In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2001
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D AVID C ONRAD,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:05-cr-00931-1—Amy J. St. Eve, Judge.
A RGUED O CTOBER 21, 2011— D ECIDED M ARCH 14, 2012
Before B AUER and T INDER, Circuit Judges, and M AGNUS-
S TINSON, District Judge.
M AGNUS-STINSON, District Judge. If ordered, suppres-
sion of unconstitutionally obtained evidence can permit
“[t]he criminal . . . to go free because the constable has
blundered.” People v. Defore, 150 N.E. 585, 587 (N.Y. 1926)
The Honorable Jane E. Magnus-Stinson, District Judge for
the United States District Court for the Southern District
of Indiana, is sitting by designation.
2 No. 10-2001
(Cardozo, J.). Given a blunder that the Government does
not dispute here, Defendant David Conrad argues that
the district court should have suppressed all the
evidence of child pornography that was recovered fol-
lowing an illegal entry into his father’s home.1 As we
explain below, however, the district court correctly
denied exclusion of evidence obtained from Mr. Conrad’s
own home—an hour’s drive away from the home that
had been illegally entered and which Mr. Conrad autho-
rized the Government to search. That evidence was
sufficiently attenuated from the original illegal entry so
as to have been purged of the unconstitutional taint.
With that evidence, he was convicted and, despite
his arguments to the contrary, correctly sentenced in ac-
cordance with the Sentencing Guidelines in effect at
the time of his conviction, rather than at the time of his
offenses.
I.
Background
Before granting in part and denying in part Mr. Conrad’s
motion to suppress evidence, the district court held
1
The Government advises that while it has chosen not to
challenge the district court’s finding that a constitutional
violation occurred, it does not mean to concede that we
would, if asked, ultimately agree that a violation occurred.
For the purposes of this appeal, we will assume without
deciding that the district court correctly found a constitu-
tional violation.
No. 10-2001 3
an evidentiary hearing. See United States v. Conrad, 578
F. Supp. 2d 1016 (N.D. Ill. 2008). Because the parties
disavow any challenge to the accuracy of those factual
findings, the district court’s findings presented below
will govern on appeal.
A. The Geneva Home
While the FBI was executing a search warrant for
child pornography at a business owned by Mr. Conrad’s
father, federal and state law enforcement were staked
outside the father’s house, in Geneva, Illinois (the
“Geneva Home”), looking for Mr. Conrad. For sim-
plicity, we will refer to all law enforcement officials as
“agents.” Despite having received information from
the father, who was away on vacation at the time, that
Mr. Conrad was likely at the father’s home and despite
the presence of Mr. Conrad’s car in the driveway,
periodic knocks on the door went unanswered.
Eventually, without either a warrant or permission
from Mr. Conrad’s father and with the intent to further
their investigation, agents went around the back of the
Geneva Home. After knocking on the patio door on the
lower level, they climbed a set of stairs and entered
onto the deck that abutted the main level of the home.
By either standing on or leaning across the deck’s
elevated railing, they peered into a bay window and
saw Mr. Conrad asleep on the couch, with a pill bottle
nearby. An FBI agent telephoned Mr. Conrad’s father
and told the father, incorrectly, that the pill bottle was
located on a coffee table next to Mr. Conrad, when it was
4 No. 10-2001
actually in the kitchen. The agent also said that Mr. Conrad
was lying still on the couch and that the agents were
concerned about his health. The district court accepted
that the concerns were “credibl[e],” though the concerns
were not sufficient to give rise to legal “exigency” under
the circumstances. Conrad, 578 F. Supp. 2d at 1039. In
any event, after hearing that information, Mr. Conrad’s
father told the agents the location of the spare key
and authorized them to enter the Geneva Home to
check on Mr. Conrad.
Upon entering the Geneva Home, the agents discovered
Mr. Conrad in good health; he had simply been asleep
on the couch after having taken a prescription narcotic.
Once Mr. Conrad had been roused from his sleep, the
agents began questioning him about child pornography.
He admitted to having child pornography on a laptop
in his car, which he voluntarily provided to them. He
also “volunteered” that he had additional evidence of
child pornography in his apartment in Chicago (the
“Chicago Apartment”), Conrad, 578 F. Supp. 2d at 1037.
He willingly agreed to provide it to them, even though
the agents told him that he was not in custody and that
he did not have to take them to the Chicago Apartment.
B. The Drive to the Chicago Apartment
Approximately fifteen minutes after having first
entered the Geneva Home, and without having
searched it, the agents left the Geneva Home for the
Chicago Apartment. Mr. Conrad rode with two agents,
sitting in the backseat, uncuffed. During the approxi-
No. 10-2001 5
mately one-hour drive to the Chicago Apartment,
Mr. Conrad smoked a cigarette and had free use of his
cell phone, which he used to call his father. His father
told him not to talk to the agents. 2 Mr. Conrad replied to
his father: “It’s no problem.”
C. The Chicago Apartment
The agents and Mr. Conrad arrived at the Chicago
Apartment approximately two hours after the agents had
stepped foot onto the curtilage of the Geneva Home
without permission. After the agents and Mr. Conrad
entered the Chicago Apartment, the agents read
Mr. Conrad his Miranda rights, even though he was not
in custody. He fed his cat, cleaned the litter box,
and showed off some of his equipment for mixing mu-
sic. About twenty minutes later, once the agents were
ready to begin questioning him, Mr. Conrad signed an
advice-of-rights form.
Despite Mr. Conrad’s initial claim to the contrary,
the district court found that Mr. Conrad never requested
an attorney during his questioning, knowingly and volun-
tarily waiving his right to counsel and to remain silent.
2
Because Mr. Conrad’s opening brief stipulates that he “has
not attempted to contest any of the underlying findings that
gave rise to the district court’s ruling,” [Appellant Opening
Br. at 12], we do not address the argument he raised in a post-
hearing letter that the district court erroneously determined
the contents of the call.
6 No. 10-2001
He admitted that he had operated a file server for child
pornography, that he had child pornography on his
computer, and that he had transferred child pornog-
raphy from his laptop onto an external hard drive.
He also confirmed additional incriminating informa-
tion that the agents had developed during their inves-
tigation.
Mr. Conrad signed two other consent forms, after
having been advised of his right to refuse to permit the
search. In one, he gave written consent for the agents to
search his apartment. In another, he gave specific written
consent for the agents to search two laptops and an
external hard drive, and gave oral consent to search
another computer. The agents took some of those
items with them when they left. They left Mr. Conrad
behind; they did not arrest him that day.
***
After finding the facts set forth above, the district
court held that the agents’ warrantless entry onto the
back deck violated Mr. Conrad’s rights under Fourth
Amendment, given that he had a reasonable expectation
of privacy in his father’s home, including the home’s
curtilage. As a remedy, the district court suppressed
all evidence and statements obtained at the Geneva
Home and from the car ride to the Chicago Apartment.
It did not, however, suppress the evidence and state-
ments that the agents obtained at the Chicago Apartment,
finding that they were too attenuated from the constitu-
tional violation to merit suppression.
No. 10-2001 7
A jury ultimately convicted Mr. Conrad of eight counts
relating to child pornography. After considering the
Sentencing Guidelines in effect on the date of sentencing,
the district court sentenced Mr. Conrad to 198 months’
imprisonment, rather than the guideline range of 360
months to life.
II.
Discussion
Mr. Conrad raises two issues on appeal. In the first, he
argues that the district court erred when it refused to
suppress the evidence and statements obtained in the
Chicago Apartment. Second, he asks us to overrule our
decision in United States v. Demaree, 459 F.3d 791 (7th Cir.
2006), by holding that the Sentencing Guidelines in
effect at the time of his offenses, rather than at the time
of his conviction, should apply.
A. The Motion to Suppress
Although Mr. Conrad raised other potential constitu-
tional violations below in his quest for exclusion of the
evidence from the Chicago Apartment, he has aban-
doned the others in favor of the only violation that the
district court found: the violation of the Fourth Amend-
ment with respect to the curtilage of the Geneva Home.
He argues that the district court erred in applying
the attenuation exception to the evidence from the
Chicago Apartment; he wants that evidence excluded
as fruit of the poisonous tree, too.
8 No. 10-2001
We review the district court’s application of the law
to the uncontested facts de novo. United States v. Ienco,
182 F.3d 517, 526 (7th Cir. 1999) (citation omitted).
The Supreme Court has long recognized the need to
exclude evidence obtained in violation of the Constitu-
tion’s protections. E.g., Weeks v. United States, 232 U.S. 383,
398 (1914). Indeed, unless one of various exceptions
applies, exclusion will run not only to the unconstitu-
tionally obtained evidence, but also to the fruits of
that evidence—the so-called fruit of the poisonous tree.
See, e.g., Silverthorne Lumber Co. v. United States, 251
U.S. 385, 392 (1920) (“The essence of a provision forbid-
ding the acquisition of evidence in a certain way is that
not merely evidence so acquired shall not be used
before the Court but that it shall not be used at all.”)
(Holmes, J.). The exclusionary rule thus seeks to dis-
courage official misconduct by removing the incentive
to obtain evidence in violation of the Constitution. United
States v. Calandra, 414 U.S. 338, 348 (1974) (“[T]he rule is
a judicially created remedy designed to safeguard
Fourth Amendment rights generally through its deter-
rent effect, rather than a personal constitutional right of
the party aggrieved.” (footnote omitted)). Where exclu-
sion will not “efficaciously” promote those “remedial
objectives,” no exclusion will occur. Id.
“The Supreme Court developed an exception to the
exclusionary rule for cases where an arrest or search
involved a Fourth Amendment violation but the connec-
tion between the illegal conduct and the subsequent
discovery of evidence ‘become[s] so attenuated that
No. 10-2001 9
the deterrent effect of the exclusionary rule no longer
justifies its cost.’ ” United States v. Carter, 573 F.3d 418,
422 (7th Cir. 2009) (quoting Brown v. Illinois, 422 U.S.
590, 609 (1975) (Powell, J., concurring)) (alteration in
original). In other words, the attenuation inquiry deter-
mines the point at which the government began
obtaining evidence “by means sufficiently distinguish-
able to be purged of the primary taint.” Brown, 422 U.S.
at 599 (quotation omitted). The Government bears the
burden of identifying that point, id. at 604, which requires
the balancing of three factors: “(1) the time elapsed be-
tween the illegality and the acquisition of the evidence;
(2) the presence of intervening circumstances; and (3) the
purpose and flagrancy of the official misconduct,” Ienco,
182 F.3d at 526 (citations omitted).3
We will examine the three relevant factors in turn
and then collectively, to determine whether the Gov-
ernment met its burden to show attenuation, as the
district court found. In conducting that analysis, we
will necessarily hew to the unique facts that the dis-
trict court found, which are uncontested on appeal.
3
When the evidence takes the form of a confession or other
incriminating statement, voluntariness becomes a threshold
issue of its admissibility. See Brown, 422 U.S. at 604 (citation
omitted). Because Mr. Conrad does not challenge the district
court’s finding of the voluntariness of his statements to
law enforcement, we need not revisit that threshold finding.
10 No. 10-2001
1. The Lapse of Time
As for the first factor, the lapse of time, “there is no
‘bright-line’ test,” United States v. Reed, 349 F.3d 457, 463
(7th Cir. 2003) (citations omitted), which is unsurprising
given the fact-intensive nature of the attenuation in-
quiry. The district court found here that two hours elapsed
between the curtilage violation and the collection of
evidence in the Chicago Apartment. Depending on all the
attendant circumstances, two hours may, or may not, be
sufficient to purge the taint of a constitutional violation
from later-collected evidence. Compare, e.g., Taylor v.
Alabama, 457 U.S. 687, 691 (1982) (six hours insufficient);
Brown, 422 U.S. at 604 (two hours insufficient as to original
statement and ten hours insufficient to follow-up state-
ment); Ienco, 182 F.3d at 526 (four hours insufficient); with
Rawlings v. Kentucky, 448 U.S. 98, 107-08 (1980) (forty-five
minutes sufficient); United States v. Parker, 469 F.3d 1074,
1078 (7th Cir. 2006) (“matter of minutes” sufficient).
On balance, we agree with the district court that this
first factor weighs more in favor of attenuation than
suppression. First, in terms of quantity, two hours from
the violation of the curtilage to the collection of the evi-
dence at issue is not insubstantial. We note in partic-
ular that Mr. Conrad’s consent for law enforcement
to enter and search the Chicago Apartment, and to ques-
tion him, came after an hour’s car ride. Second, in terms
of quality, the car ride afforded Mr. Conrad the opportu-
nity to reflect upon his circumstances, with the help of
a cigarette and counsel from his father. At no point
during the episode—according to the uncontested
No. 10-2001 11
findings below—was he ever in the custody of law en-
forcement for the purposes of the Fifth Amendment or
otherwise subject to a seizure within the meaning of
the Fourth Amendment. Conrad, 578 F. Supp. 2d at 1040-41.
In other words, although in law enforcement’s presence,
“a reasonable person in the defendant’s position would
have believed that he was free to leave” at any time.
United States v. Snodgrass, 635 F.3d 324, 327 (7th Cir. 2011)
(citation omitted) (Fifth Amendment). And “his freedom
of movement” was never “restrained” through “means of
physical force or a show of authority.” United States v.
Mendenhall, 446 U.S. 544, 553 (1980) (Fourth Amendment
“seizure”). That situational context helps the passage
of time attenuate the underlying violation here. See
Rawlings, 448 U.S. at 107-08 (explaining that “the precise
conditions” of the detention—characterized by its “conge-
nial atmosphere”—made up for the otherwise quantita-
tively “short” passage of time, thus permitting the time
factor to weigh in favor of attenuation).
In his attempt to shorten the period under considera-
tion, Mr. Conrad incorrectly asks us to focus only on the
time between the agents’ entry into the Geneva Home
and his decision to agree to take them to his Chicago
Apartment—in other words, fifteen minutes. While that
decision may have been a “but for” cause of his repeated
consents for the agents to search his Chicago Apart-
ment, we must not conflate the identification of the vio-
lation—here, the agent’s improper entry onto the
curtilage at the Geneva Home—with the scope of the
remedy for that violation. “But for” causation is not
enough. Hudson v. Michigan, 547 U.S. 586, 592 (2006)
12 No. 10-2001
(“[E]xclusion may not be premised on the mere fact that a
constitutional violation was a ‘but-for’ cause of obtaining
evidence. Our cases show that but-for causality is only a
necessary, not a sufficient, condition for suppression.”).
The two-hour period between the underlying violation
and the consents in the Chicago Apartment is the appro-
priate unit of analysis. Given the nature of that period,
this first factor tips in favor of attenuation.
2. Any Intervening Circumstances
The second factor in the balancing looks to see
whether any intervening circumstances have occurred
that might “sever the causal connection between [the
violation] and the discovery of the evidence.” Reed, 349
F.3d at 464. Again, the highly fact-intensive nature of the
attenuation inquiry precludes sweeping generalizations
about the circumstances that will be relevant for
any particular case. Some cases finding this factor
present have focused on the presence of “a non-custodial
voluntary consent . . . as an independent intervening
event,” United States v. Liss, 103 F.3d 617, 621-22 (7th
Cir. 1997), so long as that consent was neither ob-
tained “immediately after an illegal entry,” United States
v. Robeles-Ortega, 348 F.3d 679, 683 (7th Cir. 2003), nor
obtained following an “illegal stop[], detention[] or ar-
rest[],” United States v. Jerez, 108 F.3d 684, 695 &
n.13 (7th Cir. 1997) (collecting cases). Further, Miranda
warnings, though never alone sufficient to establish at-
tenuation given the differing purposes of the Fourth
No. 10-2001 13
and Fifth Amendments, Taylor, 457 U.S. at 690, can none-
theless be a relevant consideration, see Reed, 349 F.3d at 463
(describing voluntariness of confession as “important,”
though not so powerful as to overcome other consider-
ations on the facts presented). In other cases, the fact
that the evidence was obtained at a location away from
the site of the original violation became important.
See, e.g., New York v. Harris, 495 U.S. 14, 20 (1990)
(“[S]uppressing the statement taken outside the house
would not serve the purpose of the rule that made Harris’
in-house arrest illegal. The warrant requirement for an
arrest in the home is imposed to protect the home, and
anything incriminating the police gathered from
arresting Harris in his home, rather than elsewhere, has
been excluded. . . .”); United States v. Fazio, 914 F.2d 950,
958 & n.12 (7th Cir. 1990) (collecting cases). In still other
cases, courts have relied upon the defendant’s ability
to “contact counsel or friends about [the defendant’s]
predicament.” United States v. Patino, 862 F.2d 128, 133
(7th Cir. 1998).
Consistent with existing precedent, the district
court identified intervening circumstances that
favored attenuation: Mr. Conrad’s repeated consents to
search and his waiver of Miranda rights (which law en-
forcement was not even required to give because he
was not in custody), about two hours after the under-
lying constitutional violation and in a completely
different location. As for the different location, we
note that in contrast to cases where no attenuation
was found after the defendant was taken, for example, to
a police station, e.g., Taylor, 457 U.S. 687, here Mr. Conrad
14 No. 10-2001
volunteered to go from his family home, a location
where, according to the unchallenged findings of the
district court, he “was undoubtedly comfortable,” Conrad,
578 F. Supp. 2d at 1037, to a location that was as yet
unknown to the agents, the Chicago Apartment. He was
likely as or more comfortable there, and thus in a
better position to decide whether to stand on his con-
stitutional rights there. Furthermore, because the
Chicago Apartment was independently protected under
the Fourth Amendment, extending the scope of the ex-
clusion would have little additional deterrent effect. Cf.
Harris, 495 U.S. at 20 (“Even though we decline to
suppress statements made outside the home following
a Payton violation, the principal incentive to obey Payton
still obtains: the police know that a warrantless entry
will lead to the suppression of any evidence found, or
statements taken, inside the home. If we did suppress
statements like Harris’, moreover, the incremental de-
terrent value would be minimal.”).
Although the district court did not explicitly rely on it
for this second factor, we also attach particular sig-
nificance to another, rather unusual, circumstance.
Mr. Conrad not only could use his cell phone to obtain
advice about his predicament, but he actually did—and
was, as the district court found, specifically told by
his father “not to talk to the officers.” Conrad, 578 F. Supp.
2d at 1025. While he suggests that his decision to ignore
that advice was in recognition that he had already con-
fessed to so much that he had no choice but to continue,
the district court found, and he does not contest, that
his statements were voluntary. Id. at 1036-37. The volun-
No. 10-2001 15
tariness of his statements—made despite superfluous
Miranda warnings, a specific warning from his father, and
after an hour to think in the car and twenty minutes to
think while tending to his cats and showing off music
equipment—help establish that his conduct at the
Chicago Apartment was “sufficiently an act of free will
to purge the primary taint of the unlawful invasion.”
Wong Sun v. United States, 371 U.S. 471, 486 (1963)
(footnote omitted).
Secure within the sanctity of his own home—one differ-
ent and far away from the one that had had its curtilage
violated—Mr. Conrad clearly wanted to speak rather
than insisting upon his rights, repeatedly explained, to
send law enforcement away. We find that this second
factor also weighs in favor of attenuation.
3. The Purpose and Flagrancy of the Underlying Violation
The final factor that informs the attenuation analy-
sis—that is, “the purpose and flagrancy of the
official misconduct—is considered the most important
because it is tied directly to the rationale underlying
the exclusionary rule, deterrence of police misconduct.”
Reed, 349 F.3d at 464-65 (citations omitted). This factor
considers both the conduct before and after the constitu-
tional violation. See id. “Bad faith” cuts against attenua-
tion. Carter, 573 F.3d at 425-26 (citation omitted). So do
actions that were otherwise “coercive or calculated to
cause surprise, fright or confusion” and “actions . . .
undertaken in an effort to advance the investigation or
to embark on a fishing expedition in the hopes that it
16 No. 10-2001
would lead to a confession or other useful evidence.”
Reed, 349 F.3d at 465.
Below, the district court found that what began as
purposeful conduct morphed into conduct consistent
with attenuation by the time of the Chicago Apartment.
The agents violated the curtilage of the Geneva
Home “to advance their investigation.” Conrad, 578
F. Supp. 2d at 1036. But the agents were “professional”
inside the Chicago Apartment and did not enter it as
part of a “fishing expedition.” Id. at 1037-38. Given those
findings, the district found that while the third factor
helped justify exclusion of the evidence obtained in the
Geneva Home and in the car ride to the Chicago Apart-
ment, the findings would not help justify excluding
evidence obtained in the Chicago Apartment. Id.
We agree that this third factor very slightly tips in
favor of attenuation. Importantly, the agents gave
Mr. Conrad Miranda warnings while they were in the
Chicago Apartment, even though those warnings were
not legally required, and advised him in writing of
his right to refuse to permit them to search his prop-
erty. While certainly not a complete salve for the
initial violation of the curtilage—hence the exclusion
of the other, important evidence—the entirety of
their conduct in the Chicago Apartment shows
that their earlier constitutional blunder reflected only
a temporary lapse in judgment, which had been
cured by the time they entered the Chicago Apartment.
Scrupulous though belated adherence to constitutional
standards is not irrelevant in the fact-intensive inquiry
No. 10-2001 17
into attenuation, which ultimately seeks to regulate law-
enforcement behavior, Calandra, 414 U.S. at 348. We
thus agree with our dissenting colleague, infra at 28,
about one “takeaway for law enforcement,” from our
finding that this factor slightly tips in favor of attenua-
tion: “if you think you may have gone beyond what the
Fourth Amendment allows,” by all means go out of your
way to avoid even the slightest hint of constitutional
impropriety going forward. Doing so may not ultimately
avoid suppression, but it might help.
4. The Final Balance
As indicated above, because of the somewhat unusual
facts in this case, all three relevant factors tip in
favor of attenuation regarding the Chicago Apartment,
though none overwhelmingly so. We do not, therefore,
need to balance them before concluding that the district
court correctly identified the point at which evidence
became purged of the taint from the curtilage viola-
tion: once the agents and Mr. Conrad entered the
Chicago Apartment. The constitutional protection of the
Geneva Home’s curtilage was adequately vindicated here
by excluding the evidence obtained there, including on the
car ride away. Any marginal deterrence obtained by
suppressing the evidence that Mr. Conrad was readily
willing to “volunteer” at his Chicago Apartment, Conrad,
578 F. Supp. 2d at 1037, despite time to think first and a
counsel from his father, would have been excessive and
thus improper. See United States v. Leon, 468 U.S. 897, 910
(1984) (“[I]t does not follow from the emphasis on the
18 No. 10-2001
exclusionary rule’s deterrent value that anything which
deters illegal searches is thereby commanded by the
Fourth Amendment.” (citation omitted)).
B. Sentencing in Accordance with Demaree
As for whether we should overturn our precedent in
Demaree and hold that the district court should have
considered the Sentencing Guidelines in effect at the
time he committed his crimes rather than when he was
actually sentenced, we can be brief. As we have
stated previously, “[w]e have reaffirmed our decision in
Demaree many times . . ., and we will not overrule it
here.” United States v. Robertson, 662 F.3d 871, 876 (7th
Cir. 2011) (collecting cases).4
III.
Conclusion
The judgment of the district court is A FFIRMED.
4
Furthermore, even if it were appropriate to reconsider that
decision in some other case, it would not be this one. After
computing the guideline sentence, the district court found the
sentence excessive given the statutory factors that courts must
consider when selecting the appropriate sentence, 18 U.S.C.
§ 3553(a). It chose, therefore, to impose a non-guideline sen-
tence. Had the district court consulted the earlier Sentencing
Guidelines, as Mr. Conrad urges, its application of the § 3553(a)
factors would have likely resulted in a finding that the
lower guideline sentence was inadequate and imposed
the higher one that it selected here.
No. 10-2001 19
T INDER, Circuit Judge, dissenting in part. A Fourth
Amendment violation made it possible for FBI agents to
enter Conrad’s father’s home, wake Conrad from his drug-
induced sleep, and question him. Conrad quickly con-
fessed to possessing and distributing child pornography
and gave the agents his laptop. The agents asked
Conrad to travel with them to his Chicago apartment,
where he had said he had other computers. Conrad
agreed and, within about fifteen minutes of the FBI
agents’ entry into his father’s home, he was on his way
to Chicago with two agents. Conrad sat in the backseat of
their vehicle but was not handcuffed or otherwise re-
strained. During the hour-long ride from Geneva to
Chicago he called his father, smoked a cigarette, and
chatted with the agents, discussing, among other things,
the type of file server programs he operated. After the
ride, Conrad brought the agents into his Chicago apart-
ment, showed one of the agents his DJ equipment, fed
his cat and changed its litter, and two more FBI agents
arrived. Conrad was Mirandized and signed consent-to-
search forms. He again admitted to possession and distri-
bution of child pornography and turned over more com-
puter equipment. The district court found a Fourth
Amendment violation sufficient to suppress all evi-
dence from the Geneva home and from the car ride.
But the district court did not suppress evidence from
the Chicago apartment, concluding that the evidence
gathered there was sufficiently attenuated from the
agents’ Fourth Amendment violation. The majority
agrees with the district court that a line should be
drawn between (A) the evidence gathered at the Geneva
20 No. 10-2001
home and in the agents’ car and (B) the evidence col-
lected at the Chicago apartment. In the majority’s view, the
taint of the Fourth Amendment violation dissipated
even while defendant was in continuous contact and
conversation with the very agents responsible for the
Fourth Amendment violation. Because the majority’s
position is inconsistent with precedent and dramatically
lowers the standard for attenuation, I respectfully dissent.
It has long been recognized that evidence obtained
by “exploitation” of a Fourth Amendment violation
should be suppressed. Brown v. Illinois, 422 U.S. 590,
600 (1975). It is often difficult to tell what amounts
to exploitation requiring suppression. Bad faith use of a
Fourth Amendment violation to acquire additional evi-
dence is sufficient to require suppression (but not neces-
sary), see, e.g., United States v. Carter, 573 F.3d 418, 425-
26 (7th Cir. 2009), and a but-for causal connection between
a violation and subsequently discovered evidence is
necessary (but not sufficient), id. at 424 (citing Hudson v.
Michigan, 547 U.S. 586, 591 (2006)). Many cases, like this
one, fall into the large middle-category where there isn’t
clear evidence of bad faith but there is plain but-for
connection. The framework laid out in Brown, 422 U.S. at
603-04, is supposed to help us sort these middle cases. As
the majority correctly noted, we are to consider (1) “tem-
poral proximity,” (2) “the presence of intervening cir-
cumstances,” and (3) “the purpose and flagrancy of the
official misconduct.” Id.
The first factor is least important. The majority’s cases,
supra at 10, explain that, depending on other factors, a few
No. 10-2001 21
minutes may be sufficient for attenuation and many
hours may be insufficient. By itself, then, a two-hour lapse
between the original violation and the subsequently
discovered evidence—not a particularly long or short
time—tells us almost nothing. The majority nevertheless
concludes that two hours tips in favor of attenuation. It
can reach that conclusion, however, only by collapsing
the first and second considerations, analyzing under
the first heading not just the time elapsed—“temporal
proximity,” as Brown put it—but also the quality of that
time. The quality of intervening hours or minutes is
significant, of course, but it is properly analyzed as part
of the intervening circumstances or, perhaps, as it relates
to the purpose and flagrancy of the violation. In this
case, analyzing temporal proximity on its own gets us
nowhere; it doesn’t support attenuation or suppression.
See United States v. Reed, 349 F.3d 457, 464 (7th Cir. 2003).
Moving to the next factor, “intervening circum-
stances,” the majority, endorsing the district court’s
analysis, identifies three facts favoring attenuation:
(1) Conrad’s consents to search and Miranda waiver,
(2) the evidence that was not suppressed was obtained
at a location different than the evidence that was sup-
pressed, and (3) Conrad was allowed to call his father
during the car ride with the agents. These facts carry
some weight, to be sure, but, in my view, much less
than the majority believes. First, consent and Miranda
waivers are important—particularly insofar as volun-
tariness is a threshold requirement for the admissi-
bility of any confession, supra at 9 n. 3—but, how-
22 No. 10-2001
ever important, they cannot amount to independent inter-
vening circumstances. See, e.g., Taylor v. Alabama, 457
U.S. 687, 690 (1982); Reed, 349 F.3d at 464. United States v.
Robles-Ortega, 348 F.3d 679, 684 (7th Cir. 2003), is instruc-
tive. In Robles-Ortega we focused on whether a voluntary
consent to search was an intervening circumstance for
the purpose of attenuation. We noted that “[a]s with
confessions given after Miranda warnings, . . . consent
alone does not necessarily purge the taint of the illegal
action.” Id. We then rejected the government’s attempt to
construe United States v. Liss, 103 F.3d 617 (7th Cir. 1997),
as holding “that a consent is an independent intervening
event that breaks the causal chain stemming from the
illegal search.” Id. The inquiry in Liss and Robles-Ortega had
to do with what else happened; those cases concerned
whether consent was obtained by means “sufficiently
distinguishable” from Fourth Amendment violations to
have been purged of the primary taint. Id. at 683. When
other circumstances surrounding a voluntary consent to
search or voluntary confession indicate that a prior illegal-
ity was not critical to obtaining the confession or consent
to search, then Miranda warnings and voluntariness of
consent will be decisive. But where, as here, the Fourth
Amendment violation resulted in a voluntary confession
and a voluntary surrender of incriminating evidence that
the district court saw fit to suppress, attenuation should
require more than just another voluntary confession and
voluntary consent. The illegality must cease to be a path-
breaking event that makes subsequent discoveries all
but inevitable. In this case, we have a confession and
consent given to an agent and, after about an hour in
No. 10-2001 23
the presence of that same agent, another confession and
consent given to the same agent (and others). As the
Supreme Court concluded in a different legal context,
“[i]t would have been reasonable to regard the two ses-
sions as parts of a continuum, in which it would have
been unnatural to refuse to repeat at the second
stage what had been said before.” Missouri v. Seibert, 542
U.S. 600, 616-17 (2004). Without additional intervening
factors, avowals of voluntariness are a technical break
that have little value for an individual caught-up in
successive (even non-custodial) interrogations on the
same subject with the same agents.
But the majority thinks that there were additional
intervening circumstances. The consents and waivers
occurred in different locations—at the Geneva house
and at the Chicago apartment. Yet the change in scenery
cannot count for much here, where the most salient
feature in Conrad’s environment was the continuous
presence of FBI agents. Consider United States v. Fazio,
914 F.2d 950 (7th Cir. 1990), a two-location case similar
to this one but with at least one major difference: In
Fazio, after a Fourth Amendment violation at his restau-
rant, defendant drove himself to a meeting where he
made incriminating statements. Id. at 952. We em-
phasized this fact in deciding that the initial illegal
search was sufficiently attenuated. Id. at 958; Reed, 349
F.3d at 464 (citing Fazio as an example of a case with
sufficient intervening circumstances and specifically
noting that defendant drove his own vehicle to the
meeting where he made incriminating statements). If
the agents would have asked Conrad to drive his own
24 No. 10-2001
car (he had a Porsche parked in the driveway of the
Geneva home) to the Chicago apartment, this would be
a very different case. Given some time away from
the agents, Conrad may or may not have decided to go
to the Chicago apartment and confess. He may have
taken more time to talk to his father (and it would
have been a more private conversation without agents
listening to Conrad’s side of the call), he may have
made other calls—we can’t know. Whatever he might
have done, if he did show up at his Chicago apartment
an hour or two later to consent to a search and confess
his crimes, the search and the confession would have
retained a but-for connection to the initial Fourth Amend-
ment violation, but it would have separated the two
events enough to make the second (if it still occurred)
an independent act, freely undertaken and not one
made virtually inevitable given what he’d already
shared with the agents. See Fazio, 914 F.3d at 958. But
the agents did not take the chance that Conrad wouldn’t
show up or would think better of continuing to talk to
them. They kept him in their presence, in the backseat
of their car, kept him talking, and kept him comfort-
able—they kept him on the line and then continued
reeling him in.
Finally on this second factor, the majority lists Conrad’s
phone call to his father while riding in the backseat of
the agents’ car as a significant intervening circum-
stance. This fact recalls Taylor, 457 U.S. at 691, where a
defendant was given the chance to speak privately for
five to ten minutes with his girlfriend and a male com-
panion before making his confession. That much longer
No. 10-2001 25
(and more private) conversation, even paired with re-
peated Miranda warnings, wasn’t enough to “purge the
primary taint.” Id. In this case, the short call Conrad made
from the agents’ car, in the agents’ presence, did little to
interrupt the seamless interaction between Conrad and
the agents. Moreover, it’s hard to understand how the
call could have much value as an intervening circum-
stance when it was part of the evidence suppressed in
the wake of the initial Fourth Amendment violation.
This brings us to the third factor, “purpose and fla-
grancy.” The majority carefully and accurately recites the
law, observing that our cases consider “both the conduct
before and after the constitutional violation.” Supra at 15.
The majority also points out that “actions . . . undertaken
in an effort to advance the investigation” cut against
attenuation. Supra at 15 (quoting Reed, 349 F.3d at 465).
Agreeing with the district court, the majority concludes,
however, that “what began as purposeful conduct
morphed into conduct consistent with attenuation by
the time of the Chicago Apartment.” Supra at 16. To
support this result, the majority refers to the agents’
“professional” behavior at the Chicago apartment, that
Conrad was advised of his Miranda rights, and that he
was told in writing of his right not to allow the agents’
search. I have already said why I believe that “reliance
on the giving of Miranda warnings is misplaced.” Taylor,
457 U.S. at 691. And the same goes for reliance on defen-
dant’s consent to search. Robles-Ortega, 348 F.3d at 684.
The bottom line for the district court and the majority,
then, incorporating their emphasis on Miranda warnings
26 No. 10-2001
and consent, is that the agents’ professional behavior and
the strangely cordial atmosphere were sufficient to dissi-
pate the taint of the Fourth Amendment violation.
I disagree. As we explained in Reed, there is no attenua-
tion by friendliness:
In determining the purpose and flagrancy of the
official misconduct, the district court held that
the factor weighed against suppression because
[defendant’s] interrogation was conducted con-
genially and the police judiciously administered
Miranda warnings, suggesting that the manner of
the illegal arrest and subsequent interrogation
was not “calculated to cause surprise, fright, or
confusion.” E.g., Brown, 422 U.S. at 605. But that
inquiry, although relevant, is not complete, be-
cause “purposeful and flagrant” misconduct is
not limited to situations where the police act in
an outright threatening or coercive manner . . . .
349 F.3d at 465. In this case, the agents only came
into contact with Conrad because of their Fourth Amend-
ment violation. That got them in the house and got
them their first interview with Conrad. It turned out to
be a very advantageous time, at least from the agents’
perspective, for the interview to occur because moments
before it began, it appears that Conrad was in the depths of
a drug-aided sleep. Once roused by the agents, Conrad
promptly confessed to a very serious crime and gave
them, in addition to his statement, incriminating phys-
ical evidence. Having learned about the Chicago apart-
ment, the agents asked Conrad to travel there with
No. 10-2001 27
them to continue his cooperation. By the time they got to
Chicago, an hour later, the taint (according to the major-
ity) had dissipated. The only pause in the continuous
conversation with the FBI agents was Conrad’s short call
to his dad. Did that do it? Or was it the length of the
drive itself? Would the situation have “morphed” into
conduct consistent with attenuation if the house and
apartment had been just twenty minutes apart? Was
it the extra time for friendly banter about stereo equip-
ment that made the difference?
In my view, nothing of significance separated the
Fourth Amendment violation, the collection of evidence
that was suppressed from the Geneva house through
the drive to Chicago, and the collection of additional
evidence at the Chicago apartment. It was a single con-
tinuum of events. Yet the majority holds that the taint
of a Fourth Amendment violation can dissipate even
while a defendant is in continuous contact and conversa-
tion with the very agents responsible for the Fourth
Amendment violation. I realize that letting Conrad off
the hook after the Fourth Amendment violation—like
arranging to meet him later—would have jeopardized the
agents’ nearly certain collection of the incriminating
evidence they set out to get when they went to the
Geneva house. But it is difficult to see any consequen-
tial separation between what happened at that house
and the completion of that process at the Chicago apart-
ment. Of course, the agents treated Conrad well enough;
they chatted him up; there was no need to be aggressive,
they were smarter than that. But at no point did they
28 No. 10-2001
disengage, and at no point did they provide Conrad a
real break in the continuous interaction that started
with a confession in Geneva and ended with another
in Chicago. It would seem that after this case not
much is required for attenuation. The takeaway for
law enforcement is that if you think you may have
gone beyond what the Fourth Amendment allows, not
to worry, just don’t let the suspect out of your sight, be
congenial, and all will be forgiven. Because I think that
allowing attenuation to mysteriously arise during a
nonstop interaction with a single group of agents is
inconsistent with precedent and gives far too much
weight to the role of Miranda warnings and consent, and
because I think the agents improperly exploited a
Fourth Amendment violation to investigate Conrad’s
crimes and to gather evidence, on this issue I respect-
fully dissent.
3-14-12