U.S. v. Bowers

• Decision Date: 08 February 2010
• Docket Number: No. 08-2412.,08-2412.
• Citation: 594 F.3d 522
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stephen Lee BOWERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

594 F.3d 522

UNITED STATES of America, Plaintiff-Appellee, v. Stephen Lee BOWERS, Defendant-Appellant.

No. 08-2412.

United States Court of Appeals, Sixth Circuit.

Argued: January 21, 2010.

Decided and Filed: February 8, 2010.

ARGUED:

Matthew C. Brown, Law Office, Bloomfield Hills, Michigan, for Appellant. Leonid Feller, Assistant United States Attorney, Detroit, Michigan, for Appellee.

ON BRIEF:

Matthew C. Brown, Law Office, Bloomfield Hills, Michigan,

Timothy P. Flynn, Karlstrom Cooney, Clarkston, Michigan, for Appellant. Leonid Feller, Assistant United States Attorney, Detroit, Michigan, for Appellee.

Before MERRITT, MOORE, and GIBBONS, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

This case requires us to address the continued viability of an as-applied Commerce Clause challenge to a child-pornography conviction under 18 U.S.C. § 2251(a) and 18 U.S.C. § 2252(a)(4)(B), following the Supreme Court's decision in Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005). Because Raich makes clear that if a "general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence," Raich, 545 U.S. at 17, 125 S.Ct. 2195 (internal quotation marks omitted), Defendant Stephen Lee Bowers's claim that his wholly intrastate, homemade child pornography falls outside the purview of congressional legislative power is meritless. In so holding, we now recognize explicitly that United States v. Corp, 236 F.3d 325 (6th Cir.2001), is no longer the law of the Circuit. Bowers's additional challenge to the private-citizen search that uncovered incriminating evidence is also unavailing. We thus AFFIRM the judgment of the district court.

I. BACKGROUND

Defendant Stephen Lee Bowers was convicted by a jury of the sexual exploitation of a child in the manufacture of child pornography in violation of 18 U.S.C. § 2251(a) and the possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). The facts uncovered at trial, viewed in the light most favorable to the jury's verdict, reveal the following. At the time of his arrest, Bowers resided in a two-story house with a house mate, Titania Valdez. Bowers's bedroom was located on the first floor of the residence while Valdez's bedroom was on the second floor. They shared a kitchen, dining area, bathroom, and common room on the first floor of the house. While Bowers was away for several days on an out-of-town trip in April 2007, Valdez's boyfriend, William McDowell, entered Bowers's bedroom without having obtained Bowers's permission. While snooping, McDowell uncovered an album of what he believed to be child pornography on Bowers's dresser and showed the album to Valdez. Valdez then called her landlord, Rhonda Garza, who, in turn, called the FBI.

In response to Garza's call, two FBI agents, Agents Taube and Winterhalter, arrived at the house. Valdez invited the agents into the home. Agent Taube confirmed the living arrangements in the dwelling, and Valdez assured the agents that they were standing in a shared area of the home. Valdez then directed the agents to the dining room or kitchen table, which was also located within the shared area. Agent Taube immediately "observed [a] black binder" on the table, which Valdez indicated was the album in question. Taube Test., Hr'g Tr. of 9/10/07, at 29-30 (Doc. 63). The agents reviewed the album, confirmed that it likely contained child pornography, and obtained a search warrant for Bowers's bedroom. During the search, the agents uncovered additional pornographic material. The photographs that the agents uncovered in both the album and the subsequent search of Bowers's room included sexual images of young girls both awake and as they slept. In some of the photographs, Bowers had staged the girls in sexual positions, and he appeared naked beside them and while touching them in a sexual manner. Police also uncovered photographs of children's faces, including his daughter, pasted on pornographic photographs of adults.

Following his arrest, Bowers waived his Miranda rights and admitted in a signed, written statement that he had taken the photographs in the album during an approximately two-year time period when he hosted sleep-over parties for his minor daughter and at least three of her minor friends. Haws Test., Trial Tr. of 6/18/08, at 201-05, 207 (Doc. 66). Bowers acknowledged that his daughter and her friends were ten-or twelve-years old at the time of the photographs and that he knew their ages when he took the photographs. Id. at 204, 207-08. Bowers stated that he "took photographs of these girls to include pictures of [him]self in their company naked." Id. at 208. According to law-enforcement testimony, Bowers admitted that he had shown the photographs to "lots of people," id. at 205, but there is no additional evidence in the record or in his written statement regarding his display of the images. There is no allegation that Bowers ever otherwise distributed the photographs or that any of the activity involved in the photographs took place outside the State of Michigan. The record does reflect that Bowers took the photographs with film that had traveled in interstate commerce.

Prior to trial, Bowers filed a motion to suppress the photograph album as the product of an unlawful search and a motion to dismiss the indictment based on the fact that his manufacture and possession of child pornography was noncommercial, wholly intrastate activity that the federal government was without jurisdiction to regulate. Following an evidentiary hearing, the district court denied the motion to suppress, concluding that the album was uncovered during a private search and that the search failed to implicate the Fourth Amendment. The district court also denied the motion to dismiss. Bowers proceeded to trial, and a jury found him guilty on both child-pornography counts. He timely appealed.

II. ANALYSIS

A. Private-Citizen Invasion Did Not Violate the Fourth Amendment

Bowers first argues on appeal that the district court erred in denying his motion to suppress because Valdez and McDowell were acting as instruments or agents of the government when they uncovered the incriminating photograph album. Bowers reasons that because the invasion of his privacy would have been unlawful under the Fourth Amendment had the government agents actually conducted it, McDowell's action is itself unlawful. Bowers also claims that the photograph album was not located on the table when the agents arrived but that Valdez and McDowell conducted a second private-citizen search when they retrieved the album from his bedroom for the agents. We hold Bowers's argument unavailing because Valdez and McDowell never acted as instruments of the government and because law-enforcement officers did not otherwise conduct an unlawful search.

In reviewing the "denial of a motion to suppress, we review [the district court's] conclusions of law and application of the law to the facts ... de novo." United States v. Hardin, 539 F.3d 404, 416 (6th Cir.2008) (internal quotation marks omitted). We review a district court's factual findings for clear error. United States v. See, 574 F.3d 309, 313 (6th Cir.2009).

This Circuit uses a "two-factor analysis" in determining "whether a private party is acting as an agent of the government" such that the Fourth Amendment applies. Hardin, 539 F.3d at 418. Those two factors require an analysis of "(1) the government's knowledge or acquiescence" to the search, and "(2) the intent of the party performing the search." Id. (internal quotation marks omitted). If "the intent of the private party conducting the search is entirely independent of the government's intent to collect evidence for use in a criminal prosecution," then "the private party is not an agent of the government." Id. (internal quotation marks omitted).

In the instant case, neither party contests the fact that law-enforcement agents were not present or involved in McDowell's initial discovery of the album. The FBI gained knowledge of the incriminating evidence as a result of Garza's phone call, and it was only after that privately initiated phone call that the agents arrived at the residence and were invited by a resident of the home to enter the dwelling and to view the previously privately discovered incriminating evidence. The Supreme Court has indicated that it is the moment of the "official invasion of the citizen's privacy" that is key to determining the reasonableness of that action. United States v. Jacobsen, 466 U.S. 109, 115, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); see also Hardin, 539 F.3d at 418-20. In this case, because it was wholly private action that first uncovered the album, with neither involvement by law enforcement nor an intent to aid law enforcement, Valdez and McDowell cannot be considered government agents at the time that the album was discovered initially.¹ See Jacobsen, 466 U.S. at 115, 104 S.Ct. 1652 ("Whether those invasions were accidental or deliberate, and whether they were reasonable or unreasonable, they did not violate the Fourth Amendment because of their private character." (footnote omitted)); cf. Hardin, 539 F.3d at 418 (holding a private party acted as a government agent in conducting a search because the search was "without a doubt the officers' idea" and the officers had sent the private citizen to conduct the search (internal quotation marks omitted)).

The agents' subsequent viewing of what Valdez and McDowell "freely made available for [their] inspection did not violate the Fourth Amendment." Jacobsen, 466 U.S. at 119, 104 S.Ct. 1652. Furthermore, based on Valdez's statements that the album contained child pornography, the agents were justified in opening the album to view the potentially incriminating evidence. See id. In doing so, the agents "learn[ed] nothing that had not previously been learned during the private...