U.S. v. Liss

• Decision Date: 24 February 1997
• Docket Number: No. 95-3692,95-3692
• Citation: 103 F.3d 617
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lloyd T. LISS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 617

103 F.3d 617

UNITED STATES of America, Plaintiff-Appellee, v. Lloyd T. LISS, Defendant-Appellant.

No. 95-3692.

United States Court of Appeals, Seventh Circuit.

Argued April 9, 1996.

Decided Jan. 8, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied Feb. 24, 1997.

Pamela Pepper (argued), Office of U.S. Atty., Milwaukee, WI, for U.S.

Dennis P. Coffey, Michael J. Fitzgerald (argued), Coffey, Coffey & Geraghty, Milwaukee, WI, for Lloyd T. Liss.

Before EASTERBROOK, RIPPLE, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Lloyd Liss entered a conditional guilty plea to one count of knowingly and intentionally possessing with the intent to distribute in excess of 100 grams of crystal methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Liss conditioned his plea on his right to appeal the district court's denial of his motion to suppress the methamphetamine, which had been seized from his home under a search warrant. Liss argues that a search of his home pursuant to his written consent, which led to evidence that provided the requisite probable cause for the warrant, was invalid on the ground that the police had sought his consent because of evidence obtained during an earlier illegal search of his barn. We affirm.

I

On October 21, 1994, Steve Van Lannen was in police custody after being arrested for committing a drug offense. That evening he agreed to lead the police to a farm where a stolen motorcycle was located. Van Lannen, along with several police officers, drove to Liss's farm in Shawano County, Wisconsin. They arrived at 1:00 a.m. and parked in Liss's driveway. Van Lannen then used a cellular phone to call Liss, and Liss authorized Van Lannen and the police to retrieve the motorcycle.

Several officers and Van Lannen entered the barn on the first floor. They located the stolen motorcycle on the second floor and called a tow truck. After the tow truck had arrived and the motorcycle was being loaded, other officers began searching the first floor of the barn on the assumption that the barn housed an illegal chop shop. During this search, one officer observed a dried marijuana plant hanging from the rafters of the barn on the first floor. A more thorough search of the barn revealed additional marijuana plants hanging from the barn's rafters, marijuana growing in a glass-enclosed structure attached to the barn, a book on silencers, and a vial containing a white powdery substance. While the more extensive search of the barn was occurring, one officer searched an outbuilding located near the barn, where he found an item that looked like a still, as well as more marijuana.

The search of the barn and its environs continued until approximately 5:00 a.m., when a police sergeant arrived and queried whether the officers had received consent to conduct the search. The officers responded that they had oral consent to search the barn, and the sergeant recommended that they obtain written consent.

Two officers knocked on Liss's door for several minutes before he answered. They asked him whether he had consented to a search for the motorcycle, and Liss responded that he had. The officers told Liss they had found marijuana in the barn and requested that he provide written consent to search the property. Liss stated that if the police found anything illegal on the farm it must be Van Lannen's. The officers explained that Liss did not have to provide consent. They then read him the consent form. Liss objected to a portion of the form that provided the officers could seize "anything they want." The officers substituted the words "anything illegal," and Liss then signed the consent form.

The officers asked Liss if he wanted to accompany them on their search, and he responded "Yes." The officers began searching the house, and they found more marijuana, vials of white powder, and what appeared to be illegal firearms. Liss then stated he did not like how he felt, and the officers stated they would stop searching. The officers contacted a district attorney who told them to arrest Liss. The officers subsequently sought a search warrant to search the remainder of Liss's property.

The affidavit in support of the search warrant discussed the marijuana found in the barn, as well as weapons found in the barn, the outbuilding, and certain vehicles. The affidavit also included reference to the marijuana and a white powdery substance that were found in Liss's house following his consent to search. The search warrant was issued, and the evidence underlying the indictment was seized.

The federal grand jury returned a seven-count indictment against Liss. The first count charged Liss with knowingly and intentionally possessing with the intent to distribute in excess of 100 grams of crystal methamphetamine. Counts two through six charged Liss with possession of unregistered short-barreled firearms. Count seven charged Liss with possession of a home-made silencer.

Liss filed a motion to suppress all of the evidence seized from his farm. Liss argued that the police exceeded the scope of his consent to search for the motorcycle when, after the motorcycle was located on the second floor, the police continued to search the first floor. Liss argued that the search pursuant to his written consent was invalid because it was tainted by the prior search. Finally, Liss argued that the search pursuant to the search warrant was invalid because it was based entirely on evidence found in the two previous searches. The government acknowledged that there was "some problem" with the majority of the evidence discovered in the barn search. The government responded that only evidence seized pursuant to Liss's written consent or the search warrant would be used at trial.

The district court referred the motion to suppress to a magistrate judge for a report and recommendation. The district court concurred with the magistrate's recommendation to deny the motion to suppress. The court determined that the officers were lawfully present on the first floor of the barn when they found the first marijuana plant and that the plant was in plain view. The court found that the other evidence discovered in the barn and the outbuilding was the result of searches outside the scope of Liss's consent and should be suppressed.

The district court went on to find that Liss's written consent was not tainted by the prior illegal search. Initially, the district court found that Liss's written consent was voluntary. The court also found that the officers did not exploit their illegal search in deciding to request Liss's consent to search his house. Although the officers did not testify as to whether they would have sought consent absent the illegal search of the barn, the district court found it likely that they would have sought either consent or a search warrant because their suspicions had been aroused by the presence of the stolen motorcycle, the fact that the officers knew Van Lannen had just been arrested on a drug offense, and the legal discovery of one marijuana plant in the barn. Although not mentioned in its opinion because the district court concluded that the search pursuant to the written consent was valid, the district court must have concluded that the search warrant, which had been premised in large part upon the written-consent search, was also valid.

Liss subsequently entered a plea of guilty to count one of the indictment that had charged him with knowingly and intentionally possessing with the intent to distribute in excess of 100 grams of crystal methamphetamine, conditioned on his right to appeal the denial of his motion to suppress. The remaining counts of the indictment were dismissed, and the district court sentenced him to thirty-nine months of incarceration, a $2500 fine, and five years of supervised release. Liss now appeals the district court's decision to deny his motion to suppress.

II

In reviewing a district court's ruling on a motion to suppress, we review questions of law de novo. United States v. Trevino, 60 F.3d 333, 336 (7th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 739, 133 L.Ed.2d 689 (1996). We review factual findings for clear error, and a finding is clearly erroneous when "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made." United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir.1994).

Liss argues that the evidence seized under the search warrant should be suppressed as "fruit of the poisonous tree." Specifically, Liss argues that the search which led to the discovery of all of the contraband in the barn, including the single marijuana plant determined legally discovered by the district court, was outside the scope of his consent to search for the stolen motorcycle. Therefore, all of that evidence must be suppressed as fruit of an illegal search. If the officers had not found that evidence, Liss argues, they would not have requested his consent to search his house. In his words, "there exists no independent justification in the record for the seeking of [Liss's] consent" except for the results of the prior illegal search. As a result, he argues that the evidence discovered during the search pursuant to his written consent and the latter search pursuant to the warrant must be suppressed. We disagree.

We need not decide whether the police exceeded the scope of Liss's consent when they found the marijuana plant on the first floor of the barn because we find that Liss's subsequent consent to search his home purged the evidence seized under the warrant of any taint from the illegal search of the barn. Thus, for the purpose of this opinion, we will assume that all of the evidence found in the barn and its environs was obtained pursuant to an unlawful search.

The fact that the police were likely motivated to request Liss's consent to search his home, at least in part, by their discovery of the...