CA7: Attenuation found after illegal search later led to consent

Attenuation was found with a two hour delay, (unnecessary) Miranda warnings, defendant counseling with his father on his cell phone who told him not to cooperate, and finally thinking about his predicament for at least an hour. United States v. Conrad, 673 F.3d 728 (7th Cir. 2012)*:

If ordered, suppression 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) (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 following an illegal entry into his father’s home. 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 authorized the Government to search. That evidence was sufficiently attenuated from the original illegal entry so as to have been purged of the unconstitutional taint.

. . .

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 enforcement was not even required to give because he was not in custody), about two hours after the underlying 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 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 constitutional rights there. Furthermore, because the Chicago Apartment was independently protected under the Fourth Amendment, extending the scope of the exclusion 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 deterrent value would be minimal.”).

Although the district court did not explicitly rely on it for this second factor, we also attach particular significance 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 confessed 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 voluntariness 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).