United States v. Lemmons, Shelby ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3809
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SHELBY LEMMONS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 00-CR-14--David F. Hamilton, Judge.
Argued November 2, 2001--Decided February 27, 2002
Before POSNER, RIPPLE, and EVANS, Circuit
Judges.
EVANS, Circuit Judge. Much like the
"interactive process" required of
employers and employees in cases
involving reasonable accommodations under
the ADA, a "consent" to search often
involves a little bit of give-and-take
between police and a person giving
permission for a search. Unraveling what
occurred during that exchange is the
stuff of suppression hearings in the
district court, and a judgment on what
happened (and what consequences flow from
what happened) is usually a very fact-
intensive inquiry. So it is in this case.
This case comes to us after Shelby
Lemmons pled guilty to charges of using a
minor to engage in sexually explicit
conduct for the purpose of producing a
videotape in violation of 18 U.S.C. sec.
2251(a) (Count I) and, on the basis of
three computer images, possessing
computer files containing depictions of
minors engaged in sexually explicit
conduct in violation of 18 U.S.C. sec.
2252A(a)(5)(B) (Count II). Lemmons’
guilty pleas were conditioned on his
ability to air, on appeal, his claim that
the district court erred in denying his
motion to suppress.
Our case starts in a trailer park where
Lemmons lived in a trailer assigned to
"Space 66." The chain of events started
when Lemmons’ next-door neighbor, a woman
living in trailer "Space 65," called the
Bloomington (Indiana) police department
to report seeing a camera lens on her
trailer that should not have been there.
It was pointed toward her bedroom. Jeff
Canada, a Bloomington police officer, re
sponded to the complaint and traced a
cable wire attached to the intruding
camera. It led straight to Lemmons’
trailer.
Bloomington Detective Anthony Pope soon
arrived on the scene. Pope knew Lemmons
(Lemmons greeted Pope saying, "What’s up,
Tony?"), who on previous occasions
cooperated with the Bloomington police by
making controlled drug buys for them.
Pope knocked on Lemmons’ door and told
him about his neighbor’s complaint. Pope
said he wanted to talk to Lemmons about
the incident. Lemmons agreed and Pope and
Canada came in, as did two officers who
arrived earlier. Pope told Lemmons that
he wanted to search the trailer to make
sure that Lemmons didn’t have any record
ings of goings-on in his neighbor’s
bedroom. After a back-and-forth about
whether Pope had a warrant (he didn’t),
Lemmons volunteered to get some
recordings. He started to move toward his
bedroom, but Pope stopped him and pulled
out a consent-to-search form. While going
over the form with Lemmons, Lemmons asked
Pope if he could talk to him alone. Pope
asked the other officers to leave.
Lemmons then told Pope that there were
things in his trailer that he did not
want Pope to find. He mentioned that he
had some marijuana. Pope said the police
were not worried about that; they were
there to investigate the camera and
recordings. Lemmons also mentioned that
he had a crack pipe. Pope then told
Lemmons he would not "bargain things
away" and that Lemmons needed to decide
whether to consent to a search. Lemmons
then signed the form after Pope read its
contents to him. Pope also read Miranda
warnings to Lemmons.
According to Pope, Lemmons handed him
some pictures, saying, "You’re going to
want to see these too, but they’re
legal." Pope described the pictures as
being of a female in her late teens; in
some of the pictures she was partially
nude. He thought the pictures were
sexually provocative. Lemmons also
pointed out some videotapes. Canada went
to review the tapes on Lemmons’ VCR.
Pope next searched a front room in the
trailer that resembled an office. There,
Lemmons pointed out some Polaroids. One
of them, Lemmons said, was a picture of
his 17-year-old daughter. According to
Pope, the girl in the picture was wearing
a shirt and underwear and was in a "here
I am" type pose. Pope pointed to a
computer in the room and asked Lemmons if
there was anything on it that Pope needed
to be aware of. According to the district
court findings, Lemmons told Pope that he
could look if he wanted and turned on the
computer for Pope. When the computer came
on, Pope recognized a program involving
photographs. He pulled up the program and
turned it on. Using it, he found on the
hard drive images containing child
pornography. He estimated that there were
over 100 images, with the subjects
ranging in age from 5 to their late
teens. Standing either beside or a few
feet behind Pope as he reviewed the
images, Lemmons said, "It’s not what you
think." He claimed that the images had
been sent to him by other people.
Pope had another officer drive Lemmons
to the police station. Canada told Pope
that the tapes he reviewed included a
female about 5 years old in a bathtub.
Another video contained a female in her
teens engaging in sexual conduct with
Lemmons.
An hour or so later, Pope interviewed
Lemmons at the police station. Lemmons
admitted taping his neighbor’s bedroom
window. He also claimed that the 5-year-
old on the tape was his granddaughter and
that he had taped her. He acknowledged
the videotape of the other teenager with
him and admitted that he was responsible
for the computer images, which he had
traded with other people over the
Internet. Lemmons was not arrested after
all this talk-- Pope simply drove him
back to the trailer park and dropped him
off.
Pope contacted Special Agent Robert
Molina of the FBI and informed him of
what he had found. Molina believed the
material fit the definition of child
pornography under federal law. The next
day Molina accompanied Pope back to
Lemmons’ trailer, where they obtained
more admissions involving Lemmons’ use of
the Internet and the mail to trade child
pornography. Lemmons also consented
toanother search./1 While searching,
Molina found more incriminating items.
Lemmons argues on appeal that the
Bloomington police exceeded the scope of
his consent while searching his trailer.
Unfortunately, his argument in the
district court focused on whether his
consent was involuntary. His motion to
suppress did not pointedly contest the
scope issue. Only patches of Lemmons’
testimony touched the issue and even then
only in response to questions from the
government. At the end of the hearing,
Lemmons’ argument made only cursory
allusions to "a fairly general search"
and "a general rummaging." In sum, we
think Lemmons did not raise the issue of
the scope of consent before the district
court./2
The more important question is what
effect that has on our review. Lemmons
claims it has none, citing United States
v. Hardin, 710 F.2d 1231 (7th Cir. 1983).
Hardin was also a case where the
defendant had not raised the scope of
consent issue before the district court
but challenged only the voluntariness of
a consent. Id. at 1236. We held that the
district court’s conclusion with regard
to voluntariness "necessarily include[d]
a finding that . . . consent was broad
enough to encompass the search in
question." Id. We doubt that Hardin gives
a free appellate pass (and a potential
remand to the district court) to any
defendant who fails to raise a scope of
consent argument in a case involving the
voluntariness of consent. But in Hardin
we found enough of a factual record to
make our review possible. The same is
true here. Accordingly, we will assume
that the district court’s voluntariness
holding necessarily included an
unarticulated finding that the consent
given was broad enough to cover the scope
of the subsequent search./3 On a
district court’s denial of a motion to
suppress, we review the district court’s
factual findings for clear error and
questions of law de novo. United States
v. Chaparro-Alcantara, 226 F.3d 616, 620
(7th Cir. 2000).
The first task is defining the scope of
Lemmons’ consent, at least initially. The
scope of consent is defined by gauging,
under the totality of the circumstances,
what a "typical reasonable person" would
have understood it to be. Florida v.
Jimeno, 500 U.S. 248, 251 (1991). "The
scope of a search is generally defined by
its expressed object." Id.; United States
v. Saadeh, 61 F.3d 510, 518 (7th Cir.
1995). Pope gained access to Lemmons’
trailer by saying that he needed to talk
to him about his neighbor’s complaint
about videotaping. When he was inside,
Pope said that he "needed to . . . search
his home and make sure that he didn’t
have any recordings of her bedroom window
inside." Lemmons replied, "I’ll be honest
with you, I’ve got some recordings in
here and I’ll go get ’em for you." After
Pope called Lemmons back, Lemmons said
that he had "some videotapes" but also
some other things that Lemmons did not
want the police to see. Pope responded,
"I’m here to investigate the camera and
some recordings." Lemmons then
volunteered to get his videotapes. A
reasonable observer would clearly
understand these exchanges as centering
on recordings of the neighbor’s bedroom
window.
The government claims that when Lemmons
signed the consent form, a somewhat
standardized one which contained general
language authorizing a search of his
"premises," he consented to an unlimited
search (with a side agreement granting
Pope immunity for any marijuana that
turned up). We reject that argument in
this case. It would sanction deception to
hold that, despite Pope’s assurances,
Lemmons consented to an unlimited search
when he signed the consent form. Although
the consent form is probative of the
voluntariness of Lemmons’ consent, it
helps little in determining its scope. In
light of Pope’s statements that he wanted
to look for a camera or recordings of the
neighbor’s window, we conclude that
Lemmons initially consented to a search
only for those items. As such, the
officers would have been limited to
searching in only those areas in which
that evidence could reasonably have been
expected to be found. Cf. United States
v. Dichiarinte, 445 F.2d 126, 130 (7th
Cir. 1971).
But Lemmons’ consent was built on
shifting sands. He continued to expand
its boundaries as the police proceeded
through his trailer. Just as a
warrantless search can be authorized by
consent, the scope of a search can be ex
panded by consent. Hardin, 710 F.2d at
1236 (finding that a pat-down search for
narcotics was "expanded by consent" when
a suspect described papers protruding
from his pocket and handed them to the
officer). Because Lemmons concedes that
the videotapes were lawfully searched for
and seized pursuant to his original
consent, the only evidence directly
challenged is the photographs and the
images found on the computer./4 The
undisputed testimony indicates that once
the search began, Lemmons started
showcasing his photographs as though they
were vacation souvenirs. Pope testified
that Lemmons handed the first set of
pictures to him, saying, "You’re going to
want to see these too, but they’re
legal." In his office, Lemmons pointed
out Polaroids, which included a picture
of a 17-year-old girl. A policeman need
not avert his eyes to what a suspect vol
untarily puts before them. There is no
evidence disputing Pope’s testimony with
regard to the pictures, and they were
lawfully searched pursuant to Lemmons’
consent.
That leaves the images found on the
computer, three of which formed the basis
for the second count of the indictment.
To recap, Pope went to the computer after
the police found the videotapes (but
before Canada relayed their content to
Pope) and after Lemmons showed him the
pictures in the bedroom and office. A
search of the computer at that point
would probably have exceeded the scope of
Lemmons’ original consent. A camera or
recording was not likely to be found by
turning on a computer. Moreover, there is
no indication that Pope believed that the
wire leading from the neighbor’s trailer
had somehow recorded on the computer.
Whether provocative pictures of (late)
teenage girls, both clothed and
unclothed, would have furnished probable
cause for a warrant authorizing a search
of the computer for child pornography may
be debatable.
It is also academic because Pope never
had to seek a warrant. The district court
found that Lemmons told Pope he could
search his computer, which he even turned
on for Pope. Although Lemmons testified
that he told Pope not to go on the
computer, there is nothing to suggest the
district court committed clear error by
crediting Pope’s testimony. When Pope
asked, on the heels of viewing Lemmons’
pictures, whether there was anything on
the computer that he needed to be aware
of, Lemmons invited Pope to check.
Although Lemmons testified that Pope
"controlled" the computer, there is no
evidence that Lemmons protested while he
was standing (at most) 4 feet behind Pope
as he located images on the computer.
Instead, he said, "It’s not what you
think," and claimed that the images were
sent to him by other people. Pope
described Lemmons as "very cooperative"
and "calm" when he turned the computer on
for Pope. Based on the evolving exchanges
between Lemmons and Pope, Lemmons
consented to a search of his computer for
pornographic images./5
We emphasize that Lemmons took
affirmative steps to aid the officers in
their search and that there is no
evidence that the officers forced Lemmons
to expand the scope of his initial
consent. He was calm and cooperative
throughout the process; he also had prior
experience with Pope and the police
department. Knowing they already had
incriminating videotapes (even if Pope
did not yet know their precise contents),
it’s a good bet Lemmons hoped to curry
favor with Pope by cooperating. Whatever
the case, Pope did not act unreasonably
by finding evidence of criminality in a
place to which he was granted access.
Lemmons cites two cases supposedly
contrary to our holding. Although neither
deals with this case’s unique facts, they
are worth comparing. In United States v.
Carey, 172 F.3d 1268 (10th Cir. 1999),
the police obtained a warrant authorizing
them to search computer files for
evidence "pertaining to the sale and
distribution of controlled substances."
Id. at 1270. Acting under the warrant, an
officer located files with sexually
suggestive titles and the label "jpg,"
denoting an image. Id. Although the
officer testified that he did not know
what the label meant originally, after
looking at the first file and discovering
child pornography, he nonetheless
downloaded over 200 other files. Id. at
1271. The court did not suppress the
first file, which the officer stumbled
onto inadvertently, but did suppress the
succeeding files. Id. at 1273 n.4. The
files were not in plain view because "the
contents of the files and not the files
themselves" were seized. Id. at 1273.
Moreover, the officer had testified that
after viewing the first file, "each time
he opened a subsequent JPG file, he
expected to find child pornography and
not material related to drugs." Id.In United States v. Turner, 169 F.3d 84(1st Cir. 1999), the police obtained
consent to search an apartment for
evidence of an assault of a neighbor. The
police told the resident, whom they were
beginning to suspect was the assailant,
that they wanted to look for evidence of
the assault. With the suspect remaining
on the first floor, officers began a 90-
minute search of the second floor. A
detective on the second floor noticed a
computer suddenly turn on; a photograph
of a nude woman appeared on the screen.
Believing that the woman resembled the
assault victim, he sat down at the
computer and accessed the "used files"
index on the toolbar, which displayed
several files labeled "jpg." Clicking on
these files, he found several pictures of
nude women in bondage. He later searched
the hard drive and found files entitled
"young" and "young with breasts." Opening
one of these files, he discovered child
pornography. The court suppressed the
evidence, holding that the search of the
computer files exceeded the scope of the
consent given.
Neither Carey nor Turner dealt with the
evolving consent at issue here. In Carey,
the officer was confined by the strict
language of the warrant; in Turner, the
officer was confined by the boundaries of
the original consent, which were never
expanded to include a computer search. By
contrast, Lemmons accompanied the police
around his trailer, inviting them to look
at different things. Had Lemmons stuck to
his initial consent limiting the police
to search for a camera or recordings of
his neighbor, the computer search would
have been illegal. Had Lemmons consented
to the search of the computer, but only
for computer images of his neighbor,
Pope’s search of the computer may also
have been illegal, depending on the
details of Lemmons’ labeling system and
other variables. But Lemmons did not
limit Pope in either manner. Rather,
after (lawfully) viewing
photographsraising suspicions of child
pornography, Pope asked Lemmons whether
there was anything he needed to be aware
of on the computer. Lemmons responded by
inviting him to look on the computer and
then turning it on for him. There is no
evidence that he limited Pope’s
subsequent search of the files or
protested when Pope accessed them. He
instead explained to Pope that the images
belonged to other people. Accordingly,
Pope was not exceeding the scope of
Lemmons’ consent when he uncovered
pornographic images on the computer.
Upon this record, the decision denying
Lemmons’ motion to suppress will not be
disturbed. The judgment of the district
court, therefore, is AFFIRMED.
FOOTNOTES
/1 The district judge found that Lemmons’ consent to
the search on the second day was voluntary and
Lemmons does not challenge that finding on ap-
peal. Nor does he appear to be arguing that the
second search, which turned up the videotape
charged in the first count of the indictment,
exceeded the scope of the consent given on that
day. Even if he was, there is no indication that
his consent to that search was limited in any
manner. Accordingly, unless the search the previ-
ous day tainted the second search, the motion to
suppress was properly denied.
/2 Lemmons’ reply brief alludes to an argument that
he had ineffective assistance of counsel. This
argument did not appear in his opening brief and
therefore was waived for purposes of direct
appeal.
/3 Even if Hardin did not apply, it seems likely
that Lemmons did not waive his scope of consent
argument below but merely forfeited it. "[A]
forfeiture is an accidental or negligent omission
. . . while a waiver is the manifestation of an
intentional choice not to assert the right."
United States v. Cooper, 243 F.3d 411, 416 (7th
Cir. 2001). Forfeited arguments are reviewable,
but only for plain error. Id. at 415 (noting that
forfeited arguments are reviewable for plain
error but waived arguments are not); Fed. R.
Crim. P. 52(b). There is no indication in the
record that Lemmons’ trial counsel affirmatively
indicated that he was not going to challenge the
search’s scope. He simply did not raise it.
Accordingly, counsel’s omission would not affect
whether we can review the district court’s deci-
sion but rather the standard of review we apply.
/4 Based on the asserted illegality of the searches,
Lemmons also seeks to suppress his subsequent
statements at the police station.
/5 We do not rely, as the government suggests we
could, on the plain view doctrine to justify
Pope’s viewing of Lemmons’ computer files. From
Pope’s testimony, it seems clear that the files
were not in plain view. Pope had to access them
by opening a program and looking on the hard
drive for pornographic images.