US v. D'Andrea

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Kermit V. Lipez, Appellate Judge and William E. Smith, U.S. District Judge. Published. [08-2455]

Case: 08-2455 Document: 00116206822 Page: 1

Date Filed: 05/10/2011

Entry ID: 5549458

United States Court of Appeals
For the First Circuit
Nos. 08-2455, 09-1018
UNITED STATES OF AMERICA,
Appellee,
v.
KENDRA D'ANDREA and WILLIE JORDAN,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Torruella and Lipez, Circuit Judges,
and Smith,* District Judge.
Judith H. Mizner, with whom Behzad Mirhashem and Federal
Defender Office, District of Massachusetts were on brief, for
appellant Kendra D'Andrea.
Terrance J. McCarthy for appellant Willie Jordan.
J. Cam Barker, Criminal Division, Appellate Section, with whom
Carmen M. Ortiz, United States Attorney, Lanny A. Breuer, Assistant
Attorney General, Criminal Division, and Greg D. Andres, Deputy
Assistant Attorney General, Criminal Division, were on brief, for
appellee.

May 10, 2011

*

Of the District of Rhode Island, sitting by designation.

Case: 08-2455 Document: 00116206822 Page: 2

SMITH, District Judge.

Date Filed: 05/10/2011

Entry ID: 5549458

Defendants-appellants Kendra

D'Andrea and Willie Jordan separately appeal their convictions
following conditional guilty pleas.

For the reasons set forth

below, we hold that the district court erred in denying defendants'
motions to suppress without an evidentiary hearing, vacate the
judgments, and remand for an evidentiary hearing on the suppression
motions.
I.

The Facts
The following facts are essentially undisputed except as

otherwise indicated.

At around 6:30 p.m. on December 2, 2004, a

woman (the "Tipster") called the Judge Baker child abuse hotline of
the Massachusetts Department of Social Services ("DSS").1

She said

she resided in California and had a child with defendant Willie
Jordan, but requested to remain anonymous.2 The Tipster identified
defendants Kendra D'Andrea and Willie Jordan as partners, provided
D'Andrea's residential address,3 and identified Jordan's employer
of the past two months, a trucking company based in Missouri, by
name.

She informed DSS that she had received a message on her

mobile

phone

containing

photographs

of

D'Andrea

and

Jordan

performing sexual acts on D'Andrea's eight-year-old daughter (the
1

DSS is now called the Department of Children and Families.

2

Her identity is now known to the parties.

3
There is a factual dispute as to whether the Tipster
actually provided D'Andrea's address. This is discussed below in
Part II(B).

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Case: 08-2455 Document: 00116206822 Page: 3

"victim")

and

of

the

victim

Date Filed: 05/10/2011

with

her

Entry ID: 5549458

genitalia

exposed.

(Apparently D'Andrea had intended to send the text message to
Jordan but had sent it to the Tipster by mistake.)

The Tipster

said the pictures could be accessed by going to www.sprintpcs.com
and entering a certain phone number and pass codes, which she
provided to the DSS intake agent.4
Shortly after receiving the anonymous call, DSS agents
reported it to the Gloucester, Massachusetts Police Department to
alert them to this possible case of child abuse.

After several

unsuccessful attempts at accessing the website and at least one
other telephone conversation with the Tipster, DSS agents were able
to access the website, where they found numerous pornographic
pictures of the victim consistent with the Tipster's report. A DSS
agent printed out more than 30 of these photographs and took them
to the Gloucester Police Department.

Three telephone numbers, two

of which appeared to be alternate numbers for the same person
(Jordan), and some text messages also appeared on the website along
with the pictures.

In some of the text messages, the person

associated with one of the phone numbers, later revealed to be

4

At the time, Sprint enabled its mobile telephone subscribers
to store pictures and videos taken with their mobile phones on
password-protected online accounts at www.sprintpcs.com.
These
pictures and videos were accessible only to those who had the
appropriate username and password for the account.
(It also
appears that there were codes associated with particular pictures.)
The account at issue in this case was a password-protected online
account of this nature under Jordan's name and used by Jordan and
D'Andrea.
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Jordan, asks for more pornographic pictures of the victim to be
sent by the person with one of the other phone numbers, later
revealed to be D'Andrea.
After

viewing

the

pictures,

a

detective

with

the

Gloucester Police Department applied for a warrant to search
D'Andrea's residence for files that may contain evidence of child
abuse and child pornography. The warrant affidavit stated that the
Tipster

had

told

DSS

that

the

child

abuse

was

occurring

at

D'Andrea's residence in Gloucester at an address she provided, and
that a Registry of Motor Vehicles check had indicated that D'Andrea
had a revoked Massachusetts license with the same address as that
provided by the Tipster.

The warrant was signed at midnight and

the search commenced ten minutes later.

The searching officers

found D'Andrea and her two little children, one of whom was the
victim, at the residence.5

They seized, among other things, a

mobile camera phone containing pornographic pictures of the victim,
one of them showing her with her genitals exposed and the other
showing Jordan performing oral sex on her.6

D'Andrea was taken

into custody and admitted that both she and Jordan had sexually
abused

the

victim.

She

also

admitted

that

she

would

take

5

There are indications in the record that the other child, a
three-year-old, may also have been sexually abused, but defendants
were indicted only for the victim's abuse.
6
It is not clear from the record whether the pornographic
pictures found on D'Andrea's phone were identical to any of the
pictures on the website.

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Entry ID: 5549458

pornographic pictures of the victim with her mobile phone, send
them to Jordan's mobile phone, and upload them on the Sprint
website

so

that

Jordan

could

view

them.

The

authorities

subsequently obtained an arrest warrant for Jordan and arrested him
in Michigan.
When the police knocked on D'Andrea's door on the morning
of December 3, she called Jordan, whereupon Jordan contacted Sprint
and deleted the account.

Therefore, the copies printed by the DSS

agent appear to be the only surviving copies of the images on the
Sprint website.
After being indicted, defendants moved to suppress the
images, the evidence seized from D'Andrea's home (including the
camera phone), and D'Andrea's incriminating statements on the
grounds that all of it was obtained in violation of their Fourth
Amendment right to be free from unreasonable searches and seizures.
The

district

court

evidentiary hearing.

denied

the

motions

without

holding

an

It also denied defendants' motion for a

Franks hearing to challenge the veracity of the warrant affidavit.
Defendants then entered conditional pleas of guilty to sexual
exploitation of a child and conspiracy to sexually exploit a child,
reserving their right to appeal the denial of the motions to
suppress and the motion to hold a Franks hearing.

The district

court sentenced Jordan to 30 years in prison and restitution in the

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amount

of

$67,600,

and

D'Andrea

Date Filed: 05/10/2011

to

27

years

in

Entry ID: 5549458

prison

and

restitution in the amount of $67,600.7
Defendants separately appeal their convictions, raising
five issues:

Whether the district court erred in (1) denying

defendants' motions to suppress without holding an evidentiary
hearing, (2) denying the requests for a Franks hearing without
holding an evidentiary hearing, (3) imposing an unreasonably high
prison sentence, (4) denying Jordan's request to be present and
allocute at the restitution hearing, and (5) failing to hold an
evidentiary

hearing

to

determine

the

appropriate

amount

of

restitution.
II.

Analysis
A.

The Motions to Suppress

Defendants' first claim of error targets the district court's
denial of the motions to suppress without conducting an evidentiary
hearing. A criminal defendant does not have a presumptive right to
an evidentiary hearing on a motion to suppress.

United States v.

Brown, 621 F.3d 48, 57 (1st Cir. 2010) (citing United States v.
Panitz, 907 F.2d 1267, 1273 (1st Cir. 1990)).

"A hearing is

required only if the movant makes a sufficient threshold showing

7
The government's brief and some of the district court docket
entries reference the amount of restitution imposed on D'Andrea as
$148,200. This appears to be a clerical error, as the orders of
restitution for both D'Andrea and Jordan state that an equal amount
of restitution will be imposed on the two, and Jordan's restitution
order makes clear that the amount of loss for purposes of
restitution is $135,200. (Jordan Add., Restitution Order at 2.)

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that material facts are in doubt or dispute, and that such facts
cannot

reliably

importantly,

be

the

resolved

defendant

on

a

must

paper

show

record.

that

.

there

.

are

.

Most

factual

disputes which, if resolved in his favor, would entitle him to the
requested relief."

United States v. Staula, 80 F.3d 596, 603 (1st

Cir. 1996) (citations omitted).
A district court's denial of an evidentiary hearing is
reviewed for abuse of discretion.

Id.; United States v. Lewis, 40

F.3d 1325, 1332 (1st Cir. 1994).

In considering the denial of the

motions to suppress, the district court's factual findings are
reviewed for clear error and its legal conclusions, including
ultimate

constitutional

determinations,

are

reviewed

de

novo.

Lewis, 40 F.3d at 1332-33 (citing United States v. Zapata, 18 F.3d
971, 975 (1st Cir. 1994)).
A search within the meaning of the Fourth Amendment
"occurs when the government violates a subjective expectation of
privacy that society recognizes as reasonable."
States,

533

U.S.

27,

33

(2001).

A

Kyllo v. United

warrantless

search

is

unreasonable unless one of the recognized exceptions to the warrant
requirement applies.
U.S. 443, 468 (1971).

See, e.g., Coolidge v. New Hampshire, 403
The exclusionary rule, where applicable,

requires suppression of evidence obtained in violation of the
Fourth Amendment.

Herring v. United States, 129 S. Ct. 695, 699

(2009).

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Entry ID: 5549458

The focus of defendants' appeal of the denial of the
motions to suppress is the DSS agent's accessing the Sprint PCS
website and downloading and printing the pictures uploaded there.
Because the Tipster was a private actor, her unauthorized viewing
of the website did not implicate the Fourth Amendment.
States v. Jacobsen, 466 U.S. 109, 113 (1984).8

See United

Nor did the police

search of D'Andrea's residence, on its own, violate the Fourth
Amendment, because it was carried out pursuant to a warrant.
the

DSS

agent's

accessing

the

website

violated

the

If

Fourth

Amendment, however, evidence obtained during the ensuing police
search of the D'Andrea residence may be inadmissible because it was
"tainted"

by

the

poisonous tree."

earlier

violation

and

became

"fruit

of

the

See Wong Sun v. United States, 371 U.S. 471, 484-

88 (1963).9
8

D'Andrea suggests that the Tipster's initial viewing of the
online account was not a private act but a "joint endeavor" carried
out with government support. The record belies this claim. The
Tipster had accessed the account and viewed the incriminating
pictures, which she subsequently described in detail to DSS agents
who had not yet seen them, before she called DSS and without the
participation or even knowledge of governmental authorities. See
infra at 17 (citing First Circuit decisions discussing the factors
to be considered in distinguishing private and government action
for Fourth Amendment purposes).
9

If the DSS agent's accessing the website violated the Fourth
Amendment, it does not necessarily follow that evidence from the
police search of the D'Andrea residence is "tainted" and
inadmissible.
Rather, the question is "whether, granting
establishment of the primary illegality, the evidence to which
instant objection is made has been come at by exploitation of that
illegality or instead by means sufficiently distinguishable to be
purged of the primary taint." Wong Sun, 371 U.S. at 488. We have
no occasion here, nor enough facts, to address the fruit of the
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There can be no serious debate, and the government does
not dispute, that defendants had a subjective expectation of
privacy in their password-protected online account and that this
expectation of privacy was, at least initially, reasonable. Nor is
there any question that the DSS agent's unauthorized accessing of
the

website

constituted

a

warrantless

search.

The

question

presented is whether the warrantless search was nonetheless valid
because an exception to the warrant requirement applied or there
were circumstances defeating the reasonableness of defendants'
expectation of privacy.

The government presses three theories:

(1) the private search doctrine; (2) emergency intervention; and
(3) inevitable discovery.
1.

The Private Search Doctrine

The district court held that the search was reasonable.
Its reasoning is central to this appeal, and deserves to be set
forth at length (Order at 9-10):
Defendants make no argument – nor could
one credibly be made – that the anonymous
caller was acting as an agent of the
State . . . . The argument rather is that the
DSS administrator (Curley) who accessed the
website and downloaded the images of the abuse
violated defendants' Fourth Amendment rights.
This argument fails for the simple reason that
poisonous tree issue.
If, after an evidentiary hearing, the
district court determines that the DSS violated the Fourth
Amendment in accessing the website, it would need to inquire
whether the subsequent evidence obtained from the search of the
house and mobile phone and D'Andrea's confession should be
suppressed as fruits of a poisonous tree, or whether the taint had
been dissipated in the interim.
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Entry ID: 5549458

Curley intruded no further into defendants'
zone of privacy than did the anonymous caller.
Where a private party, acting on his or her
own, searches a closed container, a subsequent
warrantless search of the same container by
government officials does not further burden
the owner's already frustrated expectation of
privacy.
United States v. Jacobsen, 466 US
109, 117 (1984). . . . Moreover, where an
expectation of privacy in an item has been
effectively destroyed by a private search,
police do not violate the Fourth Amendment by
examining the same item more thoroughly or
with greater intensity so long as they do not
'significantly expand' upon or 'change the
nature'
of
the
underlying
private
search . . . .
At day's end, this case falls clearly
into
the
'assumption
of
the
risk'
exception . . . . 'It is well-settled that
when an individual reveals private information
to another, he assumes the risk that his
confidant will reveal that information to the
authorities, and if that occurs the Fourth
Amendment does not prohibit governmental use
of that information.' Jacobsen, 466 U.S. at
117. . . . Thus, even granting defendants a
reasonable expectation of privacy in the
graphic website images of Jane Doe, by sharing
the website access information with the
anonymous caller, defendants took the risk
that their right to privacy in the website's
contents could be compromised.
The district court was correct in identifying Jacobsen as
the key case governing this area of Fourth Amendment law, where a
government search follows on the heels of a private search.

In

Jacobsen, FedEx employees opened an accidentally damaged package to
examine

its

contents

insurance claims.

pursuant

to

466 U.S. at 111.

a

company

policy

regarding

They found a suspicious white

powdery substance inside, put the substance back into the container

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(but did not re-seal it), and summoned DEA agents.

Id.

Entry ID: 5549458

DEA agents

came, took the substance out of the box again, and removed a trace
of it for a field test, which revealed that it was cocaine.

Id. at

111-12.
One of the issues presented was whether the DEA agents'
reopening of the box and removal of the substance violated the
defendant's Fourth Amendment rights.

As in this case, in Jacobsen

the initial private search did not implicate the Fourth Amendment
because it was conducted by a private party.

Id. at 113.

The

question was whether the DEA agents' seizure of the drugs, which
followed on the heels of the private search, violated the Fourth
Amendment.
Id.

at

The Court, per Justice Stevens, held that it did not.

120-21.

It

ruled

that

the

"additional

invasions

of

respondents' privacy by the Government agent must be tested by the
degree to which they exceeded the scope of the private search."
Id. at 115.

Because the DEA agent's seizure did not exceed the

scope of the initial FedEx employees' search, held the Court, the
"agent's viewing of what a private party had freely made available
for his inspection did not violate the Fourth Amendment."

Id. at

119-20.
In applying the Jacobsen private search doctrine to this
case, we must keep in mind several principles.
clear

that

just

because

a

private

party

To begin, it is

violates

a

person's

expectation of privacy does not mean that the expectation of

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privacy no longer exists or is not reasonable.

See Walter v.

United

(Stevens,

States,

447

U.S.

649,

658

n.12

(1980)

J.)

(rejecting the argument that petitioners' expectation of privacy
was "undone" by a private search, because "it is difficult to
understand how petitioners' subjective expectation of privacy could
have been altered in any way by subsequent events of which they
were obviously unaware"); see also Jacobsen, 466 U.S. at 132
(White,

J.,

concurring)

("As

Justice

Stevens

has

previously

observed, . . . a person's expectation of privacy cannot be altered
by subsequent events of which he was unaware." (citing Walter, 447
U.S. at 659 n.12)).

Rather, the Court in Jacobsen was careful to

point out that its private search "standard follows from the
analysis applicable when private parties reveal other kinds of
private information to the authorities.

It is well settled that

when an individual reveals private information to another, he
assumes the risk that his confidant will reveal that information to
the authorities, and if that occurs the Fourth Amendment does not
prohibit governmental use of that information."

Id. at 117.

In this case, the assumption of the risk, if any, goes to
how the Tipster obtained the account access information.

On this

score, contrary to the district court's finding, there is no
evidence in the record that defendants "shar[ed] the website access
information with the anonymous caller."

(Order at 10.)

Quite the

opposite, both defendants affirmed in sworn affidavits that they

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did not share the password with anyone.

Entry ID: 5549458

Moreover, in a February

2007 interview, the Tipster told an investigator for the Federal
Public Defender Office that she pieced together the password by
surreptitiously taking scraps of paper on which Jordan had jotted
down various letters and numbers.
district

court's

factual

finding

Therefore, on this record, the
that

defendants

shared

the

password with the Tipster was clearly erroneous.
It is possible that an evidentiary hearing would unearth
facts to support a finding of assumption of the risk--for example,
if Jordan or D'Andrea were so careless with the password that one
of them assumed the risk of its disclosure.

Further, it is

mentioned on one of the DSS information sheets that "[t]he pictures
had been forwarded to the site and various responders with webnames had written to many pictures with comments of a highly
sexualized nature."

(D'Andrea Sealed App. 3.)

This arguably

implies that defendants had shared the site with others.

If,

however, as D'Andrea and Jordan have sworn, they never shared the
password with anyone and reasonably believed no one else could get
into the account, assumption of the risk would not be present.

In

sum, an evidentiary hearing is needed to explore whether the
circumstances under which the Tipster obtained the account access
information evince that defendants assumed the risk that the
security of their account would be compromised.10
10
Other circuit courts of appeals applying Jacobsen have
considered circumstances evincing an assumption of the risk. See

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Secondly, because the record does not provide meaningful
details on the searches of the website by the Tipster and the DSS,
we do not have enough evidence to determine whether the DSS search
of the website exceeded the scope of the Tipster's search.

This is

important, because under Jacobsen the "additional invasions of
respondents' privacy by the Government agent must be tested by the
degree to which they exceeded the scope of the private search."
466 U.S. at 115.

Thus, the evidentiary hearing should explore

whether DSS obtained any of the pictures by exceeding the scope of
the Tipster's search.

To the extent it did, those pictures are not

admissible under the private search doctrine.11
United States v. Grimes, 244 F.3d 375, 383 (5th Cir. 2001)
(defendant's wife entrusted his computer to a computer repairman,
who searched the computer's hard drive to delete unnecessary files
pursuant to her permission and "following standard company
practice"); United States v. Mithun, 933 F.2d 631, 634 n.3 (8th
Cir. 1991) (noting that by leaving firearm accessories in
"relatively plain view" in a vehicle which he turned over to hotel
valets for parking, defendant "assumed the risk that hotel
employees would discover the contraband and reveal that information
to the authorities"); United States v. Boyer, 914 F.2d 144, 146
(8th Cir. 1990) (defendant entrusted suspicious package to FedEx,
whose employees opened it before resealing it and turning it over
to DEA agents); United States v. Paige, 136 F.3d 1012, 1020 (5th
Cir. 1998) ("[C]onsideration must be given to whether the
activities of the home's occupants or the circumstances within the
home at the time of the private search created a risk of intrusion
by the private party that was reasonably foreseeable.").
11
This does not mean that if the government search exceeded
the private search in certain respects, the evidence is
inadmissible even to the extent which the government search did not
exceed the scope of the private search. To hold so would amount to
punishing lawful conduct (searching within the scope) to deter
unlawful conduct (searching outside the scope).
The unlawful
conduct is sufficiently deterred by excluding the evidence flowing
from it. Moreover, it would be practically unworkable for the DSS

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Finally, the Court in Jacobsen pointed out that when the
federal agent arrived to inspect the package, "there was a virtual
certainty that nothing else of significance [except for the white
powder to which the FedEx employees had alerted him] was in the
package and that a manual inspection of the tube and its contents
would not tell him anything more than he already had been told."
466 U.S. at 118-19.

By requiring that the government expect its

search to reveal "nothing else of significance" other than the
evidence to which they were tipped off by the private party, the
Court was emphasizing that an antecedent private search does not
amount to a free pass for the government to rummage through a
person's effects.

The same principle is expressed in the Supreme

Court's jurisprudence in the context of the plain view doctrine.
See Coolidge, 403 U.S. at 466 ("[T]he 'plain view' doctrine may not
be used to extend a general exploratory search from one object to
another until something incriminating at last emerges."); accord
Arizona v. Hicks, 480 U.S. 321, 328 (1987).

To comply with this

limitation, the evidentiary hearing should explore whether, in
accessing the website, the DSS agents were virtually certain that
it contained nothing of significance except for the pictures of

agent to avert his eyes from everything else on the website and see
only the pictures that the Tipster saw.
Therefore, if the
government search exceeded the scope of the Tipster's search, only
that part of the evidence that was obtained by exceeding the scope
of the private search falls outside the purview of the Jacobsen
doctrine and is inadmissible.
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child pornography, or whether they also expected to discover
something else.
The district court also failed to explore an important
threshold issue. Namely, even though the facts make clear that the
Tipster's initial hacking into the website before she called the
authorities was a private search (see supra note 8), it is not
clear whether the Tipster had to hack into the website a second
time,

possibly

with

the

aid

of

the

authorities,

successfully directed them to the website.

before

she

Specifically, some of

the DSS call sheets suggest that DSS was unable to access the
website after the Tipster's initial call, and possibly even after
a second call.

(See D'Andrea Sealed App. 2.)

This raises the

possibility that the Tipster did not have the correct password when
she called the authorities.12

If that is indeed the case, the

record is unclear as to whether the Tipster re-hacked the website
and, if so, whether the authorities actively assisted her in this
second attempt.
This issue is important because a search carried out by
a private party in conjunction with government efforts may no
longer

qualify

Amendment.

as

a

private

search

immune

from

the

Fourth

See United States v. Momoh, 427 F.3d 137, 140-41 (1st

12

Of course, this is merely a possibility and by no means the
only inference to be drawn from the opaque record. It may be, for
example, that the Tipster provided all the correct information, and
the initial failure to access the website resulted from a mistake
on DSS's part, in which case no additional Fourth Amendment issue
arises.
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Cir. 2005) (enumerating the following factors as relevant in
distinguishing private and government action for Fourth Amendment
purposes: "the extent of the government's role in instigating or
participating in the search, its intent and the degree of control
it exercises over the search and the private party, and the extent
to which the private party aims primarily to help the government or
to serve its own interests" (quoting United States v. Pervaz, 118
F.3d 1, 6 (1st Cir. 1997))); United States v. Silva, 554 F.3d 13,
18 (1st Cir. 2009) (restating the aforementioned factors but noting
that "[w]e will not find state action simply because the government
has a stake in the outcome of a search").

Accordingly, on remand,

the district court should explore whether the Tipster had to rehack the website before she could give DSS the correct password;
whether the DSS or other authorities were involved in the rehacking; and whether, under the factors enunciated in Pervaz and
its progeny, the re-hacking amounted to a government search and not
a private search.
If the district court finds that there was a second
hacking and that it amounted to a government search rather than a
private

search,

then

it

should

inquire

whether

the

gap

in

surveillance of the website restored defendants' expectation of
privacy in its contents.

See Illinois v. Andreas, 463 U.S. 765,

773 (1983) (holding that an expectation of privacy in the contents
of a container, even if lawfully frustrated, may be regained by a

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gap in surveillance; provided only, however, that "there is a
substantial likelihood that the contents of the container have been
changed during the gap in surveillance").
2.
A

Exigent Circumstances
warrantless

search

unreasonable

under

ordinary

circumstances may be reasonable if undertaken under certain exigent
circumstances, for example "to render emergency assistance to an
injured occupant or to protect an occupant from imminent injury."
Brigham City v. Stuart, 547 U.S. 398, 403 (2006).

The district

court mentioned in a footnote that this emergency intervention
exception "provides a sufficient alternative basis on which to
uphold the search of D'Andrea's apartment."

(Order at 10 n.18.)

The district court's application of the emergency aid
exception is somewhat cursory, no doubt because the Court relied
primarily on Jacobsen.

Because we have negated that holding, we

consider whether, on this record, exigent circumstances justify the
warrantless search by DSS.

We agree with the district court that

"powerful evidence" of child abuse was received by DSS.

But the

record does not indicate that abuse was then ongoing or that
further abuse was imminent.

Nor does it explain how the Tipster--

who told DSS she resided in California and never claimed to have
been present at the time of the abuse or to have known about it
when it was going on--could have known whether further abuse was

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Date Filed: 05/10/2011

imminent at the time she called DSS.13

Entry ID: 5549458

On the present record, it

is not possible to know whether there was anything in the text
message she received, dated several days before the call to DSS,
that alerted her to the possibility of imminent abuse.

Nor do we

know from the record what, if anything, she told DSS regarding
imminent abuse.
Moreover, we cannot say with certainty, based on the
record as it currently stands, that the Tipster's uncorroborated
call provided probable cause that a crime was committed.

See,

e.g., Florida v. J.L., 529 U.S. 266, 271-72 (2000) (holding that an
anonymous telephone tip that a young black male wearing a plaid
shirt and standing at a particular bus stop was carrying a gun was,
without more, insufficient to establish reasonable suspicion for a
Terry stop and frisk (let alone probable cause) when the police
found the described person with the described clothing at the bus
stop).

This is significant because exigent circumstances is an

exception to the warrant, not the probable cause, requirement. See
Brigham City, 547 U.S. at 403 (describing exigent circumstances as
an exception to the warrant requirement); see also United States v.
Wilson, 36 F.3d 205, 208 (1st Cir. 1994) ("To cross the apartment's
threshold, [the officer] needed (1) probable cause to believe that

13

The government concedes that an objectively reasonable
belief in the imminence of the harm is a requirement for the
emergency intervention exception.
(Brief at 22 (citing
authorities)); see, e.g., Brigham City, 547 U.S. at 403 (referring
to "imminent injury").
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Entry ID: 5549458

contraband or evidence would be found inside, and (2) exigent
circumstances justifying an exception to the warrant requirement,
allowing

him

to

enter

without

first

obtaining

a

warrant.")

(emphases added); United States v. Martins, 413 F.3d 139, 147 (1st
Cir.

2005)

("To

rely

upon

the

[emergency

aid]

doctrine,

the

government must show a reasonable basis, approximating probable
cause, both for the officers' belief that an emergency exists and
for linking the perceived emergency with the area or place into
which they propose to intrude.") (emphasis added).

The sum of all

this is that the district court's reliance, in the alternative, on
exigent circumstances is not supportable on the current state of
the record.

An evidentiary hearing is needed to flesh out the

facts to determine whether the Tipster's tip provided probable
cause and whether the authorities had an objectively reasonable
belief in the imminence of harm.14
3.

Inevitable Discovery

The

government

argues

that

even

if

the

DSS

search

violated the Fourth Amendment, the evidence is admissible under the
inevitable

discovery

doctrine.

This

doctrine

provides

that

evidence obtained by violating the Fourth Amendment is nevertheless

14

The evidentiary hearing may also explore another exigency
that was not addressed by the district court or in the parties'
briefs on appeal (though it was addressed at oral argument)-namely, whether the DSS agents responding to the call were
justified in accessing the Sprint account out of concern that the
pictures evidencing the abuse might be destroyed.
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Date Filed: 05/10/2011

Entry ID: 5549458

admissible "[i]f the prosecution can establish by a preponderance
of the evidence that the information ultimately or inevitably would
have been discovered by lawful means."

Nix v. Williams, 467 U.S.

431, 444 (1984). We have identified "three basic concerns" to keep
in mind in deciding whether to apply the inevitable discovery
doctrine: "are the legal means truly independent; are both the use
of

the

legal

means

and

the

discovery

by

that

means

truly

inevitable; and does the application of the inevitable discovery
exception either provide an incentive for police misconduct or
significantly weaken fourth amendment protection?"
v. Silvestri, 787 F.2d 736, 744 (1st Cir. 1986).

United States

In this Circuit,

there is no requirement that the independent line of investigation
that would have led to the inevitable discovery be already underway
at the time of the illegal discovery.

Id. at 746; United States v.

Ford, 22 F.3d 374, 377 (1st Cir. 1994).15 Rather, the analysis must
"focus on the questions of independence and inevitability and
remain flexible enough to handle the many different fact patterns
which will be presented."

Silvestri, 787 F.2d at 746.

15

Other circuits are divided over whether to impose this
requirement.
Compare
United States v. Cherry, 759 F.2d 1196,
1205-06 (5th Cir. 1985), and United States v. Satterfield, 743 F.2d
827, 846 (11th Cir. 1984) (both holding that, for inevitable
discovery to apply, an independent line of investigation must have
been underway at the time the evidence was obtained by unlawful
means), with United States v. Boatwright, 822 F.2d 862, 864 (9th
Cir. 1987) (Kennedy, J.), United States v. Thomas, 955 F.2d 207,
210 (4th Cir. 1992), and United States v. Kennedy, 61 F.3d 494,
499-500 (6th Cir. 1995) (all rejecting the requirement of an
ongoing independent line of investigation).
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Entry ID: 5549458

In light of the Supreme Court's warning that "inevitable
discovery

involves

no

speculative

elements

but

focuses

on

demonstrated historical facts capable of ready verification or
impeachment," Nix, 467 U.S. at 444 n.5, we cannot say that the
present record contains all the facts necessary to enable an
informed determination on the applicability of the inevitable
discovery doctrine.
the

evidence

would

An evidentiary hearing could explore whether
have

been

discovered

independently

and

inevitably.
For the foregoing reasons, the district court erred in
denying

defendants'

evidentiary hearing.

motions

to

suppress

without

holding

an

An evidentiary hearing is warranted to

determine whether the DSS agent's warrantless search of the Sprint
account violated defendants' Fourth Amendment rights.

The hearing

would reveal facts sufficient to enable an informed decision on the
private

search

doctrine,

exigent

circumstances,

inevitable

discovery, and any other potentially applicable Fourth Amendment
doctrines.
B.

The Franks Hearing

"[W]here the defendant makes a substantial preliminary showing
that

a

false

statement

knowingly

and

intentionally,

or

with

reckless disregard for the truth, was included by the affiant in
the warrant affidavit, and if the allegedly false statement is
necessary to the finding of probable cause, the Fourth Amendment

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Entry ID: 5549458

requires that a hearing be held at the defendant's request."
Franks v. Delaware, 438 U.S. 154, 155-56 (1978).
The

crux

of

D'Andrea's

Franks

request

is

that

the

affidavit in support of the search warrant misrepresented a nexus
between the abuse and D'Andrea's home.

D'Andrea argues that while

the Tipster did provide information about the abuse, she did not
relay D'Andrea's address or in any way link the abuse with her
home.

D'Andrea does not dispute that all pertinent affidavits and

reports prepared by the police state that the Tipster provided
D'Andrea's address and reported abuse occurring there; rather, she
claims that the Tipster did not in fact report this to DSS and that
DSS recklessly or intentionally relayed misleading information to
the police.
The district court denied the Franks request, finding it
"flawed

by

factual."
district

two

fundamental

errors,

(Order at 11.)
court,

was

misrepresentations

by

that
an

extension, not a DSS agent.

one

legal,

and

the

other

The legal error, according to the
a

Franks

affiant,

hearing
not

an

examines

alleged

informant--and,

by

Thus, the district court held that,

even assuming the DSS agent misrepresented the Tipster's call as
conveying a link between D'Andrea's home and the child abuse, the
request for a Franks hearing must be denied because there has been
no showing that the affiant was in any way responsible for this
misrepresentation. On the factual front, the district court relied

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Entry ID: 5549458

on a copy of the original DSS Intake Information Form to find that
the Tipster did in fact provide D'Andrea's address and did link the
abuse to her home.
The "legal" basis for the district court's decision--that
Franks does not apply to misstatements by DSS agents--is reviewed
de novo.

See United States v. Hicks, 575 F.3d 130, 136 (1st Cir.

2009); Lewis, 40 F.3d at 1332-33.

It is undisputed that a Franks

hearing cannot test the truthfulness of the Tipster (or of any
other private informant, for that matter). See Franks, 438 U.S. at
171

("The

deliberate

falsity

or

reckless

disregard

whose

impeachment is permitted today is only that of the affiant, not of
any nongovernmental informant.") (emphasis added). But it does not
necessarily

follow

that

a

Franks

truthfulness of the DSS agent.

hearing

cannot

test

the

The DSS agent was, after all, a

government actor (a conclusion the government does not dispute), so
he cannot be conveniently lumped together with the private Tipster.
Nor should Franks be read to apply only to misrepresentations made
by the affiant himself, because such a reading would allow the
police to slip lies into affidavits with impunity by simply passing
them through an officer ignorant of their falsehood.
U.S.

at

164

n.6

("[P]olice

could

not

insulate

Franks, 438

one

officer's

deliberate misstatement merely by relaying it through an officeraffiant personally ignorant of its falsity.").

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Date Filed: 05/10/2011

Entry ID: 5549458

This does not mean that Franks necessarily applies to DSS
agents or other similarly situated governmental actors; rather, it
means

that

such

a

determination

requires

an

examination

and

weighing of the policies served and disserved by applying Franks,
the kind of inquiry the Supreme Court has grappled with when
deciding whether to apply other Fourth Amendment doctrines to nonpolice governmental actors in other contexts.

See, e.g., New

Jersey v. T.L.O., 469 U.S. 325, 333-37 (1985) (deciding whether the
Fourth Amendment applies to actions of public school officials);
Arizona v. Evans, 514 U.S. 1, 14-16 (1995) (deciding whether the
exclusionary rule applies to evidence seized in violation of the
Fourth Amendment by an officer who acted in reasonable reliance on
an erroneous record furnished by a court employee).

Deciding

whether to apply Franks to DSS agents, in general and in this case
in particular, would likewise require a thorough analysis of the
policies implicated and whether they would be served by application
of Franks.
It is unnecessary to decide this question, however,
because the district court's "factual" ground for denying the
Franks hearing is free from clear error.
138

("We

review

the

denial

of

a

See Hicks, 575 F.3d at

Franks

hearing

for

clear

error . . . which exists only when we are left with the definite
and firm conviction that a mistake has been committed.") (citations
and quotation omitted).

As the district court found, the record

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Entry ID: 5549458

supports the conclusion that the Tipster did provide D'Andrea's
address and did link the child abuse to her home.16
Even if she had not, DSS and the police could have drawn
these inferences from other information she provided.

The address

could be (and was) easily confirmed by checking D'Andrea's driver
license records.

And the nexus to D'Andrea's home was apparent

from the circumstances:

The detailed report, corroborated in its

most incriminating parts, that an itinerant truck driver and his
girlfriend were abusing the girlfriend's child and posting images
of the abuse on the Internet, and that the girlfriend would send
pornographic pictures of the victim via her mobile phone to the
truck driver when he was away, established probable cause that some
16

The address appears on the initial DSS Intake Information
Form.
(D’Andrea Sealed App. 6-7.)
The DSS agent who took the
Tipster's call wrote that the Tipster "is unsure where the mother's
partner [i.e., Jordan] resides."
(D’Andrea Sealed App. 11.)
Certainly this does not mean that the Tipster was also unsure where
D'Andrea herself resided.
Indeed, given that the DSS agent
reported that the Tipster was unsure where Jordan resided, it is
reasonable to infer that, had the Tipster said she was unsure where
D'Andrea resided, the DSS agent would have reported that too. The
fact that this is not reported, coupled with the fact that
D'Andrea's address is actually reflected on the form (D’Andrea
Sealed App. 6-7), means that the Tipster in all likelihood did
provide D'Andrea's address.
It was not clear error for the
district court to find that this contemporaneous information was
more reliable than the Tipster's after-the-fact statement in
February 2007 to the Public Defender's investigator that she did
not know D'Andrea's address and could not have given it to DSS.
(See D'Andrea Sealed App. 124.) Even assuming, arguendo, that the
Tipster did not in fact report the address, it certainly was not
clear error for the district court to find that defendants' request
did
not
contain
sufficiently
concrete
and
well-supported
"allegations of deliberate falsehood or of reckless disregard for
the truth," as mandated by Franks, 438 U.S. at 171 (emphasis
added).
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Entry ID: 5549458

of the abuse was occurring at the girlfriend's home or, at the very
least, that some evidence of the crime could be found at the home.
Thus, the explicit linking of the abuse to the home by the Tipster
was not "necessary to the finding of probable cause," as required
by Franks, 438 U.S. at 155-56.
Therefore, while the district court erred in holding
categorically that Franks does not apply to DSS agents, we agree
with the district court's factual determination that defendants did
not make the "substantial preliminary showing" required to entitle
them to a Franks hearing.
IV.

See id.

Conclusion
For the foregoing reasons, the judgments of the district court

are VACATED and the case is REMANDED for an evidentiary hearing on
the motions to suppress.17

17

Because our holding that the district court erred in denying
defendants' motions to suppress without an evidentiary hearing
leads to a vacatur of defendants' convictions, we need not address
the sentencing and allocution issues.
-27-