U.S. v. Hudspeth

• Citation: 518 F.3d 954
• Decision Date: 11 March 2008
• Docket Number: No. 05-3316.,05-3316.
• Parties: UNITED STATES of America, Appellee, v. Roy J. HUDSPETH, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

518 F.3d 954

UNITED STATES of America, Appellee, v. Roy J. HUDSPETH, Appellant.

No. 05-3316.

United States Court of Appeals, Eighth Circuit.

Submitted: April 11, 2007.

Filed: March 11, 2008.

Donald R. Cooley, Springfield, MO, argued, for appellant.

Philip M. Koppe, Asst. U.S. Atty., Kansas City, MO, argued (Bradley J. Schlozman, U.S. Atty., Kansas City, MO, Rose A. Barber, Asst. U.S. Atty., Springfield, MO, on the brief), for appellee.

Before LOKEN, Chief Judge, WOLLMAN, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit Judges, en banc.

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' imprisonment. 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 warrantless 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.

I. 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 Mrs. 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 on-line 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, Hudspeth 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. Hudspeth's consent did not overrule Hudspeth'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 findings 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 warrantless 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 Graff's 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,...