In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3924
UNITED STATES OF AMERICA ,
Plaintiff-Appellee,
v.
ANDRE MOODY ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 09 CR 00009—William T. Lawrence, Judge.
A RGUED S EPTEMBER 22, 2011 —D ECIDED D ECEMBER 14, 2011
Before BAUER , MANION , and KANNE , Circuit Judges.
MANION , Circuit Judge. A jury convicted Andre Moody
of one count of conspiracy to distribute 500 grams
or more of methamphetamine, and one count of distribu-
tion of five grams or more of methamphetamine. The
district court sentenced Moody to 292 months’ imprison-
ment for each count, set to run concurrently. Moody
2 No. 10-3924
appeals, arguing that the district court erred in admitting
evidence obtained in violation of his constitutional
rights. We conclude that the challenged evidence was
derived from an independent source, and in light of the
fact that law enforcement did nothing with the chal-
lenged evidence for over two years before it was redis-
covered by an independent source, any unconstitutional
taint was removed and the evidence was properly
admitted. We affirm.
I.
Law enforcement officials first learned of Moody’s
methamphetamine trafficking in November 2007 from
an informant, Misty Sutton. Moody had begun “front-
ing” quantities of methamphetamine to Sutton approxi-
mately four months prior to her arrest, and she in
turn sold the methamphetamine to individual us-
ers. Working with law enforcement, on November
24, 2007, Sutton made a series of telephone calls
and texts to Moody to request more methamphetamine,
and she arranged to meet him to complete the transac-
tion. Law enforcement officials stopped Moody on
his way to meet with Sutton, and a trained narcotics
dog alerted officers to the presence of a controlled
substance in Moody’s truck.
After the dog alerted to the presence of drugs, Moody
gave Detective Terry Rogers oral consent to search
his vehicle. Rogers’s search uncovered a quantity of
No. 10-3924 3
methamphetamine, $991 in cash, and two cell phones.
Rogers arrested Moody, and following the arrest he
searched the electronic memory of the cell phones
and found a list of numbers that had recently contacted
Moody’s phone. One of the numbers was identified
in the phone’s memory with the letter “G.” As a result
of this stop, Moody was convicted of possession
of methamphetamine and was sentenced to probation.
Nothing further was done with the information
obtained from Moody’s cell phone.
His arrest and conviction did nothing to deter his
interest in drug trafficking, however, as Moody wasted
no time after his release in contacting his associates
and in continuing to supply them with methamphet-
amine. Testimony at trial revealed that Moody regularly
provided methamphetamine to Donald Blair from
December 2007 through September 2008, who in turn
delivered that methamphetamine to James Nichols,
Robin Pegg, David Pegg, and Norman Auterson. Police
eventually developed Blair as an informant, and in May
2009, observed Blair and Moody engaging in a variety of
transactions related to Moody’s drug trafficking.
On May 27, 2009, Blair, cooperating with law enforce-
ment officials, undertook to execute a controlled pur-
chase of methamphetamine from Moody. Law enforce-
ment placed audio/video recording devices in Blair’s
kitchen and living room, and Blair himself was outfitted
with an audio/video recording device. While Moody was
at Blair’s apartment and under the surveillance of
officers, Moody received a call on his cell phone from a
4 No. 10-3924
man later identified as Moody’s methamphetamine
source. At trial, Blair testified that Moody indicated
during the phone conversation that he would leave
Blair’s apartment to meet his methamphetamine source
and resupply. After Moody left, Blair informed the
police of the substance of the conversation.
Surveillance officers followed Moody as he drove
from Blair’s apartment to a truck stop in Terre
Haute, Indiana. They observed a blue vehicle pull
up beside Moody’s truck. A Hispanic male
(later identified as Gonzalo Gutierrez) left the
blue vehicle and entered Moody’s truck. He remained
in Moody’s truck for approximately two minutes
and then returned to his vehicle and drove away
from the truck stop. Officers followed both Moody
and Gutierrez, and after driving towards Indianapolis
for a time, an Indiana State Police officer stopped
Gutierrez for speeding. Gutierrez was arrested and
his vehicle was impounded. During the inventory
search of the vehicle, officers found $6,290 in cash and
a cell phone. Some of the currency seized from
Gutierrez’s vehicle matched the currency Blair
had delivered to Moody earlier that day.
Officers also followed Moody, who returned to Blair’s
apartment. The audio/video recording devices placed
in Blair’s apartment captured Moody separating a large
amount of methamphetamine into one-ounce quantities
and packaging them into individual bags. Moody
delivered one and one-eighth ounces of methamphet-
amine to Blair, which was also captured on
No. 10-3924 5
video. Moody then gathered up the remaining metham-
phetamine and left the residence. Several days later,
and under the supervision of law enforcement,
Blair went to Moody’s residence to deliver $1,350 in
cash to pay down some of his methamphetamine debt.
While there, Moody summarized the series of metham-
phetamine transactions between Moody and Blair
that had given rise to Blair’s debt.
After Gutierrez and Moody were arrested, Special
Agent Douglas Freyberger of the Drug Enforcement
Administration subpoenaed Moody’s and Gutierrez’s
cell phone records. After reviewing these records,
investigators were able to determine that the telephone
number of “G” which Detective Rogers found
when searching Moody’s cell phone after his first
arrest in 2007 corresponded to Gutierrez’s cell
phone number. The subpoenas further revealed
that Moody had extensive contacts with Gutierrez,
Blair, Sutton, and others involved in his distribution
ring from 2007 through 2009. At trial, the government
presented evidence of both the information discovered
from the subpoena, as well as Rogers’s testimony
that when Moody was first arrested during the 2007
traffic stop, that the search of the cellphone showed
a recent call from “G.” Moody did not seek to suppress
the cell phone evidence prior to trial, and did not
object at trial to the admission of the evidence. Now on
appeal, Moody challenges for the first time his convic-
tion based on the admission of the cell phone evidence.
6 No. 10-3924
II.
Moody did not file a motion to suppress the admission
of the cell phone evidence prior to trial, nor did he
object when that evidence was introduced at trial;
his claim is thus forfeited and we review admission
of the evidence for plain error. United States v. Olano,
507 U.S. 725, 734 (1993). A defendant may prevail on
a forfeited claim if he can show: (1) an error has oc-
curred; (2) it was “plain”; and (3) it affected his substan-
tial rights. Id. at 733-34 (1993); see also United States
v. Tanner, 628 F.3d 890, 898 (7th Cir. 2010). When
(as here) the defendant has forfeited his claim,
“the ‘plainness’ inquiry must look to the error’s certainty
from the perspective of the appellate court”, and it
must be “clear and uncontroverted at the time of ap-
peal.” United States v. Ross, 77 F.3d 1525, 1539 (7th
Cir. 1996). Reversal on the basis of plain error
review is ” ‘justified only when the reviewing court is
convinced that it is necessary in order to avert an actual
miscarriage of justice.’ ” United States v. D’Iguillont, 979
F.2d 612, 614 (7th Cir. 1992) (quoting United States v.
White, 903 F.2d 457, 466-67 (7th Cir. 1990)).
Moody argues that the introduction of the evidence
obtained from the warrantless search of his cell
phone incident to his first arrest in November of 2007
constituted plain error because that evidence was the
fruit of an illegal search under the Fourth Amendment.
He further argues that because this evidence was the
linchpin on which the government made its case for
No. 10-3924 7
Moody’s involvement in a large methamphetamine
distribution conspiracy, all evidence derived from this
initial illegal search must be suppressed, his conviction
and sentenced should be overturned, and he should be
granted a new trial.1 We decline to consider the legal-
ity of Detective Rogers’s search of Moody’s cell phone
because, as we discuss below, even if we were to ques-
tion the legality of the search, the evidence recovered
in the initial search was ignored until later discovered
by an independent source— the subpoenaed cell phone
records— over two years after the initial search, thus
freeing it from any taint that would require its exclusion
at trial.
The Supreme Court has ruled that “the interest of
society in deterring unlawful police conduct and the
public interest in having juries receive all probative
evidence of a crime are properly balanced by putting
the police in the same, not a worse, position than they
would have been in if no police error or misconduct
had occurred.” Murray v. United States, 487 U.S. 533,
537 (1988) (quoting Nix v. Williams, 467 U.S. 431,
443 (1984)). ” ‘Excluding evidence that the police ulti-
mately obtained by independent legal means would not
put the police in the same position they would have been
1
Moody does not contest his conviction for methamphetamine
distribution, but does argue that his lengthy sentence for that
charge (292 months’ incarceration) was the result of the court
being influenced by the conspiracy charge.
8 No. 10-3924
in if they had not committed any illegal conduct; instead,
it would put them in a worse position.’ ” United States
v. May, 214 F.3d 900, 906 (7th Cir. 2000) (citing Murray,
487 U.S. at 537). To avoid this, the independent
source doctrine allows the admission of “evidence
initially discovered during an unlawful search if
the evidence was discovered later through a source
untainted by the initial illegality.” United States
v. Gonzalez, 555 F.3d 579, 581 (7th Cir. 2009). “Thus,
the central question under the independent source
doctrine is whether the evidence at issue was obtained
by independent legal means.” May, 214 F.3d at 906.
In United States v. Markling, this court devised a two-
part inquiry to determine whether evidence has
been obtained by independent legal means: (1)
whether an officer’s decision to seek a warrant (or in
this case, a subpoena) resulted from what he had
seen during the unlawful search; and (2) whether
the illegally obtained evidence caused the magistrate
to issue the warrant. United States v. Markling, 7
F.3d 1309, 1315-16 (7th Cir. 1993); see also May, 214
F.3d at 906; Gonzalez, 555 F.3d at 581.
Here, there is no indication that Detective Rogers’s
search of Moody’s cell phone in 2007 had any bearing on
the DEA’s decision to subpoena Moody’s and
Gutierrez’s cell phone records in 2009. On the contrary,
the record shows that law enforcement officials did
precisely nothing with the information gleaned from
Moody’s cell phone in 2007. Officials did not connect
No. 10-3924 9
“G” to Moody’s case until 2009, when, under heavy
surveillance, Gutierrez met with Moody to deliver
methamphetamine and was subsequently arrested.
Prior to that meeting, there is no indication that law
enforcement was even aware of Gutierrez’s existence,
let alone that they had used the information obtained
by Detective Rogers in 2007 to build a conspiracy
case against Moody. Only after Gutierrez was observed
meeting with Moody— and was then arrested with a
large amount of cash in his vehicle, some of which
matched the cash that Blair had provided to Moody
prior to Moody’s meeting with Gutierrez— did law
enforcement become aware of the connection between
Moody and Gutierrez.
These facts are sufficient to establish the necessary
basis to subpoena cell phone records, and they
were derived entirely independent of the search
of Moody’s cell phone in 2007. This is more than ade-
quate to satisfy the requirements of Markling. Even
if Moody’s cell phone had not been searched in 2007,
law enforcement still would have arrested Moody
and Gutierrez after observing their meeting at the
truck stop in 2009. Following their arrest, law enforce-
ment would have subpoenaed their cell phone records
as part of the normal course of proceedings to build
a case against Moody and Gutierrez, which they did
here. The records showed not only the calls made
in 2009, but also the calls made in 2007 that were initially
uncovered by Detective Rogers’s search. From these
legally obtained records, investigators were able to trace
10 No. 10-3924
the full extent of the relationship between Moody and
Gutierrez, and establish that they were involved in a
continuing methamphetamine conspiracy for over two
years.
In light of these considerations, and given the signifi-
cant amount of audio/video recordings used to convict
Moody of conspiracy to distribute methamphetamine,
Moody’s argument that the warrantless search of his
cell phone in 2007 formed the linchpin of the govern-
ment’s conspiracy case against him is simply untenable.
Thus, under the independent source doctrine, even if
the 2007 search were illegal, evidence of Moody’s
conspiracy with Gutierrez was subsequently discovered
lawfully, and therefore properly admitted.
III.
Moody’s attempt to characterize his conspiracy convic-
tion as the result of evidence obtained illegally is un-
availing. Even if we had questioned the legality of
the warrantless search of Moody’s cell phone in 2007,
the evidence derived therefrom was properly admitted
during Moody’s trial because of the independent source
doctrine. When law enforcement officers subpoenaed
Moody’s and Gutierrez’s cell phone records in 2009,
they did so lawfully and entirely independent from
any information gleaned from the initial search of
Moody’s cell phone in 2007, thus clearing the evidence
of any taint. For those reasons, we find no plain error
No. 10-3924 11
in the district court’s decision to admit the evidence.
Moody’s conviction and sentence are AFFIRMED .
12-14-11