United States v. Eligio Mendez ( 2018 )


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  •      Case: 16-41057       Document: 00514430933        Page: 1   Date Filed: 04/16/2018
    REVISED April 16, 2018
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 16-41057                              FILED
    March 23, 2018
    Lyle W. Cayce
    UNITED STATES OF AMERICA,
    Clerk
    Plaintiff - Appellee
    v.
    ELIGIO SAN MIGUEL MENDEZ,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    Before KING, DENNIS, and COSTA, Circuit Judges. ∗
    KING, Circuit Judge:
    Eligio San Miguel Mendez was one of the targets of a gang and narcotics
    investigation. Officers secured a search warrant for his residence but were
    unable to arrange for a SWAT team to assist them. As a result, they decided to
    wait for him to leave the residence before moving in for the search. Once he
    left, the officer leading the search directed nearby officers to stop his vehicle
    and detain him while the search was underway. The Government does not
    contest on appeal that the stop was in violation of Bailey v. United States, 568
    ∗
    Judge Dennis concurs in the judgment.
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    No. 16-
    41057 U.S. 186
     (2013). After the officers detained Mendez, they found a revolver in
    his car. The search team later discovered ammunition and an empty Glock
    pistol case in the residence. Mendez was then arrested for being a felon in
    possession of a firearm and interrogated at a police station. He told officers
    where they could find the pistol, and he confessed to ownership of the firearms
    and ammunition. Before trial, Mendez moved to suppress all of the
    Government’s evidence, except for the ammunition found during the execution
    of the search warrant. The district court suppressed the revolver, but admitted
    the pistol and Mendez’s statements. Mendez was convicted following a jury
    trial of being a felon in possession of a firearm, in violation of 
    18 U.S.C. § 922
    (g)(1). He now appeals the admission of the statements, arguing that they
    were tainted by the unlawful stop and search of his vehicle. We conclude that
    the connection between the unlawful stop and search and Mendez’s subsequent
    statements was sufficiently attenuated and AFFIRM Mendez’s conviction and
    sentence.
    I.
    In January 2015, Special Agent Richard Russell of the Texas
    Department of Public Safety (“DPS”) started investigating the Tango Corpitos
    gang in Corpus Christi. The investigation quickly led Russell to Eligio San
    Miguel Mendez. Russell discovered that Mendez had, in his words, “quite an
    extensive criminal history.” During the investigation, Russell, working
    undercover, and a confidential source allegedly bought narcotics from Mendez
    on several occasions. Russell testified at the suppression hearing that Mendez
    sold narcotics from a property that was partially a mechanic shop and partially
    a residence. Mendez lived there with his father, girlfriend, and child.
    Russell secured a search warrant for Mendez’s residence on February 18,
    2015, which he planned to execute two days later. Russell had obtained a no-
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    knock warrant based on information that Mendez was dangerous and “very
    unstable.” Mendez was a suspect in a drive-by shooting, and Russell saw bullet
    holes in vehicles around his residence. Russell was also aware of Mendez’s
    extensive criminal history and believed that Mendez had firearms at the
    residence. At the suppression hearing, Russell testified that he tried to find a
    SWAT team to assist in the search. His efforts were ultimately unsuccessful.
    The DPS SWAT team was unavailable. Although the Corpus Christi Police
    Department’s SWAT team initially agreed to help, two of its members were
    shot the day before the search while executing a narcotics search warrant at
    another residence nearby.
    Unable to secure a SWAT team, Russell instead decided to surveil
    Mendez’s residence and execute the warrant only once he had left. And so
    Russell parked his unmarked car across the street from Mendez’s residence at
    8:30 in the morning on February 20. An entry team and two marked Corpus
    Christi police cars were stationed a short distance away, out of sight of the
    residence. Russell waited an hour and a half for Mendez to leave. During that
    time, he saw Mendez engage in what he believed, based on his training and
    experience, to be hand-to-hand drug transactions.
    Mendez finally left the residence with his girlfriend around 10:00 a.m.
    As soon as Mendez left the residence, Russell told the entry team to move in
    and start the search. Russell then contacted the marked units and told them
    to stop Mendez. Russell immediately began to follow Mendez, who, according
    to Russell, “was moving pretty quick.” Once the marked units caught up,
    Russell pulled over to the side and let them pass him. The marked units
    ultimately stopped Mendez less than one minute after he left his residence,
    roughly a half-mile away. Russell returned to the residence after he saw the
    marked units stop Mendez.
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    Officer Adam Thurman—one of the officers who stopped Mendez—
    testified at the suppression hearing. He explained that he stopped Mendez
    solely because Russell asked him to. He had not seen Mendez commit any
    traffic violations and had no reason to believe that he was carrying contraband.
    Nor was there any indication that Mendez was returning to the residence.
    Thurman knew, however, that DPS believed that Mendez was armed and
    dangerous, and he attended Russell’s pre-search briefing. After he stopped
    Mendez, Thurman frisked him and detained him in the back of Thurman’s
    vehicle. The officers detained Mendez’s girlfriend in a separate vehicle.
    Thurman then did a “security sweep” of Mendez’s vehicle. He opened a purse
    that he found on the floorboard in front of the passenger seat. Inside, he found
    an object wrapped tightly in a blue bandana. The object felt like a pistol or
    revolver, but Thurman did not unwrap the bandana or inspect the object. That
    object turned out to be a revolver, fully loaded with five rounds. During this
    time, Thurman asked Mendez for identifying information but did not question
    him about anything else.
    Thurman drove Mendez back to the residence once it had been secured.
    During the search, officers discovered loose ammunition and an empty Glock
    pistol case. 1 After officers completed the search, they transported Mendez to
    the DPS office, where they placed him under arrest and interrogated him.
    Juan Hernandez, an agent of the U.S. Bureau of Alcohol, Tobacco,
    Firearms and Explosives (“ATF”), interrogated Mendez along with DPS agent
    David Poland and testified at the suppression hearing. The agents advised
    Mendez of his Miranda rights, which he agreed to waive. Hernandez testified
    1A confidential source had informed DPS that Mendez owned a Glock pistol. When
    Russell heard that Thurman found a gun in Mendez’s vehicle, he initially assumed that it
    was the Glock. Only when he saw the revolver at the DPS office did he realize that the search
    team had not recovered Mendez’s Glock pistol.
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    that Mendez told officers that the revolver found in the vehicle belonged to
    him. Hernandez told Mendez that he had not been able to search the residence
    thoroughly and asked Mendez to tell him what the search team had found.
    According to Hernandez, Mendez told him that the search team should have
    found some ammunition and a Glock pistol. Based on Mendez’s statements,
    Russell and Hernandez returned to the residence to search for the pistol.
    Mendez’s father, who lived at the residence, consented in writing to the search.
    Russell and Hernandez quickly found the pistol, as well as additional rounds
    of ammunition, in the place Mendez told them it would be.
    A grand jury returned a one-count indictment charging Mendez with
    being a felon in possession of a firearm, in violation of 
    18 U.S.C. § 922
    (g)(1).
    On June 10, 2015, the district court entered a scheduling order requiring all
    discovery to be completed within 20 days. Mendez filed his motion to suppress
    on September 1, 2015. He requested that the district court suppress any and
    all evidence and statements acquired during and as a result of the stop,
    including Mendez’s statements to Hernandez and Poland. He argued that the
    revolver, statements, and evidence found during the second search were all
    “fruit” of the unlawful stop and should be suppressed unless the Government
    could demonstrate attenuation. The district court held a suppression hearing
    during which the Government called three witnesses: Thurman, Russell, and
    Hernandez. Mendez called no witnesses. His counsel cross-examined Thurman
    and Russell, but declined to cross-examine Hernandez. The court took the
    matter under advisement and invited Mendez to submit supplemental
    briefing, which he did.
    The court subsequently granted the motion in part and denied it in part.
    Specifically, the court held that the stop of Mendez nearly a half-mile from his
    home was unlawful under Bailey v. United States, 
    568 U.S. 186
    , 199–200
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    (2013). 2 Accordingly, it suppressed the revolver and the ammunition found
    therein. The district court reached a different conclusion regarding Mendez’s
    statements and the evidence from the second search. It held that the
    Government had demonstrated attenuation because Mendez’s lawful arrest for
    being a felon in possession of ammunition was a “break in the chain of events
    from his detention incident to the search warrant.” Thus, the district court did
    not exclude Mendez’s statements or the evidence found during the second
    search.
    Mendez was convicted following a jury trial during which excerpts from
    his custodial interview were played. The district court sentenced him to 84
    months of incarceration and three years of supervised release. Mendez now
    appeals the ruling on the motion to suppress. He argues that the district court
    erred by basing its finding of attenuation solely on his intervening arrest.
    Although we conclude that the district court likely erred by considering only
    Mendez’s intervening arrest, we nonetheless conclude that the Government
    sufficiently demonstrated attenuation.
    II.
    The parties disagree about the standard of review. On review of a motion
    to suppress, we typically review the district court’s factual findings for clear
    error and its legal conclusions de novo. See, e.g., United States v. Hernandez,
    
    670 F.3d 616
    , 620 (5th Cir. 2012). A factual finding “is clearly erroneous if we
    are ‘left with a definite and firm conviction that a mistake has been
    committed.’” 
    Id.
     (quoting United States v. Scroggins, 
    599 F.3d 433
    , 440 (5th
    Cir. 2010)). Where, as here, the district court heard live testimony, our review
    is particularly deferential. See, e.g., United States v. Tovar, 
    719 F.3d 376
    , 384
    2  The Government is not appealing the suppression of the revolver, nor does it
    challenge the district court’s conclusion that the stop was unlawful.
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    (5th Cir. 2013). “In addition to deferring to [] the district court’s factual
    findings, the court must view the evidence ‘most favorably to the party
    prevailing below, except where such a view is inconsistent with the trial court’s
    findings or is clearly erroneous considering the evidence as a whole.’”
    Scroggins, 
    599 F.3d at 440
     (quoting United States v. Shabazz, 
    993 F.2d 431
    ,
    434 (5th Cir. 1993)). Thus, the district court’s ruling “should be upheld ‘if there
    is any reasonable view of the evidence to support it.’” United States v. Gonzalez,
    
    190 F.3d 668
    , 671 (5th Cir. 1999) (quoting United States v. Tellez, 
    11 F.3d 530
    ,
    532 (5th Cir. 1993)).
    The Government concedes that this standard should apply to Mendez’s
    argument that the district court erred by concluding that the intervening
    lawful arrest, standing alone, established attenuation. However, the
    Government argues that plain error review should apply to Mendez’s
    argument that the district court was required to examine other factors relevant
    to the attenuation analysis. According to the Government, Mendez should have
    objected below and given the district court the opportunity to correct these
    alleged errors.
    The Government is only half right. An error not brought to the district
    court’s attention is, as the Government notes, subject to plain error review. See
    Fed. R. Crim. P. 52(b). But taking an exception to an adverse ruling is
    unnecessary. See Fed. R. Crim. P. 51(a); United States v. Delgado, 
    672 F.3d 320
    , 348 (5th Cir. 2012). Here, the Government bore the burden of
    demonstrating attenuation, as Mendez argued in his briefing in the district
    court. As far as the stop is concerned, Mendez “plainly asserted his view that”
    his confession was the fruit of an unlawful stop and that the Government could
    not prove any of the factors demonstrating attenuation, even if he “did not
    make the best case to the district judge” for why attenuation was lacking.
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    United States v. Martinez, 
    486 F.3d 855
    , 860–61 (5th Cir. 2007). Mendez put
    the Government and district court on notice of the relevant legal standard,
    allowing “the trial court to take testimony, receive argument, or otherwise
    explore the issue raised.” 
    Id. at 860
     (quoting United States v. Burton, 
    126 F.3d 666
    , 673 (5th Cir. 1997)). Accordingly, insofar as Mendez argues that his
    statements were “fruit” of the unlawful stop, we apply the usual standard of
    review, rather than plain error. See 
    id.
     at 860–61.
    But Mendez also argues on appeal that the unlawful search of his vehicle
    tainted his subsequent statements. This presents a related but different issue.
    As we explain later, the attenuation analysis differs slightly when the official
    misconduct is a search rather than a seizure. Mendez’s failure to identify the
    search as a source of his statements, independent of his arrest, deprived the
    Government of the opportunity to meet its burden to show attenuation in the
    district court. Although the Government called Hernandez to testify, Mendez
    did not cross-examine him or present any other evidence that Hernandez used
    the revolver to pressure Mendez into confessing to ownership of the
    ammunition and pistol. As a result, we review this separate claim only for plain
    error. Mendez must demonstrate a plain error that affected his substantial
    rights. See United States v. Olano, 
    507 U.S. 725
    , 732 (1993). In order to be
    “plain,” the error must be obvious and beyond reasonable dispute. See Puckett
    v. United States, 
    556 U.S. 129
    , 135 (2009). Even if he does demonstrate plain
    error, we retain discretion over whether to correct the error. See Olano, 
    507 U.S. at 732
    . The Supreme Court has admonished us to exercise that discretion
    only if the error “seriously affect[s] the fairness, integrity or public reputation
    of judicial proceedings.” 
    Id.
     (alteration in original) (quoting United States v.
    Young, 
    470 U.S. 1
    , 15 (1985)). This is a “stringent and difficult” standard.
    United States v. Escalante-Reyes, 
    689 F.3d 415
    , 422 (5th Cir. 2012) (en banc).
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    III.
    The Fourth Amendment commands that “[t]he right of the people to be
    secure in their persons, houses, papers, and effects, against unreasonable
    searches and seizures, shall not be violated.” The exclusionary rule provides
    the typical remedy for Fourth Amendment violations: suppression of the
    evidence at trial. See Utah v. Strieff, 
    136 S. Ct. 2056
    , 2061 (2016); Mapp v.
    Ohio, 
    367 U.S. 643
    , 648 (1961). The exclusionary rule reaches not only the
    evidence uncovered as a direct result of the violation, but also evidence
    indirectly derived from it—so-called “fruit of the poisonous tree.” Strieff, 136
    S. Ct. at 2061 (quoting Segura v. United States, 
    468 U.S. 796
    , 804 (1984)); see
    Nardone v. United States, 
    308 U.S. 338
    , 341 (1939). In this context, the
    exclusionary rule is subject to three safety-valve doctrines: independent
    source, inevitable discovery, and attenuation. See Strieff, 136 S. Ct. at 2061
    (first citing Murray v. United States, 
    487 U.S. 533
    , 537 (1988); then citing Nix
    v. Williams, 
    467 U.S. 431
    , 443–44 (1984); and then citing Hudson v. Michigan,
    
    547 U.S. 586
    , 593 (2006)). The last is at issue here.
    The attenuation doctrine “evaluates the causal link between the
    government’s unlawful act and the discovery of evidence.” 
    Id.
     Evidence may be
    sufficiently attenuated from the Fourth Amendment violation even where the
    violation is a but-for cause of the discovery of the evidence. See Hudson, 
    547 U.S. at 592
    ; Wong Sun v. United States, 
    371 U.S. 471
    , 487 (1963). The key
    question is whether the evidence “has been come at by exploitation of that
    illegality or instead by means sufficiently distinguishable to be purged of the
    primary taint.” Brown v. Illinois, 
    422 U.S. 590
    , 599 (1975). The relevant factors
    to determine attenuation will depend on the type of evidence challenged and
    official misconduct alleged. In Brown, the Court laid out the factors to be
    considered when, as here, challenged custodial statements are the “fruit” of an
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    unlawful arrest: (1) the provision of Miranda warnings; (2) the temporal
    proximity between the unlawful arrest and the challenged statements; (3)
    intervening circumstances; and (4) the purpose and flagrancy of the official
    misconduct. See Kaupp v. Texas, 
    538 U.S. 626
    , 633 (2003) (per curiam) (quoting
    Brown, 
    422 U.S. at
    603–04); Hernandez, 
    670 F.3d at 621
    . Of these factors, the
    Supreme Court has emphasized that the fourth—purpose and flagrancy—is
    particularly important. See Strieff, 136 S. Ct. at 2062. If the unlawful conduct
    at issue is a search, the court should also consider whether the officers
    exploited any illegally obtained evidence to secure the defendant’s statement.
    See United States v. Shetler, 
    665 F.3d 1150
    , 1158 (9th Cir. 2011); 6 Wayne R.
    LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.4(c)
    (5th ed. 2012). The court cannot apply the attenuation analysis, however,
    unless it first determines that the challenged statements were voluntary. See,
    e.g., United States v. Martin, 
    431 F.3d 846
    , 849 (5th Cir. 2005) (quoting Brown,
    
    422 U.S. at 604
    ).
    A.
    The district court correctly recited the relevant attenuation factors in its
    order but provided no analysis of temporal proximity or flagrancy. Rather, it
    determined that Mendez’s lawful arrest for being a felon in possession of
    ammunition “was sufficient to constitute a break in the chain of events.” As we
    have already made clear, however, the intervening development of probable
    cause to justify a previously unlawful arrest is an “important attenuating
    factor” but is not by itself sufficient to establish attenuation. See United States
    v. Cherry (Cherry II), 
    759 F.2d 1196
    , 1211–12 (5th Cir. 1985). A district court
    must consider each factor and determine the cumulative effect of all factors in
    each case. See United States v. Cherry (Cherry III), 
    794 F.2d 201
    , 206 (5th Cir.
    1986) (“The totality of their effect must be evaluated in relation to the
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    particular facts of each case.”); see also Brown, 
    422 U.S. at 603
     (“No single fact
    is dispositive.”). Thus, it was error for the district court to base its attenuation
    analysis on a single factor.
    The parties disagree about the import of this error on appeal. Mendez
    asks that we vacate his conviction and remand to the district court to make the
    appropriate findings. The Government, by contrast, urges us to review the
    record independently and make the attenuation determination ourselves. The
    Government has the stronger argument in this particular case. Even where
    the district court has not made any factual findings, we have “independently
    review[ed] the record to determine whether the district court’s decision is
    supported by ‘any reasonable review of the evidence.’” United States v.
    Santiago, 
    410 F.3d 193
    , 198 (5th Cir. 2005) (quoting United States v. Yeagin,
    
    927 F.2d 798
    , 800 (5th Cir. 1991)); see United States v. Jarman, 
    847 F.3d 259
    ,
    266 (5th Cir. 2017). But in cases where the district court failed to “ask[] the
    right legal questions” and expressly declined to make factual findings
    necessary to resolve those questions, we have declined to resolve those factual
    disputes in the first instance. See United States v. Guzman, 
    739 F.3d 241
    , 247–
    49 (5th Cir. 2014). Here, the district court made detailed factual findings
    following a suppression hearing during which it heard live testimony from
    three witnesses. The district court invoked the correct legal standard, even
    though the court applied that standard incorrectly. Moreover, the resolution of
    this case turns on the significance of largely undisputed facts. 3 This is prime
    appellate territory. No remand is necessary here.
    3 Mendez does argue on appeal that a remand is warranted to further explore whether
    the police used the revolver found during the illegal search to secure Mendez’s confession. As
    we explain later, however, this single factual dispute does not warrant remand to the district
    court, nor does it change the result on appeal.
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    B.
    At the outset, we must determine whether Mendez’s statements were
    voluntary before proceeding, if they were, to the attenuation analysis. See
    Brown, 
    422 U.S. at 603
    ; Martin, 431 F.3d at 849. When a defendant challenges
    the voluntariness of a statement, the Government bears the burden of proving
    voluntariness by a preponderance of the evidence. United States v. Reynolds,
    
    367 F.3d 294
    , 297–98 (5th Cir. 2004) (per curiam). A statement is voluntary if,
    “under the totality of the circumstances, the statement is ‘the product of the
    accused’s free and rational choice.’” 
    Id. at 298
     (quoting United States v. Garcia
    Abrego, 
    141 F.3d 142
    , 170 (5th Cir. 1998)). A statement cannot be involuntary
    in the absence of coercive police activity. See Garcia Abrego, 
    141 F.3d at 170
    (quoting Colorado v. Connelly, 
    479 U.S. 157
    , 167 (1986)).
    Under the circumstances, Mendez’s statements were voluntary. Poland
    advised Mendez of his Miranda rights, which Mendez (twice) confirmed he
    understood and voluntarily waived. Cf. Cherry III, 
    794 F.2d at 206
     (concluding
    that defendant’s statement was voluntary where he was twice advised of and
    voluntarily waived his Miranda rights). There is also no evidence of physical
    coercion: Hernandez testified that during the 90-minute interview, Mendez
    was handcuffed from the front rather than from behind, was allowed to take
    breaks, and was offered water. The officers also did not threaten Mendez.
    Mendez argues in his brief that a transcript of excerpts from his
    interrogation shows that Hernandez threatened to charge Mendez’s girlfriend
    with possession of the revolver discovered during the illegal search. Mendez
    does not actually argue, however, that this alleged threat rendered his
    statement involuntary, merely that it demonstrates that the officers exploited
    the illegal search to obtain a confession. Moreover, by that point in the
    interview, Mendez had already told Hernandez that he had ammunition in the
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    residence, that he owned the pistol, described where the pistol was, and
    admitted that he bought the pistol for “two bills” (i.e., $200). Those statements
    all concerned evidence found legally at the residence, not evidence obtained
    from the illegal stop and search. They demonstrate that Mendez was already
    talking freely and voluntarily by the time Hernandez brought up Mendez’s
    girlfriend. Accordingly, it is clear that Mendez “spoke as a result of his free and
    rational choice, with an awareness of his abandonment of the right to remain
    silent and of the consequences of that decision.” United States v. Rico, 
    51 F.3d 495
    , 507 (5th Cir. 1995).
    C.
    Having determined that Mendez spoke voluntarily, we move on to the
    attenuation analysis. Although, as noted previously, the stop and search are
    analytically distinct in some respects, they were roughly contemporaneous and
    led to a single challenged confession. Thus, our analyses of the first three
    Brown factors for the stop and search largely overlap. To the extent that these
    analyses overlap, we apply the more generous standard of review applicable to
    our analysis of the stop. Once the analyses begin to part ways, however, a plain
    error standard will apply to our attenuation analysis of the search.
    As noted previously, the officers read the Miranda warnings to Mendez,
    confirmed that he understood them, and secured a knowing waiver of his
    rights. This weighs in favor of attenuation.
    However, the temporal proximity factor favors Mendez. There are no
    precise time limits for temporal proximity. See United States v. Montgomery,
    
    777 F.3d 269
    , 273–74 (5th Cir. 2015). But where relatively little time has
    elapsed, the determination generally turns on the conditions of custody. See 6
    LaFave, supra, § 11.4(b) (“[A] shorter lapse of time will be tolerated when the
    circumstances of the detention are less severe.”); compare Taylor v. Alabama,
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    457 U.S. 687
    , 691 (1982) (holding that six-hour interval did not favor
    Government where defendant was “in police custody, unrepresented by
    counsel, and he was questioned on several occasions”), with Rawlings v.
    Kentucky, 
    448 U.S. 98
    , 107–08 (1980) (holding that 45-minute interval favored
    Government where defendant was allowed to move around house freely and
    atmosphere was congenial). The parties agree that only a few hours elapsed
    between the stop and Mendez’s statements. Indeed, the Government estimates
    that less than two hours may have elapsed between the stop and the custodial
    statements. Cf. Brown, 
    422 U.S. at 604
     (“Brown’s first statement was
    separated from his illegal arrest by less than two hours . . . .”). Moreover,
    Mendez was continuously in custody—at first in the back of Thurman’s vehicle
    and then at the DPS office. Consequently, the temporal proximity factor weighs
    against attenuation. Even so, “temporal proximity is not dispositive,”
    Montgomery, 777 F.3d at 274, and is typically the “least determinative factor
    involved,” 6 LaFave, supra, § 11.4(b).
    The intervening circumstances, by contrast, favor the Government. In
    Cherry III, evidence independent from the illegal arrest established probable
    cause to arrest the defendant. See 
    794 F.2d at 206
    . The court concluded that
    the intervening circumstances favored the Government because “[t]he
    development of independently procured probable cause following an illegal
    arrest is a critical factor attenuating the taint of the initial illegal arrest.” Id.;
    cf. Strieff, 136 S. Ct. at 2062–63 (holding that intervening discovery of valid
    arrest warrant following unlawful stop “strongly favor[ed] the State”). Shortly
    after the illegal arrest, the Government discovered ammunition in Mendez’s
    residence pursuant to the search warrant. Mendez does not dispute that the
    search warrant was valid—indeed, he conceded during the suppression
    hearing that it was. Nor does he dispute that officers had probable cause to
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    arrest him after discovering the ammunition. As such, the intervening
    circumstance of Mendez’s lawful arrest strongly favors the Government.
    Finally, the purpose and flagrancy factor favors the Government with
    respect to both the stop and subsequent search. Suppression of inculpatory
    evidence is an extraordinary remedy. See Hudson, 
    547 U.S. at 591
    . This factor
    ensures that it is applied only where it serves its purpose of deterring police
    misconduct. Strieff, 136 S. Ct. at 2063. In order for a violation to be “purposeful
    or flagrant,” it must be more than just negligent. See id.
    We begin with the stop and find that the officers’ actions do not rise above
    the level of negligence. They had initially planned to enter the residence with
    a SWAT team while Mendez was still there. When that plan fell through, they
    instead decided that it would be safest to wait for him to leave. They knew that
    Mendez was armed, dangerous, and unstable. They knew that he was a suspect
    in a drive-by shooting. They knew that there were bullet-riddled vehicles
    sitting in his front yard. While waiting to call in the entry team, Russell
    witnessed Mendez engage in what appeared to be hand-to-hand drug
    transactions and testified that he believed there was probable cause to stop
    Mendez even before the search. Although Thurman stopped Mendez only
    because Russell told him to, he still knew that DPS believed that Mendez was
    armed and dangerous. Moreover, it is clear that officers attempted to stop
    Mendez as soon as they could, but the need to conceal their presence from
    Mendez limited how quickly they could apprehend him once he left the
    residence. There is no evidence that this was part of a pattern of “systemic or
    recurrent police misconduct,” id., or that the officers were engaged in a fishing
    expedition just to see what “might turn up,” Brown, 
    422 U.S. at 605
    ; cf. Kaupp,
    
    538 U.S. at 628, 633
     (holding that misconduct was purposeful and flagrant
    where police tried and failed to obtain warrant but detained suspect
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    No. 16-41057
    nonetheless). Indeed, because the officers could have detained Mendez and
    tried to talk to him at the residence by executing the warrant earlier that
    morning, they had no reason to believe that there was an investigative
    advantage to be gained by waiting to do so until he was half a mile away.
    Rather, the officers (as they testified) were motivated by genuine, serious, and
    objectively reasonable safety concerns.
    Mendez argues that the misconduct here was purposeful and flagrant.
    He notes that the Supreme Court had decided Bailey two years before he was
    stopped. He contends that, in light of Bailey, this was at the very least reckless
    or grossly negligent. But this is just another way of saying that the officers
    violated Bailey. It “conflates the standard for an illegal stop with the standard
    for flagrancy.” Strieff, 136 S. Ct. at 2064. Misconduct is not “flagrant” just
    because officers violated the Fourth Amendment. Rather, “[f]or the violation to
    be flagrant, more severe police misconduct is required than the mere absence
    of proper cause for the seizure.” Id. What Mendez identifies is simply the
    primary misconduct, not some aggravating factor that makes that misconduct
    “flagrant.” He also argues that the misconduct was purposeful because the
    officers planned in advance to stop Mendez after he left the residence. What
    Brown requires, however, is improper purpose or conscious wrongdoing, not
    merely advance planning. 4 See Brown, 
    422 U.S. at 605
    ; Rawlings, 
    448 U.S. at 110
    .
    We reach the same conclusion with respect to the subsequent search,
    though our review of this claim is for plain error only. Thurman testified that
    he did “a quick security sweep of the vehicle.” He also testified that he merely
    4 Accepting Mendez’s definition of “purpose” would render almost all police conduct
    purposeful. Only truly spur-of-the-moment conduct would seem to escape Mendez’s
    definition.
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    No. 16-41057
    reached inside the purse and felt the bandana and revolver, but did not unwrap
    the bandana or remove the revolver from the purse. Mendez did not challenge
    that testimony or seek to undermine it on cross-examination. Thurman’s
    conduct was not purposeful or flagrant under the circumstances. At the time
    of the search, Thurman (mistakenly) believed that he had lawfully detained
    Mendez. He had reason to believe that Mendez was armed, and, upon finding
    no weapon on Mendez, he could have reasonably believed that there was a
    weapon in the car. The search was not merely some fishing expedition intended
    to unearth evidence to use against Mendez later. Rather, it was carefully
    limited to address Thurman’s safety concerns, as indicated by his testimony
    that he did not remove the revolver from the purse. Even though that conduct
    was unlawful, it was not “flagrant.”
    Nor does Mendez’s speculation regarding the interrogation change the
    result. Of course, the use of illegally obtained evidence to pressure a suspect to
    confess will normally weigh heavily against a finding of attenuation. See
    Shetler, 
    665 F.3d at 1158
    ; see also 6 LaFave, supra, § 11.4(c) (“This is because
    ‘the realization that the “cat is out of the bag” plays a significant role in
    encouraging the suspect to speak.’” (quoting Robert M. Pitler, “The Fruit of the
    Poisonous Tree” Revisited and Shepardized, 
    56 Cal. L. Rev. 579
    , 607 (1968))).
    But our review here is for plain error only, and we find none. Mendez claims
    that the following exchange (drawn from a transcript of redacted excerpts of
    the interview) demonstrates that Hernandez used the unlawfully obtained
    revolver to pressure Mendez to confess to ownership of the pistol:
    Q. I—we want to make sure we don’t charge anybody else
    with that gun. If that gun’s not your girl’s and it’s yours, it’s yours.
    You’re manning up to it.
    A. It’s mine, bro.
    Q. And the Glock pistol that was in your bedroom, in the
    back bedroom, that’s yours, too?
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    A. Yes.
    According to Mendez, this excerpt warrants remand for examination of the full
    90-minute audio recording. Viewed in context, it is far from clear or obvious
    that Mendez admitted to ownership of the Glock solely because the
    Government confronted him with the revolver. By that point in the interview,
    Mendez had already told Hernandez that there was ammunition in the
    residence, that the ammunition was his, that there was a Glock pistol in the
    back room of the residence, and that he bought the Glock pistol for $200.
    Mendez’s admission that he bought the pistol was sufficient to establish
    possession or receipt of the firearm under 
    18 U.S.C. § 922
    (g). The Government
    is not required to prove ownership to sustain a conviction. See, e.g., United
    States v. Jones, 
    133 F.3d 358
    , 362 (5th Cir. 1998) (per curiam). Moreover,
    Mendez at that point believed that the search team had found both the
    ammunition and the pistol. Thus, he was already under the impression that
    there was a significant amount of legally obtained evidence against him. 5
    Mendez speculates that elsewhere in the interview, Hernandez may
    have exploited the revolver to pressure Mendez into confessing. He faults the
    Government for not introducing the entire interview at the suppression
    hearing. But the Government put Hernandez on the stand to testify about the
    5 Cf. United States v. Green, 
    523 F.2d 968
    , 972 (9th Cir. 1975) (“We reject [defendant’s]
    naive contention that his confession of illegal drug trafficking would probably have been valid
    if he had been confronted with only [] 880 pounds of marijuana . . . , but when the illegally
    seized amphetamines and 400 pounds of marijuana were added to the pot, his confession
    became the ‘fruit of the poisoned tree’ and ‘the product’ of the illegally seized contraband.”);
    cf. also United States v. Riesselman, 
    646 F.3d 1072
    , 1079–80 (8th Cir. 2011) (holding that
    defendant’s statements were sufficiently attenuated where Government did not question
    defendant solely about unlawfully obtained evidence but also confronted him with a
    confidential informant’s statements and weapons found at his residence); United States v.
    Patino, 
    862 F.2d 128
    , 133–34 (7th Cir. 1988) (holding that defendant’s second confession was
    not the product of her unlawfully obtained first confession where “she previously had been
    told that her involvement in the robberies could be proved without the confession”).
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    interview. Hernandez testified that he asked Mendez to tell him what the
    search team had found, rather than confronting him with the evidence they
    did find. According to Hernandez, Mendez “was taking ownership pretty much
    of everything.” The Government was not required to put in every possible piece
    of evidence to rebut any assertion of exploitation that Mendez might
    conceivably make in the future. Mendez had the opportunity to cross-examine
    Hernandez but declined to do so. He can hardly say he was unaware of what
    happened during the interview—he was a party to it. And Mendez’s
    speculation that there might perhaps be further evidence of exploitation
    somewhere in the remainder of the transcript is hardly sufficient to meet his
    burden of demonstrating a “clear” or “obvious” error. See Olano, 
    507 U.S. at 734
    .
    In sum, only the temporal proximity factor favors Mendez. With respect
    to both the stop and the subsequent search, the remaining Brown factors weigh
    heavily in favor of attenuation. Mendez was informed of, understood, and
    waived his Miranda rights. Mendez’s lawful arrest for being a felon in
    possession of ammunition was a critical intervening circumstance. And,
    perhaps most importantly, the misconduct at issue was not purposeful and
    flagrant, but instead motivated by legitimate safety concerns. Finally,
    Mendez’s speculation as to how the officers may have exploited the unlawfully
    obtained revolver to secure his statements is simply too little, too late. The
    district court properly admitted the statements.
    IV.
    For the foregoing reasons, we AFFIRM Mendez’s conviction and
    sentence.
    19