                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-1238

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

E DGARDO G ONZALEZ, JR.,
                                            Defendant-Appellant.


           Appeal from the United States District Court
                for the Eastern District of Wisconsin.
         No. 2:07-cr-00082-JPS-1—J.P. Stadtmueller, Judge.



   A RGUED D ECEMBER 1, 2008—D ECIDED F EBRUARY 9, 2009




 Before B AUER, R OVNER, and E VANS, Circuit Judges.
  B AUER, Circuit Judge. As a result of a controlled buy,
Detective Britt Kohnert, Sergeant Steven Hermann and
two other officers of the Milwaukee Police Department
(collectively “officers”) arrested Edgardo Gonzalez, Jr.
(Edgardo). Edgardo informed the officers that he lived
directly adjacent to where he was arrested. The officers,
all in plain clothes, went to the single family home to
conduct a narcotics investigation. After knocking on the
front door and receiving no answer, the officers knocked
2                                               No. 08-1238

on the back door, and were let in by Edgardo’s sister,
Iris Gonzalez. The officers informed Iris that they had
Edgardo in custody and were there to conduct a narcotics-
related investigation. The officers asked Iris if Edgardo
lived in the house and she stated that he did. The
officers then asked Iris if they could speak with her; she
agreed and let them in the house. Inside the home, Jesusa
Gonzalez, Edgardo’s mother, confirmed that Edgardo
lived there and did not pay rent. The officers asked both
women for permission to look for further narcotics. Both
women consented and were very cooperative with the
officers.
  The officers then asked if the women would show them
Edgardo’s bedroom. The women agreed and led the
officers to the bedroom, where the officers detected a
strong odor of marijuana. On her own initiative, Iris
opened the unlocked, accordion-style doors, peered into
the bedroom and stated “enough said,” indicating to
the officers that she knew why they were there.
  Standing just outside the bedroom, the officers saw:
(1) a large, clear plastic bag on the bed containing several
individually wrapped packages of marijuana; (2) a scale
next to the marijuana; (3) a Nike shoe box adjacent to the
marijuana and scale; and (4) another scale, located on a
dresser, topped with crack cocaine.
  The officers entered the room to secure the contraband
viewed in plain sight. Sergeant Hermann used his flash-
light to look through the manufactured holes in the
shoe box and saw what appeared to be further contra-
band in plastic bags. He then opened the shoe box and
No. 08-1238                                               3

found crack cocaine, marijuana and a scale. Without
disturbing the contents, the officer closed the box and
later re-opened it to show Edgardo’s mother and sister.
  After securing the evidence found, excluding the shoe
box, the officers conferred for 15-20 minutes and decided
to secure a warrant to search the entire room. Detective
Kohnert’s affidavit used to support the warrant applica-
tion did not include any information about the shoe box
or its contents; the affidavit included only information
regarding: (1) Edgardo’s arrest and the fact that he pro-
vided his address; (2) the authority to enter and search
given by Iris and Jesusa; (3) the scale and large bag of
marijuana found in plain view on the bed; and (4) the
scale with crack cocaine found in plain view on the dresser.
  The warrant was issued and executed. The officers
seized the shoe box and the contraband found inside. They
also discovered four loaded firearms and further drug
trafficking contraband.
  In his post-arrest statement, Edgardo admitted that
all the items seized were his.
  The grand jury charged Edgardo with four counts:
(1) possession with intent to distribute 50 grams or more
of cocaine base, a violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A); (2) possession with intent to distribute
marijuana, a violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(D); (3) possession of four firearms in further-
ance of drug-trafficking crimes, a violation of 18 U.S.C.
§ 924(c)(1)(A)(I); and (4) possession of firearms as a
felon, a violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
4                                              No. 08-1238

  Edgardo moved to suppress the physical evidence
found in his bedroom and his post-arrest statement. The
district court denied the motion to suppress; it held that
the officers were lawfully in Edgardo’s residence and
bedroom based on Iris’s and Jesusa’s apparent authority
to consent, and that the evidence found on the dresser
and on the bed (excluding the shoe box) was in plain
view. The district court held that Iris and Jesusa did not
have the apparent authority to consent to the search of
the shoe box, the bags of contraband inside the con-
tainer were not in plain view, and opening the box was
unlawful. The district court then held that the contents of
the shoe box were admissible under the independent
source doctrine.
  Edgardo entered a conditional plea of guilty on counts
(1) and (4), while reserving his right to appeal the denial
of the motion to suppress. The district court sentenced
Edgardo to 68 months’ imprisonment. This timely appeal
followed only as to the applicability of the independent
source doctrine.


                     DISCUSSION
  On appeal, Edgardo argues that the search warrant was
improper because the decision to procure the warrant was
influenced by the unlawful observation of the shoe
box’s contents. Edgardo argues that the evidence was not
seized through an independent and legal search.
  When reviewing a district court’s denial of a motion to
suppress, we examine the district court’s factual deter-
No. 08-1238                                              5

minations for clear error and review questions of law
de novo. United States v. Brown, 133 F.3d 993, 998 (7th
Cir. 1998).
  The proper way to balance society’s interest in
deterring police misconduct and society’s interest in
having juries receive all probative evidence of a crime is
to place police in the same, not a worse, position they
would have been, absent the misconduct. Murray v.
United States, 487 U.S. 533, 542 (1988) (citing Nix v.
Williams, 467 U.S. 431, 443 (1984)). Excluding evidence
that the police ultimately obtained by independent legal
means would not put the police in the same position
they would have been in absent any illegal conduct;
instead, it would put them in a worse position. Id. The
independent source doctrine avoids this by allowing
evidence initially discovered during an unlawful search
if the evidence was discovered later through a source
untainted by the initial illegality. Id.; United States v.
Markling, 7 F.3d 1309, 1315 (7th Cir. 1993). The key to
determining whether the independent source doctrine
applies, therefore, is to ask whether the evidence at
issue was obtained by independent legal means. United
States v. May, 214 F.3d 900, 906 (7th Cir. 2000).
  In determining whether evidence was obtained from
an independent source, this court employs a two-part
test. Markling, 7 F.3d at 1315. “The first question is
whether the illegally obtained evidence affected the magis-
trate’s decision to issue the search warrant.” Id. (citing
Murray, 487 U.S. at 542). The second part of this test asks
whether the decision to seek the warrant was prompted
6                                               No. 08-1238

by information gained from the initial illegal activity. Id.
at 1315-16 (citing Murray, 487 U.S. at 542).
  Edgardo only argues that the illegal look into the shoe
box prompted the decision to seek a warrant. He
argues that the facts, which include an illegal search and
then a 15-20 minute discussion that resulted in a deci-
sion to seek a warrant, coupled with its reasonable infer-
ences, establish that “but for” the illegal search, the
officers would not have sought a warrant. We disagree
and find that both factors of the independent source
doctrine have been met.
   First, the magistrate judge’s decision to issue the
search warrant was not influenced by the illegal observa-
tion of the shoe box’s contents. The affidavit in support
of the search warrant made no mention of any evidence
found in the container. The affidavit only included the
evidence lawfully observed in plain view, which was
the marijuana and scale on the bed and the crack cocaine
and scale found on the dresser. Therefore, we agree
with the district court that in issuing the warrant, the
judge was not influenced by evidence acquired by the
illegal search.
  Second, although the timing of the events could be read
to establish a casual link between the illegal look into
the shoe box and the decision to seek the warrant, it was
not clear error, based on the record before us, for the
district court to find that the officers would have sought
a warrant had the box not been opened. The affidavit
already reflected sufficient, legally acquired, evidence
of probable cause. Also, Sergeant Herrmann testified
No. 08-1238                                                7

that the decision to procure a warrant was prompted to
determine whether proper authority to consent to the
search existed. Sergeant Herrmann testified that the
officers decided that the safest way to preserve the investi-
gation was to obtain a warrant. Therefore, we hold that
the district court did not clearly error in its determi-
nation that the decision to seek a search warrant was not
prompted by any evidence unlawfully observed. The
rulings and sentence of the district court are A FFIRMED.




                            2-9-09
