United States v. Bach ( 2010 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 09-2603
UNITED STATES,
Appellee,
v.
JOSHUA BACH,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Lipez and Thompson,
Circuit Judges.
Bruce M. Merrill, P.A., on brief for appellant.
Renée M. Bunker, Assistant U.S. Attorney and Paula D. Silsby,
United States Attorney, on brief for appellee.
August 5, 2010
Per Curiam. Defendant-appellant Joshua Bach, who entered
a conditional guilty plea to one count of possessing a computer
that contained images of child pornography, in violation of 18
U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A), files this direct criminal
appeal to challenge the district court's denial of his motion to
suppress computer files seized from his home during a warrantless
search by United States Immigration and Customs Enforcement ("ICE")
agents. He disputes the district court's determination that his
consent to the search was voluntary.1 Appellant also contends that
the search was invalid because it was begun before he signed the
written consent form, contrary to the district court's finding.
Thirdly, he argues that even if his consent was voluntarily and
timely given, the items seized were beyond the scope of his
consent. Finally, appellant contends that the district court did
not apply de novo review in adopting the Magistrate Judge's
Recommended Decision, to which appellant had objected, in violation
of 28 U.S.C. § 636(b)(1)(C). Finding none of these claims on
appeal to have merit, we summarily affirm.
I. Voluntariness of Consent
Because the ICE agents did not have a warrant to search
Bach's home or his computer, they relied upon an exception to the
warrant requirement for consensual searches. "In order for consent
1
References to the district court's determinations and
findings are references to the magistrate judge's Recommended
Decision since the district court adopted it in full.
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to be valid, the Government must prove by a preponderance of the
evidence that the consenting party gave it freely and voluntarily.
The assessment of whether consent is free and voluntary is a
question of fact that requires an examination of the totality of
the circumstances surrounding the relevant transaction between law-
enforcement authorities and the consenting party. The district
court's factual findings relating to the validity of the consent
are reviewed for clear error." United States v. Jones, 523 F.3d
31, 37 (1st Cir. 2008).
Appellant argues that his consent was not voluntary under
the totality of the circumstances, "given the length of time that
Appellant was questioned (90 minutes), in a confined space, by two
agents who were openly displaying weapons, and who did not advise
him of his right to refuse consent." Examination of each of those
factors, and consideration of them in combination, does not
establish that the district court clearly erred in its
determination that Bach's consent to the computer search was
voluntary.
Length of Time. According to the district court's
findings, approximately 50 minutes passed from the time when the
ICE agents first asked Bach if they could search his computer (at
4:30 or 4:35) and when he signed the written consent form (at 5:20
p.m.), and the entire length of time that the police were in Bach's
home was just under two hours. It was not clearly erroneous for
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the district court to conclude that this duration of time was
insufficient to render the consent involuntary, especially where it
further found that during the elapsed time, Bach "carefully read a
written consent form and asked a number of questions, to which
police gave truthful answers, in an attempt to make a fully-
informed decision." Compare United States v. Ivy, 165 F.3d 397,
402 (6th Cir. 1998) (holding that consent to search was involuntary
where one and a half hours passed between the officers' initial
request for consent and Ivy's ultimate decision to sign the consent
form, the "entire incident" took from seven to eight hours, and
"the police officers used unlawful threats to secure Ivy's
consent"). Nor did the fact that the officers twice asked Bach to
read and consider signing the consent form render the eventual
consent involuntary. See Jones, 254 F.3d at 696 (stating that
there is "no legal rule that asking more than once for permission
to search renders a suspect's consent involuntary, particularly
where the suspect's initial response is ambiguous").
Confined Space & Open Display of Weapons. The district
court found that "[a]t no time did the agents restrict [Bach's]
freedom of movement, refer to their weapons, or tell the defendant
he was in custody." The agents' weapons were "visibly holstered at
their belts," but Bach testified that they never unholstered their
weapons. See United States v. Pena, 143 F.3d 1363, 1367 (10th Cir.
1998) (holding that consent was voluntary notwithstanding presence
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of four armed officers where "none of the officers unholstered his
firearm"); United States v. Baker, 78 F.3d 1241, 1244 (7th Cir.
1996)(holding that consent was voluntary even though the officer
had his hand on his gun, where he "never drew it out of his
holster"). The mere presence of visible weapons is not enough to
render Bach's consent involuntary.
Bach argues that he was in a "confined space" when he
consented, which he maintains supports a finding that the consent
was not voluntary. However, consent is most likely to be found to
be involuntary where it occurs in a "stationhouse atmosphere,"
rather than in "familiar surroundings." 4 Wayne R. LaFave, Search
and Seizure, § 8.2(b) (4th ed. 2004)(collecting cases). Here, the
fact that Bach was in his own home when he consented to the search
weighs in favor of finding that consent was given voluntarily. See
United States v. Blakeney, 942 F.2d 1001, 1016 (6th Cir.
1991)(holding that defendant's consent was voluntary and
emphasizing that his "consent was not given in a police station,
but at his home").
Notification of Right to Refuse Consent. The Magistrate-
Judge concluded that he was
satisfied, from the evidence as a whole,
including the defendant's background and
intelligence, the wording on the form itself,
and the many questions he asked agents, to
which essentially accurate responses were
provided, that he was effectively apprised
that he had a right to refuse consent, and
that if he did so, agents would be obliged to
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obtain a search warrant to search the
computer.
Based upon our review of the transcript of the hearing on the
motion to suppress, that finding is supported by "a reasonable view
of the evidence," and is not clearly erroneous. United States v.
Coraine, 198 F.3d 306, 308 (1st Cir. 1999).
The magistrate judge rejected Bach's testimony that Agent
McDonnell had told him that if he did not consent they would "go
get a search warrant" (rather than "apply" for a search warrant, as
McDonnell testified). The former version of events would lend
support to Bach's argument that the consent was involuntary. See
4 Search and Seizure, § 8.2(c). However, the district court's
choice to credit Agent McDonnell's testimony, which "comport[ed]
with [Agent] Madden's contemporaneous handwritten notes," was not
clearly erroneous. See Coraine, 198 F.3d at 310.
II. Timing of Consent
Appellant argues that the consent was invalid because it
occurred only after the search had commenced. The district court
found that Agent McDonnell "did not begin to run the pre-search
software until the defendant finally signed the written consent
form." Appellant maintains that "[t]here exists a serious question
as to whether that consent was obtained before or after the pre-
search software was inserted into Appellant's computer and run."
"In the absence of a reason not to do so, this court
defers to the district court's personal observations and evaluation
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of the witnesses' credibility." United States v. Marshall, 348 F.3d
281, 286 (1st Cir. 2003). The magistrate judge explained at length
its reasoning for crediting Agent McDonnell's testimony regarding
the timing of the consent over Bach's version of events. The
record supports the district court's finding in this regard, and
appellant has not shown that it is clearly erroneous. See Coraine,
198 F.3d at 308 ("the district court's findings of fact deserve
deference so long as a reasonable view of the evidence will support
them").
III. Scope of Consent
Appellant argues that even if he voluntarily signed the
written consent form before the computer search began, the evidence
seized should have been suppressed because it did not fall within
the scope of his consent. Bypassing the question whether appellant
waived this argument because he raised it for the first time in his
objection to the Recommended Decision of the magistrate judge, we
conclude that in any event it is unavailing.
"'A consensual search may not exceed the scope of the
consent given.'" United States v. Turner, 169 F.3d 84, 87 (1st Cir.
1999)(citation omitted). In determining the scope of consent
given, this court employs an "objective reasonableness" standard,
and "look[s] beyond the language of the consent itself, to the
overall context, which necessarily encompasses contemporaneous
police statements and actions." Id.-7-
Appellant argues that the language of the written consent
form authorized the ICE agents to search his computer only for
images of children "engaged in adult sexual activities" and that
the images on his computer did not fall within that scope.
However, Agent McDonnell testified at the evidentiary hearing
before the magistrate judge that after Bach received the written
consent form, but before he signed it, McDonnell "informed Mr. Bach
that the federal statute covering the definition of child
pornography included the lascivious display of the genitals of a
child under age 18." Bach admitted that McDonnell had "told [him]
the definition of child pornography."
Given the undisputed evidence that Agent McDonnell
explained to Bach, before he signed the written consent form, the
definition of the child pornography which was the object of the
search, the items seized (which fit within the stated definition)
were within the scope of the consent. See United States v.
Brenton-Farley, 607 F.3d 1294, 1332, (11th Cir. 2010)(holding that
defendant's consent to the search of his laptop computer
encompassed the child pornography evidence because by the time
defendant consented to the search "he was well aware of the true
subject of the investigation").
IV. De Novo Review by the District Court
Appellant has not identified any legal authority for his
contention that the district court's order adopting a magistrate
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judge's decision must include an express statement that it has
applied de novo review (although it is the better practice).
Although the district court was "required to review the magistrate
judge's decision de novo, 28 U.S.C. § 636(b)(1)(C)," Jonco, LLC v.
ALI, Inc., 157 F.3d 33, 35 (1st Cir. 1998), it was not required to
make "separate findings of fact or issue an opinion setting forth
its own reasoning." Id. "The statute authorizes the district
court to adopt in whole as well as in part the proposed findings or
recommendations of the magistrate judge." Elmendorf Grafica, Inc.
v. D.S. America (East), Inc., 48 F.3d 46, 49 (1st Cir. 1995).
Despite the district court's failure to expressly state that it had
engaged in de novo review, appellant has not demonstrated that the
district court failed to do so. See Claude v. Peikes, 534 F.3d
801, 801 (2d Cir. 2008)(adopting rule that district court is
presumed to have conducted a de novo review of a magistrate judge's
report and recommendation absent some clear indication otherwise).
Affirmed. See 1st Cir. R. 27.0(c).
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