United States v. Jacob Lickers (7th Cir. June 2019)

Fourth Amendment/Search Warrants – Federal search warrant and affidavit based on defective state warrant and affidavit shared same fatal flaw and were therefore invalid, except that the federal agents applying for the warrant based on the state warrant acted in good faith in relying on the state warrant, so the defendant’s motion to suppress was properly denied.

The defendant was convicted and sentenced for possession of child pornography after law enforcement officers approached and found him in parked car at a public park, engaged in indecent sexual conduct while looking at his phone and laptop and the children at the playground. The officers subsequently arrested him for possession of marijuana and, based on his nervous behavior and partial nudity, the officers seized his phone, camera, and laptop and sought a warrant to search them.

The state of Illinois charged him with drug and child pornography possession, but the charges were dismissed after a state court granted the defendant’s motion to suppress, finding that the officers lacked justification to remove the defendant from his automobile or detain him while awaiting a K-9 unit.

The FBI then took up the case, seeking a warrant to search the phone and laptop and charging the defendant with federal possession of child pornography. This time, the trial court denied the defendant’s motion to suppress, finding that the officers’ approach and conversation with the defendant had been a consensual encounter and that the defendant’s nervous behavior justified prolonging what became a justified seizure. Considering the search warrants, which were based on the state court warrant and affidavit and the evidence found while executing that warrant, the district court acknowledged the Government did not have the “strongest case,” but found sufficient probable cause.

On appeal, the Court affirmed. First, the Court held that the defendant’s “odd behavior” included what looked like “tweaking,” giving the officer’s cause to approach his car and “figure out what was going on.” The request for the defendant’s license was part of a consensual encounter, the Court continued, and once officers saw the defendant’s hands under a towel draped over his lap, they were justified in asking him to show his hands. His partial nudity then justified the officer’s removing him from the car, during which they smelled the marijuana.

As to the search warrant, the Court noted that the defendant presented an issue of first impression—the federal agents had sought and obtained a warrant “by relying on facts supplied in, and evidence derived from, a prior state court warrant that, in our independent assessment, lacked probable cause. The Court indicated it would have been inclined to find such a warrant unlawful, but noted that, “in an effort to save the federal search,” the Government invoked the “good faith exception” from United States v. Leon.

The Court agreed with the defendant that “any probable cause deficiency with the state search warrant would, as a matter of law and logic on these facts, heavily inform any conclusion we reach about the sufficiency of probable cause in the federal warrant application.” Looking at either the state affidavit alone or the FBI affidavit minus the reference to the unlawfully searched pornography, both the state and federal warrants lacked probable cause. The state affidavit, for example, only made conclusory assumptions about what the defendant was doing at the park without tying his actions to an officer’s training or reasonable suspicions.

Nonetheless, the federal agent who obtained and executed the federal warrant acted in good faith, though the parties approached the “good faith inquiry by focusing exclusively on the conduct of the state law enforcement officers.” The Court held that the focus should have been on the federal agents, who had no reason to question the integrity of the state proceedings, though the Court acknowledged that the result may have been different if the record reflected that the FBI had more knowledge about the state court proceedings. And importantly, the Court added, the FBI is not barred from seeking a federal warrant just because a state court finds that a state warrant based on the same evidence lacks probable cause.

Appeal from the Central District of Illinois

Opinion by Scudder, joined by Wood and St. Eve

Click here to read the opinion.


Tom Church

Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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