U.S. v. Brewer

• Decision Date: 17 December 2009
• Docket Number: No. 08-3079.,08-3079.
• Citation: 588 F.3d 1165
• Parties: UNITED STATES of America, Appellee, v. Stephen B. BREWER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

588 F.3d 1165

UNITED STATES of America, Appellee, v. Stephen B. BREWER, Appellant.

No. 08-3079.

United States Court of Appeals, Eighth Circuit.

Submitted: September 25, 2009.

Filed: December 17, 2009.

Daniel J. Lobdell, Wagstaff & Cartmell, LLP, Kansas City, MO, argued (John P. O'Connor, Wagstaff & Cartmell, LLP, John G. Gromowsky, The Gromowsky Law Firm, LLC, Kansas City, MO, on the brief), for appellant.

Katharine Fincham, Asst. U.S. Atty., Kansas City, MO, argued (Matt J. Whitworth, Acting U.S. Atty., on the brief), for appellee.

Before MELLOY, GRUENDER and BENTON, Circuit Judges.

GRUENDER, Circuit Judge.

Stephen Brewer entered a conditional guilty plea to three counts of production of child pornography and one count of possession of child pornography, reserving the right to appeal the denial of his motion to suppress. We affirm.

I. BACKGROUND

On November 22, 2005, S.B. reported to Kansas City police that Stephen Brewer had raped her over a two-year period when she was thirteen and fourteen years old and had taken photographs of her during these incidents. These photographs included images of S.B. performing oral sex on Brewer and other nude images of her. S.B., then 18 years old, reported that Brewer had recently suggested to her that these pictures still existed, in an effort to keep her from reporting what happened. Officer Damon Hawley informed S.B. about the possibility of getting an ex parte order of protection against Brewer, since S.B. wanted to spend an upcoming holiday at the Brewer residence, where she grew up. Officer Hawley then took S.B. to a shelter. The next day, S.B. returned to the police station and told Officer Hawley that she had obtained an ex parte order.

After S.B.'s initial report, Officer Hawley attempted to obtain a search warrant for the Brewer residence, but he could not get department authorization. He then contacted the FBI to ask whether the FBI could obtain a search warrant. FBI Special Agent Todd Gentry did not think that there was probable cause to justify a search warrant. However, after some discussion, Officer Hawley decided instead to seek Mrs. Brewer's consent to search the residence.

After Officer Hawley learned that S.B. had obtained the ex parte order, he contacted Mrs. Brewer about searching the home. Mrs. Brewer was concerned that their son was with Mr. Brewer and said that she wanted her son back. She told Officer Hawley when Mr. Brewer would likely return, but she did not consent to a search at that time.

Officer Hawley went to the Brewer house with his partner and Special Agent Gentry shortly before Brewer was supposed to arrive, parking their vehicles a few blocks away. Because there were guns in the home, the officers intended to serve the ex parte order on Mr. Brewer while he was still outside. When Brewer returned home, the Brewers' son jumped from the car and ran inside. At that point, Officer Hawley's partner read the ex parte order to Brewer and explained that he needed to leave immediately. Officer Hawley denied Brewer's request to retrieve items from inside the home. After Mr. Brewer left, Mrs. Brewer consented to a search of the residence.

The officers seized various computers and computer media from the home. Three members of the juvenile section of the police department assisted in the search. FBI Special Agent Gentry was also present and answered the officers' computer-related questions. While the search was ongoing, Brewer returned to the residence and parked in the driveway. Officer Hawley again denied Brewer's request to retrieve items from the home and informed him that he needed to leave because of the ex parte order of protection.

Detectives obtained three additional search warrants during the course of their investigation. On January 17, 2006, they successfully applied for warrant to search the computers and media seized during the November 23, 2005 consent search. A forensic analysis of these items, performed several months later, revealed thousands of images of nude and semi-nude children, including pictures of Brewer engaged in sexual acts with S.B. On September 27, 2006, the detectives applied for a warrant to search the Brewer house again for camera equipment and other evidence of child pornography. They seized camera equipment and computer media during the search. On October 5, 2006, the detectives then successfully applied for a warrant to search the additional computer media. This forensic analysis, also performed several months later, revealed additional images of nude children.

A federal grand jury indicted Brewer on four counts of using a minor in sexually explicit conduct for the purpose of producing child pornography, 18 U.S.C. § 2251(a), and three counts of possession of child pornography, 18 U.S.C. § 2252(a)(4). Brewer filed a motion to suppress the evidence from the various searches on numerous grounds. The district court¹ adopted the report and recommendation of the magistrate judge² and denied the motion. Brewer then entered a conditional guilty plea to three counts of production of child pornography and one count of possession of child pornography, reserving the right to appeal the denial of his motion to suppress. The district court sentenced Brewer to 600 months' imprisonment.

II. DISCUSSION

Brewer appeals the denial of his motion to suppress on four grounds. First, he argues that the November 23 search of his residence was invalid because the officers inappropriately used the ex parte order of protection as a means to keep him from objecting to the search. Second, he argues that the three subsequent search warrant applications contained insufficient information to establish probable cause. Third, Brewer argues that because there was significant involvement of federal officers in the investigation, federal, rather than state, judges were required to issue the search warrants. Finally, he argues that the forensic analyses of the seized computer media violated the Fourth Amendment because they were conducted more than ten days after the January 17 and October 5 warrants authorizing the forensic analyses were issued. In addressing these issues, "we review a district court's findings of fact for clear error and its legal conclusions—including its probable cause determination—de novo." United States v. El—Alamin, 574 F.3d 915, 923 (8th Cir.2009) (internal quotation marks omitted).

A. The November 23 consent search

"[A] warrantless entry and search by law enforcement officers does not violate the Fourth Amendment's proscription of `unreasonable searches and seizures' if the officers have obtained the consent of a third party who possesses common authority over the premises." Illinois v. Rodriguez, 497 U.S. 177, 179, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). Mr. Brewer does not dispute that Mrs. Brewer gave the officers her consent to search the residence or that she possessed common authority over the areas searched. However, the consent of a single occupant is not always sufficient to permit a search of a residence. "[A] physically present co-occupant's stated refusal to permit entry ... render[s] the warrantless search unreasonable and invalid as to him." Georgia v. Randolph, 547 U.S. 103, 106, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006). In the absence of such a refusal, a third party's consent to search is valid "[s]o long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection." Id. at 121, 126 S.Ct. 1515.

Brewer argues that the officers' use of the ex parte order reveals an intent to remove him from the scene in order to avoid his possible objection to the search in violation of Randolph.³ As evidence of such an intent, he notes that the officers parked their cars away from his house, served the ex parte order before he could enter the house, delayed asking Mrs. Brewer for consent until after the ex parte order was served, and never advised him of their intent to search the residence.

We agree with the district court's conclusion that the officers did not use the ex parte order to remove Brewer "for the sake of avoiding a possible objection." See id. The officers were tasked with serving the valid ex parte order. The officers testified that there was no plan to use the ex parte order in the manner Brewer describes. Rather, two concerns motivated the manner in which they served the order: Mrs. Brewer's concern about the safety of her son and the officers' concerns about the presence of guns in the house. Officer Hawley testified that they parked their cars away from the home because they were worried that Mr. Brewer would not return home if he knew the police were there. If that happened, Mrs. Brewer would not have been able to retrieve her son and the officers would not have been able to serve the ex parte order. Officer Hawley also testified that the officers served Mr. Brewer outside the residence to avoid the potential danger that the guns in the house presented. Additionally, Officer Hawley had already asked Mrs. Brewer for consent to search the residence during their earlier conversation. Because she had expressed concern about her son in response, Officer Hawley reasonably declined to inquire again about her consent to search until after her son was returned. Finally, officers have no affirmative duty to advise a potentially objecting defendant of their intent to search. Randolph, 547 U.S. at 121, 126 S.Ct. 1515 ("[T]he potential objector, nearby but not invited to take part in the threshold colloquy, loses out."). Thus, the district court did not err in concluding that Mr. Brewer was removed pursuant to a valid ex parte order of protection and in furtherance of these concerns, not "for the sake of avoiding a possible objection" to the search, id. Therefore, Mrs. Brewer's consent was sufficient to permit the officers to search the home and seize the computer equipment.

B. Probable cause in the three...