United States v. Cannon

• Decision Date: 08 January 2013
• Docket Number: No. 12–1362.,12–1362.
• Citation: 703 F.3d 407
• Parties: UNITED STATES of America, Plaintiff–Appellee v. William CANNON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

703 F.3d 407

UNITED STATES of America, Plaintiff–Appellee

v.William CANNON, Defendant–Appellant.

No. 12–1362.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 16, 2012.

Filed: Jan. 8, 2013.

Angela Lorene Pitts, AFPD, argued, Fayetteville, AR, for appellant.

Dustin S. Roberts, AUSA, argued, Fort Smith, AR, for appellee.

Before SMITH, BEAM, and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

William Cannon pled guilty to two counts of sexual exploitation of a minor and two counts of receipt of child pornography, conditioned on his right to appeal the denial of his motion to suppress. Cannon appeals the denial of his motion to suppress as well as his sentence. We affirm.

I.

On July 14, 2010, Captain Fire Investigator Inspector David Creek, a deputy fire marshal, conducted a routine fire safety inspection at EZ Credit Auto Sales (“EZ Credit”), a car dealership located in Springdale, Arkansas. During the course of his inspection, Captain Creek came upon a locked door. He asked Juan Carlos Figueroa, an EZ Credit manager who had accompanied him during the inspection, what was behind the door. Figueroa replied that it led to “Billy's rooms,” referring to William Cannon, a car detailer and night watchman for EZ Credit. Figueroa added that the only key belonged to Cannon. That day, Cannon was off-site working at a different EZ Credit location.

Captain Creek told Figueroa that he needed to see the rooms to complete the inspection, so Figueroa called Cannon and told him to bring his key. When Cannon arrived, he first requested time alone in the rooms, during which Captain Creek heard a large amount of rustling. When Cannon finally opened the door at Captain Creek's request, from the doorway Captain Creek observed that the walls were covered from floor to ceiling with what appeared to be hundreds of pictures of a particular young male's face. He then entered the main room and looked into an adjoining bathroom, which had a collection of bound, blindfolded, and mutilated naked dolls hanging from the ceiling. Captain Creek also saw a third adjoining room. Above the doorway to that room, a sign was posted that read “Boy's Club.” Continuing his inspection, Captain Creek entered this third room, where he found a child's bed, many more mutilated dolls, a tripod for a camera, a big-screen TV, and several children's toys. Captain Creek noted that there were several pictures of nude children on the walls and that the walls appeared as if some things had been torn down immediately before the inspection. Captain Creek then called the police and told the dispatcher that he believed he had discovered a child pornography operation. While he waited for police to arrive, he saw Cannon remove several items from the rooms. Captain Creek later provided a written statement summarizing what he had observed.

Officer Eric Holland, a uniformed patrolman for the Springdale Police Department, was the first officer on the scene. Although Officer Holland entered the rooms with Cannon's consent and formed the impression that the rooms were Cannon's residence, he did not discuss his observations or his impression with the detectives who ultimately prepared the search warrant application, and he was not involved with the subsequent investigation.

Soon after Officer Holland arrived, Detectives Al Barrios and Darrell Hignite, of the Springdale Police Department Criminal Investigative Division, arrived at EZ Credit. Detective Barrios first made contact with Captain Creek, who explained that he had seen some disturbing posters, signs, and images, including images of nude young boys under the age of thirteen. Captain Creek also told Detective Barrios that he suspected Cannon had removed several pictures from the walls between Captain Creek's initial entry and Detective Barrios's arrival.

When Detectives Barrios and Hignite first approached the rooms, the door had been left open. From the hallway they were able to see what they characterized as one to two hundred photographs of a particular boy's face covering the walls and a large number of mutilated baby dolls hanging from the bathroom ceiling. Detective Barrios then entered the rooms to confirm the rest of Captain Creek's observations. There he found several handmade signs reading “kill little boys,” “I eat boys,” “boys only,” “I <> boys,” “boys rule,” and “boy killer.” There were many pictures of boys' faces, boys in various stages of undress, and boys sleeping. There was also one poster of a prepubescent boy showing full-frontal nudity.

After discovering the child's bed in the third room and deciding that he would need a warrant to search further, Detective Barrios took several photographs of the rooms and instructed other officers to secure the premises while he left to obtain a search warrant. Detectives Barrios and Hignite then left EZ Credit and went to the police station with Cannon, who had consented to an interview, to prepare the warrant application. During the interview, Cannon told Detective Barrios that he was an artist and that he believed others thought his art was offensive. He claimed that the image showing full-frontal nudity came from a magazine, but he later stated that it came from a book. Cannon also told Detective Barrios that he had no home and that he stayed at EZ Credit three nights a week while serving as a night security guard for the business.

Based on the information they had obtained, Detectives Barrios and Hignite prepared a search warrant application, which also included Captain Creek's handwritten statement, and presented it to a state court judge. The detectives' affidavit stated that before Captain Creek initially entered the rooms to conduct the fire inspection, Cannon told Captain Creek that he lived there. It also stated that the rooms “appeared to have someone living in [them].” It described the premises to be searched as “[t]he business ... located at 2679 N. Thompson in Springdale, Washington County, Arkansas. The residence is a business structure consisting of one (1) unit ... owned by E/Z Credit Auto Sales Inc.” The affidavit did not mention that Cannon claimed the poster of the fully nude child was art or that it was allegedly taken from a book. The state court judge issued a search warrant allowing the detectives to search EZ Credit as well as a car allegedly owned by Cannon.

The officers then returned to EZ Credit and executed the warrant. They seized approximately fifteen pictures of nude children, two laptops, approximately twelve video cassettes, and several handwritten journals, among other things. One of the laptops contained thousands of images depicting sexually explicit conduct involving children and its internet browsing history revealed that Cannon had made multiple visits to child pornography websites. Police also found a video that Cannon had created, which depicted a minor female engaging in sexually explicit conduct.

Cannon moved to suppress the items seized pursuant to the search warrant, as well as statements he made while the warrant was executed. He argued that the search warrant lacked probable cause because it was based on information gathered by Detectives Barrios and Hignite in violation of Cannon's Fourth Amendment rights. A magistrate judge ¹ determined that Detectives Barrios and Hignite violated Cannon's Fourth Amendment rights during the initial warrantless entry because Cannon had a reasonable expectation of privacy in the rooms. However, the magistrate judge further concluded that the exclusionary rule did not apply to the fruits of the warrant-based search due to both the independent source doctrine, see Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988), and the Leon good faith exception, see United States v. Leon, 468 U.S. 897, 920–21, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The district court ² adopted the magistrate judge's report and recommendations over Cannon's objection.

Cannon subsequently entered a conditional plea of guilty to two counts of sexual exploitation of a minor, 18 U.S.C. § 2251(a) and (e), as well as two counts of receipt of child pornography, 18 U.S.C. § 2252(a)(2) and (b)(1). The district court sentenced Cannon to 840 months' imprisonment. At sentencing, the district court imposed a four-level enhancement based on its finding that one of the videos seized from Cannon “involved material that portrays sadistic or masochistic conduct or other depictions of violence.” SeeU.S.S.G. § 2G2.1(b)(4).

II.

“On appeal from the denial of a motion to suppress, we review a district court's findings of fact for clear error and its determination of probable cause and the application of the Leon exception de novo.” United States v. Houston, 665 F.3d 991, 994 (8th Cir.2012) (quoting United States v. Perry, 531 F.3d 662, 665 (8th Cir.2008)), cert. denied,566 U.S. ––––, 132 S.Ct. 2418, 182 L.Ed.2d 1050 (2012).

“The Fourth Amendment protects the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ ” Davis v. United States, 564 U.S. ––––, 131 S.Ct. 2419, 2426, 180 L.Ed.2d 285 (2011) (quoting U.S. Const. Amend. IV). Ordinarily, “[e]vidence obtained in violation of the Fourth Amendment is subject to the exclusionary rule and, therefore, ‘cannot be used in a criminal proceeding against the victim of the illegal search and seizure.’ ” United States v. Riesselman, 646 F.3d 1072, 1078 (8th Cir.2011) (quoting United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974)), cert. denied,565 U.S. ––––, 132 S.Ct. 1065, 181 L.Ed.2d 780 (2012). Because exclusion is a prophylactic remedy, however, there are some instances where a Fourth Amendment violation does not trigger the exclusionary rule. See Davis, 131 S.Ct. at 2426 (“Exclusion is ‘not a personal constitutional right,’ nor is it designed to ‘redress the injury’ occasioned by an unconstitutional search.” (quoting Stone v. Powell, 428...