United States v. Keith Shrum

United States Court of Appeals
For the Eighth Circuit
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No. 21-2705
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United States of America
Plaintiff - Appellee
v.
Keith Allen Shrum
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: September 23, 2022
Filed: February 9, 2023
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Before SMITH, Chief Judge, KELLY and GRASZ, Circuit Judges.
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KELLY, Circuit Judge.
Keith Allen Shrum entered conditional pleas of guilty to two child
pornography-related charges. On appeal, Shrum challenges the district court’s1
1
The Honorable John A. Jarvey, then Chief Judge, United States District Court
for the Southern District of Iowa, now retired.
denial of his motion to suppress. Having jurisdiction under 28 U.S.C. § 1291, we
affirm.
I.
On August 24, 2019, Shrum was on a camping trip near Davenport, Iowa,
with his then 12-year-old stepdaughter A.B. and some of her friends. Late that night,
A.B.’s friends looked at A.B.’s phone and saw text messages between A.B. and
Shrum. The texts suggested that Shrum had engaged in sexual activity with A.B. on
the trip and had also solicited A.B. for additional sexual contact. The friends took
photos of the messages and alerted their parents. A.B.’s mother eventually saw the
photos and called the police at approximately 2:00 a.m. on August 25.
Later that morning, at around 10:00 a.m., Sergeant Geoffrey Peiffer of the
Davenport Police Department’s Special Victims Unit received a call from Stephanie
Thurston, a child protection worker. Thurston and other Davenport police officers
had been trying to find A.B. overnight, but to no avail, and she was seeking Peiffer’s
help. Peiffer and Thurston met shortly before noon to discuss what to do next, and
Thurston showed Peiffer the text messages between Shrum and A.B.
After the meeting, Peiffer went to Shrum’s house on Zenith Avenue but did
not see Shrum’s car in the driveway. As he drove around the area looking for the
campsite, Peiffer also sought and obtained an emergency ping for Shrum’s cell
phone. When Peiffer received the ping location, it showed the phone was at Shrum’s
home.
Peiffer returned to Zenith Avenue, where he saw Shrum unloading his car in
the driveway. Peiffer requested assistance from uniformed officers and watched the
house as he waited. When the officers arrived, Peiffer and Thurston approached the
house. As they did, A.B. walked out the front door. Peiffer noticed that A.B.’s hair
was wet, and when Peiffer pulled her aside to talk, she told him she had just gotten
out of the shower. That seemed unusual to Peiffer, as the car had not even been
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unloaded from the camping trip. Given the nature of the text messages between A.B.
and Shrum, Peiffer was concerned that she may have showered to destroy physical
evidence of sexual activity.
According to Peiffer, A.B. was very hesitant to talk to him. She denied the
existence of any improper texts or activity with Shrum, and she said she did not want
to get her “dad in trouble.” A.B. handed her cell phone to Peiffer and gave him the
password. Peiffer looked through A.B.’s phone and saw that the text message thread
between her and Shrum had been deleted.
By this time, Shrum was outside of the house, monitored by the other officers.
Peiffer approached him and asked if he knew why law enforcement was there.
Shrum responded that he had a “rough idea,” and that he had been contacted about
allegations of “touching” the night before. Peiffer told Shrum he needed Shrum’s
cell phone. Shrum said it was inside the house and he would go get it. When Peiffer
told Shrum he would have to follow him, Shrum did not object and the two walked
into the house together.
Shrum’s phone was an Android device. Peiffer knew the police department
had technology to retrieve deleted data from Android phones but could do so only if
the phone remained physically intact. So Peiffer allowed Shrum to hold onto his
phone but remained close by to prevent Shrum from damaging or destroying the
phone. After Shrum showed Peiffer around the house, they went outside, where
Shrum gave Peiffer the password for his phone. Peiffer took the phone, gave Shrum
a receipt, and told him it would not be searched without a warrant. Officers obtained
a search warrant the following day on August 26, searched the phone’s contents, and
found about 260 sexually provocative images of a young girl believed to be A.B.
Based on these images, officers obtained a search warrant for Shrum’s house.
This warrant authorized seizure of specific items of clothing, bedding, a sex toy,
cigarettes, a lime green Sharpie, indicia of occupancy of the premises, photographs
of the residence, and “[a]ny and all other evidence related to a sexual
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abuse/exploitation investigation.” The supporting affidavit explained that officers
had found sexually explicit images of A.B. on Shrum’s phone and that they sought
items that were seen in the background of those images. On August 29, 2019, as
officers were executing the warrant, Shrum was being interviewed at the police
station by Detective Sean Johnson. After he was Mirandized, Shrum admitted that
he had child pornography on a hard drive on his bed at home. Johnson called the
officers executing the search warrant at Shrum’s house and told them to seize the
hard drive, which they did. 2 Law enforcement later obtained a separate warrant to
search the hard drive.
Shrum was indicted on separate counts of producing, receiving, and
possessing child pornography. He moved to suppress all evidence obtained after the
warrantless seizure of his cell phone, including the images found on the phone; the
evidence seized at his house; and the images found on the hard drive. Shrum also
moved to suppress the statements he made to law enforcement. The district court
denied Shrum’s motion in its entirety. Shrum entered conditional guilty pleas to one
count of producing child pornography, 18 U.S.C. § 2251(a), (e), and one count of
receiving child pornography, 18 U.S.C. § 2252(a)(2), (b)(1), and was sentenced to
210 months of imprisonment. Shrum timely appeals the denial of his motion to
suppress.
II.
Shrum first argues that his cell phone was seized in violation of the Fourth
Amendment and therefore the district court erred in denying his motion to suppress.
On appeal, “we review the district court’s findings of fact for clear error and its legal
conclusions de novo.” United States v. Stegall, 850 F.3d 981, 983–84 (8th Cir.
2017).
2
The executing officers also seized a computer tower and another external
hard drive.
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“The warrantless seizure of property is per se unreasonable unless it falls
within a well-defined exception to the warrant requirement.” United States v. Mays,
993 F.3d 607, 614 (8th Cir. 2021) (citation omitted) (the Fourth Amendment
prohibits “unreasonable seizures”). One such exception applies when officers have
probable cause to seize the property and exigent circumstances require immediate
seizure. Id. Probable cause exists when “there is a fair probability that contraband
or evidence of a crime will be found in a particular place.” Id. (cleaned up). And
exigent circumstances exist when officers, for instance, sufficiently demonstrate that
“somebody . . . will imminently destroy evidence.” United States v. Ramirez, 676
F.3d 755, 760 (8th Cir. 2012) (law enforcement “bear[s] a heavy burden” of
demonstrating the need for a warrantless seizure (quoting Welsh v. Wisconsin, 466
U.S. 740, 749 (1984)). “The existence of exigent circumstances is an objective
analysis focusing on what a reasonable, experienced police officer would believe.”
United States v. Williams, 431 F.3d 1115, 1118 (8th Cir. 2005) (cleaned up) (quoting
United States v. Kuenstler, 325 F.3d 1015, 1021 (8th Cir. 2003)).
The officers had probable cause to believe Shrum’s phone contained
contraband or evidence of a crime. Peiffer had seen photos of text messages between
A.B. and Shrum that indicated they had engaged in sexual activity, perhaps as
recently as on the camping trip the night before. There was a fair probability that
those text messages, or related evidence of unlawful conduct, would be found on
Shrum’s phone.
Exigent circumstances were also present. After A.B.’s mother called the
police, officers searched for A.B., without success. When Peiffer did find A.B., it
appeared that she had just showered, suggesting to Peiffer that she may have washed
away physical evidence of sexual contact. Peiffer also knew that the text message
thread between Shrum and A.B. had already been deleted from A.B.’s phone and
that A.B. expressed concern about getting Shrum “in trouble.” Shrum himself
admitted to Peiffer that he was made aware of allegations of “touching” the night
before. And Shrum was with A.B. after he learned of the allegations and in the hours
leading up to the officers’ arrival. Given these circumstances, an experienced officer
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would have reason to be concerned that Shrum might try to destroy other evidence.
Of course, the fact that evidence is stored on an electronic device does not itself
constitute exigent circumstances. But here, based on the facts found by the district
court, exigent circumstances justified Peiffer’s seizure of the phone pending the
issuance of a warrant. See, e.g., United States v. Stephen, 984 F.3d 625, 631 (8th
Cir. 2021) (determining that exigent circumstances justified the warrantless seizure
of a USB because the defendant was actively searching for it and without immediate
seizure, officers risked losing the evidence). The district court did not err in denying
Shrum’s motion to suppress evidence seized from his cell phone.3
III.
Shrum also challenges the particularity and scope of the warrant that officers
relied on to seize the hard drive from his house.
The Fourth Amendment mandates that “no Warrants shall issue . . . [unless]
particularly describing the place to be searched, and the persons or things to be
seized.” U.S. Const. amend. IV. We review de novo whether a warrant satisfies the
particularity requirement. United States v. Campbell, 6 F.4th 764, 770 (8th Cir.
2014). The particularity requirement prohibits officers “from conducting general,
exploratory rummaging of a person’s belongings,” United States v. Sigillito, 759
F.3d 913, 923 (8th Cir. 2014) (cleaned up) (quoting United States v. Saunders, 957
F.2d 1488, 1491 (8th Cir. 1992)), and demands that the warrant be “sufficiently
definite to enable the searching officers to identify the property authorized to be
seized,” id. (quoting United States v. Summage, 481 F.3d 1075, 1079 (8th Cir.
2007)). “Whether a warrant fails the particularity requirement cannot be decided in
a vacuum,” and we must consider “the total circumstances surrounding the case.”
United States v. Fiorito, 640 F.3d 338, 346 (8th Cir. 2011) (cleaned up) (quoting
Milliman v. Minnesota, 774 F.2d 247, 250 (8th Cir. 1985)). The particularity
3
Because we conclude that the seizure of Shrum’s phone was lawful, we need
not address Shrum’s argument that any statements he made after the seizure must be
suppressed as fruit of the poisonous tree.
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requirement is “one of practical accuracy rather than of hypertechnicality.” Sigillito,
759 F.3d at 923 (cleaned up) (quoting United States v. Peters, 92 F.3d 768, 769–70
(8th Cir. 1996)). A warrant affidavit may provide the necessary particularity if it is
attached to the warrant. United States v. Nieman, 520 F.3d 834, 839 (8th Cir. 2008).
The search warrant for Shrum’s residence listed specific items to be seized,
such as articles of clothing and bedding, and “[a]ny and all other evidence related to
a sexual abuse/exploitation investigation.” Shrum focuses on the last, catch-all
category of evidence to be seized. He points out that this category is more broadly
written than the other categories, which identify specific pieces of evidence. But the
last category is limited by the phrase “related to a sexual abuse/exploitation
investigation,” and the supporting affidavit described the specific nature of the
investigation at issue. The affidavit explained that officers had found sexually
explicit images of A.B. on Shrum’s phone and that the intent of the warrant was to
seize evidence related to those images. The catch-all category could have been more
artfully drafted with greater particularity, but the standard of “practical accuracy”
was met here. See Sigillito, 759 F.3d at 923 (quoting Peters, 92 F.3d at 769–70). In
light of the facts and circumstances of the investigation, the warrant was sufficiently
particular, placing a specific limitation on the search and enabling officers to identify
what property was to be seized. See Nieman, 520 F.3d at 839 (holding that a warrant,
which allowed seizure of “evidence of the illegal possession . . . or delivery of
controlled substances,” was sufficiently particular); United States v. Lowe, 50 F.3d
604, 607 (8th Cir. 1995) (determining that a warrant authorizing seizure of
“[a]ddress books, photographs, and other items that tend to show co-defendants or
co-conspirators” was sufficiently particular).
Shrum also argues that even if the warrant was sufficiently particular, the
seizure of the hard drive from his residence exceeded the warrant’s scope because
the warrant did not specifically include electronics. Even if we assume that the hard
drive was outside the scope of the warrant, we conclude that the officers acted in
good faith when they seized it.
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“The Fourth Amendment allows for some ‘honest mistakes’ that are made by
officers in the process of executing search warrants.” United States v. Suellentrop,
953 F.3d 1047, 1050 (8th Cir. 2020) (quoting Maryland v. Garrison, 480 U.S. 79, 87
(1987)). The Leon good-faith exception to the exclusionary rule therefore allows
the admission of evidence obtained by officers who “reasonably believed that the
warrant authorized the search, even if their interpretation was mistaken.” Id. When
assessing whether an officer relied in good faith on a warrant, we “consider the
totality of the circumstances, including what the officer knew but did not include in
[an] affidavit.” United States v. Farlee, 757 F.3d 810, 819 (8th Cir. 2014).
As noted, the warrant authorized the seizure of “certain property” described
in a list of eight categories. The first seven identified specific property. The eighth
category was a catch-all: “Any and all other evidence related to a sexual
abuse/exploitation investigation.” The supporting affidavit described that a search
of Shrum’s phone had revealed sexually explicit images of A.B., and the officers
executing the warrant learned that Shrum admitted to having child pornography on
his hard drive. 4 We have found that there “is an intuitive relationship between acts
such as child molestation or enticement and possession of child pornography.”
United States v. Colbert, 605 F.3d 573, 578 (8th Cir. 2010). Thus, while it was likely
mistaken, it was not unreasonable under these circumstances for the officers to
believe that the hard drive was evidence within the scope of the warrant. See United
States v. Houck, 888 F.3d 957, 958 (8th Cir. 2018) (determining that “officers were
not objectively unreasonable in their belief that [an] RV fell within the warrant’s
authorization to search ‘any vehicles’”); Suellentrop, 953 F.3d at 1051 (concluding
that even though a cell phone was not listed in the warrant as property officers were
authorized to search, searching the cell phone was “among the objectively
reasonable honest mistakes that the Fourth Amendment tolerates”). Given the
totality of the circumstances, we agree with the district court that the good-faith
exception applies.
4
Shrum does not argue on appeal that the phone call from Officer Johnson to
the executing officers must be excluded from our good-faith analysis.
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IV.
For the foregoing reasons, we affirm the judgment of the district court.
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