United States v. Montgomery
| Decision Date | 27 January 2015 |
| Docket Number | No. 13–40880.,13–40880. |
| Citation | 777 F.3d 269 |
| Parties | UNITED STATES of America, Plaintiff–Appellee v. Robert Allen MONTGOMERY, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Amy Howell Alaniz, Assistant U.S. Attorney, U.S. Attorney's Office, McAllen, TX, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.
Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, Assistant Federal Public Defender, Margaret Christina Ling, Assistant Federal Public Defender, Federal Public Defender's Office, Houston, TX, for Defendant–Appellant.
Appeal from the United States District Court for the Southern District of Texas.
Before STEWART, Chief Judge, and BARKSDALE and GRAVES, Circuit Judges.
In May 2012, officers stopped Robert Allen Montgomery in the driveway of his home for traffic violations. A subsequent weapons frisk revealed cocaine. Montgomery was arrested, his car searched, and his Blackberry smartphone confiscated. The Blackberry contained images of minors engaged in sexual activities, and Montgomery was subsequently indicted and convicted of possessing and receiving child pornography. In this appeal, he challenges on both factual and legal grounds the denial of his motion to suppress the evidence of pornography found on his phone. We AFFIRM.
On May 3, 2012, at approximately 12:55 a.m., three Laredo Police Department officers were standing and talking on the street outside of Montgomery's mobile home on Olive Street.1 They had just finished issuing a ticket to two individuals for theft of some alcohol from a nearby store. Officer David Casarez, a nine-year veteran of the Laredo police, then witnessed a vehicle leave the home, known to Casarez as a “drug house,” and return approximately five minutes later. Casarez had arrested six or seven people in front of the home in the preceding few months.2 He also had intelligence from one of the prior arrestees that the resident drug dealer resupplied at a mechanic shop a few blocks away on Springfield Avenue, and that those resupply trips took about five minutes.
When the vehicle returned, the driver had his high beam lights on and failed to signal to turn into his driveway. Casarez approached the vehicle, and the driver, Montgomery, exited (though it is unclear whether he did so at Casarez's request). Montgomery gave Casarez a false name (though he later revealed his real name). Casarez then attempted to frisk him. Montgomery became “combative,” resisted the frisk by pushing Casarez's hands away from his right front pocket repeatedly, and was eventually restrained by another officer. Casarez felt a small bulge in Montgomery's front pocket during the frisk. He later testified that he did not believe the object was a gun or a knife, and that “[i]t could have been anything, a receipt, a bubble—maybe a gum wrapper.” After Casarez felt the bulge, he asked Montgomery what it was. Montgomery stated that it was a “dime” of cocaine. Casarez removed the cocaine, read Montgomery his Miranda rights, handcuffed him, and placed him under arrest.3
Approximately 30 minutes after the stop, police obtained Montgomery's written consent to search his house. The search of the home involved three or four officers, took 20 to 25 minutes, and revealed no drugs or contraband with the exception of a smoking pipe and a spoon with white powdery residue. During that time, Montgomery, who was allowed inside the home to use medicine for a respiratory condition (but remained handcuffed), repeatedly asked for his cell phone so he could erase “naked pictures” that he did not want his father to see. Eventually, another officer—Officer Eduardo Juarez—brought Casarez the cell phone from Montgomery's car. Montgomery agreed to assist Casarez in navigating the phone to erase the pictures in exchange for providing Casarez with his supplier's phone number. Montgomery directed Casarez to press a button on the phone. As soon as Casarez pressed that button, however, an image that Casarez believed to be an underage nude female appeared. Casarez looked through a few more photos and then ceased to inspect the phone. Montgomery then alleged the phone belonged to his drug dealer, but later admitted it was his, acknowledged he had downloaded the pictures from the Internet, and asked if they could be erased.
Casarez read Montgomery his Miranda warnings again, placed him in the patrol unit, and drove him to the station. When Casarez ran Montgomery's name, he discovered Montgomery had an outstanding parole warrant for robbery. Montgomery was indicted for knowingly receiving and possessing child pornography. See 18 U.S.C. § 2252A(a)(2), (a)(4)(B). The district court denied his subsequent motion to suppress, and he was convicted after a short bench trial. The presentence report attributed 180 images of child pornography to Montgomery. He was sentenced to a below-guidelines 96 months in prison and 15 years of supervised release.
Montgomery brings two challenges to the district court's decision. First, he claims, there was not enough particularized evidence that he was armed and dangerous to justify the frisk.4 Second, he argues that even if the frisk were justified at the outset, Officer Casarez exceeded the permissible scope of the frisk by continuing the patdown after determining that Montgomery did not have a weapon.
The Government contends that there was no constitutional violation, but argues that even if one occurred, the cell phone search was the product of an independent act of free will on Montgomery's part—that is, the consent Montgomery gave was sufficiently attenuated from any alleged constitutional violation to purge the taint of that violation.
This court uses “a two-tiered standard of review for appeals from the denial of a motion to suppress: Factual findings are accepted unless clearly erroneous, and the district court's ultimate conclusion as to the constitutionality of law enforcement action is reviewed de novo.”United States v. Jackson, 390 F.3d 393, 396 (5th Cir.2004), judgment vacated on other grounds, 544 U.S. 917, 125 S.Ct. 1683, 161 L.Ed.2d 473 (2005). All evidence is viewed in the light most favorable to the prevailing party, here the Government. See United States v. Rounds, 749 F.3d 326, 337–38 (5th Cir.2014).
At the outset, we note that it is not necessary to our decision today to determine if Officer Casarez violated Montgomery's rights either by frisking him without the requisite suspicion that he was armed and dangerous or by exceeding the permissible scope of the frisk.5 Based on our review of the record, we hold that the pornography on the cell phone was obtained by Montgomery's consent, which was the product of an intervening independent act of free will on Montgomery's part that purged the taint of any alleged constitutional violation. See Wong Sun v. United States, 371 U.S. 471, 486–88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). For purposes of evaluating whether Montgomery's consent was valid, we will assume arguendo a Fourth Amendment violation.
“Consent to search may, but does not necessarily, dissipate the taint of a fourth amendment violation.” United States v. Chavez–Villarreal,
3 F.3d 124, 127 (5th Cir.1993) (citation omitted). Consent is valid if it was: 1) voluntary and 2) an “independent act of free will.” United States v. Jenson, 462 F.3d 399, 406 (5th Cir.2006). Montgomery does not challenge the district court's determination that the consent was voluntary. Instead, he focuses on whether the consent was an independent act of free will, a subject on which the district court did not make any findings because it did not find a Fourth Amendment violation. To determine if consent was independent, this court looks to factors articulated by the Supreme Court in Brown v. Illinois, 422 U.S. 590, 603–04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). Those factors are: “1) the temporal proximity of the illegal conduct and the consent; 2) the presence of intervening circumstances; and 3) the purpose and flagrancy of the initial misconduct.” United States v. Jones, 234 F.3d 234, 243 (5th Cir.2000). “The absence or presence of one of these factors is not a per se indication of free will sufficient to break the causal connection between the illegality ... and the evidence sought to be suppressed.” United States v. Wilson, 569 F.2d 392, 396 (5th Cir.1978).
Montgomery argues that there was “no break in the chain of events, nor any evidence that [his] purported consent to search his cell phone and post-arrest statements were independent acts of free will sufficient to purge the taint of the Fourth Amendment violation.” He emphasizes that: 1) the gap between the stop and the consent was only 40 minutes; 2) the Miranda warnings and his raising the issue of the cell phone are not intervening events of significance; and 3) the violation was flagrant because the officers “acted deliberately in initiating and carrying out the illegal patdown.”
The Government disagrees with Montgomery's version of the timing of the consent, and represented at oral argument that the consent was given between 50 and 55 minutes after the stop. The Government points to multiple intervening circumstances—including Miranda warnings and Montgomery's decision to broach the issue of searching the cell phone—and also argues that the police misconduct was not flagrant because, at worst, it consisted of a “single ‘pinch’ of an item felt in a pocket during a justified Terry weapons pat down.”
A.
As to the first factor, there is no strict time between illegal conduct and consent that would serve to either validate or invalidate the consent. Compare, e.g., United States v. Hernandez, 670 F.3d 616, 623 (5th Cir.2012) (), and United States v. Gomez–Moreno, 479 F.3d 350, 352–54, 358 (5th Cir.2007) (...
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