United States v. Elmore

• Decision Date: 12 November 2021
• Docket Number: 21-5145,Nos. 21-5121,s. 21-5121
• Citation: 18 F.4th 193
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Dallas ELMORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

18 F.4th 193

UNITED STATES of America, Plaintiff-Appellee,

v.William Dallas ELMORE, Defendant-Appellant.

Nos. 21-5121

21-5145

United States Court of Appeals, Sixth Circuit.

Decided and Filed: November 12, 2021

ON BRIEF: R. Kenyon Meyer, DINSMORE & SHOHL LLP, Louisville, Kentucky, for Appellant. Monica Wheatley, UNITED STATES ATTORNEY'S OFFICE, Louisville, Kentucky, for Appellee.

Before: BOGGS, WHITE, and READLER, Circuit Judges.

CHAD A. READLER, Circuit Judge.

During an investigation into whether William Elmore sexually abused a seven-year-old girl, Elmore's stepmother gave officers three key fobs for Elmore's Ford Mustang. Aided by a warrant, a subsequent search of the fobs revealed a memory card containing child pornography. Elmore was later indicted on one count of knowingly possessing child pornography. During his prosecution, Elmore twice moved to suppress the memory card evidence. Failing on both fronts, Elmore later pleaded guilty, but preserved his right to appeal the suppression rulings, which he now presents for our review. Finding no basis to exclude the memory-card evidence found on one of the key fobs, we affirm both Elmore's conviction and the revocation of his earlier term of supervised released premised on his conviction.

BACKGROUND

History, it is often said, repeats itself. Regrettably, that appears to be the case for William Elmore and his interest in child pornography. Seven years ago, we considered his first conviction for possessing child pornography, which resulted from school officials discovering illicit images on a flash drive Elmore had left behind in a University of Louisville computer lab. United States v. Elmore , 743 F.3d 1068, 1070 (6th Cir. 2014). We affirmed Elmore's below-Guidelines sentence of 51 months of imprisonment, followed by ten years of supervised release. Id. at 1069–70, 1076.

Elmore was released from prison in February 2015 to begin his term of supervised release. Yet, within a year of his release from prison, computer monitoring showed that Elmore was watching and attempting to download foreign-language YouTube videos of prepubescent children undergoing medical examinations. A search of Elmore's home unearthed photos of naked prepubescent children, a duffel bag of panties for little girls, unauthorized hard drives and cell phones, and adult pornography. At the same time, a detective from the University of Louisville familiar with Elmore's earlier conviction informed the Probation Office that three images of what he considered to be child pornography were discovered on a University computer that Elmore had used. The district court revoked Elmore's supervised release and sentenced him to a prison term of six months.

Elmore's legal problems would deepen from there. While he was serving his revocation sentence, officers interviewed a fellow inmate in whom Elmore had allegedly confided. With considerable detail, the inmate told the officers that Elmore had bragged about repeatedly sexually abusing a seven-year-old girl and recording their interactions. On top of that, Elmore claimed to have several unapproved electronic storage devices containing child pornography hidden in a Ford Mustang and in a storage unit. These revelations coupled with Elmore's past behavior led officers to obtain a warrant to remove Elmore's Mustang from his stepmother's home and search the vehicle. When officers executed the warrant, Elmore's stepmother gave the officers a key fob for the vehicle. Relying in part on the inmate's tip and their conversations with Elmore's stepmother, police also obtained a warrant to search a storage unit containing Elmore's belongings. Neither search, however, yielded any incriminating evidence.

Elmore was released from custody approximately two months later. He returned to Louisville where he rendezvoused with his stepmother. As the two caught up, Elmore's stepmother apprised him of the searches that took place while he was in prison. When she disclosed that police had seized his Mustang, Elmore's attitude noticeably changed. He asked in a concerned manner whether officers had seized all of the key fobs. She responded affirmatively. But Elmore's reaction caused her to double-check and discover that she still possessed two other key fobs. She then relayed her conversation with Elmore to a Louisville police officer and asked that the officer take the two remaining fobs. In another conversation, Elmore's stepmother further indicated to officers her nagging suspicions that Elmore was hiding child pornography on one of the fobs, suggesting that they "at least check ... and see."

Officers sought a search warrant for the contents of all three fobs. In the affidavit attached to the warrant, a veteran officer detailed the (1) the tips he received from Elmore's fellow inmate; (2) the seizure and search of the Mustang; (3) disclosures made by Elmore's stepmother regarding her conversations with Elmore and her concerns about the key fobs; and (4) the officer's experience with child pornography investigations, including the tendency of child pornography suspects (like Elmore) to hide electronic devices to prevent discovery of illicit materials. A magistrate approved the search warrant. During the ensuing search, officers found in one of the fobs a memory card containing a video of child pornography.

A grand jury indicted Elmore on one count of knowingly possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2). Elmore twice moved to suppress the evidence found on the memory card on the grounds that the search warrants for the Mustang, storage unit, and fobs were deficient, meaning the evidence found on the fob was derived from illegal searches. In each motion, Elmore requested an evidentiary hearing to examine the validity of the warrant affidavits under Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Largely adopting a magistrate judge's recommendations, the district court denied both motions and declined to hold a Franks hearing. Elmore later pleaded guilty, reserving his right to seek appellate review of the suppression rulings. The district court sentenced Elmore to 120 months of imprisonment on the child-pornography-possession count and 18 months of imprisonment, to be served concurrently, for supervised-release violations. Elmore's timely appeal followed.

ANALYSIS

Before us are Elmore's challenges to the district court's rulings denying the suppression of the memory-card evidence along with Elmore's request for a Franks hearing. On both fronts, we review the district court's factual findings for clear error and its legal conclusions de novo. See United States v. Bateman , 945 F.3d 997, 1007 (6th Cir. 2019).

The legal framework for resolving Elmore's appeal is largely settled. The Fourth Amendment, it is well understood, requires that a search warrant be supported by probable cause. See U.S. CONST. amend. IV. But it is silent as to the remedy afforded one whose property is searched or seized subject to a warrant lacking probable cause. To enforce the Constitution's probable-cause requirement, the Supreme Court long ago recognized the exclusionary rule—that is, the rule that bars courts from allowing unlawfully seized evidence to be used in a criminal trial—as the "principal judicial remedy" for Fourth Amendment violations by federal officers. Utah v. Strieff , 579 U.S. 232, 136 S. Ct. 2056, 2061, 195 L.Ed.2d 400 (2016) ; see also Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Application of the exclusionary rule, however, is a "last resort," not an immediate impulse. Herring v. United States , 555 U.S. 135, 140, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (quoting Hudson v. Michigan , 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) ); see also Davis v. United States , 564 U.S. 229, 237, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) ("[S]ociety must swallow this bitter pill ... only as a last resort.") (cleaned up); Pa. Bd. of Prob. & Parole v. Scott , 524 U.S. 357, 364–65, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998) (observing that the exclusionary rule's "costly toll upon truth-seeking and law enforcement objectives presents a high obstacle for those urging application of the rule" (cleaned up)). That is so in part because exclusion is not an individual right, but rather a judicially crafted means of preventing future Fourth Amendment violations. Herring , 555 U.S. at 139–41, 129 S.Ct. 695. As a result, the rule's "reach" is limited by its "deterrence rationale," United States v. Clariot , 655 F.3d 550, 553 (6th Cir. 2011), meaning it "does not apply when the costs of exclusion outweigh its deterrent benefits," Strieff , 136 S. Ct. at 2059 ; see also Herring , 555 U.S. at 143, 129 S.Ct. 695 (emphasizing that the rule seeks to curtail "intentional conduct that was patently unconstitutional").

These principles inspired an "offshoot" of the exclusionary rule (and a colorful legal metaphor): the fruit-of-the-poisonous tree doctrine. United States v. Leake , 95 F.3d 409, 411 (6th Cir. 1996). In a nutshell, this doctrine counsels for the exclusion of evidence "derived from information or items obtained in [an illegal] search." See id. (citing Murray v. United States , 487 U.S. 533, 536–37, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) ). As the use of the word "derived" suggests, the doctrine extends to evidence not directly obtained in an illegal search. But in keeping with the deterrence rationale for the exclusionary rule, derivative evidence will not be suppressed where the causal connection between challenged evidence and the constitutional violation is remote or attenuated. Hudson , 547 U.S. at 593, 126 S.Ct. 2159. That is so because "there is little to deter if the officers’ conduct is not the ‘unattenuated caus[e]’ of the evidentiary discovery." Clariot , 655 F.3d at 553 (quoting Hudson , 547 U.S. at 594, 126 S.Ct. 2159 ). In this vein, to determine whether evidence should be excluded as fruit of the poisonous...