United States Court of Appeals
For the First Circuit
No. 01-1432
UNITED STATES OF AMERICA,
Appellee,
v.
SEAN LAINE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Selya and Lipez, Circuit Judges,
and Singal,* District Judge.
Mark L. Sisti and Twomey & Sisti Law Offices on brief for
appellant.
Gretchen Leah Witt, United States Attorney, and Peter E.
Papps, First Assistant United States Attorney, on brief for the
United States.
October 31, 2001
1
_________________
*Of the District of Maine, sitting by designation.
2
SELYA, Circuit Judge. A jury found defendant-appellant
Sean Laine guilty of one count of possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Laine
appeals, asserting that much of the prosecution's evidence
should never have seen the light of day. Finding no compelling
basis for suppression, we affirm the judgment below.
The facts are straightforward. In August of 1997,
local authorities received a complaint that the appellant
possessed computer image files containing child pornography.
The complaint was referred to the U.S. Customs Service. An
investigation ensued, but was thwarted by the death of a
confidential informant.
Despite this false start, the government persevered.
On March 16, 1999, a customs agent (Paul Coyman) visited the
appellant's home in Walpole, New Hampshire, accompanied by a
uniformed police officer (Sgt. Pelletier). We discuss the
details of what transpired during that visit in the pages that
follow. For now, it suffices to say that the officers knocked
and asked permission to enter the dwelling; that the appellant
permitted them to come inside; that he thereafter allowed them
to examine his computer; and that the examination revealed image
files of child pornography. A forensic review subsequently
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revealed over one hundred files depicting minors engaged in
sexual activity.
In due course, a federal grand jury returned a single-
count indictment for possession of child pornography. See 18
U.S.C. § 2252A(a)(5)(B). The appellant moved to suppress the
items found at his place of abode, including the images and
other information contained in the computer. The gravamen of
the motion was the appellant's claim that his consent to the
officers' entry had been obtained through coercion and duress
(and was, therefore, involuntary).
The district court held an evidentiary hearing on
November 8, 1999. Coyman testified, and the appellant submitted
an affidavit. The court reserved decision. Later, it issued a
thoughtful rescript in which it made detailed factual findings,
determining that the appellant had invited the officers into his
residence; that, after being informed that Coyman had
information that he (the appellant) had downloaded child
pornography, the appellant indicated that he would cooperate;
and that, after describing some of the images he had downloaded,
the appellant, in response to Coyman's request, led the officers
to his bedroom (where the computer was located). The court
further found that the computer was "up" and that Coyman noticed
in plain view an icon for a program — ACDSee — that the
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appellant had mentioned as one he had used to view images.
Coyman asked the appellant to click on this icon; when the
appellant did so, a list of files with the extension ".jpg"
appeared.1 At Coyman's direction, the appellant opened one of
the files (which depicted children engaged in sexual activity).
Coyman then secured the appellant's consent to a forensic
examination of his computer and the associated diskettes. The
appellant signed a written consent form verifying this
agreement.
The court acknowledged that the appellant's affidavit
painted a different picture — the appellant claimed, for
example, that his consent had been coerced because the officers
had not allowed his father to be present for the interview and
had threatened to "tear the place apart" if he denied them entry
or refused to produce the diskettes containing the images — but
specifically rejected the appellant's account. In reaching this
conclusion, the court found credible Coyman's explicit denial
that any such conduct had occurred. Then, "[l]ooking at the
totality of the circumstances surrounding the search of [the
appellant's] residence and seizure of evidence," the court
determined that the appellant's "consent to search was given
1
Coyman testified that he recognized this extension as one
commonly associated with image files.
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voluntarily and was not the product of coercion." United States
v. Laine, No. 99-075, slip op. at 7 (D.N.H. Nov. 18, 1999)
(unpublished). This determination, in turn, prompted the court
to deny the appellant's motion to suppress. Id. at 8.
Trial commenced on August 1, 2000. The jury found the
appellant guilty as charged. The court thereafter imposed a 37-
month incarcerative sentence. This appeal followed.
The appellant's cardinal claim is that the district
court erred in determining that his consent was free and
uncoerced. In addressing this claim, we must accept the
district court's findings of fact unless those findings are
shown to be clearly erroneous. United States v. Chhein, ___
F.3d ___, ___ (1st Cir. 2001) [No. 00-2230, slip op. at 6];
United States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994). This
deferential standard of review extends to a factual finding that
consent was voluntary. Chhein, ___ F.3d at ___ [slip op. at
10]; United States v. Coraine, 198 F.3d 306, 308-09 (1st Cir.
1999). In contrast, the district court's rulings of law,
including the court's ultimate constitutional conclusions, are
subject to plenary review. Ornelas v. United States, 517 U.S.
690, 691 (1996); Zapata, 18 F.3d at 975.
The warrant and probable cause requirements of the
Fourth Amendment are not absolutes. One recognized exception is
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for searches authorized by valid consent. Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973). When this exception is in
play, the government bears the burden of showing that consent
was validly obtained. Florida v. Royer, 460 U.S. 491, 497
(1983); United States v. Schaefer, 87 F.3d 562, 569 (1st Cir.
1996). This typically reduces to a question of voluntariness.
That question, in turn, is likely to be factbound. See
Schneckloth, 412 U.S. at 227 (noting that, in the final
analysis, "the question whether a consent to a search was in
fact 'voluntary' or was the product of duress or coercion,
express or implied, is a question of fact to be determined from
the totality of all the circumstances"); Chhein, ___ F.3d at ___
[slip op. at 12] (similar); United States v. Kimball, 25 F.3d 1,
8 (1st Cir. 1994) (similar).
In support of his attack on the lower court's finding
of uncoerced consent, the appellant emphasizes two points.
First, he remarks — and the record bears out — that the officers
never told him that he had the right to withhold his consent and
deny them entry to the premises. But that fact, though
relevant, is not a poison pill. While the failure to inform a
suspect that he has a right to refuse consent is a factor to be
weighed in determining the issue of voluntariness, such an
omission does not preclude a finding that consent was voluntary.
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See Schneckloth, 412 U.S. at 231, 245; Zapata, 18 F.3d at 977;
United States v. Rodriguez Perez, 625 F.2d 1021, 1024 (1st Cir.
1980).
Here, the district court noted the omission but found
that, under all the circumstances, the appellant's consent was
nonetheless voluntary. The only real question for appellate
review is whether the evidence presented at the suppression
hearing fairly supports this finding. On this conflicted
record, the truthfulness vel non of the witnesses necessarily
comprises an important ingredient of any reasoned response to
that question. Because an appellate tribunal must defer to the
trial court's judgment as to witness credibility, see United
States v. Patrone, 948 F.2d 813, 816 (1st Cir. 1991), we have no
principled choice but to uphold the voluntariness finding. We
explain briefly.
The testimony established that the appellant was in his
own home, with the officers outside on the doorstep, when the
question of consent was broached. It was early in the evening.
The officers had knocked and identified themselves (indeed, one
was in uniform), and, as the district court supportably found,
they had told the appellant that they wanted to discuss
something that he probably would not want to talk about in
public. No weapons were brandished and, according to testimony
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explicitly credited by the district court, no threats were
uttered.
In fine, there is nothing in the record to show that
the environment was inherently coercive or that the appellant
was in a particularly vulnerable position. By like token, no
credible evidence exists that the officers menaced the
appellant, pressured him, or resorted to trickery to gain
admittance.2 To cinch matters, the appellant expressly invited
the officers to enter the dwelling and opened the door. This
dual manifestation of consent — in both words and deed — speaks
tellingly about the voluntariness of the appellant's consent.
See Zapata, 18 F.3d at 977 (discussing probative force of
"evidence of express consent, along with evidence of consent
inferable from conduct").
In most cases — and especially those in which the
subsidiary facts are contested — the battle over the
voluntariness of an individual's consent will be won or lost in
the trial court. So it is here: the district judge plainly
understood his role, sifted the evidence thoroughly, found the
facts with care, and weighed them in the balance. It is no
2
As previously noted, the district court was free to accept
Coyman's version of the critical events and reject as incredible
the contrary portions of the appellant's affidavit. See
Rodriguez Perez, 625 F.2d at 1024.
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consolation to the appellant that a different factfinder,
viewing the same evidence, might have reached the opposite
conclusion. Where the evidence supports two plausible but
conflicting inferences, the factfinder's choice between them
cannot be clearly erroneous. See United States v. Ruiz, 905
F.2d 499, 508 (1st Cir. 1990); United States v. Cruz Jimenez,
894 F.2d 1, 7 (1st Cir. 1990).
The appellant has a fallback position. Citing Johnson
v. United States, 333 U.S. 10, 17 (1948), he asseverates that he
did not consent to the officers' entry, but, rather, merely
submitted to a lawful claim of authority. That asseveration is
doubly flawed. First, the appellant never made this argument in
the district court, and, consequently, he cannot make it here.
See United States v. Slade, 980 F.2d 27, 30 (1st Cir. 1992) ("It
is a bedrock rule that when a party has not presented an
argument to the district court, she may not unveil it in the
court of appeals."); Clauson v. Smith, 823 F.2d 660, 666 (1st
Cir. 1987) (collecting cases).
In all events, even if we were disposed to overlook
this procedural default — and we see no basis for doing so — the
asseveration fails on the facts. The officers here did not
demand to be admitted to the appellant's abode, nor did the
lower court rely on silent acquiescence to the officers' entry
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as a proxy for consent. Rather, Coyman suggested that he wished
to discuss something with the appellant that the appellant might
prefer to keep private, and the appellant thereupon chose to
invite the officers into his home. Given those facts, Johnson
is inapposite.
There is one final point. In closing, the appellant
makes a largely undeveloped argument that the "plain view"
doctrine, see United States v. Rutkowski, 877 F.2d 139, 140-142
(1989), does not support the search and subsequent seizure of
his computer. This challenge need not detain us. The district
court did not rely on the "plain view" doctrine in concluding
that the search passed muster under the Fourth Amendment, but,
rather, explicitly found that the appellant had consented to the
search in its various permutations. This finding depends
largely upon Coyman's testimony, and the district court
carefully examined the inconsistencies between the two versions
of what had occurred before deeming Coyman's account worthy of
credence. Since this credibility determination was comfortably
within the proper province of the district court, we decline to
disturb it.
We need go no further. The appellant, ably represented
by seasoned counsel, has made a heroic effort to put matters in
a flattering light. But he is fishing in an empty stream. At
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bottom, his argument is a thinly veiled attempt to relitigate
credibility judgments and other fact-sensitive determinations
that the district court resolved adversely to him. Because the
court's findings are fully supportable, there is no cognizable
basis for reversing the denial of the suppression motion.
Affirmed.
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United States v. Laine
Court: Court of Appeals for the First Circuit
Date filed: 2001-10-31
Citations: 270 F.3d 71
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