United States v. Deluca

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
OCT 25 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellant,
vs. No. 00-1442

FRANK LAWRENCE DeLUCA,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 00-CR-69-N)

Sean Connelly (James R. Boma, Thomas L. Strickland and Richard T. Spriggs, on
briefs), Office of the US Attorney, Denver, Colorado, for Plaintiff - Appellant.

Laura B. Alms (and Jody C. Reuler, on the brief), Denver, Colorado, for
Defendant - Appellee.

Before SEYMOUR, McWILLIAMS, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

The government appeals from the district court’s order suppressing

methamphetamine that gave rise to a conspiracy charge against Defendant-

Appellee, Frank Lawrence DeLuca. We have jurisdiction pursuant to 18 U.S.C. §

3731, and we reverse.
 Background

Mr. DeLuca was indicted on three drug-related counts: one count of

conspiracy to possess more than 50 grams of actual methamphetamine with intent

to distribute, 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A); and two counts of

distribution of methamphetamine, 21 U.S.C. §§ 841(a)(1), (b)(1)(C). App. at 9-

10. The two distribution charges arose out of events which occurred in April

1999, and are not at issue here. Id. at 10. The events that gave rise to the

conspiracy charge, however, are pertinent. In June 1999, during a New Mexico

traffic stop, a state police officer seized a quantity of methamphetamine from the

trunk of a car in which Mr. DeLuca was a passenger. On Mr. DeLuca’s motion,

id. at 12, the district court suppressed the methamphetamine as “the fruit of the

illegal detention” of the car and its occupants. Id. at 78, 85.

On June 19, 1999, a New Mexico police officer was participating in a

driver’s license and registration checkpoint on Interstate Highway 40 in New

Mexico when he stopped the car in which Mr. DeLuca was a passenger. The car

had three occupants: Tineke Meyers, the driver; William Boyer, the backseat

passenger and owner of the car; and Mr. DeLuca, the defendant and front-seat

passenger. Upon the officer’s request, Ms. Meyers produced a valid driver’s

license, and Mr. Boyer produced the vehicle registration. Id. at 73. As Mr. Boyer

handed the officer the registration, the officer “observed that his right hand was

-2-
visibly shaking and all occupants in the vehicle appeared to be nervous.” Id. at

19 (statement of probable cause).

The officer inquired about the group’s travel plans. Ms. Meyer said they

had left Colorado Springs, Colorado, the previous day to go to Phoenix, Arizona,

and that now they were on their way back to Colorado Springs. A second officer,

having arrived on the scene and overhearing the conversation, asked if their

luggage was in the trunk. Ms. Meyer replied that they had no luggage and that

there was nothing in the trunk. At this point, the first officer asked Ms. Meyer if

she would pull over on to the highway shoulder and Ms. Meyer did so. The first

officer had not returned Ms. Meyer’s license or the vehicle registration. Id. at 73-

74.

Next, the first officer asked Ms. Meyer if he could search the trunk and Ms.

Meyer consented. Upon opening the trunk, the officer “smelled an odd odor

which [he] did not recognize,” and “observed small bundles of clothing, various

tools and an open bag of ground coffee beans.” Id. at 19. The first officer

obtained Ms. Meyer’s consent to run a K-9 dog unit over the vehicle. Two dogs

independently alerted to the left side of the trunk. After searching that area of the

trunk, the first officer discovered a “green, leafy substance in a small plastic

baggy, located in the portion of the trunk designated for storage of the tire jack,”

and, directly under that, “a 12 inch long object completely covered in white

-3-
athletic type tape.” Id. All of the occupants of the car denied knowledge of

either item. The first officer arrested all three occupants of the vehicle for

possession of narcotics. When the first officer slit open the taped package, he saw

a “white substance,” which he believed to be “meth or a cocaine derivative.” Id.

Ruling on Mr. DeLuca’s motion to suppress the taped package, the district

court found that the initial stop of the car as part of a highway safety program was

“defensible.” Id. at 75. However, the court concluded that the stop became

“indefensible” after Ms. Meyer produced a valid driver’s license and Mr. Boyer

produced a valid registration. Id. at 76. The court found that Mr. Boyer’s

shaking hand and the apparent nervousness of the car’s occupants was not enough

to justify their continued detention and that the officer’s failure to return the

license and registration precluded the detention from becoming consensual. Id.

The court concluded that “[s]ince [the officer] lacked any particularized and

objective basis for attributing criminal activity to any occupant of the car, the

continued detention and his further inquiries were illegal.” Id. at 77. The court

went on to hold that there was “a direct, palpable link between the detention of

the car’s occupants and discovery of the package in the car’s trunk” and,

therefore, that the methamphetamine must be suppressed as the “fruit of the

illegal detention.” Id. at 79-80, 85.

-4-
 Discussion

On appeal, the government concedes two points: (1) although the initial

traffic stop was legal, the stop became illegal after Ms. Meyer had produced a

valid driver’s license and Mr. Boyer had produced a valid vehicle registration;

and (2) the officer’s failure to return the license and vehicle registration

precluded the stop from becoming a consensual encounter. Aplt. Br. at 8.

Therefore, the only issue we are confronted with on appeal is whether the

methamphetamine found in the car’s trunk must be suppressed as “fruit” of Mr.

DeLuca’s illegal detention.

“In reviewing the district court’s grant of a suppression motion, we accept

the district court’s factual findings absent clear error and review de novo the

district court’s determination of reasonableness under the Fourth Amendment to

suppress the contraband evidence.” United States v. Olguin-Rivera, 168 F.3d

1203, 1204 (10th Cir. 1999). We also review de novo the issue of whether a

defendant has standing to challenge a search. United States v. Eylicio-Montoya,

70 F.3d 1158, 1161 (10th Cir. 1995). In this case, the government only

challenges the district court’s legal determination that the methamphetamine was

the “fruit” of Mr. DeLuca’s illegal detention. Aplt. Br. at 6; see also App. at 73

(district court order stating that both parties rested upon the state police officer’s

statement of probable cause to inform the court of the relevant facts).

-5-
 Fourth Amendment rights are personal, and, therefore, “a defendant cannot

claim a violation of his Fourth Amendment rights based only on the introduction

of evidence procured through an illegal search and seizure of a third person’s

property or premises.” United States v. Erwin, 875 F.2d 268, 270 (10th Cir.

1989) (citations omitted). Based on this principle, we have held that without a

possessory or property interest in the vehicle searched, “passengers lack standing

to challenge vehicle searches.” Eylicio-Montoya, 70 F.3d at 1162 (citations

omitted). However, “[t]his court has repeatedly recognized that although a

defendant may lack the requisite possessory or ownership interest in a vehicle to

directly challenge a search of that vehicle, the defendant may nonetheless contest

the lawfulness of his own detention and seek to suppress evidence found in the

vehicle as the fruit of the [defendant’s] illegal detention.” United States v. Nava-

Ramirez, 210 F.3d 1128 (10th Cir.), cert. denied, 121 S. Ct. 206 (2000) (citations

omitted). As Mr. DeLuca concedes, he did not have a possessory or property

interest in the vehicle in which the methamphetamine was found, and therefore

lacks standing to directly challenge the search of the vehicle. Aplee. Br. at 9.

Mr. DeLuca does have standing, however, to contest the lawfulness of his own

detention and to seek to suppress the methamphetamine as the fruit or derivative

evidence of that illegal detention.

To suppress evidence as the fruit of his unlawful detention, Mr. DeLuca

-6-
must make two showings: (1) “that the detention did violate his Fourth

Amendment rights”; and (2) that there is “a factual nexus between the illegality

and the challenged evidence.” Nava-Ramirez, 210 F.3d at 1131 (internal

quotations and citation omitted). “Only if the defendant has made these two

showings must the government prove that the evidence sought to be suppressed is

not ‘fruit of the poisonous tree,’ either by demonstrating the evidence would have

been inevitably discovered, was discovered through independent means, or was so

attenuated from the illegality as to dissipate the taint of the unlawful conduct.”

Id. (citations omitted). In this case, the government concedes that Mr. DeLuca’s

continued detention was unlawful once the car’s occupants had produced a valid

driver’s license and vehicle registration. Aplt. Br. at 8. Therefore, Mr. DeLuca

must show that there is a factual nexus between his unlawful detention and the

discovery of the methamphetamine.

In order to show such a factual nexus, “[a]t a minimum, [Mr. DeLuca] must

adduce evidence at the suppression hearing showing the evidence sought to be

suppressed would not have come to light but for the government’s

unconstitutional conduct.” Nava-Ramirez, 210 F.3d at 1131 (footnote and

citation omitted). Mr. DeLuca has not met this “but for” test, as we find that this

case falls squarely within the holding of Nava-Ramirez. Mr. Nava-Ramirez was

driving a car in which the owner of the vehicle, Steven Wald, was a passenger. A

-7-
state police officer stopped the vehicle for having a cracked windshield. Mr.

Nava-Ramirez produced a valid driver’s license and Mr. Wald produced a valid

vehicle registration, but the state police officer continued to detain the men based

primarily on the smell of “burnt methamphetamine emanating from the vehicle’s

interior” and the officer’s observations that both of the car’s occupants were

nervous and that Mr. Wald’s eyes were “bloodshot and glassy.” Id. at 1130. The

officer obtained the men’s consent to search the interior of the car. Before

searching the passenger compartment, the officer conducted a pat-down search of

both men and found two pipes in Mr. Wald’s pockets. The search of the

passenger compartment of the car turned up nothing, but when the officer

searched the trunk of the vehicle, he found two packages of methamphetamine.

Both Mr. Nava-Ramirez and Mr. Wald were arrested. The district court denied

Mr. Nava-Ramirez’s motion to suppress the methamphetamine. Id.

On appeal, Mr. Nava-Ramirez argued that the methamphetamine should

have been suppressed as fruit of his own unlawful detention. We assumed,

without deciding, that the detention was unlawful, but held that Mr. Nava-

Ramirez had failed to demonstrate a factual nexus between his detention and the

methamphetamine discovered in the trunk. We stated that “Nava-Ramirez put on

no evidence to demonstrate that had he, at some point after the passenger

compartment search was completed but before the trunk search began, requested

-8-
permission or otherwise attempted to depart the scene, he would have been able to

leave in Wald’s car.” Id. at 1131. Without some proof, we could not “simply

speculate that Wald would have given Nava-Ramirez permission to take his car,”

id., and we affirmed the district court’s denial of Mr. Nava-Ramirez’s suppression

motion.

Just as in Nava-Ramirez, Mr. DeLuca has failed to show that had he

requested to leave the scene of the traffic stop, he would have been able to do so

in Mr. Boyer’s car. 1 Therefore, without any evidence to the contrary, we must

assume that regardless of Mr. DeLuca’s presence, the car and its owner would

have continued to be detained and the officer would still have found the

methamphetamine. See, e.g., United States v. Carter, 14 F.3d 1150, 1154 (6th

Cir. 1994) (“Suppose that at the time of the driver’s arrest the police had

summoned a taxi cab for [the defendant passenger] and told him he was free to

leave. The marijuana would still have been discovered, because it was located in

a van owned and controlled by [the driver] (who was not going anywhere until his

vehicle had been searched) and not in a vehicle controlled by [the defendant

1
In his brief on appeal, Mr. DeLuca “queries whether, in certain
circumstances, such as those in the present matter, certain requests for permission
or attempts to depart the scene would not lead to an independent probable cause
for detainment . . . .” Aplee. Br. at 19 n.2. We do not render advisory opinions
and, therefore, must wait until we are confronted with a case with the above facts
to address the issue.

-9-
passenger].”). The fact that in Nava-Ramirez, Mr. Nava-Ramirez was the driver

of the vehicle, while in the present case, Mr. DeLuca was simply a passenger, is

immaterial. Like Mr. DeLuca, Mr. Nava-Ramirez had no possessory or ownership

interest in the vehicle searched and could only seek to have the evidence

suppressed as fruit of his own allegedly unlawful detention.

In this case, the district court incorrectly held that the government must

prove that the methamphetamine “was not the fruit of the illegal detention of the

car and its occupants.” App. at 79 (emphasis added). The district court found

that the factual nexus requirement was satisfied because, without the illegal

detention of the car and all its occupants, the methamphetamine would never have

been found. Id. at 85 (“Nava-Ramirez . . . requires only a ‘but for’ factual nexus

between the illegal detention of the car and its occupants . . . and the evidence

subsequently discovered. I have found that nexus clearly-established here.”).

Nava-Ramirez requires a more focused inquiry. In order to meet his initial burden

under Nava-Ramirez and demonstrate the required factual nexus, Mr. DeLuca

must show that the methamphetamine would never have been found but for his,

and only his, unlawful detention. To apply Nava-Ramirez as the district court did

would effectively allow Mr. DeLuca to assert the Fourth Amendment rights of

third parties (i.e., Ms. Meyer and Mr. Boyer). The government need only show

that the methamphetamine was not the fruit of the illegal detention of Mr.

- 10 -
DeLuca. It is not required to make this showing in relation to the car and all its

occupants.

At oral argument, Mr. DeLuca argued that he has met the factual nexus

requirement because one of the reasons that the arresting officer gave in his

statement of probable cause for continuing to detain the vehicle and its occupants

was that all the occupants “appeared to be nervous.” App. at 19. In effect, Mr.

DeLuca is arguing that “but for” his apparent nervousness, the officer would not

have continued to detain the vehicle and the methamphetamine would not have

been discovered. We reject this argument as insufficient to meet the factual

nexus requirement under the facts of this case.

The dissent suggests that Nava-Ramirez (1) does not control the outcome of

this case because that case affirmed the denial of a motion to suppress and this

case involves the grant of a motion to suppress, (2) improperly imposed an

inapposite standing analysis before misapplying the “fruit of the poisonous” tree

analysis, and (3) conflicts with established precedent. The dissent also argues

that we have employed the wrong standard of review (de novo), specifically that

the district court’s findings concerning “fruit of the poisonous tree” must be

evaluated for clear error.

Beginning with the standard of review, it is entirely appropriate to apply a

de novo standard of review because the government’s argument on appeal is that

- 11 -
Mr. DeLuca lacks standing to challenge the discovery of the methamphetamine in

the trunk. Aplt. Br. at 1, 6, 7. The government correctly argues that Mr. DeLuca

had no reasonable expectation of privacy in the search of the trunk, and the

district court erred in concluding that because a passenger may challenge his own

detention incident to a traffic stop, any evidence seized thereafter is necessarily

linked to that detention without first satisfying the requirements of Nava-Ramirez.

Given the admitted facts, this is a purely legal argument and de novo review is

appropriate. The district court’s findings/conclusions are not insulated from

review merely because we are reviewing its grant of a suppression motion. First,

while we may defer to the district court’s findings of historical fact concerning a

factual nexus, it is particularly inappropriate to defer to its ultimate conclusion

given its overinclusive view of what constitutes a factual nexus and the lack of

evidence suggesting such a nexus. Second, whether under the rubric of a factual

nexus (standing), or a preliminary showing that the evidence sought to be

suppressed is tainted by the unlawful detention, this link cannot be bypassed

merely because we review a district court’s decision on derivative evidence

claims under the clearly erroneous standard.

We do not disagree that a passenger has standing to raise a Fourth

Amendment violation to a stop and detention, and may seek to have suppressed

evidence found in the vehicle that may be fruit of the violation. But that does not

- 12 -
obviate the requirement that the passenger adduce facts tending to show that the

evidence sought to be suppressed is a product of his or her unlawful detention.

Just as Fourth Amendment rights are personal and a defendant has the burden to

demonstrate that his rights have been violated, United States v. Gama-Bastidas,

142 F.3d 1233, 1238 (10th Cir. 1998) (internal quotations, citations omitted), he

must also demonstrate a causal link between the violation and the contraband.

See Rakas v. Illinois, 439 U.S. 128, 139-40 (1978) (substantive Fourth

Amendment law incorporates standing doctrines of injury in fact and assertion of

one’s own legal rights). The Supreme Court has been reluctant to treat the

interests of all those legitimately in a vehicle alike, id. at 148, and surely the

derivative evidence doctrine is not independent of standing requirements.

Stated another way, in a derivative evidence claim, the defendant must

make a threshold showing that the challenged evidence is tainted by the earlier

Fourth Amendment violation. See Alderman v. United States, 394 U.S. 165, 183

(1969). The dissent’s suggestion that the link be abandoned in traffic stop and

detention cases where the car and its occupants are stopped and detained and a

subsequent search occurs shortly after any Fourth Amendment violation ignores

the rationale for standing–that the victim of the unlawful search or seizure assert

his own rights, even if the case involves derivative evidence. Nor does it comport

with the derivative evidence doctrine–in this case, the passenger’s unlawful

- 13 -
detention was not even a “but for” cause of the subsequent search, let alone an

exploitation of that unlawful detention. See Lewis v. Texas, 664 S.W.2d 345,

348-49 (Tx. Ct. Crim. App. 1984) (“Once the initial legal detention became an

illegal one, the [passenger’s] presence was irrelevant to the officer’s decision to

search. Put another way, [the officer] could have let [the passenger] leave

without hampering his ability to search the car. Thus, in no way was [the

passenger’s] detention necessary to perform the search.”).

The fact that some of our past cases involving multiple occupants in a

vehicle have not employed the factual nexus test does not somehow invalidate the

analysis–standing arguments are not jurisdictional and may be waived. United

States v. Dewitt, 946 F.2d 1497, 1499 (10th Cir. 1991). Moreover, Nava-Ramirez

does not stand alone–it is fully supported by United States v. Carter, 14 F.3d 1150

(11th Cir. 1994), in an analogous factual setting. 2 Finally, even were we inclined

to overrule Nava-Ramirez (which we are not), we are bound by it. See In re

2
Each case turns on its own evidence–unlike one treatise, we do not
believe that standing on a passenger’s derivative evidence claim arising from an
unlawful detention is unattainable, just that no facts were adduced in this case
demonstrating an adequate link between the detention and the challenged
evidence given the other occupants of the vehicle. See 3 Wayne R. LaFave,
Jerold H. Israel & Nancy J. King, Criminal Procedure § 9.1(d) at 333 & 333-34
n.110 (2nd ed. 1999) (suggesting that where a passenger challenges his unlawful
detention the subsequent search of the vehicle cannot be viewed as fruit of that
detention); Idaho v. Babb, 29 P.3d 406, 409-10 (Id. 2001) (case remanded for
defendant to prove that “but for” an allegedly unlawful arrest, the
methamphetamine would not have been found).

- 14 -
Smith, 10 F.3d 723, 724 (10th Cir. 1993) (citations omitted) (stating three-judge

panel is bound by opinion of prior panel “absent en banc consideration or a

superseding contrary decision by the Supreme Court”).

Therefore, we REVERSE the district court’s order granting the motion to

suppress and REMAND to the district court for further proceedings.

- 15 -
No. 00-1442, United States v. DeLuca

SEYMOUR, Circuit Judge, dissenting

I am unable to join the majority’s opinion in this case. I am not persuaded

that United States v. Nava-Ramirez, 210 F.3d 1128 (10th Cir. 2000), directly

controls the outcome here. Furthermore, I have serious doubts about the accuracy

of the “fruit of the poisonous tree” analysis conducted by the court in Nava-

Ramirez. To the extent Nava-Ramirez modifies the “factual nexus” that must be

established by the defendant in a motion to suppress evidence, the opinion departs

from our established precedent. Finally, the majority applies the wrong standard

of review to the district court’s opinion. With all due respect, I dissent.

I.

On the evening of June 19, 1999, Frank Lawrence DeLuca was a passenger

in a car driven by Tineke Meyer. The owner of the car, William Boyer, was also

a passenger in the car. As the car proceeded down Interstate Highway 40 in New

Mexico, it was stopped by New Mexico police officer Paul Mendoza, pursuant to

a “drivers [sic] license and registration checkpoint.” App. at 73. Officer

Mendoza asked Ms. Meyer to produce a driver’s license and vehicle registration.

Ms. Meyer gave the officer a valid driver’s license and Mr. Boyer presented the

officer with a valid registration certificate. Officer Mendoza stated that he

-1-
“observed that [Mr. Boyer’s] right hand was visibly shaking and all occupants of

the vehicle appeared to be nervous.” Id.

Without returning the driver’s license and registration, Officer Mendoza

asked the car’s occupants where they were traveling to and from. Ms. Meyer

stated they had been in Colorado Springs, Colorado, had traveled to Phoenix,

Arizona, and were now returning to Colorado Springs. Another officer asked Ms.

Meyer if there was luggage in the trunk. She responded that they had no luggage

in the trunk. Officer Mendoza instructed Ms. Meyer to “pull over onto the

shoulder area of the roadway,” which she did. Id. at 74. Officer Mendoza then

asked Ms. Meyer for permission to search the trunk of the car, which she gave.

“The officer ‘smelled an odd odor which I did not recognize’ and observed small

bundles of clothing, tools, and an open bag of ground coffee beans.” Id. Officer

Mendoza obtained Ms. Meyer’s permission to allow a drug-sniffing dog to inspect

the car. The dog alerted to the left side of the trunk. A second dog independently

alerted to the same area. Officer Mendoza searched that area of the trunk, finding

“a small plastic baggy containing a green leafy substance” and “a foot-long object

wrapped in white athletic tape.” Id. Upon slitting open the object, Officer

Mendoza discovered “a white material suspected to be methamphetamine or

cocaine.” Id.

Mr. DeLuca sought to have the evidence suppressed in the government’s

-2-
case against him, and the district court granted his motion. The government has

appealed this pre-trial determination.

The majority correctly observes that “in reviewing the district court’s grant

of a suppression motion, we accept the district court’s factual findings absent

clear error and review de novo the district court’s determination of reasonableness

under the Fourth Amendment to suppress the contraband evidence.” Maj. op. at

5, citing United States v. Olguin-Rivera, 168 F.3d 1203, 1204 (10th Cir. 1999).

This court reviews “de novo the issue of whether a defendant has standing to

challenge a search.” Id., citing United States v. Eylicio-Montoya, 70 F.3d 1158,

1161 (10th Cir. 1995).

The majority errs, however, in concluding that “in this case, the

government only challenges the district court’s legal determination that the

methamphetamine was the ‘fruit’ of Mr. DeLuca’s illegal detention.” Id.

(emphasis added). While the only issue presented to us is indeed whether the

drugs seized were “fruit” of the officer’s illegal conduct, the district court’s

determination of that matter is not a legal one. As this court has previously

recognized, because taint analysis is “fact-intensive, we review the district court’s

finding under a clearly erroneous standard.” United States v. King, 990 F.2d

1552, 1563 (10th Cir. 1993) (citations omitted); see also Brown v. Illinois, 422

U.S. 590, 603-04 (1975) (holding that whether illegally seized evidence is

-3-
sufficiently purged of its taint to be admissible “must be answered on the facts of

each case” and listing factors to be considered). Thus, whether Mr. DeLuca met

his burden of establishing a “factual nexus” between his illegal detention and the

seized evidence is an inherently factual determination on which the district court

made specific findings. The majority ignores those findings, as I will discuss

more fully below.

II.

In order to place the majority’s opinion and the district court’s factual

findings in the context of our prior precedent, I have re-examined the first

principles of Fourth Amendment fruits analysis. The seminal case in this area is

Wong Sun v. United States, 371 U.S. 471 (1963). Wong Sun provides the basic

framework analyzing the admissibility of evidence illegally seized by the police.

As the Court there noted:

We need not hold that all evidence is “fruit of the poisonous tree” simply
because it would not have come to light but for the illegal actions of the
police. Rather, the more apt question in such a case is whether, granting
establishment of the primary illegality, the evidence to which instant
objection is made has been come at by exploitation of that illegality or
instead by means sufficiently distinguishable to be purged of the primary
taint.

Id. at 487-488 (emphasis added) (internal quotations and citations omitted).

Wong Sun makes clear that once a defendant has established the primary illegality

-4-
in the case, here the illegal detention of the vehicle and its occupants, the next

question is what evidence would not have been discovered “but for the illegal

actions of the police.” Id. A court must then examine whether the evidence is so

tainted by that illegality that it must be suppressed. The taint analysis first set

forth in Wong Sun remains the essential analysis for determining whether

evidence obtained by unconstitutional police action is admissible.

Pursuant to the analytical framework of Wong Sun, we have held in vehicle

stop cases that once the occupants of the vehicle have established that their

detention, arrest or stop was illegal, “as a general rule any evidence obtained as a

result of their detention must be excluded as fruit of the poisonous tree.” United

States v. Santana-Garcia, 264 F.3d 1188 (10th Cir. 2001) (referring to both driver

and passenger) (citing United States v. Villa-Chaparro, 115 F.3d 797, 800 n.1

(10th Cir. 1997)). This result obtains unless the government can convince the

factfinder that the evidence is sufficiently purged of its primary taint on the basis

of one of three grounds. Nava-Ramirez, 210 F.3d at 1131. It may do so by

“demonstrating the evidence would have been inevitably discovered, was

discovered through independent means, or was so attenuated from the illegality as

to dissipate the taint of the unlawful conduct.” Id. If the government can

establish any of these three grounds, the evidence is deemed to be purged of its

primary taint and may be admitted.

-5-
 In King, 990 F.2d 1552, we discussed the factors a court must consider in

determining whether illegally seized evidence has been purged of the primary

taint in a vehicular stop case. We stated there that “several factors guide our

inquiry including the temporal proximity of the Fourth Amendment violation and

[the discovery] of the evidence, any intervening circumstances, and the purpose

and flagrancy of the official misconduct.” Id. at 1563-64 (internal quotations and

citations omitted.) The burden of proof remains squarely with the government to

demonstrate that the evidence is purged of its taint such that it should be

admitted. Nava-Ramirez, 210 F.3d at 1131.

In addition to the fruits analysis, other principles provide the legal

background for disposition of the case at hand. This court has consistently held

“it is beyond dispute that a vehicle’s driver may challenge his traffic stop.”

United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir. 1994), citing

United States v. Erwin, 875 F.2d 268, 270 (10th Cir. 1989). In Erwin, we were

faced with whether a passenger riding in a vehicle that is illegally stopped by the

police has standing to challenge the illegal stop. Erwin, 875 F.2d at 270. We

concluded that the Fourth Amendment is implicated when a passenger is stopped

as surely as it is when a driver is stopped because the passenger has a right to

object to the seizure of his person. In so holding, we said:

[W]e see no reason why a person’s Fourth Amendment interests in
challenging his own seizure should be diminished merely because he was a

-6-
 passenger, and not the driver, when the stop occurred. Drivers and
passengers have similar interests in seeing that their persons remain free
from unreasonable seizure. Furthermore, we reject any notion that a
vehicular stop detains for Fourth Amendment purposes only the driver
simply because the passenger may be free to depart.

Id. (internal citations and quotations omitted). We relied on Berkemer v.

McCarty, 468 U.S. 420, 436 (1984), where the Court said:

It must be acknowledged at the outset that a traffic stop significantly
curtails the “freedom of action” of the driver and the passengers, if any, of
the detained vehicle . . . Certainly few motorists would feel free either to
disobey a directive to pull over or to leave the scene of a traffic stop
without being told they might do so.

See Erwin, 875 F.2d at 270. We recognized in Erwin that a passenger cannot

directly challenge an illegal search of a car he does not own because he has no

legitimate expectation of privacy in the vehicle. Id. at 270-71 (citing Rakas v.

Illinois, 439 U.S. 128, 134 (1978)). Nevertheless, the law is clear that a

passenger has the same interest as the driver in challenging the illegal seizure of

his person when that seizure is effected by a vehicular stop.

In United States v. Eylicio-Montoya, 70 F.3d 1158, 1164 (10th Cir. 1995),

we held that just as a passenger may challenge the illegal stop of a car in which

he is riding as a seizure of his person, so may he challenge an illegal arrest

stemming from a vehicular stop. We stated there that “stops, detentions, and

arrests all constitute seizures under the Fourth Amendment and differ primarily in

the degree to which they restrict the individual’s freedom of movement.” Id. We

-7-
further noted that:

A passenger’s personal interest in challenging an arrest on Fourth
Amendment grounds is just as significant as her interest in challenging a
stop or an investigative detention. Accordingly, we conclude that a
passenger has standing to challenge a constitutionally improper traffic stop,
detention, or arrest on Fourth Amendment grounds even though, when the
seizure occurs, she has no possessory or ownership interest in either the
vehicle in which she is riding or in its contents. A passenger does not
relinquish her Fourth Amendment interest in protecting herself from
unlawful seizures merely because she chooses to ride in a vehicle in which
she has no possessory or proprietary interest.

Id. (emphasis added) (citations omitted). In addition, a passenger may succeed in

suppressing all evidence discovered in the vehicle which would not have been

discovered but for the primary illegality, i.e., the illegal detention of the vehicle

and its passengers, unless the government can establish the taint has been purged.

See, e.g., King, 990 F.2d 1552 (evidence found in car suppressed in favor of

driver and passenger).

III.

The precedent undergirding our Fourth Amendment vehicular stop cases

must be applied to the district court’s opinion in this case. The district court

began by finding that the detention of Mr. DeLuca was illegal. The court cited

our prior precedent which has consistently held that “[a]n officer conducting a

routine traffic stop may request a driver’s license and vehicle registration, run a

computer check, and issue a citation.” United States v. Gonzalez-Lerma, 14 F.3d

-8-
1479, 1483 (10th Cir. 1994), citing United States v. Guzman, 864 F.2d 1512, 1519

(10th Cir. 1988) (citations omitted). However, once the driver has produced valid

documentation, “he must be allowed to proceed on his way, without being subject

to further delay by police for additional questioning.” Id. The district court

concluded on the facts of this case that “the detention of the car’s three occupants

became indefensible after Ms. Meyer, the driver, produced a valid driver’s license

and Mr. Boyer, the owner, produced a valid registration.” App. at 76. The court

dismissed the government’s argument that the officer had reasonable suspicion to

further detain the vehicle because of “Mr. Boyer’s shaking hand and the apparent

nervousness of all three occupants,” noting “[t]here can be numerous physical and

mental causes of a shaking hand, including the stress of an encounter with an

officer of the law, and such quivering is entirely consistent with innocence and

lack of knowledge of a crime.” Id. at 76-77.

Concluding Mr. DeLuca had established the primary illegality, wrongful

detention of the vehicle and its occupants, the court turned to examining whether

the alleged methamphetamine found in the trunk of the car should be suppressed

as the fruit of Mr. DeLuca’s unlawful detention. Citing our holdings in Erwin

and Eylicio-Montoya, the district court rejected the government’s argument that

Mr. DeLuca did not have standing to challenge the search. The court concluded

that “the illegal detention of the automobile and its three passengers requires

-9-
suppression of evidence seized in the subsequent search if the evidence can be

characterized as the fruit of the illegal detention.” Id. at 78. After correctly

noting that “[t]he Government bears the ultimate burden of proving that the

evidence seized here was not the fruit of the illegal detention of the car and its

occupants,” the court determined that “the Government has wholly failed to

discharge that burden here.” Id. at 79. The court found:

To the contrary, Officer Mendoza’s “Statement of Probable Cause”
accepted by both parties adequately demonstrates a direct, palpable link
between the detention of the car’s occupants and discovery of the package
in the car’s trunk. The questions concerning itinerary and luggage, the
“request” to pull the car to the side of the roadway, the request to search
the trunk, the ensuing request to do a canine sniff, the canine alert and
consequent intensified, narrowed search, and the discovery of the alleged
methamphetamine all followed in a direct, unbroken, and natural sequence
from the illegal decision to retain the license and registration and continue
interrogation. But for that decision, I infer, the car and all occupants
would have proceeded on their way, and the drugs would never have been
discovered. The Government has not articulated or proved any
circumstance which would suggest that the package of suspected drugs was
not the fruit of the illegal detention. It has not, for example, pointed to an
independent source which would have led to discovery of the package, and
it has not shown that the package would inevitably have been discovered
notwithstanding the illegality.

App. at 79-80 (citations omitted) (emphasis added). I can find no clear error in

the district court’s factual findings in this regard, as they are all tied to the

Statement of Probable Cause, which was the only evidence introduced by either

Mr. DeLuca or the government. See id. at 19.

The district court went on to “reject any suggestion that co-defendant’s

- 10 -
consent to search the vehicle somehow dissipated the illegal detention of all

occupants,” and correctly applied an attenuation analysis. App. at 81. The court

recognized that “the purpose and flagrancy of the officer’s unlawful conduct is

pertinent to determining whether the trunk search was tainted by the illegal

detention.” Id. (quotations and citations omitted). The court observed that the

three passengers and the vehicle in which they rode were illegally detained after

they passed through a fixed checkpoint. Noting that “the officer manning the

checkpoint apparently had two drug-sniffing dogs readily available,” the court

stated

it is certainly a reasonable inference from this record, which the
Government has chosen to leave somewhat incomplete, that these officers
were conducting standardless and unconstrained stops of every passing car
to see whether they could uncover evidence of illegal drug activity. This is
a flagrant misuse of such checkpoints.

Id. at 82. See also United States v. Galindo-Gonzales, 142 F.3d 1217, 1221 (10th

Cir. 1998) (quoting Delaware v. Prouse, 440 U.S. 648, 661 (1979) (“requiring an

individualized, reasonable suspicion as a prerequisite to expanding the scope of

detentions at fixed checkpoints protects motorists and passengers from random

stops involving the ‘kind of standardless and unconstrained discretion [that] is the

evil the Court has discerned when in previous cases it has insisted that the

discretion of the official in the field be circumscribed, at least to some extent.’”))

The district court rejected the government’s attempts to delay the case,

- 11 -
believing that its efforts were “symptomatic of the Government’s continued

lackadaisical approach to the case and its failure to exhibit adequate diligence or

preparation . . . . Its declination to call witnesses, while perhaps motivated by a

desire to save resources, resulted in an incomplete factual record.” App. at 83.

The court dealt with the government’s final argument: “suppression is

unjustified, according to the Government, because defendant failed to meet ‘his

affirmative factual burden of showing that he was not free to go at the time of

the stop.’ (Emphasis in Government’s motion.)” Id. at 85. Noting the

government’s reliance on Nava-Ramirez for its contention, the district court

concluded:

I do not read Nava-Ramirez as imposing such an affirmative burden. If it
did so, it would appear to be inconsistent with Erwin, 875 F.2d at 270
(“[W]e reject any notion that a vehicular stop detains for Fourth
Amendment purposes only the driver because the passenger may be free to
depart.”). Nava-Ramirez, rather requires only a “but for” factual nexus
between the illegal detention of the car and its occupants (which Erwin
treats as the same thing) and the evidence subsequently discovered. I have
found that nexus clearly-established here. The illegal detention extended to
the car and each occupant and tainted everything that followed.

Id. (emphasis added). Based on the facts it found, the court granted the motion to

suppress. Id.

IV.

In its analysis, the majority holds that “this case falls squarely within the

- 12 -
holding of Nava-Ramirez.” Maj. op. at 7. I disagree with this conclusion and I

further question the legitimacy of the Nava-Ramirez opinion when considered in

light of the precedent of this circuit. To the extent the majority relies on Nava-

Ramirez for its legal analysis, I disagree with the majority’s conclusions in that

regard as well.

First, it is significant that Nava-Ramirez was a case in which this court

affirmed the denial of a suppression motion by the district court, thereby

upholding the court’s factual findings. In the instant case, to the contrary, we are

asked to overturn the district court’s grant of the suppression motion. This

difference in the procedural posture of Nava-Ramirez and the case at hand is an

important one. To overturn the district court’s suppression of the evidence here,

we must hold its explicit factual findings to be “clearly erroneous” in light of the

record. Manning v. United States, 146 F.3d 808, 812 (10th Cir. 1998); Eylicio-

Montoya, 70 F.3d at 1161. Even our belief that we, as the trier of fact, would

have come out differently based on the evidentiary record before us is not enough

to disturb the district court’s findings of fact. Anderson v. City of Bessemer City,

470 U.S. 564, 573-574 (1985). As long as the “district court’s account of the

evidence is plausible in light of the record viewed in its entirety,” we may not

reverse. Id. at 574. Likewise, “where there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id.

- 13 -
In Nava-Ramirez, this court simply affirmed a district court’s denial of a motion

to suppress, concluding that the court’s findings of fact were not clearly

erroneous. I would come to the same conclusion based on the evidence here.

I agree with much of the analysis contained in the Nava-Ramirez opinion

and with the analysis of the majority here up to its reliance on Nava-Ramirez. I

am convinced that Nava-Ramirez failed to follow our precedent governing the

fruits analysis as applied to vehicular stops. The point at which I begin to

disagree with Nava-Ramirez starts at page 1131 of that opinion. The opinion first

correctly states that “[t]o successfully suppress evidence as the fruit of an

unlawful detention, a defendant must first establish that the detention did violate

his Fourth Amendment rights,” citing to our opinion in United States v. Shareef,

100 F.3d 1491, 1500 (10th Cir. 1996). Nava-Ramirez, 210 F.3d at 1131. Nava-

Ramirez next states that “[t]he defendant then bears the burden of demonstrating

‘a factual nexus between the illegality and the challenged evidence.’” Id.

(quoting United States v. Kandik, 633 F.2d 1334, 1335 (9th Cir. 1980)). While I

agree with this statement as a general principle, I disagree with the

characterization in Nava-Ramirez of this “second showing” and the application of

it to the defendant there, as I will discuss in a moment. The opinion then points

out that “only if the defendant has made these two showings must the government

prove that the evidence sought to be suppressed is not ‘fruit of the poisonous

- 14 -
tree.’” Id.

Applying its version of the “factual nexus” portion of the fruits analysis,

the court declared:

Nava-Ramirez . . . argues that at the moment [the officer] concluded his
search of the passenger compartment without finding any evidence
indicating Nava-Ramirez was involved in illegal activity, his continued
detention became unlawful. Even assuming this argument is correct,
however, Nava-Ramirez has failed to satisfy his burden of proving a factual
nexus between his detention and the evidence ultimately discovered in the
trunk. At a minimum, a defendant must adduce evidence at the suppression
hearing showing the evidence sought to be suppressed would not have come
to light but for the government’s unconstitutional conduct. See Shareef,
100 F.3d at 1508. At the suppression hearing, Nava-Ramirez put on no
evidence to demonstrate that had he, at some point after the passenger
compartment search was completed but before the trunk search began,
requested permission or otherwise attempted to depart the scene, he would
have been able to leave in Wald’s car. In the absence of some supportive
proof, this court cannot simply speculate that Wald would have given Nava-
Ramirez permission to take his car. Because Nava-Ramirez has failed to
meet his burden of proving a factual nexus between his detention and the
evidence found in the trunk, this court cannot suppress that evidence as the
fruit of the purportedly unlawful detention.

Id. (emphasis added). This analysis is incorrect under Supreme Court and Tenth

Circuit precedent for four reasons. First, it applied a heightened “factual nexus”

test, derived from Ninth Circuit and Supreme Court precedent in factually

complicated cases that is inapposite to simple vehicular stop cases in this circuit.

Second, its analysis of the evidence as fruit of the illegal detention distinguishes

between the driver and the owner of the car, thus confusing standing analysis with

“fruit of the poisonous tree” analysis. Third, it considered the “primary

- 15 -
illegality,” see supra at 5, to be the search of the car, whereas the primary

illegality was in fact the detention of the car and its occupants. Fourth, it forced

the defendant to prove that he attempted to prevent the police from illegally

searching the car by seeking to remove it from the site, which flies in the face of

both our precedent and the policy reasons underlying the exclusionary rule. I will

explain each of these points in turn.

First, the case which Nava-Ramirez cited for its “factual nexus” test,

Kandik, is one of a series of Ninth Circuit cases dealing with the “factual nexus”

concept and its application in cases with complicated factual circumstances in

which the connection between the wrongful conduct of the police and the

evidence sought to be suppressed was not readily apparent. In Nava-Ramirez, to

the contrary, there was a direct and obvious link between the illegal detention of

the car and the discovery of contraband in the trunk.

For example, Kandik, 633 F.2d 1334, involved a complex conspiracy

between three men to print counterfeit money. One of the men was arrested by

federal investigators and cooperated with them in exchange for leniency. He

implicated Kandik as one of the counterfeiters and told the investigators that

Kandik had said he took the counterfeiting equipment to Mount Lemon and

burned it. Kandik and his attorney subsequently met with a prosecutor to discuss

a plea agreement. While maintaining his innocence, Kandik told prosecutors that

- 16 -
he might be able to procure the counterfeiting plates. Plea negotiations broke

down and the prosecutor then used the information gained from Kandik and the

other conspirator to obtain a warrant to search Kandik’s parents’ cabin on Mount

Lemon. Various evidence was seized. The district court refused to admit the

evidence, viewing it as fruit of the poisonous tree since the warrant was based on

information obtained during the plea negotiations. At trial, the government

offered no evidence from the search. Instead, it put witnesses on the stand whose

testimony, put together, led to the conclusion that Kandik had the plates at a cabin

and that Kandik had access to a cabin in Mount Lemon. Kandik filed various

motions seeking to force the government to prove that the testimony of these

witnesses was not tainted by the illegal search, all of which motions were denied

by the district court. This issue was appealed to the Ninth Circuit.

The Ninth Circuit held it was proper for Kandik to be required to establish

a “factual nexus” between the illegal search and the evidence presented by the

government at trial. Id. at 1335. The court concluded that Mr. Kandik did not

meet his burden in this regard. Id. at 1336. In its analysis, the court noted that

“[t]he Government must prove that particular evidence or testimony is not fruit of

the poisonous tree, but a defendant has the initial burden of establishing a factual

nexus between the illegality and the challenged evidence.” Id. at 1335. In

support of this statement, which is the statement cited in Nava-Ramirez, the court

- 17 -
cited United States v. Allard, 600 F.2d 1301, 1305 (9th Cir. 1979), and United

States v. Cella, 568 F.2d 1266, 1284-85 (9th Cir. 1977).

In Allard, the Ninth Circuit held that the defendant was required to prove a

factual nexus when seeking to suppress evidence seized in an illegal search of a

hotel room. The search of the room was warrantless, without probable cause, and

without exigent circumstance. Allard, 600 F.2d at 1302-03. The district court

therefore granted a motion to suppress the evidence. The Ninth Circuit remanded

the case for further proceedings to determine whether the defendant had

established “the requisite factual nexus between the illegality and the challenged

evidence.” Id. at 1305-06 (citations omitted). In Cella, the Ninth Circuit held it

appropriate to require a defendant to establish a factual nexus between the initial

illegal action of the police and the evidence sought to be suppressed. Cella, 568

F.2d at 1270-77. The case involved a complex scheme to misappropriate funds

from hospitals. Id. at 1269. The defendants argued that if any information

illegally obtained “causes the government to intensify its investigation or if it

gives an impetus or direction toward what is to be focused on by the government,

then all evidence thereafter produced must be suppressed.” Id. at 1285. The

court rejected this argument. Id. at 1285-86.

These Ninth Circuit cases are significantly different factually from both

Nava-Ramirez and the instant case. Allard and Cella involved ongoing

- 18 -
investigations by police. Defendants and co-conspirators were detained and

arrested at different times. In Cella, in particular, the issue was whether, given

the mounds of evidence obtained by the government, the defendants were entitled

to suppress all of that evidence because of one illegal act by the government early

in the investigation. Given these factual scenarios, the Ninth Circuit held it was

proper to require the defendants in these cases to demonstrate exactly what

evidence they believed was tainted and why.

Cases involving complicated factual scenarios in which it is difficult to link

particular illegal government conduct to the evidence sought to be suppressed are

markedly different from a traffic stop and detention where the car and its

occupants are stopped at the same time, detained at the same time, and the search

of the car which results in the illegal evidence is conducted shortly after the

primary illegality. To impose a heightened factual nexus test like the one

imposed by the Ninth Circuit in Kandik, Allard, and Cella on a vehicular stop

case is ludicrous. No case in our circuit has ever done so and the Ninth Circuit

does not impose this kind of factual nexus test in its own vehicular stop cases.

This Ninth Circuit line of cases is derived from two Supreme Court cases

which have mentioned a “factual nexus.” Significantly, both cases were wiretap

cases. In Nardone v. United States, 308 U.S. 338 (1939), the Court stated that:

the burden is, of course, on the accused in the first instance to prove to the
trial court’s satisfaction [the primary illegality] . . . Once that is established

- 19 -
 . . . the trial judge must give opportunity, however closely confined, to the
accused to prove that a substantial portion of the case against him was a
fruit of the poisonous tree. This leaves ample opportunity to the
Government to convince the trial court that its proof had an independent
origin.

Nardone, 308 U.S. at 341. Like the Ninth Circuit cases, the Supreme Court was

faced with a case where 72 of some 500 intercepted telephone messages in an

ongoing investigation by the government into alcohol smuggling by organized

crime constituted much of the proof against the defendant and the police had

committed an illegal wiretap early into the investigation. See United States v.

Nardone, 90 F.2d 630, 630-31 (2d Cir. 1937). Additionally, the Court was

concerned that “claims that taint attaches to any portion of the Government’s case

must satisfy the trial court with their solidity and not be merely a means of

eliciting what is in the Government’s possession before its submission to the

jury.” Nardone, 308 U.S. at 342. Alderman v. United States, 394 U.S. 165

(1969), was another wiretap case. There the Court noted “[t]he United States

concedes that when an illegal search has come to light, it has the ultimate burden

of persuasion to show that its evidence is untainted. But at the same time

petitioners acknowledge that they must go forward with specific evidence

demonstrating taint.” Id. at 183. In both of these wiretap cases, the Court was

concerned with the ability of the defendants to have much of the evidence against

them suppressed because of the government’s initial illegal action. In order to

- 20 -
keep the defendants from automatically excluding such evidence, the Court held

the defendants had to specifically allege taint and demonstrate which pieces of

evidence were tainted. Significantly, the Court allowed the defendants access to

the government’s records in order to meet this burden. Id.

Again, as is true in the Ninth Circuit cases, this type of “factual nexus” test

has never been applied outside of the narrow context of wiretap cases or other

cases in which copious amounts of evidence gained through long, complex

investigations have been jeopardized by the government’s initial illegality. We

have found no Supreme Court case applying such a test to a vehicular stop case.

Most importantly, our court has simply assumed, as has the Ninth Circuit, that the

factual nexus between the illegal conduct and discovery of evidence in the car in

such cases is crystal clear given the proximity in time and in location of the

events, and the unbroken links between them. See, e.g., Eylicio-Montoya, 70 F.3d

1158 (reversing suppression of seized evidence under inevitable discovery

analysis); King, 990 F.2d at 1563 (affirming suppression of evidence seized

illegally in car stop); United States v. Arvizu, 232 F.3d 1241, 1252 (9th Cir. 2000)

(reversing district court’s denial of motion to suppress and stating that

“ordinarily, when a car is illegally stopped, the search that follows will be a

product of that stop”); United States v. Millan, 36 F.3d 886 (9th Cir. 1994)

(reversing district court’s denial of motion to suppress and stating that “because

- 21 -
the interrogation and search were a direct result of the illegal stop, we hold that

all of the evidence must be suppressed”). None of these cases discusses the

defendant’s burden to show a factual nexus between the illegal detention and the

discovery of the contraband in the car because the nexus is readily apparent, as

the district court found in the present case. 1

My second objection to the Nava-Ramirez opinion is that it separates the

passenger from the driver in analyzing whether the evidence seized from the

illegal search of the trunk is fruit of the poisonous tree. In our precedent, we

have not distinguished between driver, owner, and passenger in our analysis of

whether the evidence is fruit of the illegality. Although the owner must be

distinguished from the passenger and driver for purposes of determining standing,

since only the owner has standing to directly challenge the illegal search of the

vehicle, once the issue of standing has been resolved we have conducted the fruits

analysis in the exact same manner with respect to each type of occupant. 2 We

1
Moreover, the analysis in Nava-Ramirez seems to essentially import
“inevitable discovery” analysis into the defendant’s initial “factual nexus” burden.
This forces the defendant to disprove inevitable discovery and does an end run
around the government’s burden of proof on inevitable discovery. To the extent
that Nava-Ramirez suggests such a shift in the burdens of proof, that shift is
improper. Nardone, 308 U.S. at 338.
2
Obviously, a passenger has no standing to directly challenge a search.
Rakas v. Illinois, 439 U.S. 128, 148-49 (1978) (non-owner driver, when owner is
driving in car, has no possessory interest in vehicle and no attendant legitimate
expectation of privacy); see also United States v. Lewis, 24 F.3d 79, 81 (10th Cir.
(continued...)

- 22 -
have focused on the stop of the vehicle and the unlawful detention or arrest of its

occupants as constituting part of the same factual occurrence, and we have not

analyzed the detention of the passenger differently from the detention of the

driver or the owner. Instead, we have emphasized, as we stated in Erwin, that

“drivers and passengers have similar interests in seeing that their persons remain

free from unreasonable seizure.” Erwin, 875 F.2d at 270. For example, United

States v. Shareef, 100 F.3d 1491 (10th Cir. 1996), involved three vehicles, three

drivers, and three passengers, all traveling together in a caravan which was

stopped by police. In conducting its fruits analysis after finding that the

continued detention of five of the six people involved was illegal, the Shareef

opinion considered the five passengers and drivers the same way. Shareef did not

separate out passenger, owner, and driver and analyze their connections to the

illegally seized evidence individually as does Nava-Ramirez. Although the

majority in the instant case would require Mr. DeLuca to prove that the evidence

2
(...continued)
1994). However, both drivers and passengers have the right to challenge illegally
seized evidence as fruit of their detention. Erwin, 875 F.2d at 270. Both Nava-
Ramirez, 210 F.3d at 1131, and the majority recognize this fact, maj. op. at 6.
Perhaps it is confusion about the different standing requirements for owners
of cars as opposed to non-owner drivers and passengers which led to the
confusing fruits analysis put forth in Nava-Ramirez. However, they are two
entirely separate and distinct analyses. The fruits analysis should not change
simply because of the different standing required, so long as the evidence is being
viewed as fruit of the detention, not the search.

- 23 -
was seized as a result “of his and only his” detention, maj. op. at 10, there is no

precedent for this test in Shareef, Erwin, Eylicio-Montoya, King or any of our

other vehicular stop cases, which have uniformly considered passenger, driver,

and owner together for purposes of analyzing whether evidence is fruit of the

illegal detention of the vehicle and its occupants.

In this regard, particular note should be taken of King, 990 F.2d 1552.

There, our court (per Judge Baldock) viewed the driver and passenger identically

for purposes of upholding suppression of the evidence. In King, an officer

approached a car stopped near the scene of an accident. The driver of the car had

been honking continually at the slow-moving traffic proceeding around the

accident site. When the officer reached the car, she saw a loaded firearm tucked

under the driver’s right thigh. Id. at 1555. The driver was ordered out of the car

and the passenger was instructed to remain in the car. Disobeying police orders,

the passenger left the car. After walking a short distance, she discarded a

package, which was immediately seized by the police and found to contain drugs.

A search of the car turned up $2700 in cash and an additional $400 was found on

the driver’s person. On the basis of the illegally seized evidence, both the driver

and the passenger were charged with possession with intent to distribute cocaine

and cocaine base and with using and carrying a firearm during the commission of

a drug trafficking offense. Id. at 1556, n.1. The driver was also charged with

- 24 -
possession of a firearm by a felon. Id. In our analysis, we affirmed the district

court’s suppression of the money, gun and drugs as to both defendants, without

regard to which defendant possessed the item or whether it was found in the car

or outside of it. Id. at 1564. We did not analyze each occupant of the vehicle

separately as the majority here suggests we do and as the Nava-Ramirez court did.

My third objection to Nava-Ramirez is that it focuses on the “primary

illegality” 3 as being the illegal search of the car and not the illegal detention of

the car and its occupants. Significantly, Nava-Ramirez cites Shareef in support of

its statement that “at a minimum, a defendant must adduce evidence at the

suppression hearing showing the evidence sought to be suppressed would not have

come to light but for the government’s unconstitutional conduct.” Nava-Ramirez,

210 F.3d at 1131 (emphasis added). However, Shareef focuses on the detention

of the three vehicles and their occupants in that case as the unconstitutional police

conduct and examines whether the illegally seized evidence is the fruit of that

detention. In contrast, Nava-Ramirez improperly focuses on the search of the car

as the primary illegality and thereby concludes that the defendant must

demonstrate he attempted to leave in the car. Shareef nowhere asks the question

Nava-Ramirez does: Did the passenger attempt to remove the car from the scene

3
The Court in Wong Sun refers to the connection between the “primary
illegality” and the allegedly tainted evidence. See 371 U.S. at 487-88; supra at 5.

- 25 -
so that it would not be searched? Rather, Shareef asks: Was the evidence seized

as a result of the illegal detention of the car and its occupants? But for that

illegal detention, would the evidence have been found? Shareef, like all our other

vehicle stop cases, presumes the existence of a factual nexus between the illegal

detention of the cars and their occupants and the illegally seized evidence because

that “but for” connection (the factual nexus) is unquestionably demonstrated by

the facts: but for the illegal detention of the vehicle and its occupants, the vehicle

would have left the scene and the contraband would not have been discovered.

My final objection to Nava-Ramirez is that it requires a non-owner driver to

try to prevent the police from illegally searching the car he is driving. In other

words, such a driver must attempt to remove the car from the scene in order to

stop it from being illegally searched before he is entitled to have evidence

discovered in the trunk suppressed. Nava-Ramirez implies that Shareef supports

this requirement. Although our court concluded in Shareef that the evidence was

admissible because the three vehicles would have in any event been legally

impounded at the request of the rental company, the case does not bear the weight

that Nava-Ramirez places upon it. Unlike Nava-Ramirez, Shareef does not

support the proposition that because the illegal search would have happened

anyway, the evidence is admissible. This is a critical distinction because the

Supreme Court and this court have consistently held that in order for the

- 26 -
government to prove the primary taint has been dissipated, it must establish

attenuation, independent source, or inevitable discovery through lawful means.

In Nix v. Williams, 104 S.Ct. 2501 (1984), for example, the Court held that

“if the prosecution can establish by a preponderance of the evidence that the

information ultimately or inevitably would have been discovered by lawful means

. . . then the deterrence rationale has so little basis that the evidence should be

received.” Id. at 2509 (emphasis added). Conversely, if the evidence is

discovered by unlawful means, the exclusionary rule should apply since its

underlying rationale is to deter unlawful police conduct. Under Nava-Ramirez,

however, the defendant is forced to prove, as part of his initial showing, that he

attempted to stop the police from illegally searching the car. Not only is this

requirement contrary to the precedent contained in cases such as Nix, it

undermines the rationale for the exclusionary rule in the taint context: “the

knowledge gained by the government’s own wrong cannot be used by it.” Wong

Sun, 371 U.S. at 485, citing Silverthorne Lumber Co. v. United States, 251 U.S.

385, 392 (1920). The exclusionary rule exists “in order to make effective the

fundamental constitutional guarantees of sanctity of the home and inviolability of

the person.” Id. at 484 (citations omitted). To allow the government to introduce

illegally seized evidence unless the defendant establishes he could have prevented

the officer’s inevitable but unlawful discovery of that same evidence defies

common sense in addition to being inconsistent with precedent. See, e.g.,
- 27 -
Shareef, 100 F.3d at 1508 (suppression of evidence reversed where “vehicles

would have been impounded and search as a result of a lawful investigation that

was underway before any of the defendants was illegally seized”) (emphasis

added)); Eylicio-Montoya, 70 F.3d at 1165 (inevitable discovery doctrine applied

where illegally seized evidence would have been observed by customs agents

“during the course of a lawful Terry stop.”) (emphasis added)); United States v.

Romero, 692 F.2d 699, 704 (10th Cir. 1982) (illegal pat down irrelevant where

marijuana packet “clearly would have been discovered within a short time through

a lawful investigation already underway.”) (emphasis added)).

Apart from Nava-Ramirez’s conflict with existing law, there are good

policy reasons to be concerned about its implications. First, to follow the test

would vitiate the policy considerations supporting the exclusionary rule in the

context of the Fourth Amendment, as discussed above. There is no difference

from a policy standpoint between permitting the police to use unconstitutionally

seized evidence against an illegally detained passenger and using it against an

illegally detained automobile owner. In both instances, the evidence is the fruit

of the illegal detention of the vehicle and all of the occupants. Second, the policy

considerations for excluding the evidence are particularly strong in the case at

hand, where the district court specifically found that the police officers’ conduct

was flagrantly illegal. Third, the Nava-Ramirez test comes dangerously close to

creating a right without a remedy, something which is strongly disfavored in
- 28 -
American jurisprudence. We have held in Erwin, Eylicio-Montoya, and King,

among other cases, that passengers have the right to challenge their illegal stops,

arrests, and detentions as surely as do owner-drivers. Under the heightened Nava-

Ramirez fruits analysis, however, while a non-owner driver and a passenger may

theoretically challenge their illegal detention, they will have no remedy because

they will be unable to satisfy the implausible Nava-Ramirez requirement that they

prove they tried to leave with the vehicle prior to the illegal search. 4

Such reasoning leads to the result obtained in United States v. Carter, 14

F.3d 1150 (6th Cir. 1994), upon which the majority relies. The Sixth Circuit there

applied the same flawed analysis set forth in Nava-Ramirez and held that illegally

seized evidence was admissible against a passenger because he could not have left

prior to the car search, and thus would not have been able to remove the thing

being searched from the area. Id. at 1154. 5 The Carter decision is in the minority

4
There are other policy reasons to be concerned about the result in Nava-
Ramirez. In the already dangerous and charged atmosphere of some vehicular
stops, it is unwise to encourage citizens to drive away from a stop or detention
they believe to be illegal. Attempting to remove the car from the scene would
make this situation even more dangerous for motorists, passersby, and law
enforcement officers. It is also unclear under current law whether, if a driver fled
the scene of a stop, the police would have independent grounds for reasonable
suspicion or probable cause based on flight.
5
Notably, the passenger in Carter was sentenced to 63 months in federal
prison on drug charges whereas the government dropped all charges against the
driver of the car after the district court granted his motion to suppress. Carter, 14
F.3d at 1154.
- 29 -
of other federal circuits addressing whether a passenger must meet a heightened

“factual nexus” test in order to suppress illegally seized evidence as fruit of an

illegal detention. See e.g., United States v. Twilley, 222 F.3d 1092, 1097 (9th Cir.

2000) (suppressing evidence obtained from illegal search of car following illegal

stop of non-owner, non-driver passenger); United States v. Jones, 234 F.3d 234,

243-244 (5th Cir. 2000) (suppressing evidence obtained through illegal search

following illegal detention of non-owner, non-driver passenger.)

In sum, Nava-Ramirez constitutes a dramatic departure from the settled

precedent of this circuit. It imports into our fruits analysis a heightened “factual

nexus” standard from the Ninth Circuit even when the Ninth Circuit has never

applied that standard to vehicular stop cases. Nava-Ramirez confuses the

conceptually distinct standing and “fruit of the poisonous tree” analyses, thereby

analyzing the driver and the owner of the car differently. It also improperly

focuses on the search as the primary illegality instead of focusing on the illegal

detention of the car and its occupants. Finally, it sets forth a test to be met by

defendants that is unworkable and implausible. Each of these holdings in Nava-

Ramirez goes against the grain of well-established precedent in this circuit and in

the Supreme Court.

As Nava-Ramirez conflicts in several regards with our precedent in its

imposition of a new fruits analysis, our earlier cases control the outcome of the

instant case. “When faced with an intra-circuit conflict, a panel should follow
- 30 -
earlier, settled precedent over a subsequent deviation therefrom.” United States v.

Espinoza, 244 F.3d 1234, 1244 (10th Cir. 2001), citing Haynes v. Williams, 88

F.3d 898, 900 & n.4 (10th Cir. 1996) (other citations and quotations omitted). I

would confine Nava-Ramirez to its narrow facts and disregard the portion of the

opinion that is in conflict with our earlier cases. I would employ the fruits

analysis set forth in those earlier cases without importing the heightened “factual

nexus” test set forth in Nava-Ramirez. In so doing, I would affirm the ruling of

the district court. Thus, I respectfully dissent.

- 31 -