# UnitedStates Cou rt of App eals
For the Seventh Circui t Chic ago, I lli nois 60604
Arg ued August 7, 2013 Deci ded October 4, 2013 Amended October 21, 2013

Before

FRANKH. EASTERBROO K, Circ uit Judge

DANIEL A. MANIO N, Circ uit Judge

MICHAEL S . KANNE, Circ uit Judge

No. 13-1003

UNITED STATES OF AMERI CA, Plaintiff-Appellee ,

v.
DONALD ANDERSON, Defen dant-Appellant

. Appeal from the United Stat es Di stric t Courtfor t he Nort hern Di stric t of Illi noi s, Eas ter n Di vis i on.

No. 09 CR 754-1
Joan B. Gottschall, Judge

.
O R D E R

Donald Anderson was under investigati on for sex ual ass ault of a chi ld whenhe gav e the polic e wri tte n consen t to search hi s home and take “whatever documents or i tems of proper ty whatsoev er t hey deem pert inent to their investigati on.” The offi cers sei zed computers and a mem or y card; phot ogr aphs on the memory card pr ompted further sear ches (wi th warrant s) an d led to feder al charges. Anderson move d to supp ress the i tems taken during the consens ual search ( and ever ything sei zed in the later searches as frui ts of that ini tial s earch). He rai sed two clai ms b ut presses only one N O N P R E C E D E N T I A L D I S P O S I T I O N T o b e c i t e d o n l y i n a c c o r d a n c e w i t h F e d

. R

. A p p
. P

. 3 2

. 1No. 13-1003 Page 2

of them on appeal: Hi s cons ent to search di d not ex tend to hi s compu ter s or sto rag e medi a. After the di stric t courtrej ected that cont ention, Anderson entered a conditi onal gui lty plea and was s entenced to 50 y ears’ im pris onment. We affi rm the j udgment.

In Mar ch 2007 a m other in Norr i dge, Illinoi s, repor ted to poli ce that her 12-year-old daughte r was mi ssing. The gi rl tur ned up les s than an hour later and she sai d she had been in Park Fo rest atthe home of a fami ly friend, And erson, who was then 42. That information prompted a r eferr al to po li ce in Park Fo rest. The girl was twi ce interv i ewed by Park Fo rest o ffi cers, the fi rst t i me by Commander Brian T as and the second by Detecti ve JimVarga. S he eventually dis closed to Varg a that Ander son had sex wi th her o n more than one occas i on. Two days after in ter view i ng the g i rl, Detective Varga went t o Ander son’s home wi th two o ther o ffi cers and invited hi m to t he poli ce stati on. At t he station Anderson confess ed to hav ing sex wi th the g i rl and si gned the written “Permi ssi on to Sear ch” hi s home. The offi cers retur ned to t he house and removed sever al computers and the memory car d, whi ch w as plu gge d into o ne of those computers. Later exami nati on of the memory car d rev ealed photo gr aphs of the 12-year-old posi ng naked and kis sing Anderson. The poli ce then obtain ed a search warrant and recov ered bedding, a lov e lette r fro m the girl to Ander son, more computers and stor age medi a, and cam eras. The stor age medi a held addi tional chi ld pornog raphy, whi ch led to a second s earch warrant tar get ing VHS cass ett es and other sto rag e medi a that had been left behind at the house. One VHS tape fr om 1997 depi cts Anderson havi ng sex wi th a di fferent girl, who was 8 year s old at the t i me. Her mother unfortunately t rusted hi m to care for her daughter

. Anderson pleaded gui lty in s tate court t o pre dator y crim inal sexual as sault of the 12-year-old, see 720 ILCS 5/11-1.40, and was s entenced to 16 y ears i n pri son. Federal authoriti es then charged hi m wi th sexual exploitation of the 8-year-old, see 18 U.S.C. § 2251(a), and wi th receipt and poss essi on of chi ld pornog raphy, see id. § 2252A(a)(2)

.
In hi s moti on to supp ress, Anderson asserted that, before he gav e consent to search, Park Fo rest o ffi cers already had enter ed hi s home wi thout autho rizati on and

remov ed from a di gital cam era a second memory car d whi ch, li ke t he one plugged into the computer, held pi ctures of the 12-year -old. That conduc t, Ander son argued, tainted hi s cons ent. And eve n i f i t did not, his consent di d not author i ze the sei zure of computers and storag e medi a. Anderson clai med that the consent for m that he si gned li mi ted the scope of hi s cons ent to search proper ty “per tin ent” to the sexual-ass aultNo. 13-1003 Page 3

investigati on. He i nsi sted that what the po li ce too k was not pert inent to hi s sexual

assau lt of the 12-ye ar-old girl.

The di stric t courtconduc ted an evidenti ary hearin g on Ander son’s moti on and accepted fi lings from the part i es. Thes e sub mi ssi ons inclu de an investigati ve r epor t authore d by Commander Tas and D etective Varga. I n that r epor t Tas recounts that, when h e i nterv i ewed the 12-year-old, she sai d she had been comm uni cating wi th Anderson for more t han a year by e-mai l and instant mess agin g. Tas bri efed Varga, who then interv i ewed the girl and her mother. Var ga r ecounts that the g i rl’s mother had sai d she as ked Ander son, who ran a computer business, to counsel her daughter about use of the soci al-networking webs i te M yS pace. Anderson di d so and even warned her that pedo phi les on the Inter net tak e advantag e of yo ung girls.

At t he evidenti ary hearin g, Ander son’s acc ount of an i ni tial w arr antless s earch of hi s hous e contradicted the testim ony fro m the poli ce wi tnesses ( Detecti ve Var ga and the two offi cers who acc ompani ed hi m on the fi rst v i si t to Anderson’s home). Anderson maintai ned that, when the poli ce fi rst came to his home, the two o ffi cers wi th Varg a restr ained hi m on the por ch whi le the detective enter ed the house wi thout per mi ssi on and grabbed the camera and i ts intact memory card. Varga and hi s two colleagues all deni ed enter i ng Anderson’s home before he g ave written consent.

Detecti ve Var ga also testifi ed that when Anderson was interv i ewed at the polic e station he ac knowledged communi cating wi th the 12-year -old by e-mai l and instant
mess agin g. Varg a clai ms that’s why he loo ked for computers during the consensu al search of Anderson’s home. When ques tioned by defens e counsel, V arg a deni ed that at the time he interv i ewed Anderson he knew or had r eason to believe that t he defendant had photog raphed the g i rl.

During the hear i ng Anderson nev er asserte d that he had quali fi ed hi s cons ent or that he was told or led to believe that the poli ce offi cers di d not deem computer equi pment or digi tal stor age medi a to be “per tin ent” to their investigati on of hi s sex cri me. Nei ther did any of the thre e polic e offi cers say thi s. In fac t, ther e was n o testim ony fro m any wi tness about conversation between D etective Varga and Ander son after t he detective had read the consent form to Anderson and presented it for re view and si gnature . Anderson di d ass ertthat he fai led to compre hend the form becaus e he was h aving a pani c attack. Yet one of the o ffi cers who searched And erson’s house wi th Varga t esti fi ed that he wi tnessed Anderson si gn the consent form and di d not per cei ve hi m to be confus ed or pani cked.No. 13-1003 Page 4

The di stric t courtbeli eved t he poli ce offi cers, not Ander son. The c ourtfound that, befor e conduc tin g the consensual s earch of Anderson’s home, the o ffi cers already knew that he and the girl had commu ni cated ov er t he Inter net. With that, the court conclu ded that t he computers and mem or y card tak en during the consensu al search

were re levant t o the sexual-assau lt investigation and wi thi n the scope of Anderson’s consent. Acc or dingly, t he court denied the moti on to supp ress. On appeal Anderson no long er asserts thatthe polic e sei zed the di gital cam era and i ts memory car d (or anyt hing else) bef or e he si gned the consent form. His appeal instead hangs on the contention that the polic e exceeded the scope of hi s cons ent. Anderson in si sts that the consent form, by its terms, authorized the poli ce to search only for proper ty “per tin ent” to their sexual- assau lt investigation. In hi s vi ew, that di d not inc lude the computers and mem or y card. He thinks those i tems would h ave been relev ant only if D etective Varga had k nown befor e asking for consent t hat Anderson and the girl had c ommuni cated ov er t he Inter net. Anderson ins i sts that since Varga di d not k now about the electr oni c comm uni cati ons, the di stric t j udge mus t have been specu latin g thatVarga was privy to what Commander Tas learned wh i le interv i ewing the victi m. Anderson’s rendi tion of the facts an d the appli cable lawi s incorre ct.

The cons ent for m authorized the poli ce to sei ze “whatever documents or i tems of proper ty whatsoev er t hey deem pert inent to their investigati on.” Bro ad language i n a standardi zed consent form, li ke t hat here, must be read inthe contex t of the interactions between the sus pect and poli ce that surro unded the executi on of the for m. See Un ited States v. Breit, 429 F.3d 725, 729–30 (7th Cir. 2005) ; United S tat es v. Lem mons , 282 F.3d 920, 924 (7th Ci r. 2002). The sc ope of consent i s meas ured obj ecti vely , wi th a focus on the object o f the search as represented to the susp ect. Florida v. Jimeno , 500 U.S. 248, 251 (1991); United S tat es v. Jackso n , 598 F.3d 340, 348 (7th Cir. 2010). There wasn’t any testim ony atthe ev i denti ary hearin g, nor has Anderson ever contended, that he o r the poli ce offi cers expressly narr owed the scope of the writing. The offi cers di d not, for instance, tell Anderson they were searching only for speci fi c evidenc e. See L emmons , 282 F.3d at 924 (lim i tin g scope of consent when poli ce told

sus pect they wer e look i ng for camera o r r ecordings of n ei ghbor’ s window). Stil l, before the offi cers presented hi m wi th the for m, they had been questi oni ng Anderson exclusi vely about hi s sexual relati onshi p wi th the g i rl. One might thi nk that if Anderson si gned the consent, the police w ould search only for ev i dence reasonably relate d to t he sexual ass ault being i nvestigated. United S tat es v. Coleman , 588 F.3d 816, 820 (4th Cir. 2009) (explaining that cr i me being i nvestigated, a shooting, was relev ant i n determiningNo. 13-1003 Page 5

scope of cons ent); United S tat es v. Turn er, 169 F.3d 84, 87–89 (1st Ci r. 1999) (same for
assau lt investigation) ; LaFave , supra , § 8.1(c) at 26 (“[G]en eral consent i s cons tr ained by the bounds of reasonablenes s . . . .”). Even the gov ernment accepts that the written consent could n ot hav e been unli mi ted.

That sai d, Anderson’s premi se that Detective Varga didn’t know that internet

commu ni cati ons had occurred is b oth factually i ncorre ct and i rr elevant. I t wasn’t only Commander Tas’s interv i ew of the vic timthat establis hed that she commu ni cated wi th Anderson ov er the internet . Varga t esti fi ed that Ander son admi tte d during the stationhous e i nterv i ew that he had talked wi th the g i rl online. And as noted pr eviousl y, Varga r ecounts in the i nvestigati ve r epor t thathe personally lear ned from the girl’s mother about her use of My Space. Putti ng asi de that Var ga te sti fi ed that he discu ssedthe investigati on wi th Tas, the two offi cers belonged to the same poli ce force, so the doctrine of collecti ve k nowledge i mputes T as’s information to Varg a. See Un ited States v. Hensl ey, 469 U.S. 221, 231 (1985); United S tates v. Williams , 627 F.3d 247, 252 (7th Cir. 2010). It should have been no surpri se wh en the polic e offi cers sei zed the computers whi le investigati ng Anderson’s re lations hi p wi th the 12-year -old. See Brei t, 429 F.3d at 730–31 (conc luding that consent t o search for g uns “or anythin g r elated to them” encompas sed notebook and jour nal that mi ght hav e contain ed invento ry of guns or plans to use them) ; United S tat es v. Raney, 342 F.3d 551, 558 (7th Cir. 2003) ( explaining that consent to search for evidenc e “i n the nature o f” narcotic s enc ompassed d rug paraphernalia, s cales, an d drug ledger s).

Mor ever , even if

the re cord supporte d Anderson’s contention that the police knew nothin g of his internet commu ni cati ons wi th the v i cti m, di gital medi a have become so ub i qui tous i n the 21st century that rar ely wi ll storag e devic es notbe “pert inent” i n an investigati on of the sexual assaul t of a chi ld. As the Sentenci ng Commi ssi on has observed, “In r ecent year s, the number of stilli mages and vi deos memoriali zi ng the sexual assau lt and other sexual exploitati on of chi ldren, many ver y young in age, has grown exponent i ally as the result of changes in technology .” U.S. Sente ncing Comm’n, Federal Chi ld Pornography Offenses 3 (2012), availab le at http://www.u ssc .gov /Legis lative_and_P ubli c_Affai rs/Congr essi onal_Testi mony_and_R epor ts/Sex _Offense_T opic s/201212_Federal_Child _Pornog raphy_O ffens es/Chapter_01. pdf. And i t is common for sex offenders to use c omputers to commu ni cate wi th their vic tim s online. Edward M. Mar si co, Jr., Social Networking Websites: Are MySpace and Facebook the Finge rprints of the Twenty-First Cen tury? , 19 Wi dener L.J. 967, 967–69 (2010); Eli zabeth P. Stedman, MySpace, but Who se Responsi bility?: Liability of Social-Network ing Websites When Offlin e Sexu al Assault of M inors Follows On line Interaction , 14 Vi ll. Spor ts & Ent. L.J. 363, 364, 372–74 (2007) ; Kate Knibbs, Sexu al Assault in the Digital Age, Mobiledi aNo. 13-1003 Page 6

(Ju ly 17, 2012), http://www.ramadan.c om/mobi l/sexual-as sault-in-the-di gital-age.html. Furt her, the for m Anderson si gned author i zed poli ce to sei ze “documents”; m any documents are now created and saved on computers, so the lov e lett er t he poli ce found easi ly could have been di scovered as a saved e-mai l, online chat, or soci al-networking post ina browsing hi stor y. Accordingly, cameras and c omputers were o bjectively pert inent to the investigation of Anderson’s sexual as sault of the 12-year-old, wi th or wi thout pr i or knowledge o f actual online commu ni cati ons.

The sc ope of consent i s meas ured obj ecti vely , wi thout consi derat i on of the poli ceman’s private, subjecti ve intent. United S tat es v. White, 706 F.2d 806, 808 (7th Cir. 1983); LaFave, supra , § 8.1(c) at 23. Fo r t hat reason, Ander son i s incorre ct in ass uming that it matter s i f the poli ce all along meant to sear ch f or chi ld pornog raphy and thus too k hi s compu ter s bef or e sei zi ng physi cal evi dence of the sexual ass ault (su ch as the bedding recov ered lat er). Simi larly irrelev ant are A nderson’s abandoned as sertions of confus i on and anxi ety, as the perspecti ve o f a “typic al reasonable person”—nota person wi th (i f i t is to be credited) a pani c di sorder —i s wh at matt ers. See Jimeno , 500 U.S. at251; United S tat es v. Sauc edo , 688 F.3d 863, 866, 868 (7th Cir. 2012) ( consi dering what a “reasonable person would have understoo d” despi te defendant’s asserti on that i llness affec ted hi s abi li ty t o understand scope of consen t).

AFF IRM ED.