United States v. Conrad

TINDER, Before BAUER Circuit MAGNUS-STINSON, Judges, and Judge.* District MAGNUS-STINSON, Judge. District ordered, If suppression unconstitu- permit tionally obtained evidence can go ... criminal free because the “[t]he People constable has blundered.” De- fore, 242 N.Y. 150 N.E. J.).

(Cardozo, Given blunder here, dispute Government Defen- does argues dant David Conrad that the district suppressed all the court should have evi- pornography that was recov- dence child into following illegal entry ered * Indiana, Magnus-Stinson, Court for the Southern District of The Honorable Jane E. Dis- sitting by designation. Judge trict United States District below, explain despite presence As we how- home and

father’s home.1 father’s ever, correctly driveway, periodic court denied Mr. Conrad’s car in the the district obtained from Mr. knocks on the door exclusion of evidence went unanswered. away Conrad’s own home—an hour’s drive Eventually, either or without a warrant illegally that had en- from the home been permission from Mr. Conrad’s father and and Mr. Conrad authorized tered which with the intent to further their investiga- to the Government search. That evidence tion, agents went around the back of the sufficiently origi- was attenuated from Home. knocking patio Geneva After on the entry purged nal so as to have been illegal level, they on the door lower climbed set a With that of the unconstitutional taint. and onto stairs entered the deck that evidence, and, despite he was convicted his By abutted the main level the home. arguments contrary, correctly sen- to the standing leaning either on or across the Sentencing tenced in accordance with the railing, they peered deck’s elevated a into in effect at the time of his Guidelines bay window and saw Mr. Conrad on asleep conviction, than at rather his couch, with a pill nearby. bottle An offenses. agent FBI Mr. telephoned Conrad’s father father, incorrectly, and told the that I. pill on bottle was located a coffee table Background Conrad, to Mr. actually next it was when agent in the kitchen. The also said that in granting part denying Before in Mr. Conrad was still lying on the couch part Mr. Conrad’s motion to evi agents and that the were concerned about dence, court the district held an evidentia his health. The court accepted district Conrad) ry hearing. See United States v. “credible],” though that the concerns were (N.D.Ill.2008). 578 F.Supp.2d 1016 Be the concerns were not sufficient give to parties any challenge cause the disavow to legal rise to “exigency” under the circum- the accuracy findings, of those factual Conrad, stances. F.Supp.2d at 1039. district findings presented court’s below event, hearing after that informa- will govern appeal. on tion, Mr. Conrad’s told father A. The Home spare key Geneva the location of the and author- ized them to enter the Geneva to Home While the FBI was executing search check on Mr. Conrad. warrant for child pornography at busi- father, ness owned Mr. Conrad’s Upon entering Home, feder- the Geneva al and state law enforcement were staked discovered Mr. Conrad in good house, Geneva, health; outside the father’s in Illi- he had been simply asleep on the (the Home”), looking nois “Geneva for Mr. after having couch a prescription taken Conrad. simplicity, For refer to we will narcotic. Once Mr. Conrad had been all law “agents.” enforcement officials as roused from his sleep, agents began Despite having received from questioning information him child pornography. about father, away who was on vacation at He admitted to child having pornography time, likely car, that Mr. Conrad at the laptop voluntarily on a in his which 1. The purposes ap- Government advises that while has tion occurred. For the of this challenge chosen not to the district court’s peal, deciding we will assume without that finding that a constitutional violation oc- correctly district court found a constitu- curred, not it does that mean concede we tional violation. would, asked, ultimately agree if that a viola- Mr. claim to Despite He “volunteered” Conrad’s initial to them. also provided contrary, child the district found that additional evidence of court Mr. that he had apartment Chicago requested attorney never his dur- pornography (the Conrad, 578 “Chicago Apartment”), questioning, knowingly and volun- waiving willingly agreed tarily right 1037. He to counsel F.Supp.2d at them, He though even remain silent. admitted that he had provide it to custody and operated pornogra- told him that he was a file server for child to the had phy, pornography not have take them' that he child on his he did computer, and he had Apartment. transferred pornography laptop

child from his onto an external hard drive. He also confirmed Chicago Apart- B. to the The Drive incriminating additional information that ment agents during the had their in- developed fifteen after hav- Approximately minutes vestigation. Home, and the Geneva first entered signed Mr. Conrad two other consent it, agents the left having without searched forms, having after been advised of his Chicago Apart- for the the Geneva Home permit refuse to right to the search. In agents, rode two ment. Mr. Conrad with one, gave agents he written consent for the backseat, During sitting in the uncuffed. another, apartment. his to search to the approximately the one-hour drive gave specific consent for written the Mr. Chicago Apartment, Conrad smoked agents laptops to search two and an exter- had free his cell cigarette and use of drive, nal hard oral consent gave phone, which he used call his father. computer. agents another The search him not the His father told to talk to some of those with them took items when agents.2 replied Mr. Conrad to his father: behind; they They left left. Mr. Conrad “It’s problem.” no they day. not arrest him that did Chicago Apartment C. The above, finding and Mr. arrived at the forth agents After facts set agents’ two Chicago Apartment approximately the district court held' that the agents stepped entry

hours foot warrantless the back deck after had onto vio- curtilage onto Home Mr. under rights the Geneva lated Conrad’s Fourth Amendment, agents given After the he had a permission. without that reason- expectation Mr. Chicago Apart- privacy Conrad entered able his father’s ment, home, including curtilage. read Mr. Conrad home’s As rights, though remedy, suppressed even he was not the district court all Miranda cat, He fed his cleaned the litter evidence and obtained at the custody. statements box, equipment off some Home and from the car ride to and showed Geneva n not, however, twenty Apartment. About minutes mixing music. It did later, ready begin and statements once the evidence that were him, Chicago Apart- questioning signed Mr. Conrad obtained at the ment, advice-of-rights finding they form. that were too attenuat- 12], stipu- Opening address opening Mr. Conrad's brief Br. at we do not Because attempted argument posthearing lates he "has not to contest he raised in a letter erroneously underlying findings gave rise of the' that the district court determined ruling,” [Appellant court's the contents of the call. the district ed from the constitutional violation to mer- violation of the protections. Constitution’s suppression. States, E.g., Weeks v. United 232 U.S. (1914). 34 S.Ct. 58 L.Ed. 652 jury ultimately A convicted Mr. Conrad Indeed, unless one of exceptions various relating of eight pornogra- counts to child applies, only exclusion will run not to the phy. considering After the Sentencing unconstitutionally evidence, obtained but Guidelines effect on the date of sentenc- also to the fruits of that evidence—the so- ing, the district court sentenced Mr. Con- See, called fruit of poisonous e.g., tree. rad to months’ imprisonment, rather States, Silverthome Lumber Co. v. United guideline range than the of 360 months to 385, 392, 64 L.Ed. life. (1920) (“The provision essence of a forbidding acquisition of evidence in a II. way certain is that not merely evidence so Discussion acquired shall not be used before the Mr. Conrad raises appeal. two issues on all.”) Court but that it shall not be used first, In argues the that the district J.). (Holmes, The exclusionary rule thus court erred when it refused to seeks to discourage official misconduct the evidence and statements obtained in removing the incentive to obtain evidence Second, Chicago Apartment. the he asks in violation of the Constitution. United us to overrule our decision United Calandra, States v. 338, 348, 414 U.S. 94 Demaree, (7th States v. 459 F.3d 791 Cir. 613, (1974) (“[T]he S.Ct. 38 L.Ed.2d 561 2006), by holding that the Sentencing judicially rule is a remedy created de Guidelines in effect at the time of his signed safeguard Fourth Amendment offenses, than rather at the time of his rights generally through its deterrent ef conviction, apply. should fect, personal rather than a constitutional right (footnote of party the aggrieved.” Suppress A. The Motion to omitted)). Where exclusion will not “effi Although Mr. caciously” Conrad raised po- promote other those “remedial objec tives,” tential constitutional violations no below his exclusion will occur. Id. quest for exclusion of the evidence from Supreme “The developed Court Chicago the Apartment, he has abandoned exception to exclusionary the rule for cases the others in favor of only the violation where an arrest or search involved a that the district court found: the violation Fourth Amendment violation but the con of the Fourth Amendment with respect to nection between the illegal conduct and the the curtilage of the Geneva Home. He subsequent discovery of evidence ‘be argues that the district court ap- erred in so eome[s] attenuated that the deterrent plying the exception attenuation to the evi- effect of the exclusionary longer rule no dence from the Chicago Apartment; he ” justifies its cost.’ United States v. Car wants that evidence excluded as fruit of ter, (7th 418, Cir.2009) 573 F.3d 422 (quot poisonous tree, too. ing Illinois, 590, Brown v. 609, 95 We review the district applica court’s 2254, (1975) S.Ct. 45 (Powell, tion of the law to the uncontested facts de J., (alteration concurring)) in original). In Ienco, novo. United States v. words, other inquiry attenuation deter 517, (7th Cir.1999) (citation omitted). 526 mines point at which government

The Supreme long Court recognized has began obtaining “by evidence suffi means the need to exclude evidence in ciently obtained distinguishable purged to be of the

733 insufficient); Brown, 599, Rawlings with v. Ken- hours 422 U.S. at taint.” primary 98, 107-08, omitted). tucky, 448 U.S. S.Ct. (quotation S.Ct. (1980) (forty-five minutes identify 65 L.Ed.2d of bears the burden Government Parker, sufficient); United States point, that id. (7th Cir.2006) (“matter of fac F.3d balancing of three requires the which sufficient). “(1) minutes” elapsed between tors: of the evi acquisition illegality and balance, agree with the dis On we (2) intervening cir dence; of presence weighs first factor trict court that this cumstances; and fla purpose suppres attenuation than more in favor of Ienco, misconduct,” official grancy of the First, quantity, two terms sion. (citations omitted).3 182 F.3d at 526 curtilage hours from the violation of fac- relevant will examine We three at issue is the collection of the evidence collectively, to deter- in turn and then tors in particular not insubstantial. We note bur- met its whether the Government mine that Mr. consent for law enforce Conrad’s attenuation, as the district den to show and search the ment to enter analysis, conducting court found. him, came af Apartment, question and to facts necessarily unique hew to the will we Second, in ter an hour’s car ride. terms found, which are district court car ride afforded Mr. Conrad quality, the appeal. on uncontested opportunity upon to reflect his circum stances, help cigarette of a with the Time Lapse 1. The point At no dur counsel from his father. time, uncon factor, ing episode according lapse of for the first As — test,” findings he ever in the tested below—was ‘bright-line’ United “there is no (7th Reed, 457, custody pur law enforcement for the 463 of 349 F.3d v. States Cir.2003) (citations omitted), or other poses un of the Fifth Amendment which is subject within the mean wise to a seizure fact-intensive nature surprising given the Conrad, of the Fourth Amendment. The district inquiry. attenuation of the In at 1040-41. other elapsed F.Supp.2d 578 here that two hours court found words, pres although in law enforcement’s and the curtilage violation between the ence, in the defen person “a reasonable in the of evidence collection that he would have believed position on all the attend dant’s Depending Apartment. any leave” at time. United circumstances, may, may or was free to two hours ant (7th 324, F.3d 327 Snodgrass, of a v. 635 purge the taint States not, be sufficient omitted) (Fifth Cir.2011) (citation Amend violation from later-collected constitutional ment). And “his freedom of movement’’ Taylor v. Ala Compare, e.g., evidence. 2664, through “means of 687, 691, “restrained” bama, 102 73 was never S.Ct. 457 U.S. (six (1982) insufficient); authority.” physical force or a show hours (two Mendenhall, 544, 604, 446 U.S. Brown, States v. 422 95 S.Ct. 2254 United 1870, 553, 100 64 L.Ed.2d 497 original statement S.Ct. as to hours insufficient “seizure”). (Fourth That sit Amendment follow-up ten hours insufficient (four helps passage of time Ienco, uational context statement); F.3d at 526 182 challenge the district court's Conrad does not the form of a con- 3. When the evidence takes statement, incriminating finding vol- of his statements or other of the voluntariness fession enforcement, issue of its becomes a threshold untariness not revisit that we need to law 604, Brown, admissibility. 422 U.S. at See finding. threshold omitted). (citation Because Mr. S.Ct. 2254 underlying quiry attenuate the violation here. precludes sweeping generalizations 107-08, Rawlings, See 448 U.S. at 100 about the circumstances that will be rele (explaining precise that “the S.Ct. 2556 vant particular case. Some cases conditions” of the detention —characterized finding this present factor have focused on “congenial atmosphere” up its —made presence of “a voluntary non-custodial quantitatively for the otherwise “short” consent ... independent as an intervening time, passage permitting thus event,” Liss, 617, United States v. 103 F.3d attenuation). weigh factor to favor of (7th Cir.1997), 621-22 long so as that con attempt his to shorten the period sent was neither obtained “immediately af consideration, under Mr. Conrad incorrect- ter an illegal entry,” United States v. Ro ly only asks us to focus on the time be- (7th beles-Ortega, 679, 348 F.3d Cir. agents’ entry tween the into the Geneva 2003), nor obtained following “illegal Home and his decision agree to take stop[], arrest[],” or detention[] United Chicago Apartment them to -his other —in Jerez, States v. n.& 13 words, fifteen minutes. While that deci- (7th Cir.1997) cases). Further, (collecting may sion have been a “but for” cause warnings, Miranda though never alone repeated consents for the to search sufficient to establish given attenuation Chicago Apartment, we must not con- differing purposes of the Fourth and Fifth flate the identification of the violation— Amendments, Taylor, 457 U.S. at here, agent’s improper entry onto the S.Ct. can nonetheless be a relevant curtilage at the Geneva Home—with the consideration, Reed, see 349 F.3d at 463 scope remedy of the for that violation. (describing voluntariness of confession as “But for” causation is not enough. Hud- “important,” though not so powerful as to son Michigan, 586, 592, overcome other considerations on the facts (2006) (“[Ex- S.Ct. 165 L.Ed.2d 56 presented). cases, In other the fact that may clusion not be premised on the mere the evidence , was obtained at a location fact that a constitutional violation was a away from the site of original the violation ‘but-for’ of obtaining cause evidence. Our See, important. became e.g., New York v. cases show that but-for causality only a Harris, 14, 20, 110 495 1640, 109 U.S. S.Ct. necessary, sufficient, not a condition for (1990) (“[Suppressing the suppression.”). statement taken outside the house would The period two-hour between the under- not serve the purpose of the rule that lying violation and the consents in the made Harris’ in-house illegal. arrest Chicago Apartment is the appropriate unit warrant requirement for an arrest in the analysis. Given the nature of that peri- imposed home is protect home, to the and od, this first factor tips favor of attenua- anything incriminating police gathered tion. home,

from arresting Harris in his rather Any Intervening Circumstances elsewhere, than excluded____”); been has Fazio, 950, United States v. 914 F.2d The second factor in the balancing looks (7th Cir.1990) cases). & n. 12 (collecting to see whether intervening circum- cases, In still other upon courts have relied stances have might occurred that “sever ability the defendant’s to “contact causal counsel connection between [the viola- or friends predica tion] and the about discovery [the defendant’s] of the evidence.” Reed, 349 Patino, F.3d at 464. ment.” Again, United highly States v. (7th Cir.1988). fact-intensive nature 128, 133 of the attenuation in- was, actually did—and as the district he existing precedent, with Consistent found, intervening specifically cir court told his father identified court the district Conrad, Mr. attenuation: that favored “not to talk to the officers.” cumstances to search and consents repeated F.Supp.2d suggests at 1025. While he Conrad’s (which law rights of Miranda that ignore his waiver his advice was decision give required not even was already enforcement recognition that he had confess- custody), about two was not he because much that he had no choice but to ed to so underlying constitutional after found, hours continue, court and he the district loca completely in a different violation contest, that his statements were does not location, we note different As for the tion. voluntary. at 1036-37. The voluntari- Id. where no attenua in contrast to cases despite su- ness of his statements —made the defendant was found after tion was warnings, specific perfluous Miranda station, police e.g., taken, example, to a father, and after an hour warning from his 2664, 687, here 102 S.Ct. 457 U.S. Taylor, twenty to think in the car and minutes to go from volunteered Mr. Conrad tending showing while to his cats and think where, home, according to a location family establish that equipment help off music — findings of the district unchallenged Chicago Apartment his conduct at the comfortable,” court, undoubtedly “was “sufficiently purge an act of free will to 1037, Conrad, at to a loca F.Supp.2d primary taint of the unlawful invasion.” to the yet as unknown tion that was States, 471, Wong Sun v. United He was Chicago Apartment. agents, 407, 83 S.Ct. 9 L.Ed.2d there, and more comfortable likely as or (footnote omitted). to decide whether position in a better thus sanctity of his Secure within the own rights there. on his constitutional to stand away and far from home—one different Furthermore, Apart because curtilage had had its violat- the one that protected under independently ment was clearly speak wanted to ed—Mr. Conrad Amendment, extending Fourth insisting upon rights, re- rather than have little the exclusion would scope of law enforce- explained, to send peatedly Harris, deterrent effect. additional Cf. away. find that this second ment We fac- (“Even 110 S.Ct. 1640 495 U.S. weighs in favor of attenuation. tor also statements though we decline following Payton the home made outside Flagrancy Purpose 3. The York, New [v. Underlying Violation (1980) violation, prin ] 63 L.Ed.2d 639 obtains; obey Payton still incentive to cipal factor that informs the The final entry that warrantless police know a is, analysis purpose “the attenuation —that evi suppression lead to the will of the official misconduct—is flagrancy taken, found, inside or statements dence important because it considered the most If did statements the home. we directly underlying to the rationale is tied Harris’, moreover, incremental de like rule, exclusionary police deterrence of minimal.”). be value would terrent Reed, at 464-65 misconduct.” omitted). (citations considers This factor did not ex- the district court Although the con before and after factor, both the conduct we rely on it for this second plicitly “Bad faith” violation. See id. stitutional anoth- significance to particular also attach Carter, 573 F.3d unusual, against cuts attenuation. Mr. er, circumstance. rather (citation omitted). actions So do- at 425-26 phone his cell only not could use or calculated otherwise “coercive but that were predicament, about his obtain advice surprise, fright or confusion” and agree to cause We thus with our dissenting in colleague, ... undertaken an effort “actions at about one “takea- infra enforcement,” way for law investigation or to embark on from advance the our find- in that this factor fishing expedition hopes slightly tips that in favor of attenuation: “if you you confession or think may would lead to a other useful have Reed, beyond gone what the 349 F.3d at 465. Fourth Amendment evidence.” allows,” by all go your way means out of Below, the district court found that avoid slightest even-the hint of constitu- began purposeful what as conduct impropriety going tional Doing forward. morphed into conduct consistent with at may ultimately so not suppression, avoid by Chicago tenuation the time of the might but it help. Apartment. agents violated the curti lage of Home “to the Geneva advance their A The Final Balance Conrad, investigation.” 578 F.Supp.2d at above, As indicated because of the some- “professional” 1036. But the were case, what unusual facts this all three Chicago' inside Apartment and did not tip relevant factors in favor of attenuation part enter it a “fishing expedition.” as regarding Chicago Apartment, though Id. at 1037-38. Given those findings, the none overwhelmingly not, so. We do district found while the third factor therefore, need to balance them before helped justify exclusion of the evidence concluding that the correctly district court obtained in the Geneva Home and point identified the at which evidence be- car ride to the Apartment, purged came of the taint from the curti- findings help justify excluding would lage violation: once the and Mr. evidence Chicago Apart obtained in the Conrad entered the Chicago Apartment. ment. Id. protection The constitutional of the Geneva (cid:127) agree We this third factor curtilage Home’s adequately vindicat- very slightly tips in favor of attenuation. by ed here excluding the evidence obtained Importantly, gave Mr. Conrad there, including on the car ride away. Any warnings Miranda they while were in the marginal deterrence obtained suppress- Chicago Apartment, though even those ing the evidence that Mr. Conrad was warnings legally required, were not readily willing to “volunteer” at his Chica- advised him in writing right of his to re Conrad, go Apartment, F.Supp.2d fuse permit them to property. search his 1037, despite time to think first and a certainly While not a complete salve for father, counsel from his would have been the initial violation of the curtilage excessive and thus improper. —hence See United other, the exclusion of the important evi Leon, 897, 910, States v. entirety dence —the of their conduct in the (1984) (“[I]t 82 L.Ed.2d 677 does not Chicago Apartment shows that their earli follow from the emphasis on the exclusion- er constitutional only blunder reflected ary rule’s deterrent value that anything temporary lapse judgment, which had illegal which deters thereby searches been by they cured entered the commanded the Fourth Amendment.” Chicago Apartment. Scrupulous though (citation omitted)).

belated adherence to constitutional stan Sentencing with De- B. in Accordance dards is not irrelevant in the fact-intensive maree inquiry attenuation, into ultimately which seeks to regulate law-enforcement behav As for whether we should overturn our ior, Calandra, precedent in Demaree and hold that the ride, the brought agents court should have considered the Conrad the into district Chicago apartment, in effect at the time showed one of the Sentencing Guidelines agents equipment, his DJ his crimes rather than when fed his cat and he committed litter, sentenced, changed its and two actually we can be brief. more FBI he was agents arrived. Conrad was have Mirandized previously, “[w]e As we have stated signed and consent-to-search forms. He many reaffirmed our decision Demaree again possession admitted to ..., and distribu- it times and we will overrule Robertson, pornography tion of child and turned over here.” United States computer more Cir.2011) equipment. The district (7th (collecting F.3d court found a Fourth Amendment violation cases).4 suppress

sufficient to all evidence from the Geneva home and from the car ride. But III. the court district did not evi- Conclusion dence from the Chicago apartment, con- judgment cluding The district court is that the evidence gathered there sufficiently attenuated from the Affirmed. agents’ Fourth Amendment violation. The TINDER, Judge, dissenting in Circuit majority agrees with the district court that part. (A) a line should be drawn between gathered evidence at the Geneva home and A Fourth Amendment violation made it (B) agents’ car and the evidence possible for FBI to enter Conrad’s Chicago apartment. collected at the home, drug- father’s wake Conrad from his view, majority’s the taint of the Fourth sleep, question and him. induced Conrad dissipated Amendment violation even while quickly possessing and dis- confessed defendant was continuous contact and tributing pornography gave child and very agents conversation with the respon- laptop. asked Con- sible for the Fourth Amendment violation. them to his Chicago rad to travel with majority’s position Because the is inconsis- apartment, where he had said he had other precedent dramatically tent with low- and, computers. agreed Conrad within attenuation, ers the standard for I respect- agents’ about fifteen minutes of the FBI fully dissent. home, entry into his father’s he was on his way agents. long recognized with two It has been that evi- in the by “exploitation” sat backseat of their vehicle but was dence obtained of a not handcuffed or otherwise Fourth Amendment restrained. violation should be Illinois, During hour-long suppressed. ride Geneva to Brown v. from father, 590, 600, Chicago he called his smoked a S.Ct. (1975).

cigarette, agents, and chatted with the dis- It often difficult to tell what cussing, among things, type exploitation other requiring suppres- amounts programs operated. file server After sion. Bad use of a Fourth Amend- faith Furthermore, appropriate non-guideline even if it were sentence. Had the district case, other reconsider that decision in some Sentencing court consulted the earlier Guide- computing would not be this one. After lines, urges, application as Mr. Conrad its sentence, guideline the district court found 3553(a) likely § factors would have result- given statutory the sentence excessive fac- finding guideline ed in a that the lower sen- selecting tors that courts must consider when inadequate imposed higher tence was sentence, appropriate 18 U.S.C. one that it selected here. chose, therefore, 3553(a). impose § It to a factor, Moving “intervening to the next evi- acquire to additional ment violation circumstances,” require suppression majority, endorsing to sufficient dence is see, (but necessary), e.g., United analysis, not the district court’s identifies (7th 418, Carter, 425-26 (1) 573 F.3d v. States Con- favoring three facts attenuation: Cir.2009), causal connection and a rad’s consents to search and Miranda but-for subsequently and dis- a violation between (2) waiver, sup- the evidence that was not (but necessary not suf- is covered evidence pressed was obtained at a location differ- ficient), (citing Hudson v. Mich- at 424 id. sup- ent than the evidence 2159, 586, 591, 126 S.Ct. U.S. igan, 547 (3) allowed to pressed, and Conrad was cases, (2006)). Many like 165 L.Ed.2d during father the car ride with the call his one, large middle-catego- into the this fall agents. carry weight, These facts some to evidence of bad there isn’t clear ry where sure, but, view, than my be much less connection. plain there is but-for faith but First, majority and believes. consent Brown, 422 out in The framework laid important particu- Miranda waivers are — 603-04, 2254, supposed at 95 S.Ct. U.S. larly insofar as voluntariness is a thresh- cases. As the help us sort these middle admissibility requirement old of noted, we are to consid- majority correctly confession, but, at n. supra 3— (1) (2) “temporal proximity,” pres- er “the they amount important, however cannot circumstances,” intervening and ence of intervening independent circumstances. flagrancy of the offi- purpose “the and Alabama, See, 687, Taylor v. e.g., cial misconduct.” Id. (1982); 2664, 73 L.Ed.2d 314 The important. The first factor is least Reed, 349 F.3d at 464. United States v. cases, at majority’s supra explain (7th Robles-Ortega, 348 F.3d Cir. factors, that, a depending on other few 2003), Robles-Ortega is instructive. we may for attenuation minutes be sufficient a voluntary focused on whether consent may By many hours be insufficient. intervening was an circumstance search then, itself, lapse between the two-hour attenuation. noted purpose for the We original subsequently and the dis- violation given after with confessions Mi “[a]s particularly long evidence—not a covered ... warnings, randa consent alone does nothing. or short time—tells us almost necessarily purge not the taint of the ille- majority concludes that nevertheless rejected gal gov- action.” Id. We then It tips two hours in favor attenuation. attempt ernment’s construe United conclusion, however, only can reach that (7th Liss, Cir.1997), States v. 103 F.3d 617 by collapsing the first and second consider- holding indepen- “that a consent is an as ations, analyzing heading under the first intervening event that breaks the dent just elapsed “temporal prox- — illegal stemming causal chain from imity,” put qual- Brown it—but also the as inquiry search.” Id. The in Liss and Ro- ity quality of that time. The of interven- bles-Ortega hap- had to do with what else significant, hours or minutes is pened; those cases concerned whether course, analyzed part but it is properly as consent was obtained means “sufficient- or, per- of the intervening circumstances ly distinguishable” from Fourth Amend- haps, purpose as it relates to the purged violations to have been of the ment case, flagrancy of the violation. In this other primary taint. Id. 683. When analyzing temporal proximity on its own surrounding voluntary nowhere; circumstances gets us support doesn’t atten- voluntary confession consent to search or uation or suppression. See United States (7th Cir.2003). Reed, crit- prior illegality that a was not indicate in deciding confession or consent this fact that the initial obtaining illegal ical to search, warnings and sufficiently then Miranda search was attenuated. Id. at 958; Reed, of consent will be decisive. (citing voluntariness 349 F.3d at 464 Fazio as where, here, the Fourth Amend- But as example an of a case with sufficient inter- voluntary resulted in a con- ment violation vening specifically circumstances and not- in- voluntary a surrender of fession and ing that drove defendant his own vehicle to that the district court criminating evidence meeting incriminating where he made suppress, fit to attenuation should re- saw statements). If would have just voluntary than another quire more (he asked Conrad to drive his own car had voluntary il- confession and consent. The parked driveway a Porsche in the of the a legality path-breaking must cease to be home) Geneva to the apartment, subsequent that makes discoveries event very this would abe different case. Given case, In this we have a all but inevitable. away some agents, time from the to an given agent confession and consent may may or not have decided to go to the and, presence after about an hour in the of Chicago apartment may and confess. He agent, another confession and that same have taken more time to talk to his father (and given agent consent to the same oth- (and it private would have been a more ers). Supreme As the Court concluded conversation without listening to context, legal would have “[i]t different call), may Conrad’s side of the have regard the two been reasonable ses- made other calls—we can’t know. What- continuum, parts of a it sions as which done, might ever he have if he did up show would have been unnatural to refuse to at Chicago apartment an hour or two stage at the second what had been repeat later to consent to a search and confess his Seibert, said before.” Missouri v. 542 crimes, the search and the confession 600, 616-17, 124 S.Ct. would have retained but-for connection (2004). Without additional violation, to the initial Fourth Amendment factors, intervening avowals of voluntari- it separated but would have the two events ness are a technical break that have little (if enough to make the second oc- still an caught-up value for individual suc- curred) act, independent freely under- (even non-custodial) interrogations cessive virtually taken and not one made inevit- subject agents. on the same same with the given already able what he’d shared with majority But the thinks that there were Fazio, agents. See 914 F.2d at 958. intervening additional circumstances. The But the did not take the chance consents and waivers occurred in different up Conrad wouldn’t show or would locations—at the house and at the Geneva continuing think better of to talk to them. Chicago apartment. change Yet the in They kept presence, him in their in the here, scenery cannot count for much where car, him talking, backseat of their kept the most salient feature in Conrad’s envi- him kept they kept him on comfortable— presence ronment was the continuous reeling the line and then continued him in. agents. FBI Consider United States v. (7th Finally factor, Fazio, Cir.1990), majori- on this second 914 F.2d 950 a two- ty phone lists call to his father Conrad’s location case similar to this one but with at Fazio, riding agents’ while in the backseat of the major least one difference: after significant intervening car as a circum- a Fourth Amendment violation at his res- taurant, fact recalls Taylor, defendant drove to a stance. This himself meeting incriminating where he made where a defendant emphasized given speak privately Id. at 952. the chance to statements. We atmo- strangely and the cordial girlfriend minutes and behavior with ten five to making dissipate his con- were sufficient the sphere before companion a male (and pri- more longer much violation. That taint of the Fourth Amendment fession. vate) conversation, Reed, paired even with re- in disagree. explained I As we enough wasn’t warnings, peated Miranda by no attenuation friendliness: there is In this taint.” Id. “purge primary the the and fla determining purpose In case, made the the short call Conrad from misconduct, the grancy of the official car, presence, did agents’ the agents’ in court held that the factor district the seamless interaction interrupt little to against suppression because weighed agents. and the More- between Conrad interrogation was conduct [defendant’s] call over, to understand how the it’s hard judiciously congenially police ed and the intervening much value as an could have warnings, sug administered Miranda it of the evi- part was circumstance when illegal of the gesting that the manner in the wake of the initial suppressed dence subsequent interrogation was arrest and violation. Fourth Amendment fright, surprise, not “calculated to cause factor, “pur- to the third brings This us Brown, E.g., or 422 U.S. at confusion.” majority care- pose flagrancy.” and The inquiry, 2254. But that 95 S.Ct. law, accurately the fully recites ob- and relevant, although complete, is not be our cases consider “both the serving that “purposeful flagrant” cause and miscon after the constitutional conduct before and duct is not limited to situations where majority at 735. The Supra violation.” outright threatening the act in an police ... points also out that “actions undertak- manner.... or coercive investiga- en in an effort to advance the case, at 349 F.3d this attenuation. at against Supra tion” cut only came into contact with Conrad be- 465). Reed, at (quoting 349 F.3d cause of their Fourth Amendment viola- court, ma- Agreeing with the district got got That them in the house and tion. concludes, however, jority that “what be- It them their first interview with Conrad. gan morphed as conduct into purposeful time, very advantageous turned out to be a by conduct consistent with attenuation agents’ perspective, at least from the Chicago Apartment.” Supra time of the occur moments the interview to because result, majori- at support 736. To this began, appears before it that Conrad ty be- agents’ “professional” refers drug-aided depths sleep. Chicago apartment, havior at the that Con- agents, Once roused rights, rad was of Miranda advised very crime promptly confessed to serious writing right and that of his he was told them, in gave and addition to his state- agents’ not to allow the search. I have ment, incriminating physical evidence. already why said I believe that “reliance Having Chicago apart- learned about the Arizona, on giving of Miranda [v. ment, asked Conrad to travel U.S. coopera- there with them to continue his warnings misplaced.” Taylor, ] By they got Chicago, tion. 102 S.Ct. 2664. And the later, (according taint ma- hour to the goes same for reliance on defendant’s con- jority) dissipated. only pause had Robles-Ortega, sent to search. FBI the continuous conversation with the at 684. The bottom line for district then, court was Conrad’s short call to his dad. majority, incorporating and the length it? it the of the emphasis warnings their on and Did that do Or was Miranda consent, itself? the situation have agents’ professional is that drive Would at- precedent gives into conduct consistent with inconsistent with far “morphed” apartment weight if the house and had too much to the tenuation role Miranda just twenty apart? consent, minutes Was it warnings been I and because think friendly for banter about the extra time agents improperly exploited a Fourth that made the equipment differ- stereo investigate Amendment violation to Con- ence? gather evidence, rad’s crimes and to on respectfully this issue I dissent. view, nothing significance sepa- my violation, rated the Fourth Amendment that was sup-

the collection evidence

pressed through from the Geneva house Chicago,

the drive to and the collection of Chicago apart- evidence at the

additional single It continuum of

ment. majority

events. Yet the holds that the

taint of a Fourth Amendment violation can even while a defendant is in con- dissipate MUNOZ-PACHECO, Jose A. with tinuous contact conversation Petitioner, for very agents responsible the Fourth Amendment violation. I realize that let-

ting Conrad off the hook after the Fourth HOLDER, Jr., Attorney Eric H. arranging violation—like Amendment States, General of the United him jeopardized meet later —would have Respondent. nearly agents’ certain collection of the incriminating they get evidence set out to No. 11-2444. they when went to the Geneva house. But consequential sepa- is difficult see United States Court of Appeals, ration at happened between what Seventh Circuit. of that completion process

house and the Argued Jan. 2011. course, Chicago apartment. Of enough; they treated Conrad well Decided March up; chatted him there was no need to be they aggressive, were smarter than that. point they

But at no did disengage, and at they point provide

no did Conrad a real

break the continuous interaction that

started with a confession in Geneva and in Chicago.

ended with another It would

seem that after this case not much is re-

quired takeaway for attenuation. The you you

law enforcement is that if think beyond

may gone have what the Fourth allows, worry, just

Amendment suspect your sight,

don’t let the out of be

congenial, forgiven. and all will be Be- I think allowing

cause attenuation to

mysteriously during nonstop inter- arise single group

action with a

Case Details

Case Name: United States v. Conrad

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Mar 14, 2012

Citation: 673 F.3d 728

Docket Number: 10-2001

Court Abbreviation: 7th Cir.