United States v. Raleigh Beard

FILED

NOT FOR PUBLICATION JAN 12 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-50060

Plaintiff - Appellee, D.C. No. 2:11-cr-00769-AG-1

v.

MEMORANDUM*

RALEIGH ELLIOTT BEARD,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding

Argued and Submitted December 10, 2014 Pasadena, California

Before: GRABER, GOULD, and CALLAHAN, Circuit Judges.

Defendant Raleigh Beard was convicted of possession of child pornography

in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2). He appeals from the district

court’s denial of his motion to suppress a hard disk drive retrieved from his home,

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. which contained images of child pornography. Beard also appeals from the district

court’s denial of his motion to suppress his incriminating statements about his

possession of the hard drive and downloading…

concurring in part and dissenting in part:

I concur on the ground that the hard drive would have been discovered inevitably had the agents remained on the porch. See Nix v. Williams, 467 U.S. 431, 444 , 104 S.Ct. 2501 , 81 L.Ed.2d 377 (1984) (holding that the exclusionary rule does not apply, despite a Fourth Amendment violation, when the government can establish by a preponderance of the evidence that the same information would have been discovered lawfully). The same conversation between the officers and the brother could and would have taken place on the front porch, and on this record the brother clearly wanted to cooperate and to turn over the DVDs and other items that led to the discovery of the computer and hard drive containing child pornography.

But I respectfully dissent from the holding that Defendant’s brother had apparent authority to consent to a search of Defendant’s home. The officers knew that the brother did not live in the house and that he was there temporarily and only to clean out Defendant’s personal property. The brother had no key to the premises. The officers knew that the brother had common authority over items of personal property within the home but…

MEMORANDUM *

Defendant Raleigh Beard was convicted of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2). He appeals from the district court’s denial of his motion to suppress a hard disk drive retrieved from his home, which contained images of child pornography. Beard also appeals from the district court’s denial of his motion to suppress his incriminating statements about his possession of the hard drive and downloading child pornography.

We review a denial of a motion to suppress brought on Fourth Amendment grounds de novo. United States v. Tosti 733 F.3d 816, 821 (9th Cir.2013) (citing United States v. Hill, 459 F.3d 966, 970 (9th Cir.2006)). We review factual findings for clear error. Id. (citing United States v. Gorman, 314 F.3d 1105, 1110 (9th Cir.2002)). Where testimony is taken, the district court’s credibility determinations are given “ ‘special deference.’ ” United States v. Arreguin, 735 F.3d 1168, 1174 (9th Cir.2013) (quoting United States v. Craighead, 539 F.3d 1073, 1082 (9th Cir.2008)). We review the issue of whether a person has actual or apparent authority to consent to search de novo. Id. (citing United States v. Kim, 105 F.3d…