Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, July 24, 2012

Smith: Consent to search were police were not acting "flagrantly"

In U.S. v. Smith, No. 10-15929 (July 23, 2012), the Court rejected the challenge by a defendant convicted of distributing child pornography that the police violated his Fourth Amendment rights when they entered and searched his house without a warrant.
The police, suspecting that Smith had child pornography on his laptop consumer, went (without a warrant) to his house in Sebastian, Florida. They knocked loudly on the door. No one answered. A neighbor told them that "Smith was feeling some sort of depression." To ensure Smith’s well-being, the police entered his house through an unlocked sliding glass back door, with guns drawn, pointing down. Smith was laying naked on an inflatable mattress. The police holstered their weapons. Smith asked them to step outside while he got dressed. The police stepped outside, where Smith joined them. The police then discussed whether Smith had child pornography in his residence. Smith offered to show police his laptop. The police followed Smith inside the house, where they saw a computer with an active peer-to-peer program, downloading and uploading child pornography. Smith later that day confessed to possessing child pornography.
Prior to trial, Smith moved to suppress his confession and all evidence seized from his computers as "fruits of the poisonous tree" – the illegal search of his house. The district court denied the motion to suppress.
Affirming, the Court assumed arguendo that the officers’ "welfare check" entry into Smith’s home violated the Fourth Amendment. However, the Court found that the subsequent consent to search was voluntary. The Court recognized that the record did not show how much time elapsed between the entry and the consent. But the intervening circumstances – the fact that the police left the house when Smith asked to get dressed, and that there was no evidence of coercion (although police did not inform Smith that he could refuse consent to a search), indicated that there was no "flagrancy" in the police’s conduct. The Court noted that Smith had presented no evidence to rebut the officers’ claims that they went into the house to check on his welfare. Therefore, the search did not violate the Fourth Amendment.