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          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                    No. 13-40880                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                          January 27, 2015
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

ROBERT ALLEN MONTGOMERY,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before STEWART, Chief Judge, and BARKSDALE and GRAVES, Circuit
Judges.
CARL E. STEWART, Chief Judge:
      In May 2012, officers stopped Robert Allen Montgomery in the driveway
of his home for traffic violations. A subsequent weapons frisk revealed cocaine.
Montgomery was arrested, his car searched, and his Blackberry smartphone
confiscated. The Blackberry contained images of minors engaged in sexual
activities, and Montgomery was subsequently indicted and convicted of
possessing and receiving child pornography. In this appeal, he challenges on
both factual and legal grounds the denial of his motion to suppress the evidence
of pornography found on his phone. We AFFIRM.
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                                      No. 13-40880
                                             I.
       On May 3, 2012, at approximately 12:55 a.m., three Laredo Police
Department officers were standing and talking on the street outside of
Montgomery’s mobile home on Olive Street. 1 They had just finished issuing a
ticket to two individuals for theft of some alcohol from a nearby store. Officer
David Casarez, a nine-year veteran of the Laredo police, then witnessed a
vehicle leave the home, known to Casarez as a “drug house,” and return
approximately five minutes later. Casarez had arrested six or seven people in
front of the home in the preceding few months. 2 He also had intelligence from
one of the prior arrestees that the resident drug dealer resupplied at a
mechanic shop a few blocks away on Springfield Avenue, and that those
resupply trips took about five minutes.
       When the vehicle returned, the driver had his high beam lights on and
failed to signal to turn into his driveway. Casarez approached the vehicle, and
the driver, Montgomery, exited (though it is unclear whether he did so at
Casarez’s request). Montgomery gave Casarez a false name (though he later
revealed his real name). Casarez then attempted to frisk him. Montgomery
became “combative,” resisted the frisk by pushing Casarez’s hands away from
his right front pocket repeatedly, and was eventually restrained by another
officer. Casarez felt a small bulge in Montgomery’s front pocket during the
frisk. He later testified that he did not believe the object was a gun or a knife,
and that “[i]t could have been anything, a receipt, a bubble—maybe a gum
wrapper.” After Casarez felt the bulge, he asked Montgomery what it was.
Montgomery stated that it was a “dime” of cocaine. Casarez removed the


       1 These facts, unless otherwise noted, are provided in the light most favorable to the
Government. See United States v. Rounds, 749 F.3d 326, 338 (5th Cir. 2014).
       2 The parties dispute when these arrests were made. Viewing the facts in the light

most favorable to the Government, as we must, they were made in the few months preceding
the stop at issue in this case.
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                                       No. 13-40880
cocaine, read Montgomery his Miranda rights, handcuffed him, and placed him
under arrest. 3
      Approximately 30 minutes after the stop, police obtained Montgomery’s
written consent to search his house. The search of the home involved three or
four officers, took 20 to 25 minutes, and revealed no drugs or contraband with
the exception of a smoking pipe and a spoon with white powdery residue.
During that time, Montgomery, who was allowed inside the home to use
medicine for a respiratory condition (but remained handcuffed), repeatedly
asked for his cell phone so he could erase “naked pictures” that he did not want
his father to see.        Eventually, another officer—Officer Eduardo Juarez—
brought Casarez the cell phone from Montgomery’s car. Montgomery agreed
to assist Casarez in navigating the phone to erase the pictures in exchange for
providing Casarez with his supplier’s phone number. Montgomery directed
Casarez to press a button on the phone. As soon as Casarez pressed that
button, however, an image that Casarez believed to be an underage nude
female appeared. Casarez looked through a few more photos and then ceased
to inspect the phone. Montgomery then alleged the phone belonged to his drug
dealer, but later admitted it was his, acknowledged he had downloaded the
pictures from the Internet, and asked if they could be erased.
      Casarez read Montgomery his Miranda warnings again, placed him in
the patrol unit, and drove him to the station. When Casarez ran Montgomery’s
name, he discovered Montgomery had an outstanding parole warrant for
robbery. Montgomery was indicted for knowingly receiving and possessing
child pornography. See 18 U.S.C. § 2252A(a)(2), (a)(4)(B). The district court
denied his subsequent motion to suppress, and he was convicted after a short
bench trial.        The presentence report attributed 180 images of child


      3   One of the officers had a canine, but the dog was never employed at the scene.
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                                       No. 13-40880
pornography to Montgomery.             He was sentenced to a below-guidelines 96
months in prison and 15 years of supervised release.
      Montgomery brings two challenges to the district court’s decision. First,
he claims, there was not enough particularized evidence that he was armed
and dangerous to justify the frisk. 4 Second, he argues that even if the frisk
were justified at the outset, Officer Casarez exceeded the permissible scope of
the frisk by continuing the patdown after determining that Montgomery did
not have a weapon.
      The Government contends that there was no constitutional violation, but
argues that even if one occurred, the cell phone search was the product of an
independent act of free will on Montgomery’s part—that is, the consent
Montgomery gave was sufficiently attenuated from any alleged constitutional
violation to purge the taint of that violation.
                                            II.
      This court uses “a two-tiered standard of review for appeals from the
denial of a motion to suppress: Factual findings are accepted unless clearly
erroneous,    and     the   district    court’s   ultimate    conclusion     as   to   the
constitutionality of law enforcement action is reviewed de novo.” United States
v. Jackson, 390 F.3d 393, 396 (5th Cir. 2004), judgment vacated on other
grounds, 544 U.S. 917 (2005). All evidence is viewed in the light most favorable
to the prevailing party, here the Government. See United States v. Rounds,
749 F.3d 326, 337–38 (5th Cir. 2014).
                                           III.
       At the outset, we note that it is not necessary to our decision today to
determine if Officer Casarez violated Montgomery’s rights either by frisking



      4  Montgomery does not challenge the validity of the stop. He appears to concede that
it was justified by at least one of the traffic violations described above.
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                                      No. 13-40880
him without the requisite suspicion that he was armed and dangerous or by
exceeding the permissible scope of the frisk. 5 Based on our review of the record,
we hold that the pornography on the cell phone was obtained by Montgomery’s
consent, which was the product of an intervening independent act of free will
on Montgomery’s part that purged the taint of any alleged constitutional
violation. See Wong Sun v. United States, 371 U.S. 471, 486–88 (1963). For
purposes of evaluating whether Montgomery’s consent was valid, we will
assume arguendo a Fourth Amendment violation.
       “Consent to search may, but does not necessarily, dissipate the taint of
a fourth amendment violation.” United States v. Chavez-Villarreal, 3 F.3d 124,
127 (5th Cir. 1993) (citation omitted). Consent is valid if it was: 1) voluntary
and 2) an “independent act of free will.” United States v. Jenson, 462 F.3d 399,
406 (5th Cir. 2006).        Montgomery does not challenge the district court’s
determination that the consent was voluntary. Instead, he focuses on whether
the consent was an independent act of free will, a subject on which the district
court did not make any findings because it did not find a Fourth Amendment
violation. To determine if consent was independent, this court looks to factors
articulated by the Supreme Court in Brown v. Illinois, 422 U.S. 590, 603–04
(1975). Those factors are: “1) the temporal proximity of the illegal conduct and
the consent; 2) the presence of intervening circumstances; and 3) the purpose
and flagrancy of the initial misconduct.” United States v. Jones, 234 F.3d 234,



       5  This method is permissible, and adheres to the constitutional avoidance doctrine.
See United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993) (“However, it is unnecessary
for us to determine whether the questioning that took place here constituted an unreasonable
detention, because, even if it did, we hold, consistent with all other authorities, that
Andrews’s valid voluntary consent to the search cured any Fourth Amendment violation that
may have occurred.”); United States v. Grajeda, 497 F.3d 879, 882 (8th Cir. 2007) (assuming
a Fourth Amendment violation in an initial search, but holding subsequent search validated
by intervening voluntary consent). See generally Thomas Healy, The Rise of Unnecessary
Constitutional Rulings, 83 N.C. L. Rev. 847 (2005).
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                                 No. 13-40880
243 (5th Cir. 2000). “The absence or presence of one of these factors is not a
per se indication of free will sufficient to break the causal connection between
the illegality . . . and the evidence sought to be suppressed.” United States v.
Wilson, 569 F.2d 392, 396 (5th Cir. 1978).
      Montgomery argues that there was “no break in the chain of events, nor
any evidence that [his] purported consent to search his cell phone and post-
arrest statements were independent acts of free will sufficient to purge the
taint of the Fourth Amendment violation.” He emphasizes that: 1) the gap
between the stop and the consent was only 40 minutes; 2) the Miranda
warnings and his raising the issue of the cell phone are not intervening events
of significance; and 3) the violation was flagrant because the officers “acted
deliberately in initiating and carrying out the illegal patdown.”
      The Government disagrees with Montgomery’s version of the timing of
the consent, and represented at oral argument that the consent was given
between 50 and 55 minutes after the stop. The Government points to multiple
intervening circumstances—including Miranda warnings and Montgomery’s
decision to broach the issue of searching the cell phone—and also argues that
the police misconduct was not flagrant because, at worst, it consisted of a
“single ‘pinch’ of an item felt in a pocket during a justified Terry weapons pat
down.”
                                       A.
      As to the first factor, there is no strict time between illegal conduct and
consent that would serve to either validate or invalidate the consent. Compare,
e.g., United States v. Hernandez, 670 F.3d 616, 623 (5th Cir. 2012) (finding
consent invalid where “no indication that more than a few hours passed
between   the   Fourth    Amendment        violation   and   the   [incriminating]
statements”), and United States v. Gomez-Moreno, 479 F.3d 350, 352–54, 358
(5th Cir. 2007) (holding consent tainted when obtained 45 minutes after
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                                    No. 13-40880
unconstitutional raid), overruled on other grounds by Kentucky v. King, 131 S.
Ct. 1849 (2011), with Rawlings v. Kentucky, 448 U.S. 98, 107, 111 (1980)
(finding confession admissible when obtained 45 minutes after improper
arrest). 6 There is, however, substantial authority for the proposition that
consent given within a few seconds or minutes of the violation generally favors
the defendant. See Wayne R. LaFave, Search & Seizure § 8.2(d) n.140 (4th ed.
2004) (collecting cases). A few hours between the events, though, often favors
the government. See United States v. Sheppard, 901 F.2d 1230, 1239 (5th Cir.
1990) (King, J., dissenting) (“The attenuation exception, however, requires
greater temporal distance than seconds or minutes.                    Supreme Court
decisions . . . have generally found that hours must elapse before evidence is
purged of its taint.”).
      Assuming       a    Fourth    Amendment        violation—but      granting     the
Government the assumption of a 55-minute gap, which is plausible in light of
the record—we conclude that this factor favors Montgomery. Although the law
is unsettled in this area, Hernandez and Gomez-Moreno each show that
approximately one hour between an illegal search and consent favors the
defendant. See Hernandez, 670 F.3d at 623; Gomez-Moreno, 479 F.3d at 352–
54, 358.
      Indeed, Rawlings, the only case cited by the Government on this issue,
provides support for the view that the temporal proximity here favors
Montgomery. In Rawlings, police detained three individuals, including the
petitioner, in a home while waiting for a search warrant to issue. See 448 U.S.
at 100–01, 107. The detention lasted approximately 45 minutes. Id. at 100–



      6 Though the Brown factors originate in a confession case, 422 U.S. at 603–04, they
are used by courts to evaluate the independence of both confessions and evidence obtained
via consent. See, e.g., Wilson, 569 F.2d at 396–97 (applying Brown factors where evidence
obtained by means of consent to search rather than a confession).
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                                  No. 13-40880
01. During that period, the detainees “sat quietly in the living room, or at least
initially, moved freely about the first floor of the house,” and one “just went on
in and got a cup of coffee and sat down and started waiting for the officers to
return.” Id. at 107–08 (internal quotation marks omitted). After they returned
with the warrant, police searched a bag that contained drugs, and the
petitioner immediately confessed ownership of the contraband. Id. at 100–01.
The Court, though it found the confession admissible, did not rely on the 45-
minute interval to support its holding. See id. at 107–08. The Court noted
that while “under the strictest of custodial conditions such a short lapse of time
might not suffice to purge the initial taint,” the degree of freedom afforded the
detainees “outweigh[ed] the relatively short period of time that elapsed
between the initiation of the detention and petitioner’s admissions.”          Id.
(emphasis added).
      By contrast, here, Montgomery was clearly under arrest, handcuffed,
and permitted none of the freedoms of the Rawlings detainees that the Court
explained counterbalanced the “relatively short period” of 45 minutes between
the initiation of the detention and the confession. See 448 U.S. at 108. This
factor therefore favors Montgomery. The 10 additional minutes separating the
two critical events in this case from those in Rawlings cannot be said to alter
this conclusion. Of course, however, temporal proximity is not dispositive. See
United States v. Kelley, 981 F.2d 1464, 1471 (5th Cir. 1993) (“It is true, as
Kelley correctly asserts, that no significant period of time elapsed between the
allegedly illegal detention and Andrews’s consent. That factor alone, however,
is not dispositive.”). We therefore proceed to address the remaining factors.
                                       B.
      The second factor—which requires an evaluation of intervening
circumstances—favors the Government. Most fatal to Montgomery’s argument
on this point is that the consent he gave to search his cell phone was
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                                 No. 13-40880
unsolicited. “[E]ven less is required to show that the consent is voluntary and
untainted” when the consent is unsolicited. LaFave, Search & Seizure § 8.2(d);
see also id. (“In determining whether the consent was, as the Court put it in
Brown, ‘obtained by exploitation of an illegal arrest,’ account must be taken of
. . . whether the consent was volunteered rather than requested by the
detaining officers . . . .” (quoting Brown, 422 U.S. at 603)); United States v.
Canseco, 465 F.2d 383, 385 (5th Cir. 1972) (holding evidence found in
appellant’s house admissible where defendant “not only invited the agents to
search his premises but later insisted on a second search,” and where “the
searches were initiated as a result of appellant’s unsolicited invitation”);
United States v. Mendoza-Salgado, 964 F.2d 993, 1012 (10th Cir. 1992) (“While
her unsolicited consent does not end the inquiry, it weighs heavily into our
conclusion that agents did not coerce Mrs. Garcia into signing the consent
form.”); Hubbard v. Tinsley, 350 F.2d 397, 398 (10th Cir. 1965) (finding
unsolicited consent where habeas petitioner, initially under investigation for
murder, told officers they could use a key found in his possession to open a bus
station locker that led to evidence supporting his subsequent burglary
prosecution).
      Montgomery repeatedly requested that the officers access his cell phone;
he stated he wanted the officers to remove the photos so that he could conceal
them from his father. There is no indication in the record that the officers
requested to search the cell phone, or were independently interested in its
contents. That unique intervening circumstance separates this particular act
of consent from the doubtless more frequent occurrence: consent provided after
an officer’s request to conduct a search.
      Additionally, while the following facts are not controlling (as
Montgomery rightly points out), they further support a holding that the
consent was sufficiently detached from the arrest to purge any taint. First,
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                                  No. 13-40880
officers at least once read Montgomery his Miranda rights before searching the
cell phone. See United States v. Basey, 816 F.2d 980, 995 (5th Cir. 1987)
(“Although we have written that the fact that a defendant was given Miranda
warnings, standing alone, will not prove that the statement was sufficiently an
act of free will, we also observe that the curative power of Miranda warnings
may be given great weight in some situations.” (internal quotation marks,
citation, and brackets omitted)). Second, he had a criminal history, and at one
point served over two years in prison for participating in an armed robbery.
See id. at 996 (taking into account criminal history in intervening
circumstances inquiry).    Finally, he was removed from the police car and
allowed into the home, where he was calmly using medicine for his respiratory
condition in the house before he offered the consent.
      Montgomery relies on Chavez-Villarreal, but that case involved a man
giving consent to search his car after the officer had requested consent and
made his suspicions that it contained narcotics known. 3 F.3d at 128. By
contrast, here, Montgomery broached the phone search himself, and he does
not contend here (though he did in the district court) that the officers had any
expectation of recovering pornography on the phone from the search.
                                       C.
      Finally, looking to the third factor, we conclude that the police
misconduct here—again, assuming it was misconduct—was not flagrant. The
alleged misconduct here was in frisking Montgomery without a reasonable
belief that he was armed and dangerous, or in exceeding the permissible scope
of the frisk. These alleged violations do not rise to the level of flagrancy found
by the Supreme Court and this court requiring suppression of the evidence.
      For example, in Brown, Chicago police officers, lacking probable cause to
search or make an arrest but suspicious that the defendant was involved in an
unsolved murder, broke into the defendant’s house, searched it, and then—
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                                  No. 13-40880
after pointing a gun at him as he returned home—arrested him. 422 U.S. at
592. The Court found this violation flagrant and suppressed the defendant’s
subsequent inculpatory statements. Id. at 604–05. In Gomez-Moreno, a large
group of officers investigating a tip that the defendant was harboring illegal
aliens drew their weapons and entered her house without a warrant. 479 F.3d
at 352–53. After finding illegal aliens and the defendant inside, one officer
sought the defendant’s consent to search another house on her property, telling
her, “We’re going to get in that door one way or another.” Id. at 353 (internal
quotation marks omitted). This court found that raid a flagrant constitutional
violation, and reversed the denial of a motion to suppress. Id. at 358.
      By contrast, in Jenson, a suspicious police officer prolonged a valid traffic
stop after the passengers’ drivers’ licenses were cleared and reasonable
suspicion dissipated. 462 F.3d at 402–03, 406 n.7. Four minutes after that,
the officer requested consent to search the vehicle, which the defendant—the
car’s driver—gave. Id. at 403, 406 n.7. Before searching the vehicle, the officer,
to protect himself while he was in the vehicle, conducted a frisk of the
defendant that revealed weapons; he then arrested the defendant. Id. at 403.
Although this court suppressed drug and firearm evidence obtained after the
illegal frisk, id. at 408, we did so despite finding that “the initial officer
misconduct was not flagrant.” Id. at 407.
      The alleged misconduct here closely resembles the misconduct in Jenson.
In this case, at worst, a concededly valid traffic stop led to an unconstitutional
weapons frisk conducted without reasonable suspicion. That frisk is analogous
to the illegal one conducted without reasonable suspicion on the Jenson
defendant and found to fall short of the flagrancy threshold. 462 F.3d at 403,
407. These facts do not rise to the requisite level of flagrancy to tip this factor
in Montgomery’s favor. See, e.g., Brown, 422 U.S. at 592, 604; Gomez-Moreno,
479 F.3d at 352–53, 358.
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                                   No. 13-40880
                                        D.
        The Brown factors collectively favor the Government here. While little
time passed between the alleged violation and Montgomery’s consent, his
unsolicited consent coupled with the nature of the alleged misconduct lead us
to conclude that the consent was valid as a voluntary, independent act of free
will. Therefore, the evidence need not be suppressed as fruit of the poisonous
tree.
        We note that the exclusionary rule’s “prime purpose”—to “deter future
unlawful police conduct and thereby effectuate the guarantee of the Fourth
Amendment against unreasonable searches and seizures,” Illinois v. Krull, 480
U.S. 340, 347 (1987) (internal quotation marks and citation omitted)—would
not be served by suppressing the pornography obtained on Montgomery’s cell
phone. The police were not in search of child pornography here. As the Ninth
Circuit stated under somewhat similar circumstances in United States v.
Jones:
        [W]hen officers through serendipity discover evidence concerning
        a suspect whom they are unlawfully investigating in connection
        with another, different crime, the new evidence is not tainted
        where the officers discovered it only because their unlawful
        investigation fortuitously put them in a position to do so and where
        their unlawful investigative intent did not extend to the additional
        evidence.
608 F.2d 386, 391 (9th Cir. 1979) (internal quotation marks and citation
omitted).
                                        IV.
        The conviction is therefore AFFIRMED.




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JAMES E. GRAVES, Circuit Judge, concurring:
      I agree with the majority that Montgomery’s consent to Officer Casarez’s
search of his cell phone was sufficiently attenuated from the assumed Fourth
Amendment violation so as to dissipate the taint of that violation. See United
States v. Chavez-Villarreal, 3 F.3d 124, 127 (5th Cir. 1993). I also agree with
most of the majority’s discussion of the factors to be considered to determine if
Montgomery’s consent to the search of the cell phone was an independent act
of free will.
      Respectfully, in my view, Montgomery’s actions do not constitute
“unsolicited consent.” Montgomery did not volunteer his consent to search the
phone to the officers, nor did he request that the officers access his cell phone
to remove the photos. Instead, Montgomery repeatedly requested that he
himself be allowed to access his own cell phone to delete pictures of “naked
women” because he said he did not want his father to see the pictures. Officer
Casarez testified that Montgomery “wanted to use the phone to see if he could
erase the pictures of the naked women.” In response to Montgomery’s repeated
requests to be allowed to use the phone, “I told him I would help him do that,
get rid of those pictures so that his dad won’t get mad but I also told him I
wanted the phone number of his drug dealer.”               Casarez testified that
Montgomery agreed to that trade, and further agreed to guide Casarez to
navigate the phone to get the phone number of the drug dealer. To unlock or
wake up the phone, Casarez pushed a button on the phone at the direction of
Montgomery, at which point a pornographic picture of what Casarez believed
to be a nude seven- or eight-year-old girl “popped up.”
      I would not find that this exchange constituted “unsolicited consent” or
a voluntary invitation for the officers to access his phone. The most reasonable
reading of Casarez’s testimony is that the idea of Casarez accessing the phone
was raised by Casarez, not by Montgomery. Montgomery’s request that he be
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                                  No. 13-40880
allowed access to his phone and subsequent agreement to the trade that
Casarez suggested is not akin to the invitations to search in cases such as
United States v. Canseco, 465 F.2d 383, 385 (5th Cir. 1972) (suspect told agents
where his luggage was and said “It’s in my home. Do you want to look at it?”
and subsequently “insisted that his apartment be searched and that a second
search be conducted at his house”), United States v. Mendoza-Salgado, 964
F.2d 993, 1012 (10th Cir. 1992) (suspect’s wife, a joint owner of the house that
was searched “broached the search issue herself after officers told her they
believed cocaine existed on the premises” and told agents to “go ahead and
search,” before being asked for consent), and Hubbard v. Tinsley, 350 F.2d 397,
398 (10th Cir. 1965) (upon being questioned about a locker located in a bus
depot, suspect, who already been advised of his rights, said: “You have got the
key; go see for yourselves.”). Thus, this case is different from the cases in which
defendants offered unsolicited consent or actually invited officers to conduct a
search.
      However, in the circumstances of this case, I agree with the majority that
Montgomery did consent to at least a limited search of the phone and that his
consent did constitute an independent act of free will. Most significantly, it is
true that Montgomery himself raised the issue of deleting pictures from the
phone, and that the officers expressed no independent interest in the contents
of the phone until Montgomery raised the issue.             Although Montgomery
requested that he be allowed to access the phone, he did subsequently agree to
Casarez “help[ing] him” to delete the pictures and to assisting Casarez in
obtaining the phone number of his drug dealer, which necessarily involved
Casarez looking at the contents of the phone.         Montgomery then actively
assisted Casarez gaining access to the phone by directing him which buttons
to push. Further, Casarez’s search did not extend beyond the consent that
Montgomery gave before the first picture “popped up” on the phone. Lastly, as
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                                 No. 13-40880
the majority states, it is also clear from the record that the officers arrested
and were investigating Montgomery for drug violations, and until the picture
appeared on the phone, they were not in search of evidence of child
pornography and had no reason to believe that child pornography might be
found on the phone. Cf. Chavez-Villarreal, 3 F.3d at 128 (concluding in part
that consent did not dissipate the taint of a Fourth Amendment violation
where “refusal seemed pointless” because the officer “had made known his
suspicions about narcotics”).   I would find that all of these circumstances
surrounding Montgomery’s consent to a search of the phone constituted
intervening circumstances and a causal break between the search and the
previous violation.
      I concur in the reasoning of the remainder of the majority’s opinion, and
in its conclusion that the denial of the motion to suppress should be affirmed.




                                      15
