                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-3725
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                      James Faler

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the Southern District of Iowa - Davenport
                                  ____________

                              Submitted: June 14, 2016
                               Filed: August 9, 2016
                                   ____________

Before MURPHY and SHEPHERD, Circuit Judges, and PERRY,1 District Judge.
                         ____________

SHEPHERD, Circuit Judge.

       A grand jury indicted James Faler with five counts of production of child
pornography, in violation of 18 U.S.C. §§ 2251(a), (e), and 3559(e), and five counts
relating to the registered sex offender enhancement, in violation of 18 U.S.C.

      1
        The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri, sitting by designation.
§ 2260A. Faler moved to suppress child pornography evidence seized by the
government, but after the district court2 denied the motion, Faler entered into a
conditional plea agreement, reserving his right to appeal the denial of his motion to
suppress. The district court3 sentenced Faler to concurrent life imprisonment terms
on each of the five counts of production of child pornography and consecutive ten
year sentences on each of the five counts of failing to register as a sex offender,
resulting in a total sentence of life imprisonment plus 600 months consecutive. Faler
now appeals the denial of his motion to suppress. We affirm.

                                          I.

       We discuss the facts as found by the district court. Autumn Centers, a leasing
consultant in Louisville, Kentucky, called 9-1-1 to report Faler was engaged in
suspicious activity. Centers told police that Faler was staying in the apartment of a
Churchill Park Apartments resident. Centers reported that Faler had been “messing
with the little kids that live around here,” was acting “awfully weird,” and had taken
a child into the apartment. She also stated another resident had a picture of Faler
“touching a little girl.” Centers stated she had conducted internet research and
determined Faler had been convicted of Iowa sex offenses and was a registered sex
offender. Centers requested that police remove Faler from the apartment complex
because he was not a registered resident, and Centers believed him to be a danger to
the children in the apartment complex.

       Three uniformed Louisville Police Officers responded to Centers’ call. After
verifying the information from her 9-1-1 call with Centers and confirming that Faler


      2
        The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa.
      3
       The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.

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was on the Iowa sex offender registry, officers proceeded to the ground-floor
apartment of Michael Parks, the resident with whom Faler was residing according to
Centers.

       Officer Jonathan Noe knocked on Parks’ door, and Parks answered. Parks told
an investigator with the public defender’s office that the officers “kind of pushed their
way through” and “just walked in.” Parks later testified under oath before a grand
jury, “They knocked on the door. I answered. They asked if I knew [Faler]. I said,
‘yes.’ They asked if [Faler] was here. I said, ‘yes,’ and started pointing to the room.
By that time [Faler] had come out to meet them.”

       Officer Noe testified at the suppression hearing that after answering the door,
Parks initially denied Faler was in the apartment. As the officers continued talking
with Parks, Faler then stepped out from a back room and into the view of the officers.
Although Officer Noe did not recall his exact words, he stated that based on his
training, he would have requested permission to enter the apartment. After that
request, Officer Noe testified Parks turned around, pointed to Faler, and stepped out
of the way.

      Officer Moss testified that while Parks hesitated when asked if he knew Faler,
he did admit to knowing him. After that inquiry, Faler came into the officers’ view,
and, according to Officer Moss, Officer Noe asked, “mind if we come in?” In
response, Parks opened the door wider, moved out of the way, and the officers entered
the apartment.4




      4
      The third officer testified that she was too far back in the hallway to hear the
conversation at the door or to observe Parks’ response to the other officers.

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      Faler testified that he came out of a back room in the apartment after hearing
his name but that he did not hear the officers ask for permission to enter the apartment.
He stated when the officers saw him, “they stepped in.”

       About 30 minutes after entering the apartment, officers determined that Faler
was in violation of his sex offender registration requirements, and they arrested Faler.
As the officers were escorting Faler to the patrol car, Faler requested that the officers
retrieve his medication. Officer Moss asked where the medication was located, and
Faler directed him to a backpack in his bedroom. Officer Moss returned to the
apartment and retrieved the backpack. Pursuant to police department policy, Officer
Moss searched the backpack before placing it in the patrol car to assure that it did not
contain anything that could jeopardize officer safety. Officer Moss discovered
pictures of Faler “with little boys in compromising positions.” Officers then received
permission from Parks to search the remainder of the apartment, and officers seized
electronic equipment from the room where Faler had been staying. Detective Shawn
Hamilton later obtained a search warrant for the backpack and its contents, and he
discovered videos and images of Faler sexually abusing children stored on a 16
gigabyte thumb drive retrieved from the backpack.

      After the grand jury returned its indictment, Faler moved to suppress

      all evidence seized from his backpack including, but not limited to, all
      photographs, prints of photographs, information obtained from his
      laptop, and information obtained from a USB thumb drive, as well as to
      suppress all statements made by him, and any other evidence derived
      from the search of Mr. Faler’s backpack and his statements.

Mot. to Suppress, ECF No. 43. Faler alleged that the unconstitutional entry into the
apartment and his unconstitutional arrest led to statements he made, the discovery of
the materials in his backpack, and the issuance of a search warrant for his laptop



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computer and thumb drive which resulted in the officers locating the child
pornography images.

       Crediting the testimony of the officers, the district court found that officers
made a verbal request to enter the apartment, and in response, “Parks implicitly
consented to the officers’ entry by gesturing towards [Faler] and stepping aside as a
gesture communicating consent to enter.” (Order at 9.) Alternatively, the court held
that even if officers’ entry into the apartment ran afoul of the Fourth Amendment,
seizure of Faler’s backpack was sufficiently attenuated from the entry such that the
exclusionary rule would not apply. The court held Faler’s request that officers
retrieve his backpack, after Faler was arrested and was being taken to the patrol car,
was a significant intervening circumstance interrupting any taint from an illegal entry
into the apartment.

                                           II.

       Faler appeals the denial of his motion to suppress, arguing that the officers’
entry into the apartment violated the Fourth Amendment and, as a result, the items
seized from his backpack, including the evidence discovered in the execution of the
search warrant, should be suppressed as fruit of the poisonous tree. Specifically, Faler
argues that “[b]ut for the unconstitutional arrest of Mr. Faler, his backpack would not
have been searched incident to that arrest and the printouts would not have been
found. But for finding the printouts, Detective Hamilton would not have been able to
obtain a warrant to search the backpack, laptop, USB drive and other materials.”
Appellant’s Br. at 25.

      When reviewing a district court’s suppression determination, we review the
court’s factual findings for clear error and its legal conclusions de novo. United States
v. Johnson, 619 F.3d 910, 917 (8th Cir. 2010). Whether Parks granted consent for the



                                          -5-
officers to enter is a question of fact, which we review for clear error. United States
v. Jones, 254 F.3d 692, 695 (8th Cir. 2001).

       “Absent consent or exigent circumstances, a private home may not be entered
to conduct a search or effect an arrest without a warrant.” Donovan v. Dewey, 452
U.S. 594, 598 n.6 (1981). Officers may enter the residence if the officers receive
voluntary consent to enter from a person possessing authority over the residence.
United States v. Lakoskey, 462 F.3d 965, 973 (8th Cir. 2006). “Voluntary consent
may be express or implied.” Id. In determining whether Parks gave implied consent,
“[t]he precise question is not whether [Parks] consented subjectively, but whether his
conduct would have caused a reasonable person to believe that he consented.” Jones,
254 F.3d at 695.

       Faler argues the district court’s finding that Parks gave implied consent was
clearly erroneous based on his testimony and Parks’ statements to the public defender
investigator. Also, Faler claims “the more logical conclusion is that the officers
immediately went towards Mr. Faler to arrest him, rather than taking the time to ask
Mr. Parks if they could enter.” Appellant’s Br. at 20. The district court did not clearly
err in finding Parks gave implied consent to enter the apartment to confront Faler.
The court credited the testimony of Officers Noe and Moss that when Faler exited a
room in the back of the apartment and came into the officers’ view, Parks motioned
towards Faler and stepped aside so that the officers could enter the apartment. The
district court’s credibility determinations are entitled to great deference. See United
States v. Gregory, 302 F.3d 805, 811 (8th Cir. 2002). Furthermore, we have held
gestures and actions like those made by Parks constituted implied consent in similar
encounters. See United States v. Smith, 973 F.2d 1374, 1376 (8th Cir. 1992)
(implying consent when the defendant’s wife stepped aside and motioned for officers
to enter); United States v. Turbyfill, 525 F.2d 57, 59 (8th Cir. 1975) (implying consent
when the defendant’s wife opened the door and stepped back to let officers enter); see
also United States v. Ramirez-Chilel, 289 F.3d 744, 752 (11th Cir. 2002) (implicit

                                          -6-
consent to enter trailer found based on testimony that the defendant’s body language
indicated that he yielded the right of way to the officers). Finally, Faler’s “more
logical conclusion” argument is conjecture and does not demonstrate clear error on the
part of the district court.

                                         III.

       Having determined that the district court did not clearly err in finding the
officers’ entry into the apartment was gained from Parks’ implicit consent, the
subsequent seizure of the backpack and discovery of its contents is not fruit of the
poisonous tree. Accordingly, we affirm the district court’s denial of Faler’s motion
to suppress.
                       ______________________________




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