United States v. Conrad

673 F.3d 728

UNITED STATES of America, Plaintiff–Appellee,

v.David CONRAD, Defendant–Appellant.

No. 10–2001.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 21, 2011.Decided March 14, 2012.

Joseph H. Thompson (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Beau B. Brindley (argued), Attorney, Law Offices of Beau B. Brindley, Chicago, IL, for Defendant–Appellant.

Before BAUER and TINDER, Circuit Judges, and MAGNUS–STINSON, District Judge.^*MAGNUS–STINSON, District Judge.

If ordered, suppression of unconstitutionally obtained evidence can permit “[t]he criminal ... to go free because the constable has blundered.” People v. Defore, 242 N.Y. 13, 150 N.E. 585, 587 (1926) (Cardozo, J.). Given a blunder that the Government does not dispute here, Defendant David Conrad argues that the district court should have suppressed all the evidence of child pornography that was recovered following an illegal entry into his father's home.¹ As we explain below, however, the district court correctly denied exclusion of evidence obtained from Mr. Conrad's own home—an hour's drive away from the home that had been illegally entered and which Mr. Conrad authorized the Government to search. That evidence was sufficiently attenuated from the original illegal entry so as to have been purged of the unconstitutional taint. With that evidence, he was convicted and, despite his arguments to the contrary, correctly sentenced in accordance with the Sentencing Guidelines in effect at the time of his conviction, rather than at the time of his offenses.

I.Background

Before granting in part and denying in part Mr. Conrad's motion to suppress evidence, the district court held an evidentiary hearing. See United States v. Conrad, 578 F.Supp.2d 1016 (N.D.Ill.2008). Because the parties disavow any challenge to the accuracy of those factual findings, the district court's findings presented below will govern on appeal.

A. The Geneva Home

While the FBI was executing a search warrant for child pornography at a business owned by Mr. Conrad's father, federal and state law enforcement were staked outside the father's house, in Geneva, Illinois (the “Geneva Home”), looking for Mr. Conrad. For simplicity, we will refer to all law enforcement officials as “agents.” Despite having received information from the father, who was away on vacation at the time, that Mr. Conrad was likely at the father's home and despite the presence of Mr. Conrad's car in the driveway, periodic knocks on the door went unanswered.

Eventually, without either a warrant or permission from Mr. Conrad's father and with the intent to further their investigation, agents went around the back of the Geneva Home. After knocking on the patio door on the lower level, they climbed a set of stairs and entered onto the deck that abutted the main level of the home. By either standing on or leaning across the deck's elevated railing, they peered into a bay window and saw Mr. Conrad asleep on the couch, with a pill bottle nearby. An FBI agent telephoned Mr. Conrad's father and told the father, incorrectly, that the pill bottle was located on a coffee table next to Mr. Conrad, when it was actually in the kitchen. The agent also said that Mr. Conrad was lying still on the couch and that the agents were concerned about his health. The district court accepted that the concerns were “credibl[e],” though the concerns were not sufficient to give rise to legal “exigency” under the circumstances. Conrad, 578 F.Supp.2d at 1039. In any event, after hearing that information, Mr. Conrad's father told the agents the location of the spare key and authorized them to enter the Geneva Home to check on Mr. Conrad.

Upon entering the Geneva Home, the agents discovered Mr. Conrad in good health; he had simply been asleep on the couch after having taken a prescription narcotic. Once Mr. Conrad had been roused from his sleep, the agents began questioning him about child pornography. He admitted to having child pornography on a laptop in his car, which he voluntarily provided to them. He also “volunteered” that he had additional evidence of child pornography in his apartment in Chicago (the “Chicago Apartment”), Conrad, 578 F.Supp.2d at 1037. He willingly agreed to provide it to them, even though the agents told him that he was not in custody and that he did not have to take them to the Chicago Apartment.

B. The Drive to the Chicago Apartment

Approximately fifteen minutes after having first entered the Geneva Home, and without having searched it, the agents left the Geneva Home for the Chicago Apartment. Mr. Conrad rode with two agents, sitting in the backseat, uncuffed. During the approximately one-hour drive to the Chicago Apartment, Mr. Conrad smoked a cigarette and had free use of his cell phone, which he used to call his father. His father told him not to talk to the agents.² Mr. Conrad replied to his father: “It's no problem.”

C. The Chicago Apartment

The agents and Mr. Conrad arrived at the Chicago Apartment approximately two hours after the agents had stepped foot onto the curtilage of the Geneva Home without permission. After the agents and Mr. Conrad entered the Chicago Apartment, the agents read Mr. Conrad his Miranda rights, even though he was not in custody. He fed his cat, cleaned the litter box, and showed off some of his equipment for mixing music. About twenty minutes later, once the agents were ready to begin questioning him, Mr. Conrad signed an advice-of-rights form.

Despite Mr. Conrad's initial claim to the contrary, the district court found that Mr. Conrad never requested an attorney during his questioning, knowingly and voluntarily waiving his right to counsel and to remain silent. He admitted that he had operated a file server for child pornography, that he had child pornography on his computer, and that he had transferred child pornography from his laptop onto an external hard drive. He also confirmed additional incriminating information that the agents had developed during their investigation.

Mr. Conrad signed two other consent forms, after having been advised of his right to refuse to permit the search. In one, he gave written consent for the agents to search his apartment. In another, he gave specific written consent for the agents to search two laptops and an external hard drive, and gave oral consent to search another computer. The agents took some of those items with them when they left. They left Mr. Conrad behind; they did not arrest him that day.

* * *

After finding the facts set forth above, the district court held that the agents' warrantless entry onto the back deck violated Mr. Conrad's rights under Fourth Amendment, given that he had a reasonable expectation of privacy in his father's home, including the home's curtilage. As a remedy, the district court suppressed all evidence and statements obtained at the Geneva Home and from the car ride to the Chicago Apartment. It did not, however, suppress the evidence and statements that the agents obtained at the Chicago Apartment, finding that they were too attenuated from the constitutional violation to merit suppression.

A jury ultimately convicted Mr. Conrad of eight counts relating to child pornography. After considering the Sentencing Guidelines in effect on the date of sentencing, the district court sentenced Mr. Conrad to 198 months' imprisonment, rather than the guideline range of 360 months to life.

II.Discussion

Mr. Conrad raises two issues on appeal. In the first, he argues that the district court erred when it refused to suppress the evidence and statements obtained in the Chicago Apartment. Second, he asks us to overrule our decision in United States v. Demaree, 459 F.3d 791 (7th Cir.2006), by holding that the Sentencing Guidelines in effect at the time of his offenses, rather than at the time of his conviction, should apply.

A. The Motion to Suppress

Although Mr. Conrad raised other potential constitutional violations below in his quest for exclusion of the evidence from the Chicago Apartment, he has abandoned the others in favor of the only violation that the district court found: the violation of the Fourth Amendment with respect to the curtilage of the Geneva Home. He argues that the district court erred in applying the attenuation exception to the evidence from the Chicago Apartment; he wants that evidence excluded as fruit of the poisonous tree, too.

We review the district court's application of the law to the uncontested facts de novo. United States v. Ienco, 182 F.3d 517, 526 (7th Cir.1999) (citation omitted).

The Supreme Court has long recognized the need to exclude evidence obtained in violation of the Constitution's protections. E.g., Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Indeed, unless one of various exceptions applies, exclusion will run not only to the unconstitutionally obtained evidence, but also to the fruits of that evidence—the so-called fruit of the poisonous tree. See, e.g., Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920) ( “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.”) (Holmes, J.). The exclusionary rule thus seeks to discourage official misconduct by removing the incentive to obtain evidence in violation of the Constitution. United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) (“[T]he rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” (footnote omitted)). Where exclusion will not “efficaciously” promote those “remedial objectives,” no exclusion will occur. Id.

“The Supreme Court developed an exception to the exclusionary rule for ca...