United States v. D'Andrea

United States Court of Appeals
For the First Circuit

Nos. 08-2455, 09-1018

UNITED STATES OF AMERICA,

Appellee,

v.

KENDRA D'ANDREA and WILLIE JORDAN,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]

Before
Torruella and Lipez, Circuit Judges,
and Smith,* District Judge.

Judith H. Mizner, with whom Behzad Mirhashem and Federal
Defender Office, District of Massachusetts were on brief, for
appellant Kendra D'Andrea.
Terrance J. McCarthy for appellant Willie Jordan.
J. Cam Barker, Criminal Division, Appellate Section, with whom
Carmen M. Ortiz, United States Attorney, Lanny A. Breuer, Assistant
Attorney General, Criminal Division, and Greg D. Andres, Deputy
Assistant Attorney General, Criminal Division, were on brief, for
appellee.

May 10, 2011

*
Of the District of Rhode Island, sitting by designation.
 SMITH, District Judge. Defendants-appellants Kendra

D'Andrea and Willie Jordan separately appeal their convictions

following conditional guilty pleas. For the reasons set forth

below, we hold that the district court erred in denying defendants'

motions to suppress without an evidentiary hearing, vacate the

judgments, and remand for an evidentiary hearing on the suppression

motions.

I. The Facts

The following facts are essentially undisputed except as

otherwise indicated. At around 6:30 p.m. on December 2, 2004, a

woman (the "Tipster") called the Judge Baker child abuse hotline of

the Massachusetts Department of Social Services ("DSS").1 She said

she resided in California and had a child with defendant Willie

Jordan, but requested to remain anonymous.2 The Tipster identified

defendants Kendra D'Andrea and Willie Jordan as partners, provided

D'Andrea's residential address,3 and identified Jordan's employer

of the past two months, a trucking company based in Missouri, by

name. She informed DSS that she had received a message on her

mobile phone containing photographs of D'Andrea and Jordan

performing sexual acts on D'Andrea's eight-year-old daughter (the

1
DSS is now called the Department of Children and Families.

2
Her identity is now known to the parties.

3
There is a factual dispute as to whether the Tipster
actually provided D'Andrea's address. This is discussed below in
Part II(B).

-2-
"victim") and of the victim with her genitalia exposed.

(Apparently D'Andrea had intended to send the text message to

Jordan but had sent it to the Tipster by mistake.) The Tipster

said the pictures could be accessed by going to www.sprintpcs.com

and entering a certain phone number and pass codes, which she

provided to the DSS intake agent.4

Shortly after receiving the anonymous call, DSS agents

reported it to the Gloucester, Massachusetts Police Department to

alert them to this possible case of child abuse. After several

unsuccessful attempts at accessing the website and at least one

other telephone conversation with the Tipster, DSS agents were able

to access the website, where they found numerous pornographic

pictures of the victim consistent with the Tipster's report. A DSS

agent printed out more than 30 of these photographs and took them

to the Gloucester Police Department. Three telephone numbers, two

of which appeared to be alternate numbers for the same person

(Jordan), and some text messages also appeared on the website along

with the pictures. In some of the text messages, the person

associated with one of the phone numbers, later revealed to be

4
At the time, Sprint enabled its mobile telephone subscribers
to store pictures and videos taken with their mobile phones on
password-protected online accounts at www.sprintpcs.com. These
pictures and videos were accessible only to those who had the
appropriate username and password for the account. (It also
appears that there were codes associated with particular pictures.)
The account at issue in this case was a password-protected online
account of this nature under Jordan's name and used by Jordan and
D'Andrea.

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Jordan, asks for more pornographic pictures of the victim to be

sent by the person with one of the other phone numbers, later

revealed to be D'Andrea.

After viewing the pictures, a detective with the

Gloucester Police Department applied for a warrant to search

D'Andrea's residence for files that may contain evidence of child

abuse and child pornography. The warrant affidavit stated that the

Tipster had told DSS that the child abuse was occurring at

D'Andrea's residence in Gloucester at an address she provided, and

that a Registry of Motor Vehicles check had indicated that D'Andrea

had a revoked Massachusetts license with the same address as that

provided by the Tipster. The warrant was signed at midnight and

the search commenced ten minutes later. The searching officers

found D'Andrea and her two little children, one of whom was the

victim, at the residence.5 They seized, among other things, a

mobile camera phone containing pornographic pictures of the victim,

one of them showing her with her genitals exposed and the other

showing Jordan performing oral sex on her.6 D'Andrea was taken

into custody and admitted that both she and Jordan had sexually

abused the victim. She also admitted that she would take

5
There are indications in the record that the other child, a
three-year-old, may also have been sexually abused, but defendants
were indicted only for the victim's abuse.

6
It is not clear from the record whether the pornographic
pictures found on D'Andrea's phone were identical to any of the
pictures on the website.

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pornographic pictures of the victim with her mobile phone, send

them to Jordan's mobile phone, and upload them on the Sprint

website so that Jordan could view them. The authorities

subsequently obtained an arrest warrant for Jordan and arrested him

in Michigan.

When the police knocked on D'Andrea's door on the morning

of December 3, she called Jordan, whereupon Jordan contacted Sprint

and deleted the account. Therefore, the copies printed by the DSS

agent appear to be the only surviving copies of the images on the

Sprint website.

After being indicted, defendants moved to suppress the

images, the evidence seized from D'Andrea's home (including the

camera phone), and D'Andrea's incriminating statements on the

grounds that all of it was obtained in violation of their Fourth

Amendment right to be free from unreasonable searches and seizures.

The district court denied the motions without holding an

evidentiary hearing. It also denied defendants' motion for a

Franks hearing to challenge the veracity of the warrant affidavit.

Defendants then entered conditional pleas of guilty to sexual

exploitation of a child and conspiracy to sexually exploit a child,

reserving their right to appeal the denial of the motions to

suppress and the motion to hold a Franks hearing. The district

court sentenced Jordan to 30 years in prison and restitution in the

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amount of $67,600, and D'Andrea to 27 years in prison and

restitution in the amount of $67,600.7

Defendants separately appeal their convictions, raising

five issues: Whether the district court erred in (1) denying

defendants' motions to suppress without holding an evidentiary

hearing, (2) denying the requests for a Franks hearing without

holding an evidentiary hearing, (3) imposing an unreasonably high

prison sentence, (4) denying Jordan's request to be present and

allocute at the restitution hearing, and (5) failing to hold an

evidentiary hearing to determine the appropriate amount of

restitution.

II. Analysis

A. The Motions to Suppress

Defendants' first claim of error targets the district court's

denial of the motions to suppress without conducting an evidentiary

hearing. A criminal defendant does not have a presumptive right to

an evidentiary hearing on a motion to suppress. United States v.

Brown, 621 F.3d 48, 57 (1st Cir. 2010) (citing United States v.

Panitz, 907 F.2d 1267, 1273 (1st Cir. 1990)). "A hearing is

required only if the movant makes a sufficient threshold showing

7
The government's brief and some of the district court docket
entries reference the amount of restitution imposed on D'Andrea as
$148,200. This appears to be a clerical error, as the orders of
restitution for both D'Andrea and Jordan state that an equal amount
of restitution will be imposed on the two, and Jordan's restitution
order makes clear that the amount of loss for purposes of
restitution is $135,200. (Jordan Add., Restitution Order at 2.)

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that material facts are in doubt or dispute, and that such facts

cannot reliably be resolved on a paper record. . . . Most

importantly, the defendant must show that there are factual

disputes which, if resolved in his favor, would entitle him to the

requested relief." United States v. Staula, 80 F.3d 596, 603 (1st

Cir. 1996) (citations omitted).

A district court's denial of an evidentiary hearing is

reviewed for abuse of discretion. Id.; United States v. Lewis, 40

F.3d 1325, 1332 (1st Cir. 1994). In considering the denial of the

motions to suppress, the district court's factual findings are

reviewed for clear error and its legal conclusions, including

ultimate constitutional determinations, are reviewed de novo.

Lewis, 40 F.3d at 1332-33 (citing United States v. Zapata, 18 F.3d

971, 975 (1st Cir. 1994)).

A search within the meaning of the Fourth Amendment

"occurs when the government violates a subjective expectation of

privacy that society recognizes as reasonable." Kyllo v. United

States, 533 U.S. 27, 33 (2001). A warrantless search is

unreasonable unless one of the recognized exceptions to the warrant

requirement applies. See, e.g., Coolidge v. New Hampshire, 403

U.S. 443, 468 (1971). The exclusionary rule, where applicable,

requires suppression of evidence obtained in violation of the

Fourth Amendment. Herring v. United States, 129 S. Ct. 695, 699

(2009).

-7-
 The focus of defendants' appeal of the denial of the

motions to suppress is the DSS agent's accessing the Sprint PCS

website and downloading and printing the pictures uploaded there.

Because the Tipster was a private actor, her unauthorized viewing

of the website did not implicate the Fourth Amendment. See United

States v. Jacobsen, 466 U.S. 109, 113 (1984).8 Nor did the police

search of D'Andrea's residence, on its own, violate the Fourth

Amendment, because it was carried out pursuant to a warrant. If

the DSS agent's accessing the website violated the Fourth

Amendment, however, evidence obtained during the ensuing police

search of the D'Andrea residence may be inadmissible because it was

"tainted" by the earlier violation and became "fruit of the

poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 484-

88 (1963).9

8
D'Andrea suggests that the Tipster's initial viewing of the
online account was not a private act but a "joint endeavor" carried
out with government support. The record belies this claim. The
Tipster had accessed the account and viewed the incriminating
pictures, which she subsequently described in detail to DSS agents
who had not yet seen them, before she called DSS and without the
participation or even knowledge of governmental authorities. See
infra at 17 (citing First Circuit decisions discussing the factors
to be considered in distinguishing private and government action
for Fourth Amendment purposes).

9
If the DSS agent's accessing the website violated the Fourth
Amendment, it does not necessarily follow that evidence from the
police search of the D'Andrea residence is "tainted" and
inadmissible. Rather, the question is "whether, granting
establishment of the primary illegality, the evidence to which
instant objection is made has been come at by exploitation of that
illegality or instead by means sufficiently distinguishable to be
purged of the primary taint." Wong Sun, 371 U.S. at 488. We have
no occasion here, nor enough facts, to address the fruit of the

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 There can be no serious debate, and the government does

not dispute, that defendants had a subjective expectation of

privacy in their password-protected online account and that this

expectation of privacy was, at least initially, reasonable. Nor is

there any question that the DSS agent's unauthorized accessing of

the website constituted a warrantless search. The question

presented is whether the warrantless search was nonetheless valid

because an exception to the warrant requirement applied or there

were circumstances defeating the reasonableness of defendants'

expectation of privacy. The government presses three theories:

(1) the private search doctrine; (2) emergency intervention; and

(3) inevitable discovery.

1. The Private Search Doctrine

The district court held that the search was reasonable.

Its reasoning is central to this appeal, and deserves to be set

forth at length (Order at 9-10):

Defendants make no argument – nor could
one credibly be made – that the anonymous
caller was acting as an agent of the
State . . . . The argument rather is that the
DSS administrator (Curley) who accessed the
website and downloaded the images of the abuse
violated defendants' Fourth Amendment rights.
This argument fails for the simple reason that

poisonous tree issue. If, after an evidentiary hearing, the
district court determines that the DSS violated the Fourth
Amendment in accessing the website, it would need to inquire
whether the subsequent evidence obtained from the search of the
house and mobile phone and D'Andrea's confession should be
suppressed as fruits of a poisonous tree, or whether the taint had
been dissipated in the interim.

-9-
 Curley intruded no further into defendants'
zone of privacy than did the anonymous caller.
Where a private party, acting on his or her
own, searches a closed container, a subsequent
warrantless search of the same container by
government officials does not further burden
the owner's already frustrated expectation of
privacy. United States v. Jacobsen, 466 US
109, 117 (1984). . . . Moreover, where an
expectation of privacy in an item has been
effectively destroyed by a private search,
police do not violate the Fourth Amendment by
examining the same item more thoroughly or
with greater intensity so long as they do not
'significantly expand' upon or 'change the
nature' of the underlying private
search . . . .
At day's end, this case falls clearly
into the 'assumption of the risk'
exception . . . . 'It is well-settled that
when an individual reveals private information
to another, he assumes the risk that his
confidant will reveal that information to the
authorities, and if that occurs the Fourth
Amendment does not prohibit governmental use
of that information.' Jacobsen, 466 U.S. at
117. . . . Thus, even granting defendants a
reasonable expectation of privacy in the
graphic website images of Jane Doe, by sharing
the website access information with the
anonymous caller, defendants took the risk
that their right to privacy in the website's
contents could be compromised.

The district court was correct in identifying Jacobsen as

the key case governing this area of Fourth Amendment law, where a

government search follows on the heels of a private search. In

Jacobsen, FedEx employees opened an accidentally damaged package to

examine its contents pursuant to a company policy regarding

insurance claims. 466 U.S. at 111. They found a suspicious white

powdery substance inside, put the substance back into the container

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(but did not re-seal it), and summoned DEA agents. Id. DEA agents

came, took the substance out of the box again, and removed a trace

of it for a field test, which revealed that it was cocaine. Id. at

111-12.

One of the issues presented was whether the DEA agents'

reopening of the box and removal of the substance violated the

defendant's Fourth Amendment rights. As in this case, in Jacobsen

the initial private search did not implicate the Fourth Amendment

because it was conducted by a private party. Id. at 113. The

question was whether the DEA agents' seizure of the drugs, which

followed on the heels of the private search, violated the Fourth

Amendment. The Court, per Justice Stevens, held that it did not.

Id. at 120-21. It ruled that the "additional invasions of

respondents' privacy by the Government agent must be tested by the

degree to which they exceeded the scope of the private search."

Id. at 115. Because the DEA agent's seizure did not exceed the

scope of the initial FedEx employees' search, held the Court, the

"agent's viewing of what a private party had freely made available

for his inspection did not violate the Fourth Amendment." Id. at

119-20.

In applying the Jacobsen private search doctrine to this

case, we must keep in mind several principles. To begin, it is

clear that just because a private party violates a person's

expectation of privacy does not mean that the expectation of

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privacy no longer exists or is not reasonable. See Walter v.

United States, 447 U.S. 649, 658 n.12 (1980) (Stevens, J.)

(rejecting the argument that petitioners' expectation of privacy

was "undone" by a private search, because "it is difficult to

understand how petitioners' subjective expectation of privacy could

have been altered in any way by subsequent events of which they

were obviously unaware"); see also Jacobsen, 466 U.S. at 132

(White, J., concurring) ("As Justice Stevens has previously

observed, . . . a person's expectation of privacy cannot be altered

by subsequent events of which he was unaware." (citing Walter, 447

U.S. at 659 n.12)). Rather, the Court in Jacobsen was careful to

point out that its private search "standard follows from the

analysis applicable when private parties reveal other kinds of

private information to the authorities. It is well settled that

when an individual reveals private information to another, he

assumes the risk that his confidant will reveal that information to

the authorities, and if that occurs the Fourth Amendment does not

prohibit governmental use of that information." Id. at 117.

In this case, the assumption of the risk, if any, goes to

how the Tipster obtained the account access information. On this

score, contrary to the district court's finding, there is no

evidence in the record that defendants "shar[ed] the website access

information with the anonymous caller." (Order at 10.) Quite the

opposite, both defendants affirmed in sworn affidavits that they

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did not share the password with anyone. Moreover, in a February

2007 interview, the Tipster told an investigator for the Federal

Public Defender Office that she pieced together the password by

surreptitiously taking scraps of paper on which Jordan had jotted

down various letters and numbers. Therefore, on this record, the

district court's factual finding that defendants shared the

password with the Tipster was clearly erroneous.

It is possible that an evidentiary hearing would unearth

facts to support a finding of assumption of the risk--for example,

if Jordan or D'Andrea were so careless with the password that one

of them assumed the risk of its disclosure. Further, it is

mentioned on one of the DSS information sheets that "[t]he pictures

had been forwarded to the site and various responders with web-

names had written to many pictures with comments of a highly

sexualized nature." (D'Andrea Sealed App. 3.) This arguably

implies that defendants had shared the site with others. If,

however, as D'Andrea and Jordan have sworn, they never shared the

password with anyone and reasonably believed no one else could get

into the account, assumption of the risk would not be present. In

sum, an evidentiary hearing is needed to explore whether the

circumstances under which the Tipster obtained the account access

information evince that defendants assumed the risk that the

security of their account would be compromised.10

10
Other circuit courts of appeals applying Jacobsen have
considered circumstances evincing an assumption of the risk. See

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 Secondly, because the record does not provide meaningful

details on the searches of the website by the Tipster and the DSS,

we do not have enough evidence to determine whether the DSS search

of the website exceeded the scope of the Tipster's search. This is

important, because under Jacobsen the "additional invasions of

respondents' privacy by the Government agent must be tested by the

degree to which they exceeded the scope of the private search."

466 U.S. at 115. Thus, the evidentiary hearing should explore

whether DSS obtained any of the pictures by exceeding the scope of

the Tipster's search. To the extent it did, those pictures are not

admissible under the private search doctrine.11

United States v. Grimes, 244 F.3d 375, 383 (5th Cir. 2001)
(defendant's wife entrusted his computer to a computer repairman,
who searched the computer's hard drive to delete unnecessary files
pursuant to her permission and "following standard company
practice"); United States v. Mithun, 933 F.2d 631, 634 n.3 (8th
Cir. 1991) (noting that by leaving firearm accessories in
"relatively plain view" in a vehicle which he turned over to hotel
valets for parking, defendant "assumed the risk that hotel
employees would discover the contraband and reveal that information
to the authorities"); United States v. Boyer, 914 F.2d 144, 146
(8th Cir. 1990) (defendant entrusted suspicious package to FedEx,
whose employees opened it before resealing it and turning it over
to DEA agents); United States v. Paige, 136 F.3d 1012, 1020 (5th
Cir. 1998) ("[C]onsideration must be given to whether the
activities of the home's occupants or the circumstances within the
home at the time of the private search created a risk of intrusion
by the private party that was reasonably foreseeable.").
11
This does not mean that if the government search exceeded
the private search in certain respects, the evidence is
inadmissible even to the extent which the government search did not
exceed the scope of the private search. To hold so would amount to
punishing lawful conduct (searching within the scope) to deter
unlawful conduct (searching outside the scope). The unlawful
conduct is sufficiently deterred by excluding the evidence flowing
from it. Moreover, it would be practically unworkable for the DSS

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 Finally, the Court in Jacobsen pointed out that when the

federal agent arrived to inspect the package, "there was a virtual

certainty that nothing else of significance [except for the white

powder to which the FedEx employees had alerted him] was in the

package and that a manual inspection of the tube and its contents

would not tell him anything more than he already had been told."

466 U.S. at 118-19. By requiring that the government expect its

search to reveal "nothing else of significance" other than the

evidence to which they were tipped off by the private party, the

Court was emphasizing that an antecedent private search does not

amount to a free pass for the government to rummage through a

person's effects. The same principle is expressed in the Supreme

Court's jurisprudence in the context of the plain view doctrine.

See Coolidge, 403 U.S. at 466 ("[T]he 'plain view' doctrine may not

be used to extend a general exploratory search from one object to

another until something incriminating at last emerges."); accord

Arizona v. Hicks, 480 U.S. 321, 328 (1987). To comply with this

limitation, the evidentiary hearing should explore whether, in

accessing the website, the DSS agents were virtually certain that

it contained nothing of significance except for the pictures of

agent to avert his eyes from everything else on the website and see
only the pictures that the Tipster saw. Therefore, if the
government search exceeded the scope of the Tipster's search, only
that part of the evidence that was obtained by exceeding the scope
of the private search falls outside the purview of the Jacobsen
doctrine and is inadmissible.

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child pornography, or whether they also expected to discover

something else.

The district court also failed to explore an important

threshold issue. Namely, even though the facts make clear that the

Tipster's initial hacking into the website before she called the

authorities was a private search (see supra note 8), it is not

clear whether the Tipster had to hack into the website a second

time, possibly with the aid of the authorities, before she

successfully directed them to the website. Specifically, some of

the DSS call sheets suggest that DSS was unable to access the

website after the Tipster's initial call, and possibly even after

a second call. (See D'Andrea Sealed App. 2.) This raises the

possibility that the Tipster did not have the correct password when

she called the authorities.12 If that is indeed the case, the

record is unclear as to whether the Tipster re-hacked the website

and, if so, whether the authorities actively assisted her in this

second attempt.

This issue is important because a search carried out by

a private party in conjunction with government efforts may no

longer qualify as a private search immune from the Fourth

Amendment. See United States v. Momoh, 427 F.3d 137, 140-41 (1st

12
Of course, this is merely a possibility and by no means the
only inference to be drawn from the opaque record. It may be, for
example, that the Tipster provided all the correct information, and
the initial failure to access the website resulted from a mistake
on DSS's part, in which case no additional Fourth Amendment issue
arises.

-16-
Cir. 2005) (enumerating the following factors as relevant in

distinguishing private and government action for Fourth Amendment

purposes: "the extent of the government's role in instigating or

participating in the search, its intent and the degree of control

it exercises over the search and the private party, and the extent

to which the private party aims primarily to help the government or

to serve its own interests" (quoting United States v. Pervaz, 118

F.3d 1, 6 (1st Cir. 1997))); United States v. Silva, 554 F.3d 13,

18 (1st Cir. 2009) (restating the aforementioned factors but noting

that "[w]e will not find state action simply because the government

has a stake in the outcome of a search"). Accordingly, on remand,

the district court should explore whether the Tipster had to re-

hack the website before she could give DSS the correct password;

whether the DSS or other authorities were involved in the re-

hacking; and whether, under the factors enunciated in Pervaz and

its progeny, the re-hacking amounted to a government search and not

a private search.

If the district court finds that there was a second

hacking and that it amounted to a government search rather than a

private search, then it should inquire whether the gap in

surveillance of the website restored defendants' expectation of

privacy in its contents. See Illinois v. Andreas, 463 U.S. 765,

773 (1983) (holding that an expectation of privacy in the contents

of a container, even if lawfully frustrated, may be regained by a

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gap in surveillance; provided only, however, that "there is a

substantial likelihood that the contents of the container have been

changed during the gap in surveillance").

2. Exigent Circumstances

A warrantless search unreasonable under ordinary

circumstances may be reasonable if undertaken under certain exigent

circumstances, for example "to render emergency assistance to an

injured occupant or to protect an occupant from imminent injury."

Brigham City v. Stuart, 547 U.S. 398, 403 (2006). The district

court mentioned in a footnote that this emergency intervention

exception "provides a sufficient alternative basis on which to

uphold the search of D'Andrea's apartment." (Order at 10 n.18.)

The district court's application of the emergency aid

exception is somewhat cursory, no doubt because the Court relied

primarily on Jacobsen. Because we have negated that holding, we

consider whether, on this record, exigent circumstances justify the

warrantless search by DSS. We agree with the district court that

"powerful evidence" of child abuse was received by DSS. But the

record does not indicate that abuse was then ongoing or that

further abuse was imminent. Nor does it explain how the Tipster--

who told DSS she resided in California and never claimed to have

been present at the time of the abuse or to have known about it

when it was going on--could have known whether further abuse was

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imminent at the time she called DSS.13 On the present record, it

is not possible to know whether there was anything in the text

message she received, dated several days before the call to DSS,

that alerted her to the possibility of imminent abuse. Nor do we

know from the record what, if anything, she told DSS regarding

imminent abuse.

Moreover, we cannot say with certainty, based on the

record as it currently stands, that the Tipster's uncorroborated

call provided probable cause that a crime was committed. See,

e.g., Florida v. J.L., 529 U.S. 266, 271-72 (2000) (holding that an

anonymous telephone tip that a young black male wearing a plaid

shirt and standing at a particular bus stop was carrying a gun was,

without more, insufficient to establish reasonable suspicion for a

Terry stop and frisk (let alone probable cause) when the police

found the described person with the described clothing at the bus

stop). This is significant because exigent circumstances is an

exception to the warrant, not the probable cause, requirement. See

Brigham City, 547 U.S. at 403 (describing exigent circumstances as

an exception to the warrant requirement); see also United States v.

Wilson, 36 F.3d 205, 208 (1st Cir. 1994) ("To cross the apartment's

threshold, [the officer] needed (1) probable cause to believe that

13
The government concedes that an objectively reasonable
belief in the imminence of the harm is a requirement for the
emergency intervention exception. (Brief at 22 (citing
authorities)); see, e.g., Brigham City, 547 U.S. at 403 (referring
to "imminent injury").

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contraband or evidence would be found inside, and (2) exigent

circumstances justifying an exception to the warrant requirement,

allowing him to enter without first obtaining a warrant.")

(emphases added); United States v. Martins, 413 F.3d 139, 147 (1st

Cir. 2005) ("To rely upon the [emergency aid] doctrine, the

government must show a reasonable basis, approximating probable

cause, both for the officers' belief that an emergency exists and

for linking the perceived emergency with the area or place into

which they propose to intrude.") (emphasis added). The sum of all

this is that the district court's reliance, in the alternative, on

exigent circumstances is not supportable on the current state of

the record. An evidentiary hearing is needed to flesh out the

facts to determine whether the Tipster's tip provided probable

cause and whether the authorities had an objectively reasonable

belief in the imminence of harm.14

3. Inevitable Discovery

The government argues that even if the DSS search

violated the Fourth Amendment, the evidence is admissible under the

inevitable discovery doctrine. This doctrine provides that

evidence obtained by violating the Fourth Amendment is nevertheless

14
The evidentiary hearing may also explore another exigency
that was not addressed by the district court or in the parties'
briefs on appeal (though it was addressed at oral argument)--
namely, whether the DSS agents responding to the call were
justified in accessing the Sprint account out of concern that the
pictures evidencing the abuse might be destroyed.

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admissible "[i]f the prosecution can establish by a preponderance

of the evidence that the information ultimately or inevitably would

have been discovered by lawful means." Nix v. Williams, 467 U.S.

431, 444 (1984). We have identified "three basic concerns" to keep

in mind in deciding whether to apply the inevitable discovery

doctrine: "are the legal means truly independent; are both the use

of the legal means and the discovery by that means truly

inevitable; and does the application of the inevitable discovery

exception either provide an incentive for police misconduct or

significantly weaken fourth amendment protection?" United States

v. Silvestri, 787 F.2d 736, 744 (1st Cir. 1986). In this Circuit,

there is no requirement that the independent line of investigation

that would have led to the inevitable discovery be already underway

at the time of the illegal discovery. Id. at 746; United States v.

Ford, 22 F.3d 374, 377 (1st Cir. 1994).15 Rather, the analysis must

"focus on the questions of independence and inevitability and

remain flexible enough to handle the many different fact patterns

which will be presented." Silvestri, 787 F.2d at 746.

15
Other circuits are divided over whether to impose this
requirement. Compare United States v. Cherry, 759 F.2d 1196,
1205-06 (5th Cir. 1985), and United States v. Satterfield, 743 F.2d
827, 846 (11th Cir. 1984) (both holding that, for inevitable
discovery to apply, an independent line of investigation must have
been underway at the time the evidence was obtained by unlawful
means), with United States v. Boatwright, 822 F.2d 862, 864 (9th
Cir. 1987) (Kennedy, J.), United States v. Thomas, 955 F.2d 207,
210 (4th Cir. 1992), and United States v. Kennedy, 61 F.3d 494,
499-500 (6th Cir. 1995) (all rejecting the requirement of an
ongoing independent line of investigation).

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 In light of the Supreme Court's warning that "inevitable

discovery involves no speculative elements but focuses on

demonstrated historical facts capable of ready verification or

impeachment," Nix, 467 U.S. at 444 n.5, we cannot say that the

present record contains all the facts necessary to enable an

informed determination on the applicability of the inevitable

discovery doctrine. An evidentiary hearing could explore whether

the evidence would have been discovered independently and

inevitably.

For the foregoing reasons, the district court erred in

denying defendants' motions to suppress without holding an

evidentiary hearing. An evidentiary hearing is warranted to

determine whether the DSS agent's warrantless search of the Sprint

account violated defendants' Fourth Amendment rights. The hearing

would reveal facts sufficient to enable an informed decision on the

private search doctrine, exigent circumstances, inevitable

discovery, and any other potentially applicable Fourth Amendment

doctrines.

B. The Franks Hearing

"[W]here the defendant makes a substantial preliminary showing

that a false statement knowingly and intentionally, or with

reckless disregard for the truth, was included by the affiant in

the warrant affidavit, and if the allegedly false statement is

necessary to the finding of probable cause, the Fourth Amendment

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requires that a hearing be held at the defendant's request."

Franks v. Delaware, 438 U.S. 154, 155-56 (1978).

The crux of D'Andrea's Franks request is that the

affidavit in support of the search warrant misrepresented a nexus

between the abuse and D'Andrea's home. D'Andrea argues that while

the Tipster did provide information about the abuse, she did not

relay D'Andrea's address or in any way link the abuse with her

home. D'Andrea does not dispute that all pertinent affidavits and

reports prepared by the police state that the Tipster provided

D'Andrea's address and reported abuse occurring there; rather, she

claims that the Tipster did not in fact report this to DSS and that

DSS recklessly or intentionally relayed misleading information to

the police.

The district court denied the Franks request, finding it

"flawed by two fundamental errors, one legal, and the other

factual." (Order at 11.) The legal error, according to the

district court, was that a Franks hearing examines alleged

misrepresentations by an affiant, not an informant--and, by

extension, not a DSS agent. Thus, the district court held that,

even assuming the DSS agent misrepresented the Tipster's call as

conveying a link between D'Andrea's home and the child abuse, the

request for a Franks hearing must be denied because there has been

no showing that the affiant was in any way responsible for this

misrepresentation. On the factual front, the district court relied

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on a copy of the original DSS Intake Information Form to find that

the Tipster did in fact provide D'Andrea's address and did link the

abuse to her home.

The "legal" basis for the district court's decision--that

Franks does not apply to misstatements by DSS agents--is reviewed

de novo. See United States v. Hicks, 575 F.3d 130, 136 (1st Cir.

2009); Lewis, 40 F.3d at 1332-33. It is undisputed that a Franks

hearing cannot test the truthfulness of the Tipster (or of any

other private informant, for that matter). See Franks, 438 U.S. at

171 ("The deliberate falsity or reckless disregard whose

impeachment is permitted today is only that of the affiant, not of

any nongovernmental informant.") (emphasis added). But it does not

necessarily follow that a Franks hearing cannot test the

truthfulness of the DSS agent. The DSS agent was, after all, a

government actor (a conclusion the government does not dispute), so

he cannot be conveniently lumped together with the private Tipster.

Nor should Franks be read to apply only to misrepresentations made

by the affiant himself, because such a reading would allow the

police to slip lies into affidavits with impunity by simply passing

them through an officer ignorant of their falsehood. Franks, 438

U.S. at 164 n.6 ("[P]olice could not insulate one officer's

deliberate misstatement merely by relaying it through an officer-

affiant personally ignorant of its falsity.").

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 This does not mean that Franks necessarily applies to DSS

agents or other similarly situated governmental actors; rather, it

means that such a determination requires an examination and

weighing of the policies served and disserved by applying Franks,

the kind of inquiry the Supreme Court has grappled with when

deciding whether to apply other Fourth Amendment doctrines to non-

police governmental actors in other contexts. See, e.g., New

Jersey v. T.L.O., 469 U.S. 325, 333-37 (1985) (deciding whether the

Fourth Amendment applies to actions of public school officials);

Arizona v. Evans, 514 U.S. 1, 14-16 (1995) (deciding whether the

exclusionary rule applies to evidence seized in violation of the

Fourth Amendment by an officer who acted in reasonable reliance on

an erroneous record furnished by a court employee). Deciding

whether to apply Franks to DSS agents, in general and in this case

in particular, would likewise require a thorough analysis of the

policies implicated and whether they would be served by application

of Franks.

It is unnecessary to decide this question, however,

because the district court's "factual" ground for denying the

Franks hearing is free from clear error. See Hicks, 575 F.3d at

138 ("We review the denial of a Franks hearing for clear

error . . . which exists only when we are left with the definite

and firm conviction that a mistake has been committed.") (citations

and quotation omitted). As the district court found, the record

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supports the conclusion that the Tipster did provide D'Andrea's

address and did link the child abuse to her home.16

Even if she had not, DSS and the police could have drawn

these inferences from other information she provided. The address

could be (and was) easily confirmed by checking D'Andrea's driver

license records. And the nexus to D'Andrea's home was apparent

from the circumstances: The detailed report, corroborated in its

most incriminating parts, that an itinerant truck driver and his

girlfriend were abusing the girlfriend's child and posting images

of the abuse on the Internet, and that the girlfriend would send

pornographic pictures of the victim via her mobile phone to the

truck driver when he was away, established probable cause that some

16
The address appears on the initial DSS Intake Information
Form. (D’Andrea Sealed App. 6-7.) The DSS agent who took the
Tipster's call wrote that the Tipster "is unsure where the mother's
partner [i.e., Jordan] resides." (D’Andrea Sealed App. 11.)
Certainly this does not mean that the Tipster was also unsure where
D'Andrea herself resided. Indeed, given that the DSS agent
reported that the Tipster was unsure where Jordan resided, it is
reasonable to infer that, had the Tipster said she was unsure where
D'Andrea resided, the DSS agent would have reported that too. The
fact that this is not reported, coupled with the fact that
D'Andrea's address is actually reflected on the form (D’Andrea
Sealed App. 6-7), means that the Tipster in all likelihood did
provide D'Andrea's address. It was not clear error for the
district court to find that this contemporaneous information was
more reliable than the Tipster's after-the-fact statement in
February 2007 to the Public Defender's investigator that she did
not know D'Andrea's address and could not have given it to DSS.
(See D'Andrea Sealed App. 124.) Even assuming, arguendo, that the
Tipster did not in fact report the address, it certainly was not
clear error for the district court to find that defendants' request
did not contain sufficiently concrete and well-supported
"allegations of deliberate falsehood or of reckless disregard for
the truth," as mandated by Franks, 438 U.S. at 171 (emphasis
added).

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of the abuse was occurring at the girlfriend's home or, at the very

least, that some evidence of the crime could be found at the home.

Thus, the explicit linking of the abuse to the home by the Tipster

was not "necessary to the finding of probable cause," as required

by Franks, 438 U.S. at 155-56.

Therefore, while the district court erred in holding

categorically that Franks does not apply to DSS agents, we agree

with the district court's factual determination that defendants did

not make the "substantial preliminary showing" required to entitle

them to a Franks hearing. See id.

IV. Conclusion

For the foregoing reasons, the judgments of the district court

are VACATED and the case is REMANDED for an evidentiary hearing on

the motions to suppress.17

17
Because our holding that the district court erred in denying
defendants' motions to suppress without an evidentiary hearing
leads to a vacatur of defendants' convictions, we need not address
the sentencing and allocution issues.

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