United States v. Hill

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 10-4320

TORRANCE G. HILL,

Defendant-Appellant.



Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Anthony J. Trenga, District Judge.

(1:09-cr-00454-AJT-1)

Argued: March 23, 2011

Decided: August 18, 2011

Before GREGORY, AGEE, and KEENAN, Circuit Judges.

Vacated and remanded with instructions by published opin-

ion. Judge Gregory wrote the majority opinion, in which

Judge Keenan joined. Judge Agee wrote a dissenting opinion.

COUNSEL

ARGUED: Caroline Swift Platt, OFFICE OF THE FED-

ERAL PUBLIC DEFENDER, Alexandria, Virginia, for

Appellant. Mysti Dawn Degani, OFFICE OF THE UNITED

STATES ATTORNEY, Alexandria, Virginia, for Appellee.

2 UNITED STATES v. HILL

ON BRIEF: Michael S. Nachmanoff, Federal Public

Defender, Kevin R. Brehm, Assistant Federal Public

Defender, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Alexandria, Virginia, for Appellant. Neil H.

MacBride, United States Attorney, Michael P. Ben’Ary,

Assistant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Alexandria, Virginia, for Appellee

OPINION

GREGORY, Circuit Judge:

This case is about the "centuries-old principle of respect for

the privacy of the home." Wilson v. Layne, 526 U.S. 603, 610

(1999). Defendant, Torrance G. Hill, filed a motion to sup-

press evidence obtained in his residence without a warrant.

The district court denied the motion, and determined that the

police acted legally when they entered Hill’s home. Hill sub-

sequently entered a conditional guilty plea while reserving his

right to appeal the denial of his motion to suppress. We now

hold that the district court erred in finding that the police’s

initial entry into the house was valid, but that it properly

found Ms. Alvarez’s consent for the second search was valid.

We remand to the district court for a determination as to

whether the taint from the initial illegal entry into the house

was dissipated by Ms. Alvarez’s consent.

I.

The pertinent facts of this case take place over the span of

a month and a half. On June 25, 2009, Hill was informed by

Virginia State Trooper Cox that his license was suspended.

When asked, Hill gave the officer an address in Alexandria,

Virginia. Hill testified that he told Trooper Cox that the

address was out of date because he could not remember his

new mailing address in Lorton, Virginia (hereinafter "the Lor-

UNITED STATES v. HILL 3

ton townhouse") where he had moved with his girlfriend, Ms.

Alvarez, and their eight-year-old son in May of 2009.

On July 12, 2009, Officer Albert from the Fairfax Police

Department approached a group of men, including Hill, who

were allegedly loitering, and obtained their identification.

Later, after the men had dispersed, Officer Albert discovered

an electronic scale and concealed marijuana near where the

group of men were gathered. Early the next morning, he

swore out an affidavit to obtain an arrest warrant for Hill. The

warrant for Hill’s arrest listed his address as "unknown."

On July 17, 2009, Ms. Alvarez called 911 from the Lorton

townhouse because of an argument she was having with Hill.

Ms. Alvarez testified at the suppression hearing that she hung

up the phone before speaking with the 911 operator, but Offi-

cer Coligan was dispatched to the Lorton townhouse nonethe-

less. Ms. Alvarez also testified that the argument did not

involve physical violence. Officer Coligan testified that when

he arrived Ms. Alvarez told him that Hill resided at the Lorton

townhouse, but had left because of the outstanding warrant for

his arrest. Officer Coligan also testified that the door frame of

the house was damaged when he arrived, and he discussed

having it fixed by the landlord with Ms. Alvarez. He for-

warded his report to Sergeant Milam from the warrant depart-

ment.

Hill spent more than half of his nights at the Lorton town-

house between the July 17th incident and July 29th, 2009, but

this was not known to police at the time.

On July 29, 2009, Sergeant Milam, Detective Studer, Offi-

cers Pleva, and Officer Kroll from the Fairfax Police Depart-

ment arrived at the Lorton townhouse with a warrant for

Hill’s arrest. The warrant indicated that Hill’s address was

unknown. Sergeant Milam testified that he thought there was

an eighty percent chance that Hill would not return to the Lor-

ton townhouse to avoid being apprehended by police. Instead,

4 UNITED STATES v. HILL

Sergeant Milam reported, the police were trying to communi-

cate with Ms. Alvarez concerning Hill’s whereabouts.

Upon arrival, the police knocked on the door. They heard

noises which they believed could have been voices or the tele-

vision. The noises were completely unresponsive to police

knocking. Milam noted that the doorframe was damaged. He

placed a call to Ms. Alvarez who indicated that she was at

work and that the only person who could be at the Lorton

townhouse was her sister. Neither the police nor Ms. Alvarez

expressed concern about Ms. Alvarez’s sister’s safety, and,

notably, Milam did not obtain consent to enter the house dur-

ing this conversation. Shortly thereafter, Milam decided to

turn the doorknob and opened the door. Upon opening the

door, Milam discovered Hill and a friend sitting on the couch.

They confiscated Hill’s phone, which had a text message from

Ms. Alvarez indicating that the police were at the front door.

Officer Pleva conducted a protective search of the home

allegedly looking for Ms. Alvarez’s sister. Pleva also testified

he smelt burnt marijuana. The officers located a small amount

of marijuana and a grinder on the kitchen table. About an hour

later, upon arriving home from work, Ms. Alvarez gave her

consent to search the house. There is a factual dispute about

whether Ms. Alvarez freely gave her consent to search the

house. Despite her allegedly valid consent, police took steps

to obtain a search warrant. However, the search of the Lorton

townhouse was conducted by the time the search warrant was

executed by Officer Kroll. The search turned up a two-shot

revolver, an empty holster, a bulletproof vest, scales, ammuni-

tion, marijuana, and crack cocaine.

Hill was charged in a superseding indictment with one

count of possession with intent to distribute cocaine base in

violation of 21 U.S.C. § 841(a) and one count of possession

of a firearm in connection with a drug trafficking crime in

violation of 18 U.S.C. § 924(c).

UNITED STATES v. HILL 5

Before trial, Hill filed a motion to suppress evidence

obtained as a result of the search of the Lorton townhouse.

The court denied the motion first orally and later in a written

order.

Hill entered a conditional plea of guilty to the first count

while retaining his right to appeal the denial of his motion to

suppress. The district court entered a judgment of conviction

and sentenced him to 120 months of incarceration. Hill timely

appealed.

II.

On appeal from a motion to suppress, this Court reviews

the factual findings of a district court for clear error, and

reviews legal determinations de novo. United States v. Kel-

lam, 568 F.3d 125, 132 (4th Cir. 2009).

This case requires an analysis of four doctrines in order to

determine whether or not the fruits of the search of Hill’s

home should be suppressed. First, we determine whether the

search of Hill’s residence was justified as a valid execution of

Hill’s arrest warrant. Second, we determine whether the exi-

gency doctrine permits entry into the house. Third, we deter-

mine whether Ms. Alvarez’s consent to search the house was

valid. Finally, we determine whether the taint from the initial

entry was dissipated by Ms. Alvarez’s consent.

A.

i.

The police did not have sufficient reasons upon which to

base their belief that Hill was present in the home to execute

their arrest warrant. In Payton v. New York, the Supreme

Court concluded that police may enter into a home without a

search warrant in order to execute an arrest warrant only if

"there is reason to believe [that the subject of the warrant] is

6 UNITED STATES v. HILL

within." 445 U.S. 573, 602 (1980). Generally, circuits have

broken the analysis of whether the entry was lawful into two

conjunctive parts: (1) whether there is reason to believe that

the location is the defendant’s residence, and (2) whether or

not there was a "reasonable belief" that he would be home.

See, e.g., United States v. Graham, 553 F.3d 6, 13 (1st Cir.

2009); United States v. Magluta, 44 F.3d 1530, 1535 (11th

Cir. 1995), cert. denied, 116 S. Ct. 189 (1995).

Circuits have employed a variety of approaches in defining

reasonable belief and its relationship to probable cause. Some

circuits have found that reasonable belief is the same as prob-

able cause. See United States v. Hardin, 539 F.3d 404, 416

(6th Cir. 2008) (probable cause is the correct standard to use

in determining an officer’s reasonable belief that the subject

of a warrant is present in the home); United States v. Gorman,

314 F.3d 1105, 1114 (9th Cir. 2002) (same); see also United

States v. Jackson, 576 F.3d 465, 469 (7th Cir. 2009) (noting

an inclination to believe "that ‘reasonable belief’ is synony-

mous with probable cause.").

Other circuits have simply found that the distinction

between reasonable belief and probable cause is indefinite or

negligible. See United States v. Barrera, 464 F.3d 496, 501

n.5 (5th Cir. 2006) (noting that the distinction between proba-

ble cause and reasonable belief is "more about semantics than

substance"), cert. denied, 550 U.S. 937 (2007); Magluta, 44

F.3d at 1535 (noting that it is "difficult to define the Payton

‘reason to believe’ standard, or to compare the quantum of

proof the standard requires with the proof that probable cause

requires.").

While still other circuits have found that the requirements

of reasonable belief are something less than probable cause.

See United States v. Thomas, 429 F.3d 282, 286 (D.C. Cir.

2005) ("reasonable belief" requires less than probable cause),

cert. denied, 549 U.S. 1055 (2006); Valdez v. Machetes, 172

F.3d 1220, 1227 n.5 (10th Cir. 1999) (same); United States v.

UNITED STATES v. HILL 7

Later, 57 F.3d 212, 215 (2d Cir. 1995) (same). A final set of

circuits has taken no position as to the relationship between

"reasonable belief" and probable cause. United States v.

Weems, 322 F.3d 18, 22 (1st Cir. 2003); United States v. Rise,

83 F.3d 212, 216 (8th Cir. 1996); United States v. Edmonds,

52 F.3d 1236, 1248 (3d Cir. 1995), vacated in part on other

grounds, 52 F.3d 1251.

In light of the diverse views taken by our sister circuits, we

decline to reach a conclusion as to whether ‘reason to believe’

is as stringent as ‘probable cause’ because we conclude below

that the police entry was not justified even under the less

stringent interpretation of the standard.

ii.

Next we apply the two-part test to determine whether

police could lawfully enter Hill’s home to execute their arrest

warrant. First, we must decide whether police had reason to

believe that the Lorton townhouse was Hill’s residence. At the

suppression hearing, Hill essentially conceded this point

because in order to have standing to contest the search he had

to establish that he had an expectation of privacy at the resi-

dence. Additionally, the report stemming from Ms. Alvarez’s

domestic violence call stated that the Lorton townhouse was

his residence. Therefore, we find that there was reason to

believe that Hill was a resident of the Lorton townhouse.

The second part of the test is whether or not the police had

reason to believe that Hill was present; and we conclude that

the evidence weighs against so finding. First, there is testi-

mony from Sergeant Milam, the lead officer on the scene, that

he did not believe Hill would be present at the home since he

had previously been identified at the home by police and fled.

Milam even stated that he believed there was an eighty-

percent chance Hill would not be present.1 In fact, Officer

1

It is true that the subjective beliefs of an officer are not relevant here.

Whren v. United States, 517 U.S. 806, 813-814 (1996). However, Sergeant

8 UNITED STATES v. HILL

Kroll, another arresting officer, characterized the trip to the

residence as a "follow up visit to the residence to gain infor-

mation in regards to a fugitive investigation that [Sergeant

Milam] was conducting." J.A. 171. Additionally, the police

had documented another primary residence for Hill based on

this recent traffic citation, further lessening the chances that

Hill would be present in the home.

The officers relied on hearing unresponsive noises from

inside the house, which could have been voices or a televi-

sion, to support their belief that Hill was present. However,

noise coming from inside of a house is not enough to give the

police a reason to believe that a defendant is present. This is

especially true because before entering the house, Sergeant

Milam was informed by a resident of the house, Ms. Alvarez,

that Hill was not there and that the noise was most likely com-

ing from her sister who might have been in the house.

In the Fourth Circuit, courts have sanctioned entry only

where multiple facts support a reason to believe that the sub-

ject of the arrest warrant is present at the time of entry. See,

e.g., United States v. Young, 609 F.3d 348 (4th Cir. 2010)

(finding that where police established surveillance of the

home, were sure that the subject of the arrest warrant was

present, and had just confiscated drugs from someone exiting

the home, Payton supported entry into the home); United

States v. Morgan, No. 92-5068, 1992 U.S. App. LEXIS

20235, at *2 (4th Cir. Aug. 4, 1992) (unpublished) (the police

"observed that the interior lights were on and that Morgan’s

car was parked at the rear of the house" and "saw Morgan run

across the yard toward his house.").

Milam’s belief was held as a result of the objective fact that Hill was

unlikely to return to a residence he had recently fled in order to avoid con-

tact with the police. As such, Milam’s view is evidence of a reasonable

reading of the objective facts from an experienced officer’s perspective.

UNITED STATES v. HILL 9

The government also relies on several cases from outside

the Fourth Circuit to conclude that they had sufficient evi-

dence that Hill was present in the home to justify their entry.

For instance, it relies on United States v. Lloyd for the propo-

sition that noise inside a house is sufficient to give police a

reason to believe someone is inside. 396 F.3d 948 (8th Cir.

2005). However, in that case, police had a complaint from

neighbors about an abandoned car, the smell of ether emanat-

ing from the house, noise from a fan and other sources com-

ing from inside the house, as well as evidence from a

neighbor that the defendant had been home earlier that day.

Id. at 950-952. These robust facts point to a far more sound

conclusion that someone, specifically the defendant, was pres-

ent at the time of the entry.2

Similarly, the government’s reliance on United States v.

Route is misplaced. 104 F.3d 59 (5th Cir. 1997). In Route the

police had more facts to rely on in determining that they had

a reasonable belief that the defendant would be present. These

facts included that the home was defendant’s primary resi-

dence, a known co-conspirator was seen leaving the house

shortly before the search, there was a television on inside the

house, and an additional car was parked in the driveway. Id.

at 62.3

In all of these cases, the police had several reasons to

believe that the subject of the warrant was present. Here, at

best, the police had reason to believe that someone was pres-

ent and that the individual inside was Ms. Alvarez’s sister.

We find that in order to have reason to believe that the defen-

dant is in the home, police cannot solely rely on an unidenti-

fied noise coming from within the home.

2

The court in Lloyd also relied on the fact that the smell of ether permit-

ted the officers to enter the home as a result of the exigent circumstances.

Id. at 955.

3

The government also cites United States v. Philips, 593 F. 2d 553, 556

(4th Cir. 1978), but this case has no precedential value since it was

decided before Payton and thus analyzed the issue according to a different

test.

10 UNITED STATES v. HILL

Therefore, we conclude that the officers’ entry into Hill’s

home was not a proper entry in order to execute an arrest war-

rant.

B.

The government also contends that its entry was justified

by the exigency doctrine. The district court, in determining

that the exigency doctrine would apply, provides scant rea-

soning except to say that "the Court finds that it would have

been reasonable for [the police] to enter or certainly simply

open the door to determine whether the sister was facing some

safety issues." J.A. 268. We disagree and hold that the evi-

dence does not support a finding that the entry was justified

by the exigency doctrine.

In analyzing whether exigent circumstances justified a war-

rantless search, we ask whether the circumstances would

cause an officer to have an "objectively reasonable belief that

an emergency existed that required immediate entry to render

assistance or prevent harm to persons or property within."

United States v. Moss, 963 F.2d 673, 678 (4th Cir. 1992). The

Supreme Court has emphasized that "[a]n action is ‘reason-

able’ under the Fourth Amendment, regardless of the individ-

ual officer’s state of mind, as long as the circumstances,

viewed objectively, justify the action." Brigham City v. Stu-

art, 547 U.S. 398, 404 (2006) (citation and quotations omit-

ted). Examples of such emergencies include "to assist persons

who are seriously injured or threatened with such injury." Id.

at 403.

This Court recently cited with approval a non-exhaustive

list of factors to consider:

(1) the degree of urgency involved and the amount

of time necessary to obtain a warrant; (2) the offi-

cers’ reasonable belief that the contraband is about

to be removed or destroyed; (3) the possibility of

UNITED STATES v. HILL 11

danger to police guarding the site; (4) information

indicating the possessors of the contraband are aware

that police are on their trail; and (5) the ready

destructibility of the contraband.

United States v. Mowatt, 513 F.3d 395, 399 (4th Cir. 2008)

(citation omitted). In the present case, only the first factor is

alleged by the government, and we proceed with an analysis

of whether there was sufficient evidence of urgency to justify

police entry.

The Supreme Court has found that where officers were cal-

led to a house, observed underage drinking, and an alterca-

tion, the exigency doctrine was correctly applied. See

Brigham, 547 U.S. at 407. For this doctrine to justify an entry,

courts require police to have substantial evidence of wrongdo-

ing or imminent danger. See States v. Taylor, 624 F.3d 626

(4th Cir. 2010) (police sought to identify the parents of a four

year old child, and she identified the house as being her resi-

dence); United States v. Dean, No. 06-5028, 243 F. App’x.

780, 782 (4th Cir. July 17, 2007) (unpublished) (police had

reports of a gas leak in a wood framed house); United States

v. Jones, 204 F.3d 541, 543 (4th Cir. 2000) (where defendant

placed a small baggy with white powder in his mouth and

walked into a residence); United States v. Masko, No. 99-

4681, 2000 U.S. App. LEXIS 19057 (4th Cir. Aug. 9, 2000)

(unpublished) (where an occupant of a motel room asked the

staff to call 911); cf. Hunsberger v. Wood, 570 F.3d 546, 549

(4th Cir. 2009) (in a civil case against a police officer, the

court determined that "circumstances confronted by defendant

on the night in question suggested that plaintiffs’ home was

being vandalized and that a missing teenage girl was in the

house and in need of assistance" and therefore he acted prop-

erly).

Where the police have evidence that the danger in question

was not imminent, an entry is not justified. United States v.

Shea, No. 99-4723, 2000 U.S. App. LEXIS 15441 (4th Cir.

12 UNITED STATES v. HILL

June 30, 2000) (unpublished) (police received a call that

defendant was engaged in underage sex and found defendant

outside the room, and therefore, had no reason to believe that

underage girl was in danger and subsequent search was ille-

gal).

Here, the police did not have a sufficiently reasonable basis

to justify this entry under the exigency doctrine. The factors

Sergeant Milam identified to support his contention that his

emergency entry was justified are not sufficient. First, Milam

suggests that "the door appeared to be very old, and [he]

noticed around the frame and the top area to be some damage

to the frame a little bit like it had been previously kicked in

or broken in." J.A. 140 (emphasis added). However, slight

damage to a door frame is not sufficient to justify an entry

without a warrant.4

Second, Sergeant Milam expressed concern that there was

someone inside the house who was not answering and "that’s

not normal behavior." J.A. 141. Again, this is simply not suf-

ficient evidence to support a warrantless entry into a private

home without some articulable fact that justified urgent entry

by police. This is especially true since the unresponsive noise

could easily have been a television or radio accidentally left

on.

Next, Milam indicated that he was concerned about Ms.

Alvarez’s sister who he was told might be home, but was not

answering the door. However, Milam can point to nothing

4

Practically speaking, if the police had concerns about the door frame

they could have asked Ms. Alvarez about it while they were talking to her

on the phone. Instead of taking the extreme step of entering a private home

without a warrant, the police had a clearly less invasive means of ascer-

taining what, if anything, was transpiring within the house. Ms. Alvarez

was cooperative and forthcoming from the perspective of the police hav-

ing previously informed them that Hill fled as a result of an outstanding

warrant.

UNITED STATES v. HILL 13

that would suggest that Ms. Alvarez’s sister was in distress or

required police assistance.

Milam also expressed concern about Ms. Alvarez because

she had previously called the police to remove Hill. However,

any concern about Ms. Alvarez and Hill should have been

eliminated when Milam spoke with Ms. Alvarez who was at

work and who had assured him that she was fine and sug-

gested her sister would be the only one in the house. Addi-

tionally, the 911 call that Ms. Alvarez placed was weeks

before the search and no allegations of violence were made

against Hill.

Finally, Milam indicated that he heard what sounded like

someone attempting to lock a latch on the door. However, the

door was not locked when police entered. Furthermore, this

evidence does not point to any exigency. Circuit precedent

supports a finding that entry was not justified. In Moss, a For-

est Service Officer noticed a car parked illegally along the

side of the road in a national park. Moss, 963 F.2d at 674. He

radioed to dispatch and was wrongly told that the closest

cabin was unoccupied. Id. at 675. When he came upon the

cabin, he discovered fresh bike tracks and an unlocked door.

Id. He proceeded to search the cabin and discovered mari-

juana. Id. This Court concluded that his search of the cabin

was not justified under the exigency doctrine because there

was no evidence of "an emergency that required immediate

identification of the occupants in order to give them assis-

tance — or indeed that assistance was needed." Id. at 679.

This case is very much like Moss in several respects. In

both cases, the officer was under some mistaken impressions,

which led to his suspicion. In Moss it was that the cabin was

not occupied, and, in this case, that the damage on the door

was recent.5 Similarly to Moss, and unlike cases where the

5

In fact, police had previous knowledge that the door frame had been

damaged because when the police were called to the house on July 17,

2009, the damage was noted.

14 UNITED STATES v. HILL

exigency doctrine has been applied, there were no reports of

yelling from within the home that would support a sense of

emergency or signals of distress.

The Fourth Amendment protects the rights of citizens to

refuse to have their homes searched. In order for a search to

be legal, the police must have a warrant or their conduct must

fall within an exception to the Fourth Amendment. We hold

that damage to the door, unsupported hunches of the police,

and noises from within are not sufficient to suggest that there

was an emergency taking place inside the residence.

Therefore, we find that the initial entry into the Lorton

townhouse was unlawful.

C.

Having concluded that the initial entry into the house was

unlawful, we turn our analysis to the issue of whether the con-

sent provided by Ms. Alvarez was valid. "The voluntariness

of consent to search is a factual question, and as a reviewing

court, we must affirm the determination of the district court

unless its finding is clearly erroneous." United States v. Latti-

more, 87 F.3d 647, 650 (4th Cir. 1996). District courts are

given deference where their determination on the issue of

consent is based on oral testimony where they had an opportu-

nity to make a credibility determination. Id. at 651.

The district court concluded, after weighing the evidence

presented to it by Ms. Alvarez and the police, that Ms. Alva-

rez’s consent to the search of her home when she arrived after

Hill’s arrest was voluntary. The district court credited the offi-

cer’s testimony over that of Ms. Alvarez. We can find nothing

on the record which would support a finding that the district

court committed clear error in determining that the consent

was valid.

UNITED STATES v. HILL 15

D.

We have determined that the initial entry into the Lorton

townhouse was illegal, but that Ms. Alvarez gave her valid

consent to the search. Therefore, it becomes necessary to

evaluate whether the taint from the initial illegal search was

dissipated when Ms. Alvarez gave her consent for the second

search.6

This Court must evaluate whether the taint is sufficiently

dissipated using the "fruit of the poisonous tree" doctrine.

Wong Sun v. United States, 371 U.S. 471 (1963). In Brown v.

Illinois, the Supreme Court articulated three factors that are

used to determine whether the taint from an illegal search has

dissipated: (1) the time between the Fourth Amendment viola-

tion and the consent, (2) the presence of intervening circum-

stances, and (3) the flagrancy of the official misconduct. 422

U.S. 590, 603-04 (1975). In evaluating whether the taint has

dissipated, courts conduct a case by case analysis of the facts.

United States v. Ceccolini, 435 U.S. 268, 276 (1978).

If the government wishes to argue that taint from an initial

search is dissipated by the validly obtained consent, it bears

the burden of so showing. United States v. Seidman, 156 F.3d

542, 548 (4th Cir. 1998).

We have previously found that an individual’s consent can

be sufficient to dissipate the taint of an illegal search. See

Seidman, 156 F.3d at 548 (taint had dissipated from an infor-

mant’s illegal entry into subject’s house when he was warmly

greeted by subject who explained not answering the door

because he was in the basement and carried on a 45 minute

conversation with informant); see also United States v.

6

In the initial briefing for this case, neither party raised this issue. How-

ever, the court ordered additional briefing with respect to this issue prior

to oral argument. Since the burden to prove dissipation rests with the gov-

ernment, this question was not waived by Hill.

16 UNITED STATES v. HILL

Meece, 580 F.3d 616, 619 (7th Cir. 2009) (a girlfriend’s con-

sent was sufficient to dissipate taint where the court found she

was not influenced by news of arrest and wanted police to

find any guns in her home to protect her children). But in

other cases, we have found that consent does not dissipate the

taint. In United States v. Gooding, we found that an illegal

Terry stop tainted all subsequently obtained evidence even

when the defendant consented to the search. 695 F.2d 78, 84

(4th Cir. 1982). Other courts have also found that consent

does not necessarily dissipate the taint. In United States v.

Alvarez-Manzo, the Second Circuit found that consent to

search a wallet subsequent to a Fourth Amendment violation

where police seized defendant’s bag from the bus cargo did

not dissipate the taint. 570 F.3d 1070, 1077 (8th Cir. 2009).

The court relied on the fact that the government bears the bur-

den of showing that the taint has dissipated. Id.; see also

United States v. Valentine, 539 F.3d 88 (2d Cir. 2008) (man’s

arrest and search of car were illegal, the police proceeded to

his apartment and, with the consent of his girlfriend, searched

it, the court remanded the case to district court to determine

whether the subsequent search of the apartment was lawful);

United States v. Jaquez, 421 F.3d 338 (5th Cir. 2005) (consent

to search car given after illegal traffic stop not sufficiently an

act of free will to break causal chain of events flowing from

constitutional violation); United States v. Washington, 387

F.3d 1060, 1063 (9th Cir. 2004) (written consent did not dissi-

pate taint); United States v. Yousif, 308 F.3d 820 (8th Cir.

2002) (consent does not always purge prior illegal action);

United States v. Caro, 248 F.3d 1240 (10th Cir. 2001) (same);

United States v. Valdez, 931 F.2d 1448 (11th Cir. 1991) (same).7

7

The government’s reliance on United States v. Liss is misplaced since

the majority in that opinion does not even perform a Brown analysis. 103

F.3d 617 (7th Cir. 1997). Furthermore, in a concurrence, Judge Ripple

characterized the majority opinion’s failure to consider Brown as "frontal

assault on the precedents of the Supreme Court of the United States and

this Court". Id. at 622.

UNITED STATES v. HILL 17

In a similar case, the Eleventh Circuit has taken a more lim-

ited view of the taint doctrine. In United States v. Delancy, the

Eleventh Circuit found that the written and oral consent from

a girlfriend was sufficient to dissipate the taint of the illegal

entry by police. 502 F.3d 1297, 1309 (11th Cir. 2007). The

case before us is factually different in two ways: (1) the police

obtained written consent in Delancy, and (2) the girlfriend in

Delancy did not arrive home to multiple police officers

already in her home after learning of the arrest of her boy-

friend.

The first factor that the Supreme Court identified in Brown

requires us to consider the time that elapsed between the ini-

tial "illegal" search and the subsequent consent. There is a

factual dispute between the parties as to how much time

elapsed between the two searches. Since the record is under-

developed as to this issue, this factor weighs in favor of

remanding the case to the district court in order for it to con-

duct a further factual inquiry.

The second factor to consider is the existence and impor-

tance of any intervening circumstances. This Court and the

Supreme Court have consistently held that an analysis of the

voluntariness of a statement is a separate inquiry from deter-

mining whether the taint from a Fourth Amendment violation

has dissipated. Cf. Taylor v. Alabama, 457 U.S. 687, 690

(1982) ("[T]his Court [has] firmly established that the fact

that the confession may be ‘voluntary’ for purposes of the

Fifth Amendment . . . is not by itself sufficient to purge the

taint of the illegal arrest."). In a concurrence, Judge Michael

summarized the Supreme Court jurisprudence on this topic:

[T]he Supreme Court has found intervening circum-

stances only when the events were sufficient to break

the "causal chain[ ] between the [Fourth Amendment

violation] and the statements made subsequent

thereto." Brown at 602. Examples of intervening cir-

cumstance sufficient to break that chain include a

18 UNITED STATES v. HILL

hearing before a magistrate judge at which the defen-

dant was advised of his rights, see Johnson v. Louisi-

ana, 406 U.S. 356, 365 (1972); an arraignment plus

a six-day release from custody, see Wong Sun, 371

U.S. at 491; and the issuance of a valid search war-

rant that resulted in the independent discovery of

drugs and a spontaneous admission, see Rawlings v.

Kentucky, 448 U.S. 98, 108-09 (1980). See also

United States v. Wellins, 654 F.2d 550, 555 (9th Cir.

1981) (finding intervening circumstance when

defendant was allowed to consult with his lawyer).

Seidman, 156 F.3d at 555.8

Here, the continued presence of the law enforcement offi-

cers inside the home, subsequent to their illegal search, is a

significant consideration in determining whether the taint had

dissipated. "[W]here government agents inform a defendant

that they have entered his house and are in control thereof and

that they have found contraband, there is a strong possibility

that the consent is a fruit of the original illegal entry." United

States v. Collazo, 732 F.2d 1200, 1204 (4th Cir. 1984); see

also Thomas, 955 F.2d at 211.

Another significant consideration is the fact that the person

providing consent in this case was not the defendant, but

instead was the defendant’s girlfriend, Ms. Alvarez. Addition-

ally, Ms. Alvarez was not present in the home at the time that

the police entered the residence.

8

The inevitable discovery doctrine is not appropriate here since "[t]he

premise of the inevitable discovery doctrine is that the illegal search

played no real part in discovery of incriminating evidence. Only then, if

it can be shown that the taint did not extend to the second search, would

the product of the second search be admissible." United States v. Thomas,

955 F.2d 207, 209 (4th Cir. 1992). Here, it is obvious that the police’s

desire to search the Lorton townhouse stemmed from the initial illegal

search.

UNITED STATES v. HILL 19

There is limited evidence in this record regarding the cir-

cumstances surrounding Ms. Alvarez’s consent. For example,

we do not know: how many police officers were present in the

house and whether their weapons were visible; what freedom

of movement Ms. Alvarez had during the search; and whether

Ms. Alvarez might have to fear prosecution if she did not

cooperate. Consequently, we find that no conclusion can be

drawn on this factor, and it should be remanded for further

development on this issue.

The third factor to consider in this analysis is the flagrancy

of the police conduct. This analysis turns at least in part on

whether the violation "is the sort of police behavior that the

Brown . . . test is meant to discourage." United States v. Mil-

ler, 146 F.3d 274, 279 (5th Cir. 1998). There are numerous

factors to consider when evaluating the flagrancy of the con-

duct. Some factors may weigh in favor of finding the conduct

to be flagrant including that the illegal conduct involves "the

physical entry of the home[,] [which] is the chief evil against

which the wording of the Fourth Amendment is directed."

Payton, 445 U.S. at 585.

Other factors may weigh in favor of finding the conduct

was not flagrant, including that the officers did not use or

exploit the evidence that they obtained during the initial

search to gain consent. See Seidman, 156 F.3d at 549; see also

Delancy, 502 F.3d at 1313.

It will ultimately be the district court’s role to weigh the

evidence alongside these factors, and evaluate the flagrancy

of the police conduct.

Therefore, since the district court has not addressed this

issue, it is appropriate to remand the case for a full factual

development of the record and a determination of whether the

taint had dissipated by the second search. Collazo, 732 F.2d

at 1204.

20 UNITED STATES v. HILL

We vacate the district court’s denial of Hill’s motion to

suppress, and remand this matter to develop the record and

determine whether Ms. Alvarez’s consent was sufficient to

dissipate the taint from the initial illegal search of the Lorton

townhouse.

Accordingly, this case is

VACATED AND REMANDED WITH INSTRUCTIONS.

AGEE, Circuit Judge, dissenting:

As an appellate court, we are to review the record in the

light most favorable to the prevailing party below, which, in

this case, is the Government. United States v. Branch, 537

F.3d 328, 337 (4th Cir. 2008) (stating that when assessing a

district court’s decision on a motion to suppress, the Court

must construe the evidence in the light most favorable to the

prevailing party); see also United States v. Humphries, 372

F.3d 653, 657 (4th Cir. 2004) (stating that "[i]n our deference

to fact-finding, we also give due weight to inferences drawn

from those facts by resident judges and local law enforcement

officers") (internal quotation marks omitted). The majority

opinion fails to follow this fundamental rule of appellate

review. When the facts are viewed in their proper light under

the accepted standard of judicial review, they satisfy the stan-

dard set forth in Payton v. New York, 445 U.S. 573 (1980),

that permits police entry into a dwelling without a search war-

rant in order to execute an arrest warrant. Accordingly, I can-

not join the majority opinion.

I.

The Supreme Court’s decision in Payton articulates the rel-

evant standard: "for Fourth Amendment purposes, an arrest

warrant founded on probable cause implicitly carries with it

the limited authority to enter a dwelling in which the suspect

lives when there is reason to believe the suspect is within." Id.

UNITED STATES v. HILL 21

at 603 (emphasis added). As the majority opinion observes,

courts have generally recognized two components of this

analysis: first, that the dwelling entered is the residence of the

subject of the arrest warrant; and, second, that the police pos-

sess "reason to believe the suspect is within" when they enter.

See Maj. Op. at 5-6 (citing cases).1

I agree with the majority that the first prong of the Payton

analysis is satisfied: the Lorton townhouse was Hill’s resi-

dence. Not only has Hill conceded this point, but the district

court had ample basis on which to conclude that Hill did

reside there. Hill does not challenge the district court’s deter-

mination on appeal, so that issue is not before us. See Rosen-

berger v. Rector & Visitors, 18 F.3d 269, 276 (4th Cir. 1994),

rev’d on other grounds, 515 U.S. 819 (1995) (holding that

appellant’s failure to raise an issue in the opening brief results

in the issue being abandoned for failure to comply with the

requirements of Federal Rule of Appellate Procedure 28(a)).

II.

Where the majority opinion and I part ways is with respect

to the second prong of the Payton test: did the police have

reason to believe that Hill was present at the Lorton town-

house at the time they entered? A full review of the factual

record shows that they did.

Although the majority opinion recites the proper standard

of review, it fails to apply that principle. When a motion to

suppress has been denied, we are to review the evidence in the

light most favorable to the Government. See Branch, 537 F.3d

at 337. In my view, that is not what the majority opinion does

1

The majority opinion correctly notes a split among the circuits as to

what constitutes the "reason to believe" standard. See Maj. Op. at 5-6. No

published Fourth Circuit case has previously addressed the application of

Payton in this regard, but I agree with the majority that this is not the

proper case to address this issue.

22 UNITED STATES v. HILL

in this case. The majority opinion not only omits any refer-

ence to several factors supporting the conclusion that the

police had reason to believe Hill was inside the residence

entered, but also mischaracterizes portions of the factual

record, the effect of which is to present the evidence in the

light most favorable to Hill and least favorable to the Govern-

ment.

The police learned that Hill resided at the Lorton town-

house after Alvarez placed a 9-1-1 call on July 17, twelve

days before the events at issue in this appeal. The responding

officer, Kirk Coligan, testified that Hill and Alvarez were

arguing. When Officer Coligan asked both of them to "get

back and get down" in order to assess what was happening,

Hill "approached [him] walking towards the front door like he

was about to lay [sic] down on the ground in front of [him].

As soon as [Hill] reached that threshold of the doorway, he

ran from [Coligan]" out the front door and "around another

block of townhouses." (J.A. 113.) Officer Coligan initially

pursued Hill on foot, but broke off the pursuit because he had

no back up and no reason to detain Hill at that time. Officer

Coligan returned to the townhouse and spoke to Alvarez, who

told him she and Hill had an argument after Hill told her there

was a warrant out for his arrest. Alvarez provided Hill’s iden-

tity to the officer and gave the Lorton townhome as Hill’s

address, indicating that he stayed with her and did not have

a current permanent address elsewhere. Officer Coligan sub-

sequently gave Sergeant Milam this information.2

Although this incident provides only background informa-

tion to the subsequent entry of the townhouse, it is particu-

larly significant because it provided the police with specific

information that Hill knew of the arrest warrant, had previ-

ously attempted to flee from police, and therefore would

likely seek to avoid them in the future. Courts have routinely

2

While the majority recites this encounter, it fails to note that Hill fled

the residence upon seeing Officer Coligan.

UNITED STATES v. HILL 23

observed that "officers may take into account the fact that a

person involved in criminal activity may be attempting to

conceal his whereabouts" when assessing the on-scene cir-

cumstances. See, e.g., United States v. Gay, 240 F.3d 1222,

1227 (10th Cir. 2001) (quotation marks and citation omitted).

This is true even where no specific information is available to

suggest that the suspect will avoid the police; it is all the more

true where, as here, there is specific evidence to support that

belief.

The majority recites the testimony of Sergeant Milam and

Officer Kroll that they did not believe Hill would be at the

Lorton townhome and that the purpose of their visit was

investigational. However, that account does not fully repre-

sent the record. The recited testimony is immaterial to the rel-

evant inquiry not simply because it relates Sergeant Milam

and Officer Kroll’s subjective beliefs, but because it also

relates to views held prior to arriving at the townhouse. That

partial testimony does not account for the circumstances the

officers observed and encountered upon arriving at the scene.

Our review is based on the totality of the circumstances

known to the police at the time they entered the residence.

Regardless of the reasons for initially arriving at a residence,

police officers can encounter a variety of circumstances once

on the scene that may or may not support the conclusion that

they possessed the reasonable belief that a suspect would be

inside his residence. E.g., United States v. Werra, 638 F.3d

326, 338-39 (1st Cir. 2011) (focusing on evidence to support

a reasonable belief the suspect was inside the house "at the

time [the police officers] entered"); United States v. Veal, 453

F.3d 164, 167 (3d Cir. 2006) (same); Gay, 250 F.3d at 1227

(same). Sergeant Milam and Office Kroll’s testimony neither

supports nor detracts from the salient inquiry because their

recited views were formed prior to arriving at the residence

and assessing the situation first-hand.

To the extent that — as the majority expresses it — the

subjective views of Sergeant Milam are relevant as "evidence

24 UNITED STATES v. HILL

of a reasonable reading of the objective facts from an experi-

enced officer’s perspective," Maj. Op. at 7-8 n.1, the record

shows Milam’s belief evolved from that relied on by the

majority opinion. Sergeant Milam testified that he had a

"sneaking suspicion" Hill would be inside the residence based

on how events unfolded once he and the other officers arrived

at the townhouse. (J.A. 164.) This "on-scene" assessment was

formed precisely at the relevant moment of the proper inquiry

as opposed to Sergeant Milam’s belief formed prior to going

to the residence.

Next, the majority opinion points out that "the police had

documented another primary residence for Hill based on [his]

recent traffic citation, further lessening the chances that Hill

would be present in the home." Maj. Op. at 8. This conclusion

is flawed for at least three reasons. First, it calls into question

the issue whether the Lorton townhouse was Hill’s residence,

which — as discussed above and the majority opinion agrees

— is not at issue on appeal. The Lorton townhouse was Hill’s

residence. Second, it conveniently ignores the information

Hill actually provided to police at the time he received the

traffic citation, which was that he no longer lived at the

address listed on his driver’s license. That driver’s license

address was not the townhouse address. Third, it ignores

Alvarez’s statement to police days before the search that Hill

lived at the Lorton townhouse with her and did not have any

other permanent residence.

The majority opinion next discounts the probative value of

the noises the police heard from inside the Lorton residence

as evidence that Hill was present. When the police arrived at

the townhouse, Sergeant Milam knocked on the front door

and announced that it was the police. He heard "voices or a

TV inside" and "[a]t one point, it sounded like the door—the

lock on the door was clicking, but I wasn’t for certain what

that was." (J.A. 138-39, 149-50; 164; 174.) No one responded

to the officers’ repeated, loud knocking and announcing. Due

to his familiarity with the general layout and size of the town-

UNITED STATES v. HILL 25

houses in that area, Sergeant Milam believed that "it would be

pretty much impossible not to hear those knocks." (J.A. 152.)

The noises the police officers heard from inside the town-

house are similar to the noises identified in other cases as part

of the totality of the circumstances test. Contrary to the major-

ity opinion’s implication, there is no requirement that noises

be "responsive" to the officers’ knocking in order to be part

of an objective basis for believing that an individual is pres-

ent. See, e.g., United States v. Lloyd, 396 F.3d 948, 952 (8th

Cir. 2005) (police heard "a fan and other noises," which sub-

sequently turned out to be from a dog); Valdez v. McPheters,

172 F.3d 1220, 1226 (10th Cir. 1999) (listing "operation of

lights or other electrical devices" as one factor suggesting the

presence of an individual inside an unresponsive residence);

see also United States v. Phillips, 593 F.2d 553, 556 (4th Cir.

1978) (in a case pre-dating Payton, holding "[e]manation of

a noise from the second floor strengthened [the officers’] con-

viction of the presence of someone in the apartment," even

though the noise was not identified).

Another of the majority opinion’s misleading interpretation

of the facts concerns Alvarez’s statements to Sergeant Milam

during their telephone conversation. The testimony at the sup-

pression hearing showed that when no one responded to the

knocks, Sergeant Milam called Alvarez’s cell phone. Alvarez

indicated that she was not at home and that "her sister should

be home." (J.A. 102, 140-42, 150-51.) The majority opinion

casts this testimony as Alvarez "indicat[ing] that she was at

work and that the only person who could be at the Lorton

townhouse was her sister." Maj. Op. at 4 (emphasis added).

The record reflects this characterization is incorrect; Alvarez

neither included nor excluded Hill as being in the townhouse.

At most, Alvarez’s testimony indicates she had no first-hand

knowledge because she was not at the townhouse, and that

she believed her sister may be there.

Here, Alvarez was at work, and thus had no way of ensur-

ing the veracity of her statements to the police. Instead, she

26 UNITED STATES v. HILL

could only offer her belief based on the information she

believed to be true at the time. Significantly, and contrary to

the majority opinion’s interpretation of her statements, Alva-

rez offered no tangible information that would lead the police

to conclude Hill could not be inside the residence. Viewing all

the circumstances, courts have held there to be a reasonable

belief to proceed with entering a residence even where an

individual on-the-scene states that the suspect is probably —

or even definitively — not inside, where other circumstances

support a contrary conclusion. See e.g., Veal, 453 F.3d at 166

(concluding "reason to believe" existed despite suspect’s wife

answering the door and informing the police that her husband

was not at home); Lloyd, 396 F.3d at 952 (concluding "reason

to believe" existed despite a neighbor telling the officers he

did not think the suspect was home even though he had been

there earlier in the day).

At bottom, the majority’s review of the factual basis for the

officers’ determination that Hill was inside the Lorton town-

house does not accurately and fully reflect the facts developed

in the district court and does not state those facts in the light

most favorable to the Government. Properly viewed, the

record below established at least the following facts:

• Hill had fled police at the Lorton townhouse

twelve days earlier;

• No one responded to the officers’ repeated, loud

knocks and announcement as to their presence;

• The townhouse was small and laid out in such a

way that an individual inside should hear the

knocks;

• Police heard noises — voices or possibly the tele-

vision — inside the townhouse, and at one point

an officer believed he heard a lock turning; and

UNITED STATES v. HILL 27

• Alvarez was not at the Lorton townhouse, but

thought that her sister may have been inside.

In addition to these facts, at least two permissible inferences

also existed — Hill would most likely not respond to the

police if he was inside the residence, and Alvarez’s sister had

no known reason not to answer the door.

III.

The foregoing facts, viewed in light of the Supreme Court’s

instruction in Payton, lead me to conclude that the district

court did not err in holding that the police had reason to

believe Hill was inside the Lorton townhouse at the time they

entered. Although there is scant Fourth Circuit precedent

available, persuasive authority from other Circuit Courts of

Appeals is helpful in applying the standard set forth in Pay-

ton.

At the outset, I note that the majority opinion wrongly

articulates how courts are to assess whether the police had

reason to believe the suspect was inside the residence. It states

that courts within the Fourth Circuit "have sanctioned entry

only where multiple facts support a reason to believe that the

subject of the arrest warrant is present at the time of entry."

Maj. Op. at 8. The first case referenced, United States v.

Young, 609 F.3d 348 (4th Cir. 2010), is inapposite because the

parties did not dispute that the police had reason to believe the

subject of the arrest warrant was present. Id. at 353 ("Young

does not contend . . . that the police lacked reason to believe

he was inside the house."). The only issue in the case was

whether a twenty-second delay between the "knock and

announce" and entry was sufficient. Id. No reading of Young

can sustain it as authority for the proposition stated by the

majority.

The second case cited, United States v. Morgan, No. 92-

5068, 1992 U.S. App. LEXIS 20235, at *2 (4th Cir. Aug. 24,

28 UNITED STATES v. HILL

1992) (unpublished), is unpublished, and of course lacks pre-

cedential weight. Moreover, a case where the defendant is

observed running toward his house just before the police then

observe lights in the house turning off, hardly sets out the

outer limits of the Payton inquiry. Id. Payton does not hold,

and indeed no court applying it has ever held, that the police

must have seen the defendant nearby or have actual knowl-

edge that he is inside a residence before they can enter. See,

e.g., Gay, 240 F.3d at 1227 ("The officers are not required to

actually view the suspect on the premises.") (citation omit-

ted); Valdez, 172 F.3d at 1226 ("Direct surveillance or the

actual viewing of the suspect on the premises is not

required."); United States v. Terry, 702 F.2d 299, 319 (2d Cir.

1983) (noting that the Second Circuit previously "rejected the

contention that the police must first conduct a thorough inves-

tigation to obtain evidence of an arrestee’s actual presence

before entering his residence.").

Instead, as Payton and courts in other circuits have

observed, the test is a totality-of-the-circumstances analysis.

The analysis does not require a court to find a certain number

of facts, and could be based on one fact bearing sufficient

gravitas. We are not called to itemize the factors favoring and

opposing the conclusion purely to assess which side is greater

in number. Instead, as the Tenth Circuit noted in Valdez, we

are called to be

sensitive to common sense factors indicating a resi-

dent’s presence. Direct surveillance or the actual

viewing of the suspect on the premises is not

required. Indeed, the officers may take into account

the fact that a person involved in criminal activity

may be attempting to conceal his whereabouts. The

suspect’s presence may be suggested by the presence

of an automobile, the time of day, observing the

operation of lights or other electrical devices, and the

circumstances of a suspect’s employment. And the

officers may consider an absence of evidence the

UNITED STATES v. HILL 29

suspect is elsewhere. No single factor is, of course,

dispositive. Rather, the court must look at all of the

circumstances present in the case to determine

whether the officers entering the residence had a rea-

sonable belief that the suspect resided there and

would be found within.

172 F.3d at 1226 (internal quotation marks and citation omit-

ted).

Here, as detailed above, the police had sufficient reason to

believe Hill was inside the townhouse based on several pieces

of information. This is not the situation identified in the

majority opinion where the police "solely rel[ied] on an

unidentified noise coming from within the home" as the basis

for their entry. Maj. Op. at 9. The officers knew Hill would

likely try to hide from them because he had fled the residence

a few days before upon seeing police approach the town-

house. They had a reasonable basis on which to conclude that

an individual inside the house would hear their knocks, they

heard noises like voices emanating from inside the home, and

Alvarez was not at home to confirm or deny Hill’s presence.

Similarly, as the district court found, if Alvarez’s sister was

present, she had no reason not to answer the door, while Hill

had every reason not to do so. The police were not required

to ascertain that Hill was, in fact, inside the residence; they

are only required to have "reason to believe" he was there.

Viewed in the totality, this record satisfies the standard set

forth in Payton.

For the foregoing reasons, I respectfully dissent. I would

affirm the district court’s judgment finding that the entry sat-

isfied the requirements of the Fourth Amendment.3 As to the

3

Since the police entry satisfied Payton, I do not believe it is necessary

to address the district court’s alternative holding that the police were justi-

fied in entering based on exigent circumstances, although I concur with

the majority’s analysis in section II.B. that the district court erred in that

analysis.

30 UNITED STATES v. HILL

second issue Hill raises on appeal, I concur with the majori-

ty’s conclusion in section II.C. as to the validity of the con-

sent Alavarez gave to police to search her residence. Because

I conclude that the initial entry and protective sweep were

constitutional, the taint issue raised by the majority is not

before the court.4 I would therefore affirm the district court’s

denial of Hill’s motion to suppress the evidence seized from

the Lorton townhouse and would affirm the judgment ren-

dered.

4

Even if a remand to consider the "taint" issue were appropriate, it is an

issue never raised to, argued in, or addressed by the district court. The

majority’s speculation on what the district court should do on remand is

thus unnecessary and speculative.