Lickers v. United States

98 F.4th 847

Jacob D. LICKERS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 22-1179

United States Court of Appeals, Seventh Circuit

Argued January 8, 2024

Decided April 12, 2024

Appeal from the United States District Court for the Central District of Illinois. No. 4:20-cv-04164-SLD — Sara Darrow, Chief Judge.

Christopher Keleher, Attorney, Keleher Appellate Law Group, LLC, Chicago, IL, for Petitioner-Appellant.

Katherine Virginia Boyle, Attorney, Office of the United States Attorney, Urbana, IL, W. Scott Simpson, Attorney, Office of the United States Attorney, Springfield, IL, for Respondent-Appellee.

Before Wood, Scudder, and St. Eve, Circuit Judges.

Scudder, Circuit Judge.

Five years ago we affirmed the conviction of Jacob Lickers for transporting and possessing child pornography. He has since moved to vacate his convictions under 28 U.S.C. § 2255, alleging that his trial and appellate counsel rendered ineffective assistance in connection with an unsuccessful motion to suppress. The district court denied relief, and we affirm. Explaining why requires us to unpack a complex sequence of events involving parallel state and federal investigations, two search warrant applications, two criminal prosecutions, two suppression rulings, and a direct criminal appeal.

I

A

In September 2015, undercover police officers Jimmy McVey and Ryan Maricle traveled to a public park in Monmouth, Illinois to meet a confidential informant. When they arrived, they saw something strange. A blue car sat parked on the shoulder of a road running next to the park, half on the road and half in the grass. Inside, the car's lone occupant, Jacob Lickers, "appeared excited, repeatedly looking toward the passenger seat, down at his lap, and then at a family with young children on a nearby playground." See United States v. Lickers, 928 F.3d 609, 613 (7th Cir. 2019). From afar Officers McVey and Maricle thought that Lickers might be a drug addict because his jerky movements resembled the "tweaking" that sometimes accompanies withdrawal. Id.

Upon approaching the vehicle and looking inside, the officers saw Lickers sitting in the driver's seat with a red dish towel draped over his lap. His cellphone rested on the passenger seat. At first Officers McVey and Maricle—who were dressed in plain clothes for their undercover assignment—impersonated drug dealers and asked Lickers if he was looking for pills. When Lickers said no, McVey and Maricle changed course, disclosed that they were police, and asked Lickers for identification. Lickers obliged.

By this point, Lickers appeared nervous. He was "breathing heavily" and furtively attempting to "knock his cellphone off the seat to the floor of the car." Id. All the while—and despite "repeated requests to keep his hands visible"—Lickers kept his hands hidden beneath the towel. Id. Fearing the presence of a weapon, Officer Maricle ordered Lickers to remove the towel from his lap. Lickers complied, and the reason for his panicky behavior became clear—the towel was covering his exposed genitals. When Officer McVey demanded an explanation, Lickers divulged that he was looking at Craigslist and began to admit that he was "self-pleasuring" before catching himself and insisting that he was urinating into a cup. Id.

Suspecting Lickers of public masturbation, Officer McVey ordered Lickers to get dressed and exit the car. When Lickers opened the door, McVey smelled marijuana emanating from within. Lickers declined the officers' request to search the car, so they radioed for a K9 unit. The unit arrived about half an hour later and a drug dog alerted to the presence of marijuana near the passenger's side door. A search of the car uncovered about an ounce of marijuana. When Lickers admitted that the marijuana was his, he was placed under arrest for drug possession.

A more thorough inventory search resulted in the recovery of Lickers's cell phone, a laptop computer, and a digital camera from within the car. Officer McVey obtained a state court warrant later that day authorizing the forensic examination of those devices. Lickers's phone and computer both contained child pornography.

B

With this evidence in hand, state prosecutors charged Lickers in Warren County Circuit Court with possessing child pornography and marijuana in violation of Illinois law. Lickers retained Daniel Dalton to defend him, whose first step was to file a motion to suppress that challenged the constitutionality of Officer McVey and Maricle's actions in the park. Dalton's principal contention was that the officers lacked reasonable suspicion to believe that Lickers had committed a crime when they initially seized him. Alternatively, Dalton argued that too much time had elapsed from when Officer McVey first smelled marijuana to when the K9 unit arrived on scene. See United States v. Robinson, 30 F.3d 774, 784 (7th Cir. 1994) (explaining that investigatory stops must be reasonable in both "scope and duration").

Dalton's strategy proved sound. The state court agreed with both arguments and suppressed all "physical evidence seized" during the stop, along with any statements Lickers made to Officers McVey and Maricle. The prosecution then dismissed all charges, bringing the state case to a swift end.

C

Not keen to let Lickers go unpunished, state officials referred the case for potential federal prosecution. In February 2016, FBI Special Agent Steven Telisak took possession of Lickers's phone and laptop to conduct an additional forensic examination. Although he believed that "the FBI might already have all the necessary authority" to conduct this second search, given that the devices had already been searched by state authorities, he applied in federal court for a fresh warrant to ensure compliance with the Fourth Amendment.

Agent Telisak's supporting affidavit drew heavily on, and even attached a courtesy copy of, the affidavit Officer McVey filed in support of his state warrant application months before. In one regard, however, Telisak went further than McVey. Aware of the results of the state search, Telisak informed the federal judge that Lickers's devices had already been searched and were found to contain child pornography. At no point, though, did Agent Telisak caveat that the state court had suppressed that evidence based on a finding that Lickers's arrest was unconstitutional.

The district court issued the warrant, and federal investigators discovered a litany of incriminating messages Lickers had sent using the Kik messenger application. Those messages were laden with requests for child pornography. In one, Lickers shared a video with another Kik user portraying the sexual abuse of an infant child.

D

In time, a federal grand jury indicted Lickers on counts of transporting and possessing child pornography in violation of 18 U.S.C. § 2252A(a)(1) and § 2252A(a)(5)(B). The federal prosecution proceeded much like the state one had. Lickers again hired Daniel Dalton, who again filed a motion to suppress contending that the stop in the park violated the Fourth Amendment. Unlike before, however, Dalton also attacked the state search warrant (not the federal warrant as one might expect), which he contended "was so lacking in probable cause" that the state investigators could not reasonably rely on it.

The district court held an evidentiary hearing on the motion, at which Officer McVey testified about the events leading to Lickers's arrest and the search of his phone and laptop. Although Dalton questioned McVey about a range of topics, he did not inquire about the circumstances surrounding the referral of the case to the FBI or about what, if anything, Agent Telisak knew about the state court suppression ruling at the time he swore out his federal search warrant affidavit. The district court denied the motion, finding nothing unconstitutional about Lickers's arrest and no defect in the state search warrant requiring suppression.

Lickers ultimately elected to plead guilty, reserving the right to appeal the district court's denial of his motion to suppress. In the end, the district court sentenced Lickers to concurrent terms of 132 months' imprisonment on each count, with a lifetime term of supervised release to follow.

E

We appointed Mark Rosen to represent Lickers on direct appeal. Renewing the arguments Dalton had presented to the district court, Rosen urged us to find two Fourth Amendment violations—that the arrest of Lickers in the park was unlawful and that the state court search warrant lacked probable cause.

We took a different route. We agreed with the district court "that no aspect of the police's encounter with Lickers in Monmouth Park offended the Fourth Amendment." Lickers, 928 F.3d at 617. But we found ourselves puzzled by the challenge to the state search warrant. After all, it was "the federal search"—not the state search authorized by the state warrant—that "yielded the evidence that resulted in the federal prosecution and conviction Lickers . . . challenge[d] on appeal." Id. at 619. A successful attack on the state warrant could therefore benefit Lickers only to the extent it cast doubt on the federal warrant as well.

The easiest path forward, we concluded, was to construe Lickers's challenge to the state warrant as part and parcel of a larger attack on the federal warrant, the logic being that any deficiencies in Officer McVey's state court affidavit would likewise undermine Agent Telisak's federal court affidavit given the heavy reliance the latter placed on the former. We reasoned that if the state warrant lacked probable cause, then Agent Telisak's references to the child pornography on Lickers's devices—which was found only by executing the state warrant—could not be considered in evaluating the validity of the federal warrant. See Lickers, 928 F.3d at 618.

Having framed the question presented on direct appeal in this way, we held that both warrants had been issued without probable cause, as neither warrant...