United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-1764
                                   ___________

United States of America,               *
                                        *
            Appellant,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
Trinidad Villa-Gonzalez and             *
Jose Manuel Villa-Gonzalez,             *
                                        *
            Appellees.                  *
                                   ___________

                             Submitted: May 11, 2010
                                Filed: November 1, 2010 (corrected 11/02/10)
                                 ___________

Before WOLLMAN, BYE, and MELLOY, Circuit Judges.
                          ___________

BYE, Circuit Judge.

      Brothers Trinidad Villa-Gonzalez (Trinidad) and Jose Villa-Gonzalez (Jose)
were indicted in 2008 on various criminal charges after police discovered
methamphetamine, guns, money, and scales during a search of the brothers’ residence.
The district court1 granted the brothers’ motion to suppress the physical evidence
discovered during the search of their residence, as well as certain incriminating
statements they made to police. The government appeals, arguing the district court


      1
        The Honorable Joseph F. Bataillon, Chief Judge, United States District Court
for the District of Nebraska.
erred by concluding (1) Trinidad’s initial encounter with the police was not
consensual and statements he made during the encounter were involuntary, and (2) the
evidence discovered during the search of the brothers’ residence was inadmissible
fruit of the poisonous tree. We affirm.

                                          I

       Keith Bignell, a drug investigator with the Nebraska State Patrol, received
information in February 2008 that Trinidad and Jose Villa-Gonzalez were selling
methamphetamine out of their trailer residence on 61st Avenue in Columbus,
Nebraska. While driving by the trailer on the morning of May 29, 2008, Bignell saw
a vehicle at the trailer and a person standing near the trailer. Bignell decided to
attempt a “knock and talk” consensual contact at the residence. Bignell was driving
an unmarked sedan at the time and was accompanied by Investigator Molczyk of the
Columbus police. Bignell was armed with a pistol in a holster visible on his belt; he
was wearing blue jeans, a t-shirt, and a vest displaying a badge emblem and marked
with the word “police.” Molczyk was wearing plainclothes with no visible weapon.

        Before he approached the trailer, Bignell called for assistance and was joined
by a uniformed officer, Trooper Dain Hicks, who was driving a marked patrol car.
Trooper Hicks was visibly armed. As Bignell and the other officers approached the
trailer, Bignell saw an individual later identified as Esau Valenzuela-Machado
standing near the trailer. Bignell asked Valenzuela-Machado for identification, and
Valenzuela-Machado provided a Mexican voter registration card. Bignell asked
Valenzuela-Machado to accompany Trooper Hicks to the front of the trailer. Hicks
then placed Valenzuela-Machado in the rear seat of his police cruiser and stood in the
driveway near the front of the trailer.

     Bignell and Molczyk approached the main door of the trailer and knocked. Jose
answered the door. Bignell, standing on a deck outside the main door of the trailer,

                                         -2-
identified himself as a police officer, and he asked Jose for “some identification.”
Bignell also asked if he could come inside the trailer. Jose did not answer, but
Trinidad came to the door and told Bignell he could not come inside. Bignell asked
Trinidad for identification, and Trinidad responded by closing the door partially and
leaving the doorway area. Trinidad then returned with a Nebraska identification card.
Bignell and Trinidad then engaged in a brief conversation on the deck during which
Trinidad told Bignell that he lived in the trailer along with his brother Jose. Jose
returned to the door with his identification – a State of Washington driver’s license
– handed the ID to Trinidad, and returned once again inside the trailer. Trinindad
handed over his and Jose’s ID cards to Bignell. Trinidad asked Bignell what he
wanted, and Bignell explained that he believed Trinidad and Jose were drug dealers.
Trinidad denied the accusation. In response to a few more questions from Bignell,
Trinidad stated that he was born in Mexico and that he did not have any additional
forms of identification. Bignell asked Trinidad a second time for permission to search
the trailer, and Trinidad again declined to consent to a search.

       Bignell returned to his car and used his cell phone to call Mike Becker, an
Immigration and Customs Enforcement (ICE) officer with the Department of
Homeland Security in Omaha, and asked him to run immigration checks based on the
information provided by the three men at the trailer. Becker ran the requested checks
and called Bignell back in “five minutes or less.” At that time, Becker told Bignell
he wanted to speak with each of the individuals on the cell phone. While Bignell was
talking with Becker, Trinidad stood just “outside the trailer on the deck with
Investigator Molczyk.” Pursuant to Becker’s request to speak with each of the three
men, Bignell “approached Trinidad on the — on the deck and handed him the cell
phone.” The nature of the interaction between Bignell and Trinidad is disputed by the
parties. The district court found that Bignell “told” Trinidad to talk on the phone with
Becker. The government asserts that this finding is clearly erroneous, and suggests,
instead, that Bignell merely handed the phone to Trinidad. If Bignell said anything
to Trinidad when he handed Trinidad the phone, the record is silent on the point.

                                          -3-
       In a “short conversation,” Trinidad told Becker he was from Mexico, that he
had entered the United States on a visitor’s visa in June 2007, and that his documents
were in the trailer. After Becker finished speaking to Trinidad, Bignell then entered
the trailer, without consent, and handed the phone to Jose. Jose admitted to his status
as an illegal immigrant. Finally, Bignell handed the phone to Valenzuela-Machado,
who also admitted to his status as an illegal alien. At the conclusion of Becker’s cell
phone conversation with the men, Becker told Bignell to administratively arrest all
three men as suspected illegal aliens, on the basis of Jose and Valenzuela-Machado’s
admission of their illegal status, and Becker’s failure to find any record in his
immigration database corroborating Trinidad’s statement that he entered the United
States on a visitor’s visa in June 2007.

       At this point, Bignell handcuffed Trinidad and placed him under arrest.2 The
three detained men were taken to the Platte County jail where Becker and another ICE
investigator promptly arrived from Omaha to interview them regarding their
immigration status. With respect to Trinidad, the government’s computer records did
not support his claim that he had lawfully entered the country, but Becker wanted to
interview him because “sometimes there can be errors in databases.” Becker testified
the general purpose of his interviews with suspected illegal aliens is to seek
information for administrative removal from the United States. Becker testified he
conducts an “identity interview” addressing the person’s

      name, date of birth, family’s name, do they have kids, are they married,
      are they sick, where do they live, where were they born, and then we
      have their entry data, because under the Immigration and Nationality
      Act, how an alien enters the United States determines [] which course of
      action that you actually take in the administrative process . . . for
      removal.


      2
        The record is silent on when, if ever, Bignell returned Trinidad and Jose’s
identification cards.

                                         -4-
Becker does not typically give Miranda warnings at the outset of these interviews, and
he did not do so when he interviewed Trinidad at the jail. When Becker interviewed
Trinidad, he inquired about the names of Trinidad’s parents and his exact address in
Mexico. When Becker told Trinidad the government did not have a record of him
coming into the United States with a passport and visa as he had claimed, Trinidad
incriminated himself, admitting he used fraudulent documents to gain entry. Because
Trinidad appeared to Becker to have admitted to committing a felony by fraudulently
using another person’s documents to enter the United States, Becker immediately
stopped questioning Trinidad.

       On the assumption Trinidad likely kept the fraudulently-used documents at his
residence, Becker decided to seek a warrant to search for such documents in Trinidad
and Jose’s trailer. The government applied for and obtained a search warrant, with the
probable cause showing for the warrant based principally on Trinidad’s disclosure that
he had fraudulently used another person’s documents to illegally enter the United
States, along with his earlier statement that he stored the documents in his trailer. The
warrant affidavit also relied on the fact that both Jose and Valenzuela admitted to their
status as illegal aliens.

       The search warrant for the trailer was executed at around 6 p.m. on the same
day, May 29, 2008, by Becker and other ICE agents, along with Bignell and Molczyk.
In the residence, officers discovered about $32,000 in currency, two handguns, two
scales, and a quantity of methamphetamine.

       On June 18, 2008, a federal grand jury in the District of Nebraska returned a
five-count indictment against Trinidad and Jose. Count One charged both Trinidad
and Jose with conspiring to distribute and possess with intent to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count Two
charged both Trinidad and Jose with possessing methamphetamine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1). Count Three charged both Trinidad

                                          -5-
and Jose with unlawful possession of firearms by an alien illegally in the United
States, in violation of 18 U.S.C. § 922(g)(5)(A). Count Four charged Trinidad with
unlawfully reentering the United States after having been deported following
conviction for an aggravated felony, in violation of 8 U.S.C. § 1326. Count Five was
a forfeiture count under 21 U.S.C. § 853.

        In September 2008, Trinidad and Jose filed motions to suppress all their
statements to law enforcement officers as well as the evidence seized in the search of
their residence. A magistrate judge conducted an evidentiary hearing on Trinidad and
Jose’s suppression motion and entered a Report and Recommendation recommending
that the motions be granted in part and denied in part. The magistrate concluded the
initial “knock and talk” interaction between Bignell, Trinidad and Jose was a
consensual encounter and found no reason to suppress Trinidad’s cell phone
conversation with Becker. The magistrate judge found that Bignell had “approached
Trinidad on the deck and handed him a cell phone, at which time Trinidad spoke with
Officer Becker,” and he noted that “[t]here is no evidence that Trinidad objected to
talking to Becker on the telephone or that he was forced to do so.” The magistrate
judge further concluded Trinidad was not “in custody” when he talked to Becker on
the cell phone. The magistrate judge also found that because Becker was unable to
find any record that Trinidad had entered the United States with a passport and visa
in 2007 as he had claimed, Becker had sufficient cause at the conclusion of the cell
phone conversation to direct Bignell to make an administrative arrest and detain
Trinidad. Turning to Becker’s questioning of Trinidad at the jail, the magistrate judge
concluded Becker should have provided Miranda warnings to Trinidad. In the
magistrate judge’s view, Becker’s questioning of Trinidad as to his manner of entry
– in which he confronted Trinidad with the fact that the government’s records did not
support his claim that he used a passport and visa to legally enter in 2007 – was
“reasonably likely to elicit an incriminating response,” and Miranda warnings were
therefore required. The magistrate judge contrasted Becker’s interrogation at the jail
from the “mere[] . . . administrative inquiry [conducted] when Becker interviewed

                                         -6-
Trinidad over the telephone.” Because of Becker’s failure to provide Miranda
warnings prior to the jail interview, the magistrate judge recommended that Trinidad’s
statements in that interview be suppressed. Relying on United States v. Patane, 

, 636 (2004), the magistrate judge rejected Trinidad and Jose’s argument that
the “fruit of the poisonous tree”doctrine required suppression of the physical evidence
later seized at the trailer. The magistrate judge explained, under Patane, there is no
constitutional basis for suppressing physical evidence obtained as a result of voluntary
statements, even if there was a Miranda violation in the jailhouse questioning.
Assessing the totality of the circumstances, the magistrate judge concluded Trinidad’s
statements at the jail were voluntary. The magistrate judge noted in particular that
“[t]he record in this case is devoid of any indication that either Trinidad or Jose were
particularly susceptible to pressure that may have been asserted by law enforcement,”
and that “[t]he evidence does not suggest that their wills were overborne at any time
during these events.” Finally, the magistrate judge concluded that the facts included
in the application for the search warrant, including Trinidad’s statements, were
sufficient to establish probable cause for the search of the trailer for evidence of
immigration law violations.

       The district court subsequently entered a suppression order granting Trinidad
and Jose’s motion to suppress in its entirety. The district court agreed with the
magistrate judge that the incriminating statements Trinidad made at the Platte County
jail required Miranda warnings and must be suppressed. In addition, however, the
district court found that although Bignell’s initial contact with Trinidad was
consensual, the encounter became an unlawful detention at the time of Trinidad’s cell
phone conversation with Becker. In addition, the district court concluded Trinidad
was “in custody” on the deck of his residence and that Miranda warnings were
therefore required before his cell phone conversation with Becker. The district court
further found the government had failed to prove the voluntariness of Trinidad’s
statements in light of the coercive atmosphere and the fact that “the defendants were
told, not asked, to answer the questions propounded by the ICE officer on the phone.”

                                          -7-
Because the information supporting probable cause for the search warrant was derived
from the arrest which resulted from what were, according to the district court,
Trinidad’s involuntary statements to Becker on the cell phone during a period of
unlawful detention, the court ultimately concluded that the fruit of the poisonous tree
doctrine required suppression of the physical evidence seized in the search.

      The government now appeals the district court’s adverse suppression order. We
have jurisdiction over the government’s appeal pursuant to 18 U.S.C. § 3731.

                                          II

       The first issue we must confront is whether Trinidad was seized within the
meaning of the Fourth Amendment by the time he made an incriminating statement
over the phone to Becker.

      We review a district court’s factual determinations in ruling on a motion to
suppress for clear error and its conclusions of law de novo. United States v. Griffith,

, 982 (8th Cir. 2008).

       Although the Fourth Amendment prevents police from seizing a person without
a reasonable suspicion of criminal activity, the Amendment is not triggered by a
consensual encounter between an officer and a private citizen. 

“[M]ere
police questioning does not constitute a seizure.” Florida v. Bostic, 

, 434
(1991). “Even when law enforcement officers have no basis for suspecting a
particular individual, they may pose questions, ask for identification, and request
consent to search . . . provided they do not induce cooperation by coercive means. If
a reasonable person would feel free to terminate the encounter, then he or she has not
been seized.” United States v. Angulo-Guerrero, 

, 451 (8th Cir. 2003).
“A consensual encounter becomes a seizure implicating the Fourth Amendment when,
considering the totality of the circumstances, the questioning is ‘so intimidating,

                                         -8-
threatening, or coercive that a reasonable person would not have believed himself free
to leave.’” United States v. Flores-Sandoval, 

, 1145 (8th Cir. 2007),
quoting United States v. Hathcock, 

, 718 (8th Cir. 1997).

       Two relevant Supreme Court cases bear examination. In United States v.
Drayton, the Supreme Court held no seizure occurred when officers boarded a bus
during a scheduled stop and began questioning passengers about their travel plans and
baggage in a routine drug and weapons interdiction 

. And
while the police officers in Drayton were not in uniform or visibly armed, the Court
stated that “those factors should have little weight in the analysis.” 

The
Court noted that

      [o]fficers are often required to wear uniforms and in many circumstances
      this is cause for assurance, not discomfort. Much the same can be said
      for wearing sidearms. That most law enforcement officers are armed is
      a fact well known to the public. The presence of a holstered firearm thus
      is unlikely to contribute to the coerciveness of the encounter absent
      active brandishing of the weapon.

The Court ruled the encounter was not a seizure within the meaning of
the Fourth Amendment. 

       In another case, the Supreme Court held INS questioning of factory workers in
their workplace about their citizenship was not a seizure even though uniformed INS
agents were posted at the workplace exits and the workers were not told they need not
respond. I.N.S. v. Delgado, 

, 216 (1984). The Court stated, “[w]hile
most citizens will respond to a police request, the fact that people do so, and do so
without being told they are free not to respond, hardly eliminates the consensual
nature of the response.” 

noted there was nothing in the record showing
the agents stationed at the factory doors prevented anyone from leaving, and the



                                         -9-
obvious purpose of the agent’s presence at the doors was to ensure all the workers
were questioned. 

       This court has also affirmed on numerous occasions that the knock-and-talk
procedure used here is a consensual encounter under normal circumstances. See, e.g.,
United States v. Spotted Elk, 

, 655 (8th Cir. 2008) (“As commonly
understood, a knock and talk is a consensual encounter and therefore does not
contravene the Fourth Amendment, even absent reasonable suspicion.”) (citations
omitted); United States v. Vera, 

, 835 (8th Cir. 2006) (indicating that a
request to see identification is not a seizure, as long as the police do not convey a
message that compliance with their request is required); United States v. Coney, 

, 858 (8th Cir. 2006) (finding encounter with police officer consensual where
officer “did not use physical force, make a show of authority, or use demanding
language,” and two defendants exercised their right to deny request for consent to
search).

       In making the ultimate determination of whether a reasonable person would feel
free to terminate the encounter with police, we have in past cases examined the
presence or absence of seven nonexclusive factors. In Griffith, we stated that

      [s]ome circumstances which inform our decisionmaking include: officers
      positioning themselves in a way to limit the person’s freedom of
      movement, United States v. White, 

, 1416 (8th Cir. 1989),
      the presence of several officers, the display of weapons by officers,
      physical touching, the use of language or intonation indicating
      compliance is necessary, the officer’s retention of the person’s property,
      or an officer’s indication the person is the focus of a particular
      investigation, Ninety One Thousand Nine Hundred Sixty 

.

.



                                        -10-
        Turning to the facts of this case, we conclude the district court did not err when
it concluded Trinidad was seized by the time he spoke to Becker on the phone. To be
sure, two of the relevant factors support the government’s argument that the encounter
between Trinidad, Jose, and the police remained a consensual encounter. First, there
is no evidence in the record that any physical touching occurred, and second, there
was no language or intonation used indicating compliance was necessary.3 Five of the
relevant factors, however, weigh in favor of Trinidad and Jose.4 Three officers were
present at the trailer. The officers in this case positioned themselves so as limit
Trinidad and Jose’s freedom of movement. Trooper Hicks described his role as
“security” and stood in the driveway as Bignell and Molczyk went to the door of the
trailer. When Bignell returned to his vehicle to phone Becker, Molczyk remained near
the trailer door with Trinidad. Although we do not give the circumstance a great deal
of weight, see 

, two of the officers were visibly armed.
The two remaining factors weigh most heavily in our analysis. First, in the course of
the encounter, Bignell told Trinidad he believed Trinidad and Jose were drug dealers.
Such inquisitorial statements are not present in the vast run of consensual encounters
between police and individuals, and certainly make any encounter more coercive. See
United States v. Drinkard, 

, 142 (8th Cir. 1990) (concluding a seizure
occurred where DEA agents asked the defendant if he had drugs in his luggage).
Second, there is no indication that Bignell ever returned Trinidad’s identification card
before Trinidad spoke to Becker over the phone.5 Without his identification card, a

      3
         Because we conclude the remaining circumstances are sufficient to support the
district court’s conclusion Trinidad was seized, we assume, without deciding, that the
district court clearly erred when it found that Bignell “told” Trinidad to speak on the
phone to Becker.
      4
       We emphasize that we do not apply any rigid mathematical formula with
respect to the relevant factors in our analysis. We count factors merely to organize
our analysis.
      5
        The factual record is clear that Bignell took possession of Trinidad and Jose’s
identification cards during the early stages of the encounter. The record is silent,

                                          -11-
reasonable person is much less likely to believe he can simply terminate a police
encounter. See Florida v. Royer, 

, 503 n. 9 (1983) (noting that officers
taking possession of defendant’s airline ticket, luggage, and identification contributed
to the determination defendant had been seized because “[a]s a practical matter, Royer
could not leave the airport without them.”). Looking at all the circumstances, we
agree with the district court that a reasonable person in Trinidad’s circumstances
would not have felt free to terminate the police encounter and walk away (or attempt
to do so). Therefore, the district court did not err when it concluded Trinidad was
seized within the meaning of the Fourth Amendment by the time he spoke to Becker
on the phone.6




however, on if, and, more importantly when, Bignell returned the cards to the
brothers. After Bignell took possession of the cards, he returned to his car for roughly
five minutes where he telephoned Becker, relaying to him the names and information
for Trinidad, Jose, and Valenzuela-Machado. Bignell, while on the phone with
Becker, walked back to the trailer and handed the phone to Trinidad. Given these
historical facts, the district court inferred Bignell had not returned the cards before
Trinidad’s conversation with Becker. Giving “due weight to inferences drawn from
those facts by resident judges and local law enforcement officers,” United States v.
Gomez, 

, 923 (8th Cir. 2002), we accept the district court’s finding as a
reasonable inference.
      6
        The district court also held, alternatively, Trinidad’s statements over the phone
to Becker were made involuntarily and while “in custody” for purposes of Miranda
v. Arizona. Although the government asserts error in the district court’s conclusion
that Trinidad’s statements were involuntary, we need not review the district court’s
voluntariness determination because our conclusion that Trinidad was illegally seized
is ultimately sufficient to uphold the district court’s suppression order. The
government does not challenge the district court’s determination that Trinidad was in
custody. Therefore, we decline to review and express no opinion on the district
court’s conclusions that Trinidad’s statements to Becker were involuntary and made
while in custody.

                                          -12-
                                           III

      Having concluded that Trinidad was illegally seized without reasonable
suspicion of wrongdoing, we must next examine whether the district court erred, as
the government asserts, when the court determined the “fruit of the poisonous tree”
doctrine necessitated suppression of the physical evidence discovered during the
search of Trinidad and Jose’s residence.

       The exclusionary rule “reaches not only primary evidence obtained as a direct
result of an illegal search or seizure . . . but also evidence later discovered and found
to be derivative of an illegality or fruit of the poisonous tree.” Segura v. United
States, 

, 804 (1984) (internal marks omitted).7

       The government argues that under the authority of United States v. Patane, 

(2004), suppression is inappropriate in this case. In Patane, the defendant
was lawfully arrested for violating a restraining order. 

After his arrest, a
police officer attempted to read the defendant his Miranda rights, but was interrupted.

a question by the police officer, the defendant admitted there was
a firearm in his bedroom. 

officer seized the firearm. 

held that although the defendant’s statement about the location of the gun must be
suppressed, the gun itself was admissible. 

In so doing, the Court


      7
        Evidence obtained as a result of a constitutional violation may still be
admissible if the later discovery is significantly attenuated from the primary violation,
see, e.g., Brown v. Illinois, 

, 604-05 (1975), if the later discovery was
inevitable, see, e.g., Nix v. Williams, 

, 446 (1984), or if the later
discovery was supported by an independent, taint-free source, see, e.g., Murray v.
United States, 

, 539-41 (1988). The government does not argue any of
these exceptions to the fruit of the poisonous tree doctrine apply in this case.
      8
       The reasoning behind Patane’s holding is difficult to follow due to the
fractured opinion issued by the Supreme Court. A three-judge plurality reasoned

                                          -13-
announced a rule that the lack of a Miranda warning does not justify the suppression
of the physical evidence seized pursuant to a search warrant derived from a voluntary
“un-warned” statement. 

Patane inapplicable here. Rather, we are guided by Wong Sun v.
United States, 

(1963). In Wong Sun, law enforcement officers entered
a man’s residence without a warrant, in violation of the Fourth Amendment. 

Once inside, the owner of the residence made an incriminating statement to
police–telling the police he knew someone who sold narcotics. 

the
statement, the police went to the home of the second man and discovered drugs. 

The Supreme Court held the drugs must be suppressed. 

The Court
reasoned (1) the warrantless entry into the first home was an illegal search, (2) the
admission of the owner of the first home as to the identity of the drug dealer was the
direct result of the illegal search, and not the result of “an intervening independent act
of a free will,” 

and (3) the drugs were found as a direct result of the
admission, 

      Although Patane, like this case, involved a Miranda violation,9 the similarities
end there. In Patane, the unwarned statements were made after a lawful arrest.

. In this case, by contrast, Trinidad’s unwarned statements to
Becker were themselves fruits of an illegal seizure. Applying Patane’s rule in this
context would swallow up the entirety of the fruit of the poisonous tree doctrine.


Miranda is not violated until the prior testimony is admitted at trial. 

A
concurrence written by Justice Kennedy and joined by Justice O’Connor stated that
“[i]n light of the important probative value of reliable physical evidence, it is doubtful
that exclusion can be justified by a deterrence rationale sensitive to both law
enforcement interests and a suspect's rights during an in-custody interrogation.” 

(Kennedy, J., concurring).
      9
      The government does not dispute the district court’s conclusion that Trinidad’s
unwarned statements made to Becker at the Platte County jail ran afoul of Miranda.

                                          -14-
Here, like in Wong Sun, the initial constitutional violation was a Fourth Amendment
violation. Trinidad was illegally seized without reasonable suspicion, which led
directly to his phone conversation with Becker about the details of his immigration to
the United States. The phone conversation supplied the only basis to arrest Trinidad,
and the arrest led directly to Trinidad’s subsequent admission he had entered the
United States illegally using fraudulent documents. Finally, the warrant application
to search Trinidad and Jose’s residence for the fraudulent documents was supported
by Trinidad’s admissions to Becker.10

      Therefore, the district court did not err when it concluded the fruit of the
poisonous tree doctrine necessitated suppression of evidence discovered during the
search of Trinidad and Jose’s residence.

                                         IV

      For the foregoing reasons, we affirm.




      10
         The lone affidavit supporting the warrant application also referred to Jose’s
admission to Becker over the phone that he (Jose) was an illegal alien. The
government does not quarrel with the district court’s finding that Jose’s admission is
itself fruit of the poisonous tree because Bignell illegally entered the brothers’
residence to hand the phone to Jose after twice being denied consent to enter the
trailer.

                                        -15-
WOLLMAN, Circuit Judge, dissenting.

      Because I believe that the magistrate judge’s factual findings and legal
conclusions find support in the record, I would reverse the district court’s judgment
and hold that the items seized during the warrant-based search are admissible at trial.

       My disagreement with the court’s holding lies not with its factual recitation of
the events that culminated in the arrest and detention of the defendants, but with its
conclusion that the facts require a holding that Trinidad was seized by the time he
spoke with Becker on the cell phone. I agree with the court that the first two of the
Griffith factors support the government’s argument that the interaction between
Trinidad, Jose, and the officers remained a consensual encounter throughout its
duration. I would hold, however, that the remaining Griffith factors, when viewed in
the light of the attendant circumstances, do not support a conclusion that a seizure
occurred.

        First, the fact that Trooper Hicks described his role as “security” does not count
for much in my estimation in light of the fact that he had no contact with Trinidad and
Jose upon arriving at the scene. He testified that, after parking at the front of the
trailer, he watched the back portion of the trailer and was not in a position to observe
what was happening at the scene. True enough, he also testified that it would have
been his job to stop anyone who came from the trailer, but there is no evidence that
either Trinidad or Jose was aware of this fact. Indeed, as to them, Trooper Hicks
could justifiably be described as “little more than [a] passive observer[].” United
States v. White, 

, 779 (8th Cir. 1996).

      I give no weight to the fact that two of the officers were visibly armed, since
most members of the public expect law enforcement officers to be armed, and there
is no evidence that either of these officers ever by word or gesture in any way
indicated that the use of those side arms was being contemplated.

                                          -16-
       This brings us to the two factors that the court concludes most heavily weigh
in favor of a conclusion that a seizure occurred. As the court says, Bignell told
Trinidad during the course of the encounter that he believed that Trinidad and Jose
were drug dealers. This statement was made in response to Trinidad’s inquiry as to
what Bignell wanted and not in an introductory, accusatory manner. Trinidad’s
response to Bignell’s statement was to deny the allegation and to once again deny
Bignell’s request for consent to enter the trailer, hardly the response of one who
believed that he was powerless to do other than to comply with the officer’s requests.
I agree with the magistrate judge’s analysis and conclusion on this issue:

             Up to this point, the record does not suggest that Trinidad and Jose
      were coerced into talking to the police or that they were susceptible to
      any pressure that may have been asserted by the officers. Indeed, they
      affirmatively refused to allow the officers into the residence or to search
      the residence.

       Turning to the matter of the unreturned identification cards, one must weigh the
significance of that fact in the light of the circumstances. In contrast to the situation
in Florida v. Royer, there is no evidence that Trinidad and Jose were about to catch
a soon-to-depart airline flight or to undertake a cross-country journey. Accordingly,
I place no significance on the fact that their identification cards were not returned to
them before Trinidad’s telephone conversation with Becker.

      In summary, I agree with the magistrate judge’s conclusion that Trinidad had
not been seized at the time he was handed the cell phone by Bignell and thereafter
conversed with Becker.

      Likewise, I agree with the magistrate judge’s finding that Trinidad’s statements
to Becker at the jail were voluntarily made and its conclusion that in light of the
holding in United States v. Patane, the evidence seized pursuant to the warrant should
be held to be admissible at trial.

                                          -17-
       Having reviewed the challenge to the sufficiency of the warrant set forth in
Jose’s brief, I conclude that it is without merit.
                        ______________________________




                                       -18-