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United States v. Lemmons

February 27, 2002


Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 00-CR-14--David F. Hamilton, Judge.

Before Posner, Ripple, and Evans, Circuit Judges.

The opinion of the court was delivered by: Evans, Circuit Judge.

Argued November 2, 2001

Much like the "interactive process" required of employers and employees in cases involving reasonable accommodations under the ADA, a "consent" to search often involves a little bit of give-and-take between police and a person giving permission for a search. Unraveling what occurred during that exchange is the stuff of suppression hearings in the district court, and a judgment on what happened (and what consequences flow from what happened) is usually a very fact-intensive inquiry. So it is in this case.

This case comes to us after Shelby Lemmons pled guilty to charges of using a minor to engage in sexually explicit conduct for the purpose of producing a videotape in violation of 18 U.S.C. sec. 2251(a) (Count I) and, on the basis of three computer images, possessing computer files containing depictions of minors engaged in sexually explicit conduct in violation of 18 U.S.C. sec. 2252A(a)(5)(B) (Count II). Lemmons' guilty pleas were conditioned on his ability to air, on appeal, his claim that the district court erred in denying his motion to suppress.

Our case starts in a trailer park where Lemmons lived in a trailer assigned to "Space 66." The chain of events started when Lemmons' next-door neighbor, a woman living in trailer "Space 65," called the Bloomington (Indiana) police department to report seeing a camera lens on her trailer that should not have been there. It was pointed toward her bedroom. Jeff Canada, a Bloomington police officer, re sponded to the complaint and traced a cable wire attached to the intruding camera. It led straight to Lemmons' trailer.

Bloomington Detective Anthony Pope soon arrived on the scene. Pope knew Lemmons (Lemmons greeted Pope saying, "What's up, Tony?"), who on previous occasions cooperated with the Bloomington police by making controlled drug buys for them. Pope knocked on Lemmons' door and told him about his neighbor's complaint. Pope said he wanted to talk to Lemmons about the incident. Lemmons agreed and Pope and Canada came in, as did two officers who arrived earlier. Pope told Lemmons that he wanted to search the trailer to make sure that Lemmons didn't have any record ings of goings-on in his neighbor's bedroom. After a back-and-forth about whether Pope had a warrant (he didn't), Lemmons volunteered to get some recordings. He started to move toward his bedroom, but Pope stopped him and pulled out a consent-to-search form. While going over the form with Lemmons, Lemmons asked Pope if he could talk to him alone. Pope asked the other officers to leave. Lemmons then told Pope that there were things in his trailer that he did not want Pope to find. He mentioned that he had some marijuana. Pope said the police were not worried about that; they were there to investigate the camera and recordings. Lemmons also mentioned that he had a crack pipe. Pope then told Lemmons he would not "bargain things away" and that Lemmons needed to decide whether to consent to a search. Lemmons then signed the form after Pope read its contents to him. Pope also read Miranda warnings to Lemmons.

According to Pope, Lemmons handed him some pictures, saying, "You're going to want to see these too, but they're legal." Pope described the pictures as being of a female in her late teens; in some of the pictures she was partially nude. He thought the pictures were sexually provocative. Lemmons also pointed out some videotapes. Canada went to review the tapes on Lemmons' VCR.

Pope next searched a front room in the trailer that resembled an office. There, Lemmons pointed out some Polaroids. One of them, Lemmons said, was a picture of his 17-year-old daughter. According to Pope, the girl in the picture was wearing a shirt and underwear and was in a "here I am" type pose. Pope pointed to a computer in the room and asked Lemmons if there was anything on it that Pope needed to be aware of. According to the district court findings, Lemmons told Pope that he could look if he wanted and turned on the computer for Pope. When the computer came on, Pope recognized a program involving photographs. He pulled up the program and turned it on.

Using it, he found on the hard drive images containing child pornography. He estimated that there were over 100 images, with the subjects ranging in age from 5 to their late teens. Standing either beside or a few feet behind Pope as he reviewed the images, Lemmons said, "It's not what you think." He claimed that the images had been sent to him by other people.

Pope had another officer drive Lemmons to the police station. Canada told Pope that the tapes he reviewed included a female about 5 years old in a bathtub. Another video contained a female in her teens engaging in sexual conduct with Lemmons.

An hour or so later, Pope interviewed Lemmons at the police station. Lemmons admitted taping his neighbor's bedroom window. He also claimed that the 5-year-old on the tape was his granddaughter and that he had taped her.

He acknowledged the videotape of the other teenager with him and admitted that he was responsible for the computer images, which he had traded with other people over the Internet. Lemmons was not arrested after all this talk-- Pope simply drove him back to the trailer park and dropped him off.

Pope contacted Special Agent Robert Molina of the FBI and informed him of what he had found. Molina believed the material fit the definition of child pornography under federal law. The next day Molina accompanied Pope back to Lemmons' trailer, where they obtained more admissions involving Lemmons' use of the Internet and the mail to trade child pornography. Lemmons ...

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