United States v. Mark McGill ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2636
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARK MCGILL,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17-cr-149 — Virginia M. Kendall, Judge.
____________________
ARGUED MARCH 30, 2021 — DECIDED AUGUST 10, 2021
____________________
Before KANNE, BRENNAN, and SCUDDER, Circuit Judges.
KANNE, Circuit Judge. During a visit to Mark McGill’s
home, McGill’s probation officer seized a cell phone without
warrant to do so. Law enforcement later discovered thou-
sands of images of child pornography on the phone and
charged McGill accordingly. McGill, arguing that his phone
had been unlawfully seized, moved to suppress the phone
and all evidence obtained from it.
2 No. 19-2636
The district court denied this motion on a number of inde-
pendent grounds, concluding that McGill’s cell phone was
lawfully seized or otherwise need not be suppressed. We
agree with this conclusion and thus affirm the district court’s
decision denying McGill’s motion to suppress.
I. BACKGROUND
In a prior case years ago, Mark McGill was convicted of
possessing child pornography and sentenced to sixty-five
months’ imprisonment. In November 2014, he completed his
prison sentence and began serving seven years of supervised
release.
The conditions of McGill’s supervised release prohibited
him from “commit[ting] another federal, state, or local crime”
and required him 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 of-
ficer.” He also agreed to “comply with the requirements of the
Computer and Internet Monitoring Program,” under which
he, among other things, “consent[ed] to the installation of
computer monitoring software on all identified computers to
which [he] has access.” The conditions further provided that
he “shall not remove, tamper with, reverse engineer, or in any
way circumvent the software.”
McGill has a history of violating the terms of his super-
vised release. In October 2015, his probation officer discov-
ered that McGill had viewed sexually stimulating videos and
images of minors on his monitored cell phone. McGill admit-
ted to the violation, and the district court added a condition
of supervised release that prohibited McGill from “pos-
sess[ing] or hav[ing] under his control any pornographic,
No. 19-2636 3
sexually oriented, or sexually stimulating materials, includ-
ing visual, auditory, telephonic, or electronic media, com-
puter program, or services.” McGill later failed two poly-
graph tests, administered as part of his sex offender treatment
program, which detected deception when he was asked
whether he had sexual contact with a minor.
The events underlying this appeal occurred on February
3, 2017, when Probation Officer Hence Williams conducted a
home visit at McGill’s residence. Officer Williams had sub-
stantial experience, having worked as a probation officer for
twelve years and specialized in supervising sex offenders for
five years. He had been supervising McGill for about nine
months before this home visit.
When Officer Williams entered McGill’s bedroom, he ob-
served two cell phones—a black cell phone that the officer rec-
ognized as McGill’s monitored phone and an unknown white
cell phone in a black case on a table by the bed.
According to Officer Williams, McGill moved around the
room in an attempt to block the officer’s view of the second
cell phone. When Officer Williams asked about the phone,
McGill told him that it was an old cell phone that no longer
worked and that he only used it to charge a spare battery for
the monitored phone. McGill removed the battery to show
that it fit into the other phone. Officer Williams did not be-
lieve that explanation. At Officer Williams’s request, McGill
replaced the battery and handed the white phone to him.
Officer Williams claims that McGill’s demeanor changed
when he asked about the phone. He became “deflated” and
“sad” and said that he “would go back to prison for a long
time if the judge found out what was on th[e] phone.” Officer
4 No. 19-2636
Williams asked if there was child pornography on the phone,
and McGill said, “there is.” For his part, McGill denies that he
made any admissions about what was on the phone or that he
acted suspiciously.
McGill asserts that Officer Williams then said, “I’m taking
the phone,” and ended the encounter. Officer Williams, on the
other hand, claims that he was able to power on the phone,
saw that the background photo was of a young boy’s face, and
then powered it off. In either case, Officer Williams took the
phone with him and turned it over to the FBI, who obtained a
search warrant. The subsequent search of the phone revealed
thousands of images of child pornography.
McGill was again charged with possessing child pornog-
raphy in violation of 18 U.S.C. § 2252A(a)(5)(B). He filed a mo-
tion to suppress the evidence recovered from the unmoni-
tored phone as the fruit of an unlawful seizure. After an evi-
dentiary hearing at which Officer Williams testified and
McGill did not (he relied merely on statements in an affida-
vit), the district court denied McGill’s motion for four reasons:
(1) the phone was contraband in Officer Williams’s plain
view; (2) the seizure was supported by Officer Williams’s rea-
sonable suspicion that the phone contained evidence of a su-
pervised-release violation or crime; (3) the discovery of the
evidence was inevitable; and (4) Officer Williams acted in
good faith when he seized the phone.
McGill then entered a conditional plea of guilty which re-
served his right to appeal the district court’s denial of his mo-
tion to suppress. Fed. R. Crim. P. 11(a)(2). The district court
accepted the plea and sentenced McGill to 168 months’ im-
prisonment and ten years’ supervised release. McGill timely
appealed.
No. 19-2636 5
II. ANALYSIS
When reviewing a district court’s decision denying a mo-
tion to suppress evidence, we review the court’s legal conclu-
sions de novo and its factual findings for clear error. United
States v. Mojica, 863 F.3d 727, 731 (7th Cir. 2017). On clear-error
review, we reverse the court’s findings only if our “review of
the all the evidence leaves us with the definite and firm con-
viction that a mistake has been made.” United States v. Love,
706 F.3d 832, 842 (7th Cir. 2013).
The district court’s analysis in this case was spot on. The
evidence from McGill’s cell phone need not be suppressed for
two independent reasons. First, the seizure of McGill’s cell
phone was lawful. Second, even if the phone was unlawfully
seized, the evidence may still be admitted under an exception
to the exclusionary rule.
A. The Seizure of McGill’s Cell Phone Did Not Violate the
Fourth Amendment
Generally, “searches and seizures inside a home without
a warrant are presumptively unreasonable” under the Fourth
Amendment. Kentucky v. King, 563 U.S. 452, 459 (2011) (quot-
ing Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). But “the
warrant requirement is subject to certain reasonable excep-
tions.” Id. (citing Brigham City, 547 U.S. at 403).
One such exception is known as the plain-view doctrine,
which permits officers in certain situations to seize property
without a warrant when the property’s incriminating nature
is “immediately apparent.” See United States v. Contreras, 820
F.3d 255, 262 (7th Cir. 2016). Another exception permits law
enforcement to seize property in a probationer’s home so long
as the officer has reasonable suspicion that the property is
6 No. 19-2636
evidence of a crime. See United States v. Knights, 534 U.S. 112,
120 (2001).
In this case, there is no question that Officer Williams
“seized” McGill’s phone within the meaning of the Fourth
Amendment and that he had no warrant to do so. See United
States v. Jacobsen, 466 U.S. 109, 113 (1984) (“A ‘seizure’ of prop-
erty occurs when there is some meaningful interference with
an individual’s possessory interests in that property.”). Nor
does anyone question that “a probationer’s home, like anyone
else’s, is protected by the Fourth Amendment’s requirement
that searches [and seizures] be reasonable.” United States v.
Caya, 956 F.3d 498, 502 (7th Cir. 2020) (quoting Griffin v. Wis-
consin, 483 U.S. 868, 873 (1987)).
Thus, the debate here is whether Officer William’s war-
rantless seizure fell into an exception to the warrant require-
ment. We find that it did.
1. Plain View
Government officials may seize property without a war-
rant under the plain-view doctrine if (1) the officer is lawfully
present at the place of the seizure, (2) the seized object is in
the plain view of the officer, and (3) the incriminating nature
of the object is immediately apparent. United States v. Raney,
342 F.3d 551, 558–59 (7th Cir. 2003) (citing United States v.
Bruce, 109 F.3d 323, 328–29 (7th Cir. 1997)).
There is no dispute that the first two elements are satisfied
here—Officer Williams was lawfully present in McGill’s
house, and the unmonitored phone was in plain view. The
only issue, then, is whether the phone’s incriminating nature
was immediately apparent.
No. 19-2636 7
The incriminating nature of an item is “immediately ap-
parent” if an officer has “probable cause to believe that the
item is contraband or otherwise linked to criminal activity.”
United States v. Cellitti, 387 F.3d 618, 624 (7th Cir. 2004) (citing
Bruce, 109 F.3d at 328). With a probationer like McGill, that
criminal activity can include a violation of his conditions of
supervised release. See United States v. Herndon, 501 F.3d 683,
689 (6th Cir. 2007); 18 U.S.C. § 3583(h) (allowing a court to re-
voke a defendant’s term of supervised release and impose a
term of imprisonment). Even “an ordinarily innocuous ob-
ject” may be seized under this doctrine “when the context of
an investigation casts that item in a suspicious light.” Cellitti,
387 F.3d at 624.
Although the district court determined “that the unmoni-
tored cell phone was not in and of itself a violation of McGill’s
conditions of supervised release,” it found that the incrimi-
nating nature of the phone was immediately apparent to Of-
ficer Williams under the circumstances. We agree.
The circumstances of the seizure were as follows: McGill’s
supervised-release conditions prohibited him from having
contact with minors or possessing any sexually stimulating
materials, including on a cell phone. At the time of the home
visit, Officer Williams knew that McGill had previously vio-
lated the terms of his release by viewing child pornography
on a cell phone and that he had failed two polygraph tests
regarding his compliance with his supervised-release condi-
tions. Officer Williams testified that he observed a cell phone
that he believed was capable of connecting to the internet and
that might relate to the failed polygraphs. He further testified
that McGill attempted to hide the phone from his view and
changed his demeanor when asked about the phone. McGill’s
8 No. 19-2636
odd explanation for having the phone—to charge an extra
battery—further increased Officer Williams’s suspicion, par-
ticularly because it didn’t make sense to keep the phone in a
case if its only purpose was charging a battery. Finally, Officer
Williams was able to power on the phone, contrary to
McGill’s story, and observed a photo of a young boy on the
phone’s wallpaper.
Although McGill denied that he acted nervously or tried
to block Officer Williams’s view of the phone, the district
court gave little weight to his version of events set out in his
affidavit and gave great weight to Officer Williams’s testi-
mony at the hearing. Our review of the evidence does not
“leave[] us with the definite and firm conviction” that the dis-
trict court erred in its credibility assessment. Love, 706 F.3d at
842. So we accept its findings of fact.
Based on the above facts, Officer Williams had probable
cause to believe that the unmonitored cell phone was linked
to a violation of McGill’s supervised-release conditions and
thus the phone’s incriminating nature was “immediately ap-
parent. See Raney, 342 F.3d at 559; Cellitti, 387 F.3d at 624. Be-
cause the incriminating nature of the phone was immediately
apparent, Officer Williams’s seizure was lawful under the
plain-view doctrine, and the evidence that stemmed from that
seizure need not be suppressed.
2. Reasonable Suspicion
“Inherent in the very nature of probation is that probation-
ers ‘do not enjoy “the absolute liberty to which every citizen
is entitled.”’” Knights, 534 U.S. at 119 (quoting Griffin, 483 U.S.
at 874). Along those lines, the Supreme Court has explained
that there are several considerations unique to probationers
No. 19-2636 9
that inform what is reasonable under the Fourth Amendment,
including that a “probationer ‘is more likely than the ordinary
citizen to violate the law,’” id. at 120 (quoting Griffin, 483 U.S.
at 880), and that “probationers have even more of an incentive
to conceal their criminal activities and quickly dispose of in-
criminating evidence than the ordinary criminal,” id. So alt-
hough a warrantless seizure ordinarily requires probable
cause, “the balance of these considerations requires no more
than reasonable suspicion” in cases involving a probationer.
Id. at 121.
Reasonable suspicion is “more than a hunch but less than
probable cause.” United States v. Wilson, 963 F.3d 701, 703 (7th
Cir. 2020). It requires “a particularized and objective basis”
for suspecting that a person is breaking the law, United States
v. Rodriguez-Escalera, 884 F.3d 661, 668 (7th Cir. 2018), and it
“must be based on commonsense judgments and inferences
about human behavior,” United States v. Eymann, 962 F.3d 273,
282 (7th Cir. 2020) (quoting Illinois v. Wardlow, 528 U.S. 119,
125 (2000)).
For the same reasons laid out in the previous section, Of-
ficer Williams had reasonable suspicion to believe that McGill
was in violation of his conditions of supervised release and
that the cell phone was evidence of that violation or other
criminal act. Officer Williams observed an unknown, unmon-
itored phone that appeared to be capable of connecting to the
internet. He knew that McGill had failed polygraph tests re-
garding his compliance with his terms of supervised release,
and he observed McGill’s suspicious behavior upon noticing
the unmonitored phone. And Officer Williams—an experi-
enced probation officer with training in monitoring sex of-
fenders on supervised release—had been monitoring McGill
10 No. 19-2636
for some time before this incident. Taken together, these cir-
cumstances provided Officer Williams with reasonable suspi-
cion to seize the phone as evidence of a supervised-release vi-
olation or crime. Suppression, therefore, is not warranted.
B. Even If the Phone Was Illegally Seized, the Evidence Need
Not Be Excluded
Even if we assume that the seizure was not supported by
the above doctrines, the evidence still need not be suppressed
in this case. True, when the government obtains evidence in
violation of an individual’s Fourth Amendment rights, the
remedy is generally the exclusion of that evidence—and evi-
dence that is the fruit of the illegal search or seizure—at trial.
Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016). But this rule does
not apply automatically. Rather, it applies “only … where its
deterrence benefits outweigh its substantial social costs,” and
certain exceptions to the rule have arisen accordingly. Id. at
2061 (quoting Hudson v. Michigan, 547 U.S. 586, 591 (2006)).
One such exception is when the evidence inevitably would
have been discovered. Another exception is when the officer
acted in good faith.
1. Inevitable Discovery
Under the inevitable-discovery doctrine, “illegally seized
evidence need not be suppressed if the government can prove
by a preponderance of the evidence that the evidence inevita-
bly would have been discovered by lawful means.” United
States v. Pelletier, 700 F.3d 1109, 1116 (7th Cir. 2012) (citing Nix
v. Williams, 467 U.S. 431, 442–44 (1984)).
Officer Williams’s observations in McGill’s home and
McGill’s statement that the phone contained evidence of child
pornography were sufficient justification for the government
No. 19-2636 11
to obtain a warrant to seize the phone. See id. at 1117 (“It is
unreasonable to think that, after [the defendant] admitted to
two FBI agents that he had child pornography, the FBI would
have failed to follow up and obtain a search warrant.”). In-
deed, Officer Williams testified that, based on this infor-
mation, he filed a violation report and requested a search war-
rant, bench warrant, and detention hearing in McGill’s under-
lying case. Thus, the discovery of the evidence was inevitable
and need not be suppressed.
2. Good Faith
Finally, the exclusionary rule does not apply here because
Officer Williams acted in good faith when he seized the cell
phone. As noted above, the exclusionary rule does not apply
automatically when an individual’s Fourth Amendment
rights are violated. Strieff, 136 S. Ct. at 2061. Rather, the exclu-
sionary rule applies where “[t]he benefits of deterrence …
outweigh the costs.” Herring v. United States, 555 U.S. 135, 141
(2009) (citing United States v. Leon, 468 U.S. 897, 909 (1984)).
When law enforcement acts “with an objectively reasonable
good-faith belief that their conduct is lawful … the deterrence
rationale loses much of its force,” and the exclusionary rule
does not apply. Davis v. United States, 564 U.S. 229, 238 (2011).
Officer Williams testified that he believed that the unmon-
itored phone violated McGill’s conditions of supervised re-
lease and that it would also impede his ability to keep McGill
in compliance. The district court found Officer Williams’s tes-
timony credible, and we see no basis for concluding that its
finding was clearly erroneous. Because Officer Williams acted
with objective good faith in seizing the cell phone, the evi-
dence need not be excluded.
12 No. 19-2636
III. CONCLUSION
For the foregoing reasons, we affirm the denial of McGill’s
motion to suppress.