United States v. Jacob Lickers
928 F.3d 609
7th Cir.2019Background
- Jacob Lickers was observed sitting in a parked car near a playground; officers noticed repeated "tweaking"-type movements, a towel over his lap, and focus on children while he looked at his phone.
- Undercover narcotics officers approached, identified themselves, and asked for Lickers’ driver’s license; Lickers then became nervous, tried to toss his phone, and kept his hands under the towel.
- Officers ordered him to remove the towel, exposing his genitals; they smelled marijuana when he opened the car door, requested a K9 unit, and the dog alerted to drugs. Officers found marijuana and arrested Lickers; an inventory search seized his phone, laptop, and camera.
- A state court issued and executed a warrant on those devices; state investigators discovered child pornography, but a state trial court later suppressed evidence based on an earlier unlawful detention and dismissed state charges.
- The FBI later obtained a federal warrant (attaching the state affidavit and referencing the child-pornography found in the state search) and found additional child-pornography images; Lickers was federally indicted, moved to suppress, and was denied relief. He pleaded guilty, reserved appeal, and was sentenced to 132 months’ imprisonment and lifetime supervised release.
Issues
| Issue | Lickers’ Argument | Government’s Argument | Held |
|---|---|---|---|
| Whether initial officer approach and request for license was a Fourth Amendment seizure | Officers’ approach and ID request amounted to an unlawful detention; all subsequent evidence is fruit of that seizure | The encounter was consensual; officers developed reasonable suspicion from Lickers’ conduct that justified detention | Court held approach and license request were consensual; subsequent conduct gave rise to reasonable suspicion and lawful seizure |
| Whether ordering Lickers out of car, K9 sniff, and vehicle search were unlawful | Detention while awaiting K9 and subsequent searches lacked reasonable suspicion/probable cause | Smell of marijuana plus evasive behavior and exposed indecency supplied probable cause; K9 alert and inventory search were lawful | Court held odor of marijuana justified K9 call; dog alert and found marijuana supported inventory search and seizure of devices |
| Whether the state and federal search-warrant affidavits established probable cause for devices | State affidavit was too speculative to establish probable cause; federal affidavit was tainted by reliance on state evidence | Federal affidavit included explicit identification of child-pornography from the state search and thus established probable cause | Court found both warrants lacked probable cause if federal affidavit’s reference to the already-seized child porn is disregarded |
| Whether evidence from the federal search must be suppressed under Leon good-faith exception | Suppression appropriate because the prior state process was defective and the federal warrant relied on tainted evidence | Federal agents acted in objective good faith in seeking a new warrant; Leon applies to admit evidence | Court applied Leon and upheld the federal search evidence as admissible under good-faith exception |
| Whether lifetime supervised release was procedurally or substantively unreasonable | Lickers argued the life term was excessive/erroneous | Government relied on §3553(a) factors: risk of recidivism, treatment needs, guideline range; defense raised no objection at sentencing | Court held Lickers waived/forfeited procedural challenge; lifetime supervision was within the Guidelines and reasonable |
Key Cases Cited
- Terry v. Ohio, 392 U.S. 1 (1968) (establishes standard for investigative stops and reasonable suspicion)
- INS v. Delgado, 466 U.S. 210 (1984) (asking for identification does not by itself constitute a Fourth Amendment seizure)
- Florida v. Bostick, 501 U.S. 429 (1991) (consensual encounters and limits on coercive police conduct)
- United States v. Douglass, 467 F.3d 621 (7th Cir. 2006) (no seizure when a person remains free to decline questions and leave)
- United States v. Harris, 568 U.S. 237 (2013) (K9 alerts can provide probable cause to search)
- United States v. Leon, 468 U.S. 897 (1984) (good-faith exception to the exclusionary rule)
- Gamble v. United States, 139 S. Ct. 1960 (2019) (dual-sovereignty doctrine: federal prosecution permitted after state proceedings)
- United States v. McClain, 444 F.3d 556 (6th Cir. 2005) (discusses Leon when affidavits are tainted by prior unconstitutional searches)
- Owens v. United States, 387 F.3d 607 (7th Cir. 2004) (rare instance where Leon did not apply to a barebones affidavit)