United States v. McGill

8 F.4th 617

UNITED STATES of America, Plaintiff-Appellee,

v.Mark MCGILL, Defendant-Appellant.

No. 19-2636

United States Court of Appeals, Seventh Circuit.

Argued March 30, 2021

Decided August 10, 2021

Richard Michael Rothblatt, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Heather L. Winslow, Attorney, Law Office of Heather L. Winslow, Chicago, IL, for Defendant-Appellant.

Before Kanne, Brennan, and Scudder, Circuit Judges.

Kanne, Circuit Judge.

During a visit to Mark McGill's home, McGill's probation officer seized a cell phone without warrant to do so. Law enforcement later discovered thousands of images of child pornography on the phone and charged McGill accordingly. McGill, arguing that his phone had been unlawfully seized, moved to suppress the phone and all evidence obtained from it.

The district court denied this motion on a number of independent grounds, concluding that McGill's cell phone was lawfully seized or otherwise need not be suppressed. We agree with this conclusion and thus affirm the district court's decision denying McGill's motion to suppress.

I. BACKGROUND

In a prior case years ago, Mark McGill was convicted of possessing child pornography and sentenced to sixty-five months’ imprisonment. In November 2014, he completed his prison sentence and began serving seven years of supervised release.

The conditions of McGill's supervised release prohibited him from "commit[ting] another federal, state, or local crime" and required him to "permit a probation officer to visit him at any time at home or elsewhere and ... [to] permit confiscation of any contraband observed in plain view of the probation officer." He also agreed to "comply with the requirements of the Computer and Internet Monitoring Program," under which he, among other things, "consent[ed] to the installation of computer monitoring software on all identified computers to which [he] has access." The conditions further provided that he "shall not remove, tamper with, reverse engineer, or in any way circumvent the software."

McGill has a history of violating the terms of his supervised release. In October 2015, his probation officer discovered that McGill had viewed sexually stimulating videos and images of minors on his monitored cell phone. McGill admitted to the violation, and the district court added a condition of supervised release that prohibited McGill from "possess[ing] or hav[ing] under his control any pornographic, sexually oriented, or sexually stimulating materials, including visual, auditory, telephonic, or electronic media, computer program, or services." McGill later failed two polygraph tests, administered as part of his sex offender treatment program, which detected deception when he was asked whether he had sexual contact with a minor.

The events underlying this appeal occurred on February 3, 2017, when Probation Officer Hence Williams conducted a home visit at McGill's residence. Officer Williams had substantial experience, having worked as a probation officer for twelve years and specialized in supervising sex offenders for five years. He had been supervising McGill for about nine months before this home visit.

When Officer Williams entered McGill's bedroom, he observed two cell phones—a black cell phone that the officer recognized as McGill's monitored phone and an unknown white cell phone in a black case on a table by the bed.

According to Officer Williams, McGill moved around the room in an attempt to block the officer's view of the second cell phone. When Officer Williams asked about the phone, McGill told him that it was an old cell phone that no longer worked and that he only used it to charge a spare battery for the monitored phone. McGill removed the battery to show that it fit into the other phone. Officer Williams did not believe that explanation. At Officer Williams's request, McGill replaced the battery and handed the white phone to him.

Officer Williams claims that McGill's demeanor changed when he asked about the phone. He became "deflated" and "sad" and said that he "would go back to prison for a long time if the judge found out what was on th[e] phone." Officer Williams asked if there was child pornography on the phone, and McGill said, "there is." For his part, McGill denies that he made any admissions about what was on the phone or that he acted suspiciously.

McGill asserts that Officer Williams then said, "I'm taking the phone," and ended the encounter. Officer Williams, on the other hand, claims that he was able to power on the phone, saw that the background photo was of a young boy's face, and then powered it off. In either case, Officer Williams took the phone with him and turned it over to the FBI, who obtained a search warrant. The subsequent search of the phone revealed thousands of images of child pornography.

McGill was again charged with possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). He filed a motion to suppress the evidence recovered from the unmonitored phone as the fruit of an unlawful seizure. After an evidentiary hearing at which Officer Williams testified and McGill did not (he relied merely on statements in an affidavit), the district court denied McGill's motion for four reasons: (1) the phone was contraband in Officer Williams's plain view; (2) the seizure was supported by Officer Williams's reasonable suspicion that the phone contained evidence of a supervised-release violation or crime; (3) the discovery of the evidence was inevitable; and (4) Officer Williams acted in good faith when he seized the phone.

McGill then entered a conditional plea of guilty which reserved his right to appeal the district court's denial of his motion to suppress. Fed. R. Crim. P. 11(a)(2). The district court accepted the plea and sentenced McGill to 168 months’ imprisonment and ten years’ supervised release. McGill timely appealed.

II. ANALYSIS

When reviewing a district court's decision denying a motion to suppress evidence, we review the court's legal conclusions de novo and its factual findings for clear error. United States v. Mojica , 863 F.3d 727, 731 (7th Cir. 2017). On clear-error review, we reverse the court's findings only if our "review of the all the evidence leaves us with the definite and firm conviction that a mistake has been made." United States v. Love , 706 F.3d 832, 842 (7th Cir. 2013).

The district court's analysis in this case was spot on. The evidence from McGill's cell phone need not be suppressed for two independent reasons. First, the seizure of McGill's cell phone was lawful. Second, even if the phone was unlawfully seized, the evidence may still be admitted under an exception to the exclusionary rule.

A. The Seizure of McGill's Cell Phone Did Not Violate the Fourth Amendment

Generally, "searches and seizures inside a home without a warrant are presumptively unreasonable" under the Fourth Amendment. Kentucky v. King , 563 U.S. 452, 459, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (quoting Brigham City v. Stuart , 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ). But "the warrant requirement is subject to certain reasonable exceptions." Id. (citing Brigham City , 547 U.S. at 403, 126 S.Ct. 1943 ).

One such exception is known as the plain-view doctrine, which permits officers in certain situations to seize property without a warrant when the property's incriminating nature is "immediately apparent." See United States v. Contreras, 820 F.3d 255, 262 (7th Cir. 2016). Another exception permits law enforcement to seize property in a probationer's home so long as the officer has reasonable suspicion that the property is evidence of a crime. See United States v. Knights , 534 U.S. 112, 120, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001).

In this case, there is no question that Officer Williams "seized" McGill's phone within the meaning of the Fourth Amendment and that he had no warrant to do so. See United States v. Jacobsen , 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) ("A ‘seizure’ of property occurs when there is some meaningful interference with an individual's possessory interests in that property."). Nor does anyone question that "a probationer's home, like anyone else's, is protected by the Fourth Amendment's requirement that searches [and seizures] be reasonable." United States v. Caya , 956 F.3d 498, 502 (7th Cir. 2020) (quoting Griffin v. Wisconsin , 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) ).

Thus, the debate here is whether Officer William's warrantless seizure fell into an exception to the warrant requirement. We find that it did.

1. Plain View

Government officials may seize property without a warrant under the plain-view doctrine if (1) the officer is lawfully present at the place of the seizure, (2) the seized object is in the plain view of the officer, and (3) the incriminating nature of the object is immediately apparent. United States v. Raney , 342 F.3d 551, 558–59 (7th Cir. 2003) (citing United States v. Bruce , 109 F.3d 323, 328–29 (7th Cir. 1997) ).

There is no dispute that the first two elements are satisfied here—Officer Williams was lawfully present in McGill's house, and the unmonitored phone was in plain view. The only issue, then, is whether the phone's incriminating nature was immediately apparent.

The incriminating nature of an item is "immediately apparent" if an officer has "probable cause to believe that the item is contraband or otherwise linked to criminal activity." United States v. Cellitti , 387 F.3d 618, 624 (7th Cir. 2004) (citing Bruce , 109 F.3d at 328 ). With a probationer like McGill, that criminal activity can include a violation of his conditions of supervised release. See United States v. Herndon , 501 F.3d 683, 689 (6th Cir. 2007) ; 18 U.S.C. § 3583(h) (allowing a court to revoke a defendant's term of supervised release and impose a term of imprisonment). Even "an ordinarily innocuous object" may be seized under this doctrine "when the context of an...