United States v. Mumme

• Decision Date: 13 January 2021
• Docket Number: No. 19-1983,19-1983
• Citation: 985 F.3d 25
• Parties: UNITED STATES of America, Appellee, v. Ryan MUMME, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

985 F.3d 25

UNITED STATES of America, Appellee,

v.Ryan MUMME, Defendant, Appellant.

No. 19-1983

United States Court of Appeals, First Circuit.

January 13, 2021

Mary E. Davis, Elkhart, IN, by appointment of the Court, with whom Davis & Davis was on brief, for appellant.

Benjamin M. Block, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.

Before Lynch and Barron, Circuit Judges, and Burroughs,^* District Judge.

LYNCH, Circuit Judge.

Ryan Mumme ("Mumme") was convicted of possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2), and 2256(8)(A), and was sentenced to ninety-six months' imprisonment to be followed by lifetime supervised release. He appeals the district court's denial of his motion to suppress statements made to investigating officers at his home and the evidence derived from the consensual seizure of his computer. He argues that the officers unconstitutionally coerced his consent to the seizure of his computer and questioned him within the curtilage of his home. He also appeals the denial of his renewed motion to withdraw his guilty plea, arguing that the district court erroneously failed to hold an evidentiary hearing on his claim of ineffective assistance of counsel. Finding no error, we affirm.

I. Background

A. Facts

In March 2015, agents from Homeland Security Investigations ("HSI") informed Maine State Police Detective Christopher Tupper ("Det. Tupper") that they had evidence showing that Mumme had wired more than $16,000 to accounts in the Philippines and Russia from November 2010 to March 2015, including at least one payment to an individual in the Philippines suspected of producing child pornography. Electronic payment records showed that Mumme used the email address "dexter.rick@yahoo.com" to make these payments on all but one occasion.

On August 31, 2015, Det. Tupper, HSI Special Agent Gregory Kelly ("Agent Kelly"), and HSI Special Agent Chase Ossinger ("Agent Ossinger") traveled to Mumme's home in Eastport, Maine, to try to interview him about these suspicious transactions.¹ The officers drove two unmarked cars and wore plain clothes. Det. Tupper wore a recording device that remained on throughout the ensuing encounter.

Mumme's home is located at the corner of a paved road and a dirt road. The paved road runs along one side of the home and the home is located directly next to the paved road. There are other homes also located along that road. The dirt road comes off the paved road and ends in a dead-end in a grassy field past Mumme's home. The home is set back a short distance off the dirt road and the front door is located on the dirt-road side of the home. Trees and bushes surround the home on several sides, including along the dirt road, directly behind the house, and on the side of the house where the field is located. The field is situated beyond the trees and bushes directly next to the house. Across the dirt road from Mumme's home is another residence which is not surrounded by any trees or foliage. The grassy field at the end of the dirt road is also surrounded by a denser growth of trees and foliage on several sides. Although there is no evidence that the field would be visible from several sides because of the surrounding trees and Mumme's home, the field is completely visible from the end of the dirt road, and it is also visible from at least some portion of the paved road that runs past Mumme's home as well as from the adjacent property. There was no fence surrounding that side of the field or any other enclosure on the property that would have shielded the field from public view, nor were there any signs posted against trespassing. There was no fence around the property and there was no impediment to public access to the dirt road, which the officers believed to be a public road.²

The officers parked along the side of the dirt road near a recreational vehicle ("RV") which was parked on the lawn next to Mumme's house. Beyond where the RV was parked were the end of the dirt road and the field. Det. Tupper walked on a path through the bushes to the front door and knocked, but no one answered. A man then approached the officers from the direction of the RV. He identified himself as Chris Mumme and told them he was the father of Ryan Mumme, the defendant here. Mumme's father further identified himself as a former law enforcement officer and tried to get the officers to leave without speaking to his son. He also told the officers that he owned the property.

While the officers were speaking with Mumme's father, Mumme drove past them on the dirt road and parked in the field about twenty yards beyond the house and the RV. Det. Tupper told Mumme's father that they wanted to speak with Mumme and that they had information that Mumme had purchased child pornography. Mumme's father tried to convince the officers to allow him to go speak to Mumme first to "see what he knows" because he wanted "to make sure that [Mumme] is not going to get into trouble." He also offered to contact the officers later. Det. Tupper told Mumme's father that Mumme is "an adult, you can't invoke his rights ... and we can just go around you." Det. Tupper also stated that they had driven all the way from Bangor and were going to talk to Mumme. He said "[w]e're trying to do this low key ... and professional." Mumme's father stated "he's not going to incriminate himself that's for damn sure you know that" and "if you have information I'd like to see it or he'd like to see it." Det. Tupper responded "[a]t this point, I'm going to ask you not to hinder our investigation and I'm gonna go talk to Ryan." As Det. Tupper walked past Mumme's father towards the defendant, he yelled back over his shoulder, "[d]on't hinder."

Agents Kelly and Ossinger remained with Mumme's father. At some point, Mumme's father told the agents that they needed a warrant to be standing where they were. The agents responded that they were standing on a public road where they had a right to be as much as any other private individual who could access the road. The agents believed that the dirt road was public because it was accessible from multiple properties, and Mumme's father did not assert that he owned the dirt road or tell the officers that they were trespassing or to get off his property. The agents never physically restrained Mumme's father, nor did they raise their voices to him or attempt to intimidate him. Indeed, Mumme's father was allowed to go in and out of the RV several times while Mumme was being questioned. Mumme's father never yelled to or attempted to go over and speak with Mumme while the officers were talking to Mumme.

After walking past the father, Det. Tupper approached Mumme, who was standing near the back of his truck in the grassy field. Det. Tupper stood several feet away from Mumme while they spoke. Det. Tupper informed Mumme that the officers had evidence that Mumme had sent money to a person in the Philippines who trafficked in live sex shows involving children. Mumme admitted to having paid for live sex videos but denied that the videos involved children. He also admitted to having seen child pornography online. He stated that, about a month or two before, a pixelated image of an approximately thirteen-year-old girl performing oral sex on an older man popped up on his computer while he was searching for other pornography. Agent Kelly then joined the conversation, leaving Agent Ossinger with Mumme's father. Mumme confirmed that his father owned the property but that he was the only full-time resident of the home because his parents lived in Florida for most of the year. Neither Det. Tupper nor Agent Kelly ever informed Mumme that he was free to leave the conversation, and Mumme never asserted they were standing on his private property, told them they were trespassing, or asked them to leave the property.

Mumme admitted to using the email address "dexter.rick@yahoo.com" for the past five or six years to send monthly payments of approximately $100 to a woman in the Philippines for live sex videos. He denied having any child pornography on his computer or saved to an external hard drive. The officers told Mumme that they had a civilian analyst who could search his computer to make sure there was no child pornography on it. Mumme declined to allow the officers to search through his electronic devices, stating several times that he did not want his privacy invaded. Det. Tupper then explained to Mumme that he had two options because he refused to consent to a search of the devices:

I can seize your house and apply for a search warrant or you can turn your devices over to me and I can apply for a search warrant to search your devices. And ... either way that you go I'm gonna have to do a search warrant at this point or apply for one. ... So we can camp out in your driveway or you can turn your devices over and I can apply for a warrant, if I don't get it I will return your devices. But at this point I can't ... go ahead and look at it. I have to do one or the other. I have to either seize your whole house or just your electronics, but I can't look at them without a warrant at this point cause you told me no.

After Mumme asked what seizing and securing the house would entail, Det. Tupper explained:

I have to ... go see a judge, is what it entails. ... [O]r you could turn over your computer and I still have to go see a judge but I go see that judge tomorrow and not today. And I don't go thr[ough] your entire house. But either way I can't look at that computer without a warrant so it all depends on how you ... want me to actually take physical possession of the device. And that's your call. But at this point, we know that there's child pornography on that computer even if it's one image. And if it's one image that's pixilated [sic] I'm not overly concerned with that and I don't even know if that's chargeable. ... [W]e know that there's an awful lot

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