United States v. Jacob Bermel ( 2023 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 22-3092
    ___________________________
    United States of America
    Plaintiff - Appellee
    v.
    Jacob Paul Bermel
    Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the Southern District of Iowa - Eastern
    ____________
    Submitted: September 21, 2023
    Filed: December 12, 2023
    ____________
    Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
    ____________
    GRUENDER, Circuit Judge.
    Jacob Bermel conditionally pleaded guilty to two child pornography offenses
    after the district court 1 denied his motion to suppress evidence found on a camera
    that he hid in his daughter’s bathroom. Bermel appeals that denial, and we affirm.
    1
    The Honorable Stephanie M. Rose, Chief Judge, United States District Court
    for the Southern District of Iowa.
    I.
    Bermel and his ex-wife lived apart but shared custody of their fourteen-year-
    old daughter. The daughter did not keep a set visitation schedule. She was free to
    come and go from Bermel’s house as she pleased, and she was sometimes left alone
    at his house. When the daughter stayed at Bermel’s house, she used a particular
    bathroom. One day, while using the bathroom, she discovered a camera. Concerned,
    the daughter called her mother, reported what she had found, and asked to be picked
    up.
    After picking up the daughter, the mother called the police and spoke with
    Officer Jacob Elliott of the Muscatine Police Department about what had happened.
    During the call, Officer Elliott learned that the daughter had found a camera affixed
    to a cabinet in her bathroom. The mother did not appear to believe that the camera
    had a memory card. During the call, Officer Elliott heard the daughter agree to speak
    with officers about what had happened.
    Officer Elliot and another officer went to the mother’s home and met with the
    mother and daughter. At Officer Elliot’s request, the mother handed the camera to
    Officer Elliot and explained that they placed duct tape over the camera lens for fear
    that the camera might still be recording. The daughter told the officers that she found
    the camera on a small swivel in the bathroom that she used when she stayed at
    Bermel’s house.
    After the mother and daughter described what had happened, Officer Elliot,
    with the camera in hand, stated: “What’s going to happen is, I’m going to take this,
    okay? We’re going to analyze and see if there’s anything on it.” Neither the mother
    nor the daughter objected. The officers left and reviewed videos found on a memory
    card within the camera. The videos showed Bermel setting up the camera, as well
    as the daughter getting in and out of the shower.
    -2-
    Following further investigation, law enforcement identified Bermel as the
    source of depictions of child pornography uploaded to the internet. Bermel was
    indicted on several child-pornography offenses. See 
    18 U.S.C. § 2252
    . Later,
    Bermel filed a motion to suppress the evidence found on the camera. He argued that
    the warrantless seizure and subsequent warrantless search of the camera and the
    memory card within it violated his Fourth Amendment rights. The district court
    denied the motion and concluded that the seizure was justified by exigent
    circumstances and that the search was lawful because the daughter consented to it.
    Following the denial of his motion, Bermel conditionally pleaded guilty to producing
    and possessing child pornography, reserving the right to appeal the denial. The
    district court accepted Bermel’s conditional guilty plea and sentenced him to 300
    months’ imprisonment. Bermel appeals.
    II.
    On appeal, Bermel maintains that the warrantless search of the camera and its
    memory card violated the Fourth Amendment. 2 He makes three arguments in this
    regard. First, he claims that minor children, as a matter of law, cannot consent to a
    search of their parents’ property. Second, he argues that, even if minors may possess
    actual or apparent authority to consent to such searches under certain circumstances,
    the daughter lacked such authority here. Third, he contends that the district court
    clearly erred in finding that the daughter consented to the search of the camera and
    the memory card contained within it. In our consideration of these arguments, we
    review the district court’s factual findings for clear error and its ultimate conclusion
    about whether the Fourth Amendment was violated de novo. United States v.
    Sandoval, 
    74 F.4th 918
    , 922 (8th Cir. 2023).
    2
    Though Bermel argued in the district court that the seizure of the camera was
    unlawful, he does not appeal the district court’s conclusion that the seizure was
    justified by exigent circumstances.
    -3-
    Warrantless searches of a person’s effects are generally prohibited under the
    Fourth Amendment unless an exception to the warrant requirement applies. Horton
    v. California, 
    496 U.S. 128
    , 133 (1990). One exception allows police officers to
    search an object without a warrant if a third party who has common authority over
    the object consents to the search. See United States v. Williams, 
    36 F.4th 792
    , 795
    (8th Cir. 2022). Indicia of a third party’s common authority over property are mutual
    use or joint access or control. See United States v. Matlock, 
    415 U.S. 164
    , 171 n.7
    (1974). Whether or not a third party actually possessed common authority, a
    warrantless search is justified “when an officer reasonably relies on a third party’s
    demonstration of apparent authority.” United States v. Amratiel, 
    622 F.3d 914
    , 915
    (8th Cir. 2010). Apparent authority exists if “the facts available to the officer at the
    moment . . . warrant a man of reasonable caution in the belief that the consenting
    party had authority over the [property].” Illinois v. Rodriguez, 
    497 U.S. 177
    , 188
    (1990) (internal quotation marks omitted).
    A.
    Bermel begins with an all-or-nothing argument. He urges us to hold that it is
    “unreasonable for law enforcement to rely upon a minor child’s consent to search a
    parent’s items, in any circumstance.” In support, he cites two state supreme court
    decisions, a federal district court order, and one concurrence and one dissent of
    judges from other circuits. Yet not one of Bermel’s five proffered authorities stands
    for the per se rule that he advances. Four of them explicitly disclaim a per se rule.
    See People v. Jacobs, 
    729 P.2d 757
    , 764 (Cal. 1987) (“We do not suggest that
    consent by a minor will be ineffective in all cases . . . .”); Abdella v. O’Toole, 
    343 F. Supp. 2d 129
    , 135 (D. Conn. 2004) (“This court accepts and adopts the general rule
    that minority does not per se preclude a factual finding of actual or apparent
    authority.”); United States v. Sanchez, 
    608 F.3d 685
    , 697 (10th Cir. 2010) (Lucero,
    J., concurring) (“I would not impose a per se ban on third-party consent from a
    minor.”); United States v. Belt, 
    609 F. App’x 745
    , 759 (4th Cir. 2015) (Wynn, J.,
    dissenting) (discussing the circumstances under which a minor could validly consent
    to a search of the family home). To the extent the fifth, Commonwealth v. Garcia,
    -4-
    adopted such a rule, the case is apparently no longer good law. Compare Garcia,
    
    387 A.2d 46
    , 55 (Pa. 1978) (plurality opinion) (concluding that a sixteen-year-old
    girl could not validly consent to a search of a home) with Commonwealth v. Hughes,
    
    836 A.2d 893
    , 901 (Pa. 2003) (concluding that a group of three twelve- to fourteen-
    year-old girls standing on the porch of the defendant’s house had apparent authority
    to consent to a search of a home). The dearth of authority supporting a per se rule
    makes sense, as the Supreme Court has observed that even “a child of eight might
    well be considered to have the power to consent to the police crossing the threshold
    into that part of the house where any caller . . . might well be admitted.” Georgia v.
    Randolph, 
    547 U.S. 103
    , 112 (2006) (dictum). Given that Bermel’s argument lacks
    support in law, we reject it.
    B.
    Bermel argues alternatively that the daughter lacked apparent authority to
    consent to the search. As noted, apparent authority turns on Officer Elliot’s
    reasonable reliance on indicia of common authority, like mutual use or joint access
    or control.3 See United States v. Almeida-Perez, 
    549 F.3d 1162
    , 1170 (8th Cir.
    2008). In other words, the question is whether “the facts available to the officer at
    the moment . . . warrant a man of reasonable caution in the belief that the consenting
    party had authority over the [property].” Rodriguez, 
    497 U.S. at 188
    . The existence
    of mutual use or joint access or control is a question of fact, though whether police
    reasonably relied on those indicia of common authority is a legal question. See
    Almeida-Perez, 
    549 F.3d at 1170
    .
    The daughter had apparent authority over the camera and its memory card.
    Officer Elliot knew that the daughter lived part-time at Bermel’s house, that she was
    empowered to come and go as she pleased, and that she was sometimes left alone at
    the house. Officer Elliot knew that the daughter removed the camera from “her”
    3
    Barring our adoption of his proposed per se rule, Bermel assumes in this
    alternative argument that the ordinarily applicable apparent-authority test applies.
    We make the same assumption.
    -5-
    bathroom and deduced from this fact that this must be the bathroom that she
    primarily used when she stayed at the home and the one where she kept her
    belongings. The camera that she found in her bathroom was not locked or otherwise
    fixed in place. Nor was it, as the district court found, “even completely concealed
    from view[,] as the daughter noticed its light while exiting the shower.” The district
    court did not clearly err in determining that these facts established joint access to
    and control of the bathroom, the camera, and the memory card it contained. And we
    further conclude that these facts sufficed to lead a person of reasonable caution in
    the officers’ situation to believe that the daughter had authority over the camera and
    its memory card and that she could validly consent to a search of it.
    C.
    Having established the daughter’s apparent authority to consent to the search
    of the camera and memory card, we address Bermel’s last argument that the evidence
    does not establish that she actually consented to the search. He takes issue with the
    fact that the daughter did not verbally respond when Officer Elliott said that he was
    going to “take” and “analyze” the camera to “see if there’s anything on it.” He
    argues alternatively that, even if the daughter consented to a search of the camera,
    she did not consent to a search of the camera’s memory card because she did not
    know that the camera contained a memory card.
    First, the district court did not clearly err in finding that the daughter consented
    to the search. See United States v. Rogers, 
    661 F.3d 991
    , 995 (8th Cir. 2011) (“The
    determination of whether a reasonable officer would believe that the defendant
    consented is a question of fact, subject to review for clear error.”). “[C]onsent can
    be inferred from words, gestures, or other conduct,” and it need not be explicit. 
    Id. at 994
     (internal quotation marks omitted). Here, Officer Elliott, who had been
    summoned by the daughter and mother, stated his intention to “analyze” the camera
    to “see if there’s anything on it,” and the daughter did not object. The circumstances
    were sufficient for Officer Elliott to infer consent. See 
    id.
    -6-
    Second, and for a similar reason, the district court did not clearly err in its
    finding that the daughter’s consent to search encompassed both the camera and its
    internal memory card. The permissible scope of a consent search is limited by the
    scope of the consent given. See Walter v. United States, 
    447 U.S. 649
    , 656 (1980).
    And we measure the scope of the consent given “by a standard of objective
    reasonableness.” United States v. Siwek, 
    453 F.3d 1079
    , 1085 (8th Cir. 2006).
    Consent to a search of an object generally includes that object’s component parts.
    See United States v. Beckmann, 
    786 F.3d 672
    , 678-79 (8th Cir. 2015). Here, the
    daughter raised no objection to Officer Elliott’s stated intention to “see if there’s
    anything on” the camera. Because one cannot “see if there’s anything on” a digital
    camera without searching the camera’s memory device, the scope of the daughter’s
    consent “would reasonably be understood to extend to” the camera’s memory card,
    whether or not the daughter affirmatively knew of the memory card’s existence.
    Florida v. Jimeno, 
    500 U.S. 248
    , 252 (1991); see Beckmann, 
    786 F.3d at 678-79
    ;
    Siwek, 
    453 F.3d at 1084-85
    .
    III.
    For the foregoing reasons, we affirm the denial of the motion to suppress.
    ______________________________
    -7-
    

Document Info

Docket Number: 22-3092

Filed Date: 12/12/2023

Precedential Status: Precedential

Modified Date: 12/12/2023