In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-1319

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

C HRISTOPHER A. B UDD,
                                          Defendant-Appellant.


            Appeal from the United States District Court
                  for the Central District of Illinois.
      No. 4:07-cr-40026-JBM-JAG-1—Joe Billy McDade, Judge.



  A RGUED S EPTEMBER 23, 2008—D ECIDED D ECEMBER 17, 2008




 Before B AUER, C UDAHY and W ILLIAMS, Circuit Judges.
  B AUER, Circuit Judge. Christopher Budd was charged
in four counts with receipt, possession, and distribution
of child pornography. After the district court denied
Budd’s motion to suppress evidence found on his com-
puter and certain statements he made to the police, Budd
entered a conditional guilty plea to all four counts while
reserving his right to appeal the court’s ruling on the
motion. Budd now appeals that ruling and we affirm.
2                                               No. 08-1319

                   I. BACKGROUND
  Budd left his Gateway computer with CNT Computers,
Inc. (CNT) for repairs on December 13, 2006. While diag-
nosing one of the computer’s problems, Tom Doyle, the
owner of CNT, discovered a file titled, “A Three Year Old
Being Raped.” Doyle opened the file and saw a video of
a small female child naked in a bathtub with a naked
adult male who had an erect penis. Doyle exited the
video before he saw any physical contact between the two.
  On December 14, 2006, Doyle called the Moline Police
Department to report what he had seen. Officer Mark
Kinsey came to CNT, spoke with Doyle, and, with Doyle’s
permission, took the computer to the Moline Police De-
partment where it was logged into evidence. The case was
assigned to Detective Ted Teshak for further investigation.
Detective Teshak began his investigation on December 15,
2006, by opening a case file and running a criminal
history and driver’s license check on Budd. Because of a
combination of a general backlog of cases, filling in for
his colleagues during the holiday season, taking days off
for the holiday season, and moving into a new police
station, no work was done on the case between
December 15, 2006 and January 11, 2007.
  Amy Hillyer, a CNT employee, called Detective Teshak
on January 11, 2007 and reported that Budd had been
calling and visiting the store inquiring about his computer.
Hillyer had told Budd that the computer was not ready
No. 08-1319                                             3

yet.1 Detective Teshak attempted to contact Doyle over
the next two business days to confirm Doyle’s report
before moving forward with the investigation. Before
Detective Teshak could reach Doyle, Budd called the
Moline Police Department on January 15, 2007 and re-
ported the suspected theft of his computer by CNT. Budd
was transferred to Detective Teshak who told Budd that
the police department had his computer and that there
had been a complaint about possible child pornography
on the computer. Budd volunteered that the computer
contained “pretty graphic” files that he should not have.
Detective Teshak said that he needed to talk to Budd
in person and Budd agreed to come to the police station
in a few hours after he explained that he had the files on
his computer because he was a “vigilante” who searched
for online predators. After speaking with Budd on the
phone, Detective Teshak was able to reach Doyle who
confirmed the events he had related to Officer Kinsey.
  Budd arrived at the police station as planned and was
escorted to an interview room. He was interviewed by
Detective Teshak in the presence of his supervisor, Ser-
geant Titus. After being told—and confirming that he
understood—that the interview was voluntary, Budd
admitted that he had been collecting child pornography
on his computer for the last two months in his efforts as
a “vigilante” and that there were about 30 files of child




1
 Hillyer was not instructed to do this by anyone in the
Moline Police Department.
4                                               No. 08-1319

pornography on his Gateway computer.2 During the
interview, Budd denied having any child pornography
other than that on the Gateway computer and verbally
consented to a search of his apartment. The three men
drove to Budd’s apartment and, once inside, Budd signed
a consent-to-search form. Detective Teshak’s search
revealed a Seagate hard drive along with some CDs and
floppy diskettes. Budd allowed the officers to take the
items for the purpose of searching them and agreed to
accompany the officers back to the station. Upon returning
to the same interview room, Budd signed a consent-to-
search form for the hard drive, CDs, and floppy diskettes.
  After being reminded that he was free to leave at any
time, Budd agreed to answer some more questions and
stated that he began downloading child pornography as
a vigilante, but that he found it both arousing and dis-
turbing at the same time.
  The next day, January 16, 2007, Budd called Detective
Teshak to clarify some of the statements Budd made the
previous day. Budd volunteered that he had been
addicted to child pornography for a few years and that
there would likely be more child pornography on the
Seagate hard drive. During the phone call, Budd agreed to
come to the police station the following day for more
questioning. After being told again at the police station
that the interview was voluntary and that he did not
have to answer any questions with which he felt uncom-


2
 Budd later stated that he downloaded the files over a seven-
month period.
No. 08-1319                                            5

fortable, Budd gave a more detailed account of his
history of downloading child pornography onto his
computer.
  A search warrant was obtained on January 30, 2007 for
the Gateway computer and Seagate hard drive and an
examination of these two devices revealed at least 30
still images and at least 70 videos of child pornography.
Budd was arrested on March 12, 2007. Before trial, Budd
moved to suppress both the incriminating statements
he made to the police and the evidence found on his
computer and hard drive. The district court denied the
motion and Budd pleaded guilty, but specifically retained
his right to appeal the ruling on his motion to suppress.


                   II. DISCUSSION
  On appeal, Budd claims that the district court erred in
denying his motion to suppress. Budd argues that his
Gateway computer was illegally seized, therefore the
exclusionary rule precludes introduction of the
images found on his computer. Budd contends that his
statements to the police and the evidence found on his
Seagate hard drive were derivative of the illegal seizure
of his computer and should have been suppressed as
fruits of the poisonous tree. He also asserts that the
district court should have suppressed his statements to
the police because they were given without proper
Miranda warnings. The government states that the
evidence was admissible because the seizure of the Gate-
way computer was reasonable and that the computer
was searched pursuant to a valid search warrant.
6                                              No. 08-1319

  The government also contends that assuming the
seizure was illegal, the evidence at issue was obtained
independent of any illegality and was therefore admissi-
ble. Finally, the government argues that Budd’s statements
were voluntary and that Miranda warnings were not
required because Budd was not in custody when he
made the statements at issue.


    A. Budd’s Statements to the Police
  Budd claims that his Fourth Amendment right to be
free from unreasonable seizures was violated: (1) immedi-
ately upon Officer Kinsey taking possession of the
Gateway computer; and (2) independently due to the
length of time the Moline Police Department retained
the computer before seeking a search warrant. We
assume, without deciding, that at some point during
the 48-day period after Officer Kinsey obtained the com-
puter and before the police obtained a search warrant,
the seizure became unreasonable due primarily to the
length of the delay.
  Budd argues that, but for the illegal seizure and contin-
ued detention of his computer, he would have had no
reason to call the police, would not have agreed to ques-
tioning, and would not have made any incriminating
statements to the authorities; therefore his statements
should have been suppressed as derivative of the illegal
seizure. The government argues that Budd voluntarily
made the incriminating statements and that they were not
derivative of any illegality.
No. 08-1319                                                   7

   “[T]he exclusionary rule reaches not only primary
evidence obtained as a direct result of an illegal search or
seizure, but also evidence later discovered and found to be
derivative of an illegality or ‘fruit of the poisonous tree.’ ”
Segura v. United States, 

, 804 (1984) (citations
omitted). However, “[t]he [Supreme] Court has never
held that evidence is ‘fruit of the poisonous tree’ simply
because ‘it would not have come to light but for the illegal
actions of the police.’ ” 

(quoting Wong Sun v.
United States, 

, 487-88 (1963)). “Even in situa-
tions where the exclusionary rule is plainly applicable, we
have declined to adopt a ‘per se or “but for” rule’ that
would make inadmissible any evidence, whether
tangible or live-witness testimony, which somehow came
to light through a chain of causation that began
with [illegal police activity].” United States v. Ceccolini, 

, 276 (1978) (citation omitted). The true question
is “whether, granting the establishment of the primary
illegality, the evidence . . . has been come at by exploita-
tion of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.” United
States v. Carsello, 

, 202 (7th Cir. 1978) (quoting
Wong 

).
  In this case, Budd demonstrated nothing more than
but for causation. There is no evidence that the govern-
ment exploited the illegal seizure of the computer; the
government did nothing more than place the unsearched
computer into an evidence room and leave it there. It was
Budd who called the police, volunteered that he had
“pretty graphic” files on his computer, and agreed to come
down for questioning at the police station. It was Budd
8                                               No. 08-1319

who called Detective Teshak the day after Budd’s first
interview to clarify some of his previous statements. Budd
chose to make this second phone call, not because of
police exploitation of the illegal seizure, but, as he told
Detective Teshak, because he felt that in order to start
the “healing” process, he needed to be truthful about the
files on his computer. The illegal seizure indirectly
prompted Budd’s first phone call to the Moline Police
Department; however, the seizure was not exploited, nor
did it compel Budd to incriminate himself. Budd’s state-
ments to the police were not derivative of the seizure.
  Budd also argues that his statements should have been
suppressed because they were not preceded by proper
Miranda warnings. The government responds that since
Budd was not in custody when he made the relevant
disclosures, Miranda warnings were not required.
    Miranda warnings are not required merely because
    the individual questioned by law enforcement officers
    is a suspect or is the focus of a criminal investigation.
    The suspect must be both “in custody” and subjected
    to “interrogation” before the Miranda warning[s] are
    required to be administered.
    A custodial interrogation occurs when there is ques-
    tioning initiated by law enforcement officers after a
    person has been taken into custody or otherwise
    deprived of his freedom of action in any significant
    way.
United States v. Barker, 

, 628 (7th Cir. 2006)
(internal quotations and citations omitted). “[T]he test is
not whether the defendant was under a subjective
No. 08-1319                                                 9

belief that his or her movements were restricted, but
whether a reasonable person in the defendant’s position
would believe that he or she was free to leave.” United
States v. Lennick, 

, 977 (7th Cir. 1990) (citation
omitted).
    A totality of the circumstances test is used to [make
    this determination]. In considering the totality of the
    circumstances, factors include (1) whether the encoun-
    ter occurred in a public place; (2) whether the
    suspect consented to speak with the officers;
    (3) whether the officers informed the individual that
    he was not under arrest and was free to leave;
    (4) whether the individuals were moved to another
    area; (5) whether there was a threatening presence
    of several officers and a display of weapons or
    physical force; (6) whether the officers deprived the
    defendant of documents she needed to continue on
    her way; and (7) whether the officers’ tone of voice
    was such that their requests would likely be obeyed.

(internal quotations and cita-
tions omitted).
  Budd initiated his first contact with the Moline Police
Department and agreed to meet at the police station for
questioning. After Detective Teshak obtained some back-
ground information from Budd, Budd was told that the
interview was voluntary, that he could leave at any time,
and that he was not going to be arrested on that date.
With this knowledge, Budd agreed to talk with Detec-
tive Teshak. When he rode with Detective Teshak and
Sergeant Titus to his apartment, Budd rode in the front seat
10                                              No. 08-1319

of an unmarked Ford Taurus. Budd agreed to return to the
police station for more questioning after his apartment was
searched. Before this second interview, Budd was re-
minded again that the interview was voluntary and was
told that he did not have to answer any questions he
was not comfortable answering. When Budd called Detec-
tive Teshak the next day, Budd again agreed to meet at
the police station. Budd allowed Detective Teshak to
pick him up from the community college he was at-
tending and to drop him off at his apartment after the
interview. Again, Budd rode in the front seat of the
vehicle. Before asking any questions on January 17, 2007,
Detective Teshak told Budd that the interview was volun-
tary and that he did not have to answer any of the ques-
tions.
  Each interview took place in what Detective Teshak
described as a “soft” interview room on the second floor
that had carpet, wallpaper, and comfortable furniture,
and was used to interview victims, witnesses, and sus-
pects. At the suppression hearing, Budd agreed that
neither officer raised his voice during the January 15, 2007
interviews, that the tone of those interviews was “very
calm,” and that “the whole interaction during the entire
day was fairly calm.” The officers were dressed in plain
clothes and, though carrying sidearms, never made a
display of force. Budd was never placed in handcuffs
before he was formally arrested and read his Miranda
rights.
  The majority of Budd’s support for his contention that
he was in custody focuses around the fact that he was in
No. 08-1319                                                  11

a police station and could not roam the halls of the investi-
gations unit unescorted. Budd explains how he had to
push a buzzer to be let into the main lobby of the police
station. He was escorted to the second floor by way of
an elevator that required a magnetic security card to
operate. He walked down a long hallway to get to the
interview room. He understood that he was not allowed
to move throughout the building without one of the
officers with him. 3 These are not extraordinary circum-
stances, especially in light of the fact that Budd agreed
to meet at the police station.
   Budd’s only other complaint is that toward the end of the
first interview he requested to go to the bathroom and
claims he was told: “in just a minute.” Sergeant Titus did
not remember Budd being asked to wait. Regardless, this
did not “deprive[ ] [Budd] of his freedom of action in any
significant way.” Miranda v. Arizona, 

, 444
(1966). Budd was escorted to a secure bathroom where
the occupant could not open the door or flush the toilet
from the inside. This was the closest bathroom to the
interview room and was commonly used by all inter-
viewees in that part of the building, including witnesses.
Sergeant Titus explained the security features to Budd
before he used the bathroom and stood outside the door
to let Budd out upon request. Based on the totality of the
circumstances, a reasonable person in Budd’s position



3
  Sergeant Titus testified that all non-staff persons, including
officers from other jurisdictions, were required to be escorted
in and out of the secured part of the building.
12                                             No. 08-1319

would have believed he or she was free to leave. Therefore,
Budd was not in custody and Miranda warnings were
not required.


 B. Seagate Hard Drive
  Budd contends that the discovery of the Seagate hard
drive was derivative of the initial illegal seizure of his
Gateway computer so that the evidence on the hard drive
should have been suppressed. As discussed above, Budd’s
statements to the police were not derivative of any illegal
seizure. They were voluntarily given while Budd was not
in custody. It follows then, that evidence discovered as
a result of those statements cannot be tainted.
   During one of his voluntary conversations with the
police, Budd verbally agreed to let the officers search his
apartment. Budd allowed the police into his apartment
and signed a consent-to-search form. When the hard
drive was discovered, Budd verbally consented to the
officers taking the hard drive for the purpose of searching
it. Budd later signed a separate consent-to-search form
for the hard drive.
  Despite giving two verbal consents and signing two
consent-to-search forms, all at separate times, Budd now
contends that he did not knowingly or voluntarily consent
to the search of his apartment or to the search of the
Seagate hard drive. We agree with the district court that
Budd voluntarily consented to both searches. Both of the
consent forms Budd signed stated:
     1.   I have not been promised anything in exchange for
          consenting to this search.
No. 08-1319                                              13

   2.   I have not been threatened in any way to force
        or compel me to give this voluntary consent to
        search.
   3.   I have the right to refuse the search of my vehicle,
        person, or residence.
Detective Teshak testified that he observed Budd take
the time to pause and read both consent forms. At the
suppression hearing, Budd admitted that he at least
skimmed the form the first time he signed it. Budd also
confirmed that he was not threatened into signing the
forms. Additionally, the actual search of the hard drive
was not conducted until the police obtained a valid
warrant, as discussed below. Because the hard drive was
discovered and searched pursuant to Budd’s voluntary
and repeated consent, and the search was executed pursu-
ant to a valid warrant, the district court did not err in
denying Budd’s motion to suppress the evidence found
on the hard drive.


 C. Gateway Computer
  As mentioned above, we assume, for the purpose of this
review, that the seizure of Budd’s computer was unrea-
sonable. However, the legality of the seizure is not the
ultimate issue in this case because an illegal seizure does
not automatically preclude all evidence obtained after
the seizure.
   [T]he interest of society in deterring unlawful police
   conduct and the public interest in having juries
   receive all probative evidence of a crime are properly
14                                               No. 08-1319

     balanced by putting the police in the same, not a
     worse, position that they would have been in if no
     police error or misconduct had occurred. When the
     challenged evidence has an independent source,
     exclusion of such evidence would put the police in a
     worse position than they would have been in absent
     any error or violation.
Nix v. Williams, 

, 443 (1984) (citations omitted).
Typically these so-called independent source doctrine
cases involve an illegal search and discovery of evidence
followed by a second search conducted after a warrant
is obtained. See Murray v. United States, 

, 535-
36 (1988); see also United States v. Markling, 

,
1311-12 (7th Cir. 1993). In this case, we are faced with the
presumptively illegal seizure of Budd’s computer followed
by a search of the computer conducted pursuant to a
warrant. However, the same process can be used to
determine whether the evidence discovered on Budd’s
computer was obtained independent of the original
illegal police activity. “The ultimate question” in this
case is whether the search of Budd’s computer pursuant
to the search warrant “was in fact a genuinely independent
source of the” evidence found on his computer. 

.
   Determining whether evidence was obtained from an
independent source involves a two-part test. 

. “The first question is whether the
illegally obtained evidence affected the magistrate’s
decision to issue the search warrant.” Id. (citing 

). The heart of this question is whether,
No. 08-1319                                                15

taking away any illegally obtained information, the
affidavit still demonstrated probable cause. 

. In this case, the only thing possibly illegally
obtained was the computer itself and physical possession
of the computer was not required to show probable
cause. Doyle’s testimony alone was sufficient to create “a
fair probability that contraband or evidence of a crime
[would] be found” on Budd’s computer. Illinois v. Gates,

, 238 (1983).
   The admissions by Budd, though not necessary, also
created probable cause and were not tainted by the
illegal seizure, as discussed above.
  The second part of this test asks whether the “decision to
seek the warrant was prompted by” information gained
from the initial illegal activity. 

-16
(quoting 

). Again, in this case, the
only thing gained from the initial illegal activity was
physical possession of the computer. The district court
seemed to credit Special Federal Officer Lynn’s testi-
mony that he would have applied for a warrant regard-
less of whether the Moline Police Department had
physical possession of the computer. While it is true that
“officers’ assurances” that they would have sought a
warrant are not to be credited “[w]here the facts render
those assurances implausible,” in this case, the assurances
were not implausible. 

n.2. Regard-
less, the computer was not searched until a warrant
was obtained so the only information available when
deciding to apply for the warrant was Doyle’s account of
what he had seen and Budd’s statements, both of which
16                                                 No. 08-1319

were untainted and it was permissible to consider them.
Simply put, the officers were not influenced by any
improper information because there was no improper
information by which to be influenced.4


                    III. CONCLUSION
  For the reasons set forth above, we A FFIRM the
district court’s denial of Budd’s motion to suppress.




4
   Budd’s argument that he might have deleted the files had
the computer been promptly returned fails because it is specula-
tive and because there is no constitutional right to destroy
evidence. 

& n.10.



                            12-17-08