[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10018 ELEVENTH CIRCUIT
JULY 6, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-00392-CR-J-25HTS
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
_________________________
(July 6, 2009)
Before EDMONDSON, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Jawan Myers was convicted for possession with intent to distribute cocaine
and cocaine base. He appeals his conviction, contending that the district court
erred in denying his motion to suppress evidence of the guns and drugs seized in a
search of the home where his wife, Ruby Myers, lived.1 The district court held that
although an earlier search of the backyard was illegal, that search did not taint the
validity of the later search of the house, which is where the guns and drugs were
found.
I.
This is the second appeal involving the search of Ruby’s home. The facts of
this case are more fully discussed our first opinion, United States v. Myers, No. 07-
12669 (11th Cir. Aug. 22, 2008). The facts relevant to this appeal are as follows.
At approximately nine o’clock one morning, a team of law enforcement
officers—Detective Kipple and Officer Brown from the Jacksonville Sheriff’s
Office and FBI Special Agents Dougal and Grafton— arrived at Ruby’s house to
investigate a tip from an informant that Myers was storing guns stolen from an FBI
van, as well as a stolen go-cart, there. The police did not have a search warrant for
the house or probable cause to arrest Myers at that time.
Detective Kipple approached the house through the gated backyard and saw
1
Ruby testified that Myers was not living at her house at the time of the search because
they were having marital problems. Myers did keep some of his things at the house, he stayed
there occasionally, and the utility bill for the house was in his name.
2
an object under a black tarp. He lifted the tarp and saw a go-cart, which he
suspected was the stolen go-cart identified by the informant. Before the officers
approached Ruby’s front door, Detective Kipple told the others that he had found a
go-cart in the backyard.
Detective Brown then walked up on the sun porch and knocked on the door,
and Ruby answered. Eventually, Myers came out onto the porch and also began
speaking with the officers. Agent Dougal asked Ruby to step outside with him.
He told Ruby that they had found a go-cart, which they believed was stolen, in the
backyard. Ruby said that she did not know the go-cart was stolen and stated that
she “didn’t care” about it.
Agent Dougal then asked Ruby whether she would consent to a search of
the house. Ruby wanted to talk with Myers before consenting, and she and Agent
Dougal returned to the porch so Ruby could talk to Myers. On the porch, Agent
Dougal showed Ruby a written consent form and read it to her. Myers also read
the form and told Ruby that it was okay to sign it. The form stated that Ruby had
the right to refuse consent and that she had the right to stop the search at any time.
Ruby signed the form and the officers searched the house.
At the suppression hearing, Ruby testified that she understood her rights
under the form and signed it. She also testified that she consented to the search of
3
the house because she did not think that there were any drugs in the house and she
did not think the police would find anything. She was mistaken. The search of the
house revealed crack cocaine, powder cocaine, and several guns.
II.
“Review of a district court’s denial of a motion to suppress is a mixed
question of law and fact.” United States v. Delancy, 502 F.3d 1297, 1304 (11th
Cir. 2007). The district court’s fact findings are reviewed only for clear error,
while its interpretation and application of the law are reviewed de novo. Id.
The parties do not challenge the district court’s ruling that the search of the
backyard was illegal. Therefore, “[f]or consent given after an illegal seizure to be
valid, the Government must prove two things: that the consent is voluntary, and
that the consent was not a product of the illegal seizure.” Id. at 1308 (quotation
omitted). “This two step approach is mandatory, and the government bears the
burden on both issues.” Id. In our earlier opinion, we held that the district court’s
analysis of the legality of the search was incomplete because although it found that
Ruby’s consent to the search was voluntary, it did not determine whether her
consent was tainted by the earlier illegal search of her backyard. See Myers, No.
07-12669, slip. op. at 8. On remand, the district court determined that Ruby’s
consent was not tainted by the earlier illegal search and therefore again denied
4
Myers’ motion to suppress. We now review the district court’s decision about the
second step: “[w]hether the illegal entry tainted [Ruby’s] consent so that the
evidence found after the consent should be excluded.” Delancy, 502 F.3d at 1309
Myers contends that Ruby’s consent was tainted by the illegal search of his
backyard. To determine whether the consent was tainted, we consider “whether
the consent was sufficiently an act of free will to purge the primary taint of the
unlawful invasion, or, alternatively, whether the causal connection had become so
attenuated as to dissipate the taint.” Id. We have identified three non-exclusive
factors to determine whether consent is tainted by prior illegal conduct: (1)
temporal proximity of the consent to the illegal conduct, (2) intervening
circumstances, and (3) “the purpose and flagrancy of the official misconduct.” Id.
Applying those factors here, we agree with the district court that Ruby’s
consent was not tainted. We begin with the temporal proximity. Ruby consented
to the search approximately ten minutes after she was told about the go-cart that
Detective Kipple found in the backyard. That is close in time. As noted in
Delancy, however, we should be “mindful of the specific facts of this case.” Id. at
1311. In Delancy, we concluded that the impact of a short temporal proximity was
softened because the woman who consented to the search had not been handcuffed
or detained and the officers were polite and non-threatening. Id. The same is true
5
here, and we therefore conclude, as we did in Delancy, that “timing is not the most
important factor.” Id.; compare United States v. Santa, 236 F.3d , 666–67, 678
(relying on temporal proximity in concluding that the search was tainted where the
police obtained the consent only a few minutes after they had illegally entered the
defendant’s home, handcuffed him, and forced him to the ground).
The second factor cuts strongly against finding Ruby’s consent tainted
because she reviewed and signed a consent form, which advised her of her
constitutional rights. Ruby testified that Agent Dougal read the form to her and
she understood that she had the right to refuse consent to the search. Myers also
reviewed the form and told Ruby it was okay to sign it. That is a “thorough
notification” of her constitutional rights under the Fourth Amendment and
“constitutes an important intervening circumstance” between the illegal search of
the backyard and her consent to the search of the house. Delancy, 502 F.3d at
1311.
The third factor also cuts against a tainted consent. The district court found
that the illegal search of the backyard “was not the cause of [Ruby’s] consent”
because she did not care about the go-cart, stolen or otherwise. It also found that
she consented to the search because she did not think there were drugs in the house
and, therefore, did not think the police would find anything. Those fact findings
6
are not clearly erroneous. Based on those findings, we agree that the officers did
not exploit the discovery of the go-cart to obtain Ruby’s consent.
We therefore conclude that the illegal search of the backyard did not taint
Ruby’s later consent to the search of her home. The district court properly denied
Myers’ motion to suppress.
AFFIRMED.
7