U.S. v. Lucas

Citation640 F.3d 168
Decision Date11 May 2011
Docket Number09–6061.,Nos. 09–6035,s. 09–6035
PartiesUNITED STATES of America, Plaintiff–Appellee,v.Alexander LUCAS, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

OPINION TEXT STARTS HERE

ARGUED: Monica L. Thompson, DLA Piper LLC (US), Chicago, Illinois, for Appellant.

David R. Weiser, Assistant United States Attorney, Louisville, Kentucky, for Appellee. ON BRIEF: Monica L. Thompson, DLA Piper LLC (US), Chicago, Illinois, for Appellant. Monica Wheatley, Terry M. Cushing, Assistant United States Attorneys, Louisville, Kentucky, for Appellee.Before: MOORE and STRANCH, Circuit Judges; COHN, District Judge. *

OPINION

JANE B. STRANCH, Circuit Judge.

Following entry of a conditional guilty plea to charges of possessing and receiving child pornography, Alexander Lucas (Lucas) appeals the district court's denial of his motion to suppress graphic photographs and videos that were discovered on his laptop computer during a consent search of his residence for controlled substances, drug paraphernalia, and “other material or records pertaining to narcotics.” In view of the totality of the circumstances presented in the case, we conclude that Lucas granted voluntary consent to search and that the laptop search did not exceed the scope of his consent. For these reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 18, 2007, Det. Donald Burbrink with the Louisville Metro Police Department received information from a fellow detective that a reliable confidential informant (CI) disclosed to him that Lucas was growing marijuana inside his home at 3750 Boone Street in Louisville. At that time, Lucas was a 25–year–old college graduate with a bachelor's degree in economics.

Around 5:30 p.m. the same day, Burbrink and Sgt. Jason Lainhart visited Lucas at his home to conduct a “knock and talk.” The officers were dressed in plain clothes with their police badges visible. For tactical reasons, they approached the back door and knocked. When Lucas opened the door, Burbrink identified himself as a police detective and asked to talk with Lucas. Lucas invited the officers inside, so they stepped into the laundry room, where they immediately smelled the aroma of burnt marijuana.

Burbrink stated he had heard there was marijuana in the house and he would write a citation if Lucas possessed drug paraphernalia or a small amount of marijuana for personal use. While Lucas and the police officers were talking, Burbrink noticed a marijuana pipe on a shelf in plain view, so he asked if Lucas possessed any similar items. Lucas produced a box containing rolling papers, marijuana pipes, and marijuana residue or “shake,” but he denied there were any other drug-related items in the house. The tone of this exchange was conversational, the officers did not threaten to arrest Lucas, and no police weapons were drawn. Lucas did not appear to be intoxicated, and he answered questions intelligently. During the conversation, three more police detectives arrived at the back door of the house.

Burbrink asked Lucas to sign a consent form to allow a search of his house, but Lucas hesitated. The officers could tell that Lucas did not want to sign the form. Burbrink explained that probable cause existed to obtain a search warrant that night based on the marijuana pipe in plain view, the aroma of smoked marijuana, the drug paraphernalia Lucas produced, and information provided by a CI that Lucas was growing marijuana and hosting marijuana-smoking parties. When Lucas did not sign the form, Sgt. Lainhart began a protective sweep to secure the house in anticipation of obtaining a search warrant.

Lucas gestured to Det. Burbrink and said, “What do I have to sign?” Burbrink interpreted the gesture to mean that Lucas knew the officers had enough evidence to obtain a search warrant and would do so. Burbrink verbally reviewed the consent form to inform Lucas of his constitutional right to refuse permission to search. Burbrink also orally advised Lucas of his right to stop the search at any time. Lucas signed the consent form at 5:45 p.m., approximately ten minutes after the officers first arrived. If Lucas had not signed the consent form, the police would have sought a search warrant. By signing the form, Lucas agreed that the officers could search his residence for illegal controlled substances, drug paraphernalia, and “other material or records pertaining to narcotics.”

Because the CI had disclosed that the marijuana growing operation was located in Lucas's bedroom, the officers searched there first. Inside the closet, they found a number of marijuana plants, each separately potted and named.1 Lainhart noticed a digital camera sitting on a night stand near the closet. Based upon his training and experience, he knew that marijuana growers commonly take “bragging” photographs. He reviewed the digital images on the camera and found some that depicted marijuana usage. The officers made no effort to search a desktop computer located in the bedroom.

After the marijuana plants were found, Burbrink and Lucas moved to the living room, where they talked and played video games while the search continued. The living room was the last place searched.

Upon entering the living room, Lainhart noticed a laptop sitting on a small table in the corner. On the keyboard tray, Lainhart discovered a handwritten marijuana plant “grow chart.” The first page contained a numbered list of the named marijuana plants found earlier in the bedroom closet, as well as height measurements, pot sizes, and recent notes about the plants. The second page was a similar blank chart. The third page appeared to be Lucas's general “to-do” list, although the word “clones” appeared at the bottom of the page.

Lainhart decided to look on the laptop's hard drive for an Excel spreadsheet similar to the handwritten grow chart. Based on his training and experience, he knew that marijuana growers commonly keep similar data and digital photographs on computers and upload the information to the Internet. Standing near the laptop in Lucas's direct line of sight, Lainhart asked if the computer was password-protected, and Lucas responded that it was not. Lucas did not object to a search of his laptop, or claim that a search would exceed the scope of his consent to search, or try to withdraw his consent to search.

Burbrink then asked Lucas how he learned to grow marijuana. Lucas replied that he used a share program on the Internet designed to allow people to provide marijuana growing tips to each other. He explained that he cloned plants for re-sale.

In searching the computer, Lainhart first opened the “My Documents” folder, but he did not find any Excel spreadsheets. Next, he opened the “My Photos” folder, but he did not locate any drug-related photos. He found some photographs of Lucas in the nude and briefly joked with Lucas about those photographs.

Lainhart then noticed a removable thumb drive connected to the computer. When he accessed that drive, thumbnail images of child pornography appeared on the screen. He viewed six or seven images to confirm that he had discovered child pornography. He stopped searching the computer, turned to Burbrink and said, “That guy is under arrest.” Lucas asked what was going on, but Burbrink did not know. Lainhart then revealed that he had found a lot of “kiddie porn.” He contacted the Crimes Against Children Unit (CACU) and asked for assistance.

Burbrink handcuffed Lucas's wrists in the front and placed him under arrest. Lucas said, “I have a problem.” Burbrink told Lucas to stop talking and to wait for the CACU detectives to arrive. During the next hour, the detectives offered Lucas chips and a drink and allowed him to smoke cigarettes. Lucas and Burbrink continued to play video games.

CACU Detectives Daniel McNamara and Mark Wampler, dressed in plain clothes, responded to Lainhart's call. McNamara received a brief synopsis of events from Lainhart and then approached Lucas, who was still sitting handcuffed on the sofa. Although McNamara detected a faint odor of smoked marijuana, Lucas was not intoxicated and he was very cooperative.

McNamara identified himself as a CACU detective and stated he was interested only in Lucas's computers. Upon McNamara's request, Lucas signed a second consent form at 8:21 p.m., granting McNamara permission to seize and examine the computers, computer media, and peripheral equipment. The form instructed Lucas of his constitutional right to refuse permission to search. Lucas did not tell McNamara that he refused consent to search his computers or that he had not consented to a search of his residence.

After the evidence was gathered, officers transported Lucas to the police station. McNamara read Lucas the Miranda rights, and Lucas signed and initialed a rights waiver form at 9:20 p.m. A short video clip of the interview shows McNamara and Lucas seated at a small table in a windowless interview room with the door shut. Lucas sat in the corner facing into the room. McNamara asked Lucas to tell him what happened at the house before McNamara arrived. Lucas calmly explained the events in the laundry room and then said, They asked me for consent to search, which I gave them.”

Two days later McNamara obtained a state search warrant for the Lucas residence, the laptop and desktop computers, the thumb drive, assorted DVDs, VHS tapes and CDs, and other related equipment seized from the residence. He did so to permit a technician to complete a forensic examination of the computers in the event Lucas decided to withdraw his consent to the search. The forensic examiner recovered more than 900 images of child pornography and more than 300 minutes of footage in at least 45 videos of child rape.

A grand jury charged Lucas with knowing possession and receipt of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) & 2252A(a)(2). Lucas moved to suppress his statements and all of the evidence seized. The...

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