Tuesday, October 29, 2013
UNITED STATES OF AMERICA v. DONALD ANDERSON - Sexual Assault of a Child, Statutory Rape
MySpace has long been known amongst Internet Savvvy Users as a popular meeting ground for teens and pre-teens. It is also a great hunting ground for the child abuser, as we have here.
Donald Anderson was under investigation for sexual assault of a child when he gave the police written consent to search his home and take "whatever documents or items of property whatsoever they deem pertinent to their investigation." The officers seized computers and a memory card; photographs on the memory card prompted further searches (with warrants) and led to federal charges. Anderson moved to suppress the items taken during the consensual search (and everything seized in the later searches as fruits of that initial search).Tthe district court rejected that contention, Anderson entered a conditional guilty plea and was sentenced to 50 years' imprisonment. The Court affirmed the judgment.
No. 13-1003.
Argued August 7, 2013.
Decided October 4, 2013.
Amended October 21, 2013.
In March 2007 a mother in Norridge, Illinois, reported to police that her 12-year-old daughter was missing. The girl turned up less than an hour later and she said she had been in Park Forest (35 miles to the south) at the home of a family friend, Anderson, who was then 42. That information prompted a referral to police in Park Forest. The girl was twice interviewed by Park Forest officers, the first time by Commander Brian Tas and the second by Detective Jim Varga. She eventually disclosed to Varga that Anderson had sex with her on more than one occasion.
Two days later, Detective Varga went to Anderson's home with two other officers and invited him to the police station. At the station Anderson confessed to having sex with the girl and signed the written "Permission to Search" his home. The officers returned to the house and removed several computers and a memory card, which was plugged into one of those computers. Later examination of the memory card revealed photographs of the 12-year-old posing naked and kissing Anderson. The police then obtained a search warrant and recovered bedding, a love letter from the girl to Anderson, more computers and storage media, and cameras.
Anderson pleaded guilty in state court to predatory criminal sexual assault of the 12-year-old, see 720 ILCS 5/11-1.40, and was sentenced to 16 years in prison. Federal authorities then charged him with sexual exploitation of the 8-year-old, see 18 U.S.C. § 2251(a), and with receipt and possession of child pornography, see id. § 2252A(a)(2).
At the evidentiary hearing, Anderson's account of an initial warrantless search of his house contradicted the testimony from the police witnesses (Detective Varga and the two officers who accompanied him on the first visit to Anderson's home). Anderson maintained that, when the police first came to his home, the two officers with Varga restrained him on the porch while the detective entered the house without permission and grabbed the camera and its intact memory card. Varga and his two colleagues all denied entering Anderson's home before he gave written consent.
Detective Varga also testified that when Anderson was interviewed at the police station he acknowledged communicating with the 12-year-old by e-mail and instant messaging. Varga claims that's why he looked for computers during the consensual search of Anderson's home. When questioned by defense counsel, Varga denied that at the time he interviewed Anderson he knew or had reason to believe that the defendant had photographed the girl.
The consent form authorized the police to seize "whatever documents or items of property whatsoever they deem pertinent to their investigation." Broad language in a standardized consent form, like that here, must be read in the context of the interactions between the suspect and police that surrounded the execution of the form.See United States v. Breit, 429 F.3d 725, 729-30 (7th Cir. 2005); United States v. Lemmons, 282 F.3d 920, 924 (7th Cir. 2002). The scope of consent is measured objectively, with a focus on the object of the search as represented to the suspect.Florida v. Jimeno, 500 U.S. 248, 251 (1991); United States v. Jackson, 598 F.3d 340, 348 (7th Cir. 2010).
The scope of consent is measured objectively, without consideration of the policeman's private, subjective intent. United States v. White, 706 F.2d 806, 808 (7th Cir. 1983); LaFave, supra, § 8.1(c) at 23. For that reason, Anderson is incorrect in assuming that it matters if the police all along meant to search for child pornography and thus took his computers before seizing physical evidence of the sexual assault (such as the bedding recovered later). Similarly irrelevant are Anderson's abandoned assertions of confusion and anxiety, as the perspective of a "typical reasonable person"—not a person with (if it is to be credited) a panic disorder—is what matters. See Jimeno, 500 U.S. at 251;United States v. Saucedo, 688 F.3d 863, 866, 868 (7th Cir. 2012) (considering what a "reasonable person would have understood" despite defendant's assertion that illness affected his ability to understand scope of consent).
AFFIRMED.
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
DONALD ANDERSON, Defendant-Appellant.
United States Court of Appeals, Seventh Circuit.
Before FRANK H. EASTERBROOK, Circuit Judge, DANIEL A. MANION, Circuit Judge,MICHAEL S. KANNE, Circuit Judge.
