USCA4 Appeal: 22-4134 Doc: 64 Filed: 07/17/2023 Pg: 1 of 16

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4134

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MAURICE SYLVESTER BAILEY,

Defendant - Appellant.

Appeal from the United States District Court for the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:20-cr-00020-NCT-1)

Argued: April 13, 2023 Decided: July 17, 2023

Before DIAZ, Chief Judge, and GREGORY and THACKER, Circuit Judges.

Vacated and remanded by published opinion. Judge Gregory wrote the opinion, in which Chief Judge Diaz and Judge Thacker joined.

ARGUED: Thomas Kieran Maher, AMOS TYNDALL PLLC, Carrboro, North Carolina, for Appellant. Craig Matthew Principe, OFFICE OF THE UNITED STATES ATTORNEY, Winston-Salem, North Carolina, for Appellee. ON BRIEF: Amos G. Tyndall, AMOS TYNDALL PLLC, Carrboro, North Carolina, for Appellant. Sandra J. Hairston, United States Attorney, Terry M. Meinecke, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. USCA4 Appeal: 22-4134 Doc: 64 Filed: 07/17/2023 Pg: 2 of 16

GREGORY, Circuit Judge:

On September 24, 2019, shortly after witnessing Manley Johnson leave Appellant

Maurice Bailey’s home, Kannapolis, North Carolina police officer Jeremy Page discovered

0.1 grams of cocaine base during a search of Johnson’s vehicle. Officer Page then

confronted Bailey about the cocaine sale and instructed him to turn over any drugs still in

his possession. In return, Officer Page assured Bailey that he was “going to take it and . . .

leave,” and everything would still be “squared away.” J.A. 112. As he later testified,

Officer Page expected that Bailey would assist him in future investigations. Prompted by

Officer Page’s offer, Bailey handed over 0.7 grams of cocaine base.

In the following weeks, Bailey helped Officer Page locate and arrest an individual

for whom the police had an outstanding warrant but did not otherwise aid in Officer Page’s

investigations. Then, on November 7, 2019, Officer Page obtained two warrants for

Bailey’s arrest: one for the 0.1 grams Bailey sold to Johnson on September 24, and one

for the 0.7 grams Bailey turned over that same day. In the process of executing those

warrants, Kannapolis police discovered 17.8 grams of cocaine base on Bailey’s person,

which led to Bailey’s prosecution for possession with intent to distribute cocaine.

Bailey unsuccessfully moved to suppress the 17.8 grams of cocaine and was

convicted of the charge. On appeal, Bailey argues that the district court should have

granted his suppression motion because his arrest constituted a breach of Officer Page’s

September 24 promise that all would be “squared away.” Because the district court failed

to make the factual findings necessary to resolve this argument, we vacate its decision

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denying Bailey’s motion to suppress and the judgment of conviction and remand for

proceedings consistent with this opinion.

I.

On August 30, 2019, Kannapolis police officers, including Officer Page, executed

a search warrant at Maurice Bailey’s residence. The officers found a small bag of cocaine

base on the floor of Bailey’s bedroom, which Bailey’s girlfriend, Mecca Barber, claimed

belonged to her. Bailey expressed interest in providing information to the police in

exchange for leniency for Barber, and Bailey and Officer Page exchanged phone numbers.

About a month later, on September 24, 2019, Officer Page saw an individual named

Manley Johnson leaving Bailey’s home in a vehicle. Because he knew that Johnson had a

suspended license, Officer Page followed Johnson, pulled him over, and conducted a dog

sniff of the exterior of Johnson’s vehicle. The dog alerted to the presence of a controlled

substance, at which point Officer Page searched the vehicle and found 0.1 grams of cocaine

base. After the search, Officer Page sent Bailey a text message asking to speak with him

and drove back to Bailey’s residence.

Bailey came out to speak with Officer Page on his front porch. 1 According to

Officer Page, after confronting Bailey about the sale of cocaine to Johnson, Bailey

“basically acknowledged the fact of conducting the sale, because [Bailey] said you saw

1 This interaction was recorded by a body camera. However, the body camera footage is not included in the Joint Appendix. Therefore, we rely on the district court’s recitation of this interaction, as well as Officer Page’s testimony at the July 6, 2020, suppression hearing. 3 USCA4 Appeal: 22-4134 Doc: 64 Filed: 07/17/2023 Pg: 4 of 16

what kind it was, and [Officer Page] referred to it as shit crack, and [Bailey] said, [y]es.”

J.A. 40. Bailey then expressed to Officer Page that he sold the drugs because he had been

having trouble securing employment and was experiencing financial hardship. Bailey

asked Officer Page if he could help find him employment, and the following interaction

ensued:

Officer Page[]: Whatever little bit of shit crack you got left in that house, put it in that chair (pointing to a chair on the porch). I’m going to take it and I’m going to leave, and same thing as last. Everything is still squared away, and we’ll talk. We’ll put something together, and that’s my word man-to-man, and I will, as soon as I get back to the PD, I’ll call my people that can hook people up with jobs, and we’ll find something.

Bailey[]: All right. I have some dust. I have some shake, that’s all I got. I can go ahead and get it right now. That’s why I – look like it was shit[].

Officer Page[]: Go grab the bag of shake and bring it here, whatever it is. I’m going to take you at your word that what you are grabbing is all that is in there.

Bailey[]: Yeah. I ain’t going to lie to you. Come on, Page.

J.A. 112–13. Officer Page then followed Bailey inside Bailey’s home, where Barber was

also present. Once inside, Bailey asked Barber what she did with the drugs, and Barber

handed a bag to Bailey, who then turned the bag over to Officer Page. The bag contained

approximately 0.7 grams of cocaine base.

Officer Page and Bailey then walked back out to the front porch, at which point

Officer Page told Bailey that he “would take the crack and as soon as he got back to the

station would call his people about a [commercial driving] job and that everything ‘was

still square’ between them, but Bailey would have to get straight on this at some point in

time to make it right.” J.A. 113.

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In the time following this encounter, Officer Page sent Bailey employment information,

and Bailey helped Officer Page locate and arrest a man for whom the police had an outstanding

arrest warrant. Then, on November 7, 2019, Officer Page obtained two warrants for Bailey’s

arrest. The first charged Bailey with possession with intent to sell and deliver cocaine and sell

cocaine, relating to the sale of 0.1 grams to Johnson on September 24. The second warrant

charged Bailey with possession with intent to sell and deliver cocaine, relating to the 0.7 grams

that Officer Page received from Bailey’s residence that same day. On November 13, 2019,

pursuant to those warrants, Kannapolis police officers J.J. Snyder and Cody Franklin arrested

Bailey at his residence. While carrying out the arrest, the officers recovered 17.8 grams of

cocaine base from Bailey’s pocket.

II.

Based on the 17.8 grams of cocaine recovered pursuant to the November 13 arrest,

a federal grand jury indicted Bailey on one count of possession with intent to distribute

cocaine base in violation of

(a)(1) and 841(b)(1)(C). Bailey filed a motion

to suppress the evidence of the cocaine on the ground that Officer Page wrongfully entered

his home on September 24 and, therefore, the arrest warrant based on the recovery of the

0.7 grams of cocaine therein was invalid. The government opposed Bailey’s motion to

suppress because, in its view, Bailey consented to Officer Page’s entry into his home.

On July 6, 2020, the district court held a suppression hearing, during which Officer Page

testified to the events of August 30 and September 24, 2019. When the district court pressed

Officer Page about what he and Bailey discussed after Bailey handed over the 0.7 grams of

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cocaine on September 24, Officer Page recounted that the conversation was about Bailey

“providing information to assist [the police] in further investigations or other investigations to

basically help himself out of the crack cocaine that was seized from Mr. Johnson” and “the

additional crack cocaine that was found in his house that he voluntarily surrendered to [Officer

Page] on that day.” J.A. 49. He further testified that he intended to give Bailey “an opportunity

to help himself out, whether it would benefit him by giving him credit with the [district

attorney’s] office if he was to be charged, or depending on the . . . level of information that he

provided, could have possibly been where he may not have been charged in the future.” J.A. 67.

Officer Page explained that he drew up the November 7 arrest warrants against

Bailey because Bailey never “provide[d] the assistance that [Officer Page] w[as] expecting

him to.” J.A. 53. According to Officer Page, he waited until that date to obtain the warrants

because he “was trying to give Mr. Bailey ample time to provide any type of substantial

assistance to the VICE narcotic unit.”

While Officer Page admitted that Bailey did

help the police arrest Steven Mason, an individual for whom the police had an outstanding

arrest warrant, he did not consider that assistance substantial. Officer Page also testified

that, during his September 24 encounter with Bailey, he did not tell Bailey about the level

of cooperation expected from him. He stated, however, that a week or two after that

encounter, “Bailey had mentioned some names of people that were involved in drug

activity that he would help with,” and Officer Page told Bailey “that those would be

extremely beneficial in helping [Bailey] in his current situation.” J.A. 71.

At the close of evidence, the district court indicated skepticism toward Bailey’s

argument that Officer Page unlawfully entered his home on September 24, but it expressed

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concern about Officer Page’s statement instructing Bailey to, in the district court’s words,

“put [the drugs] here and we’re square.” J.A. 77. The court interpreted Officer Page’s

“squared away” statement as meaning: “I’m not going to do anything. Give it here and you

got immunity, zero for it,”

and expressed doubt that an officer “can lie for the purpose of

officiating the obtaining of a warrant with a showing of probable cause,” J.A. 87.

Accordingly, the district court allowed additional briefing on the propriety of Officer Page’s

statement, which led to his discovery of the 0.7 grams of cocaine, and on whether the separate

warrant based on the 0.1 grams of cocaine was sufficient to support the November 13 arrest.

In his supplemental brief, Bailey argued that by instructing him to hand over his

drugs and assuring him that “[e]verything is still squared away,” J.A. 112, “Officer Page

promised not to charge [Bailey] with the offense if . . . he assisted law enforcement,” J.A.

138–39. Bailey further contended that this promise extended to both the 0.7 grams of

cocaine that he turned over to Officer Page in reliance on this statement, as well as the 0.1

grams of cocaine found on Johnson (which had prompted Officer Page’s visit to Bailey’s

residence). In Bailey’s view, he upheld his end of the agreement by helping the police

apprehend Mason, and Officer Page breached the agreement by later obtaining the arrest

warrants—thereby rendering the November 13 arrest illegal and requiring the suppression

of the 17.8 grams of cocaine discovered incident to the arrest.

In response, the government argued that it was Bailey who breached what it

described as an “informal nonprosecution agreement” by failing to sufficiently cooperate

with Officer Page. J.A. 107. Additionally, the government asserted that even if Officer

Page breached that agreement with Bailey, Bailey’s only remedy would be to suppress the

7 USCA4 Appeal: 22-4134 Doc: 64 Filed: 07/17/2023 Pg: 8 of 16

0.7 grams of cocaine; the arrest warrant for the 0.1 grams of cocaine found on Johnson

remained valid and provided independent support for the November 13 arrest.

The district court denied Bailey’s motion to suppress. As relevant here, the court

determined that, prior to making the statement that everything would be “squared away,”

Officer Page had independent probable cause supporting an arrest warrant based on

Bailey’s alleged sale of 0.1 grams of cocaine to Johnson. 2 The court therefore declined to

assess whether Officer Page had made or breached an agreement with Bailey by obtaining

the arrest warrants because, even if his “squared away” statement “was an offer which was

breached, the remedy would be to strike or suppress whatever amount of crack was turned

over in response to the offer having been made, i.e., . . . the [0].7 gram of crack handed

over by Mr. Bailey,” the associated arrest warrant, “and any statements made by Bailey

after the offer.” J.A. 114. Because the November 13 arrest was independently supported

by the arrest warrant for the 0.1 grams of cocaine, the district court held that the arrest and

consequent search stood on firm ground.

Bailey subsequently entered a conditional guilty plea which reserved his right to

appeal the denial of his suppression motion. On February 18, 2022, the district court

sentenced Bailey to seventy months’ imprisonment. This appeal followed.

2 According to the district court, Officer Page had probable cause because he knew that Johnson had just left Bailey’s house at the time of the traffic stop and, when Officer Page confronted Bailey about this sale, Bailey appeared to acknowledge that he sold Johnson the drugs. The parties do not contest this point, so we do not address it. 8 USCA4 Appeal: 22-4134 Doc: 64 Filed: 07/17/2023 Pg: 9 of 16

III.

“In reviewing the denial of a motion to suppress, ‘we review legal conclusions de

novo and factual findings for clear error.’” United States v. Pulley,

(4th

Cir. 2021) (quoting United States v. Seerden,

(4th Cir. 2019)). When,

as here, “a suppression motion has been denied, this Court reviews the evidence in the light

most favorable to the government.” United States v. Abdallah,

(4th Cir.

2018) (quoting United States v. Hashime,

(4th Cir. 2013)).

IV.

Kannapolis police officers arrested Bailey on November 13 pursuant to two separate

arrest warrants: one warrant for Bailey’s alleged sale of 0.1 grams of cocaine to Johnson

on September 24, and one warrant for the 0.7 grams of cocaine that Bailey turned over to

Officer Page on that same day. The district court denied Bailey’s motion to suppress

because, before telling Bailey to hand over his drugs and everything would still be “squared

away,” Officer Page had probable cause supporting an arrest warrant for the 0.1 grams of

cocaine found on Johnson. In other words, the police were free to arrest Bailey for the 0.1

grams of cocaine regardless of any promises Officer Page might have made after he gained

probable cause for that arrest. Bailey argues, and we agree, that this analysis was in error.

A.

As an initial matter, we must determine the legal framework that governs Bailey’s

claim. Because Bailey’s suppression motion pertains to the government’s recovery of

various quantities of drugs, it might appear at first glance that a traditional Fourth

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Amendment framework applies. If that were the case, perhaps we would agree with the

district court that Bailey’s sole remedy is the suppression of the 0.7 grams of cocaine and

the associated arrest warrant. That is, even if Officer Page’s statement leading to his

discovery of the 0.7 grams of cocaine constituted an unlawful search or seizure under the

Fourth Amendment, Officer Page nevertheless gained probable cause for the arrest warrant

for the 0.1 grams of cocaine “by means wholly independent of any constitutional

violation.” Nix v. Williams,

(1984). Pursuant to the “independent source

doctrine,” that warrant—which alone could support Bailey’s November 13 arrest and

search—would thus be admissible.

Bailey, however, does not allege a violation of his Fourth Amendment rights.

Rather, he argues that his November 13 arrest violated his due process rights because, by

obtaining the relevant arrest warrants, Officer Page breached a promise not to arrest Bailey

for either the 0.7 grams of cocaine Bailey turned over or the 0.1 grams of cocaine found

on Johnson. 3 For guidance on how to assess this argument, we turn to cases that have

considered analogous promises by the government.

3 As discussed below, the parties dispute what, if anything, Officer Page promised Bailey by making the “squared away” statement. But they appear to agree that any such promise would have extended to both the 0.1 grams of cocaine Officer Page had already discovered and the 0.7 grams of cocaine Bailey later turned over. Oral Argument at 27:17– 30:41; Opening Br. at 9. That conclusion is supported by Officer Page’s testimony at the suppression hearing that, by making this statement, he was giving Bailey the opportunity to “basically help himself out of the crack cocaine that was seized from Mr. Johnson . . . and the additional crack cocaine that was found in his house that he voluntarily surrendered to [Officer Page] on that day.” J.A. 49. 10 USCA4 Appeal: 22-4134 Doc: 64 Filed: 07/17/2023 Pg: 11 of 16

To start, in United States v. Carter, the “defendant alleged that he incriminated

himself and others and pleaded guilty to a misdemeanor charge” based on a prosecutor’s

oral promise “that, except for the charge to which he pleaded guilty, [he] would not be

prosecuted for commission of the crimes he divulged.”

(4th Cir. 1972).

The defendant further alleged that he “fully performed his part of the bargain,” but was

later indicted on additional counts in violation of the prosecutor’s promise.

The

defendant moved to dismiss the indictment, and the district court denied his motion without

an evidentiary hearing.

. We vacated and remanded for the district court to

conduct an “evidentiary hearing to determine if a promise was made and, if so, by whom

and of what scope.”

. Critically, we explained that “if the promise was made to

defendant as alleged and defendant relied upon it in incriminating himself and others, the

government should be held to abide by its terms.”

at 427–28. We noted that this

conclusion was consistent with Santobello v. New York, which similarly held that “when a

plea rests in any significant degree on a promise or agreement of the prosecutor, so that it

can be said to be part of the inducement or consideration, such promise must be fulfilled.”

(1971).

Carter thus stands for the proposition that if the government “utilize[s] its discretion

to strike bargains with potential defendants,” those bargains can be enforced against the

government. Carter,

(citation omitted). And while Carter concerned a

plea agreement, we have since recognized that a non-prosecution agreement “invokes the

same constitutional due process concerns as a plea agreement.” United States v. Gerant,

(4th Cir. 1993). We have also noted that, when certain conditions are

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met, “courts may enforce informal grants of transactional immunity.” United States v.

McHan,

(4th Cir. 1996) (citation omitted), abrogated on other

grounds by Honeycutt v. United States,

(2017).

It therefore makes sense that our sister circuits have enforced non-prosecution

agreements like the one discussed in Gerant against the government. For example, in

United States v. Carrillo, the defendant was arrested with heroin in his possession, and

Drug Enforcement Administration agents offered not to prosecute him if he cooperated in

their investigation of certain suspected drug traffickers.

, 35–36 (9th Cir.

1983). The government later indicted the defendant “on the ground that he had breached

the cooperation agreement,” and the district court granted the defendant’s motion to

dismiss the indictment.

at 36–37. The Ninth Circuit affirmed because it determined

that the defendant fulfilled his “obligations under the agreement” and, “under settled

notions of fundamental fairness[,] the government was bound to uphold its end of the

bargain.”

Similarly, in United States v. Rodman, the First Circuit upheld the district

court’s dismissal of an “indictment on the grounds that the Securities and Exchange

Commission had obtained substantial information . . . from the appellee on the basis of a

promise that the [SEC] would strongly recommend to the United States Attorney that no

prosecution against the appellee be undertaken.”

, 1059–60 (1st Cir. 1975).

Like the Ninth Circuit, the First Circuit affirmed the “district court’s view that the

unfairness to the [defendant] warranted dismissal of the indictment.”

In those cases, as here, the fact that the government may have learned of a

defendant’s wrongdoing prior to making an agreement does not place the government’s

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promise of leniency beyond the scope of the agreement. Quite the opposite, it is the

government’s knowledge of wrongdoing that so often serves as consideration for such

agreements. As a result, the government’s promise not to act on that knowledge cannot be

deemed categorically unenforceable. So, while the proper remedy for a breached

agreement will vary on a case-by-case basis, enforcement of the agreement is one remedy

the district court has in its relief-fashioning arsenal. See United States v. Conner,

(4th Cir. 1991); Carrillo,

.

The government does not—because it cannot—dispute that general principle. It

argues, however, that the agreement here is not enforceable against the government

because Officer Page lacked the authority to make it. In mounting this argument, the

government relies primarily on a North Carolina Court of Appeals case, State v. Sturgill,

(N.C. Ct. App. 1996). In Sturgill, a police officer promised a “defendant

that he would not be prosecuted as a habitual felon” in exchange for cooperation.

. However, after the defendant provided self-incriminating information pursuant to that

promise, the State indicted him as a habitual felon and used his statements against him at

trial.

The North Carolina Court of Appeals declined to order specific performance of

the promise (which would have meant quashing the indictment) but granted the defendant

“a new trial on all charges” and the suppression of his “confession and evidence arising

therefrom.”

. Although the court noted that the officer lacked authority to make

the non-prosecution agreement, it still found that the “broken promise[]” could “mandate

relief by [its] courts.”

. “The appropriate consideration,” it reasoned, “is not the

power of the police to bind the office of a North Carolina district attorney, but rather the

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scope of a defendant’s due process right to enforce a governmental promise not to use

evidence against him, upon which he detrimentally relied in furnishing incriminating

evidence to police.”

(cleaned up).

In the government’s view, this case stands for the proposition that where an officer

makes an unauthorized non-prosecution promise which is then breached, the defendant’s

only remedy is the suppression of any evidence that was obtained in detrimental reliance

on that promise. It is not clear that Sturgill so held given its express statement that it “do[es]

not mean to imply that specific performance will never be available when police promises

result in detrimental reliance by a defendant inducing relinquishment of constitutional

rights.”

. But even assuming it did, the government’s argument fails because

Bailey does not allege that Officer Page promised not to prosecute him. Rather, Bailey

alleges that Officer Page promised not to arrest him, which nobody disputes was within

his authority as a police officer. 4

Finding the government’s argument unpersuasive, we conclude that if Officer Page

did breach a promise not to arrest Bailey for either quantity of drugs recovered on

September 24 in exchange for his cooperation, Bailey could seek to enforce that promise

against the government. To be sure, Carter and its progeny do not address the precise

4 For this reason, the other cases which the government cites for the proposition that an “agreement is only enforceable against the United States if it was entered into by a party acting with the authority to bind the United States Attorney to a non-prosecution promise” are similarly inapposite. Response Br. at 12 (citing United States v. Flemmi,

(1st Cir. 2000), United States v. Miller, No. 5-14-CR-19-01,

, at *9 (N.D. W.Va. Aug. 18, 2014), and United States v. Juvenile Male, No. 88-5575,

(4th Cir. 1988) (unpublished)). 14 USCA4 Appeal: 22-4134 Doc: 64 Filed: 07/17/2023 Pg: 15 of 16

promise Bailey alleges occurred here: a promise not to arrest. Yet we see no reason to

treat a non-arrest agreement any differently than the non-prosecution and plea agreements

we have previously held enforceable against the government. In non-arrest agreements, as

in non-prosecution and plea agreements, the government wields its vested authority to

extract cooperation from a potential defendant in exchange for a promise of leniency. A

police officer is not entitled to arbitrarily breach these agreements, which have become a

central feature of the many drug-related prosecutions that occupy our criminal legal system

each year. See Alexandra Natapoff, Snitching: The Institutional and Communal

Consequences,

(2004). In all such contexts, therefore, where an

individual fulfills his obligations under the agreement, “settled notions of fundamental

fairness” may require the government “to uphold its end of the bargain,” too. Carrillo,

. To hold otherwise would rubberstamp a police practice that stands to undermine

“the honor of the government” and “public confidence in the fair administration of justice.”

Carter, 454 F.3d at 428.

B.

Having determined that Bailey’s allegations, if true, could warrant enforcing the

alleged non-arrest agreement against the government, we are left with the salient question

of whether Officer Page did, in fact, breach such an agreement. The district court left this

question open, and the parties contest the answer. Specifically, they dispute whether there

was an agreement, and, if there was, its terms and whether Bailey first breached it by failing

to provide sufficient cooperation. We decline to address these arguments because where,

as here, “an appellate court discerns that a district court has failed to make a finding because

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of an erroneous view of the law, the usual rule is that there should be a remand for further

proceedings to permit the trial court to make the missing findings.” Pullman-Standard v.

Swint,

(1982). And while we may make a finding of fact in the first

instance “where a thorough review of the record permits only one resolution of the factual

issue,” Patterson v. Greenwood Sch. Dist. 50,

(4th Cir. 1982), the

ambiguities in this record preclude us from resolving the factual issues at this juncture.

We therefore remand to the district court to determine in the first instance whether

the non-arrest “promise was made, relied upon and breached as alleged.” Carter,

. If the district court determines Officer Page did breach such an agreement, it should

also “determine whether specific performance” or “other equitable relief” is appropriate to

remedy that breach. Conner,

; see also Carrillo,

.

V.

For the foregoing reasons, we vacate the district court’s denial of Bailey’s motion

to suppress and the judgment of conviction and remand for proceedings consistent with

this opinion.

VACATED AND REMANDED

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