United States v. McGlothlin

391 F. App'x 542
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 28, 2010
DocketNo. 10-1278
StatusPublished

This text of 391 F. App'x 542 (United States v. McGlothlin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. McGlothlin, 391 F. App'x 542 (7th Cir. 2010).

Opinion

ORDER

Local police in Bloomington, Illinois, responded to a mother’s call that her neighbor, Richard McGlothlin, had been taking photos of her son with a cell phone and masturbating as the boy played on a trampoline in the family’s backyard. A search of McGlothlin’s phone did not turn up any photos of his neighbor, but it did uncover troubling photos of partially nude children and what was later identified as the erect penis of a fifteen-year-old boy. After the [544]*544district court denied his motion to suppress the photos, McGlothlin entered a conditional guilty plea to two counts of producing child pornography, and the district court sentenced him to concurrent terms of 180 months’ imprisonment, the statutory minimum for each count. See 18 U.S.C. § 2251(a), (e). McGlothlin filed a notice of appeal, but his appointed lawyer seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he cannot identify any nonfrivolous argument to pursue. McGlothlin has not opposed counsel’s motion. See Cir. R. 51(b). We confine our review to the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).

McGlothlin has told counsel that he does not want his guilty pleas vacated, so counsel properly omits any discussion of the adequacy of the plea colloquy or the volun-tariness of the pleas. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002).

Counsel first considers whether McGlothlin could challenge the district court’s denial of his motion to suppress the photos on his cell phone. Bloomington police officer Robert Raycraft testified at the suppression hearing that, after speaking to McGlothlin’s neighbor, he approached McGlothlin, who was standing on the lawn in front of his home, and asked if he had been masturbating or taking photos of the boy next door. McGlothlin insisted that he had only been checking his phone messages and getting cigarettes out of his pocket, and when Raycraft asked him if he would find photos of the neighbor on his phone, he replied, “Not that neighbor.” When Raycraft asked if he could check the phone for himself, McGlothlin said, “Sure.” On the phone Raycraft first found photos of DVD covers; he did not specify what was on them and described them only as “odd” but not “alarming.” As he continued scrolling through the photos, he saw images of a different young boy jumping on a trampoline, climbing a tree, and playing on a bed. Many of those photos focused on the boy’s clothed buttocks and genital area. McGlothlin, who is 36, told Raycraft that the boy was a “friend” from the neighborhood and admitted that the boy’s parents probably were unaware that he had been photographing their son. Raycraft also saw photos of an infant with exposed genitalia lying on a hospital bed, young children in various states of undress playing near a lake, and a young girl standing at a bathroom sink with her breasts exposed. Finally, he saw a series of shots taken in a bathroom depicting the subject’s erect penis and bare buttocks, although he could not tell whether the subject was an adolescent or adult. Ray-craft then seized the phone to prevent McGlothlin from deleting the photos, but when McGlothlin’s ride to church arrived, Raycraft told him he was free to go. Ray-craft gave McGlothlin’s phone to Bloom-ington detective William Lynn for forensic investigation, and during a later interview, McGlothlin confessed to Lynn that he had been having sex regularly in his church bathroom with a fifteen-year-old boy and it was that boy whose erect penis was captured in six of the photos on his phone.

In arguing for suppression, McGlothlin asserted that the warrantless seizure of the phone had lacked probable cause and that any consent he gave was involuntary because of his low mental functioning. The district court concluded that McGloth-lin had voluntarily consented to Officer Raycraft’s request to search the cell phone for photos of the neighbor and that, once Raycraft saw the saved photos, he had probable cause to believe that McGlothlin possessed child pornography and thus to seize the phone.

[545]*545The Fourth Amendment protects against unreasonable searches and seizures, but a warrantless, consensual search does not run afoul of the Constitution. United States v. Grap, 403 F.3d 439, 443 (7th Cir.2005). We would review for clear error the district court’s factual finding that McGlothlin voluntarily consented to the search of his cell phone, and to evaluate voluntariness we would look at the totality of the circumstances, including (1) McGlothlin’s age, education, and intelligence; (2) whether he was advised of his constitutional rights; (3) the length of detention prior to consent; (4) whether he consented immediately or only upon repeated requests for consent; (5) whether police used physical coercion; and (6) whether McGlothlin was in custody. See Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Biggs, 491 F.3d 616, 622 (7th Cir.2007).

We would not find clear error in the district court’s conclusion that McGlothlin freely gave Officer Raycraft permission to view the photos on his cell phone. Although McGlothlin had not been advised of his right to refuse consent, he was not in custody when Raycraft sought permission to search his phone, and Ray-craft did not physically or verbally coerce him into submission. Rather, the officer testified that he asked just once if he could search the phone’s photo bank, and McGlothlin responded, “Sure,” and handed it over. And although McGlothlin solicited testimony from his aunt that he has “slow” mental functioning, below-average intelligence does not automatically render involuntary the waiver of a constitutional right. See Garner v. Mitchell, 557 F.3d 257, 264-65 (6th Cir.2009) (collecting cases); Henderson v. DeTella, 97 F.3d 942, 948-49 (7th Cir.1996). Raycraft testified that McGlothlin gave no sign that he did not understand what was happening and, indeed, that his initial responses to Ray-craft’s questions — that he was only checking messages on his phone and getting cigarettes from his pants, and that his phone did not contain photos' of “that neighbor” — were more consistent with a person trying to avoid getting caught than with a person incapable of understanding what was happening. See United States v. Turner, 157 F.3d 552, 555 (8th Cir.1998).

Nor would we find error in the district court’s conclusion that the seizure of McGlothlin’s cell phone was permissible.

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Bluebook (online)
391 F. App'x 542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mcglothlin-ca7-2010.