United States v. Hudspeth

RILEY, Circuit Judge.

Roy Hudspeth (Hudspeth) entered a conditional guilty plea to possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5) and (b)(2). The district court1 sentenced Hudspeth to 60 months’ *955imprisonment. On appeal, Hudspeth challenged the denial of his motion to suppress evidence seized during the warrant search of his business and the warrantless search of his home computer. Hudspeth also challenged the district court’s application of the United States Sentencing Guidelines. A panel of our court unanimously-affirmed the denial of Hudspeth’s motion to suppress the evidence seized during the warrant search of Hudspeth’s business computer, and also affirmed Hudspeth’s sentence. United States v. Hudspeth, 459 F.3d 922 (8th Cir.2006). A majority of the panel, however, reversed the district court’s denial of Hudspeth’s motion to suppress the evidence seized during the war-rantless search of Hudspeth’s home computer by applying Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), and concluding Hudspeth’s objection to the search overruled his wife’s later consent. We granted the government’s petition for rehearing en banc, vacated the panel opinion, and heard additional argument. We now reinstate the panel opinion, except the portion regarding the warrantless search of Hudspeth’s home computer, and affirm the district court in all respects.

1. BACKGROUND

The factual background of this case is set forth- in detail in the panel opinion, Hudspeth, 459 F.3d at 924-26, thus we repeat only those facts necessary for discussion of the issue before our en banc court. On July 25, 2002, drug enforcement officers executed a search warrant at Handi-Rak Services, Inc. (Handi-Rak) seeking evidence relating to large quantity sales of pseudoephedrine tablets. Hudspeth, Handi-Rak’s CEO, arrived at the business while the search was underway. Hudspeth received his Miranda2 warnings and agreed to talk with Missouri State Trooper Corporal Daniel Nash (Cpl.Nash). During the course of the search, officers discovered child pornography on Hudspeth’s business computer and homemade compact discs (CDs). Hudspeth told Cpl. Nash he downloaded the images from the internet and burned the images onto CDs. Hudspeth was arrested for possession of child pornography. The child pornography discovered on Hudspeth’s business computer and the CDs, along with information volunteered by Hudspeth, led Cpl. Nash to believe Hudspeth’s home computer also probably contained child pornography. Cpl. Nash asked Hudspeth for permission to search his home computer. Hudspeth refused.

After officers arrested Hudspeth and transported him to jail, Cpl. Nash and three other law enforcement officers went to Hudspeth’s home. Hudspeth’s wife, Georgia Hudspeth (Mrs. Hudspeth), and the couple’s two children were at the residence. Mrs. Hudspeth sent the children to a back bedroom and permitted the officers to enter the living room. The officers were not in uniform and were not carrying their service revolvers. Cpl. Nash identified himself and informed Mrs. Hudspeth her husband had been arrested for possession of contraband found on his business computer. Cpl. Nash told Mrs. Hudspeth he was concerned the home computer contained similar contraband.

Cpl. Nash and Mrs. Hudspeth discussed the family’s two computers: one in the children’s room, which only the children used, and one in the garage (home computer). Cpl. Nash asked Mrs. Hudspeth for permission to search the home. Mrs. Hudspeth refused. Cpl. Nash then asked *956Mrs. Hudspeth if he could take the home computer. Mrs. Hudspeth said she did not know what to do and asked Cpl. Nash what would happen if she refused to let him take the home computer. Cpl. Nash explained he would apply for a search warrant and, in the meantime, he would leave an armed, uniformed officer in the home to prevent the destruction of the home computer and other evidence. Cpl. Nash did not tell Mrs. Hudspeth her husband previously denied consent to search the home computer.

Mrs. Hudspeth told Cpl. Nash she wanted to make a phone call and went into the kitchen where she tried unsuccessfully to contact her attorney. A few minutes later, Mrs. Hudspeth returned to the living room and gave the officers permission to take the home computer. Cpl. Nash also seized homemade CDs found next to the home computer, which bore the same markings as CDs seized at Handi-Rak.

Cpl. Nash obtained a second search warrant to search the contents of the computers and CDs taken from Handi-Rak and the Hudspeth residence. On the CDs and the computer hard drives, investigators found child pornography, which Hudspeth had downloaded from the internet and online newsgroups. Investigators also discovered movie files of Hudspeth’s stepdaughter appearing nude and in various stages of undress, which Hudspeth had surreptitiously recorded using a web camera.

Hudspeth was indicted for possession of child pornography and unsuccessfully moved to suppress the evidence seized during the searches of Handi-Rak and the home computer. Hudspeth entered a conditional guilty plea to possession of child pornography, reserving the right to appeal the denial of his motion to suppress. At sentencing, the district court sentenced Hudspeth to 60 months’ imprisonment, the statutory maximum under 18 U.S.C. § 2252A.3 Hudspeth appealed the district court’s denial of the suppression motion and the application of sentencing enhancements.

After the appellate panel heard oral argument but before the panel filed its opinion, the Supreme Court decided Randolph. The panel requested additional briefing on the application, if any, of Randolph to the warrantless search of Hudspeth’s home computer. Thereafter, the panel unanimously affirmed the district court’s denial of Hudspeth’s motion to suppress the warrant search of Hudspeth’s business computer concluding the warrant, as well as Hudspeth’s express consent, authorized the search of Hudspeth’s business computer. The panel also unanimously affirmed Hudspeth’s sentence, concluding under the terms of Hudspeth’s plea agreement, Hud-speth waived the right to appeal any sentence not exceeding the statutory maximum. Regarding the warrantless search of Hudspeth’s home computer, the panel unanimously agreed Mrs. Hudspeth’s consent was voluntary and not coerced, but the panel divided over the application of Randolph. The majority held Mrs. Hud-speth’s consent did not overrule Hud-speth’s non-contemporaneous objection to the search. We granted the government’s petition for rehearing en banc on the issue of the applicability of Randolph to the warrantless seizure of Hudspeth’s home computer.

II. DISCUSSION

When considering a district court’s denial of a suppression motion, we review for clear error the district court’s factual *957findings and de novo its legal conclusions based on those facts. United States v. Salazar, 454 F.3d 843, 846 (8th Cir.2006). Our en banc court now addresses only whether Hudspeth’s objection to the war-rantless search of the home computer overruled Mrs. Hudspeth’s later consent. We must view this question not only in light of Randolph, but also in light of two earlier Supreme Court decisions: United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); and Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990).

In Matlock, defendant William Matlock (Matlock) had been arrested in the front yard of his residence on suspicion of bank robbery. See United States v. Matlock, 476 F.2d 1083, 1085 (7th Cir.1973), rev’d, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Looking for money and a gun used in connection with the robbery, the arresting officers immediately went to the door of the residence and secured consent to search the home from Gayle Graff (Graff). The officers did not ask Matlock for consent even though he sat in a squad car a short distance away. Matlock, 415 U.S. at 166, 94 S.Ct. 988. The officers seized cash and a gun from the east bedroom of the home, which Matlock shared with Graff. The trial court suppressed the evidence recovered from the bedroom, concluding Graffs consent to search the bedroom was not binding on Matlock. Matlock, 476 F.2d at 1086. The suppression was affirmed on appeal. Id. at 1088.

The Supreme Court reversed, holding the government could satisfy its burden of proving consent to a warrantless search by showing “permission to search was obtained from a third party [Graff] who possessed common authority over ... the premises” to be searched. Matlock, 415 U.S. at 171, 94 S.Ct. 988. Citing earlier Fourth Amendment law, the Court clarified that proof of voluntary consent to justify a warrantless search “is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” Id. (footnote omitted) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 245-46, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 487-90, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); and Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969)). The Court stated “the consent of one who possesses common authority over premises or effects is valid as against the absent, non-consenting person with whom that authority is shared.” Id. at 170, 94 S.Ct. 988 (emphasis added). Graffs consent was valid despite the fact the arresting officers knew Matlock was sitting in the squad car a short distance away and the officers did not ask Matlock for his consent. Id. at 166, 171, 178, 94 S.Ct. 988.

In Rodriguez, the issue of co-tenant consent arose out of a domestic dispute. Rodriguez, 497 U.S. at 179-80, 110 S.Ct. 2793. Police were summoned on behalf of assault victim Gail Fischer (Fischer). When police arrived, Fischer told the officers her assailant was asleep in “our” apartment. Fischer then led the officers to the apartment, unlocked the door with her key, and gave the officers permission to enter. Once inside the apartment, the officers observed drugs and drug paraphernalia in plain view and found Rodriguez asleep in the bedroom. Rodriguez was arrested and charged with possession of illegal drugs. He moved to suppress the evidence claiming Fischer had moved out of the apartment several weeks earlier and did not have authority to consent to the search. The Illinois state court suppressed the evidence, holding Fischer’s consent was inval*958id because Fischer “was not a ‘usual resident’ but rather an ‘infrequent visitor’ at the apartment,” who “did not possess common authority over the premises.” Id. at 180, 110 S.Ct. 2793. The decision was affirmed on appeal. Id.

The Supreme Court reversed, concluding a police officer’s reasonable belief that a person with common authority over the premises consented to the search is enough to satisfy the reasonableness requirement under the Fourth Amendment. Id. at 186, 110 S.Ct. 2793. In arriving at this decision, the Court distinguished between “those rights that protect a fair criminal trial and the rights guaranteed under the Fourth Amendment,” and noted that nothing “in the purposes behind requiring a ‘knowing’ and ‘intelligent’ waiver of trial rights, or in the practical application of such a requirement suggests that it ought to be extended to the constitutional guarantee against unreasonable searches and seizures.” Id. at 183, 110 S.Ct. 2793 (quoting Schneckloth, 412 U.S. at 241, 93 S.Ct. 2041).

The Court further noted the Fourth Amendment does not assure a defendant “no government search of his house will occur unless he consents,” id., rather the Fourth Amendment guarantees only “no such search will occur that is ‘unreasonable,’ ” id. (citing U.S. Const, amend. IV). The Court emphasized “[t]he fundamental objective that alone validates all unconsented government searches is, of course, the seizure of persons who have committed or are about to commit crimes, or of evidence related to crimes,” id. at 184, 110 S.Ct. 2793, and reiterated that “of the many factual determinations that must regularly be made by agents of the government,” the Fourth Amendment does not require the agents “always be correct, but that they always be reasonable,” id. at 185-86, 110 S.Ct. 2793 (citing Brinegar v. United States, 338 U.S. 160, 173, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (distinguishing the “large difference” between what “is required to prove guilt in a criminal case and what is required to show probable cause for arrest or search”)). The Court found “no reason to depart from this general rule with respect to facts bearing upon the authority to consent to a search.” Id. at 186,110 S.Ct. 2793.

Most recently, in Randolph, the Court considered “whether one occupant may give law enforcement effective consent to search shared premises, as against a co-tenant who is present and states a refusal to permit the search.” Randolph, 547 U.S. at 108, 126 S.Ct. 1515. In Randolph, the defendant’s wife, Janet Randolph (Mrs. Randolph), informed the police her husband, Scott Randolph (Randolph), took their young son away and was a drug user with drugs in the home. Id. at 106-07,126 S.Ct. 1515. After Randolph returned to the home and explained the child was with a neighbor, the officers asked Randolph for permission to search the home. Randolph refused. The officers immediately turned to Mrs. Randolph and asked for her consent. Mrs. Randolph readily consented and led one officer to a bedroom where the officer observed drugs and drug paraphernalia. Id. at 107,126 S.Ct. 1515.

After being charged with cocaine possession, Randolph moved to suppress the evidence seized during the search. The state trial court denied the motion to suppress; however, that ruling was reversed on appeal. Id. at 108, 126 S.Ct. 1515 (citing Randolph v. State, 264 Ga.App. 396, 590 S.E.2d 834, 836-37 (2003), aff'd, State v. Randolph, 278 Ga. 614, 604 S.E.2d 835, 836 (2004)).

The Supreme Court granted certio-rari and affirmed the appellate decision, which distinguished Matlock, observing “Randolph was not ‘absent’ from the eolio-*959quy on which the police relied for consent to make the search.” Randolph, 547 U.S. at 108, 126 S.Ct. 1515 (citing Randolph, 604 S.E.2d at 837). The Court, quoting the Georgia Supreme Court, stated “the consent to conduct a warrantless search of a residence given by one occupant is not valid in the face of the refusal of another occupant who is physically present at the scene to permit a warrantless search.” Id. (quoting State v. Randolph, 604 S.E.2d at 836).

The Supreme Court further noted that no prior co-tenant consent-to-search cases “presented the further fact of a second occupant physically present and refusing permission to search, and later moving to suppress evidence so obtained.” Id. at 109, 126 S.Ct. 1515. Throughout the Randolph opinion, the majority consistently repeated it was Randolph’s physical presence and immediate objection to Mrs. Randolph’s consent that distinguished Randolph from prior case law.4 The Court reinforced this point in its conclusion, holding “a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.” Id. at 120, 126 S.Ct. 1515 (emphasis added).

The Court went on to emphasize the significance and preservation of both Mat-lock and Rodriguez, and thus the consequentially narrow holding of Randolph:

Although the Matlock defendant was not present with the opportunity to object, he was in a squad car not far away; the Rodriguez defendant was actually asleep in the apartment, and the police might have roused him with a knock on the door before they entered with-only the consent of an apparent co-tenant. If those cases are not to be undercut by today’s holding, we have to admit that we are drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.

Id. at 121, 126 S.Ct. 1515.

Thus, as we turn to the question of whether Hudspeth’s Fourth Amendment rights were violated, we must consider not only Randolph, but Matlock and Rodriguez as well. Several factors demonstrate Hudspeth’s Fourth Amendment rights were not violated.

As an initial matter, we note that when Mrs. Hudspeth consented to the seizure of the home computer, Hudspeth already had been arrested and jailed for possession of child pornography. His arrest was based on child pornography previously seized during the warrant search of Handi-Rak. Indeed, this independently discovered evidence, combined with information volunteered by Hudspeth, provided probable cause for Cpl. Nash to believe the home computer contained additional contraband. Furthermore, during the search at Handi-*960Rak, Cpl. Nash observed Hudspeth making several phone calls. This observation provided Cpl. Nash with a reasonable concern that any evidence on the home computer was at risk because it was possible Hudspeth made phone calls to arrange for the removal or destruction of the home computer. Such exigent circumstances support the reasonableness of the officer’s conduct. United States v. Amburn, 412 F.3d 909, 915 (8th Cir.2005).

The legal issue of whether an officer’s knowledge of the prior express refusal by one co-tenant negates the later obtained consent of another authorized co-tenant is a matter of first impression in this court. We will answer this compound legal question by answering the separate legal questions involved.

First, we know Mrs. Hudspeth was a co-tenant authorized to give the officers consent to search. See Matlock, 415 U.S. at 171, 94 S.Ct. 988. We also know that although not obligated to do so, Cpl. Nash advised Mrs. Hudspeth of her right to refuse consent. See Schneckloth, 412 U.S. at 248-49, 93 S.Ct. 2041. In fact, Mrs. Hudspeth did refuse Cpl. Nash’s request to search the home. Cpl. Nash correctly informed Mrs. Hudspeth of his lawful authority and his alternative intent to leave an armed, uniformed officer at the residence to secure the evidence if Mrs. Hudspeth refused to consent to Cpl. Nash seizing the home computer. See Segura v. United States, 468 U.S. 796, 810, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (“We hold, therefore, that securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents.”); United States v. Ruiz-Estrada, 312 F.3d 398, 404 (8th Cir.2002).

Second, unlike Randolph, the officers in the present case were not confronted with a “social custom” dilemma, where two physically present co-tenants have contemporaneous competing interests and one consents to a search, while the other objects. Instead, when Cpl. Nash asked for Mrs. Hudspeth’s consent, Hudspeth was not present because he had been lawfully arrested and jailed based on evidence obtained wholly apart from the evidence sought on the home computer. Thus, this rationale for the narrow holding of Randolph, which repeatedly referenced the defendant’s physical presence and immediate objection, is inapplicable here.

Third, the Fourth Amendment’s reasonableness requirement did not demand that the officers inform Mrs. Hudspeth of her husband’s refusal. This conclusion is supported by Matlock and Rodriguez, where law enforcement officers bypassed the defendants against whom the evidence was sought, although the defendants were present and available to participate in the consent colloquy. The officers instead sought the consent of an authorized co-tenant. See Rodriguez, 497 U.S. at 180, 110 S.Ct. 2793; Matlock, 415 U.S. at 166, 94 S.Ct. 988.

The Randolph opinion repeatedly referred to an “express refusal of consent by a physically present resident.” Randolph, 547 U.S. at 120, 126 S.Ct. 1515 (emphasis added); e.g., id. at 108, 109, 114, 121-23, 126 S.Ct. 1515. The Randolph majority candidly admitted “we are drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search.” Id. at 121, 126 S.Ct. 1515 (emphasis added). Hudspeth was not at the door and objecting and does not fall within Randolph’s “fine line.” Thus, we must conclude Cpl. Nash’s failure to advise Mrs. *961Hudspeth of her husband’s earlier objection to a search of the home computer did not convert an otherwise reasonable search into an unreasonable one.

The Fourth Amendment does not prohibit warrantless searches and seizures, nor does the Fourth Amendment always prohibit warrantless searches and seizures when the defendant previously objected to the search and seizure. “What [Hudspeth] is assured by the Fourth Amendment itself, however, is ... no such search will occur that is ‘unreasonable.’ ” Rodriguez, 497 U.S. at 183, 110 S.Ct. 2793. As the Supreme Court explains, “it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his [or her] own right.” Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. 988. And the absent, expressly objecting co-inhabitant has “assumed the risk” that another co-inhabitant “might permit the common area to be searched.” Id. The authorized co-tenant may give consent for several reasons including an unawareness of contraband on the premises, or a desire to protect oneself or others (as here, Mrs. Hudspeth, in the self-interest of herself and her children, consented to the seizure of the home computer to prevent the placement of an armed, uniformed law enforcement officer in her home to guard the evidence while a search warrant was obtained).

Under the totality of circumstances of the present case, maintaining the Fourth Amendment’s touchstone requirement against unreasonable searches and seizures, we conclude the seizure of Hud-speth’s home computer was reásonable and the Fourth Amendment was not violated when the officers sought Mrs. Hudspeth’s consent despite having received Hud-speth’s previous refusal. We affirm the district court’s denial of Hudspeth’s motion to suppress the evidence obtained from the warrantless seizure of Hudspeth’s home computer.

III. CONCLUSION

For the reasons stated, we reinstate Parts I, 11(A)(1), and 11(B) of the panel opinion in full, and that portion of Part 11(A)(2) regarding the voluntariness of Mrs. Hudspeth’s consent. The judgment of the district court is affirmed in all respects.

. The Honorable Dean Whipple, then Chief Judge, United States District Court for the Western District of Missouri.

. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

. The 2003 amendments to 18 U.S.C. § 2252A(b), increased the maximum and minimum sentences for offenses under § 2252A(a).

. For example, in discussing customary expectations of courtesy, the Court stated "it is fair to say that a caller standing at the door of shared premises would have no confidence that one occupant's invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, 'stay out.' " Randolph, 547 U.S. at 113, 126 S.Ct. 1515 (emphasis added). The Court added that a co-tenant inviting a third party into the shared dwelling "has no recognized authority in law or social practice to prevail over a present and objecting co-tenant, his disputed invitation, without more, gives a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all.” Id. at 114, 126 S.Ct. 1515 (emphasis added).