In the

United States Court of Appeals
               For the Seventh Circuit

No. 07-3504

D AVID C. B ROCK,
                                               Petitioner-Appellant,
                                 v.

U NITED S TATES OF A MERICA,
                                              Respondent-Appellee.


             Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
              No. 07 C 632—Larry J. McKinney, Judge.



      A RGUED JANUARY 16, 2009—D ECIDED JULY 22, 2009




 Before B AUER, F LAUM and W OOD , Circuit Judges.
  B AUER, Circuit Judge. After police searched two of his
residences, David C. Brock was convicted of possessing,
with the intent to distribute, methamphetamine and
cocaine, and of being a felon in possession of a firearm.
Several years later, Brock brought a motion under
28 U.S.C. § 2255, claiming to have located a previously
unavailable witness, Reginald Godsey, who was
prepared to testify that the officers coerced him into
2                                              No. 07-3504

consenting to a search of the house he and Brock shared.
Therefore, Brock claims, the search was non-consensual
and violated his Fourth Amendment rights, and the
evidence found in that house must be suppressed, with his
sentence vacated or reduced accordingly. The district court
denied Brock’s motion—a decision we affirm.


                   I. BACKGROUND
  On April 9, 2002, federal and state law enforcement
officers executed a federal search warrant for firearms
at Brock’s residence, located at 3375 N. Payton Avenue
in Indianapolis. The search revealed approximately
three pounds of methamphetamine, two pounds of
cocaine, one-quarter pound of marijuana, fourteen guns,
ammunition, and $35,000 in cash. The officers also
found utility bills indicating that Brock paid for at least
some of the utilities at 3381 N. Payton Avenue, the house
immediately next door, since February 2001. Officer
Miller, one of the officers executing the warrant, had
training and experience enough to know that drug
dealers commonly maintain stash houses to avoid
storing all of their inventory in one location.
  Brock was not home at 3375 N. Payton when the search
was conducted. The officers found Godsey instead. Ac-
cording to the officers, Godsey informed them that he
and Brock each rented a room next door at 3381 N.
Payton. Godsey stated that Brock used 3381 N. Payton
as a stash house for drugs and that Brock kept a safe in
his bedroom that currently contained several pounds of
methamphetamine. Godsey watched both houses for
No. 07-3504                                               3

Brock. Godsey consented to a search of his bedroom
in 3381 N. Payton and gave the officers a key to the
house. The officers found a shotgun in plain view in a
common area of the house and some drugs in
Godsey’s bedroom as well as papers linking Brock to
3381 N. Payton. Also from a common area, a police narcot-
ics dog alerted to the southwest section of the house.
   Based on all this information, a state search warrant
was obtained and executed for 3381 N. Payton, still on
April 2, 2002. A search of Brock’s bedroom uncovered
twelve pounds of methamphetamine, eight ounces of
cocaine, seven guns, and ammunition. Brock was indicted
and convicted on six counts: three for the methamphet-
amine, cocaine, and firearms found at 3375 N. Payton
and three for the methamphetamine, cocaine, and
firearms found at 3381 N. Payton. We affirmed the con-
victions. United States v. Brock, 

(7th Cir.
2005); United States v. Brock, 

(7th Cir. 2006).
  In November 2006, more than three years after Brock
was convicted, Brock’s family located Godsey, whose
location was previously unknown to the government or
Brock. Godsey signed a declaration that he only
consented to the search of 3381 N. Payton because the
officers held a gun to his head and threatened him
with sixty years in prison. Brock then brought this § 2255
motion, which the district court denied.


                    II. DISCUSSION
  Brock’s fundamental argument on appeal is that the
newly discovered and previously unavailable evidence
4                                               No. 07-3504

requires, at a minimum, an evidentiary hearing to deter-
mine whether Godsey’s consent was coerced. If it was,
Brock claims, the search of 3381 N. Payton violated
Brock’s Fourth Amendment rights and the evidence
found therein must be suppressed. Brock contends that
the Supreme Court’s limitation on the exclusionary rule
in collateral attacks, described in Stone v. Powell, 

(1976), does not apply. The government
responds that Brock’s claim is barred by Stone, was pro-
cedurally defaulted, and is irrelevant because the search
of 3381 N. Payton was proper under the independent
source doctrine.
  “We review the district court’s conclusions of law de
novo and its denial of a motion for an evidentiary
hearing for abuse of discretion.” Almonacid v. United States,

, 520-21 (7th Cir. 2000).


    A. Limits to the Exclusionary Rule
  Brock claims that Stone does not apply to § 2255 motions
because Stone addressed collateral petitions by state
prisoners under 28 U.S.C. § 2254 while § 2255 is for
federal prisoners. He also argues that he has been denied
“an opportunity for full and fair litigation of [his] Fourth
Amendment claim,” the prerequisite to the Stone bar.

. The government argues that
Stone is equally applicable to federal and state prisoners,
and that Brock received an opportunity for full and
fair litigation of his claim so that Stone applies.
  The exclusionary rule is not required by the Constitu-
tion; it is “a judicially created means of effectuating the
No. 07-3504                                                 5

rights secured by the Fourth Amendment.” 

. The rule is designed to deter violations of the
Fourth Amendment “by removing the incentive to dis-
regard it.” 

(quoting Elkins v. United States, 

, 217 (1960)). It “is not a personal constitutional
right” and “is not calculated to redress the injury to the
privacy of the victim of the search or seizure, for any
‘[r]eparation comes too late.’ ” 

(quoting Linkletter v. Walker, 

, 637 (1965)).
Instead, “[a] person whose rights have been violated by a
search can be remitted to a suit against the police for
committing a constitutional tort.” United States v. Sims, 

, 583-84 (7th Cir. 2009). In sum, “[t]he rule is
calculated to prevent, not to repair.” 

(quoting 

).
   Because the exclusionary rule “deflects the truthfinding
process and often frees the guilty,” 

,
it “has been restricted to those areas where its remedial
objectives are thought most efficaciously served.” 

(quoting United States v. Calandra, 

,
348 (1974)); see Herring v. United States, 

, 700
(2009) (“benefits of deterrence must outweigh the costs”).
For example, the rule does not apply during grand jury
proceedings, or when evidence is used to impeach a
defendant’s testimony, or when officers acted in good
faith reliance on a faulty warrant. 

-
88 (citations omitted); United States v. Leon, 

,
922 (1984). Determining whether the exclusionary rule
may be invoked in this situation requires “weighing the
utility of the exclusionary rule against the costs of ex-
6                                                 No. 07-3504

tending it to collateral review of Fourth Amendment
claims.” 

.
  The Supreme Court conducted this weighing analysis
in Stone and concluded that “where the State has provided
an opportunity for full and fair litigation of a Fourth
Amendment claim, a state prisoner may not be granted
federal habeas corpus relief on the ground that evidence
obtained in an unconstitutional search or seizure was
introduced at his trial.” 

This is because the
added deterrent effect from law enforcement authorities
“fear[ing] that federal habeas review might reveal flaws
in a search or seizure that went undetected at trial and
on appeal” is minimal and “would be outweighed by the
acknowledged costs to other values vital to a rational
system of criminal justice.” 

This Court has
determined that the principles of Stone apply equally to
§ 2255 motions. Owens v. United States, 

, 609
(7th Cir. 2004).
  Brock argues that he was not provided an opportunity
for full and fair litigation because Godsey’s key testi-
mony was not available until recently. Stone did not
explain what an opportunity for full and fair litiga-
tion requires and the term has “caused considerable con-
sternation.” Cabrera v. Hinsley, 

, 530-31 (7th
Cir. 2003). “The only help in Stone is a footnote to a
prior case: ‘Cf. Townsend v. Sain, 

. . . .’ And of
course the value, generally, of ‘Cf.’ citations is often only
revealed in the eye of the beholder.” 

; see Turentine v. Miller, 

, 224 n.1 (7th Cir.
1996) (noting that “[a]t least one court . . . has stated that
No. 07-3504                                                  7

Stone did not necessarily intend to incorporate the full
extent of the Townsend Court’s definition of full and
fair hearing” (citing Palmigiano v. Houle, 

, 881
(1st Cir.), cert. denied, 

(1980))).
  The possibly relevant language in Townsend states:
“Where newly discovered evidence is alleged in a
habeas application, evidence which could not reasonably
have been presented to the state trier of facts, the federal
court must grant an evidentiary hearing. Of course, such
evidence must bear upon the constitutionality of the
applicant’s detention . . . 

. It is question-
able as to whether Brock could have located Godsey
prior to the suppression hearing or at some point
during the trial or direct appeal had he exerted
greater effort. But even if Godsey’s testimony could not
reasonably have been presented earlier, so that it would
truly be newly discovered evidence, the evidence, to be
relevant under Townsend, must relate to the constitu-
tionality of Brock’s detention. 

that his Fourth Amendment rights
were violated is a constitutional claim, but does not
bear upon the constitutionality of Brock’s detention.
    [A] person imprisoned following a trial that relies, in
    part, on unlawfully seized evidence is not “in custody
    in violation of the Constitution or laws or treaties of
    the United States.” 28 U.S.C. § 2254(a). The seizure
    may have violated the Constitution, but the custody
    does not, because the exclusionary rule is a social
    device for deterring official wrongdoing, not a
    personal right of defendants.
8                                                   No. 07-3504

Hampton v. Wyant, 

, 562-63 (7th Cir. 2002); see

(“use of fruits of a past unlawful
search or seizure ‘work[s] no new Fourth Amendment
wrong.’ ” (quoting 

)). Simply
put, Brock’s detention is no less constitutional even if it
turns out that the Fourth Amendment was violated in
effectuating it.
  Brock’s second argument is that this Court has summa-
rized the opportunity for full and fair litigation of a
Fourth Amendment claim by stating that it “guarantees
the right to present one’s case, but it does not guarantee
a correct result.” 

. Brock claims
that he was denied the right to present his case because
he has not been able to introduce this new evidence. But,
read in context, Cabrera’s “right to present one’s case”
simply refers to the right to have a judge listen to
and consider the evidence a party actually presents at
trial. It is the right to have a judge who has not closed
his mind to the issues, is not bribed or sleepwalking, and
is not “in some other obvious way subvert[ing] the hear-
ing.” 

Cabrera did not consider whether an
opportunity for full and fair litigation requires that the
evidence necessary to make the party’s best claim be
available by the time of trial.
  Most importantly, neither of these arguments bears
upon the central issue in Stone and the one which we
must ultimately decide: whether the deterrent benefit of
applying the exclusionary rule in a particular situation
outweighs the social costs of letting the guilty go free, ex-
pending limited judicial resources, and disturbing finality
in criminal trials. 

-90, 491 n.31 (citation
No. 07-3504                                              9

omitted). The deterrent calculus articulated in Stone is
not dependent on when evidence surfaces, as long as
the trial was administered in a just manner. Police mis-
conduct will not be materially checked by fear that
Fourth Amendment violations that go undiscovered
during trial, appeal, and the three-year time period to
file a motion for a new hearing, Fed. R. Crim. P. 33(b),
will be discovered and used in a § 2255 motion, at least
when there is no allegation that the officers prevented
the defendant from finding the evidence. See 

. Any “additional incremental deterrent ef-
fect” this might have “would be outweighed by the
acknowledged costs to other values vital to a rational
system of criminal justice.” 

-94; see

(“[T]he physical evidence sought to be ex-
cluded is typically reliable and often the most probative
information bearing on the guilt or innocence of the
defendant.”).
  Brock makes no claim that his trial or appeals were not
fairly administered or that the government prevented
him from locating Godsey. His unfortunate circumstance
is that, for whatever reason, he did not locate Godsey
until it was too late. Stone prevents Brock from bringing
this § 2255 motion solely on the ground that newly dis-
covered evidence would have triggered the exclusionary
rule if presented earlier.


 B. Independent Source Doctrine
  Even if Brock’s claim was not barred by Stone and an
evidentiary hearing revealed that Godsey’s consent
10                                               No. 07-3504

was coerced so that the initial search of 3381 N. Payton
was conducted in violation of the Fourth Amendment,
this would not automatically preclude introduction of
the evidence discovered at 3381 N. Payton. In describing
the purpose of the exclusionary rule, the Supreme Court
has stated that
     the interest of society in deterring unlawful police
     conduct and the public interest in having juries
     receive all probative evidence of a crime are properly
     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 Murray, the Supreme Court
held that evidence originally discovered or seized
illegally can be legally rediscovered or reseized and used
against the defendant at 

. In this
case, the critical evidence in Godsey’s bedroom was
initially discovered and seized according to a warrant,
making the facts more similar to Segura v. United States,
No. 07-3504                                               11

(1984). 1 However, the exclusionary rule
would still apply if the warrant was tainted by the previ-
ously discovered evidence that was illegally obtained.

. To be admissible, the
evidence discovered from the second search of 3381 N.
Payton must have been discovered independently of
Godsey’s supposedly coerced statements and consent
and the evidence obtained from the first search of
3381 N. Payton.
   Deciding 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.” 

487 U.S. at 542). The heart of this question is whether,
taking away any illegally obtained information, the
affidavit still demonstrated probable cause. 

.
  “[D]etermining whether probable cause exists involves
‘a practical, common-sense decision whether, given all
the circumstances set forth . . . there is a fair probability



1
  It is not clear whether Brock was charged with possessing
the shotgun found in plain view during the first search of
3381 N. Payton. Brock does not mention the shotgun on
appeal and it seems irrelevant whether Brock was charged
with possessing eight versus seven guns recovered from
3381 N. Payton. Also, the shotgun was likely rediscovered
during the second search of 3381 N. Payton according to the
independent source rule (see below).
12                                                No. 07-3504

that contraband or evidence of a crime will be found in
a particular place.’ ” 

v. Gates, 

, 238 (1983)). In this case, the affidavit explained
that Brock had been previously convicted for dealing
cocaine. A substantial amount of drugs, several guns,
and a large amount of cash had just been recovered
from one of Brock’s residences. Utility bills were discov-
ered in 3375 N. Payton linking Brock to 3381 N. Payton,
the house immediately next door. And the affidavit
noted Officer Miller’s experiential knowledge that stash
houses are common in the narcotics industry. Finally, “a
magistrate is entitled to draw reasonable inferences
about where evidence is likely to be kept [and] in the
case of drug dealers evidence is likely to be found where
the dealers live.” United States v. Reddrick, 

,
1281 (7th Cir. 1996) (quotations and citations omitted).
There was more than sufficient evidence to create “a fair
probability” that the search would be productive.

.
  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 

). Here we
do not have, nor would we expect, any testimony from
the officers or a finding by the district court that the
officers would have sought the warrant regardless of
the presumptively illegal activity because the allegation
of coercion came several years after the trial. Based on
the evidence in this case, it would be easy to conclude
that the officers would have sought the warrant even
without speaking to Godsey or initially searching
No. 07-3504                                              13

3381 N. Payton. Nevertheless, this is a decision for the
district court. 

-44; 

. We do not need to remand this case, however,
because it is already barred by Stone.


                   III. CONCLUSION
  For the reasons discussed above, we A FFIRM the denial
of Stone’s § 2255 motion.




                           7-22-09