"It is a `basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." U.S. v Santa, 236 F. 3d 662, 668 (11th Cir. 2000) (citing Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L. Ed.2d 639 (1980)). "A warrantless search is allowed, however, where both probable cause and exigent circumstances exist."

"The general requirement that a search warrant be obtained is not lightly to be dispensed with, and 'the burden is on those seeking [an] exemption from the requirement to show the need for it." United States v. Santa, 236 F.3d 662, 669 (11th Cir. 2000) (citing Chimel v. California, 395 U.S. 752, 762 (1969)); see also McCoy, 259 F. App'x at 267. The exigent circumstances exception only applies if the police reasonably believe that an emergency situation justifies warrantless action, such as situations involving "danger of flight or escape, loss or destruction of evidence, risk of harm to the public or the police, mobility of a vehicle, and hot pursuit."

The Magistrate Judge engaged in a careful analysis of whether the Defendant's consent to the narcotics' search here flowed from Officers' Funderbrik and Noble's prior unlawful search of the Defendant's hotel room or instead, was sufficiently attenuated to immunize the detectives' search from constitutional challenge. However, the Court notes that the Magistrate Judge's analysis fails to recognize several critical evidentiary issues here that impact the ultimate legal analysis and distinguish this case from the principal cases relied upon in the R & R's analysis, United States v. Delancy, 502 F.3d 1297 (11th Cir.2007), United States v. Santa, 236 F.3d 662 (11th Cir.2000), and United States v. Welch, 683 F.3d 1304 (2012). Mindful that the Court did not hear the testimony and instead relies here on the transcript of the hearings on the motions to suppress, the Court discusses below its preliminary legal analysis and assessment of the evidence.

Thus, the Court finds that Trevor's consent was the product of an unlawfully prolonged stop and was not voluntary and that Strom's search of the car was unlawful. The same reasoning applies to Strom's deployment of the K-9 to sniff for narcotics. Because Strom's deployment of the K-9 occurred after Strom impermissibly prolonged the traffic stop to question Trevor about contraband, this deployment could only provide probable cause to search if the Government establishes that the dog sniff was not tainted by Strom's unlawful actions. See United States v. Santa, 236 F.3d 662, 677 (11th Cir. 2000). The Government has failed to carry this burden because the record shows that the dog was deployed as a result of the information uncovered after Strom unlawfully prolonged the stop and the Government has not shown otherwise.

"For consent given after an illegal seizure to be valid, the Government must prove two things: that the consent is voluntary, and that the consent was not a product of the illegal seizure." United States v. Delancy , 502 F.3d 1297, 1308 (11th Cir. 2007) (quoting United States v. Santa , 236 F.3d 662, 676–77 (11th Cir. 2000) ). "[T]he government bears the burden on both issues." Id.

"Second, the court must determine whether the consent, even if voluntary, requires exclusion of the evidence found during the search because it was the ‘fruit of the poisonous tree’—the product of an illegal entry." Id. (citing United States v. Santa , 236 F.3d 662, 676–77 (11th Cir.2000) ). This "second requirement focuses on causation: ‘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.’ "

“A warrantless search is allowed, however, where both probable cause and exigent circumstances exist.” United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir.1991)(en banc). United States v. Santa, 236 F.3d 662, 668 (11th Cir.2000). Under limited circumstances, officers may legally enter a residence without the benefit of a warrant. The law excuses the requirement of a search warrant and allows entry by law enforcement officers when there are exigent circumstances creating a “compelling need for official action and no time to secure a warrant.”

In Welch, the Eleventh Circuit Court of Appeals determined that consent was voluntary, there was no exploitation of unlawful entry, and there was no taint such as to make the evidence “fruit of the poisonous tree.” The Eleventh Circuit relied on United States v. Santa, 236 F.3d 662 (11th Cir.2000) (voluntary consent did not purge primary taint of illegal entry and arrest) and United States v. Delancy, 502 F.3d 1297 (11th Cir.2007) (entry unlawful but not a subterfuge, no flagrant acts), and determined that Welch's consent was voluntary. In United States v. Smith, 688 F.3d 730 (11th Cir.2012), the Eleventh Circuit Court of Appeals held that: 1) the time between the officers' entry into Defendant Smith's home and his consent to search was not the most important factor; 2) the officers did not interfere with Defendant Smith making a knowing, intelligent and voluntary consent to search, and 3) the officers had a lawful purpose in entering defendant's home and did not act flagrantly.

"A warrantless search [of a home] is allowed, however, where both probable cause and exigent circumstances exist." United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991) (en banc); see also United States v. Santa, 236 F.3d 662, 668-69 (11th Cir. 2000) (same). A sufficient basis for "[p]robable cause for a search exists when under the totality of the circumstances there is a fair probability that contraband or evidence of a crime will be found in a particular place."

But exigent circumstances, to the extent that they are relied upon to the conduct an immediate search, also require an objective belief that probable cause exists to search the cell phone. See, e.g., United States v. Santa, 236 F.3d 662, 668 (11th Cir.2000) (citing United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir.1991) (en banc)); see also infra at 26–32. These earlier cell phone cases most likely could have made—and indeed often did make—a probable cause finding.