U.S. v. Hudspeth, 05-3316.

• Decision Date: 25 August 2006
• Docket Number: No. 05-3316.,05-3316.
• Citation: 459 F.3d 922
• Parties: UNITED STATES of America, Appellee, v. Roy J. HUDSPETH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

459 F.3d 922

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

No. 05-3316.

United States Court of Appeals, Eighth Circuit.

Submitted: February 15, 2006.

Filed: August 25, 2006.

COPYRIGHT MATERIAL OMITTED

Donald R. Cooley, argued, Springfield, MO, (Philip M. Koppe, Asst. U.S. Atty., Todd P. Graves, U.S. Atty., Kansas City, MO, on the briefs) for appellant.

Rose A. Barber, argued, Asst. U.S. Atty., Springfield, MO., for appellee.

Before RILEY, HEANEY, and MELLOY, Circuit Judges.

MELLOY, 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) (2000). The district court sentenced Hudspeth to sixty months' imprisonment. Hudspeth appeals, challenging the district court's denial of his motion to suppress and application of the Sentencing Guidelines. For the reasons set forth below, we affirm in part and reverse in part.

I. BACKGROUND

On July 25, 2002, as part of an investigation into the sale of large quantities of pseudoephedrine-based cold tablets, the Missouri State Highway Patrol and the Combined Ozarks Multi-Jurisdictional Enforcement Team (COMET) executed a search warrant at Handi-Rak Service, Inc. (Handi-Rak). The search warrant listed property to be seized including: "[a]ny and all papers and/or documents" related to "the stock and inventory of pseudoephedrine based cold tablets," "financial statements," "payment journals," "a customer list of clients receiving pseudoephedrine based cold tablets," "employee personnel files," "employee sales routes," and "the inventory in and out of pseudoephedrine based cold tablets."

Hudspeth, Handi-Rak's CEO, arrived at Handi-Rak after the search was underway. Missouri State Trooper Corporal Daniel Nash (Cpl.Nash) informed Hudspeth of his Miranda¹ rights. Hudspeth said he understood his rights. Hudspeth then agreed to answer some questions and denied wanting to talk to a lawyer, stating, "I don't think I've done anything wrong and I just want to get this cleared up."

Sergeant Michael Cooper (Sgt.Cooper) of the Missouri State Highway Patrol supervised the COMET team during the Handi-Rak search. Missouri State Highway Patrol Mobile Crime Information Analyst Connie Farrow (Analyst Farrow), who was assigned to search Hudspeth's office, directed Sgt. Cooper's attention to the computer and compact disks (CDs) on Hudspeth's desk. Sgt. Cooper selected a homemade CD with a handwritten label and directed Analyst Farrow to open a folder containing thumbnail images of graphics files. The first image opened appeared to be adult pornography. Sgt. Cooper then rapidly viewed more thumbnails and discovered several images containing obvious child pornography. After discovering similar images on two or three other CDs, Sgt. Cooper stopped the search and called the United States Attorney's office for guidance.

Sgt. Cooper informed Cpl. Nash about the discovery of child pornography. After Cpl. Nash obtained Hudspeth's oral and written consent to search the computer, Cpl. Nash asked Hudspeth about the images discovered by Sgt. Cooper. Hudspeth told Cpl. Nash he knew there was "guy stuff" on the computer and CDs, but Hudspeth said he did not know it was illegal. Hudspeth told Cpl. Nash he downloaded images from the Internet onto his office computer, and then burned the images onto CDs. Hudspeth refused to say whether he had downloaded similar images on his home computer. Cpl. Nash requested permission to search Hudspeth's home computer. Hudspeth refused to give Cpl. Nash permission. Cpl. Nash had Hudspeth placed under arrest and transported to the county jail.

Based on the totality of the circumstances, Cpl. Nash believed Hudspeth's home computer also contained child pornography. Cpl. Nash and three other officers went to the Hudspeth home. Georgia Hudspeth (Mrs. Hudspeth) was at home with the couple's children. Cpl. Nash introduced himself, showed Mrs. Hudspeth his identification, and identified the men with him as law enforcement officers. None of the officers were in uniform or carrying weapons. Mrs. Hudspeth permitted the officers to enter the house and sent the children to a back bedroom.

Cpl. Nash informed Mrs. Hudspeth they had arrested her husband after executing a search warrant at Handi-Rak and finding contraband on her husband's business computer. Cpl. Nash explained his concern that the home computer contained contraband. Cpl. Nash did not tell Mrs. Hudspeth that her husband refused to consent to the search of the home computer.

Mrs. Hudspeth and the officers discussed the family's two computers: one in the children's room and one in the garage. Cpl. Nash asked for permission to search the residence. Mrs. Hudspeth denied permission. Cpl. Nash then requested permission to take the computer in the garage. Mrs. Hudspeth said she did not know what to do and asked Cpl. Nash what would happen if she did not consent. Cpl. Nash told Mrs. Hudspeth he would leave an armed uniformed officer at the home to prevent destruction of the computer and other evidence while he applied for a search warrant. Mrs. Hudspeth said she wanted to make a phone call, went into the kitchen, and tried unsuccessfully to contact her attorney. After a few minutes, Mrs. Hudspeth returned to the officers and gave her consent to take the computer. Cpl. Nash saw homemade CDs next to the computer similar to the ones found at Handi-Rak and asked Mrs. Hudspeth if he could take the CDs. Cpl. Nash testified Mrs. Hudspeth said yes, and Mrs. Hudspeth testified she did not tell the officers not to take the CDs. The entire visit lasted approximately thirty minutes.

The officers obtained a second search warrant authorizing the search of the seized computers and CDs from both the office and the home for child pornography. Prior to obtaining the second search warrant, officers looked at the contents of some of the disks seized from the home. The search uncovered images of child pornography obtained from computer-based newsgroups that Hudspeth downloaded to CDs, floppy disks, and the computers' hard drives. The investigators also found movie files of Hudspeth's stepdaughter appearing nude and in various stages of undress. Hudspeth surreptitiously recorded his stepdaughter by using a computer web camera.

Hudspeth was indicted on one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5) and (b)(2). Hudspeth filed a motion to suppress, which the district court denied. A second superseding indictment charged Hudspeth with an additional count of producing and attempting to produce child pornography, in violation of 18 U.S.C. § 2251(a) and (d). Hudspeth entered a conditional guilty plea to possessing child pornography, reserving the right to appeal the denial of his motion to suppress.

The district court sentenced Hudspeth on August 23, 2005, and used the advisory Guidelines² in calculating Hudspeth's sentence. Based on Hudspeth's surreptitious filming of his stepdaughter, the district court applied U.S.S.G. § 2G2.1 (trafficking material involving the sexual exploitation of a minor), which carried a higher base offense level, and imposed enhancements due to the stepdaughter's age and relationship to Hudspeth. After all adjustments, the Guidelines range was 121 to 151 months. Confined by the statutory maximum sentence of five years, see 18 U.S.C. § 2252A(b)(2) (2000), the district court sentenced Hudspeth to 60 months' imprisonment. Hudspeth appeals the district court's denial of his motion to suppress and its application of the Guidelines.

II. DISCUSSION

A. Motion to Suppress

Hudspeth argues the district court erred by not suppressing the evidence seized from his computers and CDs. "We review the district court's factual findings in support of its denial of a motion to suppress for clear error and its legal" conclusions de novo. United States v. Solomon, 432 F.3d 824, 827 (8th Cir.2005).

1. Search and Seizure of Business Computer

Hudspeth argues the district court erred in not suppressing the evidence seized from the search of his business computer because the officers impermissibly exceeded the scope of the search warrant, which only authorized the search of Handi-Rak's business records. Hudspeth also contends the officers exceeded the scope of Hudspeth's oral and written consent to search the business computer.

"The language of a search warrant must describe the items to be seized with sufficient particularity: `the language must be sufficiently definite to enable the searcher to reasonably ascertain and identify the things authorized to be seized.'" United States v. Lowe, 50 F.3d 604, 607 (8th Cir.1995) (quoting United States v. Saunders, 957 F.2d 1488, 1491 (8th Cir. 1992)). "[T]he requirement that a search warrant describe its objects with particularity is a standard of `practical accuracy' rather than a hypertechnical one." United States v. Peters, 92 F.3d 768, 769-70 (8th Cir.1996) (quoting Lowe, 50 F.3d at 607).

The language of the search warrant and the affidavit in support of the search warrant sufficiently demonstrate the search warrant anticipated the search of Hudspeth's business computer. First, the search warrant described the types of records to be searched as: "any and all" records or documents regarding sales, payables, inventory, customer lists, financial statements, and personnel files. While the inclusion of the word "computer" would have specified one location among several where the officers might look for those items, its omission did not prevent the officers from searching Hudspeth's business computer for such records. See Peters, 92 F.3d at 770 (concluding the use of the general term "records" in the search warrant "adequately covered the search of records in audio cassette form"); Lowe, 50 F.3d at 607 (holding a videotape fell within the scope of a search warrant authorizing the seizure of items including "[a]ddress books, photographs,...