U.S. v. Hoggard

• Decision Date: 12 June 2001
• Docket Number: No. 01-1354,01-1354
• Citation: 254 F.3d 744
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA, APPELLEE, v. ROY ADRIN HOGGARD, II, APPELLANT. WA Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 744

254 F.3d 744 (8th Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE, v. ROY ADRIN HOGGARD, II, APPELLANT.

No. 01-1354 WA

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: June 12, 2001

Filed: June 22, 2001

On Appeal from the United States District Court for the Western District of Arkansas.

Before Morris Sheppard Arnold and Richard S. Arnold, Circuit Judges, and Tunheim,¹ District Judge.

Richard S. Arnold, Circuit Judge

Roy Adrin Hoggard has been convicted by a jury on eight counts of permitting minor children to engage in sexually explicit conduct for the purpose of producing a visual depiction, in violation of 18 U.S.C. § 2251(b) and 18 U.S.C. § 2. The District Court² sentenced Mr. Hoggard to thirty years in prison (360 months), with supervised release to follow for three years. Mr. Hoggard appeals, urging two points.

First, the District Court denied the defendant's motion to suppress evidence obtained during a search of his car. It is undisputed that the car was lawfully stopped for speeding. The officer who made the stop asked the defendant if he could look in the car. The defendant said that he could, and asked if the officer would like to start with the trunk. The defendant then opened the trunk. A small safe was seen inside. The officer asked if he could look inside the safe, and the defendant said yes. The defendant himself then opened the safe and lifted up the lid. At that point, he said, "wait a minute," "there's some pictures of my wife inside the safe." In reply, the officer said, "I'm not looking for any pictures, I'm just looking for contraband." The defendant then said, "Okay," and the officer opened the safe and examined its contents. Among them were photographs depicting children in sexually explicit poses, including a woman, who turned out to be Mr. Hoggard's wife, engaging in various sex acts with two small children, who were the Hoggards' children. On the basis of these and other photographs, the defendant was convicted of the violation described above.

Was the search of the safe lawful? We think the answer is yes. The defendant gave his consent, but he claims he did not do so knowingly and voluntarily. The officer misled the defendant, it is argued, by assuring him that pictures were not among the items to be searched for. We disagree with this argument. At the time, no doubt, the officer had in mind guns or drugs, not photographs. But, when photographs that could informally, at least, be described as "contraband" were discovered, we do not think that the officer was bound to ignore them. The defendant well knew what was inside the safe. He knew what he was doing when he gave his consent, and no coercion was involved. Perhaps the defendant did believe that he would be safe from any censure on account of the photographs, but this erroneous belief, even if based upon an arguable interpretation of the officer's words, is not, in our view, a sufficient reason to render the defendant's consent either involuntary or unknowing.

An argument is also presented with respect to the constitutionality of the federal statute under which defendant was convicted. The statute, as amended in 1998, provides in pertinent part:

Any parent or . . . person having custody or control of a minor who knowingly permits such minor to engage in . . . sexually explicit conduct for the purpose of producing any visual depiction of such conduct shall be punished as...