United States v. Smith , 919 F.3d 1 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1109
UNITED STATES OF AMERICA,
Appellee,
v.
BRAD SMITH,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph Laplante, U.S. District Judge]
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.
March 15, 2019
STAHL, Circuit Judge. This appeal arises out of
Defendant-Appellant Brad Smith's conviction for producing six
videos depicting him sexually assaulting a three-year-old child.
Smith challenges the district court's denial of his motion to
suppress evidence recovered from his residence on a Louisiana pecan
farm, including a laptop computer and two hard drives that
contained the videos in question, as well as statements he made to
law enforcement at the farm and during a later interrogation. He
argued that law enforcement agents had violated his Fourth
Amendment rights, and that he was coerced into consenting to the
search of the residence. The district court disagreed, holding
that there was no Fourth Amendment violation and that Smith
knowingly and voluntarily consented to the search.
After a short jury trial, Smith was convicted of six
counts of violating 18 U.S.C. § 2251(a), the federal child
pornography production statute. At sentencing, Smith argued that
because the videos were taken during one continuous sexual assault,
the charges were multiplicitous. The district court disagreed and
ultimately sentenced Smith to a term of imprisonment of fifty
years.
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
- 2 -
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 Section 2251(a) is each video depicting
the victim. Accordingly, and for the following reasons, we affirm.
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
- 3 -
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
- 4 -
Yahoo Account in response to an administrative subpoena and search
warrant. From Yahoo!'s response, HSI agents discovered that the
Yahoo Account was registered to Smith, and that he was residing in
Louisiana at the pecan farm. HSI Special Agent Lance Lopez
("Lopez") led the investigation into Smith and worked with fellow
HSI Special Agent Erol Catalan ("Catalan") and Louisiana State
Police Investigator Georgiana Kibodeaux ("Kibodeaux").
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.
- 5 -
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
1
In a written memorandum explaining the denial of the motion
to suppress, the district court stated that the driveway ran 300
to 500 yards. However, the district court's use of "yards" appears
to have been in error, as none of the testimony supports the
conclusion that the driveway traversed that distance.
- 6 -
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 called the "deliveries" number several times, but nobody
answered. Lopez and Kibodeaux, on foot, then "stepped through the
gate." This required Kibodeaux and Lopez to "duck[] down" and
pass between the top and middle bars forming the gate. Lopez
testified that this crossing was "like . . . [going] through a
barbed wire fence." When the district court asked Lopez about
what appeared to be a gap "meant for people to pass through" -- a
short length between the two sections of the gate that lacked a
top bar -- Lopez clarified that the gap was not wide enough for
2 "[T]he knock and talk rule permits the police to enter onto
private land and knock on a citizen's door for legitimate police
purposes, such as gathering information in an investigation,"
without a warrant. Young v. Borders, 850 F.3d 1274, 1284 (11th
Cir. 2017).
- 7 -
either agent. After crossing through, Kibodeaux and Lopez realized
that, when pushed, the two gate sections could be separated far
enough for Kibodeaux to fit through. Catalan stayed behind and
waited by the gate in his truck.
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,
- 8 -
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."
- 9 -
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 form.3 Smith demurred,
asking what would happen if he refused to grant consent. Kibodeaux
replied that it was his right to refuse consent, but that the
3 The consent to search form is as follows:
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.
- 10 -
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
4 The record is unclear as to how Smith consented to the
search. Kibodeaux and Lopez both simply testified that Smith had
consented. However, because it is undisputed that Smith did not
sign the consent to search form until a later point in time, we
infer that Smith initially verbally consented.
- 11 -
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 have Smith come into the local state police
station. Lopez called Smith and told him that there was nothing
found on his devices and that he could pick up the computer and
hard drives at the station. Once Smith arrived, however, Kibodeaux
and three other officers detained him and told him that he was not
free to leave. Kibodeaux brought Smith into an interview room and
read him his Miranda rights. Smith waived those rights only after
asking several questions about them and having those questions
answered by Kibodeaux.
- 12 -
Kibodeaux presented Smith with a still-shot photo from
one of the videos. She further asked about the sexual assault
depicted in the videos. Smith thereafter admitted to raping the
victim and videotaping the assault on May 26, 2015. On the basis
of this admission, law enforcement agents obtained a search warrant
for Smith's residence. Agents further obtained an arrest warrant
based on the videos.
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 18 U.S.C. § 2251(a).
Each count corresponded to one of the videos Smith had produced on
May 26, 2015.
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
- 13 -
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-
5 The district court later issued a written memorandum and
order expounding on its reasoning on October 18, 2017.
- 14 -
time offender convicted of a single offense under Section 2251(a)
-- rather than 180 years, or thirty years per conviction.
The district court disagreed, noting that the videos had
depicted at least two distinct sexual assaults. Accordingly, it
found that the maximum sentence that would not implicate the Double
Jeopardy Clause was at least sixty years. It expressly declined
to address Smith's argument concerning the proper unit of
prosecution under Section 2251(a), but stated that it found
opinions from other circuits holding that the proper unit was each
visual depiction of the minor to be persuasive. It ultimately
sentenced Smith to a term of imprisonment of thirty years on counts
one through five, to be served concurrently. In addition, the
court sentenced Smith to a term of imprisonment of thirty years on
count six, which corresponded to a video depicting vaginal
penetration. As to that count, ten years was to be served
concurrently with counts one through five, and the remaining twenty
years was to be served consecutively. Thus, the total sentence
imposed was fifty years. This timely appeal followed.
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
- 15 -
(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
6All persons, whether law enforcement agents or private
citizens, have an implied license to enter property and knock on
a homeowner's door. See Kentucky v. King, 563 U.S. 452, 469
(2011). "However, the scope of [the] license . . . is limited not
only to a particular area but also to a specific purpose." United
States v. Bain, 874 F.3d 1, 12-13 (1st Cir. 2017) (quotation marks,
alteration, and citation omitted). Moreover, the occupant "has no
obligation to open the door or to speak." King, 563 U.S. at 469-
70. While this court and the Supreme Court have never specified
that a homeowner may revoke the implied license of entry in the
context of the Fourth Amendment, several other circuit courts have
held so where the homeowner takes steps such that a reasonable
member of the public would conclude that he was not welcome on the
property. See, e.g., United States v. Carloss, 818 F.3d 988, 994-
95 (10th Cir. 2016). Although we are skeptical that the implied
license of entry could be irrevocable, we do not resolve this
question today, as we assume arguendo that the locked gate revoked
the implied license of entry.
- 16 -
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 sufficiently close relationship to the underlying
illegality." United States v. Delgado-Pérez, 867 F.3d 244, 256
(1st Cir. 2017) (quotation marks and citation omitted). To
determine whether there was a sufficient nexus between the illegal
act and the defendant's consent, this court considers the factors
enumerated by the Supreme Court in Brown v. Illinois, 422 U.S. 590(1975). Delgado-Pérez, 867 F.3d at 257. Those factors are: (1)
"temporal proximity" between the illegal act and the consent, (2)
"the presence of intervening circumstances," and (3) "the purpose
and flagrancy of the official misconduct." Brown, 422 U.S. at
603-04. "And, where, as here, an earlier unlawful search is
alleged to have tainted consent that is given later, we have
'emphasized the importance of determining whether the prior
illegality significantly influenced or played a significant role
in the subsequent consent.'" Delgado-Pérez, 867 F.3d at 257
- 17 -
(quoting United States v. Cordero-Rosario, 786 F.3d 64, 76 (1st
Cir. 2015) (internal quotation marks omitted)).
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
- 18 -
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. After the recitation, Smith did not immediately grant
consent to search his computer and hard drives; instead, he asked
- 19 -
about the consequences of refusing consent. Kibodeaux accurately
replied that while Smith could refuse consent, the agents could
detain the computer based on his admission that it contained child
pornography while they applied for a warrant. This clearly shows
that Smith was given "an opportunity to pause and reflect" and
that he was cognizant of the importance of consent. Whisenton,
765 F.3d at 942; (internal quotation marks and citation omitted)
cf. also United States v. Stark, 499 F.3d 72, 77 (1st Cir. 2007)
(finding that defendant's third confession at new time and location
constituted an intervening event). Although Smith did not sign
the consent to search form until after the officers had seized his
computer and hard drives and the search was completed, that does
not alter our conclusion that he was, or should have been, fully
aware of his constitutional rights at the time of his granting
consent. See Delancy, 502 F.3d at 1311-12. Accordingly, this
factor weighs in the government's favor. See id.
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-
- 20 -
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
- 21 -
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 Fourth
Amendment provides in relevant part that the 'right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated.'"
Florida v. Jardines, 569 U.S. 1, 5 (2013) (quoting U.S. Const.
amend. IV). However, the Fourth Amendment does not "prevent all
investigations conducted on private property." Id. at 6. Rather,
at its "very core" it protects the home and its curtilage, or the
area "immediately surrounding and associated with the home." Id.
at 6. By contrast, as a general matter, the Fourth Amendment does
not prohibit government intrusion into activities occurring in
"open fields." Oliver v. United States, 466 U.S. 170, 179-82
(1984).
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).
- 22 -
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
7 The only area the agents approached that was clearly
curtilage was the front door to the primary residence. See, e.g.,
Jardines, 569 U.S. at 7 ("The front porch is the classic exemplar
of an area adjacent to the home and to which the activity of home
life extends." (internal quotation marks and citation omitted)).
We note, however, that Smith did not live in that residence and
does not claim to have conducted any activities there. Thus, from
this record it appears that the front porch was not curtilage as
to Smith and that he may not contest the agents' entry there. Cf.
United States v. Stokes, 829 F.3d 47, 51 (1st Cir. 2016) (stating
that "the defendant carries the burden of making a threshold
showing that he has a reasonable expectation of privacy in the
area searched and in relation to the items seized." (internal
quotation marks and citations omitted)); Bain, 874 F.3d at 13
(discussing generally who may contest governmental property
invasions and noting that an "overnight guest" can contest a search
of the home). Again, however, we need not reach that issue.
- 23 -
purposeful and flagrant violation of Smith's Fourth Amendment
rights. See Cordero-Rosario, 786 F.3d at 76.
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 the
totality of the circumstances.'" United States v. Forbes, 181
F.3d 1, 5 (1st Cir. 1999) (quoting United States v. Barnett, 989
F.2d 546, 554-55 (1st Cir. 1993)). "We review [the district
court's] determination that consent was voluntary for clear
error." Id. (citing Barnett, 989 F.2d at 556).
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"
- 24 -
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 Fourth Amendment violation did not affect Smith's
subsequent grant of consent to enter his home or search his
computer and hard drives.
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
- 25 -
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
- 26 -
consent. See United States v. Vazquez, 724 F.3d 15, 22 (1st Cir.
2013) ("[T]he law is . . . clear that consent to a search is not
invalid merely because it is secured by an officer's accurate
assurance that there will soon be a lawful search anyway."
(citations omitted)).
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
Fourth Amendment." King, 563 U.S. at 462. He argues that the
only reason he would have sought to delete the pornography was
because of the agents' illegal entry onto the property. From this,
he reasons that "all evidence obtained as a result of [his]
purported consent, including the videos and his subsequent
[confession], should have been suppressed." However, "exclusion
may not be premised on the mere fact that a constitutional
violation was a 'but-for' cause of obtaining evidence." Hudson v.
Michigan, 547 U.S. 586, 592 (2006); see also Garcia-Aguilar v.
Lynch, 806 F.3d 671, 675 (1st Cir. 2015). Rather, "there also
must be some indication that government actors took advantage of
the initial illegality to obtain the challenged evidence." Garcia-
Aguilar, 806 F.3d at 675 (citing Wong Sun, 371 U.S. at 488). For
largely the same reasons given in the previous section, we find
that the agents did not take advantage of the alleged
- 27 -
constitutional violation to obtain his consent to search the
computer and hard drives.
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 Section 2251, because all six convictions stemmed
from a "single episode, at the same place within a short period of
time with the same perpetrator and victim." In other words, he
argues that the government used the wrong unit of prosecution such
that his convictions were multiplicitous.
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
- 28 -
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).
18 U.S.C. § 2251(a) (emphasis added). He reasons that the videos
depicted one continuous "use" of the victim, such that all six
convictions should have merged for sentencing purposes.
The district court rejected this argument at sentencing,
noting that multiple federal appellate courts have held that the
proper unit of prosecution of Section 2251 was each image or video
depicting the child, not each "use" of the child. The district
court also found that there were at least two discrete acts
depicted in the videos. The court further noted that while the
videos, each of which was approximately one minute long, were
produced in a single session, their production took place over one
- 29 -
hour and were interspersed. Therefore, the court concluded that
a sentence of fifty years was constitutionally permissible.8
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.
Section 2251 criminalizes the use of a "minor to engage in, any
sexually explicit conduct for the purpose of producing any visual
depiction of such conduct." 18 U.S.C. § 2251(a) (emphasis added).
"The fact that multiple [videos] may have been sequentially
produced during a single . . . session is irrelevant. Each [video]
depended upon a separate and distinct use of the children." United
States v. Esch, 832 F.2d 531, 542 (10th Cir. 1987); see also United
States v. Tashbrook, 144 F. App'x 610, 614-15 (9th Cir. 2005)
(unpublished). Thus, on the facts presented here, the six separate
counts were not multiplicitous.
In his brief, Smith also argues that Section 2251 is
unconstitutionally ambiguous. He relies on United States v.
Verrecchia, 196 F.3d 294 (1st Cir. 1999), in which this court held
that the simultaneous possession of multiple firearms by a felon
constituted a single violation of the felon-in-possession statute,
18 U.S.C. § 922(g)(1). Id. at 298. In doing so, it stated that
8
Again, the court imposed a thirty-year sentence on counts
one through five, to be served concurrently, and a separate thirty-
year sentence on count six, with twenty years to be served
consecutively.
- 30 -
where the punishment for a federal offense is ambiguous, the doubt
is "resolved against turning a single transaction into multiple
offenses." Id. (citing Bell v. United States, 349 U.S. 81, 84
(1955)). Smith argues that the word "any" renders Section 2251(a)
similarly ambiguous because it "could be found to mean either a
single instance of producing multiple images, or the many different
images themselves."
However, we see no ambiguity in Section 2251, nor does
the sole case that Smith cites for the proposition that an
ambiguity exists support his claim. In United States v. Coutentos,
No. 09-cr-60-LRR, 2009 WL 4730180 (N.D. Iowa Dec. 3, 2009), the
defendant had produced a single pornographic video depicting two
children. The government brought two counts under Section 2251(a),
and the defendant moved to strike one of the two counts. Id. at
*1. The district court granted the motion, explaining that the
indictment was multiplicitous because there was "a single
production of a single video." Id. at *2. Because Section 2251
is ambiguous as to whether "each minor can serve as a unit of
prosecution," the court applied the rule of lenity in favor of the
defendant. Id. By contrast, here, Smith was charged with
producing six separate videos. Accordingly, Coutentos, whether
rightly or wrongly decided, does nothing to undermine our holding
today.
- 31 -
V. Conclusion
For the foregoing reasons, the district court's denial
of the motion to suppress and the sentence that it imposed are
AFFIRMED.
- 32 -