United States v. Smith

United States Court of Appeals
For the First Circuit

No. 18-1109

UNITED STATES OF AMERICA,

Appellee,

v.

BRAD SMITH,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph Laplante, U.S. District Judge]

Before

Lynch, Stahl, and Barron,
Circuit Judges.

Richard Guerriero, with whom Lothstein Guerriero, PLLC was on
brief, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
Scott W. Murray, United States Attorney, was on brief for appellee.

March 15, 2019
 STAHL, Circuit Judge. This appeal arises out of

Defendant-Appellant Brad Smith's conviction for producing six

videos depicting him sexually assaulting a three-year-old child.

Smith challenges the district court's denial of his motion to

suppress evidence recovered from his residence on a Louisiana pecan

farm, including a laptop computer and two hard drives that

contained the videos in question, as well as statements he made to

law enforcement at the farm and during a later interrogation. He

argued that law enforcement agents had violated his Fourth

Amendment rights, and that he was coerced into consenting to the

search of the residence. The district court disagreed, holding

that there was no Fourth Amendment violation and that Smith

knowingly and voluntarily consented to the search.

After a short jury trial, Smith was convicted of six

counts of violating 18 U.S.C. § 2251(a), the federal child

pornography production statute. At sentencing, Smith argued that

because the videos were taken during one continuous sexual assault,

the charges were multiplicitous. The district court disagreed and

ultimately sentenced Smith to a term of imprisonment of fifty

years.

On appeal, Smith challenges both the district court's

denial of his motion to suppress and his sentence. However, even

assuming arguendo that the agents committed a Fourth Amendment

violation at some point before encountering Smith on the pecan

- 2 -
farm, we find that any prior illegality did not significantly

influence or even play an important role in his subsequent consent

to the search of his computer and hard drives. He voluntarily

consented to the seizure of his computer and hard drives and his

consent was not obtained by exploitation of any Fourth Amendment

violation. In addition, we hold on the facts here that the proper

unit of prosecution under Section 2251(a) is each video depicting

the victim. Accordingly, and for the following reasons, we affirm.

I. Factual Background

We recount the facts in two parts. First, we describe

events occurring before the law enforcement agents' entry onto the

pecan farm, which for purposes of this appeal are uncontested.

Second, we recount the facts relevant to the motion to suppress,

including the agents' entry onto the farm and subsequent seizure

of Smith's computer and hard drives, "as the trial court found

them, consistent with record support." United States v. Andrade,

551 F.3d 103, 106 (1st Cir. 2008) (internal quotation marks and

citation omitted). We describe further facts relevant to

sentencing issues in that section.

A. Events Leading Up to the Agents' Entry

Beginning in 2010, Smith was employed at a concrete plant

in New Hampshire by the victim's father. Over the next few years,

Smith befriended the father and his family, and he occasionally

- 3 -
performed repairs at their home. Smith also regularly came to the

victim's home for holidays.

Sometime in early 2015, the father learned that Smith

had misused company funds. The company's counsel and distribution

manager recommended that Smith be terminated. However, the father

instead decided to transfer Smith to work on a pecan farm in Breaux

Bridge, Louisiana, that the victim's family owned.

In May 2015, before moving to Louisiana, Smith was

working at the father's home. On May 25, during one of his visits,

Smith used a pair of Google glasses to record six videos of him

sexually assaulting the victim, who was then three years old. The

videos depicted various sexual acts that occurred between roughly

12:43 p.m. and 1:49 p.m. In the immediate term, Smith remained on

friendly terms with the father, who was unaware of either the

assault on his child or the video recordings. In August 2015,

Smith relocated to Louisiana to begin working on the pecan farm.

Meanwhile, in September 2014, agents with the Department

of Homeland Security's Immigration and Customs Enforcement

Division ("HSI") obtained a search warrant in the Eastern District

of Michigan to search the e-mail account pornloveporn@yahoo.com.

HSI agents discovered that, in October 2013, that account had

received an e-mail from the address smittyb172@yahoo.com (the

"Yahoo Account") containing child pornography. In November 2015,

Yahoo! provided law enforcement information pertaining to the

- 4 -
Yahoo Account in response to an administrative subpoena and search

warrant. From Yahoo!'s response, HSI agents discovered that the

Yahoo Account was registered to Smith, and that he was residing in

Louisiana at the pecan farm. HSI Special Agent Lance Lopez

("Lopez") led the investigation into Smith and worked with fellow

HSI Special Agent Erol Catalan ("Catalan") and Louisiana State

Police Investigator Georgiana Kibodeaux ("Kibodeaux").

B. The Agents' Entry onto the Pecan Farm and
Subsequent Events

The pecan farm abuts a state highway just outside the

city limits of Breaux Bridge, Louisiana. The farm itself has a

see-through perimeter fence that runs parallel to the highway. A

driveway leads from the highway to the residential areas of the

farm, and the entrance to that driveway is gated at the highway.

The gate runs wider than the driveway and consists of two metal

sections that meet in the center. To open the gate, a person would

have to enter a code on a keypad located on a nearby pole outside

the fence. The code was not posted, although at all relevant

times, there was a sign near the gate carrying a phone number with

a New Hampshire area code to call for "deliveries." There were no

other signs on or around the front gate.

- 5 -
 The gate controls access to a driveway that runs through

adjacent pecan fields for 300 to 500 feet.1 The farm's primary

residence and an adjacent smaller secondary residence lie to the

right of the driveway just before it terminates in a wider paved

area. A paved footpath travels from the driveway to the front

porch of the main residence. A solid six-foot tall wooden privacy

fence extends from both sides of the primary residence. Viewing

the primary residence from the driveway, the privacy fencing

extended a short distance from the left side of the primary

residence to a nearby carport. From the right side of the primary

residence, the privacy fencing extends farther and encloses a

larger area behind the home, including the secondary residence.

The carport consists of a large, roofed structure with partially

enclosed sides, and covers a portion of the paved area at the end

of the driveway. The carport was located next to the primary

residence and nearby a workshop. Smith resided in the secondary

residence.

In early January 2016, Lopez surveilled the pecan farm.

Following one of his reconnaissance visits, Lopez called the phone

number posted near the gate for deliveries, pretending to be a

1
In a written memorandum explaining the denial of the motion
to suppress, the district court stated that the driveway ran 300
to 500 yards. However, the district court's use of "yards" appears
to have been in error, as none of the testimony supports the
conclusion that the driveway traversed that distance.

- 6 -
schoolteacher interested in a tour of the farm. A male identifying

himself as Smith answered the phone, but responded that the owner

of the property was not currently giving tours.

On January 12, 2016, Lopez and a local Assistant United

States Attorney discussed the possibility of obtaining a search

warrant for the pecan farm and residences. However, they concluded

that the evidence from the Yahoo Account was too stale for a

warrant. Therefore, Lopez decided to instead attempt a "knock and

talk"2 entry onto the property.

In the early afternoon of January 14, 2016, Lopez,

Catalan, and Kibodeaux approached the gate in a truck. They

initially called the "deliveries" number several times, but nobody

answered. Lopez and Kibodeaux, on foot, then "stepped through the

gate." This required Kibodeaux and Lopez to "duck[] down" and

pass between the top and middle bars forming the gate. Lopez

testified that this crossing was "like . . . [going] through a

barbed wire fence." When the district court asked Lopez about

what appeared to be a gap "meant for people to pass through" -- a

short length between the two sections of the gate that lacked a

top bar -- Lopez clarified that the gap was not wide enough for

2 "[T]he knock and talk rule permits the police to enter onto
private land and knock on a citizen's door for legitimate police
purposes, such as gathering information in an investigation,"
without a warrant. Young v. Borders, 850 F.3d 1274, 1284 (11th
Cir. 2017).

- 7 -
either agent. After crossing through, Kibodeaux and Lopez realized

that, when pushed, the two gate sections could be separated far

enough for Kibodeaux to fit through. Catalan stayed behind and

waited by the gate in his truck.

Lopez and Kibodeaux walked down the driveway and knocked

on the door to the primary residence (but not the secondary

residence, where Smith resided), but nobody answered. As the

agents walked back to the driveway, they heard machinery operating

behind the carport. The agents then walked to the carport and saw

two individuals: a male (later identified as Smith) and a female

working in a pecan field behind the carport. Lopez waved his arms

to draw their attention and flagged Smith over.

Neither the record nor the district court's decision

indicate precisely where exactly Smith and the agents first met.

It appears, however, that Lopez walked a few feet off the carport's

concrete padding towards Smith, while Smith simultaneously walked

towards Lopez. Smith, Lopez, and Kibodeaux then moved to the

driveway.

At that point, Lopez identified himself as an HSI agent,

and Kibodeaux as a Louisiana State Police investigator. Lopez

(falsely) told Smith that they were there to investigate potential

illegal immigrants working at the farm. Lopez also requested that

Smith provide the gate code so that Catalan could drive the truck

up the driveway and join them. Smith provided Lopez the code,

- 8 -
which Catalan used to open the gate. Catalan then drove the truck

onto the driveway and parked near the carport.

Soon afterwards, Lopez asked Smith for his driver's

license and e-mail address. Smith provided his license and the e-

mail address "smittyb172@gmail.com," which had the same username

as the account linked to the child pornography investigation, but

had a different webmail provider. Lopez then asked if Smith had

an alternate e-mail address, and Smith provided the Yahoo Account

address. At that point, Lopez asked Smith if they could go into

his residence to discuss additional matters, and Smith agreed.

The woman who had been standing with Smith when the agents first

saw him did not join them.

Once inside the secondary residence, Lopez asked Smith

whether he looked at pornography, to which Smith responded yes.

Lopez then asked whether Smith had come across and downloaded child

pornography, and Smith replied that he had accidentally downloaded

it on several occasions. Lopez then asked if the computer on which

Smith downloaded the pornography was inside the residence. Smith

admitted it was, and stated that it was his practice to download

the pornography and then move it into another folder to delete it.

He further admitted that the computer still had child pornography

files on it. Kibodeaux recalled that while Smith was "embarrassed"

during this conversation, "[h]e was not resistant."

- 9 -
 After Smith admitted to possessing child pornography,

Lopez asked Smith if he would consent to a search of his computer.

Lopez also read aloud a consent to search form.3 Smith demurred,

asking what would happen if he refused to grant consent. Kibodeaux

replied that it was his right to refuse consent, but that the

3 The consent to search form is as follows:
I, [name of person], have been asked to give
my consent to the search of my
computer/electronic equipment. I have also
been informed of my right to refuse to consent
to such a search.
I herbey [sic] authorize [law enforcement] to
conduct at any time a complete search of all
computer/electronic equipment located at [my
address]. These officers/agents are
authorized by me to take from the above
location, any computer(s), including internal
hard drive(s), floppy diskettes, CD's, DVD's,
any other electronic storage devices,
including but not limited to, personal digital
assistants, cellular telephones, pagers.
I hereby consent to the search of the
aforementioned items for any data or material
which is contraband or evidence of a crime. I
understand that this contraband or evidence
may be used against me in a court of law.
This written permission is given by me
voluntarily. I have not been threatened,
placed under duress or promised anything in
exchange for my consent. I have read this
form, it has been read to me and I understand
it. I understand the [English] language and
have been able to communicate with the
agents/officers.
I understand that I may withdraw my consent at
any time for any reason. I may also ask for
a receipt for all items taken.

- 10 -
agents could detain the computer based on his admission that he

had downloaded child pornography on it, and that they would apply

for a warrant. Although Smith did not sign the form at this time,

he then verbally consented to the search.4

When Kibodeaux went to retrieve the computer from the

residence's second floor, she found two additional hard drives

near the computer. Kibodeaux brought both the laptop and hard

drives downstairs. At that point, Smith asked whether he should

stop speaking with law enforcement, and the agents replied that he

could stop the conversation at any time. Smith then verbally

consented to the search of the hard drives as well. Kibodeaux

recalled that Smith's "demeanor was the same throughout the entire

interview[, both] outside and inside [his residence]. He was

cordial and . . . cooperative [when] speaking with [the agents]."

After seizing the computer and hard drives, Lopez filled

out a property receipt for Smith. Smith also signed the consent

to search form that Lopez had read aloud earlier. Lopez further

asked whether Smith would come with the agents to the local HSI

office, but Smith declined. Before departing, however, Catalan

and Kibodeaux noticed a picture of two young children on Smith's

4 The record is unclear as to how Smith consented to the
search. Kibodeaux and Lopez both simply testified that Smith had
consented. However, because it is undisputed that Smith did not
sign the consent to search form until a later point in time, we
infer that Smith initially verbally consented.

- 11 -
refrigerator. When the officers asked Smith about the children in

the picture, Smith gave the officers their names and said that he

was close with their family. The events at the pecan farm took

approximately forty-five minutes to unfold.

Upon returning to the local HSI office, Catalan

attempted to access one of Smith's hard drives. However, the hard

drive was password-protected, so Lopez called Smith to obtain the

password, which Smith voluntarily provided. From that hard drive,

Catalan retrieved several nude images of a young girl, later

identified as the victim. In addition, Catalan recovered six

videos depicting Smith sexually assaulting the victim. Catalan

realized that the victim was one of the two children depicted in

the picture on Smith's refrigerator.

After finding the child pornography, Lopez and Kibodeaux

developed a plan to have Smith come into the local state police

station. Lopez called Smith and told him that there was nothing

found on his devices and that he could pick up the computer and

hard drives at the station. Once Smith arrived, however, Kibodeaux

and three other officers detained him and told him that he was not

free to leave. Kibodeaux brought Smith into an interview room and

read him his Miranda rights. Smith waived those rights only after

asking several questions about them and having those questions

answered by Kibodeaux.

- 12 -
 Kibodeaux presented Smith with a still-shot photo from

one of the videos. She further asked about the sexual assault

depicted in the videos. Smith thereafter admitted to raping the

victim and videotaping the assault on May 26, 2015. On the basis

of this admission, law enforcement agents obtained a search warrant

for Smith's residence. Agents further obtained an arrest warrant

based on the videos.

II. Procedural Background

On June 15, 2016, the government filed an indictment in

the District of New Hampshire charging Smith with six counts of

producing child pornography in violation of 18 U.S.C. § 2251(a).

Each count corresponded to one of the videos Smith had produced on

May 26, 2015.

On August 25, 2016, Smith filed a motion to suppress the

bulk of the prosecution's evidence, including the videos of the

assault and inculpatory statements made to Kibodeaux. He argued

that law enforcement agents had violated his Fourth Amendment

rights by entering the curtilage of his residence without a

warrant, and that their unlawful entry and "show of force" coerced

him into consenting to the seizure of his laptop and hard drives.

He further insisted that statements made at his residence should

be suppressed because he was not administered a Miranda warning

beforehand and, additionally, that the information obtained was

- 13 -
fruit of the poisonous tree -- namely, the agents' entry onto the

curtilage.

The district court conducted an evidentiary hearing in

two parts on February 3 and 22, 2017. After the hearing concluded,

the district court orally denied the motion to suppress.5 As

relevant here, the district court (1) found that the agents' entry

onto the pecan farm was not unlawful because the place where they

first encountered Smith and obtained his consent to enter his

residence was not curtilage; (2) credited the testimony of Lopez,

Kibodeaux, and Catalan regarding the sequence of events inside the

residence; and (3) found that Smith had knowingly and voluntarily

waived his Miranda rights when he confessed to the sexual assault.

A three-day trial was held in early April 2017. The

jury, after a relatively short deliberation, returned a guilty

verdict on all counts. In competing sentencing memoranda, the

parties disputed Smith's maximum possible sentence. Specifically,

Smith argued that because the six charges stemmed from one

continuous assault, the prosecution used the wrong unit of

prosecution and the "offenses charged . . . merge for

sentencing[.]" Therefore, he reasoned, the statutory maximum

penalty should be thirty years -- the maximum penalty for a first-

5 The district court later issued a written memorandum and
order expounding on its reasoning on October 18, 2017.

- 14 -
time offender convicted of a single offense under Section 2251(a)

-- rather than 180 years, or thirty years per conviction.

The district court disagreed, noting that the videos had

depicted at least two distinct sexual assaults. Accordingly, it

found that the maximum sentence that would not implicate the Double

Jeopardy Clause was at least sixty years. It expressly declined

to address Smith's argument concerning the proper unit of

prosecution under Section 2251(a), but stated that it found

opinions from other circuits holding that the proper unit was each

visual depiction of the minor to be persuasive. It ultimately

sentenced Smith to a term of imprisonment of thirty years on counts

one through five, to be served concurrently. In addition, the

court sentenced Smith to a term of imprisonment of thirty years on

count six, which corresponded to a video depicting vaginal

penetration. As to that count, ten years was to be served

concurrently with counts one through five, and the remaining twenty

years was to be served consecutively. Thus, the total sentence

imposed was fifty years. This timely appeal followed.

III. Suppression Motion Analysis

"In reviewing the denial of a motion to suppress, [this]

court accepts the district court's 'factual findings to the extent

they are not clearly erroneous,' and 'review[s] its legal

conclusions de novo.'" United States v. Davis, 909 F.3d 9, 16

- 15 -
(1st Cir. 2018) (quoting United States v. Sanchez, 612 F.3d 1, 4

(1st Cir. 2010)) (second alteration in original).

In his brief, Smith makes two primary arguments

concerning the motion to suppress. First, he contends that law

enforcement agents violated his Fourth Amendment rights when they

entered the curtilage of his home to locate him. Specifically, he

argues that the locked gate and the driveway through which the

agents entered the farm were part of the curtilage of his

residence, and that the locked gate at the entrance to the farm

revoked any implied license of entry.6 Second, he contends that

the constitutional violation, coupled with the agents'

misrepresentations, were sufficiently coercive as to taint his

consent to the search. We need not resolve the legality of the

agents' entrance onto the pecan farm, their knocking on the door

6All persons, whether law enforcement agents or private
citizens, have an implied license to enter property and knock on
a homeowner's door. See Kentucky v. King, 563 U.S. 452, 469
(2011). "However, the scope of [the] license . . . is limited not
only to a particular area but also to a specific purpose." United
States v. Bain, 874 F.3d 1, 12-13 (1st Cir. 2017) (quotation marks,
alteration, and citation omitted). Moreover, the occupant "has no
obligation to open the door or to speak." King, 563 U.S. at 469-
70. While this court and the Supreme Court have never specified
that a homeowner may revoke the implied license of entry in the
context of the Fourth Amendment, several other circuit courts have
held so where the homeowner takes steps such that a reasonable
member of the public would conclude that he was not welcome on the
property. See, e.g., United States v. Carloss, 818 F.3d 988, 994-
95 (10th Cir. 2016). Although we are skeptical that the implied
license of entry could be irrevocable, we do not resolve this
question today, as we assume arguendo that the locked gate revoked
the implied license of entry.

- 16 -
of the primary residence, or their presence on the part of the

farm where they first encountered Smith because, even assuming

that there was a constitutional violation, Smith's subsequent

consent was voluntary and not tainted. See Illinois v. Rodriguez,

497 U.S. 177, 181 (1990) (stating that the Fourth Amendment's

prohibition on warrantless searches is inapplicable where

voluntary consent has been obtained).

A. Whether the Consent Was Tainted

A defendant's consent to a search may be invalidated if

it "bear[s] a sufficiently close relationship to the underlying

illegality." United States v. Delgado-Pérez, 867 F.3d 244, 256

(1st Cir. 2017) (quotation marks and citation omitted). To

determine whether there was a sufficient nexus between the illegal

act and the defendant's consent, this court considers the factors

enumerated by the Supreme Court in Brown v. Illinois, 422 U.S. 590

(1975). Delgado-Pérez, 867 F.3d at 257. Those factors are: (1)

"temporal proximity" between the illegal act and the consent, (2)

"the presence of intervening circumstances," and (3) "the purpose

and flagrancy of the official misconduct." Brown, 422 U.S. at

603-04. "And, where, as here, an earlier unlawful search is

alleged to have tainted consent that is given later, we have

'emphasized the importance of determining whether the prior

illegality significantly influenced or played a significant role

in the subsequent consent.'" Delgado-Pérez, 867 F.3d at 257

- 17 -
(quoting United States v. Cordero-Rosario, 786 F.3d 64, 76 (1st

Cir. 2015) (internal quotation marks omitted)).

1. Temporal Proximity

"There is no bright-line rule defining the temporal

factor. But, if the period of time is extremely short, this factor

weighs in favor of exclusion. By contrast, a longer interval

obviously weighs in favor of admissibility." United States v.

Delancy, 502 F.3d 1297, 1310 (11th Cir. 2007) (internal citations

omitted). Smith contends that he consented to the search of his

computer and hard drives within approximately twenty minutes of

the agents' arrival. On that basis alone, he argues that "the

temporal proximity factor weighs heavily in favor of finding no

attenuation."

It is unclear from the record exactly when Smith

consented to the search of his computer and hard drives. In the

intervening time from when law enforcement first approached Smith

and when consent was given, the agents and Smith talked briefly

outside the carport, walked to the secondary residence, and had a

conservation inside that residence in which Smith admitted to

possessing child pornography. Presumably, this sequence of events

took, at minimum, several minutes to unfold. At least two circuits

have suggested that this length of time can constitute sufficient

attenuation. See United States v. Whisenton, 765 F.3d 938, 942

(8th Cir. 2014) ("[F]ifteen minutes is sufficient to demonstrate

- 18 -
an attenuation of the illegality."); United States v. Myers, 335

F. App'x 936, 939 (11th Cir. 2009) (unpublished per curiam opinion)

(finding ten minutes sufficient attenuation where, as here, the

defendant was not handcuffed or detained and law enforcement agents

were polite and non-threatening). Because the district court never

made a finding concerning the amount of time that had elapsed, we

are limited in our ability to analyze this factor. However, we

need not definitively resolve this issue because "[o]n these facts

. . . timing is not the most important factor." Delancy, 502 F.3d

at 1311.

2. Intervening Circumstances

We turn then to intervening circumstances, "or events

that interrupt the causal connection between the illegal act and

the possibly tainted consent or confession." Id. (citing Brown,

422 U.S. at 611 (Powell, J., concurring in part)). "The presence

of intervening circumstances that provide the defendant an

opportunity to pause and reflect, to decline consent, or to revoke

consent help demonstrate that the illegality was attenuated."

Whisenton, 765 F.3d at 942 (internal quotation marks and citation

omitted).

Here, there was an important intervening

circumstance -- namely Agent Lopez's recitation of the consent to

search form. After the recitation, Smith did not immediately grant

consent to search his computer and hard drives; instead, he asked

- 19 -
about the consequences of refusing consent. Kibodeaux accurately

replied that while Smith could refuse consent, the agents could

detain the computer based on his admission that it contained child

pornography while they applied for a warrant. This clearly shows

that Smith was given "an opportunity to pause and reflect" and

that he was cognizant of the importance of consent. Whisenton,

765 F.3d at 942; (internal quotation marks and citation omitted)

cf. also United States v. Stark, 499 F.3d 72, 77 (1st Cir. 2007)

(finding that defendant's third confession at new time and location

constituted an intervening event). Although Smith did not sign

the consent to search form until after the officers had seized his

computer and hard drives and the search was completed, that does

not alter our conclusion that he was, or should have been, fully

aware of his constitutional rights at the time of his granting

consent. See Delancy, 502 F.3d at 1311-12. Accordingly, this

factor weighs in the government's favor. See id.

3. Purpose and Flagrancy of the Misconduct

Finally, we consider the third factor: "the purpose and

flagrancy of the official misconduct in question." Cordero-

Rosario, 786 F.3d at 76 (citing Brown, 422 U.S. at 603-04). We

have stated that this factor "is the most important part of the

analysis 'because it is tied directly to the rationale underlying

the exclusionary rule, deterrence of police misconduct.'" Stark,

499 F.3d at 77 (quoting United States v. Reed, 349 F.3d 457, 464-

- 20 -
65 (7th Cir. 2003)). "In analyzing this factor, courts look to

see whether: (a) the police used threatening or abusive tactics;

(b) the 'impropriety of the [initial misconduct] was obvious'; and

(c) the initial search was a mere evidence expedition calculated

to elicit a confession." Id. (quoting Brown, 422 U.S. at 605).

Here, there is no evidence that law enforcement used

threatening or abusive tactics to obtain Smith's consent to search

the computer and hard drives. The agents' conduct is a far cry

from the extreme tactics the Supreme Court deemed coercive in Brown

and Wong Sun v. United States, 371 U.S. 471 (1963). In Brown, two

officers broke into and searched the defendant's apartment without

probable cause. 422 U.S. at 593. When the defendant returned,

the officers held him at gunpoint and arrested him merely for

"questioning" or "investigation." Id. at 605. Similarly, in Wong

Sun, six or seven officers broke into a defendant's residence and

arrested him without probable cause. 371 U.S. at 473-74. In

addition, one officer had pointed a pistol at him. See id. By

contrast, the record in this case shows that the agents were

professional and polite throughout their interactions with Smith.

The agents did not enter Smith's home or the area immediately

surrounding it within the privacy fence until Smith expressly

granted consent to do so, and Smith was not arrested until he later

confessed at the local police station to filming and committing

the sexual assault. In a similar vein, there is no evidence that

- 21 -
the agents' entry onto the farm was a mere fishing expedition to

elicit a confession.

More importantly, however, the alleged illegality of the

agents' entry onto the farm was far from obvious. "The Fourth

Amendment provides in relevant part that the 'right of the people

to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated.'"

Florida v. Jardines, 569 U.S. 1, 5 (2013) (quoting U.S. Const.

amend. IV). However, the Fourth Amendment does not "prevent all

investigations conducted on private property." Id. at 6. Rather,

at its "very core" it protects the home and its curtilage, or the

area "immediately surrounding and associated with the home." Id.

at 6. By contrast, as a general matter, the Fourth Amendment does

not prohibit government intrusion into activities occurring in

"open fields." Oliver v. United States, 466 U.S. 170, 179-82

(1984).

The Supreme Court has provided a four-part test to

determine whether an area is part of the curtilage. Those factors

are: (1) "the proximity of the area claimed to be curtilage to the

home"; (2) "whether the area is included within an enclosure

surrounding the home"; (3) "the nature of the uses to which the

area is put"; and (4) "the steps taken by the resident to protect

the area from observation by people passing by." United States v.

Dunn, 480 U.S. 294, 301 (1987).

- 22 -
 As discussed earlier, the site of the agents' initial

encounter with Smith was somewhere on or near the driveway behind

the carport in an area adjacent to a pecan field. It appears from

the record that this location was, at minimum, some distance away

from Smith's home. It was not enclosed by the solid wood privacy

fence surrounding the residences. And, given that Smith was

working in a pecan field when the agents first encountered him,

the area was "not being used for intimate activities of the home."

Id. at 302. We need not, and do not purport to, decide whether

that area, or the part of the driveway where the agents first

entered the farm, was part of the curtilage. However, given these

considerations, even assuming that this location was part of the

curtilage to Smith's residence, it was not clearly so.7

Accordingly, the agents' entry cannot be characterized as a

7 The only area the agents approached that was clearly
curtilage was the front door to the primary residence. See, e.g.,
Jardines, 569 U.S. at 7 ("The front porch is the classic exemplar
of an area adjacent to the home and to which the activity of home
life extends." (internal quotation marks and citation omitted)).
We note, however, that Smith did not live in that residence and
does not claim to have conducted any activities there. Thus, from
this record it appears that the front porch was not curtilage as
to Smith and that he may not contest the agents' entry there. Cf.
United States v. Stokes, 829 F.3d 47, 51 (1st Cir. 2016) (stating
that "the defendant carries the burden of making a threshold
showing that he has a reasonable expectation of privacy in the
area searched and in relation to the items seized." (internal
quotation marks and citations omitted)); Bain, 874 F.3d at 13
(discussing generally who may contest governmental property
invasions and noting that an "overnight guest" can contest a search
of the home). Again, however, we need not reach that issue.

- 23 -
purposeful and flagrant violation of Smith's Fourth Amendment

rights. See Cordero-Rosario, 786 F.3d at 76.

Weighing the three Brown factors as a whole, even if one

were to assume that the agents' initial entry onto the pecan farm

or their knocking on the door of the primary residence on the farm

was unlawful, we find that it did not taint Smith's later consent

to the search of his computer and hard drives.

B. Voluntariness

In his brief, Smith separately attacks the district

court's determination that his consent and statements made to law

enforcement agents in the residence were voluntarily given. "The

determination of voluntariness 'turns on an assessment of the

totality of the circumstances.'" United States v. Forbes, 181

F.3d 1, 5 (1st Cir. 1999) (quoting United States v. Barnett, 989

F.2d 546, 554-55 (1st Cir. 1993)). "We review [the district

court's] determination that consent was voluntary for clear

error." Id. (citing Barnett, 989 F.2d at 556).

Smith first claims that the "most prominent coercive

tactic in this case was the agents' surprise unlawful entry to the

property." Specifically, he faults the agents for failing to

contact him by phone on the day of the search and not exploring

less intrusive means of obtaining consent to enter the farm or

search his computer and hard drives. However, that argument is

belied by the record. The agents did in fact call the "deliveries"

- 24 -
number several times, but nobody answered. There is no evidence

to suggest that their subsequent entry was anything but a faithful

attempt to conduct a "knock and talk," which multiple federal

appellate courts have found to be a "reasonable investigative

tool." United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001);

see also United States v. Cruz-Mendez, 467 F.3d 1260, 1264-65 (10th

Cir. 2006); United States v. Thomas, 430 F.3d 274, 277 (6th Cir.

2005). And, as explained earlier, even assuming arguendo that the

gate revoked the implied license of entry and that the entry onto

the front steps of the primary residence was problematic, any

resulting Fourth Amendment violation did not affect Smith's

subsequent grant of consent to enter his home or search his

computer and hard drives.

Smith also complains that the agents used a ruse -- Agent

Lopez's admittedly false statement that he was investigating

possible illegal immigrants -- when first approaching him.

However, this court has stated that law enforcement is permitted

to engage in basic "manipulative behavior," such as "insincere

friendliness which successfully induces a criminal suspect to

willingly answer questions and/or consent to a search," so long as

it does not impact the defendant's voluntary relinquishment of a

right. United States v. Hornbecker, 316 F.3d 40, 49 (1st Cir.

2003); cf. also United States v. Hughes, 640 F.3d 428, 439 (1st

Cir. 2011) ("[S]ome degree of deception [by law enforcement] during

- 25 -
the questioning of a suspect is permissible."). Here, Agent

Lopez's minor deception at most helped facilitate a conversation

with Smith. After Smith had invited the agents into his home,

Lopez dispensed with the facade. By the time Smith was asked to

consent to the search of the computer and hard drives, he was aware

of the true reason for the agents' visit and their reasons for

seeking to search his computer. Therefore, we agree with the

district court that the "immigrant worker ruse" is not

constitutionally offensive.

In his brief, Smith also takes issue with Kibodeaux's

statement that the agents could seize the computer regardless of

whether he consented. As noted above, Kibodeaux represented that

law enforcement could detain the computer based on Smith's

admission that it contained child pornography. It is well

established that the threat of destruction of evidence is an

exigent circumstance that permits law enforcement to conduct a

warrantless seizure of property. See United States v. Almonte-

Baez, 857 F.3d 27, 33 (1st Cir. 2017). Given the possibility that

Smith would seek to wipe the child pornography from his computer

and hard drives in the agents' absence, Kibodeaux's statement was

correct. See id.; accord United States v. Bradley, 488 F. App'x

99, 103 (6th Cir. 2012) (unpublished); United States v. Vallimont,

378 F. App'x 972, 974 (11th Cir. 2010) (unpublished). Therefore,

the statement does not invalidate the voluntariness of Smith's

- 26 -
consent. See United States v. Vazquez, 724 F.3d 15, 22 (1st Cir.

2013) ("[T]he law is . . . clear that consent to a search is not

invalid merely because it is secured by an officer's accurate

assurance that there will soon be a lawful search anyway."

(citations omitted)).

To get around this, Smith notes that the Supreme Court

has stated that law enforcement cannot "create the exigency by

engaging or threatening to engage in conduct that violates the

Fourth Amendment." King, 563 U.S. at 462. He argues that the

only reason he would have sought to delete the pornography was

because of the agents' illegal entry onto the property. From this,

he reasons that "all evidence obtained as a result of [his]

purported consent, including the videos and his subsequent

[confession], should have been suppressed." However, "exclusion

may not be premised on the mere fact that a constitutional

violation was a 'but-for' cause of obtaining evidence." Hudson v.

Michigan, 547 U.S. 586, 592 (2006); see also Garcia-Aguilar v.

Lynch, 806 F.3d 671, 675 (1st Cir. 2015). Rather, "there also

must be some indication that government actors took advantage of

the initial illegality to obtain the challenged evidence." Garcia-

Aguilar, 806 F.3d at 675 (citing Wong Sun, 371 U.S. at 488). For

largely the same reasons given in the previous section, we find

that the agents did not take advantage of the alleged

- 27 -
constitutional violation to obtain his consent to search the

computer and hard drives.

Accordingly, we find no error with the district court's

determination that Smith's consent to enter his home and search

his computer and hard drives was voluntary.

IV. Sentencing Claim Analysis

We now turn to Smith's challenge to his fifty-year

sentence. On appeal, Smith contends that his maximum sentence

should have been thirty years, the maximum penalty for a single

violation of Section 2251, because all six convictions stemmed

from a "single episode, at the same place within a short period of

time with the same perpetrator and victim." In other words, he

argues that the government used the wrong unit of prosecution such

that his convictions were multiplicitous.

A prosecution is multiplicitous when it charges a

defendant more than once "for what is essentially a single crime."

United States v. Chiaradio, 684 F.3d 265, 272 (1st Cir. 2012).

"The prohibition against multiplicitous prosecution derives from

the Double Jeopardy Clause," which bars multiple punishments for

the same offense. United States v. Gordon, 875 F.3d 26, 32 (1st

Cir. 2017) (citations omitted). When a defendant levies a claim

of multiplicity, a court "must determine whether there is a

sufficient factual basis to treat each count as separate." Id.

(quoting United States v. Stefanidakis, 678 F.3d 96, 100-01 (1st

- 28 -
Cir. 2012)) (internal quotation marks omitted). Such a

determination "depends on whether Congress intended to punish

separately each of the alleged violations." Id. (citing Jeffers

v. United States, 432 U.S. 137, 155 (1977) (plurality opinion)).

Because this issue turns on a question of statutory interpretation,

our review is de novo. Id.

In support, Smith notes that the federal child

pornography statute states as follows:

Any person who employs, uses, persuades,
induces, entices, or coerces any minor to
engage in . . . any sexually explicit conduct
for the purpose of producing any visual
depiction of such conduct or for the purpose
of transmitting a live visual depiction of
such conduct, shall be punished as provided
under subsection (e).

18 U.S.C. § 2251(a) (emphasis added). He reasons that the videos

depicted one continuous "use" of the victim, such that all six

convictions should have merged for sentencing purposes.

The district court rejected this argument at sentencing,

noting that multiple federal appellate courts have held that the

proper unit of prosecution of Section 2251 was each image or video

depicting the child, not each "use" of the child. The district

court also found that there were at least two discrete acts

depicted in the videos. The court further noted that while the

videos, each of which was approximately one minute long, were

produced in a single session, their production took place over one

- 29 -
hour and were interspersed. Therefore, the court concluded that

a sentence of fifty years was constitutionally permissible.8

We agree with the reasoning of the district court. Here,

Smith produced six separate videos over the course of an hour,

each made at a different time and depicting a discrete sexual act.

Section 2251 criminalizes the use of a "minor to engage in, any

sexually explicit conduct for the purpose of producing any visual

depiction of such conduct." 18 U.S.C. § 2251(a) (emphasis added).

"The fact that multiple [videos] may have been sequentially

produced during a single . . . session is irrelevant. Each [video]

depended upon a separate and distinct use of the children." United

States v. Esch, 832 F.2d 531, 542 (10th Cir. 1987); see also United

States v. Tashbrook, 144 F. App'x 610, 614-15 (9th Cir. 2005)

(unpublished). Thus, on the facts presented here, the six separate

counts were not multiplicitous.

In his brief, Smith also argues that Section 2251 is

unconstitutionally ambiguous. He relies on United States v.

Verrecchia, 196 F.3d 294 (1st Cir. 1999), in which this court held

that the simultaneous possession of multiple firearms by a felon

constituted a single violation of the felon-in-possession statute,

18 U.S.C. § 922(g)(1). Id. at 298. In doing so, it stated that

8
Again, the court imposed a thirty-year sentence on counts
one through five, to be served concurrently, and a separate thirty-
year sentence on count six, with twenty years to be served
consecutively.

- 30 -
where the punishment for a federal offense is ambiguous, the doubt

is "resolved against turning a single transaction into multiple

offenses." Id. (citing Bell v. United States, 349 U.S. 81, 84

(1955)). Smith argues that the word "any" renders Section 2251(a)

similarly ambiguous because it "could be found to mean either a

single instance of producing multiple images, or the many different

images themselves."

However, we see no ambiguity in Section 2251, nor does

the sole case that Smith cites for the proposition that an

ambiguity exists support his claim. In United States v. Coutentos,

No. 09-cr-60-LRR, 2009 WL 4730180 (N.D. Iowa Dec. 3, 2009), the

defendant had produced a single pornographic video depicting two

children. The government brought two counts under Section 2251(a),

and the defendant moved to strike one of the two counts. Id. at

*1. The district court granted the motion, explaining that the

indictment was multiplicitous because there was "a single

production of a single video." Id. at *2. Because Section 2251

is ambiguous as to whether "each minor can serve as a unit of

prosecution," the court applied the rule of lenity in favor of the

defendant. Id. By contrast, here, Smith was charged with

producing six separate videos. Accordingly, Coutentos, whether

rightly or wrongly decided, does nothing to undermine our holding

today.

- 31 -
 V. Conclusion

For the foregoing reasons, the district court's denial

of the motion to suppress and the sentence that it imposed are

AFFIRMED.

- 32 -