United States Court of Appeals
                     For the First Circuit

No. 14-1007

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                 HILTON ALEXIS CORDERO-ROSARIO,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Gustavo A. Gelpi, U.S. District Judge]


                             Before

                   Howard, Lipez, and Barron,
                         Circuit Judges.



     José L. Nieto-Mingo, with whom Nieto Law Offices, José A.
Pagán, and Pagán Law Offices were on brief, for appellant.
     Francisco A. Besosa-Martínez, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, were on brief, for appellee.



                           May 4, 2015
            BARRON, Circuit Judge.        This appeal concerns a district

court's decision to deny a sweeping motion to suppress evidence in

a federal child pornography prosecution.            The defendant contends

that all of the evidence that he seeks to suppress may be traced to

two allegedly unconstitutional searches that the Puerto Rico police

carried out before he was even under suspicion on the federal

charges.

            The defendant seeks first to suppress any evidence that

was acquired in those two searches.          And we agree that, under the

established precedent of the Supreme Court and our Circuit, the

searches carried out by the Puerto Rico police did violate the

Fourth Amendment and that any evidence that the government wishes

to   use   that   was   acquired   only    from   those   searches   must   be

suppressed.

            The more difficult issue concerns the defendant's attempt

to suppress the evidence that federal agents later acquired after

receiving the consent of the defendant's then-wife to examine

certain electronic devices taken from her and the defendant's home.

The defendant contends that this evidence also must be suppressed

because the federal agents initiated their investigation -- and

thus carried out the consent-based examinations -- only after the

Puerto Rico police supplied a tip that was premised solely on

information the Puerto Rico police acquired from the two prior

unlawful searches.


                                     -2-
            We have previously held that the taint from a prior

unconstitutional     search    may    render       evidence    obtained    from   a

subsequent consent-based search illegal "fruits of the poisonous

tree" that must be suppressed.         See United States v. Navedo–Colón,

, 1338-39 (1st Cir. 1993).                  Unfortunately, however,

the record in this appeal contains little that would help us decide

whether such suppression is required here. The District Court made

no factual findings on the relationship between the searches the

Puerto     Rico   police    conducted        and     the    subsequent    federal

investigation, which resulted in federal authorities obtaining the

consent of the defendant's then-wife.              Instead, the District Court

ruled -- erroneously -- that the two searches the Puerto Rico

police carried out did not violate the Fourth Amendment.                  For that

reason, the District Court had no occasion to address whether those

unlawful searches taint the evidence federal authorities later

acquired    pursuant   to     the    consent       the    defendant's    then-wife

provided.

            The parties do appear to ask us to resolve this issue on

the basis of the record before us, notwithstanding its undeveloped

state.   But because the issue is so fact dependent, we vacate and

remand so that the District Court may hold an evidentiary hearing

to determine whether the Puerto Rico police's prior searches so

tainted the evidence the federal agents later obtained pursuant to

the consent that the defendant's then-wife supplied that such


                                       -3-
evidence must be suppressed.                If the District Court determines

suppression       is    required,    then    the   District   Court    also   must

determine what specific evidence in fact must be suppressed in

consequence.

                                         I.

             On February 4, 2011, Agent Noel Ramos-Ortíz, an officer

in the Carolina Sexual Crimes Division of the Puerto Rico State

Police, filed an affidavit with the Puerto Rico Court of First

Instance.     Agent Ramos filed the affidavit in support of his

request     for    a    warrant     to   search    the    apartment    of   Hilton

Cordero-Rosario, the defendant in this case.1

             The       affidavit    explained      that    Cordero    was     under

investigation for having committed lewd acts with a minor, in

violation of Puerto Rico law.                  See P.R. Laws Ann. tit. 33,

§ 4772(a).    A Puerto Rico magistrate judge issued the warrant the

same day Agent Ramos submitted it, and Agent Ramos then conducted

a search of Cordero's apartment later that day.                       During that

search, the police seized a desktop computer and other electronic

equipment.




     1
       We glean the facts as best we can from the sparse record
before us and note that the defendant's motion to suppress and the
parties' appellate briefing purport to provide some factual insight
on the surrounding events. We emphasize, however, that under the
circumstances of this case the District Court should feel free to
explore fully the historical facts as it deems necessary.

                                         -4-
            Three     weeks   later,    on     February    25,    2011,     and   in

connection with the same criminal investigation, Agent Ramos filed

a second affidavit with the Court of First Instance.                 Agent Ramos

again sought a warrant to search Cordero's apartment. A magistrate

judge issued a warrant following this second request, and a search

of Cordero's apartment ensued on February 26, 2011.                    The police

conducted   this    second    search     in    the     presence   of    Cordero's

then-wife, D.M.C., but not Cordero himself.                 The police seized

various electronic devices not taken in the first search.

            Following these searches, Agent Ramos's team determined

that the seized materials, including the desktop computer obtained

on February 4, contained images believed to be child pornography.

Puerto Rico police informed federal law enforcement officials in

Puerto Rico of what they had found.2

            More than a month later, on April 11, 2011, after the

Puerto Rico police had informed federal authorities about the

images the Puerto Rico police had found, federal agents approached

D.M.C.   and    apparently     asked     for     her    assistance     in    their

investigation    of    her    husband    for    federal    child     pornography

violations. D.M.C. consented to the federal agents' examination of

the family's desktop computer, which at that time was apparently



     2
       It is not clear, however, precisely how or when the Puerto
Rico police provided this information to federal authorities,
precisely who from the Puerto Rico police did so, or precisely what
was discussed.

                                        -5-
still in the custody of the Puerto Rico police. D.M.C. also agreed

to turn over other digital media in the home.      Cordero was not

present during this meeting between federal agents and his then-

wife.

          On the basis of the consent D.M.C. gave, federal law

enforcement agents on May 2, 2011, performed their own forensic

examination of the desktop computer.    That examination revealed a

number of sexually explicit photographs of a minor female.      The

minor depicted in these photographs was not the same minor female

whose complaint of lewd acts had precipitated the initial searches

of Cordero's apartment     The government conducted interviews with

the minor who appeared in these images on May 12, 2011.

          Then, on December 7, 2011, a federal grand jury in Puerto

Rico indicted the defendant for twenty counts of production of

child pornography (in violation of 18 U.S.C. § 2251(a)) and two

counts of possession of child pornography (in violation of 18

U.S.C. § 2252(a)(4)(B)).    Cordero entered a plea of not guilty on

December 22, 2011.      The grand jury then issued a superseding

indictment that alleged, in substance, the same charges.

          Cordero did not immediately enter a plea under the

superseding indictment.    Instead, on June 25, 2012, Cordero filed

a motion to suppress.    In that motion, Cordero sought to suppress

"all the evidence that was obtained as a result of the execution of

both" the February 4 and February 25 search warrants, as well as


                                 -6-
the evidence that the federal agents had obtained pursuant to

D.M.C.'s consent to the examination of the desktop computer and the

other materials that she turned over to the federal agents.

          According to Cordero's motion, the warrant affidavits

filed with the Puerto Rico Court of First Instance failed to

establish the probable cause necessary to support the two searches

of his apartment on February 4 and February 26, respectively.

Cordero also argued that these unlawful searches -- by leading to

the discovery of the images that initiated the federal child

pornography investigation -- required that all the evidence that

federal law enforcement later obtained be suppressed as "fruit of

the poisonous tree."

          The District Court denied Cordero's motion to suppress.

In doing so, the District Court did not wait for the government's

response to Cordero's motion.   Nor did the District Court hold an

evidentiary hearing, as Cordero had requested.        Instead, the

District Court based its suppression ruling solely on the February

4 and February 25 affidavits.   According to the District Court:

     Agent Ramos-Ortiz's application for search warrant states
     he is investigating a complaint regarding lewd and
     lascivious acts committed against minor P.C.M., who
     herself provided the information about the pornographic
     material in the defendant's computer. While possession
     of pornography in and of itself, may not be a state or
     federal crime, here, the possession pertains to an
     investigation of a sexual crime against a minor. The
     fact that the application for a search warrant is not
     drafted as elaborately as an FBI application does not do
     away with probable cause.


                                -7-
          Cordero and the government then reached a plea agreement.

Cordero pled guilty only to one of the two possession counts. That

count was based on the material found on the hard drive of the

desktop computer that the Puerto Rico police had seized on February

4 and that the federal authorities had later examined (with

D.M.C.'s consent) after their April 11 interview with D.M.C.      In

return for Cordero's plea, the government agreed to allow Cordero

to reserve the right to appeal the District Court's decision

denying the motion to suppress.

          Cordero now invokes that right.      He contends that the

District Court erred not only in denying his suppression motion

outright, but also in not holding an evidentiary hearing on the

suppression issue.

                                  II.

          We begin with Cordero's most straightforward challenge,

in which he seeks to suppress the evidence that the Puerto Rico

police seized in the February 4 and February 26 searches.    Cordero

contends that the affidavits the police presented in support of the

warrant requests were so lacking in the necessary indicia of

probable cause that no reasonable magistrate judge could have

issued a warrant based on those affidavits.

          The government disagrees with Cordero, arguing that the

warrant affidavits were sufficient.     But the government goes on to

argue that, even if the two warrant affidavits were insufficient,


                                  -8-
the District Court was still correct not to suppress this evidence.

And that is because, the government argues, the Puerto Rico police

acted in good faith in relying on the issued warrants, and, in any

event, the seized material would inevitably have been discovered

through independent lawful means.          We start with the threshold

issue: whether the searches were conducted without probable cause.

                                    A.

             Under the Fourth Amendment, a law enforcement officer's

application for a search warrant must "demonstrate probable cause

to believe that . . . a crime has been committed," which is known

as the "commission" element of the required probable cause showing.

United States v. Feliz, 

, 86 (1st Cir. 1999); see also

United States v. Vigeant, 

, 569 (1st Cir. 1999).                   In

addition, the application must "demonstrate probable cause to

believe that . . . enumerated evidence of the offense will be found

at the place to be searched," which is known as the "nexus"

element.     

; see also 

.

             Here, the defendant's challenge focuses on the nexus

element.     In determining whether this element is satisfied, "[t]he

task of the issuing magistrate is . . . to make a practical,

common-sense decision whether, given all the circumstances set

forth   in   the   affidavit   before    him,   .   .   .   there   is   a   fair

probability that contraband or evidence of a crime will be found in

a particular place."     Illinois v. Gates, 

, 238 (1983).


                                    -9-
With respect to how strong that showing must be, "the facts

presented to the magistrate need only 'warrant a reasonable man of

caution' to believe that evidence of a crime will be found."

(quoting Texas v. Brown, 

, 742

(1983) (plurality opinion)).   In conducting our review, moreover,

"we give significant deference to the magistrate judge's initial

evaluation, reversing only if we see no 'substantial basis' for

concluding that probable cause existed." United States v. Ribeiro,

, 48 (1st Cir. 2005) (quoting 

).

           To determine whether there was a substantial basis for

finding a nexus, it is important to identify at the outset the

crime under investigation.   As the government rightly points out,

Cordero was not under investigation for federal offenses involving

the possession or production of child pornography at the time the

affidavits were filed.    He was instead under investigation for

committing lewd acts against a minor in violation of Puerto Rico

law.   Thus, the question that matters with respect to the adequacy

of the two affidavits is not (as Cordero at times contends in his

briefs) whether the affidavits supported a search for evidence of

the federal child pornography offense -- which the affidavits did

not purport to show.     The question is whether the affidavits

provided a "'substantial basis' for concluding that probable cause

existed" that evidence of the crime of lewd and lascivious acts

under Puerto Rico law would be found.    

our focus


                                -10-
trained solely on that question, however, we conclude that neither

affidavit provides enough supporting information on that issue.

          Agent Ramos filed the first affidavit in support of a

search warrant in the case against Cordero on February 4, 2011.

That affidavit stated:

          That on February 4, 2011, I was assigned          the
     complaint 2011-8-316-00841, on lewd actions.

          I understand and conclude from the investigation
     carried out by me in this case and in accordance with the
     interview of the injured party P.C.M., minor, that in
     apartment 2704 of Jardines de Parque Escorial in
     Carolina, Puerto Rico, there is a desktop computer in
     which there is pornographic material . . . .

          According to the government, "because agents were . . .

investigat[ing] . . . accusations of lewd and lascivious acts

against a minor, there was a fair probability that any pornographic

material found in Cordero-Rosario's computer would constitute

evidence of a crime."    Appellee Br. 18.      Thus, the government

contends, the affidavit did all that it needed to do.

          We do not agree.   Cordero was not being investigated for

possession of illegal pornography.     He was being investigated for

committing certain lewd acts.   The affidavit, however, supplies no

basis for connecting the pornography that was the object of the

search to that particular offense, which, in its nature, does not

necessarily involve the use of pornography at all. In this regard,

the affidavit does not state at any point that the alleged lewd and

lascivious acts were carried out in a manner that involved the use


                                -11-
of pornography, which is on its own legal to possess.   In fact, the

affidavit says nothing at all about why the existence of otherwise

lawful pornography on a home desktop computer would be relevant to

this particular criminal investigation.    Nor does the affidavit

state or even intimate that the "pornographic material" in question

involved the injured minor, or any minor at all. Cf. United States

v. Joubert, 

, 253 (1st Cir. 2015) (upholding a search

based on an affidavit that more closely tied the evidence sought to

the alleged offense). And the government asks us, in assessing the

sufficiency of the predicate for both warrants, to look only within

their four corners and those of the attached affidavits.3

          As the government conceded at argument, moreover, the

affidavit also does not state a fact that the District Court seems

to have assumed: that the minor who is alleged to have been the

victim of the crime told the police about the "pornographic

material" on the computer. Such a statement in the affidavit would

perhaps permit an inference that pornography had been used by the

defendant in the minor's presence in such a way as to be connected




     3
       After oral argument, the government filed a 28(j) letter
attaching two Puerto Rico court decisions examining the validity of
the warrant affidavits at issue in this case. The letter reports
that the decisions reference material beyond the face of the
affidavits in finding them supported by probable cause. We decline
to consider these belatedly offered materials, which the government
did not discuss or even reference before oral argument in this
case. See United States v. Barbour, 

, 94 (1st Cir.
2004) (new issues ordinarily cannot be raised in 28(j) letters).

                               -12-
to the offense.4    But, again, the affidavit does not provide even

that much of a link between the evidence identified and the crime

being investigated.      Instead, the affidavit simply states that

Agent Ramos's belief about what would be found in Cordero's

apartment is "in accordance with" his interview with the minor.

But an investigating officer's otherwise unsupported assertion that

evidence of criminal activity will turn up at a given place could

be "in accordance with" an interview even if the interviewee said

nothing at all about the material that the officer asserts to be

evidence of an offense.

          The      February   4   affidavit   thus   predicates   its

representations about what would be found in Cordero's apartment --

and its relation to the criminal offense under investigation --

solely on Agent Ramos's assertion that, due to his "investigation,"

he is of the view that such material would be there and that it

would constitute "evidence of the offense."    And while Agent Ramos

does relay that his investigation included his interview with the

"injured party," he offers no other supporting facts or details

about what he learned from that interview, and thus none that draw

the link between the object of the search -- the home computer

containing pornographic material -- and the offense itself.



     4
       But perhaps not. Even with such a direct statement about
what the minor had said, the affidavit would still not set forth
any facts directly to the effect that the pornography had in fact
been used in the crime.

                                  -13-
            The affidavit, in other words, was conclusory as to all

the key points concerning nexus.        And such a conclusory affidavit

is plainly not sufficient to establish the necessary probable

cause.    

(noting that issuing a warrant

supported by "mere conclusory statement that gives the magistrate

virtually no basis at all for making a judgment regarding probable

cause"    would   be   contrary    to   rights   secured     by   the   Fourth

Amendment); Spinelli v. United States, 

, 418 (1969)

("[A]    simple   assertion   of   police   suspicion   is    not   itself   a

sufficient basis for a magistrate's finding of probable cause."),

abrogated on other grounds by Gates, 

; Nathanson v.

United States, 

, 44-47 (1933) (affiant's statement that

"he has cause to suspect and does believe that" liquor illegally

brought into the United States was located on certain premises was

insufficient to support a finding of probable cause necessary for

the issuance of warrant); 

(warrant

affidavit that contained "conclusory statements of the affiant

that," though they "might otherwise have helped create probable

cause," were "entirely without factual support" failed to support

probable cause).

            The affidavit relating to the second search warrant is

even less detailed.      This affidavit is thus even less capable of

establishing the needed probable cause.




                                    -14-
           Filed on February 25, 2011, the second affidavit stated

only as follows:

           That as part of the investigation of complaint
      2011-8-316-00841, on lewd actions and pornography, on
      February 4, 2011, I carried out a Search Warrant, issued
      by the Honorable Judge Madeline Vega, against the
      residence located in apartment 2704 of the complex
      Jardines del Parque Escorial, in Carolina, where I seized
      a grey desk top computer tower with clear lid on one of
      its    sides,     brand    Gigabyte,    serial     number
      24ZFS-CA1ATS-01R.

           Continuing the course of this investigation, we
      understand that there is important evidence in said
      residence that was not obtained in the first search,
      whereby we very respectfully request this Honorable Court
      to issue a Search and/or Seizure Warrant against the
      above-captioned residence indicated in the caption and in
      the content of this Sworn Statement, in all its
      dependencies and/or inside levels, in search of [various
      digital devices].

           Other than informing the magistrate judge that Cordero

was under investigation and that Cordero's apartment had previously

been searched, this affidavit provided only the bare assertion that

"important evidence" would be found in the stated location.          And

the   affidavit    made   that   assertion   without   identifying   any

foundation for that belief or offering any clue as to what the

"important evidence" might be.

           In other words, the affidavit told the magistrate judge

nothing more than that there was an ongoing investigation of the

person whose premises were to be searched, that the premises had

been searched before, and that the police believed something of

importance would be found if the place were searched again.          The


                                  -15-
authority we have already cited, establishing that conclusory

assertions in an affidavit from law enforcement cannot supply the

kind of probable cause needed to secure a warrant, suffices to

demonstrate the constitutional inadequacy of this second warrant

affidavit as well.

                                      B.

             The government responds that, "even assuming arguendo

that the evidence was seized pursuant to an invalid warrant," the

police still acted in good faith in relying on the warrants the

Puerto Rico magistrate judge had issued.               Appellee Br. 20-21.

Under this "good faith" exception to the exclusionary rule -- the

applicability of which we review de novo,5 see United States v.

McMullin, 

, 5 (1st Cir. 2009) -- the evidence from an

illegal search need not be suppressed if the police officer who

conducted the search "acted in objectively reasonable reliance on

a search warrant, issued by a neutral and detached Magistrate, that

later was determined to be invalid." Arizona v. Evans, 

,

11 (1995); see also United States v. Leon, 

, 919-20

(1984) ("[W]here the officer's conduct is objectively reasonable,

'excluding    the   evidence   will    not   further    the   ends   of   the

exclusionary rule in any appreciable way'" (quoting Stone v.

Powell, 

, 539-40 (1976) (White, J., dissenting))).


     5
       Because it found both warrants supported by probable cause,
the District Court did not reach the issue of whether the good
faith doctrine applied.

                                  -16-
             Here, however, Agent Ramos was relying on warrants that

were constitutionally inadequate because of his own failure to

provide the facts in the affidavits that could have supported their

issuance.      And, again, the government does not ask us to look

outside    the    four   corners   of    the   warrants   and    the    attached

affidavits.      We thus do not see how, on this record, the good faith

doctrine may permit an exception to the exclusionary rule.

             From all that we can tell, Agent Ramos sought the warrant

solely on the basis of his own conclusory assertions.                  And those

assertions, we add, do not even assert a nexus between the object

of the search and the crime under investigation, let alone provide

enough facts to establish probable cause to believe such a nexus

existed.     In such circumstances, the police cannot be said to be

acting reasonably in then relying on a warrant that reflects those

very same glaring deficiencies.           See 

("Nor

would an officer manifest objective good faith in relying on a

warrant based on an affidavit so lacking in indicia of probable

cause as to render official belief in its existence entirely

unreasonable."); United States v. Owens, 

, 745 (1st

Cir.   1999)     (similar).    And      that   is   especially   so    when   the

deficiencies arise from the failure of the agent conducting the

search to provide the required supporting information in the

affidavit.       See 1 Wayne R. LaFave, Search And Seizure: A Treatise

On The Fourth Amendment § 1.3(f), at 91 (5th ed. 2012) (Leon does


                                     -17-
"not allow law enforcement authorities to rely on an error of their

own   making"     (citation   omitted));     see   also   United    States    v.

Fuccillo, 

, 178 (1st Cir. 1987) ("good faith" exception

not applicable where police "were reckless in not including in the

affidavit information which was known or easily accessible to

them").    The good faith exception to the exclusionary rule thus

does not apply in this case.

                                      C.

            That brings us to the government's final argument for why

the evidence obtained in the searches conducted by the Puerto Rico

police should not be suppressed.            Under the so-called inevitable

discovery doctrine, the exclusionary rule does not bar the use of

unlawfully obtained evidence in "any case in which the prosecution

can show by a preponderance of the evidence that the government

would    have   discovered    the   challenged     evidence   even    had    the

constitutional violation to which the defendant objects never

occurred."      United States v. Scott, 

, 42 (1st Cir.

2001).

            The    government   argues      it   was   inevitable    that    law

enforcement eventually would lawfully have discovered the images of

child pornography found on Cordero's home computer.            To make this

argument, the government contends that the police would have

inevitably discovered the material at issue in this case "in




                                     -18-
searching the computer located in [Cordero]'s home."            Appellee Br.

19.

            That may well be true -- if, that is, the Puerto Rico

police or the federal agents would have possessed the computer at

all.    But with regard to why it was inevitable that, even absent

the Puerto Rico police's unconstitutional searches, the computer

would have been acquired, the government makes no argument. Yet it

is that explanation that the government must supply if it wishes to

rely on the inevitable discovery doctrine here, as it is the

computer that was obtained on the basis of an insufficiently

supported warrant.

            This case is therefore distinguishable from United States

v.    Crespo-Ríos,   

   (1st   Cir.   2011),   on   which   the

government relies for its inevitable discovery argument.                    In

Crespo-Ríos, it was "not disputed" that there existed probable

cause to support the search of the defendant's 

. Here, by contrast, the warrants on which the Puerto Rico

police relied in acquiring the computer were legally deficient.

Accordingly, we have no basis for concluding that the government

can meet its burden of satisfying the inevitable discovery test.

See United States v. Infante-Ruiz, 

, 503 (1st Cir. 1994)

(rejecting an inevitable discovery argument where the government

had not shown that, absent the Fourth Amendment violation, "the




                                       -19-
officer could have taken 'legitimate custody'" of the vehicle in

which the evidence was found).

                                  D.

             As a result of the foregoing analysis, we hold that the

Puerto Rico police's February 4 and February 26 searches were

undertaken in violation of the Fourth Amendment and that no

exception to the exclusionary rule applies to evidence that was

obtained only during those two searches.        Much of the evidence

against Cordero, however, including the evidence specifically

described in his conditional plea agreement, was found in a

"subsequent forensic examination" after federal agents became

involved in the case.     We thus must consider whether the federal

agents' investigatory efforts provide a separate basis for the use

of such evidence against Cordero.      And that brings us to Cordero's

final contention.

                                 III.

             In seeking to suppress all of the evidence that the

federal agents obtained pursuant to the examination of the home

computer and the other electronic devices that his then-wife

permitted the authorities to examine, Cordero offers two distinct

arguments.    We now consider those arguments in turn.6




     6
       In challenging the effectiveness of D.M.C.'s consent for
purposes of introducing the evidence to which it led, Cordero does
not contest in this appeal that D.M.C.'s consent was voluntary.

                                 -20-
                                 A.

           Cordero's first argument is that his then-wife's consent

did not suffice to permit the federal authorities' search because

the federal authorities neither sought nor received consent from

Cordero himself.   In making this argument, Cordero recognizes that

D.M.C., as his wife at the time, "possesse[d] common authority over

[their] . . . effects" and was thus capable of consenting to a

search of such items.   See Georgia v. Randolph, 

, 108

(2006) (quoting United States     v. Matlock, 

, 170

(1974)).   In general, "when the prosecution seeks to justify a

warrantless search by proof of voluntary consent, it is not limited

to proof that consent was given by the defendant."    

.   Instead, "the consent of one who possesses common

authority over premises or effects" generally "is valid as against

the absent, nonconsenting person with whom that authority is

shared."    Id.; see also 

(allowing admission of

evidence found in a diaper bag in a bedroom closet following     a

search conducted pursuant to the consent of one with common

authority over the bedroom).

           This rule follows because, as the Supreme Court has

explained, common authority "rests . . . on mutual use of the

property by persons generally having joint access or control for

most purposes." 

n.7. In consequence, it is "reasonable

to recognize that any of the co-inhabitants has the right to permit


                                -21-
the inspection in his own right and that the others have assumed

the risk that one of their number might permit the common area to

be searched."    

contends that even though D.M.C. apparently

had "common authority" over the computer and other electronic

devices that the federal authorities examined, his then-wife's

consent still could not substitute for his own because he "was free

on bail and available at that time."            Appellant Br. 48.    Cordero

thus argues that the evidence the federal authorities obtained

pursuant to D.M.C.'s consent must be suppressed because, on the

facts of this case, her consent was no substitute for his.

           But this is not the law.          Under Georgia v. Randolph, "if

a potential defendant with self-interest in objecting is in fact at

the door and objects, the co-tenant's permission does not suffice

for a reasonable 

.         By contrast, "the

potential objector, nearby but not invited to take part in the

threshold colloquy, loses out."         

argue that federal agents, by going directly

to D.M.C. when he was not present, effectively did an end run

around Randolph.       That is because, Cordero implies, the federal

agents knew that he would have refused to give consent if asked,

and thus they avoided asking.

           But the Supreme Court made clear in Randolph that even if

a   defendant   were   nearby   and    available    to   give   consent,   the


                                      -22-
authorities were entitled to seek out the consent of his wife, as

she had common authority.   See 

   And further, the

Supreme Court made clear after Randolph that law enforcement

authorities may pursue this same approach even when the nearby

potential objector has previously declined to give consent.    See

Fernandez v. California, 

, 1133-34 (2014) (noting

that Justice Breyer provided the "decisive" fifth vote for the

majority in Randolph, and stressing that the Court's opinion in

Randolph "went to great lengths to make clear that its holding was

limited to situations in which the objecting occupant is present");

see also 

(Breyer, J., concurring) ("The

Court's opinion does not apply where the objector is not present

'and object[ing].'" (quoting 

(majority

opinion))).   Thus, Cordero's mere availability -- and asserted

inclination to object to a search if asked -- provides no basis for

not giving effect to his then-wife's actual consent.

                                B.

          Cordero's second ground for arguing that the evidence

obtained pursuant to D.M.C.'s consent must be suppressed has more

force.   According to Cordero, the federal government sought to

obtain his then-wife's consent only due to a tip from Puerto Rico

police that was itself the result of the Puerto Rico police's prior

unlawful searches. Cordero thus contends that the evidence federal

authorities obtained pursuant to the consent-based examinations was


                               -23-
necessarily "tainted" by the earlier unlawful searches that the

Puerto Rico police conducted.          And, for that reason, Cordero

argues, all such evidence must be suppressed as illegal "fruits" of

those prior unconstitutional searches.

          In general, "[t]he indirect fruits of an illegal search

or arrest should be suppressed when they bear a sufficiently close

relationship to the underlying illegality."              United States v.

Camacho, 

, 729 (1st Cir. 2011) (quoting New York v.

Harris, 

, 19 (1990)).           By contrast, "[s]uppression is

not appropriate . . . if 'the connection between the illegal police

conduct and the discovery and seizure of the evidence is so

attenuated as to dissipate the taint.'"           

v.

United States, 

, 805 (1984)).

          "The notion of the 'dissipation of the taint' attempts to

mark the point at which the detrimental consequences of illegal

police action become so attenuated that the deterrent effect of the

exclusionary   rule   no   longer   justifies     its   cost."   Brown   v.

Illinois, 

, 609 (1975) (Powell, J. concurring); see

also 

(explaining that the exclusionary rule

"'extends as well to the indirect as the direct products' of

unconstitutional conduct" (quoting Wong Sun v. United States, 

, 484 (1963))).     In a similar vein, the Supreme Court has

suggested that the key inquiry in cases seeking to suppress the

indirect fruits of prior illegal law enforcement conduct concerns


                                    -24-
"whether, granting establishment of the primary illegality, the

evidence to which instant objection is made has been come at by

exploitation of that illegality or instead by means sufficiently

distinguishable to be purged of the primary taint."   Wong 

(quoting John MacArthur Maguire, Evidence of Guilt 221

(1959)).

           The classic case presenting this type of issue arises

after a defendant seeks to suppress his confession on the ground

that he made it following some prior unlawful search or seizure.

See, e.g., 

(defendant made an inculpatory

statement at a police station after the police had violated the

Fourth Amendment by entering the defendant's home without a warrant

and without his consent); 

(defendant made

inculpatory statements after being arrested without probable cause

or warrant).   And, in such a case, a number of considerations are

ordinarily relevant to the taint inquiry -- namely, (1) the time

that elapsed between the underlying illegality and the later

acquisition of the evidence at issue; (2) the presence or absence

of intervening circumstances between those points in time; and (3)

the purpose and flagrancy of the official misconduct in question.

; accord 

.

           In our case, the federal authorities obtained the digital

evidence against Cordero following the consent of his then-wife to

examine various electronic devices taken from his home.   According


                                -25-
to the government, the fact that the federal agents' examination of

the electronic devices was premised on the then-wife's voluntary

consent effectively immunizes from suppression the evidence they

obtained as a result.

             We disagree.   In United States v. Navedo–Colón, we held

that courts must determine whether the causal link between a prior

unlawful search and consent (voluntary though it may have been) to

a subsequent search is so tight that the evidence acquired pursuant

to that consent must be 

.    Indeed, we

emphasized    the   importance   of   determining   whether   the   prior

illegality "significantly influenced" or "played a significant

role" in the subsequent consent.      

;

see also United States v. Maldonado-Espinosa, 

, 103-04



     7
       That holding is in accordance with the views of nearly all
the other Circuits. See, e.g., United States v. Murphy, 

, 190 (2d Cir. 2012); United States v. Hill, 

, 268-
70 (4th Cir. 2011); United States v. Meece, 

, 619-20
(7th Cir. 2009); United States v. Alvarez-Manzo, 

,
1077 (8th Cir. 2009); United States v. Jaquez, 

, 341-42
(5th Cir. 2005); United States v. Washington, 

, 1072-
73 & n.12 (9th Cir. 2004); United States v. Chanthasouxat, 

, 1280-81 (11th Cir. 2003). And, so far as we are aware, even
the Tenth Circuit -- which previously had decided that
"'voluntariness' for Fourth Amendment consent satisfies the Wong
Sun standards," United States v. Carson, 

, 1150 (10th
Cir. 1986) -- now analyzes this issue as we do. See United States
v. Melendez-Garcia, 

, 1054 (10th Cir. 1994) (noting
that Carson misstated the law of that Circuit, and "reiterat[ing]
that not only must the government show that consent is voluntary in
fact, but it must also demonstrate a break in the causal connection
between the illegality and the consent"); see also, e.g., United
States v. Fox, 

, 1257 (10th Cir. 2010) (relying on and
applying Melendez-Garcia's framework for analyzing this issue).

                                  -26-
(1st Cir. 1992); United States v. Race, 

, 15 (1st Cir.

1976).    Of course, here, unlike in Navedo–Colón, the defendant is

seeking to suppress evidence obtained pursuant to consent supplied

not by himself but by a third party -- namely, the defendant's

then-wife, D.M.C.    See 

.    But the

fact that the prior unlawful searches by the Puerto Rico police led

the federal authorities to a third party who then consented does

not in and of itself show that the taint and exploitation concern

simply disappears from view, as our decision in United States v.

Finucan, 

(1st Cir. 1983), shows.

            There, the defendants -- a bookkeeper at a used car

dealership and the dealership's owner, respectively -- sought to

suppress (among other things) evidence obtained from interviews the

authorities conducted with other car dealers. 

.    Those interviews took place only after the authorities

conducted a previous unlawful search of one of the defendants'

homes.    

  In arguing against the suppression of the

evidence obtained from the interviews, the government claimed that

the Supreme Court's decision in United States v. Ceccolini, 

(1978), "precludes suppression of documentary evidence

later acquired from the dealer interviews," because "the Court in

Ceccolini declined to treat a witness's voluntary testimony as

derivative of an illegal search or seizure."    Finucan, 708 F.2d at




                                 -27-
843; see also 

.          But we rejected that

contention.

            We explained that Ceccolini "stress[ed] our adversary

system's preference for live testimony," a factor not presented by

a   case   seeking   "not   rejection    of   live   testimony    but   rather

suppression of documents obtained from third parties."               

; see also United States v. Hughes, 

, 89

(1st Cir. 2002) (explaining that the Supreme Court "has been

especially reluctant to suppress . . . fruits where they are not

objects    or   documents   but   live    witnesses    who   could      testify

voluntarily and cast light on a range of issues").               And thus, we

explained, although "the intervening role of third parties should

be considered in determining whether documentary evidence was

discovered independently of an illegal search or seizure, it is but

one of the factors to be weighed."8           

-44

(citation omitted).



      8
       Although we did not make the point in Finucan, even
Ceccolini declined to accept the government's invitation to adopt
what amounted to "a per se rule that the testimony of a live
witness should not be excluded at trial no matter how close and
proximate the connection between it and a violation of the Fourth
Amendment."   

.     The Court instead
explained that although in some cases "the illegality which led to
the discovery" of the third party who agreed to testify at the
defendant's trial may "not play any meaningful part in the witness'
willingness" to appear, that might not always be the case. 

Ceccolini thus examined what role the illegal searches that
had been conducted by the local police in that case played in
leading the federal authorities to the witness whose testimony the
defendant sought to exclude. See 

                                   -28-
             Among the factors we deemed relevant to the suppression

issue in Finucan was whether, "[a]bsent the illegal search, the

investigators [would] have known the identity of all of the third

parties [or] what to ask them."         

    In that regard, we

considered whether "the government anticipated that the illegal

search would help lead it to the other dealers and documents," and

whether "the third parties would have come forward on their own had

the investigators not sought them out."         

precedent in place, the success of Cordero's

suppression motion turns on whether the evidence obtained pursuant

to D.M.C.'s voluntary consent was tainted by the prior unlawful

searches by the Puerto Rico police.         But that inquiry, as we have

previously     said,   is   necessarily     highly    fact   dependent   and

"amorphous."    

.      The relevant considerations

might include the ones we focused on in Finucan, as well as the

three factors Brown articulated, which courts have applied in cases

involving motions to suppress allegedly tainted evidence acquired

pursuant to third parties granting consent to searches. See, e.g.,

United States v. Hill, 

, 267-68 (4th Cir. 2011); see

also State v. Lane, 

, 380-92 (Iowa 2007) (discussing

numerous considerations in addition to the Brown factors in fruit

of   the   poisonous   tree   case    involving      third-party   consent).

Balancing these factors will illuminate the extent of attenuation




                                     -29-
in this case, and, along with it, the deterrence value of excluding

evidence derived from D.M.C.'s consent.

             Because   the    inquiry     "require[s]     the   particular

circumstances of [the] case to drive the analysis," 

, we decline to undertake it now.          The District Court

never considered any of the relevant factors -- or made findings

with respect to them -- for the simple reason that it held that the

searches by the Puerto Rico police did not violate the Fourth

Amendment.      Thus, we lack sufficient information to determine

whether D.M.C.'s consent was obtained by exploitation of the

underlying illegality.       As those are facts that may be discernible

in an evidentiary hearing, we thus vacate and remand so the

District Court in the first instance may consider the factors that

Brown and Finucan identify.

                                    IV.

             For the foregoing reasons, we vacate the District Court's

suppression ruling.     On remand, if the District Court should find

that the Puerto Rico police's unlawful searches did not taint the

federal authorities' consent-based search, then the District Court

must decide which, if any, of the government's evidence stemmed

solely from the Puerto Rico police's searches.           If, however, the

District Court should decide the taint issue in Cordero's favor,

then the District Court must decide which, if any, evidence the

government seeks to introduce must be suppressed in consequence of


                                   -30-
that tainted relationship.   But given that those are issues about

which we lack sufficient facts to determine, the District Court

should only decide them following an evidentiary hearing on the

matter.




                               -31-