# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued August 7, 2013

Decided October 4, 2013

Before

FRANK H. EASTERBROOK, Circuit Judge

DANIEL A. MANION, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

No. 13

‐ 1003

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

DONALD ANDERSON,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Northern District of

Illinois, Eastern Division.

No. 09 CR 754

‐ 1

Joan B. Gottschall, Judge

.

O R D E R

Donald Anderson was under investigation for sexual assault of a child when he

gave the police written consent to search his home and take “whatever documents or

items of property whatsoever they deem pertinent to their investigation.” The officers

seized computers and a memory card; photographs on the memory card prompted

further searches (with warrants) and led to federal charges. Anderson moved to

suppress the items taken during the consensual search (and everything seized in the

later searches as fruits of that initial search). He raised two claims but presses only one

of them on appeal: His consent to search did not extend to his computers or storage

media. After the district court rejected that contention, Anderson entered a conditional

guilty plea and was sentenced to 50 years’ imprisonment. We affirm the judgment. NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 13

‐ 1003 Page 2

In March 2007 a mother in Norridge, Illinois, reported to police that her

12

‐ year

‐ old daughter was missing. The girl turned up less than an hour later and she

said she had been in nearby Park Forest at the home of a family friend, Anderson, who

was then 42. That information prompted a referral to police in Forest Park. The girl was

twice interviewed by Park Forest officers, the first time by Commander Brian Tas and

the second by Detective Jim Varga. She eventually disclosed to Varga that Anderson

had sex with her on more than one occasion.

Two days after interviewing the girl, Detective Varga went to Anderson’s home

with two other officers and invited him to the police station. At the station Anderson

confessed to having sex with the girl and signed the written “Permission to Search” his

home. The officers returned to the house and removed several computers and the

memory card, which was plugged into one of those computers. Later examination of the

memory card revealed photographs of the 12

‐ year

‐ old posing naked and kissing

Anderson. The police then obtained a search warrant and recovered bedding, a love

letter from the girl to Anderson, more computers and storage media, and cameras. The

storage media held additional child pornography, which led to a second search warrant

targeting VHS cassettes and other storage media that had been left behind at the house.

One VHS tape from 1997 depicts Anderson having sex with a different girl, who was 8

years old at the time. Her mother unfortunately trusted him to care for her daughter.

Anderson pleaded guilty in state court to predatory criminal sexual assault of the

12

‐ year

‐ old, see 720 ILCS 5/11

‐ 1.40, and was sentenced to 16 years in prison. Federal

authorities then charged him with sexual exploitation of the 8

‐ year

‐ old, see 18 U.S.C.

§ 2251(a), and with receipt and possession of child pornography, see id. § 2252A(a)(2).

In his motion to suppress, Anderson asserted that, before he gave consent to

search, Park Forest officers already had entered his home without authorization and

removed from a digital camera a second memory card which, like the one plugged into

the computer, held pictures of the 12

‐ year

‐ old. That conduct, Anderson argued, tainted

his consent. And even if it did not, his consent did not authorize the seizure of

computers and storage media. Anderson claimed that the consent form that he signed

limited the scope of his consent to search property “pertinent” to the sexual

‐ assault

investigation. He insisted that what the police took was not pertinent to his sexual

assault of the 12

‐ year

‐ old girl.No. 13

‐ 1003 Page 3

The district court conducted an evidentiary hearing on Anderson’s motion and

accepted filings from the parties. These submissions include an investigative report

authored by Commander Tas and Detective Varga. In that report Tas recounts that,

when he interviewed the 12

‐ year

‐ old, she said she had been communicating with

Anderson for more than a year by e

‐ mail and instant messaging. Tas briefed Varga,

who then interviewed the girl and her mother. Varga recounts that the girl’s mother had

said she asked Anderson, who ran a computer business, to counsel her daughter about

use of the social

‐ networking website MySpace. Anderson did so and even warned her

that pedophiles on the Internet take advantage of young girls.

At the evidentiary hearing, Anderson’s account of an initial warrantless search of

his house contradicted the testimony from the police witnesses (Detective Varga and the

two officers who accompanied him on the first visit to Anderson’s home). Anderson

maintained that, when the police first came to his home, the two officers with Varga

restrained him on the porch while the detective entered the house without permission

and grabbed the camera and its intact memory card. Varga and his two colleagues all

denied entering Anderson’s home before he gave written consent.

Detective Varga also testified that when Anderson was interviewed at the police

station he acknowledged communicating with the 12

‐ year

‐ old by e

‐ mail and instant

messaging. Varga claims that’s why he looked for computers during the consensual

search of Anderson’s home. When questioned by defense counsel, Varga denied that at

the time he interviewed Anderson he knew or had reason to believe that the defendant

had photographed the girl.

During the hearing Anderson never asserted that he had qualified his consent or

that he was told or led to believe that the police officers did not deem computer

equipment or digital storage media to be “pertinent” to their investigation of his sex

crime. Neither did any of the three police officers say this. In fact, there was no

testimony from any witness about conversation between Detective Varga and Anderson

after the detective had read the consent form to Anderson and presented it for review

and signature. Anderson did assert that he failed to comprehend the form because he

was having a panic attack. Yet one of the officers who searched Anderson’s house with

Varga testified that he witnessed Anderson sign the consent form and did not perceive

him to be confused or panicked.

The district court believed the police officers, not Anderson. The court found

that, before conducting the consensual search of Anderson’s home, the officers alreadyNo. 13

‐ 1003 Page 4

knew that he and the girl had communicated over the Internet. With that, the court

concluded that the computers and memory card taken during the consensual search

were relevant to the sexual

‐ assault investigation and within the scope of Anderson’s

consent. Accordingly, the court denied the motion to suppress.

On appeal Anderson no longer asserts that the police seized the digital camera

and its memory card (or anything else) before he signed the consent form. His appeal

instead hangs on the contention that the police exceeded the scope of his consent.

Anderson insists that the consent form, by its terms, authorized the police to search

only for property “pertinent” to their sexual

‐ assault investigation. In his view, that did

not include the computers and memory card. He thinks those items would have been

relevant only if Detective Varga had known before asking for consent that Anderson

and the girl had communicated over the Internet. Anderson insists that since Varga did

not know about the electronic communications, the district judge must have been

speculating that Varga was privy to what Commander Tas learned while interviewing

the victim. Anderson’s rendition of the facts and the applicable law is incorrect.

The consent form authorized the police to seize “whatever documents or items of

property whatsoever they deem pertinent to their investigation.” Broad language in a

standardized consent form, like that here, must be read in the context of the interactions

between the suspect and police that surrounded the execution of the form. See United

States v. Breit

, 429 F.3d 725, 729–30 (7th Cir. 2005) ; United States v. Lemmons

, 282 F.3d 920,

924 (7th Cir. 2002). The scope of consent is measured objectively, with a focus on the

object of the search as represented to the suspect. Florida v. Jimeno

, 500 U.S. 248, 251

(1991); United States v. Jackson

, 598 F.3d 340, 348 (7th Cir. 2010).

There wasn’t any testimony at the evidentiary hearing, nor has Anderson ever

contended, that he or the police officers expressly narrowed the scope of the writing.

The officers did not, for instance, tell Anderson they were searching only for specific

evidence. See Lemmons

, 282 F.3d at 924 (limiting scope of consent when police told

suspect they were looking for camera or recordings of neighbor’s window). Still, before

the officers presented him with the form, they had been questioning Anderson

exclusively about his sexual relationship with the girl. One might think that if Anderson

signed the consent, the police would search only for evidence reasonably related to the

sexual assault being investigated. United States v. Coleman

, 588 F.3d 816, 820 (4th Cir.

2009) (explaining that crime being investigated, a shooting, was relevant in determining

scope of consent); United States v. Turner

, 169 F.3d 84, 87–89 (1st Cir. 1999) (same for

assault investigation); LaFave, supra

, § 8.1(c) at 26 (“[G]eneral consent is constrained by

the bounds of reasonableness

. . . .”). Even the government accepts that the written

consent could not have been unlimited.No. 13

‐ 1003 Page 5

That said, Anderson’s premise that Detective Varga didn’t know that internet

communications had occurred is both factually incorrect and irrelevant. It wasn’t only

Commander Tas’s interview of the victim that established that she communicated with

Anderson over the internet. Varga testified that Anderson admitted during the

stationhouse interview that he had talked with the girl online. And as noted previously,

Varga recounts in the investigative report that he personally learned from the girl’s

mother about her use of MySpace. Putting aside that Varga testified that he discussed the

investigation with Tas, the two officers belonged to the same police force, so the

doctrine of collective knowledge imputes Tas’s information to Varga. See United States v.

Hensley

, 469 U.S. 221, 231 (1985); United States v. Williams

, 627 F.3d 247, 252 (7th Cir.

2010). It should have been no surprise when the police officers seized the computers

while investigating Anderson’s relationship with the 12

‐ year

‐ old. See Breit

, 429 F.3d at

730–31 (concluding that consent to search for guns “or anything related to them”

encompassed notebook and journal that might have contained inventory of guns or

plans to use them); United States v. Raney

, 342 F.3d 551, 558 (7th Cir. 2003) (explaining

that consent to search for evidence “in the nature of” narcotics encompassed drug

paraphernalia, scales, and drug ledgers).

Morever, even if the record supported Anderson’s contention that the police

knew nothing of his internet communications with the victim, digital media have

become so ubiquitous in the 21st century that rarely will storage devices not be

“pertinent” in an investigation of the sexual assault of a child. As the Sentencing

Commission has observed, “In recent years, the number of still images and videos

memorializing the sexual assault and other sexual exploitation of children, many very

young in age, has grown exponentially as the result of changes in technology.” U.S.

Sentencing Comm’n, Federal Child Pornography Offenses 3 (2012), available at

http://www.ussc.gov/Legislative_and_

Public_Affairs/Congressional_Testimony _and_Reports/Sex_Offense_Topics/201212_Fed

eral_Child_Pornography_Offenses/Chapter_01.pdf. And it is common for sex offenders

to use computers to communicate with their victims online. Edward M. Marsico, Jr.,

Social Networking Websites: Are MySpace and Facebook the Fingerprints of the Twenty

‐ First

Century?

, 19 Widener L.J. 967, 967–69 (2010); Elizabeth P. Stedman, MySpace, but Whose

Responsibility?: Liability of Social

‐ Networking Websites When Offline Sexual Assault of

Minors Follows Online Interaction

, 14 Vill. Sports & Ent. L.J. 363, 364, 372–74 (2007); Kate

Knibbs, Sexual Assault in the Digital Age

, Mobiledia (July 17, 2012),

http://www.ramadan.com/mobil/sexual

‐ assault

‐ in

‐ the

‐ digital

‐ age.html. Further, the

form Anderson signed authorized police to seize “documents”; many documents are

now created and saved on computers, so the love letter the police found easily could

have been discovered as a saved e

‐ mail, online chat, or social

‐ networking post in a

browsing history. Accordingly, cameras and computers were objectively pertinent toNo. 13

‐ 1003 Page 6

the investigation of Anderson’s sexual assault of the 12

‐ year

‐ old, with or without prior

knowledge of actual online communications.

The scope of consent is measured objectively, without consideration of the

policeman’s private, subjective intent. United States v. White

, 706 F.2d 806, 808 (7th Cir.

1983); LaFave, supra

, § 8.1(c) at 23. For that reason, Anderson is incorrect in assuming

that it matters if the police all along meant to search for child pornography and thus

took his computers before seizing physical evidence of the sexual assault (such as the

bedding recovered later). Similarly irrelevant are Anderson’s abandoned assertions of

confusion and anxiety, as the perspective of a “typical reasonable person”—not a

person with (if it is to be credited) a panic disorder—is what matters. See Jimeno

, 500

U.S. at 251; United States v. Saucedo

, 688 F.3d 863, 866, 868 (7th Cir. 2012) (considering

what a “reasonable person would have understood” despite defendant’s assertion that

illness affected his ability to understand scope of consent).

AFFIRMED

.