U.S. v. Terry, 02-1600.

• Decision Date: 30 September 2002
• Docket Number: No. 02-1600.,02-1600.
• Citation: 305 F.3d 818
• Parties: UNITED STATES of America, Appellee, v. Elza D. TERRY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 818

305 F.3d 818

UNITED STATES of America, Appellee, v. Elza D. TERRY, Appellant.

No. 02-1600.

United States Court of Appeals, Eighth Circuit.

Submitted: June 14, 2002.

Filed: September 30, 2002.

David R. Mercer, argued, Asst. Federal Public Defender, Springfield, MO, for appellant.

Lawrence E. Miller, argued, Asst. U.S. Attorney, Jefferson City, MO, for appellee.

Before RILEY, BEAM, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Elza D. Terry appeals from a final judgment entered in the United States District Court¹ for the Western District of Missouri following his conditional guilty plea to each count of a three-count indictment. The counts charged: (1) possession of child pornography in violation of 18 U.S.C. § 2252(a)(4); (2) production of child pornography in violation of 18 U.S.C. § 2251(a); and (3) criminal forfeiture of the equipment used to produce child pornography under 18 U.S.C. § 2253(a)(3). The district court sentenced Terry to 60 months imprisonment on count one and to 240 months imprisonment on count two. Each sentence was ordered to run concurrently with the other. In addition, the district court ordered both of these sentences to run consecutively to Terry's undischarged state sentences. For reversal, Terry argues that the district court erred in denying the motion to suppress evidence and the supplemental motion to suppress his statements. He also argues that the district court erred in ordering his federal sentences to run consecutively to his undischarged state sentences. For the reasons discussed below, we affirm.

I.

Greg Finkle owns a repossession and collections business in Bates County, Missouri. In the course of doing business, Finkle obtained a copy of repossession documents for Terry's 1994 Ford Ranger pickup truck. In addition, he received information that Terry was staying at a home in Grandview, Jackson County, Missouri and/or he was residing at a trailer home in Warsaw, Benton County, Missouri. On December 12, 2000, Finkle repossessed Terry's truck, which was parked next to the Warsaw trailer home.

During a routine inventory of the truck at his business address, Finkle discovered photograph albums, a stun gun, a knife, and a camcorder with a videotape inside. Finkle looked at the contents of the albums and viewed a portion of the videotape. Believing that the albums contained pornography and that the videotape depicted the stalking and inappropriate touching of a young girl in a retail store, Finkle contacted the Sheriff's Department.

Finkle informed Deputy Martin of the Bates County Sheriff's Department about the items he found within Terry's truck. Finkle also told Martin that he thought Terry was living with a family who resided at the Grandview home. On December 13, 2000, another Bates County officer collected the albums, camcorder and videotape from Finkle.

Upon reviewing the collected items on December 14, 2000, Martin determined that the albums contained cutouts of clothed young children with sexually explicit captions next to them and magazine photographs of nude girls in their late teens. He also found that the videotape showed different girls, while they were in a retail store, being followed, engaged in conversation and touched on the breasts or buttocks by the person using the camcorder. One of the girls appeared to be approximately eight years old and another girl gave enough identifying information on the videotape for police officers to locate her and to confirm her age as a minor.

As the investigation on Terry for sexual misconduct and/or abuse of minors proceeded, Martin arranged for other law enforcement personnel from several counties to meet at the Clinton Police Department to determine in what county or counties the activities occurred. Grandview Detective Stark and Benton County Sergeant Weeks participated in the meeting. In addition, a retail representative participated in a portion of the meeting to help identify the location where the videotape was recorded. The group concluded that some of the videotape was recorded at a Wal-Mart in Clinton, Henry County, Missouri.

During the multi-county investigation, Stark learned that Terry previously had been arrested and charged for sexual misconduct similar to that depicted on the videotape. He also obtained information directly from Finkle that Terry had been staying with a couple and their minor children at the Grandview home. Further, Grandview Detective Ellis, after placing a telephone call to the Grandview home on December 15, 2000, told Stark he recognized the voice of the person who answered the telephone as being the same as the voice of the person who made the videotape. Based upon his overall investigation, Stark believed Terry lived at the Grandview home for four or five months but was in the process of moving back to the Warsaw trailer home. Using the information he obtained, Stark completed an affidavit/application for a warrant to search the Grandview home. After signing the affidavit/application, Stark gave it to the assistant prosecuting attorney, who also signed it. An Associate Circuit Judge reviewed the affidavit/application and issued a search warrant for the Grandview home on December 18, 2000.

The Grandview detectives conveyed to Weeks the information that they had acquired during their initial investigation. As part of his own investigation, Weeks, on December 15, 2000, spoke to a woman who managed the trailer park where the Warsaw trailer home was located. She told Weeks that she saw Terry with young children and toys around the Warsaw trailer home over the past summer. Using the information he received from the detectives of the Grandview Police Department and the additional information he acquired, Weeks prepared an affidavit and contacted the prosecutor. The Benton County prosecutor completed an application for a warrant to search the Warsaw trailer home. An Associate Circuit Judge reviewed the affidavit and application, and he issued a search warrant on December 19, 2000.

Both warrants authorized a search for motion pictures, videotapes, photographs, computer-generated photographs, magazines, diaries, notebooks or other records that involved minors in sexually explicit conduct or adults engaged in sexual conduct. Law enforcement officials executed the warrants at the two residences on the morning of December 19, 2000. Terry was present at the Grandview home.

The Grandview officers arrested Terry,² conducted a search pursuant to the warrant for the Grandview home and, after Terry consented, searched his van. The search of the Grandview home uncovered a lengthy tape of young children doing gymnastics, and the search of the van revealed items of children's clothing. Neither search uncovered evidence of sexual misconduct or evidence of child or adult pornography. The Grandview officers transported Terry to the Grandview Police Department.

After Stark and Ellis returned to the Grandview Police Department, Stark contacted Clinton law enforcement officials. Those officials gave Stark permission to interview Terry pursuant to the investigative stop and hold order. At that time, the search of the Warsaw trailer home was still in progress.

Terry received his Miranda warnings and signed a written waiver of his rights before speaking with officers. During the interview conducted by Stark and Ellis at the Grandview Police Department, Terry admitted that he had sexual fantasies about young children and stated that he had masturbated while watching the videotape found in his truck. When further questioned about this videotape, Terry admitted recording the children in Wal-Mart.

After being told by the Grandview officers about the on-going search of the Warsaw trailer home, Terry described where sexually explicit items, including videotapes, could be found. He also described what was recorded on some of the videotapes. Although Terry initially denied certain sexual misconduct, he confessed after being confronted with Victim 1's allegations.³ He also acknowledged during the interview that he babysat some neighbor children and that he performed sexual acts on them while they slept. Terry, then, drew a sketch of the Warsaw trailer home and explained by using the sketch where the videotapes depicting his sexual misconduct could be found.

The Benton County officers searching the Warsaw trailer home found four videotapes depicting Terry engaged in sexual conduct with minor children. They also found 418 videotapes, books, magazines, teen magazines, and 8 mm tape recordings.⁴ No one from the Grandview Police Department contacted the Benton County officers before they finished their search of the Warsaw trailer home. The Benton County officers had already obtained the videotapes when they learned from the Grandview officers that Terry disclosed where the videotapes could be found.

Terry filed a motion to suppress physical evidence seized by law enforcement officials during the searches of his two residences.⁵ After the evidentiary hearing on the original motion to suppress, Terry filed a supplemental motion to suppress all statements made during his custodial interrogation by members of the Grandview Police Department. The district court adopted the report and recommendation of the magistrate⁶ and issued an order denying Terry's motion to suppress evidence and supplemental motion to suppress statements. Terry, subsequently, entered a conditional guilty plea.

On February 12, 2002, Terry appeared for his federal sentencing. The district court sentenced him to 60 months imprisonment on count one. As to count two, the district court, after determining the presumptive range of punishment to be between 188 and 235 months, granted the government's motion to depart upward and sentenced Terry to 240 months, the statutory maximum. The district court ordered these federal sentences to run concurrently with each other and, over objection, ordered Terry's federal sentences to run...