United States Court of Appeals
For the Eighth Circuit
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No. 19-1966
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United States of America
Plaintiff - Appellee
v.
Gregory Scott Stephen
Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: September 25, 2020
Filed: January 4, 2021
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Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
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GRUENDER, Circuit Judge.
While remodeling one of Appellant Gregory Stephen’s homes, Vaughn
Ellison discovered a hidden camera containing child pornography. Subsequent
searches of Stephen’s homes by law enforcement uncovered further child
pornography and images of Stephen abusing children. A federal grand jury indicted
Stephen for sexually exploiting children as well as possessing and transporting child
pornography. Stephen moved to suppress evidence related to these charges, arguing
Fourth Amendment violations, which the district court 1 denied. Stephen
conditionally pleaded guilty, and the district court sentenced him to 2,160 months’
imprisonment. Stephen appeals, challenging both the suppression denial and his
sentence. For the following reasons, we affirm.
I.
On February 15, 2018, Ellison was remodeling his friend and former brother-
in-law Stephen’s house. While using the bathroom, Ellison noticed a USB drive (the
“USB”) on the toilet tank. Because Ellison had recently researched hidden recording
devices following a break-in, Ellison recognized the USB as a hidden camera.
Curious and concerned as to why there was a hidden camera in the bathroom—and
what it had recorded—Ellison took the USB home but did not view its contents.
The next morning, Ellison returned to Stephen’s home and discovered a young
boy sleeping in the bedroom next to the bathroom where Ellison had found the USB.
Ellison worried the boy would have used that bathroom. Stephen (a youth basketball
coach) arrived shortly after with another boy, indicating he was taking them both to
a basketball game. After returning home, Ellison viewed the USB’s contents,
finding at least fifty videos depicting children secretly recorded in various stages of
undress. The following evening, Ellison discussed what he had seen and what he
should do with his girlfriend, ultimately deciding to contact law enforcement.
On February 18, three days after Ellison took the USB and two days after
viewing its contents, Ellison contacted Monticello Police Chief Britt Smith, and the
two discussed what Ellison had found. Chief Smith asked Ellison to give him the
USB, and the next day Ellison dropped off the USB at the Monticello Police
Department. Chief Smith then sought the Iowa Division of Criminal Investigation’s
(the “DCI”) assistance.
1
The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.
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Two days later, the DCI took possession of the USB, obtained a search
warrant for the device, and viewed its contents. After obtaining a search warrant,
law enforcement searched Stephen’s homes. Therein, they found more secret
recording devices and a hard drive containing approximately 400 visual depictions
of nude minor boys, including some images of Stephen molesting unconscious
victims.
A federal grand jury subsequently indicted Stephen on five counts of sexually
exploiting a child, 18 U.S.C. § 2251(a), one count of possessing child pornography,
18 U.S.C. § 2252(a)(4)(B), and one count of transporting child pornography, 18
U.S.C. § 2252(a)(1). Stephen moved to suppress evidence of those offenses. The
district court denied Stephen’s motion, finding no Fourth Amendment violations.
Afterward, Stephen conditionally pleaded guilty to all counts, preserving his right to
appeal the suppression denial. The district court sentenced Stephen to 2,160 months’
imprisonment. Stephen appeals both the suppression denial and his sentence.
II.
In evaluating a district court’s decision denying a motion to suppress, we
review factual findings for clear error and legal conclusions de novo. United States
v. Harper, 466 F.3d 634, 643 (8th Cir. 2006). Reversal is warranted “only if the
district court’s decision is unsupported by substantial evidence, based on an
erroneous interpretation of applicable law, or, based on the entire record, it is clear
a mistake was made.” Id. (internal quotation marks omitted). Here, Stephen argues
that his Fourth Amendment rights were violated: (i) when Ellison took and searched
the USB, (ii) when Chief Smith took the USB before obtaining a search warrant, and
(iii) when the DCI searched the USB. Stephen further argues that, because of these
violations, evidence found on the USB and in his homes, as well as statements
Stephen made to law enforcement, must be suppressed as fruit of the poisonous tree.
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A.
Stephen first claims his Fourth Amendment rights were violated when Ellison
took and searched the USB. “The Fourth Amendment protects persons against
unreasonable searches and seizures by the government.” Arnzen v. Palmer, 713 F.3d
369, 372 (8th Cir. 2013) (emphasis added). Thus, the Fourth Amendment does not
apply to private-citizen searches “unless that private citizen is acting as a
government agent.” United States v. Smith, 383 F.3d 700, 705 (8th Cir. 2004).
“Whether a private party should be deemed an agent or instrument of the
Government for Fourth Amendment purposes necessarily turns on the degree of the
Government’s participation in the private party’s activities, a question that can only
be resolved in light of all the circumstances.” See Skinner v. Ry. Labor Execs.’
Ass’n, 489 U.S. 602, 614 (1989) (internal citations and quotation marks omitted). In
resolving this question, we have typically considered: (i) whether the government
knew of and acquiesced in the citizen’s conduct, (ii) whether the citizen intended to
assist law enforcement, and (iii) whether the citizen acted at the government’s
request. Smith, 383 F.3d at 705. Here, Stephen concedes two of the three factors,
admitting that law enforcement neither knew Ellison took or searched the USB nor
asked him to do so. Stephen argues only that Ellison was acting as a government
agent because he intended to assist law enforcement.
But, even if Ellison had an intent to assist law enforcement, it would not be
enough to establish he was a government agent. Tellingly, Stephen cites no case
where we have found government agency based solely on a private citizen’s intent
to assist law enforcement. And this makes sense. The core question is whether the
private citizen was acting as a government agent, see id., and agency typically
requires the principal’s assent, see Astor v. Wells, 17 U.S. (4 Wheat.) 466, 481 (1819)
(“The relation of agent and principal cannot exist, without the consent of the
principal.”). Furthermore, while we have identified multiple relevant factors, the
ultimate issue still “necessarily turns on the degree of the Government’s
participation in the private party’s activities.” See Skinner, 489 U.S. at 614. Here,
where the government did not know of, acquiesce in, or request Ellison’s conduct—
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and where nothing else indicates governmental entanglement—there was simply no
government participation, irrespective of Ellison’s private intent. Without more, a
bare intent to help law enforcement is insufficient to transform a private citizen into
a government agent under the Fourth Amendment. Thus, even if Stephen is correct
that Ellison had an intent to help law enforcement, his argument still fails.
Alternatively, Stephen’s argument falters on its own terms because, here,
Ellison lacked an intent to help law enforcement. At the suppression hearing, Ellison
testified that he took and searched the USB because he was “curious” and
“concerned” about its use and contents. Stephen argues that, in acting out of a
concern for others, Ellison was really “act[ing] out of civic duty.” But compassion
does not suggest conspiracy, nor altruism agency. For example, in United States v.
Highbull, a mother suspected her boyfriend’s phone contained nude pictures of her
thirteen-year-old daughter. 894 F.3d 988, 990-91 (8th Cir. 2018). With police
standing nearby, she searched her boyfriend’s car with the explicit purpose of
finding the phone and showing it to police. Id. We held she was not a government
agent, concluding in part that the mother’s desire to protect her daughter was distinct
from any intent to help law enforcement. Id. at 992-93.
Stephen argues that this case differs from Highbull because Ellison was trying
to protect people he did not know. But this is a distinction without a difference. The
question is whether an individual is primarily motivated to help law enforcement.
Whether someone acts to protect someone they know or if he acts “to protect the
community from harm,” does not matter. See United States v. Ginglen, 467 F.3d
1071, 1075 (7th Cir. 2006). Not every Good Samaritan is a government agent. See
Coolidge v. New Hampshire, 403 U.S. 443, 488 (1971) (“It is no part of the policy
underlying the Fourth and Fourteenth Amendments to discourage citizens from
aiding to the utmost of their ability in the apprehension of criminals.”).
Moreover, Ellison’s actions after searching the USB do not suggest he had a
gung-ho attitude to help law enforcement. Ellison testified that he “really didn’t
know what to do with [the USB].” Further, he waited nearly two days and sought
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his girlfriend’s advice before contacting law enforcement. In United States v. Inman,
we found that a private party’s decision to “deliberate[] . . . for twenty to thirty
minutes before reporting the discovery of child pornography” was incompatible with
any intent to assist the government. 558 F.3d 742, 746 (8th Cir. 2009). More so
here.
Finally, even if Stephen is correct that Ellison’s “concern” was synonymous
with an intent to help law enforcement, his argument still fails because he does not
dispute that Ellison also acted out of curiosity. That “a private citizen is motivated
in part by a desire to aid law enforcement does not in and of itself transform her into
a government agent.” Highbull, 894 F.3d at 993. Rather, a citizen must be
“motivated solely or even primarily by the intent to aid the officers.” Id. And
Stephen has not shown that Ellison’s concern—rather than his curiosity—was his
primary motivation. See Inman, 558 F.3d at 745-46 (indicating that satisfying
personal curiosity is different from an intent to help law enforcement).
The district court did not err in determining that Ellison’s seizure and search
of the USB were not subject to the Fourth Amendment.
B.
Stephen next claims that Chief Smith violated the Fourth Amendment by
asking Ellison to bring the USB to the police station without first obtaining a search
warrant. The district court found that Chief Smith had not “seized” the USB. A
seizure “occurs when there is some meaningful interference with an individual’s
possessory interests.” United States v. Clutter, 674 F.3d 980, 984 (8th Cir. 2012).
The district court reasoned that Chief Smith had not meaningfully interfered with
Stephen’s possessory interest in the USB because Ellison had already taken it. Cf.
United States v. Jacobsen, 466 U.S. 109, 119 (1984).
Stephen challenges this holding, insisting that Jacobsen is inapplicable to
possessory interests. But we need not reach this argument as the district court
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independently upheld the seizure because Chief Smith had probable cause to believe
the USB contained child pornography and exigent circumstances justified immediate
seizure pending obtaining a search warrant. Because Stephen does not contest this
holding on appeal, he waives any challenge to this alternative holding. This alone
defeats Stephen’s argument. See United States v. Benson, 888 F.3d 1017, 1020 (8th
Cir. 2018). But, even on the merits, the district court correctly found that Chief
Smith did not violate the Fourth Amendment by seizing the USB before obtaining a
warrant.
“Where law enforcement authorities have probable cause to believe that a
container holds contraband or evidence of a crime, but have not secured a warrant,”
the Fourth Amendment “permit[s] seizure of the property, pending issuance of a
warrant to examine its contents, if the exigencies of the circumstances demand it or
some other recognized exception to the warrant requirement is present.” United
States v. Place, 462 U.S. 696, 701 (1983); see also Clutter, 674 F.3d at 985.
First, Ellison’s discussion with Chief Smith about the USB established
probable cause that the USB contained contraband. “Probable cause exists when,
given the totality of the circumstances, a reasonable person could believe there is a
fair probability that contraband or evidence of a crime would be found in a particular
place.” United States v. Fladten, 230 F.3d 1083, 1085 (8th Cir. 2000). When Ellison
contacted Chief Smith, he identified himself to police, and Ellison delivered the USB
to police in person. See United States v. Nolen, 536 F.3d 834, 839-40 (8th Cir. 2008)
(explaining that tips from identifiable informants deserve greater weight because
they “can be held responsible if [their] allegations turn out to be fabricated”). More
importantly, he indicated he had seen child pornography on the USB firsthand. See
United States v. Stevens, 530 F.3d 714, 718-19 (8th Cir. 2008) (finding probable
cause in part because the tipster had offered “a first-person, eyewitness account
of . . . contraband”).
Second, “the exigencies of the circumstances demand[ed]” seizing the USB
pending issuance of a warrant. See Place, 462 U.S. at 701. We considered a similar
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case in Clutter. There, police had probable cause to believe Clutter’s computers
contained child pornography. 674 F.3d at 985. At that time, Clutter was already in
jail, and Clutter’s father had the computers. Id. at 982-83. Clutter’s father, a former
police officer, urged police to take the computers, which they did before obtaining a
warrant. Id. We upheld the seizure, suggesting it was necessary “to prevent the
disappearance of evidence” and “to ensure that the hard drive was not tampered with
before a warrant was obtained.” Id. at 985. Like Clutter, the contraband here was
in the possession of a cooperative third party, and, without immediate seizure, the
police risked losing digital evidence. See also United States v. Goodale, 738 F.3d
917, 922 (8th Cir. 2013) (upholding warrantless seizure of laptop pending obtaining
a warrant for similar reasons). If anything, the situation here was even more urgent
because Stephen, unlike Clutter, was free and actively searching for the USB.
Accordingly, the district court correctly concluded that Chief Smith did not violate
the Fourth Amendment.
C.
Stephen next claims that the DCI violated his Fourth Amendment rights by
exceeding the scope of the search warrant when it viewed the USB’s contents.
“When considering whether a search exceeded the scope of a warrant, we look to
the fair meaning of the warrant’s terms.” United States v. Sturgis, 652 F.3d 842, 844
(8th Cir. 2011) (per curiam) (internal quotation marks and alterations omitted).
Here, the search warrant authorized law enforcement to conduct “[a] complete
forensic examination of [the USB].” The ordinary reading of this phrase clearly
authorized law enforcement to view the USB’s contents. See Merriam Webster’s
Collegiate Dictionary 434 (11th ed. 2005) (defining “examine” as “to inspect
closely”).
Stephen counters that the warrant “expressly defined [a complete forensic
examination] as ‘extracting and cloning data’” while also “referenc[ing] copying.”
But, although the warrant states that “[t]he examination may include extracting and
cloning data,” the word “include” indicates this is not an exhaustive definition. See
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United States v. Reingold, 731 F.3d 204, 228-29 (2d Cir. 2013) (holding, in
interpreting the sentencing guidelines, that the word “includes” indicates an
illustrative, not exhaustive, list); Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 132 (2012) (“[T]he word include does not
ordinarily introduce an exhaustive list.”). Accordingly, the district court properly
found that law enforcement did not exceed the search warrant in viewing the USB’s
contents.
In sum, the district court correctly found that Stephen’s Fourth Amendment
rights were not violated. Accordingly, because there was no illegal search or seizure,
Stephen’s related fruit-of-the-poisonous-tree argument also fails. See United States
v. Villa-Gonzales, 623 F.3d 526, 534 (8th Cir. 2010). The district court correctly
denied Stephen’s motion to suppress.
III.
Stephen also appeals his sentence. The district court found that Stephen had
an offense level of 43 and a criminal history category of I, yielding an advisory
guidelines sentence of life imprisonment. The district court ultimately sentenced
Stephen to 2,160 months’ imprisonment.
Initially, it seemed Stephen might be arguing that his sentence was
procedurally erroneous. But in his reply brief he conceded “that the District Court
properly calculated the Guidelines range, treated that range as advisory, considered
the § 3553(a) factors as applied to Mr. Stephen, and did not base its sentence on any
clearly erroneous facts.” Further, Stephen does not claim that the district court failed
to explain adequately his sentence. Thus, Stephen is not claiming procedural error,
see United States v. Bordeaux, 674 F.3d 1006, 1009 (8th Cir. 2012), and we consider
only whether Stephen’s 180-year sentence was substantively reasonable.
We review a sentence’s substantive reasonableness under a “deferential
abuse-of-discretion standard.” United States v. Cole, 657 F.3d 685, 688 (8th Cir.
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2011). When, as here, the district court imposes a within-guidelines sentence, we
apply a presumption of reasonableness. See United States v. Betcher, 534 F.3d 820,
827-28 (8th Cir. 2008) (applying presumption of reasonableness to a 750-year
sentence when the guidelines recommended life imprisonment).
At the outset, Stephen suggests that the district court failed to account for the
fact that Stephen’s guilty plea “spare[d] the government, the court, and the
victims . . . the time, expense, and difficulty that a trial would have caused.” This is
mistaken. At sentencing, the district court expressly considered Stephen’s guilty
plea and described it as the strongest mitigating factor. But the district court also
found this factor outweighed by others, including the fact that Stephen’s acceptance
of responsibility was half-hearted. The district court explained that, at sentencing,
Stephen “focus[ed] . . . on his own achievements” and described his greatest regret
as “the tarnishment [sic] of [his] reputation and his achievements” rather than
focusing on the harm he inflicted on his victims. The district court “has wide latitude
to weigh the § 3553(a) factors in each case and assign some factors greater weight
than others.” United States v. Bridges, 569 F.3d 374, 379 (8th Cir. 2009). And
Stephen’s “disagreement with how the district court weighed the factors does not
demonstrate abuse of discretion.” See United States v. McSmith, 968 F.3d 731, 737
(8th Cir. 2020); see also United States v. Sanchez-Rojas, 889 F.3d 950, 952 (8th Cir.
2018) (rejecting argument that the district court abused its discretion by failing to
give adequate weight to the defendant’s guilty plea).
Stephen also argues life imprisonment “is simply excessive” as he “did not
kill anyone, and no victim was physically injured.” Stephen grossly downplays the
seriousness and magnitude of his offense. The district court found that Stephen had
committed “a horrendous offense” by sexually exploiting more than 400 children
over nearly two decades. And the district court emphasized that the harm to the
children was “incalculable and profound” and radiated to their families. Further, the
district court acknowledged that Stephen’s use of his position as a youth basketball
coach to carry out his offense made it even more sinister. Considering the
seriousness of Stephen’s offense, the presumption of reasonableness, and the district
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court’s wide latitude to weigh the § 3553(a) factors, we find the district court did not
abuse its discretion in imposing Stephen’s sentence.
IV.
For the foregoing reasons, we affirm.
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