United States v. Campbell

110 F.4th 964

UNITED STATES of America, Plaintiff-Appellee, v. Joshua R. CAMPBELL, Defendant-Appellant.

No. 22-3283

United States Court of Appeals, Seventh Circuit

Argued January 9, 2024

Decided August 5, 2024

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:21-cr-00089-DRL-MGG-1 — Damon R. Leichty, Judge.

Eli M. Temkin, Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

Daniel J. Hillis, Attorney, Office of the Federal Public Defender, Springfield, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before Rovner, Hamilton, and Jackson-Akiwumi, Circuit Judges.

Rovner, Circuit Judge.

Joshua Campbell seeks to suppress evidence of child pornography found by his parole officers during an unannounced parole check. He argues that the incriminating statements that led to the evidence cannot be used against him, as both his parole agreement, on the one hand, and the officers' failure to issue Miranda warnings on the other, led to violations of his Fifth Amendment rights. The agreement did not threaten to penalize him for invoking his Fifth Amendment rights, however. Nor was he in custody at the time he revealed the incriminating information. Consequently, Campbell was required to affirmatively assert his rights pursuant to the Fifth Amendment to invoke the benefits of its protection. Because he did not, we must affirm the decision of the district court denying his motion to suppress the evidence.

I.

In 2011, an Indiana court sentenced Campbell to a 10-year prison term for child molestation. He was released on parole in 2015, after signing a "Conditional Parole Release Agreement." Among other requirements in that agreement, Campbell had to make every effort to remain employed. He was required to allow announced and unannounced home visits which could include searches of his residence and property if there was "reasonable cause to believe [he was] violating or [was] in imminent danger of violating a condition," of his parole agreement, and periodic unannounced examination of his computer equipment. R. 10-1 at 1, 10-2 at 2. The agreement prohibited his possession of "sexual devices or aids," or any computer or electronic device without his parole officer's permission. R. 10-2 at 2. The record is unclear as to whether his first parole officer permitted him to have a cellphone with internet access, but for purposes of this appeal, we adopt the district court's assumption that possession of his cellphone was not, in and of itself, a parole violation.

On April 24, 2019, Campbell's then-current parole officer, Ryan Wheeler, and his former parole officer, Craig Smith, accompanied by two other officers, conducted an unannounced home visit to check on Campbell's employment status. While the other two officers remained downstairs with Campbell's roommate (also a parolee), Smith and Wheeler went upstairs and found Campbell asleep and naked under a blanket. While he was still in bed, Wheeler asked Campbell if he had anything that would constitute a parole violation. Campbell confessed that he had a collection of sex toys in his nightstand. In response to the officers' inquiry as to whether he had anything else that violated the conditions of his parole, Campbell lifted the covers to reveal a computer. At some point during those early exchanges, the officers patted down Campbell's clothes, handed them to him, and asked him to get dressed. When Campbell unlocked his cellphone at Wheeler's request, Wheeler saw sexually explicit images of people he suspected were minors.

Campbell initially refused to allow the officers to access his locked computer, but he admitted that the computer contained pornography, qualifying that he was not sure of the ages of the subjects of the pornography. Smith informed Campbell that if Campbell did not reveal the password to the computer, Smith would obtain access by way of a warrant, and a few minutes later, Smith left the room to go to his patrol car to do just that. At that point, about 15-20 minutes had elapsed since the officers arrived.

With Smith gone, Wheeler placed Campbell in handcuffs to conduct a search of the room. In response to Wheeler's repeated requests for the computer password, Campbell eventually divulged it, and Wheeler found a folder containing explicit images of minors. Campbell was eventually arrested for possession of child pornography. Indiana law enforcement officers subsequently obtained search warrants for his electronic devices and accessed them without needing a password. At no point did the parole officers inform Campbell of his Miranda rights.

Campbell entered into a conditional guilty plea that preserved his ability to challenge the district court's decision to allow in the evidence obtained from the search of his room. The district court later sentenced him to the mandatory minimum —10 years' imprisonment. In this appeal, Campbell asserts that the State violated his Fifth Amendment rights in two ways: first, by way of a parole agreement that compelled his responses under threat of penalty, and second, when the officers failed to warn him of his Fifth Amendment right to remain silent in the face of their custodial interrogation. We explore each of these arguments in turn, after first setting out the parameters of Campbell's Fifth Amendment rights as a parolee.

II.

Despite significant restrictions on their liberty, those who are incarcerated, on parole, or on probation do not relinquish all constitutional liberties, and retain, in most instances, their Fifth Amendment protection from being compelled to give incriminating statements. Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984). See U.S. Const. amend. V ("No person ... shall be compelled in any criminal case to be a witness against himself."). The Fifth Amendment "not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973). Our cases speak of the right as being one that is not "self-executing." That is, a person who wishes to be cloaked with the protections of the Fifth Amendment ordinarily must assert the privilege. Murphy, 465 U.S. at 429, 104 S.Ct. 1136. And if the questionee opts to answer without asserting rights under the Fifth Amendment, a court will consider those answers to have been freely and voluntarily given. Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Our cases recognize that this assumption must give way, however, in situations in which the subject of an interrogation will feel so compelled to answer that we assume she has lost the "'free choice to admit, to deny, or to refuse to answer.'" Murphy, 465 U.S. at 429, 104 S.Ct. 1136 (quoting Garner v. United States, 424 U.S. 648, 657, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976)). One of those self-executing situations occurs when the government imposes penalties on the questionee for electing to exercise her Fifth Amendment rights. The second occurs when a suspect is subject to questioning while in police custody.

Campbell claims both circumstances existed at the time he revealed incriminating information to the parole officers. If he is correct, then any statements he made were inadmissible in the subsequent criminal proceedings that the state initiated against him for possession of the child pornography the officers found during the parole check. Murphy, 465 U.S. at 426, 104 S.Ct. 1136. And the discovered pornography would be excludable as derivative of the unconstitutionally obtained incriminating statements. Murray v. United States, 487 U.S. 533, 536-37, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). The district court concluded otherwise, however, and denied Campbell's motion to suppress the statements he made to the officers. We review de novo the district court's legal conclusions—such as whether the parole agreement threatened to penalize Campbell for asserting his rights and whether Campbell was in custody—and its factual findings for clear error. United States v. Cox, 54 F.4th 502, 511 (7th Cir. 2022).

A. Threats of a penalty

Campbell never affirmatively asserted his Fifth Amendment right to refuse to answer questions. The right against self-incrimination becomes self-executing, however—that is, it need not be affirmatively asserted—when the government threatens to penalize a questionee for asserting the right. Murphy, 465 U.S. at 434, 104 S.Ct. 1136; see also Lefkowitz v. Cunningham, 431 U.S. 801, 805, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977) ("[A] State may not impose substantial penalties because a witness elects to exercise his Fifth Amendment right not to give incriminating testimony against himself.").

Campbell points to two provisions in the parole agreement that he says underlie the Fifth Amendment violation. First, under the terms of the parole agreement, Campbell "agreed to report to [his] supervising officer as instructed and to respond to any and all communications from any authorized employee of the Department of Correction." R. 10-1 (emphasis ours). Second, he acknowledged "that any acts of omissions in violation of the terms of parole [would] subject [him] to being taken into immediate custody ... and initiation of proceedings for revocation of [his] parole." R. 10-1.¹ That language, he argues, threatens a penalty—revocation of his parole—for refusing to respond to questions. The Supreme Court, however, has distinguished between threatening a penalty for refusing to respond, and threatening a penalty for invoking Fifth Amendment protections. Requiring a parolee to appear and report to a parole officer...