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United States v. Conrad

September 24, 2008


The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge


Before the Court is Defendant David Conrad's motion to suppress all evidence gathered by law enforcement on December 20, 2002. (R. 96-1.) For the reasons below, the Court grants the motion in part.


On November 16, 2005, the Government filed an information against David Conrad. On January 23, 2007, a federal grand jury returned a Superseding Indictment ("Indictment") charging Defendant David Conrad with eight counts of possessing, transporting, advertising and distributing child pornography in violation of 18 U.S.C. §§ 22251(c)(1)(A), 2251(d), 2252A(a)(2)(A), 2252A(a)(1), 2252A(a)(5)(B), 2252A(b)(1), and 2252A(b)(2). (R. 32-1.) In particular, the Indictment alleges that on July 12 and 14 and October 24, 2002, Defendant Conrad advertised, received or distributed, transported, and possessed at least six video images containing child pornography. Law enforcement obtained some of the evidence supporting the Indictment on December 20, 2002 after entering the back deck of Roger Conrad's Geneva, Illinois residence, obtaining permission from Roger Conrad to enter the residence based on the agents' representations to Roger Conrad of their observations from the deck, interviewing David Conrad in the residence, and transporting David Conrad to his Chicago apartment after the initial interview.

Defendant Conrad has moved to suppress his statements to law enforcement on December 20, 2002, and any evidence obtained that day from his parents' residence in Geneva and from Defendant's Milwaukee Avenue apartment. On a motion to suppress "[e]videntiary hearings are not required as a matter of course; a district court need conduct a hearing only when the allegations and moving papers are sufficiently definite, specific, non-conjectural and detailed enough to conclude that a substantial claim is presented and that there are disputed issues of material fact which will affect the outcome of the motion." United States v. McGaughy, 485 F.3d 965, 969 (7th Cir. 2007), citing United States v. Villegas, 388 F.3d 317, 324 (7th Cir. 2004); see also United States v. Juarez, 454 F.3d 717, 720 (7th cir. 2006); United States v. Martin, 422 F.3d 597, 602-03 (7th Cir. 2005), cert. denied 546 U.S. 1156, 126 S.Ct. 1181, 163 L.Ed. 2d 1139 (2006).

In support of his motion, Defendant submitted his own affidavit swearing that the factual events set forth in the motion are true. (R. 96-8.) Because this affidavit and the Federal Bureau of Investigation ("FBI") 302 reports created factual disputes and because they raised a substantial claim, the Court conducted a suppression hearing in order to make evidentiary determinations. That hearing took place on July 28, 29, and 31, 2008. Following the suppression hearing, the parties submitted post-hearing briefs addressing specific issues raised by the Court and addressed in detail below. (R. 170-1, 171-1.) As a general matter, "the controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence." United States v. Gillespie, 974 F.2d 796, 800 (7th Cir. 1992).


The following witnesses testified at the suppression hearing: FBI Special Agent Scott McDonough, FBI Special Agent Tracie Keegan, FBI Special Agent Susan Beckerman, FBI Special Agent Kevin Ellis, Palos Heights Police Department Sergeant Chuck Hankus, Palos Heights Police Department Sergeant Michael Zalifia, former Kane County Investigator Alejandro Gomez, Roger Conrad, and Elizabeth Conrad.During the hearing, the Court had the opportunity to carefully evaluate the demeanor and credibility of each witness. Both the government and Defendant also introduced numerous documentary exhibits, including photographic exhibits of the Conrads' Geneva residence and deck area.

Defendant David Conrad submitted an affidavit to support his version of the events. His affidavit, however, was once sentence stating "I, David E. Conrad, hereby swear and affirm that all of the information contained inmy motion to suppress is true and accurate as I recall and understand it." Defendant Conrad did not testify, and thus his assertions were not subjected to cross examination. Nor did Defendant provide the Court with the opportunity to assess the demeanor of his assertions while testifying. Given the credibility of the law enforcement officers who testified about their interactions with Defendant in the Geneva, Illinois home, and in the car on the way to Defendant's Chicago apartment, the Court affords Defendant's affidavit substantially less weight than the testimony of Agent Keegan and Sergeant Zaglifa. See, e.g., Untied States v. Baker, 78 F.3d 1241, 1243 (7th Cir. 1996) ("Baker's Fourth Amendment claims rest on his version of the facts. The district court, however, determined after a suppression hearing that Baker's version was not credible. Instead, the court chose to credit [Officer] Brophy's view of what happened. That determination--to credit Brophy's version rather than Baker's--cannot be clearly erroneous."); United States v. Carlisle, No. 04-CR-055-C, 2004 WL 1085194, at *7 (W.D. Wis. May 7, 2004) ("[Defendant] claims that things were even worse than this, but I have accorded slight weight to his affidavit. First, although the affidavit is admissible in a suppression hearing, [Defendant] declined to subject his assertions to cross-examination or a demeanor check by taking the stand."); United States v. Frank, 8 F. Supp. 2d 284, 291 n.2 (S.D.N.Y. 1998) ("[s]ince Frank did not testify at the hearing, and was not subject to cross-examination, the Court was unable to form an opinion as to his credibility or the truthfulness of his allegations"). Similarly, Agent McDonough interacted extensively with Defendant at Defendant's apartment in Chicago, Illinois. The Court addresses the specifics below, but the Court affords Defendant's one sentence affidavit substantially less weight than Agent McDonough's credible testimony that is corroborated by documents and other testimony.

The Court makes the following factual findings based on the evidence presented at the suppression hearing, as well as the other evidence submitted during the briefing on the motion to suppress. Although the parties disputed many factual issues surrounding the events on December 20, the Court only addresses those necessary to resolve the pending motion to suppress.

I. Roger's Machinery

On December 18, 2002, the FBI obtained a valid search warrant for Roger's Machinery Sales shop ("Roger's Machinery"). The warrant was based on information collected by law enforcement, including undercover work by Sergeant Zaglifa, reflecting that someone using an Internet Protocol ("IP") address registered to Roger's Machinery had engaged in the distribution of child pornography. Two days later, on December 20, 2002, the FBI positioned a team of agents at Roger's Machinery and another team of agents at the Geneva, Illinois home of Roger Conrad, the owner of Roger's Machinery.The FBI executed the search warrant at Roger's Machinery in the early morning hours, but their search yielded no child pornography. Roger Conrad was on vacation at the time of the search, but employees provided the FBI with Roger Conrad's phone number where he could be reached. During the course of the search of Roger's Machinery, FBI Special Agent Scott McDonough telephoned Roger Conrad, but much of the substance of that conversation is disputed. It is beyond dispute that Agent McDonough asked Roger Conrad the whereabouts of Roger's son, Defendant David Conrad, and that Roger Conrad told the FBI that David Conrad was most likely at the family residence in Geneva. The Government contends that at the time the search of Roger's Machinery was executed, Roger Conrad's son, David Conrad--not Roger--was the primary suspect in the child pornography investigation.

II. Conrad Family Home in Geneva, Illinois

At the same time the FBI was searching Roger's Machinery, a team of law enforcement officials attempted to make contact with the occupants of Roger Conrad's family home in Geneva, Illinois (hereinafter "the Geneva Residence"). The evidence revealed that the agents called the telephone line in the Geneva Residence and knocked on the door multiple times, but no one answered. Specifically, commencing at approximately 7:00 am, law enforcement agents knocked on the door and rang the doorbell five separate times at 30 minute intervals. At approximately 9:00 am, Special Agent McDonough talked to Roger Conrad on the telephone. Special Agent McDonough informed Roger Conrad that FBI agents were at his Geneva Residence looking for his son, David Conrad. When Agent McDonough inquired about David Conrad being at the Geneva Residence, it is undisputed that Roger Conrad asked the agents to look in the driveway and see what cars were present. In response, the agents looked in the driveway and Agent McDonough communicated to Roger Conrad that a black Porsche was in the driveway. Roger Conrad then informed the agents that the black Porsche belonged to David Conrad and that he was at the Geneva Residence because his vehicle was there. At some point, Roger Conrad gave the agents David Conrad's cell phone number and the phone number to the Geneva Residence and told them to call. The agents were never able to reach David Conrad on the telephone. It is also undisputed that Roger Conrad did not give any law enforcement agents permission to go to the back of his Geneva residence or to enter the back deck at the Geneva Residence.

After receiving this information, the law enforcement agents--without permission--proceeded to the back of Roger Conrad's Geneva Residence. The home did not have a fence around it or any other obstruction around its perimeter. Further, there was no specific path or pathway leading from the front of the home to the back of the home. Sergeant Zaglifa testified that he walked to the back of the Geneva Residence where he found sliding glass doors that entered into the lower level of the home. He knocked on these doors and looked into them, but no one answered and he did not see anyone. Law enforcement officers then proceeded up a set of back stairs that led to a deck attached to the back of the Geneva Residence. The rear deck abutted the main living level of the home and was accessible from the stairs. The stairs had a railing about 39 to 40 inches high. The same railing enclosed the back deck. At the top of the back stairs, a gate separated the stairs from the deck. The gate contained a latch, but not a lock. The latch secured the gate.

The officers walked up the stairs, opened the gate, and entered the back deck without permission. They walked onto the deck and up to glass doors. The back glass doors opened directly onto the deck. The officers looked through the doors and the windows, but initially did not observe anyone. They looked directly into the main living area of the Geneva Residence, including the kitchen.

While on the back deck, it is undisputed that the officers subsequently observed David Conrad on the couch in the family room of the residence. They could not observe him from the back sliding glass doors. Instead, the evidence revealed that the officers saw him through a bay window of the Geneva Residence off to left of the sliding glass doors. The bay window is not directly over the deck--instead, the officers had to stand or lean on the railing of the deck to see into the window. The agents also observed an open pill bottle. The precise location of the pill bottle, however, is not relevant to this analysis because it is clear that the agents saw an open pill bottle somewhere in the general vicinity of where David Conrad was lying on the couch.

Agent McDonough then called Roger Conrad in Florida to relay what law enforcement had seen related to David Conrad. Although Roger Conrad and Agent McDonough tell very different versions of what was relayed during that conversation, the Court need not resolve this factual dispute. Agent McDonough admits that he mistakenly informed Roger that the pills were on the coffee table next to David Conrad. He also informed Roger Conrad that his son was on the couch, not moving, and they were concerned about him. Based on Agent McDonough's representations of what the agents had observed from looking into a window off the back deck of the Geneva Residence, Roger Conrad ultimately informed Agent McDonough where the family hid the spare key and granted agents permission to enter the residence to check on his son. The FBI obtained the hidden key and entered the Geneva Residence. Shortly after entering, the agents confirmed that David Conrad was in good health and simply sleeping on the couch.

Agent Keegan testified that the law enforcement officers immediately identified themselves to Defendant, and waited a couple of minutes for him to be fully alert. She credibly testified that David Conrad was fully alert and responsive when they questioned him. Once he was alert, Agent Keegan questioned Defendant about child pornography, and Defendant made inculpatory statements in response to the questioning. According to Agent Keegan's testimony, David Conrad made "a spontaneous statement--he says I think I have some child pornography on my laptop in the Porsche." When Agent Keegan told David Conrad that they would want to have that child pornography as well, David Conrad willingly went out to his Porsche and got it for her. Both Agent Keegan and Sergeant Zaglifa testified that Defendant then retrieved the laptop from his vehicle and willingly turned it over to law enforcement.

Defendant does not dispute this sequence of events but claims that he has only a hazy recollection of the minutes surrounding his being awakened by law enforcement. In his written submission that is verified through his affidavit, Defendant contends that his mental state was impaired due to the fact that he had only been asleep for a few hours and that he had taken prescription hydrocodone, a narcotic painkiller, prior to going to sleep. Defendant, through his one sentence affidavit averring that his motion is accurate, claims that he "simply does not remember what specific questions were asked immediately after he awoke." (R. 96-1, at 6.) He claims that he "did not acknowledge ever possessing child pornography." (Id.) Defendant also avers that he "remembers giving the agents a computer that was stored in his car." (Id.) The Court finds the testimony of the officers credible and rejects Defendant's one sentence adoption of these assertions in his motion.

Sergeant Zaglifa credibly testified--corroborated by Agent Keegan's testimony--that Defendant took Sergeant Zaglifa out to his Porsche, retrieved the laptop, and gave it to Sergeant Zaglifa. Defendant told the officers that he had an apartment in Chicago where he resided. Defendant told Sergeant Zaglifa that he had another computer at this Chicago apartment, but "the hard drive had gone bad or something on this particular computer that was at his apartment."

When Agent Keegan asked Defendant if he would take the them to his apartment, Defendant willingly agreed. Agent McDonough corroborated that Agent Keegan told him that day that Defendant had agreed to take the agents to his Chicago apartment. Agent Keegan told Defendant that he was not in custody, that he did not have to go to Chicago with them, and that he was "basically going voluntarily." She did not place him in handcuffs or restrain him. They departed the Geneva Residence approximately 15 minutes after they entered it on December 20, 2002. At no point did the law enforcement officers search the Geneva Residence.

Agent Keegan drove the vehicle with Sergeant Zaglifa in the passenger seat. Defendant sat in the back seat, in the middle of the seat. The drive from the Geneva Residence to Defendant's Chicago apartment took approximately one hour. During the drive, Defendant smoked a cigarette and used his own cellular phone to call his father. During their telephone conversation, Roger Conrad told his son not to talk to the officers. According to Sergeant Zaglifa's credible testimony, Defendant responded that "it's no problem." Defendant did not complain to his father during this conversation about his treatment or the agents' actions. During the ride downtown, Defendant did not ask to place any other calls, the officers did not restrict his ability to place any calls, and Defendant never asked for an attorney. It is undisputed that no one from law enforcement read Defendant his Miranda rights at any point while they were at the Geneva Residence or in the vehicle on the way to his Chicago apartment.

III. Chicago Apartment

At 10:50 am on December 20, 2002, Defendant escorted law enforcement into his apartment on North Milwaukee Avenue. Defendant fed his cat and cleaned the litter box. He also showed Sergeant Zaglifa some of his musical equipment for mixing music. Special Agent McDonough and Special Agent Beckerman met the other officers at the apartment. Even though Defendant was not in custody, Agent McDonough read Defendant his Miranda rights shortly after they entered the apartment, and before the agents began questioning him. The agents credibly testified that Defendant was alert and appeared to understand what they told him. Defendant signed the Miranda Advice of Rights form at approximately 11:10 am, acknowledging that he was aware of his rights and waiving them. (Gov. Ex. 4.) Both Agent McDonough and Sergeant Zaglifa witnessed Defendant signed the waiver. Defendant also signed a Consent to Search for his apartment. (Gov. Ex. 5.) Agent Keegan witnessed him sign his consent form, which specifically noted that Defendant had been advised of his right to refuse to consent and that he gave his permission voluntarily.

Both Agent McDonough and Sergeant Zaglifa interviewed Defendant at this apartment.

Defendant never asked to speak to an attorney while the officers were at his apartment*fn1.

While at the apartment, Defendant also signed a Consent to Search form, which specifically gave the FBI agents consent to search the following: a Compaq Presario Laptop, a Compaq Labtop, and a Buslink External Hard Drive. The serial number for each of these items was listed on the consent form. (Gov. Ex. 6.) Agent Keegan witnessed Defendant sign this Consent to Search Form. That form did not include a micron millennia computer, although Agent McDonough searched it and found child pornography on it. Agent McDonough testified that Defendant Conrad gave oral consent to search the micron millennia. Agent McDonough further testified that he did not prepare the Consent to Search form (Agent Keegan did), thus he did not include the micron millennia on that form.

During the questioning, Defendant David Conrad admitted to the agents that he had engaged in the possession and transmission of child pornography. Defendant told the agents that he had operated a file server for the last year in numerous channels on the Internet relay chat and that he had child pornography on his computer. He told the agents that he had recently moved all of the child pornography images and movies off of the laptop computer onto an external hard drive. He further identified the information discovered by Sergeant Zaglifa during his undercover investigation, including the print outs Sergeant Zaglifa made during his undercover investigation into child pornography. (See Minute Order, R. 168-1, for a detailed account of the undercover investigation.)

After questioning Defendant, the agents left his apartment with some of the computer equipment. They did not arrest Defendant David Conrad that day.


Defendant Conrad argues that the events of December 20 violated his Constitutional rights in three separate ways. First, Defendant argues that the law enforcement's entry into the Geneva Residence was a violation of his Fourth Amendment rights. Accordingly, Defendant asserts that the Court should suppress any evidence obtained as a result of the violation as fruit of the poisonous tree. Second, Defendant contends that his Fifth Amendment rights were violated because he was interrogated without having been given Miranda warnings. Finally, Defendant argues that the acts of law enforcement on December 20, 2002, amount to a coercive violation of his due process rights.

I. Law Enforcement Improperly Entered the Curtilage at the Geneva Residence

The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." U.S. Const. IV Amend. The Supreme Court has long recognized that the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." See Payton v. New York, 445 U.S. 573, 585 (1980).As such, "[i]t is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable." Id. (internal quotations and citations omitted). As the Supreme Court has stated: "the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Id. at 590. Furthermore, "[a] warrantless search does not violate the Fourth Amendment if a person possessing, or reasonably believed to possess, authority over ...

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