                                                                              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                           NOT FOR PUBLICATION                                 JAN 12 2015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 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 1579, 1581–82 (9th Cir. 1997)).

      The Fourth Amendment generally prohibits the warrantless entry of a

person's home, whether to make an arrest or to search for specific objects. U.S.

Const. amend. IV (providing the “right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures”); Payton v.

New York, 445 U.S. 573, 587–88 (1980). However, it is well established that a

third party may consent to a search if that third party “possessed common authority


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over or other sufficient relationship to the premises or effects sought to be

inspected.” United States v. Matlock, 415 U.S. 164, 171 (1974). Common

authority is “joint access or control for most purposes.” Id. at 171 n.7.

Additionally, even if the third party does not have joint access or control for most

purposes, “‘[a] defendant may assume the risk that the third party will at times

exceed the scope of authorized access, as that is defined in precise and narrow

terms.’” Kim, 105 F.3d at 1582 (quoting United States v. Sledge, 650 F.2d 1075,

1080 n.10 (9th Cir. 1981)); see also United States v. Gulma, 563 F.2d 386, 389

(9th Cir. 1977) (defendant who gave co-conspirator key to motel room containing

heroin assumed the risk that co-conspirator would consent to search the room);

United States v. Murphy, 506 F.2d 529, 530 (9th Cir. 1974) (per curiam) (holding

that individual who was not a lessee but was given limited access to a warehouse

on occasion had “sufficient dominion over the premises to enable him to grant the

necessary consent”). Because we determine that William, Beard’s brother, had

apparent authority to consent to the agents’ entry, we need not decide whether he

had actual authority.

      “‘Under the apparent authority doctrine, a search is valid if the government

proves that the officers who conducted it reasonably believed that the person from

whom they obtained consent had the actual authority to grant that consent.’”


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Arreguin, 735 F.3d at 1175 (quoting United States v. Welch, 4 F.3d 761, 764 (9th

Cir. 1993)). “‘Apparent authority is measured by an objective standard of

reasonableness, and requires an examination of the actual consent as well as the

surrounding circumstances.’” Id. (quoting United States v. Ruiz, 428 F.3d 877, 881

(9th Cir. 2005)). In assessing whether an officer’s belief was objectively

reasonable, the court considers “the facts available to the officer at the moment.”

Illinois v. Rodriguez, 497 U.S. 177, 188 (1990) (internal quotation marks omitted).

      We hold that the district court properly determined William had apparent

authority to authorize the search into Beard’s home to retrieve the suspected

contraband. Agent McKinnon and Investigator Troy responded to a call from

Beatrice, Beard’s ex-wife, about suspected child pornography. Upon their arrival,

the door was open and William was walking back and forth from the house to the

dumpster, in the process of throwing items away. The agents knocked on the door;

they were greeted and William introduced himself. William told the agents that he

was Beard’s brother and that Beard had asked William to clean out the residence

and dispose of his property. William also told the agents that Beard had granted

him power of attorney and William had authorization to dispose of all of Beard’s

personal property. The agents observed that the house did not show any signs of

forcible entry.


                                          4
      William’s close relationship to the owner, his broad access to the area, his

statement that he had the power of attorney over all of Beard’s personal property,

his knowledge of Beatrice’s call to police officers and his expectancy of their

arrival, as well as the lack of signs of forcible entry, support the agents’ reasonable

belief that William had authority to consent to their entry to retrieve the suspected

contraband. See Arreguin, 735 F.3d at 1177 n.9 (apparent authority exists where

“numerous indicia of authority support[] the officers’ acceptance of consent to

search”).

      We further hold that, even assuming there was neither actual nor apparent

authority, the hard drive would have been inevitably discovered by lawful means.

See Nix v. Williams, 467 U.S. 431, 447–48 (1984). Even if the agents had not

entered the house, William would have turned over the videos, DVDs and CDs to

them. Beatrice called the agents to pick up the items with William’s knowledge,

and neither William nor Beatrice wanted anything to do with what they believed to

be child pornography. Agent McKinnon also testified that before she arrived at the

house she suspected computer hardware might be involved. The conversation

between Agent McKinnon and William would have taken place regardless of

whether the agents entered the house and would have led to William’s disclosure

of the hard drive.


                                           5
      Thus, because William had apparent authority, or because the agents would

have inevitably discovered the hard drive, Beard’s later incriminating statements to

agents admitting to possession of the hard drive and downloading child

pornography are not fruit of the poisonous tree. See Wong Sun v. United States,

371 U.S. 471, 484–88 (1963); Nix, 467 U.S. at 442–47.

      AFFIRMED.




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                                                                              FILED
United States v. Beard, No. 13-50060                                            JAN 12 2015

                                                                          MOLLY C. DWYER, CLERK
GRABER, Circuit Judge, concurring in part and dissenting in part:           U.S. COURT OF APPEALS



      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 (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 had no reason to think that he had authority

over the home itself. See, e.g., United States v. Davis, 332 F.3d 1163, 1170 (9th

Cir. 2003) (holding that even a person who lives in the same dwelling does not

have unlimited authority to consent to a search of the premises); United States v.
Warner, 843 F.2d 401, 403 (9th Cir. 1988) (holding that a landlord lacked authority

to consent to a search even though the tenant had given him authority to enter the

premises in the tenant’s absence).




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