United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1771
___________
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Kevin McManaman, *
*
Defendant - Appellant. *
*
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Submitted: October 18, 2011
Filed: March 14, 2012
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Before MELLOY, BEAM, and GRUENDER, Circuit Judges.
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MELLOY, Circuit Judge.
Appellant Kevin McManaman entered a conditional plea of guilty to two
counts of sexual exploitation of children in violation of 18 U.S.C. § 2251(a) and (e),
and was sentenced to 276 months' imprisonment. McManaman reserved the right to
appeal the district court's1 denial of his motion to suppress evidence. On appeal, he
argues that the district court erred when it denied his motion to suppress statements
1
The Honorable Judge Mark W. Bennett, United States District Judge for the
Northern District of Iowa.
and physical evidence obtained in violation of his Fourth, Fifth, and Sixth
Amendment rights. We affirm.
I.
On March 25, 2008, a grand jury indicted McManaman on various gun and
drug charges based on admissions he had made in 2005 and 2006 to agents with the
Bureau of Alcohol, Tobacco, Firearms, and Explosives. A week later, on April 2,
2008, federal and state law enforcement officers arrived at McManaman's home with
an arrest warrant issued in connection with that indictment. Special Agents Todd
Monney and Zane Dodds approached McManaman's porch while other officers took
up positions around the house. The agents had a "breaching tool" in case occupants
refused to open the door, but after a knock, McManaman came to the door, followed
by his wife, Tina Frye. Monney informed McManaman of the warrant, and because
of the presence of children inside the home, requested that McManaman step out onto
the front porch.
On the porch, officers placed McManaman under arrest and patted him down.
Inside his pockets they found a marijuana pipe and a methamphetamine pipe. Before
informing McManaman of his rights, Dodds asked him if there was anything else
illegal inside his home that officers should be concerned about. After a pause,
McManaman sighed and eventually told officers that there was a shotgun in his
basement. He offered to have his wife go retrieve the gun, but officers informed him
that one of them would have to accompany her into the house to get it. McManaman
informed Frye where the gun was located, and she led Dodds around the side of the
house and into the basement.
While in the house, Dodds encountered a locked door and asked Frye if he
could search the room inside. Frye indicated that the door must have been
accidentally locked and that they usually used a screwdriver to open it. Using a
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pocket knife provided by another officer, Frye opened the door. Inside the room,
officers observed a closet door locked with a padlock, for which Frye indicated she
did not have a key. Agent Monney, who had joined them in the house, asked Frye if
he could take the door off its hinges to open it, and she gave him permission to do so.
Inside the closet, there were boxes, a stack of magazines, and some videotapes.
While searching the contents of the closet, Monney rummaged through the boxes and
magazines. Mixed in with the magazines were several color photographs that
Monney characterized as depicting young nude females. It is unclear whether the
photographs were folded, face up, or tucked inside the pages of the magazines. In
one box, Monney also found a videotape labeled with McManaman's minor step-
daughter's name and the words "Home XXX Edit." Frye initially told officers to "get
rid of" the items in the closet, though she refused to sign a consent form on the
matter, and she later denied having ever consented to the search in the first place.
McManaman was taken to the county jail that night, where he was eventually
advised of his rights. After officers had finished searching his home, they
interviewed McManaman in jail about the indictment and the additional evidence they
had found. McManaman made certain admissions about the child pornography, which
led to a subsequent search of his home the next day. In a tape recorded conversation,
Tina Frye consented to this subsequent search, and officers retrieved a computer hard
drive with additional evidence.
The district court proceeded with the gun and drug charges in 2008 and didn't
consider the child pornography at that time. After a suppression hearing, a magistrate
judge2 found that Agent Dodds' question on the front porch had violated
McManaman's Fifth and Sixth Amendment rights but concluded these violations
2
The Honorable Paul A. Zoss, United States Magistrate Judge for the Northern
District of Iowa.
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ultimately did not require the suppression of the shotgun3 found during the search of
the home because of the inevitable discovery doctrine. The drug paraphernalia found
in McManaman's pocket when he was arrested would have provided sufficient
probable cause for a search warrant of the house, and the judge concluded that the
gun would have ultimately been discovered once a warrant was obtained. In adopting
the magistrate judge's report and recommendation, the district court concluded:
Although the court finds this to be an exceedingly close question,
the court finds both prongs of the inevitable discovery doctrine are
satisfied. With respect to the first prong, it seems certain that the law
enforcement officers would have sought a search warrant for defendant
McManaman's home upon finding the marijuana pipe and
methamphetamine pipe on his person. The more difficult question is
whether a neutral magistrate would have issued a warrant based on the
information [independent of the Fifth and Sixth Amendment violation].
The court concludes that a finding of probable cause is satisfied here and
that a neutral magistrate would have issued a search warrant for
defendant's home.
....
The second prong of the doctrine is also established. Apart from
arresting defendant McManaman on an arrest warrant, upon finding
drug paraphernalia on his person, the officers were engaged in
ascertaining defendant McManaman's current involvement with drugs.
The court finds such substantial, alternative line of investigation
satisfies the test in this case.
3
Though it was not suppressed by the court, the shotgun was never offered into
evidence. Transcripts of the suppression hearing show that the parties understood
their arguments about exclusion were more relevant to the pornography, which would
be offered into evidence at a later trial.
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United States v. McManaman, No. 08-CR-4025-MWB, 2008 WL 2704557 at *7–8
(N.D. Iowa July 3, 2008). After the district court denied his motion to suppress,
McManaman pled guilty to three of the six drug and firearm counts against him and
was sentenced to 75 months' imprisonment. McManaman is currently serving that
sentence.
On May 21, 2010, a grand jury returned an eight-count indictment related to
the child pornography that was discovered after McManaman's arrest. The court held
an evidentiary hearing on August 17, 2010, where McManaman sought to suppress
all of the evidence gathered during the two searches of his home, based on the court's
2008 finding that his Fifth and Sixth Amendment rights had been violated.
McManaman also argued that his wife did not consent to the warrantless search, and
that she did not have the authority to consent to a search of the locked closet.
Because his 2008 hearing had already established that officers could and would have
obtained a search warrant to look for guns, drugs, and ammunition, the magistrate
judge found that McManaman was collaterally estopped from renewing a challenge
to the likelihood of obtaining a search warrant. McManaman was still allowed to
challenge whether the pornography would have been inevitably discovered in such
a search, however the magistrate concluded that the pornography would have also
been inevitably discovered in plain view during a lawful search. The magistrate
judge concluded that this finding made moot McManaman's other constitutional
arguments. The district court adopted the magistrate judge's report and
recommendation over McManaman's objections and denied his motion to suppress.
McManaman entered a conditional plea of guilty to counts one and two of the
indictment and was sentenced to 276 months' imprisonment, to be served
consecutively with the 2008 sentence. McManaman appeals the denial of his motion
to suppress.
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II.
McManaman argues on appeal that the district court erred in denying his
motion to suppress because the government failed to establish that the child
pornography would have been discovered by lawful means. In reviewing a denial of
a motion to suppress, the court reviews the district court's legal conclusions de novo,
and the court reviews the district court's factual findings for clear error. United States
v. Vanover, 630 F.3d 1108, 1113–14 (8th Cir. 2011).
Courts use the suppression of evidence under the exclusionary rule as a
remedial device that is "'restricted to those areas where its remedial objectives are
thought most efficaciously served.'" Segura v. United States, 468 U.S. 796, 804
(1984) (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)). "[T]he
exclusionary rule reaches not only primary evidence obtained as a direct result of an
illegal search or seizure, but also evidence later discovered and found to be derivative
of an illegality or 'fruit of the poisonous tree.'" Id. (citations omitted). To have
evidence that was obtained after a constitutional violation admitted into court, the
government must show that it was not obtained "by exploitation of that illegality [but]
instead by means sufficiently distinguishable to be purged of the primary taint."
Wong Sun v. United States, 371 U.S. 471, 488 (1963). Evidence is purged of taint
and should not be suppressed "[i]f the prosecution can establish by a preponderance
of the evidence that the information ultimately or inevitably would have been
discovered by lawful means." Nix v. Williams, 467 U.S. 431, 444 (1984).
We have held that this inevitable discovery exception applies when the
government proves "by a preponderance of the evidence: (1) that there was a
reasonable probability that the evidence would have been discovered by lawful means
in the absence of police misconduct, and (2) that the government was actively
pursuing a substantial, alternative line of investigation at the time of the constitutional
violation." United States v. Conner, 127 F.3d 663, 667 (8th Cir. 1997). But see
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United States v. Thomas, 524 F.3d 855, 860–63 (8th Cir. 2008) (Colloton, J.,
concurring) (arguing that this two-pronged test is both over- and underinclusive, and
that it is not consistent with Nix v. Williams). In this analysis, "it is important to
focus not on what the officers actually did after unlawfully recovering evidence, but
on what the officers were reasonably likely to have done had the unlawful recovery
not occurred." United States v. Villalba-Alvarado, 345 F.3d 1007, 1020 (8th Cir.
2003).
McManaman advances two arguments why he believes the government failed
to meet its burden under the first prong. McManaman believes the discovery was not
inevitable because there was no probable cause that would have supported a search
warrant, and therefore no lawful search would have occurred. In the alternative,
assuming a search warrant would have been obtained, McManaman contends the
child pornography was outside of the likely scope of any such warrant, and that
officers would not have been able to lawfully obtain the evidence. With respect to
the second prong, McManaman argues the record lacks sufficient evidence of a
substantial, alternative line of investigation.
Because the district court's 2008 order already found that the existence of
probable cause and a substantial, alternative line of investigation satisfied both the
first and second prongs, McManaman must clear the hurdle of collateral estoppel
before these arguments can be considered. "We apply the doctrine of collateral
estoppel when: (1) the issue sought to be precluded is identical to the issue previously
decided; (2) the prior action resulted in a final adjudication on the merits; (3) the
party sought to be estopped was either a party or in privity with a party to the prior
action; and (4) the party sought to be estopped was given a full and fair opportunity
to be heard on the issue in the prior action." Ripplin Shoals Land Co. v. U.S. Army
Corps of Eng'rs, 440 F.3d 1038, 1044 (8th Cir. 2006). Although usually applied in
civil cases, we have applied collateral estoppel in criminal cases against criminal
defendants. See United States v. Rosenberger, 872 F.2d 240, 242 (8th Cir. 1989).
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McManaman does not dispute that all four estoppel factors are present in this
case. However, he contends that due process implications should prevent us from
following Rosenberger's holding. In Rosenberger, the court was not unsympathetic
to the due process implications of estopping a criminal defendant, but nonetheless
concluded there was "no reason . . . for avoiding the doctrine's application" so long
as courts "closely examine the prerequisites of the estoppel doctrine in the context of
criminal cases." Id. We have elsewhere noted that "'the rule of collateral estoppel in
criminal cases is not to be applied with the hypertechnical and archaic approach of
a 19th century pleading book, but with realism and rationality.'" United States v.
Torres-Villalobos, 487 F.3d 607, 617 (8th Cir. 2007) (quoting Hernandez-Uribe v.
United States, 515 F.2d 20, 22 (8th Cir. 1975)). The Rosenberger court, however,
concluded that estoppel was appropriate when a defendant did nothing more "than
reargue the assertions he made" in the earlier suit and offered "[n]o new evidence or
changed circumstances." Rosenberger, 872 F.2d at 242.
Like the defendant in Rosenberger, McManaman has offered no new evidence
or argument that would cast doubt on the district court's ruling as to either prong of
the inevitable discovery issue. Instead, he asks the court to revisit what the district
court originally identified as an "exceedingly close question." Even if we were to
reach the merits of McManaman's argument, he offers no persuasive argument why
we should come to a different conclusion. McManaman's argument on the
merits—now, as it was in 2008—is that officers would not have had probable cause
to obtain a search warrant and were not engaged in an alternative line of investigation
because they had no knowledge about any gun or drug transactions since 2005. Such
stale information, he suggests, does not point to a fair probability that contraband will
be found. This argument, however, significantly downplays the drug paraphernalia
that was found on McManaman's person the night he was arrested. We have
previously stated that the existence of drug paraphernalia "in or around a suspect's
house is significant on the issue of probable cause." United States v. Hernandez
Leon, 379 F.3d 1024, 1028 (8th Cir. 2004). The district court weighed McManaman's
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criminal history along with the evidence found incident to his arrest—which
suggested current possession of drugs—when it decided whether probable cause
existed and whether the agents were pursuing a substantial, alternative line of
investigation. McManaman fails to offer a compelling reason for us to reconsider the
district court's 2008 ruling.
Because McManaman is collaterally estopped from contesting the inevitable
discovery issues already addressed in his original conviction, we move to the one
argument that is new to the present case: that the evidence of child pornography
would have been outside the scope of a properly obtained search warrant. Any search
warrant that would have been issued would have been limited to evidence for guns,
drugs, or ammunition. However, if officers inadvertently discover illicit evidence
during a lawful search that is outside the scope of a search warrant, they are not
required to ignore it. Coolidge v. New Hampshire, 403 U.S. 443, 467–68 (1971)
("Where, once an otherwise lawful search is in progress, the police inadvertently
come upon a piece of evidence, it would often be a needless inconvenience . . . to
require them to ignore it until they have obtained a warrant particularly describing
it."). Instead, we apply the "plain view" doctrine when "police have a warrant to
search a given area for specified objects, and in the course of the search come across
some other article of incriminating character." Id. at 465.
"Under the plain-view doctrine, police are permitted 'to seize evidence without
a warrant when (1) the officer did not violate the Fourth Amendment in arriving at the
place from which the evidence could be plainly viewed, (2) the object's incriminating
character is immediately apparent, and (3) the officer has a lawful right of access to
the object itself.'" United States v. Alexander, 574 F.3d 484, 490 (8th Cir. 2009)
(quoting United States v. Weinbender, 109 F.3d 1327, 1330 (8th Cir. 1997)).
McManaman argues that the prosecution failed to establish that the illegality of the
pornography was immediately apparent because the officers had no reason to search
through the magazines and tapes. McManaman believes that once police saw the box
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was filled with magazines and pictures, rather than drugs or guns, the police were
prohibited from going through the box. He cites Arizona v. Hicks, 480 U.S. 321, 325
(1987) to support his argument that the police could not have searched the box of
magazines under the plain view doctrine because they had to manipulate the evidence,
and therefore it couldn't be "immediately apparent" that illicit pictures were present.
But Hicks dealt with a warrantless search, and it therefore has no bearing on whether
police could have searched through the box with a valid search warrant.
Under a warrant to search McManaman's home for guns, drugs, and
ammunition, officers would have had the authority to search in any closet, container,
or other closed compartment in the building large enough to contain the possible
contraband. See United States v. Ross, 456 U.S. 798, 820–21 (1982). We have
applied the plain view doctrine in similar circumstances where a search warrant
"authorized the police to seize, among other things, drugs and drug paraphernalia,
either of which could have been stored in a box in a closet. The police were,
therefore, acting within the scope of the warrant when they opened the box containing
[incriminating] photos." United States v. Evans, 966 F.2d 398, 400 (8th Cir. 1992).
Even if the pictures in the present case were folded up in the box, it seems reasonable
to conclude, as the magistrate judge did, that "officers would have had reason to
unfold the documents to determine whether they contained drugs, which often are
contained within folded pieces of paper." United States v. McManaman, No. CR10-
4024-MWB, 2010 WL 3717288 at *7 n.2 (N.D. Iowa Sept. 15, 2010).
The officers came across the photographs and the videotape with
McManaman's step-daughter's name on it within the scope of a search that would
have been proper had they obtained a search warrant. Because the incriminating
nature of this evidence was immediately apparent to the officers, they were entitled
to seize it under the plain view doctrine. Therefore the district court did not err in
denying McManaman's motion to suppress because of the inevitable discovery
doctrine.
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III.
McManaman argues that the district court erred in denying his motion to
suppress because the search that uncovered the evidence would not have happened
but for Agent Dodds' question about "anything else illegal" in the house, which he
contends was a violation of his Fifth and Sixth Amendment rights. McManaman also
argues that Tina Frye did not consent to the warrantless search, that she did not have
the authority to consent to such a search, and that the search therefore violated his
Fourth Amendment right. McManaman argues that all of the evidence obtained
during the two searches of his house, as well as the admissions he later made about
this evidence while at the county jail, were "fruits" of these alleged constitutional
violations and should have been suppressed.
Though the district court responded to and rejected each of these arguments on
their merits, it acknowledged that such analysis was superfluous in light of its holding
on the inevitable discovery of the evidence. Evidence should only be excluded if the
"illegality is at least a but-for cause of obtaining the evidence." United States v.
Olivera-Mendez, 484 F.3d 505, 511 (8th Cir. 2007). Because the district court found
that the evidence would have inevitably been discovered even had Dodds not asked
McManaman about anything illegal in the house, the agent's question was not a but-
for cause of obtaining the evidence. Even if we found error in the district court's
conclusion that no constitutional violations warranted the suppression of evidence,
it would not change the outcome of McManaman's case. "[W]hen, as here, the
evidence in question would inevitably have been discovered without reference to the
police error or misconduct, there is no nexus sufficient to provide a taint and the
evidence is admissible." Nix, 467 U.S. at 448. Because we find that the evidence is
admissible pursuant to the inevitable discovery doctrine, McManaman's
constitutional-violation arguments are moot, and we need not consider them on
appeal.
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IV.
Accordingly, we affirm the decision of the district court.
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