United States v. Howe

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4670
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SCOTT CHRISTOPHER HOWE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:09-cr-00510-LMB-1)
Submitted: January 21, 2011 Decided: March 4, 2011
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed as modified by unpublished per curiam opinion.
Marvin D. Miller, LAW OFFICE OF MARVIN D. MILLER, Alexandria,
Virginia, for Appellant. Neil H. MacBride, United States
Attorney, Gerald J. Smagala, Assistant United States Attorney,
Jeffrey H. Zeeman, Special Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a bench trial, Scott Christopher Howe was
found guilty of three counts of exploiting a minor child for the
purpose of producing a visual depiction of that exploitation,
the production of which was accomplished using materials that
had been transported in and affected interstate, in violation of
18 U.S.C.A. § 2251(a) (West 2000 & Supp. 2010). Howe was
sentenced to 210 months’ imprisonment.
Prior to trial, Howe moved to dismiss the indictment,
arguing Congress exceeded its authority under the Commerce
Clause in enacting § 2251(a). Howe also lodged a multi-prong
attack on the admissibility of evidence seized from his home.
The district court’s denial of these motions is the subject of
this appeal. 1 For the reasons that follow, we affirm both
orders, although we affirm the order denying the motion to
suppress on modified grounds.
I.
Taken in the light most favorable to the Government,
United States v. Lewis, 606 F.3d 193, 195 n.1 (4th Cir. 2010),
the evidence presented at the hearing on Howe’s motion to
suppress established the following facts. At approximately 3:30
1
Howe does not appeal his 210-month sentence.
2
p.m., on the afternoon of August 11, 2009, Corporal Sean Healy
of the Fauquier County Sheriff’s Office was dispatched to a
single family residence in Bealeton, Virginia. There, Healy met
the owners of the property, the Cottrells, who informed Healy
that they had recently rented the property to Howe. While in
the course of performing maintenance on the pool, the Cottrells
noticed what they suspected to be marijuana plants growing on
the deck, 2 and called the police.
The Cottrells escorted Healy onto the property to
allow him to view the plants. According to Healy, he could not
see the plants until he walked beyond the deck area. Healy
concurred in the Cottrells’ assessment that they were marijuana.
Deputy Sheriff Steve Lewis was next to arrive on the scene,
followed shortly thereafter by Howe.
Healy approached Howe’s truck alone to speak with him.
Healy informed Howe of what he had found, and explained that, in
his experience, other evidence of drug activity is usually
located inside a premises where marijuana is cultivated. At
this point, Howe offered to allow the officers to search the
house, and he executed a written consent form.
2
It is undisputed that the deck was connected to the house
via a sliding glass door.
3
Howe advised the officers that there was a handgun in
his bedroom. In the course of securing that weapon, the
officers observed computers, a digital camera, boxer shorts, and
personal lubricant on the floor of Howe’s bedroom. Suspicions
aroused, Healy instructed Lewis to ask Howe if there was any
illegal content on this equipment. Upon prompting by Lewis,
Howe initially admitted to possessing adult pornography, but he
quickly added that the recordings depicted him and his fifteen
year-old boyfriend engaged in various sexual acts. Healy then
spoke with Howe, who confirmed that the videos were of sexual
acts between him and a male. Neither Lewis nor Healy questioned
Howe any further or viewed the recordings.
In its written memorandum denying the motion to
suppress, the district court first rejected Howe’s argument that
Healy had illegally entered the curtilage of his property. The
district court concluded that the Cottrells were on the property
for the permissible reason of performing maintenance. Thus, the
court found it was reasonable for Healy to believe that they had
the authority to grant him entrance as well. The district court
further opined that Howe’s consent to the search of the house
was knowing and voluntary, under the totality of circumstances,
and thus valid.
4
II.
On appeal, Howe first argues that the district court
erred, as a matter of law, in finding Healy reasonably relied on
the Cottrells’ invitation onto the property to justify his
warrantless entry. This court reviews the district court’s
legal determinations in its adjudication of a suppression motion
de novo and findings of fact for clear error. United States v.
Hernandez-Mendez, 626 F.3d 203, 206 (4th Cir. 2010).
The Fourth Amendment prohibits unreasonable searches;
a search conducted without a warrant is per se unreasonable
unless it falls within a valid exception to the warrant
requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219
(1973). As the district court properly concluded, the area of
the backyard that Healy entered to view the marijuana plants was
within the curtilage of the rented property, and absent exigent
circumstances, a warrantless search of curtilage is prohibited.
United States v. Van Dyke, 643 F.2d 992, 993-94 (4th Cir. 1981).
Because it is clear that there were no exigent circumstances
here, the issue is whether the Cottrells had the authority to
permit Healy’s entrance. 3
3
As the district did, we note that the Cottrells lacked
actual authority to consent to a warrantless search of the
rented property. See United States v. Matlock, 415 U.S. 164,
171 & n.7 (1974).
5
The apparent authority doctrine allows the admission
of evidence obtained via third-party consent so long as the
information known to the officer at the time consent was given
supports a reasonable basis to believe the individual had the
authority to consent to the search. Illinois v. Rodriguez, 497
U.S. 177, 188 (1990); see United States v. Buckner, 473 F.3d
551, 555 (4th Cir. 2007). As a matter of law, “a landlord may
not give the police consent to a warrantless search of a rented
apartment or room.” United States v. Stevenson, 396 F.3d 538,
546 (4th Cir. 2005); see Chapman v. United States, 365 U.S. 610,
616-17 (1961). The record clearly establishes that Healy knew
the Cottrells were the landlords of the property, which they had
rented to Howe. Accordingly, the apparent authority doctrine
does not cure Healy’s mistake of law in concluding the Cottrells
had the apparent authority to authorize his warrantless entry
onto the curtilage of the rented property.
Despite our disagreement with the district court on
this threshold issue, we nonetheless affirm the denial of Howe’s
motion to suppress, because Howe’s consent to search his home
purged the taint of the unlawful initial search. The Supreme
Court has authorized the admission of evidence that is the
product of an unlawful search or seizure so long as the
connection between the unlawful conduct of the police and the
acquisition of the evidence is so attenuated as to purge the
6
evidence of the primary taint. Wong Sun v. United States, 371
U.S. 471, 487-88 (1963). To determine whether the taint of an
illegal search has been purged, we evaluate: (1) the length of
time between the illegal act and the seizure of evidence; (2)
whether there were intervening circumstances; and (3) the
gravity, flagrancy, and reason for the police misconduct.
United States v. Seidman, 156 F.3d 542, 548 (4th Cir. 1998)
(citing Brown v. Illinois, 422 U.S. 590, 603-04 (1975)). Our
analysis of these factors in this case leads us to conclude that
the taint of Healy’s illegal entrance was purged.
First, a considerable period of time — more than seven
hours — elapsed between Healy’s entry onto the curtilage and the
seizure of evidence related to child pornography. There was
also a significant period of time between Healy’s entry and his
request for consent to search. Further, Howe’s voluntary
consent to the search of his home was an intervening act of free
will. 4 See id. at 549 & n.10 (holding, albeit in dicta, that
consent to further police interaction is sufficient to “sever
the connection between an unlawful act and the acquisition of
additional evidence”). Finally, Healy’s warrantless entrance
onto the curtilage of Howe’s property, while unlawful, was
4
We note that Howe does not challenge the voluntariness of
his consent on appeal.
7
neither flagrant nor offensive. Id. at 550. Accordingly, we
affirm the district court’s denial of the motion to suppress,
although on modified grounds.
III.
Howe next argues the district court erred in denying
his motion to dismiss the indictment, which was predicated on
his challenge to the constitutionality of § 2251(a). This
argument challenges Congress’ authority to criminalize the use
of an instrument that traveled in or affected interstate
commerce in the production of intrastate child pornography.
The district court properly concluded that this
argument is foreclosed by Circuit precedent. See United States
v. Malloy, 568 F.3d 166, 179-80 (4th Cir. 2009), cert. denied,
130 S. Ct. 1736 (2010); United States v. Forrest, 429 F.3d 73,
78-79 (4th Cir. 2005). One panel of this court may not overrule
the precedent set by a prior panel. Barbour v. Int’l Union,
594 F.3d 315, 321 (4th Cir. 2010). Accordingly, we affirm the
denial of Howe’s motion to dismiss the indictment.
IV.
For the foregoing reasons, we affirm the district
court’s order denying the motion to dismiss, and we affirm the
district court’s order denying the motion to suppress on
8
modified grounds. See United States v. Smith, 395 F.3d 516,
518-19 (4th Cir. 2005) (“We are not limited to evaluation of the
grounds offered by the district court to support its decision,
but may affirm on any grounds apparent from the record.”). We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED AS MODIFIED
9