United States v. Ginglen, William ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1074
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIAM A. GINGLEN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. CR 04-30052—Jeanne E. Scott, Judge.
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ARGUED SEPTEMBER 28, 2006—DECIDED NOVEMBER 6, 2006
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Before FLAUM, Chief Judge, and RIPPLE and EVANS,
Circuit Judges.
FLAUM, Chief Judge. On July 8, 2005, William A. Ginglen
pleaded guilty to seven counts of armed robbery, in viola-
tion of 18 U.S.C. § 2113(a) and (d), and two counts of using
a firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c). The district court sentenced
Ginglen to concurrent 97-month terms on each of the seven
bank robbery counts and 84-month and 300-month terms on
the firearm counts. Section 924(c) requires the firearm
sentences to run consecutive to each other and to the
sentence on the armed robbery counts.
Because Ginglen pleaded guilty after the district court
denied his motion to suppress evidence that police dis-
2 No. 06-1074
covered in his home, he reserved the right to appeal the
district court’s ruling. For the following reasons, we affirm.
I. Background
Between November 10, 2003 and July 12, 2004, Ginglen
robbed several central Illinois banks at gunpoint, netting a
total of $56,382. On August 19, 2004, one of his three sons,
Jared, who works as an officer for the Peoria Police Depart-
ment, read a newspaper article about a serial bank robber
in the area. The article caught his attention because the
description of the perpetrator—five foot eight, two hundred
pounds, and a male in his late fifties— sounded a lot like
his father, and a description of the get-away car matched
one owned by his parents. The article said that surveillance
camera photographs of the perpetrator could be viewed on
the Internet, so Jared went online to test his suspicions.
Sure enough, Jared recognized the person in the photo-
graphs as his father.
He called his older brother, Garrett (who also lived in
Peoria) to tell him about the website, and Garrett agreed
that the person in the photographs was their father.
Garrett told Jared that he was going to drive the thirty-five
miles to Lewistown, where their parents lived, and Jared
said that he wanted to go as well. He told Garrett to pick
him up at his house so that he could change out of his police
uniform. After Garrett picked up Jared, he called their
younger brother, Clay, and told him about the website. Clay
also recognized their father in the photographs.
The three brothers met at the Lewiston Fire Depart-
ment to discuss what to do next. They agreed that for
their father’s safety and the safety of the people in their
community, the robberies had to be stopped immediately.
For this reason, they decided to go to their parent’s house,
confront their father, and convince him to turn himself in.
If he refused, they planned to take him in forcibly.
No. 06-1074 3
The brothers proceeded with their plan. Jared wore a
bulletproof vest and brought his gun and police badge. He
wore the vest because he knew that his father was armed
and did not know his father’s state of mind. Clay first
entered the unlocked house, followed by Garrett and then
Jared. Garrett looked for his father on the first floor, and
Clay and Jared searched upstairs, but their father was
not home. During the course of the search, Jared and
Clay saw a pair of shoes, pants, and a shirt that matched
those worn by the robber in the photographs.
The brothers called the Lewiston Chief of Police and
arranged to meet him at Clay’s house. Police used the
brothers’ observations in their father’s home to obtain a
search warrant. The search uncovered the clothes matching
those worn by the robber as well as cards and journals,
which revealed that Ginglen was cheating on his wife
and spending the robbery proceeds on his mistress. Four
days after police executed the search warrants, Ginglen’s
wife voluntarily consented to the police seizing and search-
ing the computer she shared with her husband.
All three brothers testified that they were raised in the
home that they entered on August 19, 2004 and that they
had the consent of their parents to enter it at any time.
They said that they had entered the home uninvited several
times in the past and that their parents never precluded
them from going in certain rooms.
The district court denied Ginglen’s motion to suppress on
several grounds. First, it said that because all three
brothers were acting as private citizens when they entered
the home, the Fourth Amendment did not apply to their
search. Second, it concluded that even if Jared was acting
as a police officer, he had the consent of his parents to enter
the home at any time, and the observations of the two other
brothers independently supported the issuance of a search
warrant. Finally, it concluded that even if the initial search
4 No. 06-1074
was illegal, the seizure and search of the computer was
valid because Ginglen’s wife independently consented to its
removal from her home.
II. Discussion
Ginglen argues that the district court should have
suppressed the evidence obtained from his home, because
Jared and his brothers acted as government agents when
they entered and searched the home on August 19, 2004.
This Court has not definitively resolved the standard of
review of a district court’s ruling that a person acted as a
private individual when conducting a search. Prior to the
Supreme Court’s decision in Ornelas v. United States, 517
U.S. 690 (1996), we applied a clear error standard. See
United States v. Feffer, 831 F.2d 734, 739 (7th Cir. 1987). In
Ornelas, however, the Supreme Court instructed that we
must review a district court’s reasonable suspicion and
probable cause determinations de novo, giving deference
to the district court’s findings of historical fact. 517 U.S. at
699. In United States v. Shahid, we raised, but did not
decide, whether we should use the same standard when
reviewing whether a person acted as a private individual
when conducting a search. 117 F.3d 322, 325 (7th Cir.
1997). Cf. United States v. Humphrey, 208 F.3d 1190, 1203
(10th Cir. 2000) (holding that an appellate court reviews a
district court’s ultimate conclusion for clear error). As
in Shahid, there is no necessity to address the issue,
because regardless of whether our review of the district
court’s ultimate conclusion is de novo or something more
deferential, the outcome is the same. Our review of the
district court’s findings of fact, however, remains unaffected
by Ornelas: we examine them for clear error.
The Fourth Amendment’s purpose is to protect citizens
against unreasonable searches and seizures by the govern-
ment. See Camara v. Mun. Court of City & County of S.F.,
387 U.S. 523, 528 (1967). It does not apply, however, to
No. 06-1074 5
searches or seizures performed by private individuals. See
United States v. Jacobsen, 466 U.S. 109, 113 (1984). To
determine whether an individual was acting as a
private party or as an “instrument or agent” of the govern-
ment, we examine “ ‘whether the government knew of and
acquiesced in the intrusive conduct and whether the private
party’s purpose in conducting the search was to assist law
enforcement agents or to further its own ends.’ ” Shahid,
117 F.3d at 325 (quoting United States v. Koenig, 856 F.2d
843, 847 (7th Cir. 1988)). “Other useful criteria are whether
the private actor acted at the request of the government and
whether the government offered the private actor a reward.”
Id. Ginglen bears the burden of proving that Jared and his
brothers were acting as government agents when they
entered Ginglen’s home. Id.
In Shahid, we applied these factors to a search and
seizure performed by a mall security guard and held that
the guard acted as a private individual because he primar-
ily acted “to provide safety and security for all persons on
mall property.” Id. at 326. Though the guard ultimately
intended to turn the defendant over to law enforcement, we
concluded that the security guard’s separate motivation, to
secure the mall’s patrons and employees, was enough to
demonstrate that he acted as a private individual. We
further noted that even if the security guard had acted
solely to assist law enforcement, he would not be considered
a government agent unless the government knew or
acquiesced in his action. Because nothing in the record
suggested that the police induced mall security guards to
search and seize persons on mall property, we declined to
suppress the evidence obtained during the search. Id.
In Koenig, we similarly held that a Federal Express
senior security specialist acted as a private individual,
where he opened a package that he suspected contained
narcotics. 856 F.2d at 849. We noted that the employee
acted to protect other Federal Express employees’ safety
6 No. 06-1074
and security and not solely to assist law enforcement. We
also found relevant the fact that the government exercised
no form of control over the employee. Id.
In this case, the district court found, after hearing the
brothers testify, that they acted to protect their father and
others from further harm, not to assist law enforcement.
This finding was not clearly erroneous. The brothers’
actions in entering the home are consistent with concerned
sons attempting to prevent a misguided father from engag-
ing in continued destructive behavior. Particularly notewor-
thy, they did not notify a police department before search-
ing the home, they did not act to obtain a reward, and they
did not collect evidence of the crimes while inside the home.
The brothers may ultimately have intended to turn their
father in to the authorities, but, like the security guard in
Shahid and the Federal Express employee in Koenig, their
primary objective was to protect the community from harm,
not to assist law enforcement.
Ginglen attempts to avoid this conclusion by pointing to
the fact that Jared wore a bulletproof vest and brought a
police badge and gun to Ginglen’s home. He argues that
these facts definitively establish that Jared acted in his
capacity as a police officer. We disagree. Jared testified that
he always carries his gun and police badge and that he
brought the bulletproof vest because he knew that his
father owned guns. The district court did not err in credit-
ing Jared’s testimony, which is wholly consistent with a
non-police-related motivation for entering his father’s home.
The second factor mentioned in Shahid also weighs in
favor of finding that the brothers acted as private individu-
als. Indeed, there is no indication that the government
encouraged or acquiesced in the brothers’ decision to enter
their parents’ home. Ginglen maintains that Garrett and
Clayton were encouraged by the government insofar as
Jared, an off-duty police officer, participated in the search.
As discussed above, however, the district court was well
No. 06-1074 7
within its discretion to find that Jared was acting, not in his
capacity as a police officer, but as a concerned son. The
Ginglen home was outside of Jared’s jurisdiction, and he
had no authority to arrest his father absent exigent circum-
stances (which Ginglen acknowledges were not present).
Furthermore, Jared took off his police uniform before
driving to Lewiston, did not inform any of his superiors—or
any other police department—that he intended to search
the home, and did not instruct his brothers in how to carry
out the search. These facts further support a conclusion
that Jared was not acting as a police officer.
Our ruling is consistent with a number of state court
decisions, which have held that an off-duty police officer
acts as a government agent, where he or she stumbles upon
criminal activity and attempts to collect evidence for law
enforcement. See, e.g., Ex Parte Kennedy, 486 So. 2d 493, 495
(Ala. 1986) (holding that an off-duty police officer employed
as an exterminator acts as a police officer where he removes
a leaf from a plant he suspects to be marijuana while
working in a home as an exterminator); State v. Woods, 790
S.W.2d 253, 259 (Mo. Ct. App. 1990) (holding that an off-
duty police officer acts in his capacity as a law enforcement
officer where he searches a cabin after observing marijuana
in plain view while employed as a caretaker of the prop-
erty); Commonwealth v. Eshelman, 383 A.2d 838, 842 (Pa.
1978) (holding that an off-duty police officer who encounters
an abandoned car while looking for a friend in the woods
acts in his capacity as a police officer where he retrieves a
package he suspects contains marijuana and gives it to the
local sheriff). Cf. People v. Wolder, 4 Cal. App. 3d 984, 993
(2d Dist. 1970) (holding that an off-duty police officer
acts as a private individual where he searches his daugh-
ter’s garage after becoming concerned that she may be
conspiring with burglars).
In this case, Jared did not attempt to collect evidence
while inside his father’s home. Rather, like the officer
8 No. 06-1074
in Wolder, he discovered circumstances indicating that a
family member was in serious danger and acted, as a
responsible son would, by calling the police. His uniquely
personal motivation requires us to conclude that he—and
his brothers—acted as private citizens, and not as a govern-
ment agents, when they entered their parents’ home.
We note, as an independent basis for our holding, that
even if one assumes that all three brothers had acted
as government agents and illegally searched Ginglen’s
home, the district court correctly denied Ginglen’s motion to
suppress because police seized the evidence pursuant to a
search warrant that contained untainted information
sufficient to establish probable cause.1 See United States v.
Markling, 7 F.3d 1309, 1315-16 (7th Cir. 1993). In
Markling, we held that under the independent source
doctrine, a district court need not suppress evidence if
(1) the illegally obtained evidence did not affect the magis-
trate’s decision to issue the search warrant and (2) the
decision to seek the warrant was not prompted by what was
seen during the illegal search. Id.
Markling discussed the first element as follows:
’the fact that an application for a warrant contains
information obtained through an unlawful entry does
not per force indicate that the improper information
“affected” [the magistrate’s] decision to issue the
warrant and thereby vitiate the applicability of the
independent source doctrine. Rather, if the applica-
tion contains probable cause apart from the improper
information, then the warrant is lawful.’
Id. at 1317 (quoting United States v. Restrepo, 966 F.2d 964,
970 (5th Cir. 1992). Thus, Markling instructs that if the
1
Though the government raised this argument as a separate
basis for affirmance, Ginglen did not respond to it in his reply
brief.
No. 06-1074 9
search warrant for Ginglen’s home was supported
by probable cause—omitting the evidence seen by
Ginglen’s sons inside the home—then the evidence need
not be suppressed.
Examining the search warrant affidavits in this light,
facts untainted by the brothers’ observations in the home
created probable cause to support the issuance of a
search warrant. The affidavits averred that all three
brothers identified the person in the website photographs as
their father, that the brothers’ description of their father
matched the description provided by the robbery victims,
that Jared recognized the gun in the picture as one owned
by his father, and that investigators observed a car match-
ing the one driven by the robber parked in Ginglen’s
driveway. This information established probable cause to
believe that Ginglen was the bank robber and that a search
of his residence would reveal evidence of his crimes. See
Doescher v. Estelle, 666 F.2d 285, 288 (5th Cir. 1982)
(holding that police have probable cause to search the
defendant’s home where two eyewitnesses identify the
defendant as the person who robbed a supermarket, the
vehicle used in the robbery is registered to a man living at
the defendant’s home, and an anonymous informant claims
that the defendant committed the robbery and stored the
gun used in the robbery at his home).
The government also established, with regard to the
second element discussed in Markling, that the brothers’
decision to go to the police was not prompted by what they
saw in their parents’ home. The brothers’ testimony, as well
as the district court’s findings, establish that the brothers
decided to contact the police shortly after observing their
fathers’ picture on the website, not after they saw the
corroborating evidence in the home. They simply wanted to
provide their father an opportunity to turn himself in before
making that phone call to the police.
10 No. 06-1074
As a result, the district court did not err by denying
Ginglen’s motion to suppress because the search warrant
was valid under the independent source doctrine.
III. Conclusion
For the reasons stated above, we AFFIRM Ginglen’s
conviction and sentence.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-6-06