United States v. Goodale

• Decision Date: 30 December 2013
• Docket Number: No. 12–3972.,12–3972.
• Citation: 738 F.3d 917
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Michael GOODALE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

738 F.3d 917

UNITED STATES of America, Plaintiff–Appellee

v.Michael GOODALE, Defendant–Appellant.

No. 12–3972.

United States Court of Appeals,

Eighth Circuit.

Submitted: Oct. 25, 2013.

Filed: Dec. 30, 2013.

Mark C. Meyer, argued, Cedar Rapids, IA, for Plaintiff–Appellee.

Mark Tremmel, AUSA, argued, Cedar Rapids, IA, for Defendant–Appellant.

Before BYE, SMITH, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Michael A. Goodale was convicted of five counts including aggravated sexual abuse, interstate transportation of a minor with intent to engage in criminal sexual activity, and accessing child pornography. He appeals his conviction and sentence. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

On Saturday, September 17, 2011, thirteen-year-old M.R. showed his mother a history of gay teen pornography sites on Goodale's laptop. (Goodale was staying with M.R. and his mother.) They took the laptop to the police where two officers interviewed them. During the taped interview, M.R. opened the laptop, demonstrating that the phrase “gay teen porn” auto-populated when he typed “ga” in the search box. An officer moved the laptop and touched the keypad for about 17 seconds during this process. M.R. also described how Goodale sexually abused him and Goodale's thirteen-year-old nephew, Z.G.

Police went to M.R.'s house to locate Goodale. Consenting to questioning, he accompanied police to the station where the investigating officers interviewed him. Over his objection, they seized the laptop pending a search warrant. The officers then interviewed Z.G., who also described the sexual abuse.

Monday morning, another police officer applied for and received a state search warrant for the laptop based on information from M.R., his mother, and the two investigating officers. The application did not indicate that the officers had looked at the laptop or if they had seen anything on it.

A grand jury indicted Goodale on two counts of aggravated sexual abuse in violation of 18 U.S.C. § 2241(c) (Counts 1 and 2); two counts of interstate transportation of a minor with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a) (Counts 3 and 4); and one count of accessing child pornography with intent to view in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2) (Count 5). Goodale moved to suppress the information found on the laptop and his September 17 statements to police. The district court ¹ denied the motion.

At the close of the government's case, Goodale moved for judgment of acquittal under Federal Rule of Criminal Procedure 29. The district court denied the motion. Goodale did not call any witnesses. The jury found him guilty on all five counts. After trial, Goodale renewed his motion for judgment of acquittal and moved for a new trial under Federal Rule of Criminal Procedure 33. The district court granted the motion for judgment of acquittal on Count 2 but denied the motions for Counts 1, 3, 4, and 5.

At sentencing, the district court calculated a total offense level of 43 (including a five-level increase for repeat and dangerous sex offenders), a criminal history category of II, and an advisory Guidelines range of life imprisonment. Goodale moved for a downward variance. The court denied the motion, sentencing him to life imprisonment, a ten-year term of supervised release, and a $400 special assessment. Goodale appeals the denial of his motion to suppress; the denial of his motions for judgment of acquittal and new trial on Counts 1, 3, and 4; and the life sentence.

II.

Reviewing a motion to suppress, this court considers factual findings for clear error and legal conclusions de novo. United States v. Anderson, 688 F.3d 339, 343 (8th Cir.2012). This court “will affirm the district court's denial of a motion to suppress evidence unless it is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, based on the entire record, it is clear a mistake was made.” United States v. Vanover, 630 F.3d 1108, 1114 (8th Cir.2011).

A.

Goodale argues that his laptop was seized and searched in violation of the Fourth Amendment. Warrantless searches “are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Coolidge v. New Hampshire, 403 U.S. 443, 481, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). At issue here is the private search exception. The Fourth Amendment “does not extend to private searches that are neither instigated by nor performed on behalf of a governmental entity.” United States v. Starr, 533 F.3d 985, 994 (8th Cir.2008). If the government views items found during a private search, the “legality of later government intrusions ‘must be tested by the degree to which they exceeded the scope of the private search.’ ” Id., quoting United States v. Miller, 152 F.3d 813, 815 (8th Cir.1998).

The private search exception applies here. After discovering a history of teen pornography sites, M.R. and his mother took Goodale's laptop to the police station where M.R. showed officers the laptop's web history. This search was neither instigated by nor performed on behalf of the police. See id. at 994. During M.R.'s demonstration, an officer moved and touched the laptop for about 17 seconds. No evidence suggests that the officer's viewing went further than M.R.'s search. See id. (“When the government re-examines materials following a private search, the government may intrude on an individual's privacy expectations without violating the Fourth Amendment, provided the government intrusion goes no further than the private search.”).

Goodale contends that the private search exception is inapplicable because he did not consent to M.R.'s possession or transportation of the laptop. He further believes the exception does not apply when the search and seizure results from trespass or theft by a private party. These arguments are meritless. The private search exception applies “to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (emphasis added), citing Walter v. United States, 447 U.S. 649, 662, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980). See also United States v. Malbrough, 922 F.2d 458, 462–63 (8th Cir.1990) (upholding a search by a private citizen who trespassed on another's property and viewed marijuana).

B.

Goodale attacks the officers' continuing seizure of his laptop without a warrant. “Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Court has interpreted the [Fourth] Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.” United States v. Clutter, 674 F.3d 980, 985 (8th Cir.2012), quoting United States v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983).

The officers had probable cause to believe the laptop contained contraband based on M.R.'s and his mother's statements about its internet history, and M.R.'s and Z.G.'s allegations of sexual abuse. See id. The exigencies of the circumstances also demanded continuing seizure; Goodale knew about the investigation and could destroy the evidence. See United States v. Beasley, 688 F.3d 523, 529–30 (8th Cir.2012) (upholding the warrantless seizure of a computer where, like Clutter, “the police had a legitimate interest in preventing destruction of the potential contraband”).

C.

Goodale requests suppression of statements made to investigating officers on September 17 as fruit of the (allegedly illegal) laptop search. “[T]he exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality or ‘fruit of the poisonous tree.’ ” United States v. Riesselman, 646 F.3d 1072, 1078 (8th Cir.2011), quoting Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). “[T]he defendant bears the initial burden of establishing the factual nexus between the constitutional violation and the challenged evidence.” Id. at 1079,quoting United States v. Marasco, 487 F.3d 543, 547 (8th Cir.2007).

In the district court, Goodale moved to suppress his September 17 statements on the basis of Miranda violations, not as fruit of the laptop search. Because he did not raise this argument in his pretrial motion to suppress, it is waived. See United States v. Green, 691 F.3d 960, 963–64 (8th Cir.2012) (“[T]he mere filing of a motion is not sufficient to avoid waiver of specific arguments that are advanced for the first time on appeal. The Rule 12 waiver provision applies not only to the failure to make a pretrial motion, but also to the failure to include a particular argument in the motion.”) (internal quotation marks omitted). Regardless, because the laptop search did not violate Goodale's constitutional rights, his statements were not fruit of the poisonous tree.

The district court properly denied the motion to suppress.

III.

Goodale maintains M.R.'s testimony is insufficient to prove Counts 1 and 3—that Goodale transported him across state lines to engage in sexual activity before the age of 12. Goodale contends Z.G.'s testimony is insufficient to prove Count 4—that Goodale transported him in interstate commerce to engage in sexual activity before the age of 18. This court reviews the denial of a motion for judgment of acquittal de novo, “viewing the evidence in the light most favorable to the government, drawing all reasonable inferences in favor of the jury's verdict, and reversing only if no reasonable jury could...