### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 15

‐ 3638

M ARSHALL M C D ANIEL

,

Petitioner

‐ Appellant

,

v.

C ECIL P OLLEY

, Warden,

Respondent

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 10 C 7375

— Joan H. Lefkow

, Judge

.

____________________

A RGUED N OVEMBER 4, 2016

— D ECIDED F EBRUARY 9, 2017

____________________

Before F LAUM and K ANNE

, Circuit Judges

, and M AGNUS

‐

S TINSON

, District Judge

. 

K ANNE

, Circuit Judge

. In 2001, police o ffi cers arrested

Marshall McDaniel while investigating his girlfriend’s mur

‐

der. McDaniel confessed during postarrest interrogation. Af

‐

ter pleading not guilty, McDaniel unsuccessfully a tt empted

 The Honorable Jane Magnus

‐ Stinson, of the United States District Court

for the Southern District of Indiana, sitting by designation.2 No. 15

‐ 3638

to suppress his confession. He was convicted in Illinois state

court; on direct appeal, the Illinois Appellate Court a ffi rmed.

After his state petition for postconviction relief was de

‐

nied, McDaniel petitioned the federal district court for a writ

of habeas corpus under 28 U.S.C. § 2254. The district court

denied the petition. McDaniel now argues that appellate

counsel was ine ff ective for failing to argue that his initial ar

‐

rest was unlawful and that his confession was inadmissible

as fruit of the unlawful arrest.

On appeal, we review the Illinois Appellate Court’s deci

‐

sion to deny McDaniel’s petition for postconviction relief.

People v. McDaniel

, No. 1

‐ 06

‐ 3283, slip op. (Ill. App. Ct. Sept.

30, 2009). Because McDaniel was not prejudiced by appellate

counsel’s failure to raise his Fourth Amendment claim, we

a ffi rm.

I. B ACKGROUND

On January 16, 2001, at 9:15 a.m., Officers found DeAn

‐ gular Moore’s body in a high school parking lot. Moore’s

body was lying next to a bloodied garbage can marked 8055

South Harvard. Because she did not have identification with

her at the time of her death, Detective Brownfield sought to

identify Moore by showing community members her photo.

At 5 p.m., before Moore was identified, Detective Brownfield

received a call from Officer Blackman. Officer Blackman told

Detective Brownfield that he had seen a black male, 6’1”, 185

pounds, and in his forties, pulling a garbage can at 2 a.m.

that morning. Officer Blackman said that the man pulled the

garbage can into the high school parking lot and then exited

empty handed.No. 15

‐ 3638 3

After Detective Brown fi eld talked to O ffi cer Blackman, a

woman identi fi ed Moore. The woman told Detective

Brown fi eld that Moore lived with her boyfriend—

McDaniel—and described him as a black male, 6’3”, 185

pounds, and in his late forties. The woman took Detective

Brown fi eld to a man called “Radio.” Radio identi fi ed Moore

and then took Detective Brown fi eld and several other o ffi c

‐

ers to McDaniel’s house—four doors from the address

marked on the bloodied garbage can. McDaniel was not

home, so the o ffi cers left.

Four o ffi cers returned about an hour later, at 8:30 p.m.

They did not have a search or arrest warrant. At trial, two of

the o ffi cers testi fi ed that they did not think that they had

probable cause to arrest McDaniel at that time. The o ffi cers

testi fi ed that they went to McDaniel’s house only to investi

‐

gate Moore’s death. When the o ffi cers knocked, McDaniel

answered and consented to the o ffi cers’ request to come in

‐

side.

Once inside, the o ffi cers asked McDaniel if he knew why

they were there, and he allegedly responded, “[B]ecause my

girlfriend was murdered.” (R. 17

‐ 1 at 81); (R. 17

‐ 2 at 96). 1 At

the o ffi cers’ request, McDaniel allowed the o ffi cers to search

his house. When McDaniel began acting nervous and fi dg

‐

ety, an o ffi cer put McDaniel in handcu ff s. The o ffi cer told

McDaniel that he was not under arrest and removed the

handcu ff s about fi ve minutes later once McDaniel calmed

down. At around 9 p.m., the o ffi cers asked McDaniel if he

1 McDaniel denied making this statement, but he testified at trial that he

knew Moore was dead before the officers arrived because Radio had told

him as much earlier in the day.4 No. 15

‐ 3638

would come to the police station for further questioning.

McDaniel acquiesced, and the o ffi cers drove him back to the

station in a police car.

While on their way to the station, one of the o ffi cers

called Detective Brown fi eld to update him. Detective

Brown fi eld told the o ffi cer that O ffi cer Blackman had just

identi fi ed McDaniel in a photo

‐ array lineup. Detective

Brown fi eld directed the o ffi cers to bring McDaniel to a par

‐

ticular station. McDaniel arrived at the station at 10:30 p.m.

At midnight, O ffi cer Blackman identi fi ed McDaniel in a cor

‐ poral lineup.

At the police station, McDaniel was placed in an interro

‐ gation room, read his Miranda rights, and then questioned

three separate times over twenty

‐ four hours. During the

third round of questioning, McDaniel confessed to the mur

‐

der and signed a wri tt en confession prepared by an Assis

‐

tant State’s A tt orney. 2

Despite his confession, McDaniel pled not guilty.

McDaniel moved to suppress his confession on the ground

that it and any related evidence was fruit of his arrest, which

he argued violated the Fourth Amendment. The trial court

ruled that the officers arrested McDaniel when they hand

‐

cuffed him at his home and later drove him to the police sta

‐

tion. But the trial court imputed Officer Blackman’s photo

‐

array identification to the arresting officers, which gave

them probable cause to arrest McDaniel at that time. With

2 Despite devoting significant time in his brief to describing the improper

tactics that the investigating officers allegedly used during the custodial

interrogation, on appeal, McDaniel does not argue that his confession

was improperly coerced.No. 15

‐ 3638 5

his confession deemed admissible, a jury convicted McDan

‐

iel of murdering Moore.

On direct appeal, McDaniel’s appointed appellate coun

‐

sel argued only one issue—that the prosecution’s reference

to McDaniel’s refusal to take a polygraph while in custody

denied him due process of law. Appellate counsel, ignoring

McDaniel’s prodding, made no argument about the arrest or

the admissibility of his confession. The appellate court

a ffi rmed the conviction.

McDaniel subsequently fi led a petition for postconviction

relief in Cook County Circuit Court. In that petition, McDan

‐

iel argued that he had been denied e ff ective assistance of

appellate counsel because appellate counsel had not argued

that his confession should have been suppressed as fruit of

an unlawful arrest. The circuit court denied the petition.

The Illinois Appellate Court a ffi rmed. Applying the Su

‐

preme Court’s two

‐ pronged test for ine ff ective

‐ assistance

‐ of

‐

counsel claims de fi ned in Strickland v. Washington

, 466 U.S.

668 (1984), the court held that appellate counsel was not in

‐

e ff ective in failing to raise the Fourth Amendment claim be

‐

cause the o ffi cers had probable cause to arrest McDaniel

when they went to his house. The court held that O ffi cer

Blackman’s description of the man pulling the garbage can—

which Detective Brown fi eld relayed to the arresting o ffi c

‐

ers—created probable cause justifying the arrest. The court

cited Illinois case law for the proposition that “a defendant is

not prejudiced by counsel’s failure to raise” a nonmeritori

‐

ous claim on appeal and concluded that “appellate counsel

was not ine ff ective for electing not to raise the legality” of

the arrest. (R. 17

‐ 5 at 43–44.)6 No. 15

‐ 3638

McDaniel petitioned the district court for a writ of habeas

corpus under 28 U.S.C. § 2254. The district court held that

the Illinois Appellate Court erred in holding that the arrest

‐ ing o ffi cers had probable cause to arrest McDaniel. Never

‐

theless, the district court held that McDaniel had not shown

prejudice as Strickland requires. A signi fi cant intervening cir

‐

cumstance, that is, O ffi cer Blackman’s identi fi cation of

McDaniel in the photo

‐ array lineup, “would have probably

led the appellate court to sustain the trial court’s denial of

the motion to suppress.” (R. 34 at 18.) Consequently, the dis

‐

trict court denied McDaniel’s petition. The district court is

‐

sued a certi fi cate of appealability as to McDaniel’s ine ff ec

‐

tive

‐ assistance

‐ of

‐ counsel claim. This appeal followed.

II. A NALYSIS

We review de novo a district court’s denial of a habeas pe

‐

tition. Dansberry v. P fi ster

, 801 F.3d 863, 866 (7th Cir. 2015).

As we have repeatedly said, the Antiterrorism and E ff ective

Death Penalty Act of 1996 (“AEDPA”) circumscribes our re

‐

view of a claim for habeas relief that a state court has already

adjudicated on the merits. E.g.

, King v. P fi ster

, 834 F.3d 808,

813 (7th Cir. 2016).

When the state court applies the correct rule as estab

‐

lished by Supreme Court precedent to a claim, the petitioner

must show that the state court’s decision was an “unreason

‐

able application” of that precedent to the facts of the case.

Emerson v. Shaw

, 575 F.3d 680, 684 (7th Cir. 2009) (quoting

Bell v. Cone

, 535 U.S. 685, 694 (2002)). The quali fi er “unrea

‐

sonable” often controls our review: unreasonable means

more than ordinary disagreement with the state court’s deci

‐

sion. McManus v. Neal

, 779 F.3d 634, 649 (7th Cir. 2015). A

state court’s decision is reasonable, even if incorrect in ourNo. 15

‐ 3638 7

independent judgment, so long as “‘fairminded jurists could

disagree’ on the correctness of the state court’s decision.”

Quintana v. Chandler

, 723 F.3d 849, 855 (7th Cir. 2013) (quot

‐ ing Harrington v. Richter

, 562 U.S. 86, 101 (2011)). “If this

standard is di ffi cult to meet, that is because it was meant to

be.” Harrington

, 562 U.S. at 102.

Here, the Illinois Appellate Court applied the correct

rule, the Supreme Court’s two

‐ pronged test for ine ff ective

‐

assistance

‐ of

‐ counsel claims from Strickland

, 466 U.S. 668. To

prove ine ff ective assistance of counsel, the petitioner must

show that: (1) counsel’s performance “fell below an objective

standard of reasonableness”; and (2) there is a “reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been di ff erent.” King

,

834 F.3d at 813 (quoting Strickland

, 466 U.S. at 687–88).

When applying Strickland to the facts of a particular case,

“there is no reason for a court

... to approach the inquiry in

the same order or even to address both components of the

inquiry if the defendant makes an insu ffi cient showing on

one.” Strickland

, 466 U.S. at 697. The goal of ine ff ective

‐

assistance

‐ of

‐ counsel claims “is not to grade counsel’s per

‐

formance,” so when “it is easier to dispose of an ine ff ective

‐

ness claim on the ground of lack of su ffi cient prejudice

... that course should be followed.” Id. That is the case here, so

we move immediately to the prejudice prong of the analysis.

The Illinois Appellate Court a ffi rmed the trial court’s de

‐

nial of McDaniel’s petition for postconviction relief because

he was not be prejudiced by appellate counsel’s failure to

raise a nonmeritorious claim. The court held that O ffi cer

Blackman’s description of the man pulling the garbage can

created probable cause to arrest McDaniel. The district court8 No. 15

‐ 3638

disagreed, and we agree with its analysis: “O ffi cer Black

‐

man’s description

... would surely have described a substan

‐

tial number of men living in the area.” (R. 34 at 17.) The de

‐ scription alone did not create an individualized suspicion

that McDaniel killed Moore, and thus, did not create proba

‐

ble cause. City of Indianapolis v. Edmond

, 531 U.S. 32, 37

(2000).

The state points to additional evidence that it argues cre

‐

ated probable cause: (1) how close the address on the gar

‐ bage can lying next to Moore’s body was to McDaniel’s ad

‐

dress; (2) that McDaniel knew why the o ffi cers were at his

house; and (3) that McDaniel acted nervous and fi dgety

when the police entered his house. Whether the combined

evidence creates probable cause is debatable. Probable cause

is not a question we need to address here, however, because

McDaniel’s confession would be admissible even if we as

‐

sume that his arrest was unlawful.

Evidence obtained as the result of an unlawful search or

seizure is often inadmissible under the Supreme Court’s ex

‐ clusionary rule, Wong Sun v. United States

, 371 U.S. 471, 484–

85 (1963), but not always.

The a tt enuation doctrine is an exception to the exclusion

‐

ary rule. “A confession obtained through custodial interro

‐ gation after an illegal arrest must be excluded from evidence

unless the confession is a tt enuated enough from the illegal

arrest that the confession is ‘su ffi ciently an act of free will to

purge the primary taint.’” United States v. Reed

, 349 F.3d 457,

463 (7th Cir. 2003) (quoting Brown v. Illinois

, 422 U.S. 590, 602No. 15

‐ 3638 9

(1975)). So long as the confession is voluntary, 3 our analysis

focuses on “whether the confession is obtained by exploita

‐

tion of an illegal arrest.” Brown

, 422 U.S. at 603. To determine

whether a confession is free from the taint of an unlawful

arrest, we consider “[t]he temporal proximity of the arrest

and the confession, the presence of intervening circumstanc

‐

es, and, particularly, the purpose and fl agrancy of the o ffi cial

misconduct

... .” Brown

, 422 U.S. at 603–04 (internal citations

omi tt ed).

1. Temporal Proximity

Both sides agree that McDaniel confessed over twenty

‐

four hours after being arrested. If we were to view temporal

proximity in isolation, we would hold that the confession

was temporally disconnected from the arrest. Twenty

‐ four

hours far exceeds the length of time that most courts have

held disconnects a confession from an illegal arrest. Reed

, 349

F.3d at 463–64 (collecting cases).

The time gap is not dispositive here, however, because

McDaniel was in custody the entire twenty

‐ four hours, did

not talk to a lawyer, was questioned multiple times, and was

subjected to a corporal lineup. Taylor v. Alabama

, 457 U.S. 687,

691 (1982). In such a situation, a lengthy period of time be

‐

tween an arrest and confession does not serve to a tt enuate

the arrest; we could hardly say that an illegal arrest had no

e ff ect on a confession just because the suspect was kept in

interrogation for over twenty

‐ four hours. United States v.

Conrad

, 673 F.3d 728, 738 (7th Cir. 2012) (noting that not only

3 We assume that the confession was not coerced because McDaniel does

not argue that he was coerced into confessing. See footnote 2.10 No. 15

‐ 3638

is the “time elapsed” important but also “the quality of that

time”). Therefore, the fi rst factor favors suppression.

2. Intervening Circumstances

There are two intervening events that a tt enuate McDan

‐

iel’s confession from his arrest. First, the interrogating o ffi c

‐

ers read McDaniel his Miranda rights before they questioned

him. Although Miranda warnings do not per se remove the

scourge of an unlawful arrest, they “are an important factor,

to be sure, in determining whether the confession is obtained

by exploitation of an illegal arrest.” Brown

, 422 U.S. at 603.

So even though the warnings are not dispositive, they are a

factor in our analysis and tend to support a tt enuation.

Second, the arresting o ffi cers had probable cause to arrest

McDaniel before they began interrogating him. See Utah v.

Strie ff

, 136 S. Ct. 2056, 2062–63 (2016) (holding that an inde

‐ pendent arrest warrant served as an intervening event be

‐

tween an unlawful stop and search incident to arrest). At

some point between the time the o ffi cers left to question

McDaniel and the time they left his house for the police sta

‐

tion, O ffi cer Blackman identi fi ed McDaniel in a photo

‐ array

lineup. While the arresting o ffi cers were on their way back to

the station with McDaniel, they were informed of O ffi cer

Blackman’s identi fi cation. 4 A single, credible eyewitness

4 Although we analyze potential intervening circumstances from the de

‐

fendant’s perspective in this context, McDaniel does not deny that he

was made aware of Officer Blackman’s photo identification. See Reed

, 349

F.3d at 463 (noting that the question is whether the confession is attenu

‐

ated enough from the illegal arrest that the confession is sufficiently an

act of defendant’s free will to purge the primary taint) (quoting Brown

, 422

U.S. at 602); see also United States v. Gregory

, 79 F.3d 973, 980 (10th Cir.

1996) (“In applying the second factor in Brown

, we look only from theNo. 15

‐ 3638 11

identi fi cation can create probable cause. Hart v. Mannina

, 798

F.3d 578, 587 (7th Cir. 2015). 5 Had the o ffi cers not put

McDaniel in handcu ff s brie fl y and waited minutes to put

him in the police car, they would have had probable cause

for the arrest.

Importantly, O ffi cer Blackman’s identi fi cation was whol

‐ ly independent of the arrest. In Taylor

, the Supreme Court

held that an arrest warrant fi led after an illegal arrest but be

‐

fore the confession was not an intervening circumstance. 457

U.S. at 692–93. In that case, the arrest warrant was based on a

fi ngerprint match between the suspect and fi ngerprints

defendant’s perspective in determining whether any intervening event

occurred which isolates the defendant from the coercive effects of the

original illegal stop so as to render his subsequent consent voluntary in

fact.”).

5 McDaniel argues throughout his brief that Officer Blackman’s photo

‐

array identification was “tentative.” During the identification, Officer

Blackman said that McDaniel’s photo “look[ed] like” the man he saw

pulling the garbage can. Multiple officers testified that this was a tenta

‐

tive identification. But that fact does not change our analysis. An officer

has probable cause based on an eyewitness who “it seems reasonable to

believe is telling the truth.” Gramenos v. Jewel Cos., Inc.

, 797 F.2d 432, 439

(7th Cir. 1986) (internal quotation marks omitted). Such an identification

can create probable cause even if the officers know of other evidence that

might lead a jury to conclude that the eyewitness had misidentified the

suspect. Tangwall v. Stuckey

, 135 F.3d 510, 516 (7th Cir. 1998) (citing

Gramenos

, 797 F.2d at 437). Officer Blackman’s identification was suffi

‐

cient to create probable cause. There was no reason to doubt that Officer

Blackman was telling the truth, and it was reasonable to rely on Officer

Blackman’s statement that McDaniel “look[ed] like” the man pulling the

garbage. The weight to give the “tentative” identification would have

been for the jury to decide. United States v. Carter

, 410 F.3d 942, 950 (7th

Cir. 2005).12 No. 15

‐ 3638

found at the crime scene. The fi ngerprints used to match the

ones at the crime scene were taken immediately after the il

‐ legal arrest, making them fruit of the illegal arrest. The Court

held that, as a result, the arrest warrant did not constitute an

intervening event. Id.

Here, O ffi cer Blackman’s identi fi cation did not rely on

anything that stemmed from the arrest. The o ffi cers knew

McDaniel’s name, knew that he fi t O ffi cer Blackman’s gen

‐

eral description of the man pulling the garbage can, and got

his picture without relying in any way on the arrest. See Se

‐

gura v. United States

, 468 U.S. 796, 814 (1984) (“None of the

information on which the warrant was secured was derived

from or related in any way to the initial entry into petition

‐

ers’ apartment; the information came from sources wholly

unconnected with the entry and was known to the agents

well before the initial entry.”).

The second factor, the existence of intervening circum

‐

stances, favors admissibility.

3. Flagrancy of Police Misconduct

The fl agrancy of police misconduct is the most important

element of our analysis because the exclusionary rule is

aimed at deterring police misconduct. Reed

, 349 F.3d at 464–

65 (citing Brown

, 422 U.S. at 600). “The third factor of the

a tt enuation doctrine re fl ects that rationale by favoring exclu

‐

sion only when the police misconduct is most in need of de

‐

terrence—that is, when it is purposeful or fl agrant.” Strie ff

,

136 S. Ct. at 2063.

When an o ffi cer’s conduct is negligent but not fl agrant or

purposeful, the exclusionary rule’s objective is not served

and strongly favors admissibility. Id. Good

‐ faith mistakes,No. 15

‐ 3638 13

resulting from errors in judgment, “hardly rise to a purpose

‐

ful or fl agrant violation of

... Fourth Amendment rights.” Id.

In Strie ff

, an o ffi cer stopped Strie ff leaving a suspected

drug house without reasonable suspicion of wrongdoing.

The Court said that the o ffi cer violated Strie ff ’s Fourth

Amendment rights and instead should have asked Strie ff to

talk instead of demanding that he do so. Notwithstanding

the Fourth Amendment violation, the Court concluded that

the third prong of the Brown test was not satis fi ed because

the o ffi cer made a good

‐ faith mistake and did not act pur

‐ posefully or fl agrantly.

The same rationale applies here. Two o ffi cers testi fi ed

that they went to McDaniel’s house only to investigate

Moore’s death and that they did not think that they had

probable cause to arrest him at that time. At no point did the

o ffi cers think that they were arresting McDaniel. McDaniel

consented to all of the o ffi cers’ conduct: entry into his house,

the initial questioning at his house, the search of his house,

and going to the police station for further questioning. See

United States v. Rahman

, 805 F.3d 822, 831 (7th Cir. 2015). The

trial court held that McDaniel was in custody for purposes of

the Fourth Amendment when the o ffi cers handcu ff ed him at

his house and later drove him to the police station. But the

o ffi cers told McDaniel that he was not under arrest and took

him out of the handcu ff s fi ve minutes later while still at his

house. Further, McDaniel consented to going to the police

station. O ffi cers in future situations could scarcely hope to

be more careful than the o ffi cers were here. These mistakes,

if they were mistakes, constitute negligence. And as was the

case in Strie ff

, everything that occurred after the initial arrest

was legal. 136 S. Ct. at 2063.14 No. 15

‐ 3638

Although the o ffi cers acted in good faith, that is only part

of the inquiry when analyzing the purpose and fl agrancy of

the o ffi cers’ conduct. Reed

, 349 F.3d at 465. The Supreme

Court has held that an o ffi cer’s conduct is purposeful and

fl agrant in absence of bad faith when the o ffi cers used the

unlawful arrest as an investigatory method to discover evi

‐

dence. 6 Taylor

, 457 U.S. at 693; Dunaway v. New York

, 442 U.S.

200, 218 (1979); Brown

, 422 U.S. at 605. McDaniel relies on the

language in those cases to argue that his “arrest has a ‘quali

‐

ty of purposefulness’ in that it was an ‘expedition for evi

‐

dence’ admi tt edly undertaken ‘in the hope that something

might turn up.’” (Appellant’s Reply Br. at 25 (quoting Duna

‐

way

, 442 U.S. at 218).)

Of course, the o ffi cers went to McDaniel’s house to inves

‐ tigate Moore’s death and hoped that their investigation

would turn up evidence during questioning. But the similar

‐

ities between our case and the Supreme Court cases end

there. In the Supreme Court cases, the o ffi cers—regardless of

their belief about probable cause—intended to arrest the

suspect. Taylor

, 457 U.S. at 688–89; Dunaway

, 442 U.S. at 203;

Brown

, 422 U.S. at 592. Excluding evidence in those cases

served to deter future o ffi cers from arresting an individual

unless they were sure that they had probable cause. Here,

the o ffi cers did not intend to arrest McDaniel. Excluding

McDaniel’s confession would not deter this type of conduct:

6 The Court has held that the lack of coercion during the interrogation

does not mean that an officer’s conduct was not flagrant or purposeful.

Dunaway

, 442 U.S. at 218–19. The officers’ conduct during interrogation

is not at issue here. Accordingly, we do not address whether the officers’

conduct during McDaniel’s interrogation adds to the flagrancy of their

conduct.No. 15

‐ 3638 15

o ffi cers would still have to investigate crimes before they

have probable cause and would continue to rely on various

witnesses’ and suspects’ consent when doing so.

To quote the Supreme Court, “[A]ll the evidence suggests

that the [arrest] was an isolated instance of negligence that

occurred in connection with a bona fi de investigation

... .”

Strie ff

, 136 S. Ct. at 2063. The o ffi cers’ conduct was not fl a

‐

grant or purposeful, and thus, application of the exclusion

‐

ary rule is not warranted. That, in addition to the interven

‐ ing events, a tt enuated the confession from the arrest. As a

result, McDaniel cannot show prejudice because the confes

‐

sion would have been admissible even if his arrest was un

‐

lawful.

III. C ONCLUSION

For the foregoing reasons, the district court’s denial of

McDaniel’s petition for a writ of habeas corpus is

AFFIRMED.