[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 22, 2008
No. 07-12669 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00392-CR-J-HTS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAWAN LEQUINT MYERS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 22, 2008)
Before BIRCH, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Jawan Lequint Myers appeals his conviction on one count of possession with
intent to distribute cocaine and cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), and (b)(1)(C). Myers contends that the district court erred by
denying his motion to suppress evidence seized at his residence. He argues that the
district court failed to engage in the second part of a two-part inquiry that required
the court to determine whether a prior illegal search in his backyard tainted the
consent by his wife, Ruby Myers, to search his residence.
I.
In February 2005 in preparation for the Super Bowl, which was to be held in
Jacksonville, Florida, the Jacksonville FBI office requested help with security from
nearby FBI S.W.A.T. teams. The Atlanta team responded and checked into the
Jacksonville Holiday Inn. When the team went to their van on morning of the
Super Bowl, the agents discovered that someone had broken into it and had stolen
four sniper rifles, two M-4 fully automatic rifles and two Springfield .45 caliber
pistols.
In early September 2005 the burglary division of the Jacksonville Sheriff’s
Office received a tip that Kedrick Ewing had stolen the guns. The tipster told the
police that Ewing might have sold the guns to his cousin, a drug dealer that the
tipster knew as “Red.” The tipster provided Red’s address and told the police that
Ewing often sold stolen items to Red, including a stolen go-kart. He also stated
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that the go-kart was located behind the house. The police later found out that there
was an outstanding warrant for Ewing’s arrest.
On September 9, 2005, four law enforcement officers—FBI Special Agents
James Dougal and Graham Grafton and Detective Kipple and Officer Brown from
the Jacksonville Sheriff’s Office—went to the address that the tipster had provided
to find Ewing and to gather information about the stolen guns. When they arrived
Detective Kipple went around the back of the house, Agent Grafton went to the left
front of the house, and the other two officers went to the front door. Officer
Dougal testified at the suppression hearing that this approach was used for their
safety so that all of the exits from the house would be covered.
While at the back of the house, Detective Kipple entered the fenced yard,
lifted the corner of a tarp, and saw a go-kart. He went back to the front of the
house and told Agent Dougal that there was a go-kart in the backyard. Officer
Brown, who was dressed in his police uniform, then knocked on the front door.
Ruby Myers cracked open the door to talk to Brown. Brown explained that he and
the other officers were looking for Ewing and were investigating the theft of
several guns and a go-kart, and he asked Ruby if anyone else was in the home.
Ruby said no, but when Brown saw someone moving inside the house, Ruby said
her “boyfriend” was there, Jawan Myers, whom she also later identified as her
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husband.
Agent Dougal then asked Ruby to come outside to speak with him, and
Myers also came out to the enclosed front porch in front of the house to speak to
Officer Brown. Ruby walked out to the driveway with Dougal, who identified
himself as an FBI special agent and told her that there was a stolen go-kart in her
backyard and that he was investigating the theft of FBI guns. He asked for her
permission to search her house to see if they could find any of the stolen guns, and
she agreed, saying that it “wouldn’t be a problem, sure.”
Agent Dougal then went to his car to get a consent to search form, and he
brought it back and gave it to Ruby. He then read her the form while she held it.
Ruby asked Dougal if she could ask her husband before she signed the form, and
he said yes, so she walked to the enclosed front porch and handed the form to
Myers. Myers read the form and handed it back to Ruby, telling her that it was
okay. Ruby then signed the form and later explained that she consented to the
search because she didn’t think the officers were going to find anything.
After she signed the form, Agent Dougal and the other officers searched the
house. The officers found powder and crack cocaine, marijuana, guns unrelated to
the FBI theft, and a FBI firearms manual. Ruby said she had no knowledge of the
drugs, and Myers was arrested but she was not. After his arrest Myers was
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indicted for possessing with intent to distribute cocaine and cocaine base in
violation of 21 U.S.C. § 841, and possessing a firearm after having been convicted
of a felony in violation of 18 U.S.C. § 922(g).
Myers moved to suppress the drugs and guns, contending that Detective
Kipple’s search of the backyard violated the Fourth Amendment and that the illegal
search tainted Ruby’s consent to search the home. The district court held a hearing
and denied the motion. In doing so the court assumed that Detective Kipple’s
initial search of the backyard violated the Fourth Amendment but ultimately
concluded that, under the totality of the circumstances, Ruby’s consent to search
her home was voluntary.
The district court dismissed the firearms charge on the government’s motion
and then conducted a bench trial of the drug charge on stipulated facts. It found
Myers guilty and sentenced him to 84 months imprisonment. Myers appeals and
contends that the district court erred by denying his motion to suppress. According
to Myers, Detective Kipple’s initial entry and search of the fenced yard did, as the
district court assumed, violate the Fourth Amendment. Myers contends that
because of this illegal search the district court was required to engage in two
separate inquiries in deciding the motion to suppress. The district court, Myers
says, was required to examine both whether Ruby’s consent was voluntary, and if
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so, whether her consent had been tainted by Detective Kipple’s illegal search of the
backyard. Myers contends that Ruby’s consent was tainted by the earlier illegal
search and that the district court committed reversible error by failing to decide the
taint issue.
II.
In United States v. Delancy, 502 F.3d 1297 (11th Cir. 2007), this Court held
that courts are “required to conduct two separate inquiries where a consent to
search follows prior illegal activity by the police.” Id. at 1308. “First, a court
must determine whether the consent was voluntary. Second, the court must
determine whether the consent, even if voluntary, requires exclusion of the
evidence found during the search because it was the ‘fruit of the poisonous
tree’—the product of an illegal entry.” Id. “[T]he voluntariness of consent is only
a threshold requirement; a voluntary consent to search does not remove the taint of
an illegal seizure. Rather, the second requirement focuses on causation . . . .” Id.
(quotation omitted). “This two step approach is mandatory, and the government
bears the burden on both issues.” Id. (citing United States v. Robinson, 625 F.2d
1211, 1219 (5th Cir. 1980)).
In Robinson, the former Fifth Circuit rejected a magistrate judge’s finding
that the defendant’s voluntary consent to a search removed the taint of an illegal
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stop and remanded the case because the magistrate judge had failed to engage in
the proper legal analysis. Robinson, 625 F.2d at 1219. In denying the motion to
suppress, the magistrate had stated, “This Circuit has previously held that a
voluntary consent to a search will remove the taint of an illegal arrest. Similarly,
advising a defendant of his right to refuse his consent to a search constitutes a
sufficient intervening factor to remove the taint of a prior Fourth Amendment
violation.” Id. at 1220 (quotation and citations omitted). Because the magistrate
judge had “merely satisfied himself that Robinson’s consent to the search was
voluntary,” this Court held that the magistrate judge had applied the incorrect legal
standard. We explained:
Contrary to the magistrate’s apparent view of the law, a voluntary
consent to search does not remove the taint of an illegal seizure.
Rather, voluntariness is merely a threshold requirement. The “causal
connection” between the illegal seizure and the consent to search must
be independently examined, utilizing the factors set out in Brown 1 in
light of the policies to be served by the [F]ourth [A]mendment
exclusionary rule.
Id. (footnote omitted). We remanded the case to the district court to make the
appropriate factfindings and conclusions because “it is the district court’s duty to
make findings of fact in the first instance on the attenuation issue.” Id.
In its order denying Myers’ motion to suppress, the district court described
1
Brown v. Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254, 2261-62 (1975).
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the issues as “whether an Officer’s ‘search’ of the . . . backyard was legal and
whether the consent given to the subsequent house search was voluntary.” The
court assumed that Detective Kipple’s initial search of the backyard was illegal and
went on to examine whether, under the totality of the circumstances, Ruby’s later
consent to search her home was voluntary. The district court concluded that
Ruby’s consent was voluntary, but it did not go on to decide whether her consent
was tainted by what it had assumed to be an illegal search. It should have done so.
See Delancy, 502 F.3d at 1308; Robinson, 625 F.2d 1220. Because the district
court failed to determine whether Ruby’s consent to search the residence was
tainted by a prior illegal search, we vacate and remand to the district court to
decide the issue in the first instance.2 See Robinson, 625 F.2d at 1220.
VACATED AND REMANDED.
2
On remand the district court may wish to decide, rather than assume, whether Detective
Kipple’s initial search of the backyard was illegal. However, that is a decision we leave to the
district court.
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