United States v. Donald Anderson ( 2013 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 7, 2013
Decided October 4, 2013
Amended October 21, 2013
Before
FRANK H. EASTERBROOK, Circuit Judge
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 13-1003
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 09 CR 754-1
DONALD ANDERSON,
Defendant-Appellant.
Joan B. Gottschall, Judge.
ORDER
Donald Anderson was under investigation for sexual assault of a child when he
gave the police written consent to search his home and take “whatever documents or
items of property whatsoever they deem pertinent to their investigation.” The officers
seized computers and a memory card; photographs on the memory card prompted
further searches (with warrants) and led to federal charges. Anderson moved to
suppress the items taken during the consensual search (and everything seized in the
later searches as fruits of that initial search). He raised two claims but presses only one
No. 13-1003 Page 2
of them on appeal: His consent to search did not extend to his computers or storage
media. After the district court rejected that contention, Anderson entered a conditional
guilty plea and was sentenced to 50 years’ imprisonment. We affirm the judgment.
In March 2007 a mother in Norridge, Illinois, reported to police that her
12-year-old daughter was missing. The girl turned up less than an hour later and she
said she had been in Park Forest at the home of a family friend, Anderson, who was
then 42. That information prompted a referral to police in Park Forest. The girl was
twice interviewed by Park Forest officers, the first time by Commander Brian Tas and
the second by Detective Jim Varga. She eventually disclosed to Varga that Anderson
had sex with her on more than one occasion.
Two days after interviewing the girl, Detective Varga went to Anderson’s home
with two other officers and invited him to the police station. At the station Anderson
confessed to having sex with the girl and signed the written “Permission to Search” his
home. The officers returned to the house and removed several computers and the
memory card, which was plugged into one of those computers. Later examination of the
memory card revealed photographs of the 12-year-old posing naked and kissing
Anderson. The police then obtained a search warrant and recovered bedding, a love
letter from the girl to Anderson, more computers and storage media, and cameras. The
storage media held additional child pornography, which led to a second search warrant
targeting VHS cassettes and other storage media that had been left behind at the house.
One VHS tape from 1997 depicts Anderson having sex with a different girl, who was 8
years old at the time. Her mother unfortunately trusted him to care for her daughter.
Anderson pleaded guilty in state court to predatory criminal sexual assault of the
12-year-old, see 720 ILCS 5/11-1.40, and was sentenced to 16 years in prison. Federal
authorities then charged him with sexual exploitation of the 8-year-old, see 18 U.S.C.
§ 2251(a), and with receipt and possession of child pornography, see id. § 2252A(a)(2).
In his motion to suppress, Anderson asserted that, before he gave consent to
search, Park Forest officers already had entered his home without authorization and
removed from a digital camera a second memory card which, like the one plugged into
the computer, held pictures of the 12-year-old. That conduct, Anderson argued, tainted
his consent. And even if it did not, his consent did not authorize the seizure of
computers and storage media. Anderson claimed that the consent form that he signed
limited the scope of his consent to search property “pertinent” to the sexual-assault
No. 13-1003 Page 3
investigation. He insisted that what the police took was not pertinent to his sexual
assault of the 12-year-old girl.
The district court conducted an evidentiary hearing on Anderson’s motion and
accepted filings from the parties. These submissions include an investigative report
authored by Commander Tas and Detective Varga. In that report Tas recounts that,
when he interviewed the 12-year-old, she said she had been communicating with
Anderson for more than a year by e-mail and instant messaging. Tas briefed Varga,
who then interviewed the girl and her mother. Varga recounts that the girl’s mother had
said she asked Anderson, who ran a computer business, to counsel her daughter about
use of the social-networking website MySpace. Anderson did so and even warned her
that pedophiles on the Internet take advantage of young girls.
At the evidentiary hearing, Anderson’s account of an initial warrantless search of
his house contradicted the testimony from the police witnesses (Detective Varga and the
two officers who accompanied him on the first visit to Anderson’s home). Anderson
maintained that, when the police first came to his home, the two officers with Varga
restrained him on the porch while the detective entered the house without permission
and grabbed the camera and its intact memory card. Varga and his two colleagues all
denied entering Anderson’s home before he gave written consent.
Detective Varga also testified that when Anderson was interviewed at the police
station he acknowledged communicating with the 12-year-old by e-mail and instant
messaging. Varga claims that’s why he looked for computers during the consensual
search of Anderson’s home. When questioned by defense counsel, Varga denied that at
the time he interviewed Anderson he knew or had reason to believe that the defendant
had photographed the girl.
During the hearing Anderson never asserted that he had qualified his consent or
that he was told or led to believe that the police officers did not deem computer
equipment or digital storage media to be “pertinent” to their investigation of his sex
crime. Neither did any of the three police officers say this. In fact, there was no
testimony from any witness about conversation between Detective Varga and Anderson
after the detective had read the consent form to Anderson and presented it for review
and signature. Anderson did assert that he failed to comprehend the form because he
was having a panic attack. Yet one of the officers who searched Anderson’s house with
Varga testified that he witnessed Anderson sign the consent form and did not perceive
him to be confused or panicked.
No. 13-1003 Page 4
The district court believed the police officers, not Anderson. The court found
that, before conducting the consensual search of Anderson’s home, the officers already
knew that he and the girl had communicated over the Internet. With that, the court
concluded that the computers and memory card taken during the consensual search
were relevant to the sexual-assault investigation and within the scope of Anderson’s
consent. Accordingly, the court denied the motion to suppress.
On appeal Anderson no longer asserts that the police seized the digital camera
and its memory card (or anything else) before he signed the consent form. His appeal
instead hangs on the contention that the police exceeded the scope of his consent.
Anderson insists that the consent form, by its terms, authorized the police to search
only for property “pertinent” to their sexual-assault investigation. In his view, that did
not include the computers and memory card. He thinks those items would have been
relevant only if Detective Varga had known before asking for consent that Anderson
and the girl had communicated over the Internet. Anderson insists that since Varga did
not know about the electronic communications, the district judge must have been
speculating that Varga was privy to what Commander Tas learned while interviewing
the victim. Anderson’s rendition of the facts and the applicable law is incorrect.
The consent form authorized the police to seize “whatever documents or items of
property whatsoever they deem pertinent to their investigation.” Broad language in a
standardized consent form, like that here, must be read in the context of the interactions
between the suspect and police that surrounded the execution of the form. See United
States v. Breit, 429 F.3d 725, 729–30 (7th Cir. 2005); United States v. Lemmons, 282 F.3d 920,
924 (7th Cir. 2002). The scope of consent is measured objectively, with a focus on the
object of the search as represented to the suspect. Florida v. Jimeno, 500 U.S. 248, 251
(1991); United States v. Jackson, 598 F.3d 340, 348 (7th Cir. 2010).
There wasn’t any testimony at the evidentiary hearing, nor has Anderson ever
contended, that he or the police officers expressly narrowed the scope of the writing.
The officers did not, for instance, tell Anderson they were searching only for specific
evidence. See Lemmons, 282 F.3d at 924 (limiting scope of consent when police told
suspect they were looking for camera or recordings of neighbor’s window). Still, before
the officers presented him with the form, they had been questioning Anderson
exclusively about his sexual relationship with the girl. One might think that if Anderson
signed the consent, the police would search only for evidence reasonably related to the
sexual assault being investigated. United States v. Coleman, 588 F.3d 816, 820 (4th Cir.
2009) (explaining that crime being investigated, a shooting, was relevant in determining
No. 13-1003 Page 5
scope of consent); United States v. Turner, 169 F.3d 84, 87–89 (1st Cir. 1999) (same for
assault investigation); LaFave, supra, § 8.1(c) at 26 (“[G]eneral consent is constrained by
the bounds of reasonableness . . . .”). Even the government accepts that the written
consent could not have been unlimited.
That said, Anderson’s premise that Detective Varga didn’t know that internet
communications had occurred is both factually incorrect and irrelevant. It wasn’t only
Commander Tas’s interview of the victim that established that she communicated with
Anderson over the internet. Varga testified that Anderson admitted during the
stationhouse interview that he had talked with the girl online. And as noted previously,
Varga recounts in the investigative report that he personally learned from the girl’s
mother about her use of MySpace. Putting aside that Varga testified that he discussed the
investigation with Tas, the two officers belonged to the same police force, so the
doctrine of collective knowledge imputes Tas’s information to Varga. See United States v.
Hensley, 469 U.S. 221, 231 (1985); United States v. Williams, 627 F.3d 247, 252 (7th Cir.
2010). It should have been no surprise when the police officers seized the computers
while investigating Anderson’s relationship with the 12-year-old. See Breit, 429 F.3d at730–31 (concluding that consent to search for guns “or anything related to them”
encompassed notebook and journal that might have contained inventory of guns or
plans to use them); United States v. Raney, 342 F.3d 551, 558 (7th Cir. 2003) (explaining
that consent to search for evidence “in the nature of” narcotics encompassed drug
paraphernalia, scales, and drug ledgers).
Morever, even if the record supported Anderson’s contention that the police
knew nothing of his internet communications with the victim, digital media have
become so ubiquitous in the 21st century that rarely will storage devices not be
“pertinent” in an investigation of the sexual assault of a child. As the Sentencing
Commission has observed, “In recent years, the number of still images and videos
memorializing the sexual assault and other sexual exploitation of children, many very
young in age, has grown exponentially as the result of changes in technology.” U.S.
Sentencing Comm’n, Federal Child Pornography Offenses 3 (2012), available at
http://www.ussc.gov/Legislative_and_Public_Affairs/Congressional_Testimony_and_R
eports/Sex_Offense_Topics/201212_Federal_Child_Pornography_Offenses/Chapter_01.
pdf. And it is common for sex offenders to use computers to communicate with their
victims online. Edward M. Marsico, Jr., Social Networking Websites: Are MySpace and
Facebook the Fingerprints of the Twenty-First Century?, 19 Widener L.J. 967, 967–69 (2010);
Elizabeth P. Stedman, MySpace, but Whose Responsibility?: Liability of Social-Networking
Websites When Offline Sexual Assault of Minors Follows Online Interaction, 14 Vill. Sports &
Ent. L.J. 363, 364, 372–74 (2007); Kate Knibbs, Sexual Assault in the Digital Age, Mobiledia
No. 13-1003 Page 6
(July 17, 2012), http://www.ramadan.com/mobil/sexual-assault-in-the-digital-age.html.
Further, the form Anderson signed authorized police to seize “documents”; many
documents are now created and saved on computers, so the love letter the police found
easily could have been discovered as a saved e-mail, online chat, or social-networking
post in a browsing history. Accordingly, cameras and computers were objectively
pertinent to the investigation of Anderson’s sexual assault of the 12-year-old, with or
without prior knowledge of actual online communications.
The scope of consent is measured objectively, without consideration of the
policeman’s private, subjective intent. United States v. White, 706 F.2d 806, 808 (7th Cir.
1983); LaFave, supra, § 8.1(c) at 23. For that reason, Anderson is incorrect in assuming
that it matters if the police all along meant to search for child pornography and thus
took his computers before seizing physical evidence of the sexual assault (such as the
bedding recovered later). Similarly irrelevant are Anderson’s abandoned assertions of
confusion and anxiety, as the perspective of a “typical reasonable person”—not a
person with (if it is to be credited) a panic disorder—is what matters. See Jimeno, 500
U.S. at 251; United States v. Saucedo, 688 F.3d 863, 866, 868 (7th Cir. 2012) (considering
what a “reasonable person would have understood” despite defendant’s assertion that
illness affected his ability to understand scope of consent).
AFFIRMED.