United States v. Stephen

• Decision Date: 04 January 2021
• Docket Number: No. 19-1966,19-1966
• Citation: 984 F.3d 625
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Gregory Scott STEPHEN, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

984 F.3d 625

UNITED STATES of America, Plaintiff - Appellee

v.Gregory Scott STEPHEN, Defendant - Appellant

No. 19-1966

United States Court of Appeals, Eighth Circuit.

Submitted: September 25, 2020

Filed: January 4, 2021

Rehearing Denied February 5, 2021

Counsel who presented argument on behalf of the appellant was Randy S. Kravis, of Santa Monica, CA. The following attorney also appeared on the appellant brief; Bruce Zucker, of Santa Monica, CA.

Counsel who presented argument on behalf of the appellee was Marc Krickbaum, U.S. Attorney, of Des Moines, IA. The following attorneys also appeared on the appellee brief; Clifford R. Cronk, AUSA, of Davenport, IA., Amy L Jennings, AUSA, of Des Moines, IA.

Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.

GRUENDER, Circuit Judge.

While remodeling one of Appellant Gregory Stephen's homes, Vaughn Ellison discovered a hidden camera containing child pornography. Subsequent searches of Stephen's homes by law enforcement uncovered further child pornography and images of Stephen abusing children. A federal grand jury indicted Stephen for sexually exploiting children as well as possessing and transporting child pornography. Stephen moved to suppress evidence related to these charges, arguing Fourth Amendment violations, which the district court¹ denied. Stephen conditionally pleaded guilty, and the district court sentenced him to 2,160 months’ imprisonment. Stephen appeals, challenging both the suppression denial and his sentence. For the following reasons, we affirm.

I.

On February 15, 2018, Ellison was remodeling his friend and former brother-in-law Stephen's house. While using the bathroom, Ellison noticed a USB drive (the "USB") on the toilet tank. Because Ellison had recently researched hidden recording devices following a break-in, Ellison recognized the USB as a hidden camera. Curious and concerned as to why there was a hidden camera in the bathroom—and what it had recorded—Ellison took the USB home but did not view its contents.

The next morning, Ellison returned to Stephen's home and discovered a young boy sleeping in the bedroom next to the bathroom where Ellison had found the USB. Ellison worried the boy would have used that bathroom. Stephen (a youth basketball coach) arrived shortly after with another boy, indicating he was taking them both to a basketball game. After returning home, Ellison viewed the USB's contents, finding at least fifty videos depicting children secretly recorded in various stages of undress. The following evening, Ellison discussed what he had seen and what he should do with his girlfriend, ultimately deciding to contact law enforcement.

On February 18, three days after Ellison took the USB and two days after viewing its contents, Ellison contacted Monticello Police Chief Britt Smith, and the two discussed what Ellison had found. Chief Smith asked Ellison to give him the USB, and the next day Ellison dropped off the USB at the Monticello Police Department. Chief Smith then sought the Iowa Division of Criminal Investigation's (the "DCI") assistance.

Two days later, the DCI took possession of the USB, obtained a search warrant for the device, and viewed its contents. After obtaining a search warrant, law enforcement searched Stephen's homes. Therein, they found more secret recording devices and a hard drive containing approximately 400 visual depictions of nude minor boys, including some images of Stephen molesting unconscious victims.

A federal grand jury subsequently indicted Stephen on five counts of sexually exploiting a child, 18 U.S.C. § 2251(a), one count of possessing child pornography, 18 U.S.C. § 2252(a)(4)(B), and one count of transporting child pornography, 18 U.S.C. § 2252(a)(1). Stephen moved to suppress evidence of those offenses. The district court denied Stephen's motion, finding no Fourth Amendment violations. Afterward, Stephen conditionally pleaded guilty to all counts, preserving his right to appeal the suppression denial. The district court sentenced Stephen to 2,160 months’ imprisonment. Stephen appeals both the suppression denial and his sentence.

II.

In evaluating a district court's decision denying a motion to suppress, we review factual findings for clear error and legal conclusions de novo . United States v. Harper , 466 F.3d 634, 643 (8th Cir. 2006). Reversal is warranted "only if the district court's decision 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." Id. (internal quotation marks omitted). Here, Stephen argues that his Fourth Amendment rights were violated: (i) when Ellison took and searched the USB, (ii) when Chief Smith took the USB before obtaining a search warrant, and (iii) when the DCI searched the USB. Stephen further argues that, because of these violations, evidence found on the USB and in his homes, as well as statements Stephen made to law enforcement, must be suppressed as fruit of the poisonous tree.

A.

Stephen first claims his Fourth Amendment rights were violated when Ellison took and searched the USB. "The Fourth Amendment protects persons against unreasonable searches and seizures by the government ." Arnzen v. Palmer , 713 F.3d 369, 372 (8th Cir. 2013) (emphasis added). Thus, the Fourth Amendment does not apply to private-citizen searches "unless that private citizen is acting as a government agent." United States v. Smith , 383 F.3d 700, 705 (8th Cir. 2004). "Whether a private party should be deemed an agent or instrument of the Government for Fourth Amendment purposes necessarily turns on the degree of the Government's participation in the private party's activities, a question that can only be resolved in light of all the circumstances." See Skinner v. Ry. Labor Execs.’ Ass'n , 489 U.S. 602, 614, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (internal citations and quotation marks omitted). In resolving this question, we have typically considered: (i) whether the government knew of and acquiesced in the citizen's conduct, (ii) whether the citizen intended to assist law enforcement, and (iii) whether the citizen acted at the government's request. Smith , 383 F.3d at 705. Here, Stephen concedes two of the three factors, admitting that law enforcement neither knew Ellison took or searched the USB nor asked him to do so. Stephen argues only that Ellison was acting as a government agent because he intended to assist law enforcement.

But, even if Ellison had an intent to assist law enforcement, it would not be enough to establish he was a government agent. Tellingly, Stephen cites no case where we have found government agency based solely on a private citizen's intent to assist law enforcement. And this makes sense. The core question is whether the private citizen was acting as a government agent, see id. , and agency typically requires the principal's assent, see Astor v. Wells , 17 U.S. (4 Wheat.) 466, 481, 4 L.Ed. 616 (1819) ("The relation of agent and principal cannot exist, without the consent of the principal."). Furthermore, while we have identified multiple relevant factors, the ultimate issue still "necessarily turns on the degree of the Government's participation in the private party's activities." See Skinner , 489 U.S. at 614, 109 S.Ct. 1402. Here, where the government did not know of, acquiesce in, or request Ellison's conduct—and where nothing else indicates governmental entanglement—there was simply no government participation, irrespective of Ellison's private intent. Without more, a bare intent to help law enforcement is insufficient to transform a private citizen into a government agent under the Fourth Amendment. Thus, even if Stephen is correct that Ellison had an intent to help law enforcement, his argument still fails.

Alternatively, Stephen's argument falters on its own terms because, here, Ellison lacked an intent to help law enforcement. At the suppression hearing, Ellison testified that he took and searched the USB because he was "curious" and "concerned" about its use and contents. Stephen argues that, in acting out of a concern for others, Ellison was really "act[ing] out of civic duty." But compassion does not suggest conspiracy, nor altruism agency. For example, in United States v. Highbull , a mother suspected her boyfriend's phone contained nude pictures of her thirteen-year-old daughter. 894 F.3d 988, 990-91 (8th Cir. 2018). With police standing nearby, she searched her boyfriend's car with the explicit purpose of finding the phone and showing it to police.

Id. We held she was not a government agent, concluding in part that the mother's desire to protect her daughter was distinct from any intent to help law enforcement. Id. at 992-93.

Stephen argues that this case differs from Highbull because Ellison was trying to protect people he did not know. But this is a distinction without a difference. The question is whether an individual is primarily motivated to help law enforcement. Whether someone acts to protect someone they know or if he acts "to protect the community from harm," does not matter. See United States v. Ginglen , 467 F.3d 1071, 1075 (7th Cir. 2006). Not every Good Samaritan is a government agent. See Coolidge v. New Hampshire , 403 U.S. 443, 488, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ("It is no part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals.").

Moreover, Ellison's actions after searching the USB do not suggest he had a gung-ho attitude to help law enforcement. Ellison testified that he "really didn't know what to do with [the USB]." Further, he waited nearly two days and sought his girlfriend's advice before contacting law enforcement. In United States v. Inman , we found that a private party's decision to "deliberate[ ] ... for twenty to thirty minutes before reporting the discovery of child pornography" was incompatible with any...