UNITED STATES OF AMERICA, Appellee, v. BRAD SMITH, Defendant, Appellant.
No. 18-1109
United States Court of Appeals For the First Circuit
March 15, 2019
Hon. Joseph Laplante, U.S. District Judge
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE. Before Lynch, Stahl, and Barron, Circuit Judges.
Richard Guerriero, with whom Lothstein Guerriero, PLLC was on brief, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, was on brief for appellee.
After a short jury trial, Smith was convicted of six counts of violating
On appeal, Smith challenges both the district court‘s denial of his motion to suppress and his sentence. However, even assuming arguendo that the agents committed a Fourth Amendment violation at some point before encountering Smith on the pecan farm, we find that any prior illegality did not significantly influence or even play an important role in his subsequent consent to the search of his computer and hard drives. He voluntarily consented to the seizure of his computer and hard drives and his consent was not obtained by exploitation of any Fourth Amendment violation. In addition, we hold on the facts here that the proper unit of prosecution under
I. Factual Background
We recount the facts in two parts. First, we describe events occurring before the law enforcement agents’ entry onto the pecan farm, which for purposes of this appeal are uncontested. Second, we recount the facts relevant to the motion to suppress, including the agents’ entry onto the farm and subsequent seizure of Smith‘s computer and hard drives, “as the trial court found them, consistent with record support.” United States v. Andrade, 551 F.3d 103, 106 (1st Cir. 2008) (internal quotation marks and citation omitted). We describe further facts relevant to sentencing issues in that section.
A. Events Leading Up to the Agents’ Entry
Beginning in 2010, Smith was employed at a concrete plant in New Hampshire by the victim‘s father. Over the next few years, Smith befriended the father and his family, and he occasionally performed repairs at their home. Smith also regularly came to the victim‘s home for holidays.
Sometime in early 2015, the father learned that Smith had misused company funds. The company‘s counsel and distribution manager recommended that Smith be terminated. However, the father instead decided to transfer Smith to work on a pecan farm in Breaux Bridge, Louisiana, that the victim‘s family owned.
In May 2015, before moving to Louisiana, Smith was working at the father‘s home. On May 25, during one of his visits, Smith used a pair of Google glasses to record six videos of him sexually assaulting the victim, who was then three years old. The videos depicted various sexual acts that occurred between roughly 12:43 p.m. and 1:49 p.m. In the immediate term, Smith remained on friendly terms with the father, who was unaware of either the assault on his child or the video recordings. In August 2015, Smith relocated to Louisiana to begin working on the pecan farm.
Meanwhile, in September 2014, agents with the Department of Homeland Security‘s Immigration and Customs Enforcement Division (“HSI“) obtained a search warrant in the Eastern District of Michigan to search the e-mail account pornloveporn@yahoo.com. HSI agents discovered that, in October 2013, that account had received an e-mail from the address smittyb172@yahoo.com (the “Yahoo Account“) containing child pornography. In November 2015, Yahoo! provided law enforcement information pertaining to the Yahoo Account in response to an administrative subpoena and search warrant. From Yahoo!‘s response, HSI agents discovered
B. The Agents’ Entry onto the Pecan Farm and Subsequent Events
The pecan farm abuts a state highway just outside the city limits of Breaux Bridge, Louisiana. The farm itself has a see-through perimeter fence that runs parallel to the highway. A driveway leads from the highway to the residential areas of the farm, and the entrance to that driveway is gated at the highway. The gate runs wider than the driveway and consists of two metal sections that meet in the center. To open the gate, a person would have to enter a code on a keypad located on a nearby pole outside the fence. The code was not posted, although at all relevant times, there was a sign near the gate carrying a phone number with a New Hampshire area code to call for “deliveries.” There were no other signs on or around the front gate. The gate controls access to a driveway that runs through adjacent pecan fields for 300 to 500 feet.1 The farm‘s primary residence and an adjacent smaller secondary residence lie to the right of the driveway just before it terminates in a wider paved area. A paved footpath travels from the driveway to the front porch of the main residence. A solid six-foot tall wooden privacy fence extends from both sides of the primary residence. Viewing the primary residence from the driveway, the privacy fencing extended a short distance from the left side of the primary residence to a nearby carport. From the right side of the primary residence, the privacy fencing extends farther and encloses a larger area behind the home, including the secondary residence. The carport consists of a large, roofed structure with partially enclosed sides, and covers a portion of the paved area at the end of the driveway. The carport was located next to the primary residence and nearby a workshop. Smith resided in the secondary residence.
In early January 2016, Lopez surveilled the pecan farm. Following one of his reconnaissance visits, Lopez called the phone number posted near the gate for deliveries, pretending to be a schoolteacher interested in a tour of the farm. A male identifying himself as Smith answered the phone, but responded that the owner of the property was not currently giving tours.
On January 12, 2016, Lopez and a local Assistant United States Attorney discussed the possibility of obtaining a search warrant for the pecan farm and residences. However, they concluded that the evidence from the Yahoo Account was too stale for a warrant. Therefore, Lopez decided to instead attempt a “knock and talk”2 entry onto the property.
In the early afternoon of January 14, 2016, Lopez, Catalan, and Kibodeaux approached the gate in a truck. They initially
Lopez and Kibodeaux walked down the driveway and knocked on the door to the primary residence (but not the secondary residence, where Smith resided), but nobody answered. As the agents walked back to the driveway, they heard machinery operating behind the carport. The agents then walked to the carport and saw two individuals: a male (later identified as Smith) and a female working in a pecan field behind the carport. Lopez waved his arms to draw their attention and flagged Smith over.
Neither the record nor the district court‘s decision indicate precisely where exactly Smith and the agents first met. It appears, however, that Lopez walked a few feet off the carport‘s concrete padding towards Smith, while Smith simultaneously walked towards Lopez. Smith, Lopez, and Kibodeaux then moved to the driveway.
At that point, Lopez identified himself as an HSI agent, and Kibodeaux as a Louisiana State Police investigator. Lopez (falsely) told Smith that they were there to investigate potential illegal immigrants working at the farm. Lopez also requested that Smith provide the gate code so that Catalan could drive the truck up the driveway and join them. Smith provided Lopez the code, which Catalan used to open the gate. Catalan then drove the truck onto the driveway and parked near the carport.
Soon afterwards, Lopez asked Smith for his driver‘s license and e-mail address. Smith provided his license and the e-mail address “smittyb172@gmail.com,” which had the same username as the account linked to the child pornography investigation, but had a different webmail provider. Lopez then asked if Smith had an alternate e-mail address, and Smith provided the Yahoo Account address. At that point, Lopez asked Smith if they could go into his residence to discuss additional matters, and Smith agreed. The woman who had been standing with Smith when the agents first saw him did not join them.
Once inside the secondary residence, Lopez asked Smith whether he looked at pornography, to which Smith responded yes. Lopez then asked whether Smith had come across and downloaded child pornography, and Smith replied that he had accidentally downloaded it on several occasions. Lopez then asked if the computer on which Smith downloaded the pornography was inside the residence. Smith admitted it was, and stated that it was his practice to download the pornography and then move it into another folder to delete it. He further admitted that the computer still had child pornography files on it. Kibodeaux recalled that while Smith was “embarrassed” during this conversation, “[h]e was not resistant.”
After Smith admitted to possessing child pornography, Lopez asked Smith if he would consent to a search of his computer. Lopez also read aloud a consent to search
agents could detain the computer based on his admission that he had downloaded child pornography on it, and that they would apply for a warrant. Although Smith did not sign the form at this time, he then verbally consented to the search.4
When Kibodeaux went to retrieve the computer from the residence‘s second floor, she found two additional hard drives near the computer. Kibodeaux brought both the laptop and hard drives downstairs. At that point, Smith asked whether he should stop speaking with law enforcement, and the agents replied that he could stop the conversation at any time. Smith then verbally consented to the search of the hard drives as well. Kibodeaux recalled that Smith‘s “demeanor was the same throughout the entire interview[, both] outside and inside [his residence]. He was cordial and . . . cooperative [when] speaking with [the agents].”
After seizing the computer and hard drives, Lopez filled out a property receipt for Smith. Smith also signed the consent to search form that Lopez had read aloud earlier. Lopez further asked whether Smith would come with the agents to the local HSI office, but Smith declined. Before departing, however, Catalan and Kibodeaux noticed a picture of two young children on Smith‘s refrigerator. When the officers asked Smith about the children in the picture, Smith gave the officers their names and said that he was close with their family. The events at the pecan farm took approximately forty-five minutes to unfold.
Upon returning to the local HSI office, Catalan attempted to access one of Smith‘s hard drives. However, the hard drive was password-protected, so Lopez called Smith to obtain the password, which Smith voluntarily provided. From that hard drive, Catalan retrieved several nude images of a young girl, later identified as the victim. In addition, Catalan recovered six videos depicting Smith sexually assaulting the victim. Catalan realized that the victim was one of the two children depicted in the picture on Smith‘s refrigerator.
After finding the child pornography, Lopez and Kibodeaux developed a plan to
II. Procedural Background
On June 15, 2016, the government filed an indictment in the District of New Hampshire charging Smith with six counts of producing child pornography in violation of
On August 25, 2016, Smith filed a motion to suppress the bulk of the prosecution‘s evidence, including the videos of the assault and inculpatory statements made to Kibodeaux. He argued that law enforcement agents had violated his Fourth Amendment rights by entering the curtilage of his residence without a warrant, and that their unlawful entry and “show of force” coerced him into consenting to the seizure of his laptop and hard drives. He further insisted that statements made at his residence should be suppressed because he was not administered a Miranda warning beforehand and, additionally, that the information obtained was fruit of the poisonous tree -- namely, the agents’ entry onto the curtilage.
The district court conducted an evidentiary hearing in two parts on February 3 and 22, 2017. After the hearing concluded, the district court orally denied the motion to suppress.5 As relevant here, the district court (1) found that the agents’ entry onto the pecan farm was not unlawful because the place where they first encountered Smith and obtained his consent to enter his residence was not curtilage; (2) credited the testimony of Lopez, Kibodeaux, and Catalan regarding the sequence of events inside the residence; and (3) found that Smith had knowingly and voluntarily waived his Miranda rights when he confessed to the sexual assault.
A three-day trial was held in early April 2017. The jury, after a relatively short deliberation, returned a guilty verdict on all counts. In competing sentencing memoranda, the parties disputed Smith‘s maximum possible sentence. Specifically, Smith argued that because the six charges stemmed from one continuous assault, the prosecution used the wrong unit of prosecution and the “offenses charged . . . merge for sentencing[.]” Therefore, he reasoned, the statutory maximum penalty should be thirty years -- the maximum penalty for a first-time offender convicted of a single offense under
III. Suppression Motion Analysis
“In reviewing the denial of a motion to suppress, [this] court accepts the district court‘s ‘factual findings to the extent they are not clearly erroneous,’ and ‘review[s] its legal conclusions de novo.‘” United States v. Davis, 909 F.3d 9, 16 (1st Cir. 2018) (quoting United States v. Sanchez, 612 F.3d 1, 4 (1st Cir. 2010)) (second alteration in original).
In his brief, Smith makes two primary arguments concerning the motion to suppress. First, he contends that law enforcement agents violated his Fourth Amendment rights when they entered the curtilage of his home to locate him. Specifically, he argues that the locked gate and the driveway through which the agents entered the farm were part of the curtilage of his residence, and that the locked gate at the entrance to the farm revoked any implied license of entry.6 Second, he contends that the constitutional violation, coupled with the agents’ misrepresentations, were sufficiently coercive as to taint his consent to the search. We need not resolve the legality of the agents’ entrance onto the pecan farm, their knocking on the door
of the primary residence, or their presence on the part of the farm where they first encountered Smith because, even assuming that there was a constitutional violation, Smith‘s subsequent consent was voluntary and not tainted. See Illinois v. Rodriguez, 497 U.S. 177, 181 (1990) (stating that the Fourth Amendment‘s prohibition on warrantless searches is inapplicable where voluntary consent has been obtained).
A. Whether the Consent Was Tainted
A defendant‘s consent to a search may be invalidated if it “bear[s] a
1. Temporal Proximity
“There is no bright-line rule defining the temporal factor. But, if the period of time is extremely short, this factor weighs in favor of exclusion. By contrast, a longer interval obviously weighs in favor of admissibility.” United States v. Delancy, 502 F.3d 1297, 1310 (11th Cir. 2007) (internal citations omitted). Smith contends that he consented to the search of his computer and hard drives within approximately twenty minutes of the agents’ arrival. On that basis alone, he argues that “the temporal proximity factor weighs heavily in favor of finding no attenuation.”
It is unclear from the record exactly when Smith consented to the search of his computer and hard drives. In the intervening time from when law enforcement first approached Smith and when consent was given, the agents and Smith talked briefly outside the carport, walked to the secondary residence, and had a conservation inside that residence in which Smith admitted to possessing child pornography. Presumably, this sequence of events took, at minimum, several minutes to unfold. At least two circuits have suggested that this length of time can constitute sufficient attenuation. See United States v. Whisenton, 765 F.3d 938, 942 (8th Cir. 2014) (“[F]ifteen minutes is sufficient to demonstrate an attenuation of the illegality.“); United States v. Myers, 335 F. App‘x 936, 939 (11th Cir. 2009) (unpublished per curiam opinion) (finding ten minutes sufficient attenuation where, as here, the defendant was not handcuffed or detained and law enforcement agents were polite and non-threatening). Because the district court never made a finding concerning the amount of time that had elapsed, we are limited in our ability to analyze this factor. However, we need not definitively resolve this issue because “[o]n these facts . . . timing is not the most important factor.” Delancy, 502 F.3d at 1311.
2. Intervening Circumstances
We turn then to intervening circumstances, “or events that interrupt the causal connection between the illegal act and the possibly tainted consent or confession.” Id. (citing Brown, 422 U.S. at 611 (Powell, J., concurring in part)). “The presence of intervening circumstances that provide the defendant an opportunity to pause and reflect, to decline consent, or to revoke consent help demonstrate that the illegality was attenuated.” Whisenton, 765 F.3d at 942 (internal quotation marks and citation omitted).
Here, there was an important intervening circumstance -- namely Agent Lopez‘s recitation of the consent to search form.
3. Purpose and Flagrancy of the Misconduct
Finally, we consider the third factor: “the purpose and flagrancy of the official misconduct in question.” Cordero-Rosario, 786 F.3d at 76 (citing Brown, 422 U.S. at 603-04). We have stated that this factor “is the most important part of the analysis ‘because it is tied directly to the rationale underlying the exclusionary rule, deterrence of police misconduct.‘” Stark, 499 F.3d at 77 (quoting United States v. Reed, 349 F.3d 457, 464-
65 (7th Cir. 2003)). “In analyzing this factor, courts look to see whether: (a) the police used threatening or abusive tactics; (b) the ‘impropriety of the [initial misconduct] was obvious‘; and (c) the initial search was a mere evidence expedition calculated to elicit a confession.” Id. (quoting Brown, 422 U.S. at 605).
Here, there is no evidence that law enforcement used threatening or abusive tactics to obtain Smith‘s consent to search the computer and hard drives. The agents’ conduct is a far cry from the extreme tactics the Supreme Court deemed coercive in Brown and Wong Sun v. United States, 371 U.S. 471 (1963). In Brown, two officers broke into and searched the defendant‘s apartment without probable cause. 422 U.S. at 593. When the defendant returned, the officers held him at gunpoint and arrested him merely for “questioning” or “investigation.” Id. at 605. Similarly, in Wong Sun, six or seven officers broke into a defendant‘s residence and arrested him without probable cause. 371 U.S. at 473-74. In addition, one officer had pointed a pistol at him. See id. By contrast, the record in this case shows that the agents were professional and polite throughout their interactions with Smith. The agents did not enter Smith‘s home or the area immediately surrounding it within the privacy fence until Smith expressly granted consent to do so, and Smith was not arrested until he later confessed at the local police station to filming and committing the sexual assault. In a similar vein, there is no evidence that the agents’ entry onto the farm was a mere fishing expedition to elicit a confession.
More importantly, however, the alleged illegality of the agents’ entry onto the farm was far from obvious. “The
The Supreme Court has provided a four-part test to determine whether an area is part of the curtilage. Those factors are: (1) “the proximity of the area claimed to be curtilage to the home“; (2) “whether the area is included within an enclosure surrounding the home“; (3) “the nature of the uses to which the area is put“; and (4) “the steps taken by the resident to protect the area from observation by people passing by.” United States v. Dunn, 480 U.S. 294, 301 (1987).
As discussed earlier, the site of the agents’ initial encounter with Smith was somewhere on or near the driveway behind the carport in an area adjacent to a pecan field. It appears from the record that this location was, at minimum, some distance away from Smith‘s home. It was not enclosed by the solid wood privacy fence surrounding the residences. And, given that Smith was working in a pecan field when the agents first encountered him, the area was “not being used for intimate activities of the home.” Id. at 302. We need not, and do not purport to, decide whether that area, or the part of the driveway where the agents first entered the farm, was part of the curtilage. However, given these considerations, even assuming that this location was part of the curtilage to Smith‘s residence, it was not clearly so.7 Accordingly, the agents’ entry cannot be characterized as a purposeful and flagrant violation of Smith‘s
Weighing the three Brown factors as a whole, even if one were to assume that the agents’ initial entry onto the pecan farm or their knocking on the door of the primary residence on the farm was unlawful, we find that it did not taint Smith‘s later consent to the search of his computer and hard drives.
B. Voluntariness
In his brief, Smith separately attacks the district court‘s determination that his consent and statements made to law enforcement agents in the residence were voluntarily given. “The determination of voluntariness ‘turns on an assessment of
Smith first claims that the “most prominent coercive tactic in this case was the agents’ surprise unlawful entry to the property.” Specifically, he faults the agents for failing to contact him by phone on the day of the search and not exploring less intrusive means of obtaining consent to enter the farm or search his computer and hard drives. However, that argument is belied by the record. The agents did in fact call the “deliveries” number several times, but nobody answered. There is no evidence to suggest that their subsequent entry was anything but a faithful attempt to conduct a “knock and talk,” which multiple federal appellate courts have found to be a “reasonable investigative tool.” United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001); see also United States v. Cruz-Mendez, 467 F.3d 1260, 1264-65 (10th Cir. 2006); United States v. Thomas, 430 F.3d 274, 277 (6th Cir. 2005). And, as explained earlier, even assuming arguendo that the gate revoked the implied license of entry and that the entry onto the front steps of the primary residence was problematic, any resulting
Smith also complains that the agents used a ruse — Agent Lopez‘s admittedly false statement that he was investigating possible illegal immigrants — when first approaching him. However, this court has stated that law enforcement is permitted to engage in basic “manipulative behavior,” such as “insincere friendliness which successfully induces a criminal suspect to willingly answer questions and/or consent to a search,” so long as it does not impact the defendant‘s voluntary relinquishment of a right. United States v. Hornbecker, 316 F.3d 40, 49 (1st Cir. 2003); cf. also United States v. Hughes, 640 F.3d 428, 439 (1st Cir. 2011) (“[S]ome degree of deception [by law enforcement] during the questioning of a suspect is permissible.“). Here, Agent Lopez‘s minor deception at most helped facilitate a conversation with Smith. After Smith had invited the agents into his home, Lopez dispensed with the facade. By the time Smith was asked to consent to the search of the computer and hard drives, he was aware of the true reason for the agents’ visit and their reasons for seeking to search his computer. Therefore, we agree with the district court that the “immigrant worker ruse” is not constitutionally offensive.
In his brief, Smith also takes issue with Kibodeaux‘s statement that the agents could seize the computer regardless of whether he consented. As noted above, Kibodeaux represented that law enforcement could detain the computer based on Smith‘s admission that it contained child pornography. It is well established that the threat of destruction of evidence is an exigent circumstance that permits law enforcement to conduct a warrantless seizure of property. See United States v. Almonte-Baez, 857 F.3d 27, 33 (1st Cir. 2017). Given the possibility that Smith would seek to wipe the child pornography from his computer and hard drives in the agents’ absence, Kibodeaux‘s statement was correct. See id.; accord United States v. Bradley, 488 F. App‘x 99, 103 (6th Cir. 2012) (unpublished); United States v. Vallimont, 378 F. App‘x 972, 974 (11th Cir. 2010) (unpublished). Therefore, the statement does not invalidate the voluntariness of Smith‘s consent. See United States v. Vazquez, 724 F.3d 15, 22 (1st Cir. 2013) (“[T]he law is
To get around this, Smith notes that the Supreme Court has stated that law enforcement cannot “create the exigency by engaging or threatening to engage in conduct that violates the
Accordingly, we find no error with the district court‘s determination that Smith‘s consent to enter his home and search his computer and hard drives was voluntary.
IV. Sentencing Claim Analysis
We now turn to Smith‘s challenge to his fifty-year sentence. On appeal, Smith contends that his maximum sentence should have been thirty years, the maximum penalty for a single violation of
A prosecution is multiplicitous when it charges a defendant more than once “for what is essentially a single crime.” United States v. Chiaradio, 684 F.3d 265, 272 (1st Cir. 2012). “The prohibition against multiplicitous prosecution derives from the Double Jeopardy Clause,” which bars multiple punishments for the same offense. United States v. Gordon, 875 F.3d 26, 32 (1st Cir. 2017) (citations omitted). When a defendant levies a claim of multiplicity, a court “must determine whether there is a sufficient factual basis to treat each count as separate.” Id. (quoting United States v. Stefanidakis, 678 F.3d 96, 100-01 (1st Cir. 2012)) (internal quotation marks omitted). Such a determination “depends on whether Congress intended to punish separately each of the alleged violations.” Id. (citing Jeffers v. United States, 432 U.S. 137, 155 (1977) (plurality opinion)). Because this issue turns on a question of statutory interpretation, our review is de novo. Id.
In support, Smith notes that the federal child pornography statute states as follows:
Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e).
The district court rejected this argument at sentencing, noting that multiple federal appellate courts have held that the proper unit of prosecution of
We agree with the reasoning of the district court. Here, Smith produced six separate videos over the course of an hour, each made at a different time and depicting a discrete sexual act.
In his brief, Smith also argues that
However, we see no ambiguity in
V. Conclusion
For the foregoing reasons, the district court‘s denial of the motion to suppress and the sentence that it imposed are AFFIRMED.
Notes
I, [name of person], have been asked to give my consent to the search of my computer/electronic equipment. I have also been informed of my right to refuse to consent to such a search.
I herbey [sic] authorize [law enforcement] to conduct at any time a complete search of all computer/electronic equipment located at [my address]. These officers/agents are authorized by me to take from the above location, any computer(s), including internal hard drive(s), floppy diskettes, CD‘s, DVD‘s, any other electronic storage devices, including but not limited to, personal digital assistants, cellular telephones, pagers.
I hereby consent to the search of the aforementioned items for any data or material which is contraband or evidence of a crime. I understand that this contraband or evidence may be used against me in a court of law.
This written permission is given by me voluntarily. I have not been threatened, placed under duress or promised anything in exchange for my consent. I have read this form, it has been read to me and I understand it. I understand the [English] language and have been able to communicate with the agents/officers.
I understand that I may withdraw my consent at any time for any reason. I may also ask for a receipt for all items taken.