United States v. Robert Miller

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 22-1896
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT J. MILLER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 20-CR-10031-001 — James E. Shadid, Judge.
____________________
ARGUED DECEMBER 14, 2022 — DECIDED MAY 23, 2023
____________________
Before SYKES, Chief Judge, and SCUDDER and LEE, Circuit
Judges.
SYKES, Chief Judge. Robert Miller pleaded guilty to pos-
sessing a firearm as a felon but reserved the right to appeal
the denial of his motion to suppress the firearm and other
evidence found in his car. He argues that the police conduct-
ed an unlawful search by using his key fob—the small
device that controls the remote keyless entry system—to
identify his car. We do not need to decide whether activating
2 No. 22-1896
the key fob was a search within the meaning of the Fourth
Amendment. Even if it was, the district court correctly held
that the evidence was admissible under the independent-
source doctrine. We therefore affirm the judgment.
I. Background
According to the parties’ stipulation of facts for the mo-
tion to suppress, officers from the Peoria Police Department
responded to the scene of gunfire in the 200 block of East
Arcadia Street and found Miller lying on the sidewalk,
bleeding from an apparent gunshot wound to his face. He
was conscious, however, and able to speak with the officers.
As Officer Danny Marx began to render aid, he saw that
Miller was holding his cellphone in his left hand and a key
fob to a vehicle in his right hand. Officer Marx removed the
key fob from Miller’s hand, dropped it on the ground, and
began assessing Miller’s physical condition.
Meanwhile, other officers investigated the surrounding
area. A white Mercury sedan was parked about 15 to 20 feet
from Miller, the only car on that side of the street for about
100 feet in either direction. The car had multiple bullet holes
in the rear driver’s side door, so a sergeant instructed offic-
ers to check if there was anyone in the car. An officer looked
through the windows and announced that there was no one
inside. Another officer shined his flashlight through the
windshield, saw what he thought was blood on the front
passenger seat, and told the other officers that it looked as
though Miller had gotten out on the passenger side.
While inspecting the bullet holes in the car door, one of
the officers asked if Miller owned the car. Officer Marx, who
was still speaking with Miller, picked up the key fob that he
No. 22-1896 3
had removed from Miller’s hand. He clicked a button on the
fob, and the Mercury’s horn honked several times. Officer
Marx said, “Yeah, that’s his car.”
Emergency medical personnel then arrived. An officer
asked Miller if all the blood in the car was his; Miller an-
swered that it was. Several minutes later, an officer shined
his flashlight through the driver’s side window of the sedan
and told the others that he could see the sights and barrel of
a gun sticking out from under a hat on the front passenger
seat. The officers did not enter the passenger compartment
of the car at that time. Instead, the car was towed to the
police station.
Miller was taken to the hospital where he was treated for
gunshot wounds to his face and upper shoulder. A detective
interviewed him at the hospital. Miller said that he was
using his girlfriend’s car, a white Mercury SUV, and that he
was shot as he was unlocking the car. A check of a law-
enforcement database, however, showed that the impound-
ed car was registered to Miller.
The police sought a warrant to search the car. The war-
rant application listed the vehicle identification number,
explained that the car belonged to Miller, and described his
statement about the shooting. The application also described
the scene, including the bullet holes in the car and numerous
spent shell casings found in the street. The affidavit ex-
plained that although the vehicle was locked, an officer had
looked through a window and noticed blood on the front
passenger seat and the rear of a black pistol protruding from
under a baseball hat. The application requested a warrant to
search the car for evidence, including firearms, bullets,
blood, and DNA. There was no mention of a key fob.
4 No. 22-1896
A state-court judge approved the warrant, and police
searched Miller’s car and recovered the gun that was visible
through the window. DNA from blood on the gun matched
Miller’s. He was indicted for possessing a firearm as a felon,
18 U.S.C. § 922(g).
Miller moved to suppress the evidence seized from the
car, arguing that it was the fruit of an unlawful search—
namely, the officer’s activation of the key fob without a
warrant or an applicable exception to the warrant require-
ment. The motion was cursory but appeared to argue that
(1) clicking the key fob qualified as a search within the
meaning of the Fourth Amendment; and (2) the search
violated Miller’s rights because Officer Marx activated the
key fob before the officers had any reason to suspect that he
had committed a crime, and they saw the gun in the car only
after the officer used the fob to connect him to the car.
The district judge denied the suppression motion, ex-
plaining that pressing the button on Miller’s key fob was not
an unlawful search because the fob was used only to identify
the car, not to gain entry. He further reasoned that Miller
had no reasonable expectation of privacy in the identity of
his car because the officers had a legitimate interest in
investigating the signs of criminal activity at the scene.
Alternatively, the judge held that even if activating the key
fob was an unlawful search, suppression was unnecessary
by operation of the independent-source doctrine. Even
before Officer Marx used the fob, the police had enough
evidence to support the warrant to search the car: they saw
Miller lying nearby with an obvious gunshot wound, the car
was riddled with bullet holes, and there was blood on the
front passenger seat.
No. 22-1896 5
Miller later entered a conditional guilty plea, see FED. R.
CRIM. P. 11(a)(2), reserving his right to appeal the judge’s
ruling on the suppression motion. He was sentenced to
69 months in prison for this offense. 1
II. Discussion
The sole issue on appeal is Miller’s challenge to the deni-
al of his suppression motion. We review the judge’s factual
findings for clear error and legal conclusions de novo. United
States v. Correa, 908 F.3d 208, 214 (7th Cir. 2018).
Inquiries under the Fourth Amendment generally pro-
ceed in two steps. The first asks whether a search occurred.
Id. at 217. The Supreme Court has developed two analytical
approaches to this question, one based on an assessment of
reasonable expectations of privacy and the other centered on
a property-based or trespass inquiry. Id. If indeed a search
occurred, we evaluate its constitutionality under the Fourth
Amendment’s reasonableness requirement. Id. at 218. The
police normally need a warrant to ensure compliance with
the constitutional standard; a warrantless search is reasona-
ble “only if it falls within a specific exception to the warrant
requirement.” Riley v. California, 573 U.S. 373, 382 (2014);
Correa, 908 F.3d at 218–19.
We have not yet had occasion to consider whether an of-
ficer’s use of a key fob to identify a car is a search, though
our cases have addressed similar issues. In Correa we ad-
dressed the actions of a DEA agent who drove around a
Chicago neighborhood pressing the buttons on a confiscated
1 Atthe same time, the judge also imposed a prison term of 36 months on
the revocation of Miller’s supervised release, with 12 months of the
revocation sentence to run consecutively to his sentence for this offense.
6 No. 22-1896
garage-door opener to determine which door it opened.
908 F.3d at 212–13. We classified that action as a search—not
of the garage, but of the opener. Id. at 218. We reasoned that
“with each push of the button,” the officer collected the
stored coded information connecting the opener to a particu-
lar garage door. Id.Similarly, in United States v. Concepcion, a DEA agent con-
fiscated keys from an arrested suspect and tested one of
them in the locked door of what the agent thought was the
suspect’s apartment; when the door opened, the agent
sought and obtained the suspect’s consent to search. 942 F.2d
1170, 1171 (7th Cir. 1991). We held that testing the key in the
lock was a search because keyholes contain “information
about who has access to the space beyond.” Id. at 1172; see
also United States v. Thompson, 842 F.3d 1002, 1008 (7th Cir.
2016) (applying Concepcion).
Miller argues that Officer Marx conducted a search with-
in the meaning of the Fourth Amendment because clicking
the button on the key fob disclosed private information
connecting him to the Mercury sedan. He reads Correa and
Concepcion for the proposition that using keys and remote
door openers to gain information constitutes a search.
The government responds that Officer Marx’s use of the
key fob was not a search because Miller did not have a
reasonable expectation of privacy in the information at issue
here regarding his connection to the shot-up Mercury. For
support the government relies on United States v. Cowan,
674 F.3d 947, 955–56 (8th Cir. 2012), a factually similar case
from the Eighth Circuit. There the police obtained a warrant
to search an apartment where they had just conducted a
controlled drug buy. Id. at 951. Before the search, they per-
No. 22-1896 7
formed a protective frisk of the occupants, including the
defendant, and recovered a vehicle key fob from his pocket.
Id. After finding crack cocaine in the apartment, a detective
took the defendant outside and pushed the alarm button on
the key fob, which set off the alarm on a car parked in front
of the building. Id. A canine drug sniff followed, and the dog
alerted for the presence of drugs in the car. Id.The district court suppressed the drugs found in the car
as the fruit of an unlawful search. Id. at 952. On the govern-
ment’s interlocutory appeal, the Eighth Circuit reversed. Id.at 958–59. The court held that the defendant “did not have a
reasonable expectation of privacy in the identity of his car”
because the officers could have obtained the same infor-
mation connecting him to the car “by conducting a back-
ground check on the car’s license plates or vehicle
identification number or [by] placing the car under surveil-
lance.” Id. at 955. The court also reasoned that the officer’s
use of the key fob did not involve a trespass. Id. at 956.
The court’s decision in Cowen suggests it rests on a ra-
tionale that the officer’s use of the car’s key fob was not a
search, but it might be better understood to hold that the use
of the key fob was not unreasonable under the circumstanc-
es. If the former, then Cowen is in some analytical tension
with our decisions in Correa and Concepcion. Recognizing this
point, the government argues in the alternative that if Officer
Marx’s activation of the key fob is properly classified as a
search, then it was not an unreasonable one because the
search revealed only limited information cloaked in minimal
(if any) expectation of privacy.
This backup argument rests on our ultimate holdings in
Correa and Concepcion. Though we concluded in both cases
8 No. 22-1896
that searches had occurred, we upheld the searches as
reasonable because the agents’ use of the garage opener
(Correa) and apartment key (Concepcion) revealed only
limited nonprivate information connecting the suspects to
those places—information that the agents easily could have
obtained from readily available sources. See Correa, 908 F.3d
at 218–21; Concepcion, 942 F.2d at 1172–73.
Though this issue will no doubt arise again, resolving
this appeal doesn’t require us to decide whether activating a
car’s key fob is a search, and if so, whether such a search
survives reasonableness review. As an alternative ground for
denying the suppression motion, the judge credited the
government’s argument that the police recovered the gun
and other evidence in the car through independent, lawful
means—namely, the warrant. 2 The independent-source
doctrine was clearly an alternative basis for the ruling below,
but Miller did not address it in his opening brief on appeal.
He discussed only the “inevitable discovery” rule. See United
States v. Marrocco, 578 F.3d 627, 637 (7th Cir. 2009).
The government notes Miller’s omission and argues that
we should affirm for that reason alone. See United States v.
Boliaux, 915 F.3d 493, 496 (7th Cir. 2019) (“If you lose in the
district court on multiple grounds, you must contest all on
appeal; prevailing on one won’t suffice.”). In his reply Miller
contends that the two doctrines are so related that he ade-
2 The government also invokes the automobile exception, see Arizona v.
Gant, 556 U.S. 332, 347 (2009), and the exigent-circumstances doctrine, see
Brigham City v. Stuart, 547 U.S. 398, 403 (2006). We have no need to
address these arguments.
No. 22-1896 9
quately preserved appellate review of the judge’s alternative
ruling.
Setting the procedural point aside, Miller cannot over-
come the force of the independent-source doctrine. An
exception to the exclusionary rule, the independent-source
doctrine permits the admission of the fruit of an unlawful
search if the government obtained the evidence “via an
independent legal source, like a warrant.” United States v.
Huskisson, 926 F.3d 369, 374 (7th Cir. 2019). Here the officers
recovered the gun in the execution of a valid warrant to
search the car. Under the independent-source doctrine, we
ask two questions: (1) did the evidence obtained from the
officer’s use of the key fob affect the judge’s decision to issue
a warrant; and (2) did that evidence affect the officers’
decision to apply for a warrant? Id.The key-fob evidence connecting Miller to the car in no
way affected the judge who signed the warrant: the warrant
application did not mention the key fob at all. See United
States v. Gonzalez, 555 F.3d 579, 582 (7th Cir. 2009). The
application relied on other facts that easily supplied proba-
ble cause to believe that the Mercury contained evidence of a
crime: the bullet holes; the blood in and around the car;
Miller lying nearby with a gunshot wound; and the gun on
the passenger seat, visible through the window but partially
obscured by a hat. See Huskisson, 926 F.3d at 375–76. None of
this evidence depended on evidence obtained by using the
key fob.
For essentially the same reasons, the officers’ decision to
apply for the warrant was not “prompted by information
gained from” the click of the key fob. See Gonzalez, 555 F.3d
at 581. Miller insists that the police sought the warrant
10 No. 22-1896
because they knew that the car (and likely the gun) belonged
to him and that they knew this only because Officer Marx
activated the key fob.
This argument doesn’t hold up under the weight of the
stipulated facts. The officers arrived at the scene of a sus-
pected shooting, found Miller bleeding from an apparent
gunshot wound, and saw the Mercury nearby with bullet
holes and blood in and around it. All this occurred before
Officer Marx pressed the button on Miller’s key fob. So
before the police connected Miller to the Mercury, they had
already identified the car as key evidence in a shooting,
giving them ample probable cause for a warrant. On these
facts, it’s simply implausible to argue that the officers sought
the warrant because of what they learned from the click of
the key fob. The car would have been searched regardless of
the identity of its owner. See Huskisson, 926 F.3d at 376–77.
And as the government also suggests, it was completely
reasonable to assume Miller’s connection to the vehicle even
before Officer Marx confirmed the point by activating the
key fob. The suppression motion was properly denied.
AFFIRMED