United States v. Raleigh Beard , 597 F. App'x 921 ( 2015 )

FILED
NOT FOR PUBLICATION JAN 12 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50060
Plaintiff - Appellee, D.C. No. 2:11-cr-00769-AG-1
v.
MEMORANDUM*
RALEIGH ELLIOTT BEARD,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted December 10, 2014
Pasadena, California
Before: GRABER, GOULD, and CALLAHAN, Circuit Judges.
Defendant Raleigh Beard was convicted of possession of child pornography
in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2). He appeals from the district
court’s denial of his motion to suppress a hard disk drive retrieved from his home,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
which contained images of child pornography. Beard also appeals from the district
court’s denial of his motion to suppress his incriminating statements about his
possession of the hard drive and downloading child pornography.
We review a denial of a motion to suppress brought on Fourth Amendment
grounds de novo. United States v. Tosti, 733 F.3d 816, 821 (9th Cir. 2013) (citing
United States v. Hill, 459 F.3d 966, 970 (9th Cir. 2006)). We review factual
findings for clear error. Id. (citing United States v. Gorman, 314 F.3d 1105, 1110
(9th Cir. 2002)). Where testimony is taken, the district court’s credibility
determinations are given “‘special deference.’” United States v. Arreguin, 735
F.3d 1168, 1174 (9th Cir. 2013) (quoting United States v. Craighead, 539 F.3d
1073, 1082 (9th Cir. 2008)). We review the issue of whether a person has actual or
apparent authority to consent to search de novo. Id. (citing United States v. Kim,
105 F.3d 1579, 1581–82 (9th Cir. 1997)).
The Fourth Amendment generally prohibits the warrantless entry of a
person's home, whether to make an arrest or to search for specific objects. U.S.
Const. amend. IV (providing the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures”); Payton v.
New York, 445 U.S. 573, 587–88 (1980). However, it is well established that a
third party may consent to a search if that third party “possessed common authority
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over or other sufficient relationship to the premises or effects sought to be
inspected.” United States v. Matlock, 415 U.S. 164, 171 (1974). Common
authority is “joint access or control for most purposes.” Id. at 171 n.7.
Additionally, even if the third party does not have joint access or control for most
purposes, “‘[a] defendant may assume the risk that the third party will at times
exceed the scope of authorized access, as that is defined in precise and narrow
terms.’” Kim, 105 F.3d at 1582 (quoting United States v. Sledge, 650 F.2d 1075,
1080 n.10 (9th Cir. 1981)); see also United States v. Gulma, 563 F.2d 386, 389
(9th Cir. 1977) (defendant who gave co-conspirator key to motel room containing
heroin assumed the risk that co-conspirator would consent to search the room);
United States v. Murphy, 506 F.2d 529, 530 (9th Cir. 1974) (per curiam) (holding
that individual who was not a lessee but was given limited access to a warehouse
on occasion had “sufficient dominion over the premises to enable him to grant the
necessary consent”). Because we determine that William, Beard’s brother, had
apparent authority to consent to the agents’ entry, we need not decide whether he
had actual authority.
“‘Under the apparent authority doctrine, a search is valid if the government
proves that the officers who conducted it reasonably believed that the person from
whom they obtained consent had the actual authority to grant that consent.’”
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Arreguin, 735 F.3d at 1175 (quoting United States v. Welch, 4 F.3d 761, 764 (9th
Cir. 1993)). “‘Apparent authority is measured by an objective standard of
reasonableness, and requires an examination of the actual consent as well as the
surrounding circumstances.’” Id. (quoting United States v. Ruiz, 428 F.3d 877, 881
(9th Cir. 2005)). In assessing whether an officer’s belief was objectively
reasonable, the court considers “the facts available to the officer at the moment.”
Illinois v. Rodriguez, 497 U.S. 177, 188 (1990) (internal quotation marks omitted).
We hold that the district court properly determined William had apparent
authority to authorize the search into Beard’s home to retrieve the suspected
contraband. Agent McKinnon and Investigator Troy responded to a call from
Beatrice, Beard’s ex-wife, about suspected child pornography. Upon their arrival,
the door was open and William was walking back and forth from the house to the
dumpster, in the process of throwing items away. The agents knocked on the door;
they were greeted and William introduced himself. William told the agents that he
was Beard’s brother and that Beard had asked William to clean out the residence
and dispose of his property. William also told the agents that Beard had granted
him power of attorney and William had authorization to dispose of all of Beard’s
personal property. The agents observed that the house did not show any signs of
forcible entry.
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William’s close relationship to the owner, his broad access to the area, his
statement that he had the power of attorney over all of Beard’s personal property,
his knowledge of Beatrice’s call to police officers and his expectancy of their
arrival, as well as the lack of signs of forcible entry, support the agents’ reasonable
belief that William had authority to consent to their entry to retrieve the suspected
contraband. See Arreguin, 735 F.3d at 1177 n.9 (apparent authority exists where
“numerous indicia of authority support[] the officers’ acceptance of consent to
search”).
We further hold that, even assuming there was neither actual nor apparent
authority, the hard drive would have been inevitably discovered by lawful means.
See Nix v. Williams, 467 U.S. 431, 447–48 (1984). Even if the agents had not
entered the house, William would have turned over the videos, DVDs and CDs to
them. Beatrice called the agents to pick up the items with William’s knowledge,
and neither William nor Beatrice wanted anything to do with what they believed to
be child pornography. Agent McKinnon also testified that before she arrived at the
house she suspected computer hardware might be involved. The conversation
between Agent McKinnon and William would have taken place regardless of
whether the agents entered the house and would have led to William’s disclosure
of the hard drive.
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Thus, because William had apparent authority, or because the agents would
have inevitably discovered the hard drive, Beard’s later incriminating statements to
agents admitting to possession of the hard drive and downloading child
pornography are not fruit of the poisonous tree. See Wong Sun v. United States,
371 U.S. 471, 484–88 (1963); Nix, 467 U.S. at 442–47.
AFFIRMED.
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FILED
United States v. Beard, No. 13-50060 JAN 12 2015
MOLLY C. DWYER, CLERK
GRABER, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS
I concur on the ground that the hard drive would have been discovered
inevitably had the agents remained on the porch. See Nix v. Williams, 467 U.S.
431, 444 (1984) (holding that the exclusionary rule does not apply, despite a
Fourth Amendment violation, when the government can establish by a
preponderance of the evidence that the same information would have been
discovered lawfully). The same conversation between the officers and the brother
could and would have taken place on the front porch, and on this record the brother
clearly wanted to cooperate and to turn over the DVDs and other items that led to
the discovery of the computer and hard drive containing child pornography.
But I respectfully dissent from the holding that Defendant’s brother had
apparent authority to consent to a search of Defendant’s home. The officers knew
that the brother did not live in the house and that he was there temporarily and only
to clean out Defendant’s personal property. The brother had no key to the
premises. The officers knew that the brother had common authority over items of
personal property within the home but had no reason to think that he had authority
over the home itself. See, e.g., United States v. Davis, 332 F.3d 1163, 1170 (9th
Cir. 2003) (holding that even a person who lives in the same dwelling does not
have unlimited authority to consent to a search of the premises); United States v.
Warner, 843 F.2d 401, 403 (9th Cir. 1988) (holding that a landlord lacked authority
to consent to a search even though the tenant had given him authority to enter the
premises in the tenant’s absence).
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