United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1624
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Robert Edward Harner, *
*
Defendant - Appellant. *
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Submitted: October 22, 2010
Filed: January 7, 2011
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Before LOKEN, SMITH, and COLLOTON, Circuit Judges.
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LOKEN, Circuit Judge.
Robert Edward Harner was charged with possession of child pornography in
violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2). He moved to suppress hundreds of
electronically-stored images of child pornography seized during a warrant search of
his Minneapolis home. Harner argued that the affidavit of a computer forensic
investigator failed to establish probable cause to issue the warrant. In that affidavit,
the investigator averred that he had traced to Harner’s computer a shared file offering
to distribute hundreds of files, sixteen of which were on the Internet Crimes Against
Children Task Force list of files depicting child pornography, and one of which the
investigator partially downloaded, viewed, and found to depict child pornography.
The district court1 denied the motion, both because the warrant was supported by
probable cause as construed by this court in United States v. Grant, 490 F.3d 627, 632
(8th Cir. 2007), cert. denied, 552 U.S. 1281 (2008); see also United States v. Stults,
575 F.3d 834, 843-44 (8th Cir. 2009), cert. denied, 130 S. Ct. 1309 (2010), and
because in conducting the search police officers relied in good faith on a facially valid
warrant, see United States v. Leon, 468 U.S. 897 (1984). Harner then pleaded guilty
to the charged offense. He now appeals the conviction.
Harner argues, as he did in the district court, that the warrant was issued without
probable cause and the Leon good faith exception does not apply. However, as
Harner’s guilty plea was unconditional, he waived his right to challenge the district
court’s pretrial ruling on these Fourth Amendment issues. See United States v.
Freeman, 625 F.3d 1049, 1052 (8th Cir. 2010) (“A guilty plea waives all suppression
issues not expressly reserved by a conditional plea.”), citing United States v.
Arrellano, 213 F.3d 427, 430 (8th Cir. 2000). A defendant may enter a conditional
guilty plea “reserving in writing the right to have an appellate court review an adverse
determination of a specified pretrial motion,” but only with the consent of the district
court and the government. Fed. R. Crim. P. 11(a)(2). Here, Harner pleaded guilty
unconditionally after the district court expressly advised that he was giving up
enumerated rights, including the right “to argue . . . that your constitutional rights
were violated when your property was searched or when you were questioned.” Thus,
the issues Harner raises on appeal were waived by his guilty plea.
The judgment of the district court is affirmed.
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1
The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota.
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