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 
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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 
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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 
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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 
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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.
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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. 
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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). 
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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, 
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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 email 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."
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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. 
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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. 
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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.
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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 
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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. 
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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 
- 16 - 

(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 

 6 All 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. 
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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 
- 18 - 

(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 
- 19 - 

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 
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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." CorderoRosario, 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-
- 21 - 

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 
- 22 - 

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). 
- 23 - 

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. 
- 24 - 

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" 
- 25 - 

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 
- 26 - 

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. AlmonteBaez, 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 
- 27 - 

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." GarciaAguilar, 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 
- 28 - 

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 
- 29 - 

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 
- 30 - 

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 thirtyyear sentence on count six, with twenty years to be served 

consecutively. 
- 31 - 

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. 
- 32 - 

V. Conclusion 

For the foregoing reasons, the district court's denial 

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

AFFIRMED.