United States v. Lickers

• Decision Date: 27 June 2019
• Docket Number: No. 18-2212,18-2212
• Citation: 928 F.3d 609
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jacob D. LICKERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

928 F.3d 609

UNITED STATES of America, Plaintiff-Appellee,

v.Jacob D. LICKERS, Defendant-Appellant.

No. 18-2212

United States Court of Appeals, Seventh Circuit.

Argued April 8, 2019

Decided June 27, 2019

Rehearing and Rehearing En Banc Denied July 19, 2019

Katherine Virginia Boyle, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Urbana Division, Urbana, IL, for Plaintiff-Appellee.

Mark S. Rosen, Attorney, ROSEN & HOLZMAN, Waukesha, WI, for Defendant-Appellant.

Before Wood, Chief Judge, and Scudder and St. Eve, Circuit Judges.

Scudder, Circuit Judge.

Jacob Lickers received a sentence of 132 months’ imprisonment and a lifetime of supervised release for possessing child pornography. Cases like these often arise from undercover law enforcement activity on the Internet. Not this case. Two narcotics officers visited a park in Monmouth, Illinois, as part of undercover drug work. They unexpectedly observed Lickers sitting alone in a parked car under a tree while looking at his phone and watching a family with young children on a nearby playground, later discovering that he was engaging in indecent sexual conduct. On appeal Lickers contends that the police’s encounter with him in the park and the subsequent search of his phone and laptop computer violated the Fourth Amendment. He also challenges the life term of supervised release imposed by the district court. We affirm.

I

On the afternoon of September 3, 2015, Jacob Lickers sat alone in his car, parked in the grass under a group of trees in Monmouth Park. Two undercover police officers dressed in civilian clothes, in the park to meet a confidential drug source, noticed Lickers and found his behavior odd. He appeared excited, repeatedly looking toward the passenger seat, down at his lap, and then at a family with young children on a nearby playground. On their second and third rounds through the park, the officers again passed Lickers and observed the same behavior. On their final pass they called dispatch to run the car’s Colorado license plate.

The officers parked and continued to watch Lickers, at one point thinking that he may be a drug user because his movements reflected the tweaking commonly exhibited by someone craving methamphetamine. The officers decided to approach Lickers’s car and start a conversation, including by offering to sell drugs. Upon doing so, Inspector Jimmy McVey saw that Lickers had a small towel covering his lap, which he kept putting his hands under, and a cellphone on the passenger seat. At that point, the second officer, Inspector Ryan Maricle, addressed Lickers by his first name, to which Lickers responded by asking if the two men were police officers. The officers so confirmed and displayed their badges.

Lickers’s demeanor then changed. He became noticeably nervous, began breathing heavily, and sought to knock his cellphone off the seat to the floor of the car. He also kept placing his hands under the towel on his lap. Inspector McVey reacted by asking Lickers for his driver’s license, which Lickers provided. McVey then radioed Lickers’s information to dispatch and asked for a patrol car to come to the park.

Over the next minute or so, and despite the officers’ repeated requests to keep his hands visible and out in the open, Lickers continued placing his hands under the towel on his lap. Concerned that Lickers may be concealing a weapon, Inspector Maricle directed him to remove the towel. Lickers did so, exposing his genitals. When Inspector McVey asked Lickers what he was doing, Lickers said he was looking at the website Craigslist on his phone and "self-pleasuring himself." He then immediately changed course, however, and insisted that he was urinating in a cup, despite the presence of a nearby public restroom.

Skeptical of the new explanation, Inspector McVey asked Lickers if he was viewing pornography on his phone while watching the family with children on the playground. Lickers had no response. At that point, McVey ordered Lickers to pull up his pants and step out of the car. The moment Lickers opened the car door, Inspector McVey smelled marijuana. When Lickers denied McVey’s request to search the car, the police radioed for a K9 unit to come to the park. The unit arrived about 20 to 30 minutes later, and a dog circled the car and alerted near the passenger door, at which point Lickers admitted he had marijuana inside. The officers then found the marijuana and placed Lickers under arrest for drug possession. A subsequent, more thorough inventory search of the car resulted in the officers recovering Lickers’s cell phone, laptop computer, and digital camera.

Later the same day a state court judge approved a warrant authorizing a search of these devices. The search revealed sexually explicit videos of young children on Lickers’s phone. Following his indictment on state drug and child pornography charges, Lickers moved to suppress not only the evidence recovered from his phone, but also the police’s initial detention of him in the park, as well as the search of the car with the help of the K9 unit. The state court granted the motion, concluding that the police "lacked sufficient justification to remove the defendant from his automobile" as well as either reasonable suspicion or probable cause to detain him for 20 to 30 minutes while awaiting the K9 unit. Accordingly, the state court ordered suppressed "all physical evidence seized and statements of the defendant made after the arrival of the uniform[ed] officers [in the park]." A dismissal of all state charges against Lickers then followed.

Federal authorities entered the picture about three weeks later. It was then that the FBI sought a warrant to search Lickers’s phone and laptop. The affidavit presented to the district court included a copy of the state search warrant application and disclosed that the prior search by state authorities uncovered child pornography on Lickers’s phone. The district court issued the warrant, and the FBI’s ensuing search of Lickers’s phone found pornographic images and videos of very young children, including one video of a girl not even a year old.

A federal grand jury indicted Lickers for possessing and transporting child pornography. And Lickers again moved to suppress the evidence, arguing that his initial detention by the Monmouth police in the park and the subsequent search of his phone and computer by state and federal authorities violated the Fourth Amendment. The district court denied the motion, with then-Judge (now Chief Judge) Darrow reasoning that the officers’ initial encounter with Lickers, including their request to see his driver’s license, was consensual and therefore permitted under the Fourth Amendment. What the police observed "almost contemporaneously" from there, the district judge found, was "odd behavior" that continued and created the reasonable suspicion necessary to effect the seizure that occurred when the officers ordered Lickers out of his car. The district court placed particular emphasis on Lickers’s effort to "toss the phone off the [car] seat" and his "continu[ing] to place his hands underneath the towel" after being told to keep his hands visible. "And then as soon as he removed the towel," the court added, the officers "certainly [had] reasonable suspicion" that "he was committing the offense of public indecency" in violation of Illinois law.

The district court also denied Lickers’s motion to suppress that challenged the validity of the search warrant. Probable cause backed the searches of Lickers’s phone and other devices, Judge Darrow explained, because the affidavit described Lickers engaging in indecent conduct while looking at the children on the playground and viewing Craigslist on his phone. While acknowledging this was "not the strongest case," the district court found the facts in the FBI agent’s affidavit sufficient to establish probable cause as to the presence of child pornography on Lickers’s phone.

The district court’s ruling led in short order to Lickers pleading guilty to the federal charges while reserving his right to appeal the denial of his motion to suppress. The district court then sentenced Lickers to 132 months’ imprisonment and a lifetime of supervised release. The court determined that the life term of supervision was warranted because of Lickers’s acute need for treatment and the high risk that he would continue to pursue sexual interests in young children. At one point during sentencing, after highlighting the interest Lickers had expressed in instant messages in having sexual contact with infants and toddlers, the court emphasized that "it was just a matter of time before there was hands-on offenses."

II

A

The Supreme Court’s 1968 decision in Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), supplies the framework for evaluating the police’s encounter with Lickers in Monmouth Park. If the police have reasonable suspicion to believe a crime has been committed, the Fourth Amendment permits brief detention to enable further investigation. See id . at 30, 88 S.Ct. 1868 ; see also United States v. Boden , 854 F.2d 983, 992 (7th Cir. 1988) (explaining that "[a] Terry investigative stop is a brief detention which gives officers a chance to verify (or dispel) well-founded suspicions that a person has been, is, or is about to be engaged in criminal activity"). The validity of the so-called Terry stop turns on an objective assessment of the totality of the facts and circumstances. See United States v. Brown , 188 F.3d 860, 865–66 (7th Cir. 1999) (describing the Terry inquiry as "objective, not subjective").

The parties dispute when Lickers was no longer free to leave the park, for that moment defines when a seizure occurred within the meaning of the Fourth Amendment. See United States v. Mendenhall , 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Much turns on the answer. If Lickers is right that the police violated the Fourth Amendment from the get-go by approaching his car and...