In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3504

DAVID C. BROCK,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 07 C 632—Larry J. McKinney, Judge.

ARGUED JANUARY 16, 2009—DECIDED JULY 22, 2009

Before BAUER, FLAUM and WOOD, Circuit Judges.

BAUER, Circuit Judge. After police searched two of his

residences, David C. Brock was convicted of possessing,

with the intent to distribute, methamphetamine and

cocaine, and of being a felon in possession of a firearm.

Several years later, Brock brought a motion under

28 U.S.C. § 2255, claiming to have located a previously

unavailable witness, Reginald Godsey, who was

prepared to testify that the officers coerced him into
2 No. 07-3504

consenting to a search of the house he and Brock shared.

Therefore, Brock claims, the search was non-consensual

and violated his Fourth Amendment rights, and the

evidence found in that house must be suppressed, with his

sentence vacated or reduced accordingly. The district court

denied Brock’s motion—a decision we affirm.

I. BACKGROUND

On April 9, 2002, federal and state law enforcement

officers executed a federal search warrant for firearms

at Brock’s residence, located at 3375 N. Payton Avenue

in Indianapolis. The search revealed approximately

three pounds of methamphetamine, two pounds of

cocaine, one-quarter pound of marijuana, fourteen guns,

ammunition, and $35,000 in cash. The officers also

found utility bills indicating that Brock paid for at least

some of the utilities at 3381 N. Payton Avenue, the house

immediately next door, since February 2001. Officer

Miller, one of the officers executing the warrant, had

training and experience enough to know that drug

dealers commonly maintain stash houses to avoid

storing all of their inventory in one location.

Brock was not home at 3375 N. Payton when the search

was conducted. The officers found Godsey instead. According to the officers, Godsey informed them that he

and Brock each rented a room next door at 3381 N.

Payton. Godsey stated that Brock used 3381 N. Payton

as a stash house for drugs and that Brock kept a safe in

his bedroom that currently contained several pounds of

methamphetamine. Godsey watched both houses for
No. 07-3504 3

Brock. Godsey consented to a search of his bedroom

in 3381 N. Payton and gave the officers a key to the

house. The officers found a shotgun in plain view in a

common area of the house and some drugs in

Godsey’s bedroom as well as papers linking Brock to

3381 N. Payton. Also from a common area, a police narcotics dog alerted to the southwest section of the house.

Based on all this information, a state search warrant

was obtained and executed for 3381 N. Payton, still on

April 2, 2002. A search of Brock’s bedroom uncovered

twelve pounds of methamphetamine, eight ounces of

cocaine, seven guns, and ammunition. Brock was indicted

and convicted on six counts: three for the methamphetamine, cocaine, and firearms found at 3375 N. Payton

and three for the methamphetamine, cocaine, and

firearms found at 3381 N. Payton. We affirmed the convictions. United States v. Brock, 417 F.3d 692 (7th Cir.

2005); United States v. Brock, 433 F.3d 931 (7th Cir. 2006).

In November 2006, more than three years after Brock

was convicted, Brock’s family located Godsey, whose

location was previously unknown to the government or

Brock. Godsey signed a declaration that he only

consented to the search of 3381 N. Payton because the

officers held a gun to his head and threatened him

with sixty years in prison. Brock then brought this § 2255

motion, which the district court denied.

II. DISCUSSION

Brock’s fundamental argument on appeal is that the

newly discovered and previously unavailable evidence
4 No. 07-3504

requires, at a minimum, an evidentiary hearing to determine whether Godsey’s consent was coerced. If it was,

Brock claims, the search of 3381 N. Payton violated

Brock’s Fourth Amendment rights and the evidence

found therein must be suppressed. Brock contends that

the Supreme Court’s limitation on the exclusionary rule

in collateral attacks, described in Stone v. Powell, 428

U.S. 465 (1976), does not apply. The government

responds that Brock’s claim is barred by Stone, was procedurally defaulted, and is irrelevant because the search

of 3381 N. Payton was proper under the independent

source doctrine.

“We review the district court’s conclusions of law de

novo and its denial of a motion for an evidentiary

hearing for abuse of discretion.” Almonacid v. United States,

476 F.3d 518, 520-21 (7th Cir. 2000).

A. Limits to the Exclusionary Rule

Brock claims that Stone does not apply to § 2255 motions

because Stone addressed collateral petitions by state

prisoners under 28 U.S.C. § 2254 while § 2255 is for

federal prisoners. He also argues that he has been denied

“an opportunity for full and fair litigation of [his] Fourth

Amendment claim,” the prerequisite to the Stone bar.

Stone, 428 U.S. at 494. The government argues that

Stone is equally applicable to federal and state prisoners,

and that Brock received an opportunity for full and

fair litigation of his claim so that Stone applies.

The exclusionary rule is not required by the Constitution; it is “a judicially created means of effectuating the
No. 07-3504 5

rights secured by the Fourth Amendment.” Stone, 428

U.S. at 482. The rule is designed to deter violations of the

Fourth Amendment “by removing the incentive to disregard it.” Id. at 484 (quoting Elkins v. United States, 364

U.S. 206, 217 (1960)). It “is not a personal constitutional

right” and “is not calculated to redress the injury to the

privacy of the victim of the search or seizure, for any

‘[r]eparation comes too late.’ ” Stone, 428 U.S. at 486

(quoting Linkletter v. Walker, 381 U.S. 618, 637 (1965)).

Instead, “[a] person whose rights have been violated by a

search can be remitted to a suit against the police for

committing a constitutional tort.” United States v. Sims, 553

F.3d 580, 583-84 (7th Cir. 2009). In sum, “[t]he rule is

calculated to prevent, not to repair.” Stone, 428 U.S. at 484

(quoting Elkins, 364 U.S. at 217).

Because the exclusionary rule “deflects the truthfinding

process and often frees the guilty,” Stone, 428 U.S. at 490,

it “has been restricted to those areas where its remedial

objectives are thought most efficaciously served.” Id.

at 486-87 (quoting United States v. Calandra, 414 U.S. 338,

348 (1974)); see Herring v. United States, 129 S. Ct. 695, 700

(2009) (“benefits of deterrence must outweigh the costs”).

For example, the rule does not apply during grand jury

proceedings, or when evidence is used to impeach a

defendant’s testimony, or when officers acted in good

faith reliance on a faulty warrant. Stone, 428 U.S. at 487-

88 (citations omitted); United States v. Leon, 468 U.S. 897,

922 (1984). Determining whether the exclusionary rule

may be invoked in this situation requires “weighing the

utility of the exclusionary rule against the costs of ex-
6 No. 07-3504

tending it to collateral review of Fourth Amendment

claims.” Stone, 428 U.S. at 489.

The Supreme Court conducted this weighing analysis

in Stone and concluded that “where the State has provided

an opportunity for full and fair litigation of a Fourth

Amendment claim, a state prisoner may not be granted

federal habeas corpus relief on the ground that evidence

obtained in an unconstitutional search or seizure was

introduced at his trial.” Id. at 494. This is because the

added deterrent effect from law enforcement authorities

“fear[ing] that federal habeas review might reveal flaws

in a search or seizure that went undetected at trial and

on appeal” is minimal and “would be outweighed by the

acknowledged costs to other values vital to a rational

system of criminal justice.” Id. at 493-94. This Court has

determined that the principles of Stone apply equally to

§ 2255 motions. Owens v. United States, 387 F.3d 607, 609

(7th Cir. 2004).

Brock argues that he was not provided an opportunity

for full and fair litigation because Godsey’s key testimony was not available until recently. Stone did not

explain what an opportunity for full and fair litigation requires and the term has “caused considerable consternation.” Cabrera v. Hinsley, 324 F.3d 527, 530-31 (7th

Cir. 2003). “The only help in Stone is a footnote to a

prior case: ‘Cf. Townsend v. Sain, 372 U.S. 293 . . . .’ And of

course the value, generally, of ‘Cf.’ citations is often only

revealed in the eye of the beholder.” Cabrera, 324 F.3d at

531; see Turentine v. Miller, 80 F.3d 222, 224 n.1 (7th Cir.

1996) (noting that “[a]t least one court . . . has stated that
No. 07-3504 7

Stone did not necessarily intend to incorporate the full

extent of the Townsend Court’s definition of full and

fair hearing” (citing Palmigiano v. Houle, 618 F.2d 877, 881

(1st Cir.), cert. denied, 449 U.S. 901 (1980))).

The possibly relevant language in Townsend states:

“Where newly discovered evidence is alleged in a

habeas application, evidence which could not reasonably

have been presented to the state trier of facts, the federal

court must grant an evidentiary hearing. Of course, such

evidence must bear upon the constitutionality of the

applicant’s detention . . . .” 372 U.S. at 317. It is questionable as to whether Brock could have located Godsey

prior to the suppression hearing or at some point

during the trial or direct appeal had he exerted

greater effort. But even if Godsey’s testimony could not

reasonably have been presented earlier, so that it would

truly be newly discovered evidence, the evidence, to be

relevant under Townsend, must relate to the constitutionality of Brock’s detention. Id.

Brock’s argument that his Fourth Amendment rights

were violated is a constitutional claim, but does not

bear upon the constitutionality of Brock’s detention.

[A] person imprisoned following a trial that relies, in

part, on unlawfully seized evidence is not “in custody

in violation of the Constitution or laws or treaties of

the United States.” 28 U.S.C. § 2254(a). The seizure

may have violated the Constitution, but the custody

does not, because the exclusionary rule is a social

device for deterring official wrongdoing, not a

personal right of defendants.
8 No. 07-3504

Hampton v. Wyant, 296 F.3d 560, 562-63 (7th Cir. 2002); see

Leon, 468 U.S. at 906 (“use of fruits of a past unlawful

search or seizure ‘work[s] no new Fourth Amendment

wrong.’ ” (quoting Calandra, 414 U.S. at 354)). Simply

put, Brock’s detention is no less constitutional even if it

turns out that the Fourth Amendment was violated in

effectuating it.

Brock’s second argument is that this Court has summarized the opportunity for full and fair litigation of a

Fourth Amendment claim by stating that it “guarantees

the right to present one’s case, but it does not guarantee

a correct result.” Cabrera, 324 F.3d at 532. Brock claims

that he was denied the right to present his case because

he has not been able to introduce this new evidence. But,

read in context, Cabrera’s “right to present one’s case”

simply refers to the right to have a judge listen to

and consider the evidence a party actually presents at

trial. It is the right to have a judge who has not closed

his mind to the issues, is not bribed or sleepwalking, and

is not “in some other obvious way subvert[ing] the hearing.” Id. at 531. Cabrera did not consider whether an

opportunity for full and fair litigation requires that the

evidence necessary to make the party’s best claim be

available by the time of trial.

Most importantly, neither of these arguments bears

upon the central issue in Stone and the one which we

must ultimately decide: whether the deterrent benefit of

applying the exclusionary rule in a particular situation

outweighs the social costs of letting the guilty go free, expending limited judicial resources, and disturbing finality

in criminal trials. Stone, 428 U.S. at 489-90, 491 n.31 (citation
No. 07-3504 9

omitted). The deterrent calculus articulated in Stone is

not dependent on when evidence surfaces, as long as

the trial was administered in a just manner. Police misconduct will not be materially checked by fear that

Fourth Amendment violations that go undiscovered

during trial, appeal, and the three-year time period to

file a motion for a new hearing, Fed. R. Crim. P. 33(b),

will be discovered and used in a § 2255 motion, at least

when there is no allegation that the officers prevented

the defendant from finding the evidence. See Stone, 428

U.S. at 493. Any “additional incremental deterrent effect” this might have “would be outweighed by the

acknowledged costs to other values vital to a rational

system of criminal justice.” Stone, 428 U.S. at 493-94; see

id. at 490 (“[T]he physical evidence sought to be excluded is typically reliable and often the most probative

information bearing on the guilt or innocence of the

defendant.”).

Brock makes no claim that his trial or appeals were not

fairly administered or that the government prevented

him from locating Godsey. His unfortunate circumstance

is that, for whatever reason, he did not locate Godsey

until it was too late. Stone prevents Brock from bringing

this § 2255 motion solely on the ground that newly discovered evidence would have triggered the exclusionary

rule if presented earlier.

B. Independent Source Doctrine

Even if Brock’s claim was not barred by Stone and an

evidentiary hearing revealed that Godsey’s consent
10 No. 07-3504

was coerced so that the initial search of 3381 N. Payton

was conducted in violation of the Fourth Amendment,

this would not automatically preclude introduction of

the evidence discovered at 3381 N. Payton. In describing

the purpose of the exclusionary rule, the Supreme Court

has stated that

the interest of society in deterring unlawful police

conduct and the public interest in having juries

receive all probative evidence of a crime are properly

balanced by putting the police in the same, not a

worse, position that they would have been in if no

police error or misconduct had occurred. When the

challenged evidence has an independent source,

exclusion of such evidence would put the police in

a worse position than they would have been in

absent any error or violation.

Nix v. Williams, 467 U.S. 431, 443 (1984) (citations omitted).

Typically these so-called independent source doctrine

cases involve an illegal search and discovery of evidence

followed by a second search conducted after a warrant

is obtained. See Murray v. United States, 487 U.S. 533, 535-

36 (1988); see also United States v. Markling, 7 F.3d 1309,

1311-12 (7th Cir. 1993). In Murray, the Supreme Court

held that evidence originally discovered or seized

illegally can be legally rediscovered or reseized and used

against the defendant at trial. 487 U.S. at 541-42. In this

case, the critical evidence in Godsey’s bedroom was

initially discovered and seized according to a warrant,

making the facts more similar to Segura v. United States,
No. 07-3504 11

It is not clear whether Brock was charged with possessing 1

the shotgun found in plain view during the first search of

3381 N. Payton. Brock does not mention the shotgun on

appeal and it seems irrelevant whether Brock was charged

with possessing eight versus seven guns recovered from

3381 N. Payton. Also, the shotgun was likely rediscovered

during the second search of 3381 N. Payton according to the

independent source rule (see below).

468 U.S. 796 (1984). However, the exclusionary rule 1

would still apply if the warrant was tainted by the previously discovered evidence that was illegally obtained.

Murray, 487 U.S. at 536-37. To be admissible, the

evidence discovered from the second search of 3381 N.

Payton must have been discovered independently of

Godsey’s supposedly coerced statements and consent

and the evidence obtained from the first search of

3381 N. Payton.

Deciding whether evidence was obtained from an

independent source involves a two-part test. Markling,

7 F.3d at 1315. “The first question is whether the

illegally obtained evidence affected the magistrate’s

decision to issue the search warrant.” Id. (citing Murray,

487 U.S. at 542). The heart of this question is whether,

taking away any illegally obtained information, the

affidavit still demonstrated probable cause. Markling,

7 F.3d at 1317.

“[D]etermining whether probable cause exists involves

‘a practical, common-sense decision whether, given all

the circumstances set forth . . . there is a fair probability
12 No. 07-3504

that contraband or evidence of a crime will be found in

a particular place.’ ” Id. (quoting Illinois v. Gates, 462 U.S.

213, 238 (1983)). In this case, the affidavit explained

that Brock had been previously convicted for dealing

cocaine. A substantial amount of drugs, several guns,

and a large amount of cash had just been recovered

from one of Brock’s residences. Utility bills were discovered in 3375 N. Payton linking Brock to 3381 N. Payton,

the house immediately next door. And the affidavit

noted Officer Miller’s experiential knowledge that stash

houses are common in the narcotics industry. Finally, “a

magistrate is entitled to draw reasonable inferences

about where evidence is likely to be kept [and] in the

case of drug dealers evidence is likely to be found where

the dealers live.” United States v. Reddrick, 90 F.3d 1276,

1281 (7th Cir. 1996) (quotations and citations omitted).

There was more than sufficient evidence to create “a fair

probability” that the search would be productive.

Gates, 462 U.S. at 238.

The second part of this test asks whether the “decision

to seek the warrant was prompted by” information

gained from the initial illegal activity. Markling, 7 F.3d

at 1315-16 (quoting Murray, 487 U.S. at 542). Here we

do not have, nor would we expect, any testimony from

the officers or a finding by the district court that the

officers would have sought the warrant regardless of

the presumptively illegal activity because the allegation

of coercion came several years after the trial. Based on

the evidence in this case, it would be easy to conclude

that the officers would have sought the warrant even

without speaking to Godsey or initially searching
No. 07-3504 13

3381 N. Payton. Nevertheless, this is a decision for the

district court. Murray, 487 U.S. at 542-44; Markling, 7 F.3d

at 1317. We do not need to remand this case, however,

because it is already barred by Stone.

III. CONCLUSION

For the reasons discussed above, we AFFIRM the denial

of Stone’s § 2255 motion.

7-22-09