and remand for further proceedings.

I. BACKGROUND

A. Factual Background

At approximately 2:30 a.m. on February 15, 2008, Officer Robert Fain was on
patrol near the Jacob Price housing project in Covington, Kentucky. At the time, the
police were saturating the area because they were receiving a “ton” of narcotics
complaints. His partner, Officer Chris Dees, was patrolling separately and noticed a
black man (later identified as Beauchamp) with another individual. As Officer Dees
approached, Beauchamp hurriedly walked away without making eye contact with the
officer. Officer Dees then told his partner to stop the “suspicious subject,” but beyond
the facts that Beauchamp was out in Jacob Price at 2:30 a..m., the basis for this label was
never explained.1

While driving, Officer Fain spotted Beauchamp walking across the street two
blocks from where Officer Dees had seen him. Officer Fain sped up his patrol car and
parked by the subject. Beauchamp walked around a wrought iron fence that was by the

1
Officer Fain’s statements about the motivation for the stop are unclear; he stated that “Officer
Dees had gone direct with me to tell me what was going on, why he was having me stop him and what.”
Officer Dees, however, did not testify as to his rationale for identifying the subject as suspicious.
No. 10-5102 United States v. Beauchamp Page 3

side of the road. Officer Fain, in uniform, got out of his car and instructed Beauchamp
to stop. Beauchamp complied. Officer Fain then instructed Beauchamp to walk around
the fence and toward him. Beauchamp again complied. As he was walking around the
fence, the officer noticed that “he seemed very nervous, visibly shaking,” wide-eyed, and
scared. Beauchamp’s pants kept falling down around the lower part of his thighs, and
his legs were shaking. Officer Fain asked him where he was coming from and where he
was going. Beauchamp gave somewhat vague answers in response, simply saying
“down there.” Another officer, Officer Cook, arrived at some point during the interview,
and he stood by and watched.

After the questioning, Officer Fain frisked Beauchamp for weapons. While
conducting the frisk, the officer asked Beauchamp if he had anything on him that the
officer should be aware of, and Beauchamp said no. The officer did not find a weapon.
Officer Fain then asked Beauchamp if he could conduct a search, and Beauchamp said
yes. The officer then conducted the search; Beauchamp continued to visibly shake. The
officer found $1,300 in cash and a cell phone. Beauchamp’s pants were around his
thighs, so Officer Fain pulled out his boxers and saw a piece of plastic sticking up
between his butt cheeks. Officer Fain assumed that the plastic contained drugs, as
people on the east side were carrying drugs in this manner at that time.

It is unclear if Officer Dees arrived on the scene during the search or after it was
completed.2 Once there, he recognized Beauchamp from previous encounters. At some
point, either upon Officer Dees’s arrival or after Officer Fain looked into Beauchamp’s
boxers, Officer Fain gave his partner a look to indicate that he had found something.
Recognizing that the look meant “hey, we got something here,” Officer Dees grabbed
Beauchamp by his jeans. Officer Fain then pulled Beauchamp’s boxers back again and
asked him what he had in his pants, between his butt cheeks, and Beauchamp attempted
to run. Both officers had their hands on him, so he never escaped their grasp. The
officers secured Beauchamp against the hood of a police cruiser. Officer Fain continued

2
Officer Fain testified that he had completed the search when Officer Dees arrived. Officer Dees
testified that he arrived while the search was ongoing and observed Officer Fain pull back Beauchamp’s
boxers. The district court credited both officers and found that this testimony was not conflicting.
No. 10-5102 United States v. Beauchamp Page 4

his search and removed the plastic from between Beauchamp’s butt cheeks. It contained
about 18 individually-wrapped rocks of crack cocaine.

B. Procedural Background

Beauchamp was indicted on two counts: (1) possession with intent to distribute
five grams or more of cocaine base (crack cocaine) in violation of 21 U.S.C. § 841(a)(1);
and (2) distributing less than five grams of crack cocaine in violation of 21 U.S.C.
§ 841(a)(1). The district court dismissed Count 2. Beauchamp moved to suppress the
evidence seized from him in the warrantless search. After a hearing, the magistrate
judge issued a report and recommendation that the district court deny the motion.
Beauchamp objected in writing. The district court overruled the objections and adopted
the report and recommendation.

The parties entered into a plea agreement, which preserved Beauchamp’s right
to appeal the denial of the motion to suppress. The district court accepted the plea
agreement and Beauchamp’s plea of guilty to Count 1. Beauchamp’s Guidelines range
was 70 to 87 months. The district court sentenced him to 84 months.

II. ANALYSIS

A. Standard of Review

“When reviewing the denial of a motion to suppress, we review the district
court’s findings of fact for clear error and its conclusions of law de novo.” United States
v. Henry, 429 F.3d 603, 607 (6th Cir. 2005) (internal quotation marks omitted). In so
doing, we consider the evidence in the light most favorable to the government. United
States v. Rodriguez-Suazo, 346 F.3d 637, 643 (6th Cir. 2003).

“‘While we review the determination of the ultimate question of whether there
was consent de novo, we must afford due weight to the factual inferences and credibility
determinations made by the district court.’” United States v. Moon, 513 F.3d 527, 536
(6th Cir. 2008) (quoting United States v. Caruthers, 458 F.3d 459, 464 (6th Cir. 2006)).
No. 10-5102 United States v. Beauchamp Page 5

B. The Seizure

The Fourth Amendment protects “[t]he right of the people to be secure in their
persons . . . against unreasonable searches and seizures.” U.S. Const. amend. IV. There
are three kinds of permissible encounters between the police and citizens: “(1) the
consensual encounter, which may be initiated without any objective level of suspicion;
(2) the investigative detention, which, if non-consensual must be supported by a
reasonable, articulable suspicion of criminal activity; and (3) the arrest, valid only if
supported by probable cause.” United States v. Smith, 594 F.3d 530, 535 (6th Cir. 2010)
(internal citations omitted). While purely consensual encounters are not subject to
Fourth Amendment scrutiny, see Florida v. Bostick, 501 U.S. 429, 434 (1991), all
seizures—including brief investigatory stops—receive this protection, see Smith, 594
F.3d at 535. Accordingly, the first issue before us is whether the initial interaction
between Officer Fain and Beauchamp was a consensual encounter or a non-consensual
seizure.

1. Moment of Seizure

An individual is seized when an officer “by means of physical force or show of
authority, has in some way restrained [his] liberty.” Terry v. Ohio, 392 U.S. 1, 19 n.16
(1968); see also Tennessee v. Garner, 471 U.S. 1, 7 (1985) (stating that “[w]henever an
officer restrains the freedom of a person to walk away, he has seized that person”). If
the officer acts by a show of authority, as in this case, the individual must actually
submit to that authority. Brendlin v. California, 551 U.S. 249, 254 (2007). In order to
determine if a seizure has occurred, we will look to “all of the circumstances surrounding
the incident” and consider whether “a reasonable person would have believed that he
was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980).

A reasonable person in Beauchamp’s position would not have felt free to leave
when, after walking away from the police two times, an officer targeted Beauchamp by
driving up to him, instructed him to stop, and then instructed him to turn around and
walk toward the officer. Two features of the encounter compel this finding. First, a
No. 10-5102 United States v. Beauchamp Page 6

reasonable person in Beauchamp’s position would perceive the separate interactions with
Officer Dees and then Officer Fain as connected and an indication that the officers were
targeting him. There certainly could be situations in which a reasonable person would
not perceive police interactions as connected; perhaps if there was a longer period of
time between interactions or if they occurred in different locations. In this case,
however, Beauchamp encountered Officer Dees and walked away, and then two streets
over and presumably only a few minutes later, given the short distance, Officer Fain
drove up to Beauchamp. Even though Officer Dees did not say anything to Beauchamp,
a reasonable person would not dismiss the initial encounter with Officer Dees as merely
coincidental when a second officer, almost immediately thereafter, sped up his patrol car,
parked by Beauchamp, and exited his car to initiate contact.

Just as officers are afforded the benefit of information or directions received from
other officers when we consider whether the detaining officer had reasonable suspicion,
see, e.g., Dorsey v. Barber, 517 F.3d 389, 395 (6th Cir. 2008), an individual’s prior
encounters with other officers should be taken into consideration when determining
whether an encounter was coercive or consensual. Thus, the fact that Beauchamp first
walked away from Officer Dees before Officer Fain located him and pulled up next to
him would suggest to a reasonable person that the officers were targeting Beauchamp
and therefore he would not feel free to leave. See United States v. Tyler, 512 F.3d 405,
410 (7th Cir. 2008) (noting that “whether the police informed the person that he was
suspected of a crime or the target of an investigation” is a relevant factor when
determining whether a reasonable person would feel free to leave); United States v.
Fusci, No. 92-2126, 1993 WL 53106, at *2 (10th Cir. Feb. 25, 1993) (unpublished order)
(discussing how the agent’s actions “would tend to communicate to a reasonable person
that, as the specific target of the agents’ investigation, he was unable to terminate the
encounter” (internal quotation marks omitted)); United States v. Kerr, 817 F.2d 1384,
1387 (9th Cir. 1987) (“[S]everal facts suggest that [the defendant] reasonably perceived
that he was the target of [the officer’s] investigation and thus was not free to leave.”);
United States v. Saperstein, 723 F.2d 1221, 1226 (6th Cir. 1983) (concluding that a
reasonable person in the defendant’s position would not feel free to leave when, among
No. 10-5102 United States v. Beauchamp Page 7

other factors, the DEA agent informed the defendant that he had information about the
defendant’s involvement in drug trafficking). In fact, Officer Fain acknowledged that
Beauchamp “didn’t want to be there with [him].”

Second, a reasonable person in Beauchamp’s position would perceive that the
officer’s instructions that he stop and that he move around the fence required compliance
and restricted his ability to walk away. By this point, Beauchamp had indicated that he
did not want to speak with the police by walking away two times; a reasonable person
would not have felt free to walk away a third time after an officer had given him express
instructions to do otherwise. See United States v. Johnson, 620 F.3d 685, 690–91 (6th
Cir. 2010) (holding that a reasonable person would not feel free to leave when two
officers arrived in marked police cars and ordered defendant to stop); Smith, 594 F.3d
at 539 (holding that once a police officer asked the defendant to stop, a reasonable
person would not feel free to leave); United States v. Richardson, 385 F.3d 625, 630 (6th
Cir. 2004) (holding that a reasonable person would not feel free to leave when a police
officer told the defendant to “just hang out right here for me, okay?”); Northrop v.
Trippett, 265 F.3d 372, 380 (6th Cir. 2001) (holding that a reasonable person would not
feel free to leave when, after defendant sought to leave the area, one officer directed
another officer to stop him and the officers asked him to produce identification); United
States v. Buchanon, 72 F.3d 1217, 1223 (6th Cir. 1995) (noting that words requiring
compliance may be enough to make a reasonable person feel that they are not free to
leave).

The interaction at the fence is also the moment of the seizure because it was
when Beauchamp complied with the officer’s instructions and submitted to the officer’s
show of authority. “[W]hat may amount to submission depends on what a person was
doing before the show of authority . . . .” Brendlin, 551 U.S. at 262. Here, Beauchamp
was walking away from the officer and was separated from him by a wrought iron fence.
Upon the officer’s instruction, he stopped and walked toward the officer, and again upon
the officer’s instruction, walked around the fence that separated them. Just as
“[s]topping after being ordered to stop triggers the Fourth Amendment,” Johnson, 620
No. 10-5102 United States v. Beauchamp Page 8

F.3d at 691, so too does changing course and complying with an officer’s requests. See
also United States v. Jones, 562 F.3d 768, 774–75 (6th Cir. 2009) (holding that
defendant was not seized until he complied with officer’s order to stop); Smith, 594 F.3d
at 539 n.4 (holding that defendant was seized when officers instructed him to stop and
he complied); cf. California v. Hodari D., 499 U.S. 621, 625–26 (1991) (holding that,
assuming that officer’s car pursuit constituted a “show of authority,” defendant was not
seized when he ran away). For these reasons, we conclude that Beauchamp was seized
when, in compliance with Officer Fain’s instructions, he stopped, turned around, faced
the uniformed officer and the marked patrol car, and began to walk toward the officer.

It is clear that the police do not make unreasonable seizures “merely by
approaching individuals on the street or in other public places and putting questions to
them if they are willing to listen.” United States v. Drayton, 536 U.S. 194, 200 (2002);
see also United States v. Davis, 514 F.3d 596, 607 (6th Cir. 2008) (noting that, in a
consensual encounter, “law enforcement officers may ask citizens ‘general questions
without having any reasonable suspicion of criminal activity, so long as the officers
refrain from the type of intimidating behavior that would lead a reasonable person to
believe that the person was not free to leave’”) (quoting United States v. Waldon, 206
F.3d 597, 603 (6th Cir. 2000)). But that is not what happened in this case. Here, Officer
Fain targeted Beauchamp by driving up to him after he had already walked away from
another officer and, as Beauchamp continued to walk away, specifically instructed him
to stop and to change the direction in which he was going.

The dissent’s view that we must defer to the district court’s conclusion that the
initial encounter between Fain and Beauchamp was consensual is infirm for two reasons.
First, the dissent applies only the highly deferential “clear error” standard of review
reserved for factual findings; Dissent at 19, however, the question of consent is a
conclusion of law which this court reviews de novo. Moon, 513 F.3d at 536. Taking
factual inferences in the light most favorable to the government does not mean we must
analyze the encounter strictly from the viewpoint of the police officer. Rather, de novo
review requires this court to draw its own conclusions from the facts about whether,
No. 10-5102 United States v. Beauchamp Page 9

when placed in the shoes of Beauchamp, a reasonable person would have felt free to
leave. Mendenhall, 446 U.S. at 554.

Second, the dissent focuses on testimony and argument that characterizes Officer
Fain’s instructions to Beauchamp as “asking” him to stop and come around the side of
the fence, and posits that this court must accept the term “ask” at face value and,
therefore, find the stop consensual. Dissent at 20. Again, this would deny the court its
de novo interpretation of the “totality of the circumstances,” including Beauchamp’s
prior encounter with Officer Dees; Beauchamp’s clear desire to avoid further police
contact; the targeting and pursuit of Beauchamp by a second, uniformed, officer; and
Officer Fain’s confronting Beauchamp, requesting that he stop and come around to his
side of the fence.3 Under these circumstances, just as when an officer follows someone
and stops him to “ask” for identification, or to “ask” him to exit his vehicle, Fain’s
encounter with Beauchamp does not lose its coercive character simply because he was
referred to on the record as having “asked” for Beauchamp’s compliance as opposed to
“ordering” it. Such a distinction is purely semantic. Regardless of how one labels
Officer Fain’s requests, a reasonable person would not have felt free to leave or to ignore
him, and thus Beauchamp was seized.

2. Reasonable and Articulable Suspicion

Having determined that the stop was not consensual, we must next consider
whether it was a constitutional investigatory (or Terry) stop. We engage in a two-part
analysis in order to evaluate the constitutionality of an investigative stop. First, we
consider “‘whether there was a proper basis for the stop, which is judged by examining

3
The dissent mischaracterizes our analysis of whether Beauchamp’s compliance with the officer’s
“asking” actually constituted a consensual exchange, noting: “Appellate factfinding is a rare and exotic
animal, and often seems out of place too. Its appearance warrants explanation in the manner that, say, a
rhinoceros in Central Park does.” Dissent at 20. But there was no appellate factfinding here, only fidelity
to the de novo standard of review. And it is noteworthy that our de novo analysis need no more
explanation than the appearance of the dissent’s rhinoceros in Central Park, since there is a zoo in Central
Park and if one went to the Central Park Zoo one could expect to see a rhino. So too, when the court
conducts a de novo review, it literally looks at the totality of the circumstances “anew.” United States v.
Raddatz, 447 U.S. 667, 690 (1980) (Stewart, J., dissenting)(“‘review de novo’ means ‘that the court should
make an independent determination of the issues.’”); see also United States v. Silverman, 861 F.2d 571,
576 (9th Cir. 1988) (“[u]nder the de novo standard of review, we do not defer to the lower court’s ruling
but freely consider the matter anew, as if no decision had been rendered below.”).
No. 10-5102 United States v. Beauchamp Page 10

whether the law enforcement officials were aware of specific and articulable facts which
gave rise to reasonable suspicion.’” United States v. Davis, 430 F.3d 345, 354 (6th Cir.
2005) (quoting United States v. Garza, 10 F.3d 1241, 1245 (6th Cir. 1993)). Second, if
the stop was proper, we then consider “‘whether the degree of intrusion . . . was
reasonably related in scope to the situation at hand, which is judged by examining the
reasonableness of the officials’ conduct given their suspicions and the surrounding
circumstances.’” Id. (quoting Garza, 10 F.3d at 1245) (omission in original).
Beauchamp only challenges the constitutionality of the stop on the first prong.

Under the first prong, the officer must have “reasonable, articulable suspicion
that the person has been, is, or is about to be engaged in criminal activity.” United States
v. Place, 462 U.S. 696, 702 (1983). Such suspicion “must be based on specific,
objective facts.” Brown v. Texas, 443 U.S. 47, 51 (1979). It requires that “the detaining
officers . . . have a particularized and objective basis for suspecting the particular person
stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417–18 (1981). As
explained in Terry, an “inchoate and unparticularized suspicion or ‘hunch’” will not do.
Terry, 392 U.S. at 27. In making this determination, we must consider the totality of the
circumstances as they existed at the time of the stop. United States v. McCauley,
548 F.3d 440, 443 (6th Cir. 2008).

The district court found that the totality of the circumstances consisted of five
facts. Beauchamp was: (1) recognized by an officer from previous encounters; (2) at
2:30 in the morning; (3) in a housing project that was the source of many drug
complaints; (4) with another individual; and (5) he hurriedly walked away from a police
officer while avoiding eye contact.

The first fact is erroneous because the officer did not recognize Beauchamp until
after the search began, so it does not factor into this analysis.

The second and third facts—the high-drug complaint location and the early
morning hour—“‘may not, without more, give rise to reasonable suspicion,’ but they
may be considered in the totality of the circumstances.” Johnson, 620 F.3d at 692
(quoting United States v. Caruthers, 458 F.3d 459, 467 (6th Cir. 2006)). These factors
No. 10-5102 United States v. Beauchamp Page 11

would apply to anyone who was in the housing project early that morning, and so they
“should not be given undue weight.” United States v. See, 574 F.3d 309, 314 (6th Cir.
2009). In particular, the high-crime or high-drug activity label must be applied carefully.
Unless grounded in factual accuracy, it “can easily serve as a proxy for race or
ethnicity.” United States v. Montero-Camargo, 208 F.3d 1122, 1138 (9th Cir. 2000) (en
banc), cert. denied, 531 U.S. 889 (2000); see also Caruthers, 458 F.3d at 467 (observing
that “labeling an area ‘high-crime’ raises special concerns of racial, ethnic, and
socioeconomic profiling”). These concerns are “especially appropriate” in this case
because Officer Dees did not observe Beauchamp engage in any type of behavior that
is consistent with drug activity. See Johnson, 620 F.3d at 693. Officer Dees saw
Beauchamp interact with another person, and then walk away. Cf. United States v.
Paulette, 457 F.3d 601, 602, 606 (6th Cir. 2006) (holding that officers had reasonable
suspicion that defendant in high-crime area had engaged in criminal activity when
officers saw movements that were consistent with a hand-to-hand drug transaction).

The fourth fact—being seen with another individual—is not probative of criminal
activity. Simply talking to someone else, without more, is innocent activity and does not
indicate that a crime is happening or is about to take place. See id.

The fifth fact—hurriedly walking away from an officer without making eye
contact—similarly does not rise to the level of independent suspicion. The Supreme
Court has explained that “nervous, evasive behavior is a pertinent factor in determining
reasonable suspicion,” Illinois v. Wardlow, 528 U.S. 119, 124 (2000), and we have held
that “the speed of the suspect’s movements may be relevant in the totality of the
circumstances,” Caruthers, 458 F.3d at 466. Consideration of these factors has led to
an extensive debate about what types of responses to police arrival arouse a suspicion
of wrongdoing. See Johnson, 620 F.3d at 694–95 (collecting cases). Nevertheless, it is
clear that walking away from an officer does not create such a reasonable suspicion.
Florida v. Royer, 460 U.S. 491, 498 (1983); see also United States v. Patterson, 340
F.3d 368, 372 (6th Cir. 2003) (stating that walking away from police “constitutes a factor
to be outrightly dismissed”). In those cases in which we have found that walking away
No. 10-5102 United States v. Beauchamp Page 12

from police does contribute to reasonable suspicion, specific facts have shown that the
defendant’s behavior was otherwise suspicious. See, e.g., Caruthers, 458 F.3d at 466–67
(finding reasonable suspicion when the defendant hurried away from an officer and
“hunched down” by a wall as if to conceal contraband or reach for a weapon).

Nothing about the conduct at issue in this case suffices to transform a permissible
walk away from a police officer into a suspicious act. Beauchamp also did not make eye
contact with the officer. But what if he had and then looked away? His behavior may
then have been described as “furtive” or “evasive.” The ambiguity of Beauchamp’s
conduct may be susceptible to many different interpretations, but that does not render
it suspicious. An inquiry into reasonable suspicion looks for the exact opposite of
ambiguity: objective and particularized indicia of criminal activity. If cases are to be
decided on reality and not on fiction, the facts of Beauchamp’s response to the officer
do not meet the constitutional standard. See Wardlow, 528 U.S. at 130–31 (noting that
“avoid[ing] eye contact or even sneer[ing] at the sight of an officer” . . . “would not
justify a Terry stop or any sort of per se inference”).

The district court found that other factors—Beauchamp’s nervousness, evasive
answers, and low pants—could be factored into the totality of the circumstances
analysis. But the officer only became aware of these factors after he had seized
Beauchamp. As reasonable suspicion to make a stop cannot be justified by facts that
become apparent only after a seizure, these facts are irrelevant to the court’s analysis.
See United States v. McCauley, 548 F.3d 440, 443 (6th Cir. 2008).

In sum, the totality of the circumstances consists of contextual factors that apply
to everyone in the housing project and Officer Fain’s testimony that Officer Dees
observed Beauchamp walk hurriedly away from him without making eye contact.
Certainly there are situations in which innocent acts, taken together, can amount to
reasonable suspicion. United States v. Sokolow, 490 U.S. 1, 9–10 (1989). But the facts
here are insufficient: Beauchamp’s exercise of his right to walk away—even if the walk
was made hurriedly, briskly, or snappily—does not turn his otherwise innocuous
behavior into the conduct of a “suspicious suspect.” Thus, we find that the officers did
No. 10-5102 United States v. Beauchamp Page 13

not have reasonable suspicion to detain Beauchamp, and the stop was an illegal seizure
conducted in violation of the Fourth Amendment.

C. The Consent

Finally, we consider whether Beauchamp voluntarily consented to a search of his
person, and if voluntarily given, whether that consent dissipated the taint of the prior
Fourth Amendment violation. Because the district court did not consider whether
Beauchamp’s consent to conduct the search was tainted, we will consider de novo
whether the illegal stop tainted consent. United States v. Shaw, 464 F.3d 615, 627 (6th
Cir. 2006).

1. Voluntariness

While the Fourth Amendment protects citizens against unreasonable searches and
seizures, a search of a person is not unreasonable if that person gives free and voluntary
consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); United States v.
Kelly, 913 F.2d 261, 265 (6th Cir. 1990). The government bears the burden of proving,
through “clear and positive testimony” that the consent to search was given voluntarily.
United States v. Salvo, 133 F.3d 943, 953 (6th Cir. 1998). Consent is voluntary when
it is “unequivocal, specific and intelligently given, uncontaminated by any duress or
coercion.” United States v. Moon, 513 F.3d 527, 537 (6th Cir. 2008) (internal citations
omitted). Voluntariness is determined by examining the totality of the circumstances.
See Bustamonte, 412 U.S. at 227; United States v. McCaleb, 552 F.2d 717, 720 (6th Cir.
1977). Several factors should be examined in the consent calculus. First, a court should
examine the characteristics of the accused, including the age, intelligence, and education
of the individual; whether the individual understands the right to refuse to consent; and
whether the individual understands his or her constitutional rights. See United States v.
Jones, 846 F.2d 358, 360 (6th Cir. 1988). While the police do not have to inform an
individual of his right to refuse, the absence of such a warning is considered in the
totality of the circumstances analysis. See Bustamonte, 412 U.S. at 227. Second, a court
should consider the details of the detention, including the length and nature of detention,
No. 10-5102 United States v. Beauchamp Page 14

id. at 226; the use of coercive or punishing conduct by the police, id. at 226; and
indications of “more subtle forms of coercion that might flaw [an individual’s]
judgment,” United States v. Watson, 423 U.S. 411, 424 (1976). We carefully examine
cases in which the government claims that the defendant consented. See United States
v. Worley, 193 F.3d 380, 386 (6th Cir. 1999).

Police coercion vitiated any consent Beauchamp may have given in this case, and
thus consent could not have been made freely or voluntarily. Without being told that he
could refuse, Beauchamp said “yes” to Officer Fain’s request to search after another
uniformed officer had arrived on the scene. More importantly, Beauchamp gave his
response immediately after Officer Fain had placed his hands on Beauchamp’s body to
conduct the frisk. A scared, defenseless man is not in a position to say no to a police
officer whose hands are still on or just removed from his body while another officer is
standing just a few feet away. See Bustamonte, 412 U.S. at 229 (noting that “account
must be taken of . . . the possibly vulnerable subjective state of the person who consents”
in considering the totality of the circumstances); Worley, 193 F.3d at 386 (holding that
consent to search was not freely given to two officers but was “merely a response
conveying an expression of futility in resistance to authority or acquiescing in the
officers’ request”); United States v. Young, 318 F. App’x 407, 410 (6th Cir. 2009)
(unpublished opinion) (noting that a scared and upset defendant may, dependent on the
facts, show duress that factors into the consent calculus).

In each and every situation that morning, police conduct had overborne
Beauchamp’s will. He was repeatedly prevented from exercising his right to walk away,
and, in effect, to say “no.” Because “[a] suspect’s knowledge of a prior illegal search
can also give rise to a sense of futility,” the police conduct in this case easily could have
exerted tremendous pressure on Beauchamp to acquiesce. United States v. Haynes, 301
F.3d 669, 683 (6th Cir. 2002). The district court failed to consider the implicitly
coercive nature of these events, and instead focused on the absence of flashing lights or
drawn weapons. We find that the district court erred in finding that the prosecution met
its burden of showing that Beauchamp’s consent was free, valid, and voluntary because
No. 10-5102 United States v. Beauchamp Page 15

a consideration of the series of encounters that morning and the details of Officer Fain’s
interaction with Beauchamp indicate that Beauchamp merely acquiesced to the authority
of the officer. See Bumper v. North Carolina, 391 U.S. 543, 548–49 (1968) (holding that
the prosecution’s “burden cannot be discharged by showing no more than acquiescence
to a claim of lawful authority”); Jones, 846 F.2d at 361 (holding that consent was
involuntary in part due to psychological impact of coercive sequence of events). Thus,
the search was unreasonable pursuant to the Fourth Amendment.

2. Attenuation

Even if Beauchamp had voluntarily consented, however, the evidence must be
suppressed because it is tainted by the illegality of the initial stop. The Supreme Court
has held that if consent to search is obtained after an illegal seizure, the consent is tainted
by the illegality and does not justify the search. Royer, 460 U.S. at 507–08. We have
repeatedly followed this precedent, holding that “evidence obtained pursuant to the
consent to search must be suppressed” if the consent was given after an illegal seizure.
United States v. Lopez-Arias, 344 F.3d 623, 629 (6th Cir. 2003); see also United States
v. Richardson, 949 F.2d 851, 858–59 (6th Cir. 1991) (holding that an illegal arrest
tainted a subsequent consent to search); United States v. Bradley, 922 F.2d 1290, 1296
(6th Cir. 1991) (holding that “[d]efendant’s consent to search was tainted by an illegal
arrest under State law”); United States v. Buchanan, 904 F.2d 349, 355–56 (6th Cir.
1990) (holding that consent to search was tainted because prior warrantless entry into
defendant's home was not justified). Thus, for the seized evidence to be admissible, “not
only must the consent be valid, i.e., voluntary . . . but the causal chain between the illegal
seizure and the consent must be broken to avoid the consequences of the exclusionary
rule.” Lopez-Arias, 344 F.3d at 629.

As the taint of the unconstitutional seizure “[can] be purged when the suspect’s
subsequent consent is the ‘product of an intervening act of free will,’” Richardson, 949
F.2d at 858 (quoting United States v. Grant, 920 F.2d 376, 388 (6th Cir. 1990)), the
question before us is “whether . . . the evidence to which instant objection is made has
been come at by exploitation of that illegality or instead by means sufficiently
No. 10-5102 United States v. Beauchamp Page 16

distinguishable to be purged of the primary taint,” Wong Sun v. United States, 371 U.S.
471, 488 (1963) (internal quotation marks and citations omitted). In order to determine
if the consent is sufficiently attenuated from the illegal seizure, we may consider a
number of factors, including: the length of time between the illegal seizure and the
consent; the presence of intervening circumstances; the purpose and flagrancy of the
official misconduct; and whether the officers read the suspect his Miranda rights before
he consented. Kaupp v. Texas, 538 U.S. 626, 632–33 (2003); Lopez-Arias, 344 F.3d at
630. No single factor in this analysis is dispositive of attenuation. Brown v. Illinois,
422 U.S. 590, 603 (1975). The government bears the burden of persuasion. Kaupp, 538
U.S. at 633.

None of the relevant factors, either individually or in the aggregate, dissipates the
taint. First, just a few minutes passed between the illegal seizure and the consent.
Officer Fain asked Beauchamp a few questions, conducted a brief frisk, and then without
reading him his Miranda rights or informing him of his right to refuse, asked him for
consent to search. The absence of any intervening time between the seizure and the
consent strongly suggests that the taint of the illegality did not dissipate. See Brown, 422
U.S. at 604 (finding that a separation of two hours without an intervening set of
circumstances did not dissipate the taint); Lopez-Arias, 344 F.3d at 630 (finding that a
lapse of 30 minutes did not dissipate the taint); Richardson, 949 F.2d at 859 (finding that
a lapse of 20 minutes did not dissipate the taint); Buchanan, 904 F.2d at 356 (finding that
a lapse of one hour did not dissipate the taint).

Second, there were no intervening circumstances. Brown, 422 U.S. at 604
(finding that the absence of an intervening event indicated that the taint was not
dissipated). Intervening circumstances that effectively attenuate the consent from the
illegal seizure “are those that sever the causal connection between the illegal arrest and
the discovery of the evidence.” United States v. Shaw, 464 F.3d 615, 628–29 (6th Cir.
2006) (quoting United States v. Reed, 349 F.3d 457, 464 (7th Cir. 2003)). In particular,
we have held that if a suspect’s response to an illegal stop is a new and distinct crime,
such as flight or use of force, any evidence recovered incident to the arrest for the
No. 10-5102 United States v. Beauchamp Page 17

subsequent crime is not tainted by the unlawfulness of the initial detention. See United
States v. Castillo, 238 F.3d 424 (Table), 2000 WL 1800481, at *5–6 (6th Cir. Nov. 28,
2000) (unpublished opinion) (holding that a suspect’s high-speed flight from an unlawful
detention purged taint that may have resulted from his detention, and rendered the drug
evidence found incident to his arrest for flight admissible); United States v. Jefferson,
182 F.3d 919 (Table), 1999 WL 519298, at * 4 (6th Cir. July 15, 1999) (unpublished
opinion) (holding that defendant’s flight and use of force against officers constituted
intervening circumstances that purged taint). Unlike in Castillo and Jefferson, however,
the police discovered the evidence in this case—the $1300 in cash and the plastic
baggie—before Beauchamp’s brief struggle began. Thus, Beauchamp’s struggle cannot
serve as an intervening circumstance because it does not come between the illegal
seizure and the discovery of the evidence; there is no break in the chain. See Shaw, 464
F.3d at 629 (holding that post-arrest discovery of incriminating evidence is not an
intervening circumstance that breaks the causal chain); United States v. Baldwin, 114 F.
App’x 675, 682 (6th Cir. 2004) (unpublished opinion) (holding that evidence discovered
before defendant attempted to resist and flee was tainted by illegal seizure and must be
suppressed).

Third, the purpose and flagrancy of the officer’s conduct do not tend to dissipate
the taint. This is an important factor because “it is tied directly to the rationale
underlying the exclusionary rule, deterrence of police misconduct.” Reed, 349 F.3d at
464–65. While the officers’ conduct in this case may not qualify as flagrant, the purpose
of the stop seems to be “investigatory,” undertaken as an “expedition for evidence in the
hope that something might turn up.” Brown, 422 U.S. at 605. Officer Fain did not stop
until he found something to pin on Beauchamp. He did not engage Beauchamp in a
consensual encounter. He did not have reasonable suspicion to stop and detain him.
Even if the stop had been legal, the district court found that he did not have probable
cause to make an arrest until after he pulled back Beauchamp’s underwear on a public
street and looked inside. As we have previously explained, “[t]his type of police
misconduct—stopping a suspect without probable cause for investigatory purposes—is
precisely the type of conduct that Brown and its progeny seeks to deter.” Baldwin, 114
No. 10-5102 United States v. Beauchamp Page 18

F. App’x at 685. Accordingly, as none of the factors suggest that Beauchamp’s consent
is due to an intervening act of free will, the evidence was obtained by exploiting the
initial illegality and the taint of the illegal seizure is not dissipated. We find that the
government has failed to carry its burden of proving that the consent was sufficiently
attenuated from the original seizure to render the seized evidence admissible, and that
Beauchamp’s motion to suppress should have been granted.

III. CONCLUSION

For the foregoing reasons, we reverse the district court’s order denying the
motion to suppress and remand for further proceedings.
No. 10-5102 United States v. Beauchamp Page 19

_______________

DISSENT
_______________

KETHLEDGE, Circuit Judge, dissenting. Standards of review are supposed to
mean something. The standard we are bound to apply here is as deferential as they
come: we consider the evidence in the light most favorable to the government, deferring
particularly to the district court’s credibility determinations; and having done all that, we
then review the district court’s factual findings for clear error. See United States v.
Montgomery, 621 F.3d 568, 572 (6th Cir. 2010). Under that standard, if an officer
testifies that he “asked” the defendant to speak with him, Suppression Hearing Tr. at 7,
19; and the magistrate judge who observes that testimony finds the officer credible,
Report and Rec. at 5; and the district judge agrees, Order Adopting R. & R. at 4-5; and
the defendant himself expressly concedes in both of his briefs to this court that the
officer “asked Mr. Beauchamp to step around the fence and talk to him[,]” Appellant Br.
at 15, Reply at 3 (emphasis added); then it is not our prerogative to convert the “asked”
into an “instructed” and find the encounter coercive as a result. Yet that is what our
court does today. The court then goes on to find a second constitutional violation,
holding that the officer’s search of Beauchamp’s person was coercive even though
Beauchamp unequivocally consented to it. The majority’s premise for that
holding—that a recently frisked person is necessarily too scared to give valid consent
to search—has little, if any, support in the law.

But to begin with first principles: “Law enforcement officers do not violate the
Fourth Amendment’s prohibition of unreasonable seizures merely by approaching
individuals on the street or in other public places and putting questions to them if they
are willing to listen.” United States v. Drayton, 536 U.S. 194, 200 (2002). Thus,
officers may approach a person and ask questions “without having any reasonable
suspicion of criminal activity,” so long as they refrain from “intimidating behavior that
would lead a reasonable person to believe that the person was not free to leave.” United
States v. Waldon, 206 F.3d 597, 603 (6th Cir. 2000). “Whether an encounter between
No. 10-5102 United States v. Beauchamp Page 20

a police officer and a citizen is consensual,” therefore, “depends on the officer’s
objective behavior[.]” Id. Coercive behavior includes “the threatening presence of
several officers, the display of a weapon by an officer, some physical touching of the
person of the citizen, or the use of language or tone of voice indicating that compliance
with the officer’s request might be compelled.” United States v. Peters, 194 F.3d 692,
697 (6th Cir. 1999) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)).

None of those things occurred here. Fain was alone when he approached
Beauchamp, and did not display his weapon or activate his cruiser lights. What he did,
rather, is what the Supreme Court in Drayton said he is entitled to do: approach a person
on a public street and ask whether the person is willing to speak with him. That the
officer asks, rather than commands, is critical; and here Fain twice testified that he
“asked” Beauchamp to step around the fence and talk with him. The district court found
that Fain was credible in all respects, and thus that Fain “asked” rather than commanded
Beauchamp to do these things. Beauchamp does not even contest this finding—rather,
he concedes the point in his briefs. Usually we take a party at his word on that sort of
thing. But our court sweeps everything aside—the testimony, the findings, the
concession, and with them all, surely, our standard of review—and itself finds that Fain
“instructed” rather than asked Beauchamp to stop. Maj. Op. at 3. The finding is
thereafter repeated 11 times in the opinion, eventually ripening into assertions that Fain
“had given [Beauchamp] express instructions” to stop and “specifically instructed him”
to do so. Id. at 7, 8.

Appellate factfinding is a rare and exotic animal, and often seems out of place
too. Its appearance warrants explanation in the manner that, say, a rhinoceros in Central
Park does. But there is no explanation for the majority’s factfinding here. The majority
does not explain why we should—or more to the point, lawfully can—set aside the
district court’s determination of Fain’s credibility in favor of our own. It does not
explain—or even attempt to explain—why the district court’s factual finding that Fain
“asked” rather than instructed Beauchamp was clearly erroneous. Indeed our court does
not even acknowledge that the district court made the finding at all. Instead, our court
No. 10-5102 United States v. Beauchamp Page 21

merely announces, near the outset of its factual summary, that Fain “instructed”
Beauchamp to stop and come around the fence—as if this factual issue, so central to the
issue before us, were undisputed. Which it is, but not in the way our court suggests; for
what is undisputed here is that “Officer Fain asked Mr. Beauchamp to step around the
fence and talk to him.” Appellant Br. at 15 (emphasis added). Our court oversteps its
bounds in finding the contrary.

Absent this putative “instruction,” there is nothing about Fain’s conduct that was
coercive. But our court broadens the scope of its inquiry: it observes that, prior to
Fain’s approach, another officer, Dees, had driven his cruiser in some proximity to
Beauchamp. That proximity is undefined, but apparently was not very close, because
not a word passed between them, and Beauchamp walked away without even “making
eye contact with the officer.” Maj. Op. at 2. Viewed in the light most favorable to the
government, or even neutrally, one might characterize this interaction as merely a
sighting. But our court calls it an “encounter”—thereby powering up the machinery of
the Fourth Amendment—and asserts that Beauchamp then “indicated” that he did not
want to talk to the police when he walked away. Id. at 5, 7. The result, in the majority’s
construct, is that when Fain then approached Beauchamp on a different street—over
Beauchamp’s objection, so to speak—a reasonable person would think that he had been
“target[ed]” by the officers and thus was not “free to leave.” Id. at 6.

Whatever the merits of this theory as a psychological matter, it is untenable as
a legal one. For two reasons: first, the theory rests upon inferences that we should not
fairly make when viewing the record as we are supposed to view it. To call Dees’ mere-
proximity approach an “encounter” is a stretch; to say that Beauchamp then “indicated”
to the officers that he did not want to talk to them, is even more so. To make those
inferences is to view the record in the light most favorable to reversal, not affirmance.

Second, the majority’s theory—that if a person feels targeted by officers, his
encounter with them is coercive as a result—is contrary to the caselaw. In Florida v.
Rodriguez, 469 U.S. 1 (1984) (per curiam), two narcotics detectives, McGee and
Facchiano, followed three men, Rodriguez, Ramirez, and Blanco, from a ticket counter
No. 10-5102 United States v. Beauchamp Page 22

in the Miami Airport all the way to the gate area for their flight. Eventually they all rode
up an escalator together, with the detectives standing behind the other three. Although
the officers wore plain clothes, the Court’s opinion makes clear that the three men
recognized the detectives as such:

At the top of the escalator stairs, Blanco looked back and saw the
detectives; he then spoke in a lower voice to Ramirez. Ramirez turned
around and looked directly at the detectives, then turned his head back
very quickly and talked to Blanco.
As the three cohorts left the escalator single file, Blanco turned,
looked directly at [Rodriguez], and said, “Let’s get out of here.” He then
repeated in a much lower voice, “Get out of here.” [Rodriguez] turned
around and caught sight of the detectives. He attempted to move away,
in the words of Officer McGee, “His legs were pumping up and down
very fast and not covering much ground, but the legs were as if the
person were running in place.”

Id. at 3-4 (emphasis added). Rodriguez soon gave up trying to run away—the airport
must have been crowded near the top of that escalator—and McGee “asked [Rodriguez]
if they might talk.” Id. Rodriguez agreed, though he surely was not happy about it; and
later he consented to a search of his luggage. There the officers found cocaine, but the
Florida courts suppressed that evidence on Fourth Amendment grounds.

It is obvious from the passage quoted above that the three men felt targeted by
the detectives. It is just as obvious that Rodriguez tried to run away. That fact, along
with the trio’s verbal exchanges on the escalator, provided a much stronger
“indicat[ion]” than we have here that Rodriguez “did not want to speak with the
police[.]” Maj. Op. at 7. Yet the Supreme Court did not hold, as the majority does in
this case, that all this targeting, and all these indications, rendered Rodriguez’s encounter
with the officers coercive. Instead the Supreme Court held—in a summary reversal, no
less—that “[t]he initial contact between the officers and [Rodriguez], where they simply
asked if he would step aside and talk with them, was clearly the sort of consensual
encounter that implicates no Fourth Amendment interest.” 469 U.S. at 5-6. The same
is true here, and our court conflicts with Rodriguez by holding the contrary.
No. 10-5102 United States v. Beauchamp Page 23

The majority also observes that “Officer Fain acknowledged that Beauchamp
‘didn’t want to be there with [him].’” Maj. Op. at 7. Why the majority finds Fain’s
testimony credible on this point, but not on others, the majority does not say; but the
point provides zero support for the majority’s conclusion that Fain’s encounter with
Beauchamp was coercive. “[T]he ‘reasonable person’ test presupposes an innocent
person[,]” Florida v. Bostick, 501 U.S. 429, 438 (1991) (emphasis in original); and thus
whether Beauchamp wanted to “be there”—with 18 rocks of crack cocaine in his boxer
shorts—is completely beside the point. The district court did not clearly err in finding
the initial encounter between Fain and Beauchamp to be consensual.

* * *

The majority finds yet another constitutional violation in this case, this time with
respect to Fain’s search of Beauchamp’s person. In the majority’s view that search was
coercive, even though Beauchamp consented to it. The majority reasons: “More
importantly, Beauchamp gave his response immediately after Officer Fain had placed
his hands on Beauchamp’s body to conduct the frisk. A scared, defenseless man is not
in a position to say no to a police officer whose hands are still on or just removed from
his body while another officer is standing just a few feet away.” Maj. Op. at 14. As an
initial matter, this characterization is inaccurate in suggesting that Dees was “standing
just a few feet away” when Beauchamp consented to the search. As the majority itself
appears to recognize elsewhere in its opinion, see Maj. Op. at 3 n. 2, each officer
testified that Dees had not yet arrived when Beauchamp gave consent to search his
person. (Whether Dees thereafter arrived while the search was ongoing, or after it was
done, is unclear.) We should analyze the validity of Beauchamp’s consent accordingly.

But that is a minor point in comparison to the potential sweep of the majority’s
holding on this issue. The supposedly coercive circumstances presented here—a
protective frisk, followed by consent to search—are hardly unique. Cf. Kolender v.
Lawson, 461 U.S. 352, 364 (1983) (Brennan, J., concurring) (“Our case reports are
replete with examples of suspects’ cooperation during Terry encounters, even when the
suspects have a great deal to lose by cooperating”). Other circuits routinely uphold the
No. 10-5102 United States v. Beauchamp Page 24

validity of the defendant’s consent to search in these circumstances. See, e.g., United
States v. Campa, 234 F.3d 733, 740 (1st Cir. 2000) (consent to search was valid despite
officer’s frisk moments before); United States v. Kikumura, 918 F.2d 1084, 1093 (3d Cir.
1990) (rejecting the defendant’s argument that an officer’s “stop and frisk” moments
before a search requires “stricter scrutiny of the consent”); United States v. Dupree, 202
F.3d 1046, 1050 (8th Cir. 2000) (consent to search was valid despite officer’s frisk
moments before); United States v. McRae, 81 F.3d 1528, 1537 (10th Cir. 1996) (consent
granted during officer’s frisk was valid). Our court creates a split with those circuits by
holding the contrary.

It also bears mention that we throw the caselaw into incoherence by holding, as
the majority does here, that a police officer’s protective frisk renders coercive the rest
of his encounter with the person who was frisked. In a wide range of circumstances, the
law permits a police officer to “place[] his hands” on a person’s body, Maj. Op. at 14,
in order to protect himself by means of a protective frisk. We should not penalize
officers for protecting themselves in ways the law expressly permits. I think that is the
effect of the majority’s decision here.

I would affirm the district court’s judgment, and thus I respectfully dissent.