United States v. McGill
| Decision Date | 20 March 2018 |
| Docket Number | No. 17 CR 149,17 CR 149 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. MARK McGILL, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
On March 7, 2017, Defendant Mark McGill was charged with possession of child pornography pursuant to 18 U.S.C. § 2256(8)(A) while on mandatory supervised release for a previous conviction for distributing child pornography. (Dkt. No. 1.) McGill moved to suppress a cellphone and all images subsequently discovered on the phone seized by his probation officer during a regular home visit. (Dkt. No. 23.) On November 20, 2017, the Court held an evidentiary hearing to resolve factual disputes central to the outcome of McGill's motion. For the following reasons, McGill's Motion to Suppress [23] is denied.
In 2012, a federal jury in Judge Gottschall's court convicted McGill of possessing and distributing child pornography. See 09 CR 70, Dkt. No. 121. Judge Gottschall sentenced McGill to a term of 108 months in prison and 20 years of mandatory supervised release on both counts to run concurrently. See id. at Dkt. No. 147. On appeal, the Seventh Circuit reversed the conviction on the distribution count due to a jury trial error. See id. at Dkt. No. 165; United States v. McGill, 754 F.3d 452, 460 (7th Cir. 2014). On November 21, 2014, Judge Gottschallresentenced McGill to 65 months in prison and 84 months of supervised release on the possession count. See 09 CR 770, Dkt. No. 178.
Among his conditions of supervised release, McGill was required to "not commit another federal, state, or local crime" and to "permit a probation officer to visit him . . . at any time at home or elsewhere and [to] permit confiscation of any contraband observed in plain view of the probation officer." Id. The special conditions of supervision also required with regard to McGill's internet usage that:
Defendant shall comply with the requirements of the Computer and Internet Monitoring Program as administered by the United States Probation Office. The defendant shall consent to the installation of computer monitoring software on all identified computers to which defendant has access. The software may restrict and/or record any and all activity on the computer, including the capture of keystrokes, application of information, Internet use history, email correspondence, and chat conversations. A notice will be placed on the computer at the time of installation to warn others of the existence of the monitoring software. The defendant shall not remove, tamper with, reverse engineer, or in any way circumvent the software. The costs of the monitoring shall be paid by the defendant.
Id. (emphasis added).
Judge Gottschall declined to impose the following restriction—a restriction she had imposed in McGill's original sentence:
The defendant shall not possess or use a computer, camera or any device with access to any "online computer service" at any location (including place of employment) without the prior approval of the probation officer. . . . The defendant shall not possess camera phones or electronic devices that could be used for covert photography without the prior approval of the probation officer.
Id. at 147. The court also declined to impose a restriction requiring McGill to submit his "computer, other electronic communications or data storage devices or media . . . to search at any time . . . by any . . . probation officer with reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct," as permitted under 18 U.S.C. § 3853(d)(3).
McGill has a history of violating the terms of his supervised release including by viewing child pornography on his monitored cellphone and by failing polygraph tests during which he was asked whether he was viewing child pornography. (Dkt. No. 4-5.)
In October 2015, while on supervised release for the first conviction, during a weekly review of McGill's identified cellphone pursuant to the Computer and Internet Monitoring condition of his supervised release, McGill's Probation Officer at the time, Jay Nichols, discovered that McGill had viewed sexually stimulating videos and images of minors on his monitored cellphone. (Dkt. No. 40 at 4.) McGill admitted to the violation before Judge Gottschall and on October 20, 2015 Officer Nichols filed a Request to Modify the Conditions of Release or Term of Supervision with Consent of Offender seeking to add a condition of supervised release prohibiting McGill from "possess[ing] or hav[ing] under his control any pornographic, sexually oriented, or sexually stimulating materials, including visual, auditory, telephonic, or electronic media, computer program, or services." (Id.; 09 CR 770, Dkt. No. 198.) On October 21, 2015, Judge Gottschall granted the agreed request and imposed the additional condition of supervised release. 09 CR 770, Dkt. No. 199.
On or about June 17, 2016, McGill failed a polygraph test administered as part of his sex offender treatment program. The test detected deception when McGill answered "no" to the questions regarding his compliance with the conditions of his supervised release. (Dkt. No. 40 at 5.) On September 29, 2016, McGill failed a polygraph test a second time for the same reason. (Id.) When asked about the test results, McGill maintained that he gave honest answers on both occasions. (Id.)
On February 3, 2017, Probation Officer Hence Williams conducted a home visit at McGill's residence during which he discovered and seized an unmonitored cellphone in McGill's possession. (Dkt. No. 38-1.)
The home visit was unannounced but McGill was expecting a visit around that date. (Dkt. No. 36-1 at ¶5.) When Officer Williams arrived, McGill let him in. Officer Williams walked through the home and observed two cellphones in McGill's bedroom: a black cellphone he recognized as McGill's monitored phone and a second, white cellphone charging by the bed. (Dkt. No. 36-1 at ¶¶ 6-7; Dkt. No. 40 at 5-6.) Officer Williams asked McGill about the white cellphone and McGill told him it was an old cellphone that no longer worked and that he used it only to charge a spare battery for the black monitored phone. (Dkt. No. 36-1 at ¶ 8; Dkt. No. 40 at 6.) McGill removed the battery to show Officer Williams that it also fit in the back phone. (Dkt. No. 36-1 at ¶ 8; Dkt. No. 40 at 6.) At Officer Williams' request, McGill put the battery back into the white phone and handed it to him. (Dkt. No. 36-1 at ¶ 9; Dkt. No. 40 at 6.)
In their pre-hearing motions, the parties disputed what occurred next. According to an affidavit McGill submitted, Officer Williams tried to turn the phone on but was unable to do so and then told McGill that he was taking the phone. (Dkt. No. 36-1 at ¶¶ 10-11.) Officer Williams then asked McGill if he was going to find anything on the phone and McGill responded that he would but never said anything about child pornography being on the phone. (Id. at ¶ 12.)
According to the government, McGill became visibly distraught after handing over the phone. (Dkt. No. 40 at 6; 09 CR 770, Dkt. No. 213 at 171.) Officer Williams inquired as to the cause of his distress and McGill responded, (Id.) Officer Williams asked ifthere was child pornography on the phone and McGill responded that there was. (Id.) McGill did not provide details of the images on the phone but when Officer Williams asked about the two recently failed polygraphs, McGill stated that there was "some really bad stuff on there," that he "will be going back to prison" and that he did not see any way he could possibly not go back to prison considering the images on the cell phone. (Id.) Officer Williams then powered on the cellphone, placed it in airplane mode, turned it off and removed the battery. (Dkt. No. 40 at 6-7; 09 CR 770, Dkt. No. 213 at 171-172.). While the phone was powered on, Officer Williams observed a young boy's face as the background wallpaper of the cellphone. (Dkt. No. 40 at 7.)
Officer Williams turned the phone over to the FBI and the FBI applied for and obtained a search warrant. (Id.). The subsequent search of the phone revealed thousands of images of child pornography. (Id.) On March 7, 2017, a federal grand jury returned a one-count indictment charging McGill with possessing a device containing images of child pornography based on the images found on the seized phone. (Dkt. No. 1.)
On May 12, 2017, McGill filed a motion to suppress the phone and all evidence obtained from the search of the phone. (Dkt. No. 22 at 3.) McGill argued that the seizure of his phone was unlawful because the information known to Officer Williams at the time of the seizure did not support a reasonable suspicion that McGill was in violation of the conditions of his supervised release or otherwise engaging in criminal activity. Specifically, McGill argued that the phone did not work—as corroborated by the fact that Officer Williams allegedly was unable to power it on—and the conditions of his supervised release did not prohibit the possession of old, non-functioning, broken or inactivated electronics. McGill also argued that he did not sayanything to Officer Williams about there being child pornography on the phone and that Officer Williams had no other basis for reasonable suspicion that McGill was committing a violation or crime.
The government disputed that the phone was inoperable and that McGill did not confess to having child pornography on the phone. The government argued suppression is improper based on any one of four theories: (1) the probation officer reasonably seized the phone as contraband in plain view; (2) the seizure of the unmonitored phone was based on reasonable...
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