United States v. Robert Hill

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4806
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERT ALLEN HILL,
Defendant – Appellant.
No. 13-4811
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ERIC SCOTT BARKER,
Defendant – Appellant.
No. 13-4820
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MEGAN EILEEN DUNIGAN,
Defendant – Appellant.
Appeals from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:13-cr-00018-IMK-JSK-3; 1:13-cr-00018-IMK-
JSK-1; 1:13-cr-00018-IMK-JSK-2)
Argued: September 19, 2014 Decided: January 13, 2015
Before DIAZ and THACKER, Circuit Judges, and Paul W. GRIMM,
United States District Judge for the District of Maryland,
sitting by designation.
Vacated and remanded by published opinion. Judge Diaz wrote the
opinion, in which Judge Thacker and Judge Grimm joined.
ARGUED: Andrew Brooks Greenlee, BROWNSTONE, P.A., Winter Park,
Florida; Brian Joseph Kornbrath, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Clarksburg, West Virginia; David I. Schoen, DAVID I.
SCHOEN, ATTORNEY AT LAW, Montgomery, Alabama, for Appellants.
Shawn Angus Morgan, OFFICE OF THE UNITED STATES ATTORNEY,
Clarksburg, West Virginia, for Appellee. ON BRIEF: Roger D.
Curry, CURRY, AMOS, AND ASSOCIATES, Fairmont, West Virginia, for
Appellant Megan Dunigan. William J. Ihlenfeld, II, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling,
West Virginia, for Appellee.
2
DIAZ, Circuit Judge:
We consider here the scope of Fourth Amendment protections
as applied to individuals on federal supervised release. In
February 2013, Eric Barker was serving a term of supervised
release in connection with a felony drug conviction. His
conditions of supervised release required him, among other
things, (1) to notify his probation officer if he moved and (2)
to permit probation officers to visit him at home at any time
and confiscate contraband in plain view.
Law enforcement officials suspected Barker of moving
without notification, obtained a warrant for his arrest, and
executed it at his new home. Inside, they found Barker and two
other individuals also on supervised release. After the
officers had all three in custody and had completed their
protective sweep, they conducted a walk-through of the apartment
to look for contraband and other evidence of supervised release
violations. Officers then had a drug-detection dog sniff around
the apartment. Only after the dog alerted did the officers seek
a search warrant.
The defendants contend that the walk-through and dog sniff
violated the Fourth Amendment. Our precedent required the
officers in this situation to have a search warrant rather than
merely reasonable suspicion to search Barker’s home.
Accordingly, we hold that the walk-through and dog sniff were
3
unlawful searches. We also reject the government’s contention
that the good-faith exception applies with respect to the
evidence seized as a result of the dog sniff. Finally, we
vacate the judgments and remand for the district court to
properly consider whether, pursuant to the “independent source”
doctrine, the officers in this case “‘would have sought a
warrant’ even if they had not conducted the unlawful
search[es].” United States v. Bullard, 645 F.3d 237, 244 (4th
Cir. 2011) (quoting Murray v. United States, 487 U.S. 533, 543
(1988)).
I.
A.
In late January 2013, Officer Vincent Zummo, Barker’s
probation officer, received a tip from a confidential informant
that Barker had moved without notifying him. On February 8,
2013, a magistrate judge issued an arrest warrant for Barker for
violating the conditions of his supervised release. Deputy U.S.
Marshal Terry Moore assembled a ten-member team to execute the
warrant. The team included deputy marshals, local drug task
force officers, and the Chief U.S. Probation Officer. They met
Zummo at Barker’s new residence, a two-story house with a
ground-floor apartment and an upstairs apartment. An officer
knocked on the door, and a marshal announced the team’s identity
4
and purpose. The landlady answered and said “Eric lives
upstairs.” Zummo and the Chief Probation Officer stayed
downstairs. The rest of the team filed up the stairs.
At the top, Moore opened the bathroom door. He saw Barker
inside, ordered him to lie down, and handcuffed and arrested
him. 1 Team members then fanned out to conduct a protective
sweep. A deputy marshal went left, forced open a locked bedroom
door, and found Megan Dunigan hiding behind a bed. An officer
went right, entered a second bedroom, and found Robert Hill
inside. Dunigan and Hill were both handcuffed. Zummo went
upstairs and identified them as also on supervised release. He
then called the magistrate judge to tell him that, besides
Barker, the officers had found two others in violation of their
supervised release conditions. Dunigan and Hill were arrested.
During the protective sweep, the officers saw needles in
the bathroom, a homemade tourniquet on Barker’s arm, pills on
the locked bedroom’s dresser, packaging for synthetic marijuana
on the kitchen table, and drug paraphernalia on the second
bedroom’s dresser.
After Barker, Dunigan, and Hill were arrested and the
protective sweep had ended, Zummo and other arrest team members
conducted a walk-through of the apartment looking for other
1
Moore searched Barker and found more than $1,000 on his
person.
5
evidence of supervised release violations. They looked “[o]n
top of cabinets, on top of the bed, [and] in the closet” of the
second bedroom. J.A. 118. Officers found scales, wax paper,
and black electrical tape in the living room. Zummo seized cell
phones and an intravenous drug use kit containing needles,
cotton balls, and spoons from on top of the bathroom sink.
After the walk-through, Zummo requested that a trained drug-
detection dog come to the apartment.
About fifteen to twenty minutes later, the dog and his
handler arrived. The dog alerted positively in many places. In
the bathroom, the dog alerted “high,” meaning that he smelled
the odor of narcotics above his reach. That alert led officers
to an out-of-place ceiling tile, where they saw a plastic bag
tucked inside the ceiling.
At that point, the officers stopped the search and secured
the apartment. Task Force Agent Robert Root, an arrest team
member, applied for and obtained a warrant to search the
apartment. Root’s accompanying affidavit detailed his law
enforcement experience; the circumstances of the arrest warrant
execution, protective sweep, and walk-through; the contraband
and paraphernalia discovered during those activities; and the
drug dog alerts. The officers’ subsequent search pursuant to
the warrant turned up packaged and unpackaged heroin,
6
prescription pills, suspected LSD, synthetic marijuana, and drug
use paraphernalia.
B.
The defendants were charged with conspiracy to possess with
intent to distribute heroin, aiding and abetting possession with
intent to distribute heroin, and aiding and abetting the
maintenance of a drug-involved residence. They filed motions to
suppress evidence challenging the lawfulness of the arrest
warrant execution, protective sweep, walk-through, dog sniff,
and the search warrant’s validity. They also sought to exclude
evidence found during the execution of the search warrant as
fruit of the poisonous tree.
At the suppression hearing, the government conceded that
the defendants had standing to press their Fourth Amendment
challenges, either because they lived in the apartment (in the
case of Barker and Dunigan) or stayed there as an overnight
guest (in the case of Hill). The magistrate judge took judicial
notice of the defendants’ supervised release terms, which
included Standard Condition of Supervision No. 10 requiring each
defendant to “permit a Probation Officer to visit him or her at
any time, at home or elsewhere, and [to] permit confiscation of
any contraband observed in plain view of the Probation Officer.”
J.A. 124. The magistrate judge recommended denying the motions
to suppress.
7
The district court adopted the magistrate judge’s report
and recommendation. For the walk-through and dog sniff, the
district court applied a reasonable suspicion standard and found
that both searches met it. The court relied on United States v.
Knights, 534 U.S. 112 (2001), which upheld as reasonable a
warrantless search of a probationer’s home when officers had
reasonable suspicion and the probationer had agreed to a
probation condition allowing warrantless home searches. The
court reasoned that, like in Knights, Barker’s supervision
condition allowing his probation officer to visit him at home at
any time diminished his expectation of privacy to the point
where officers needed only reasonable suspicion, not a warrant,
for the walk-through and dog sniff. The district court also
applied United States v. Karo, 468 U.S. 705 (1984), to conclude
that sufficient untainted evidence established probable cause to
support the search warrant, even if the walk-through and dog
sniff were illegal and their results were excised from the
warrant application. 2
The defendants entered conditional guilty pleas to aiding
and abetting possession with intent to distribute heroin and
preserved the right to appeal the denial of their suppression
2
The district court also found the arrest warrant execution
and protective sweep lawful, conclusions that the defendants
have not appealed.
8
motions. The district court sentenced Barker to 151 months in
prison, Dunigan to 18 months, and Hill to 27 months. The court
also imposed three years’ supervised release on each of them.
Special Condition of Supervision No. 6 will require the
defendants to submit to warrantless searches of their persons,
property, residences, or vehicles based on a probation officer’s
reasonable suspicion.
II.
A.
When considering a motion to suppress, we review de novo
the district court’s legal conclusions. United States v.
Williams, 740 F.3d 308, 311 (4th Cir. 2014). In its brief, the
government frames its arguments in terms of clear error, which
we use to evaluate the district court’s factual findings. Id.
But because the parties do not dispute the facts, de novo review
is proper.
B.
The defendants contend that once the protective sweep of
the apartment had ended, the officers needed a warrant to go any
further. The government responds that the defendants’
supervised release status, including their supervision
conditions, so diminished their expectation of privacy that
9
officers needed only reasonable suspicion to conduct the walk-
through and dog sniff. We agree with the defendants.
This case is remarkably similar to one we decided thirty-
six years ago, United States v. Bradley, 571 F.2d 787 (4th Cir.
1978). Bradley was on parole with a condition requiring that he
“permit his Parole Officer to visit his home or place of
employment.” 571 F.2d at 788 (internal quotation marks and
alterations omitted). No parole condition required him to
consent to searches. Bradley’s parole officer received a tip
that he was violating a parole condition that prohibited him
from having a firearm. Acting on the tip, Bradley’s parole
officer went to the boarding house where Bradley lived, searched
his room, and found a firearm. Id.
We held that “a parole officer must secure a warrant prior
to conducting a search of a parolee’s place of residence even
where, as a condition of parole, the parolee has consented to
periodic and unannounced visits by the parole officer.” Id. at
789. In reaching this conclusion, we recognized that “the
governmental interest in supervision is great and the parolee’s
privacy interest is diminished.” Id. We also noted “the
special relationship between the parolee and his parole officer”
and “society’s interest in having the parolee closely and
properly supervised.” Id. at 790. However, we found that these
10
considerations did not excuse the parole officer from complying
with the Fourth Amendment’s warrant requirement. Id.
As in Bradley, the defendants here agreed to home visits by
a probation officer but not warrantless searches. Unlike
Bradley, however, the defendants also agreed that a probation
officer could visit them “at any time” and confiscate contraband
in plain view. This, however, is a distinction without a
difference, as the fact remains that the defendants, as in
Bradley, did not consent to warrantless home searches as a
condition of supervision.
Thus, Bradley controls the outcome here unless intervening
case law from our court sitting en banc or the Supreme Court has
explicitly or implicitly overruled it. Bullard, 645 F.3d at
246. Since Bradley, the Supreme Court has decided three cases
dealing with the privacy interests of individuals on probation
or parole. None calls into question Bradley’s core holding.
In Griffin v. Wisconsin, 483 U.S. 868, 870-71 (1987), the
Court considered whether a probation condition applicable to all
Wisconsin probationers via state regulations comported with the
Fourth Amendment when it allowed a probation officer to search a
probationer’s home without a warrant if the officer had
reasonable grounds to believe that contraband was present. The
Court upheld the condition under the “special needs” exception
to the warrant requirement. 483 U.S. at 873-80. Notably,
11
however, the Court confined its decision to the facts before it
(a warrantless search pursuant to an express regulation
authorizing the same) and declined to approve all searches of a
probationer’s home predicated solely on reasonable suspicion.
Id. at 872, 880. In short, the Court did not reach the question
we decided in Bradley, namely, whether a parole officer may
search a parolee’s home without a warrant when no regulation or
individual parole condition allows it.
In United States v. Knights, 534 U.S. 112, 114 (2001), the
defendant was on probation subject to a condition that he submit
to searches of his person, property, residence, or vehicle “with
or without a search warrant, warrant of arrest or reasonable
cause by any probation officer or law enforcement officer.” The
Court held that a probation officer with reasonable suspicion
could search a probationer’s residence without a warrant when
the probationer had agreed to a warrantless search condition.
534 U.S. at 118. Importantly, the Court found the search
reasonable under the totality of the circumstances, “with the
probation search condition being a salient circumstance.” Id.
To determine the search’s reasonableness, the Court
balanced the privacy intrusion against the government’s need to
conduct the search to promote its legitimate interests.
Relevant to both was Knights’s “status as a probationer subject
to a search condition.” Id. at 119. On the intrusion side, the
12
Court concluded that “[t]he probation condition . . .
significantly diminished Knights’[s] reasonable expectation of
privacy.” Id. at 119-20. On the need side, the Court
identified the government’s interest in monitoring probationers
closely because of their greater likelihood of committing a
crime than the general population. Id. at 121. The Court held
that “the balance of these considerations requires no more than
reasonable suspicion to conduct a search of this probationer’s
house.” Id. (emphasis added).
In our view, however, the specific probation condition
authorizing warrantless searches was critical to the Court’s
holding. Indeed, at the close of the opinion, the Court
referenced the probation condition in holding “that the
warrantless search of Knights, supported by reasonable suspicion
and authorized by a condition of probation, was reasonable
within the meaning of the Fourth Amendment.” Id. at 122. The
Court also underscored that the “probation order clearly
expressed the search condition and Knights was unambiguously
informed of it.” Id. at 119. In contrast, the supervision
condition to which the defendants agreed in this case required
them to submit to a probation officer’s visit and allowed an
officer to confiscate contraband in plain view. But no
condition authorized warrantless searches.
13
The last case in this trilogy, Samson v. California, 547
U.S. 843 (2006), also did not vitiate Bradley because, like
Knights, it emphasized the parolees’ notice of an express
warrantless search condition. Samson involved a Fourth
Amendment challenge to a California statute requiring every
prisoner eligible for release on state parole to “agree in
writing to be subject to” warrantless searches by parole or
peace officers “at any time of the day or night, . . . with or
without cause.” 547 U.S. at 846 (quoting Cal. Penal Code
§ 3067(a) (West 2000)). The Court held that “a condition of
release can so diminish or eliminate a released prisoner’s
reasonable expectation of privacy that a suspicionless search by
a law enforcement officer would not offend the Fourth
Amendment.” Id. at 847. But as was the case in Knights,
central to the Court’s holding was the undisputed fact that the
California parole condition had been “‘clearly expressed’ to
[the] petitioner” and he was “‘unambiguously’ aware of it.” Id.
at 852 (quoting Knights, 534 U.S. at 119).
We are satisfied that Griffin, Knights, and Samson did not
overrule our decision in Bradley. 3 Accordingly, Bradley remains
3
The Fifth and Eleventh Circuits have taken a broader view
of these cases. See United States v. Keith, 375 F.3d 346, 350
(5th Cir. 2004) (declining to read Knights or Griffin “as
requiring either a written condition of probation or an explicit
regulation permitting the search of a probationer’s home on
(Continued)
14
good law in our circuit, and thus law enforcement officers
generally may not search the home of an individual on supervised
release who is not subject to a warrantless search condition
unless they have a warrant supported by probable cause. 4 Here,
the officers did not have a warrant when they conducted the
walk-through and dog sniff, and those searches were therefore
unlawful.
III.
A.
“The exclusionary rule generally renders inadmissible
evidence recovered during an unlawful search.” United States v.
Mowatt, 513 F.3d 395, 403 (4th Cir. 2008), abrogated in part by
Kentucky v. King, 131 S. Ct. 1849 (2011). In this case, the
government makes two arguments against exclusion. With respect
to the dog sniff, the government contends that the officers
relied in good faith on then-binding appellate precedent holding
that a dog sniff was not a search. Separately, the government
urges that the “independent source” doctrine rescues from
exclusion the evidence recovered during the walk-through and dog
reasonable suspicion”); United States v. Yuknavich, 419 F.3d
1302, 1310-11 (11th Cir. 2005) (same). Of course, those
circuits were writing on a clean state, while we are constrained
by Bradley.
4
The government in this case does not suggest that any
other exception to the warrant requirement applies.
15
sniff because the officers later conducted a search of the
apartment with a warrant.
As we explain, we disagree with the government’s first
argument, and remand the case to the district court for
consideration of the second.
B.
We first consider whether the officers relied in good faith
on binding appellate precedent when they conducted the dog
sniff. The government concedes that the dog sniff would have
been an illegal search after the Supreme Court’s recent decision
in Florida v. Jardines, 133 S. Ct. 1409 (2013). But, says the
government, the officers in this case relied in good faith on
pre-Jardines precedent holding that a dog-sniff was not a search
and therefore no warrant was required. As a result, the
government contends, the good-faith exception saves the fruits
of the now-illegal search from exclusion. We cannot agree.
“[S]earches conducted in objectively reasonable reliance on
binding appellate precedent are not subject to the exclusionary
rule.” Davis v. United States, 131 S. Ct. 2419, 2423-24 (2011).
After the dog sniff in this case, the Supreme Court held in
Jardines that a dog sniff of a home’s curtilage “is a ‘search’
within the meaning of the Fourth Amendment.” Jardines, 133 S.
Ct. at 1417-18. Whether the Davis good-faith exception applies
16
depends on the “binding appellate precedent” that pre-dated
Jardines.
The government points us to United States v. Jeffus, 22
F.3d 554 (4th Cir. 1994), as the relevant pre-Jardines
precedent. Jeffus held that a dog sniff of a vehicle’s exterior
in a public place during a lawful traffic stop was not a search.
22 F.3d at 557. To reach that conclusion, we relied on United
States v. Place, 462 U.S. 696, 707 (1983), where the Supreme
Court found that a dog sniff of luggage in a public place was
not a search.
According to the government, the officers reasonably relied
on our Jeffus holding when they took a drug dog into the home of
an individual on supervised release, without a warrant or
consent. Jeffus, however, involved a dog sniff of the outside
of a vehicle, not the inside of a home. We have not found, and
the government does not cite to, any pre-Jardines case decided
by the Supreme Court or this circuit that approved of a
warrantless dog sniff inside a home.
The defendants draw our attention to United States v.
Whitehead, 849 F.2d 849 (4th Cir. 1988), abrogated on other
grounds by Gozlon-Peretz v. United States, 498 U.S. 395 (1991),
as the appropriate pre-Jardines precedent. Whitehead involved a
warrantless dog sniff of a passenger train’s sleeping
compartment. We held that the sniff required reasonable
17
suspicion, not a warrant and probable cause, because occupants
have lower expectations of privacy in their sleeping
compartments than in their homes or hotel rooms. 849 F.2d at
853, 856-57.
Never did we say in Whitehead that the dog sniff was not a
search. Instead, we noted that “when authorities bring a
narcotics detection dog into an area in which the occupant
enjoys an expectation of privacy, the [F]ourth [A]mendment
extends to protect the owner against ‘unreasonable’ intrusions.”
Id. at 858. We made clear that “Place obviously did not
sanction the indiscriminate, blanket use of trained dogs in all
contexts.” Id. at 857. Neither did Jeffus. Therefore, we
conclude that the officers could not have reasonably relied on
any binding appellate precedent when conducting the dog sniff in
this case and that the Davis good-faith exception does not
apply.
C.
We turn now to the government’s claim that the independent
source doctrine saves from exclusion the fruits of the searches
in this case. This doctrine applies when a “search pursuant to
[a] warrant was in fact a genuinely independent source of the
information and tangible evidence” that would otherwise be
subject to exclusion because they were found during an earlier
unlawful search. Murray, 487 U.S. at 542. To find the search
18
with a warrant “genuinely independent,” the unlawful search must
not have affected (1) the officer’s “decision to seek the
warrant” or (2) the magistrate judge’s “decision to issue [it].”
Id.
The district court found that the magistrate judge would
have issued the warrant absent the evidence from the illegal
searches, but did not consider Murray’s first prong that speaks
to the officer’s decision to seek it. The court cited Karo, 468
U.S. 705, and our decision in United States v. Allen, 631 F.3d
164 (4th Cir. 2011), to support its single-step analysis.
We find that the district court erred in not applying both
Murray prongs. This case differs from Karo because the law
enforcement officers there acted pursuant to a warrant at all
times, whereas the officers in this case did not. In Karo, the
officers first sought a warrant “authorizing the installation
and monitoring of a beeper” in a can of ether before installing
or monitoring the beeper. 468 U.S. at 708. Officers had a tip
that the ether “was to be used to extract cocaine from clothing
that had been imported into the United States.” Id. Using
their results from visual and beeper surveillance, officers then
applied for a search warrant for a residence where the can of
ether was stored. Id. at 710. The district court later found
the beeper warrant invalid. Id. But because the government did
not appeal that finding, the reviewing courts treated the
19
installation and monitoring of the beeper as if conducted
without a warrant. Id. at 711; United States v. Karo, 710 F.2d
1433, 1436 (10th Cir. 1983), reversed by Karo, 468 U.S. 705.
This situation left the government arguing that no warrant
was needed for the beeper installation and monitoring despite
the fact that the officers had indeed sought a warrant for those
activities. Karo, 468 U.S. at 711. The Supreme Court agreed
that a warrant was unnecessary to install a beeper, but held
that a warrant was necessary to monitor the beeper inside a
residence. Id. at 713-14. However, the Court found suppression
unnecessary because “sufficient untainted evidence” in the
search warrant affidavit established probable cause. Id. at
719, 721.
Here, the officers conducted the walk-through and dog sniff
before seeking a search warrant. Although the officers had an
arrest warrant, the government has not argued--nor could it--
that the walk-through and dog sniff fell within the arrest
warrant’s scope. Murray thus presents a better fit than Karo on
the facts before us. The agents in Murray first forced entry
into a warehouse without a warrant, and then sought a search
warrant for the warehouse. 487 U.S. at 535-36. Unlike Karo,
the sequence of events in Murray raised a question as to whether
“the agents’ decision to seek the warrant was prompted by what
20
they had seen during the [illegal] entry.” Id. at 542. The
record here raises similar questions.
We recognize that the district court relied on one of our
post-Murray cases, Allen, that employed Karo’s single-prong
test. However, like the Supreme Court in Karo, we had no
occasion in Allen to consider the officers’ decision to seek a
warrant. The officers in Allen, responding to a call about a
firefight, saw “twenty spent shell casings,” and “several blood
trails, one of which led directly into” a store. 631 F.3d at
167. Before seeking a search warrant, an officer followed the
blood trail into the store, saw that it led to a filing cabinet,
opened a cabinet drawer, and found a revolver inside. Id. On
these facts, there was no doubt (and Allen did not contest) that
officers would have sought a search warrant for the store into
which a blood trail led, even without the officer’s unlawful
search of the filing cabinet. 5
But where the facts call into question whether an illegal
search affected an officer’s decision to seek a warrant, the
district court should consider both Murray prongs when
evaluating whether the independent source doctrine applies.
5
Likewise, in two other published, post-Murray cases, we
had no reason to question whether earlier illegal activity
prompted the officer’s decision to seek a warrant because the
defendants did not contest it. See United States v. Moses, 540
F.3d 263, 268 (4th Cir. 2008); United States v. Gillenwaters,
890 F.2d 679, 681-82 (4th Cir. 1989).
21
See, e.g., Bullard, 645 F.3d at 244-45; United States v. Walton,
56 F.3d 551, 554 (4th Cir. 1995).
D.
The district court found that the unlawful walk-through and
dog sniff did not affect the magistrate judge’s decision to
issue the warrant, and the defendants have not challenged this
finding. The defendants, however, contend that Officer Root’s
suppression hearing testimony shows that the unlawful searches
influenced his decision to seek a warrant. In particular, the
defendants rely on two exchanges in the record. The first
occurred during Root’s direct examination:
Q: Do you know at what point you decided to seek a
search warrant?
A: With all the paraphernalia that was seen inside the
residence, the empty packaging of the synthetic
marijuana, and the alert by the dog in multiple areas
of the residence. At that point we decided to get a
search warrant.
J.A. 92 (emphasis added). The second happened during cross-
examination:
Q: Who made the decision to apply to the Court for a
search warrant?
A: I did.
Q: And at what point did you make that decision?
Before the drug dog was there and it sniffed, or after
the drug dog was there and it sniffed?
A: It was after.
J.A. 96.
22
In addition to the two passages above, the government asked
Root, “Did you plan that day [of the arrest] to obtain a search
warrant?” He responded, “No, I didn’t.” J.A. 86. The
government and Root also had the following exchange:
Q: How long were you there [at the apartment] before
you decided to seek a search warrant?
A: We had the canine come through. We had been there
probably 15 minutes, at least, with all the phone
calls that were made, and arrangements being made to
transport the defendants.
J.A. 91-92. Later on, the district court questioned Root about
the sequence of events. After recapping the walk-through, the
court asked, “What did you next do?” Root replied, “After that,
when we called for the canine, the canine did a search of the
residence. After the search of the residence, I called U.S.
Attorney Shawn Morgan and decided to apply for a search
warrant.” J.A. 118.
The government interprets Root’s testimony as merely
stating a fact, i.e., that he did not seek the warrant until
after the dog sniff, not as describing what Root would have done
had the illegal searches never happened. We also note that Root
had seen considerable drug paraphernalia in plain view 6 before
the officers conducted the walk-through and dog sniff, thus
6
Not least of which was a homemade tourniquet dangling from
Barker’s arm.
23
supporting the view that Root would have sought a warrant even
if the officers had not conducted the unlawful searches.
We decline to resolve this factual question on appeal.
Rather, we think it best for the district court to consider the
issue in the first instance. See Murray, 487 U.S. at 543-44
(remanding for the district court to make a finding on the
officer’s decision prong of the analysis because “it is the
function of the District Court rather than the Court of Appeals
to determine the facts”); United States v. Campbell, 945 F.2d
713, 716 (4th Cir. 1991) (remanding for the district court to
make factual findings related to the independent source
doctrine’s applicability).
IV.
For the foregoing reasons, we vacate the judgments and
remand to the district court to determine whether the
information gained from the illegal walk-through and dog sniff
affected Officer Root’s decision to seek a warrant.
VACATED AND REMANDED
24