                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  _____________

                                  No. 03-2506EM
                                  _____________

United States of America,               *
                                        *
             Appellee,                  *
                                        * On Appeal from the United
      v.                                * States District Court
                                        * for the Eastern District
                                        * of Missouri.
Mar James, also known as                *
James Beine,                            *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: November 18, 2003
                                Filed: December 23, 2003
                                 ___________

Before RILEY, RICHARD S. ARNOLD, and MELLOY, Circuit Judges.
                           ___________

RICHARD S. ARNOLD, Circuit Judge.

       This case raises important issues under the Fourth Amendment. In particular,
under what circumstances do law-enforcement officers have a reasonable perception
that a third person has the authority of the owner to allow officers to inspect the
contents of a computer disc entrusted to him by the owner? What are the limits of the
inevitable-independent-discovery exception to the warrant requirement? In the
particular factual setting presented by this case, we agree with the defendant, Mar
James, that his motion to suppress certain evidence should have been granted. We
therefore reverse Mr. James's conviction for possession of child pornography in
violation of 18 U.S.C. § 2252A(a)(5)(B), and remand this case for further
proceedings.

                                          I.

      In March 2002, Mr. James was arrested in his home state of Illinois on a
St. Louis arrest warrant alleging that he had engaged in several counts of sexual
misconduct involving a child, in violation of Missouri state law. He was held in the
Madison County Jail awaiting extradition to Missouri.1

      While detained, the defendant attempted to smuggle out of the jail a letter to
friends, Mike and Carrie Finley. He gave the letter to another inmate, William
Longwell, who then gave the letter to his lawyer, Edward Moorman, to mail. Mr.
Moorman, however, did not mail the letter. Instead, he read it, and, believing it
contained evidence of a crime, got in touch with Assistant Illinois State Attorney Neil
Schroeder. After reading the letter, Mr. Shroeder sent it to Edward Postawko, the
attorney in St. Louis responsible for prosecuting Mr. James on the Missouri sexual-
misconduct charges.

      The letter instructed the defendant's friends to:


             CALL Michael Laschober 636-296-2296 for him [ASK
             HIM to forward mail to you] Also tell Michael to destroy
             and scratch ALL backup CD discs he has (BROWN
             envelope I just left) these are old and useless and one has
             a virus tell him to be sure to cut it up too . . ..

      1
       Mr. James was found guilty of the Missouri state law charges. He is currently
serving a four-year prison sentence.

                                         -2-
According to trial testimony, Mr. Laschober had known Mr. James since he was
eight-years old and that Mr. James, whom Mr. Laschober referred to as Father Jim,
had presided over his marriage, at a time when he was a functioning clergyman.

       Mr. Postawko, believing that the discs might be of some value to his case, sent
two detectives to Mr. Laschober's home in Arnold, Missouri. The detectives read the
letter before going to Mr. Laschober's home. Mr. Laschober consented to being
questioned about his relationship with Mr. James. He explained that he had seen
defendant a couple of weeks before, and that Mr. James had personally delivered
some computer discs for storage as back-ups, and picked up his mail. Mr. Laschober
explained that Mr. James had his mail delivered to Mr. Laschober, and that Mr.
Laschober at least once had opened it and read it. He further explained that Mr.
James frequently brought him computer discs to store. Mr. James apparently was
concerned that his personal computer would crash or be destroyed, and he wanted
to ensure the safety of his back-up discs by storing them offsite.

       The detectives asked Mr. Laschober if he still had the discs that Mr. James had
most recently brought. Mr. Laschober said that he did and asked if the police would
like to see them. He then retrieved the brown envelope, which was addressed to Mar
James and sealed with tape. The detectives asked Mr. Laschober if he knew what was
on the discs. Mr. Laschober said that he believed the discs contained church and
financial records, as the discs that Mr. James had previously dropped off had been so
marked.

       The detectives asked Mr. Laschober if he knew how many discs were in the
envelope. He said no, but he offered to open the envelope and look. He then went
to the sink to get a knife. The detectives stopped him, explaining that for their own
safety they would rather he not handle a knife. They then asked if it would be all
right if they opened the envelope. Mr Laschober said, "sure, go ahead." One of the

                                         -3-
detectives opened the envelope using his own pocket knife and found ten discs
stacked on top of each other and held together with blue tape. The top disc had a note
attached which read "CD VIRUS DANGER, CONFIDENTIAL CLASSIFIED,
VIRUS RESEARCH PROJECT CONTAMINATED CD – DANGER PERSONAL
PRIVATE." The detectives asked Mr. Laschober if they could take the discs with
them, and he consented, signing a modified consent form.

       After arriving back at the station, the detectives attempted to view the discs,
specifically the VIRUS disc. Unable to open the disc's files, the detectives sought the
assistance of another officer who had computer expertise. On a more sophisticated
computer, the officer was able to open the disc and found digital images of child
pornography. Before viewing the discs, and before visiting Mr. Laschober, the
detectives never sought and never acquired a warrant to search or to seize the discs.

        Mr. James was then charged with possession of child pornography in violation
of 18 U.S.C. § 2252A(a)(5)(B). Before trial, Mr. James moved to suppress the discs,
arguing that the detectives had violated the Fourth Amendment. The issue was heard
first by a Magistrate Judge, who recommended on December 5, 2002, that the motion
to suppress be denied. As part of that recommendation, the Magistrate Judge
specifically advised both parties that they had eleven (11) days to object to the
recommendation, and that failure to do so might result in the loss of the right to
appeal findings of fact. On March 4, 2003, after a de novo review of the record, the
District Court accepted the recommendation of the Magistrate Judge and denied the
motion to suppress. On March 14, 2003, after voir dire had taken place, Mr. James
filed a writing styled: "Defendant's Objections to Magistrate's Findings of December
5th, 2002 and The Court's Adoption of Same on March 4, 2003 Renewed Motions to
Suppress and Statement and Memo in Support of Motion to Suppress." The District
Court denied the objections as untimely on March 17, 2003. The jury trial proceeded.
Mr. James was found guilty and sentenced to fifty-seven (57) months in jail (four
years and nine months) and a $10,000 fine. This appeal followed.

                                         -4-
                                           II.

       The first issue we must decide is our standard of review. Ordinarily, we review
for clear error the facts supporting a denial of a motion to suppress and review de
novo the legal conclusions based on the facts. United States v. Looking, 156 F.3d
803, 809 (8th Cir. 1998). "However, where the defendant fails to file timely
objections to the magistrate judge's report and recommendation, the factual
conclusions underlying that defendant's appeal are reviewed for plain error." Ibid.
Our review of the questions of law, however, remains de novo. United States v.
Collins, 321 F.3d 691, 694 (8th Cir. 2003). Because Mr. James did not make a timely
objection to the Magistrate Judge's recommendation, the government says, the facts
must be reviewed on a plain-error standard only. United States v. McNeil, 184 F.3d
770, 775 (8th Cir. 1999).

        Our authority to review questions not timely raised by the parties for plain error
comes from Federal Rule of Criminal Procedure 52(b). Fed. R. Crim. P. 52(b) ("A
plain error that affects substantial rights may be considered even though it was not
brought to the court's attention."). In defining the standard appellate courts should
use in plain-error review, the Supreme Court has directed that we should first look to
see if there was an error. United States v. Olano, 507 U.S. 725, 732 (1993). Second,
we ask whether the error was plain. Ibid. And then we decide whether the error
affects substantial rights. Ibid. See also McNeil, 184 F.3d at 775. Clarifying when
the error is plain, the Court explained that " '[p]lain' is synonymous with 'clear' or,
equivalently, 'obvious.' " Olano, 507 U.S. at 734. Affecting substantial rights, the
Court explained, means that the error must have "affected the outcome of the district
court proceedings." Ibid. The defendant, and not the government, bears the burden
of demonstrating that the error affected the outcome. Ibid.

     Our decision whether to reverse on plain-error review is permissive and not
mandatory. Id. at 735. As a guiding principle, we exercise our discretion when a

                                           -5-
miscarriage of justice would otherwise result. Id. at 736. In the circumstances of this
case, we exercise our discretion to reach the errors discussed below and reverse the
judgment. Not doing so would, in our opinion, condone a stark violation of Fourth
Amendment rights. The Warrant Clause is not a technicality. It is a basic protection
of a citizen's right of private property. To endorse the detectives' disregard for
Amendment would be to grant a broad power to law enforcement going beyond the
evils even of the infamous General Warrant.

                                         III.

       The recommendation of the Magistrate Judge, adopted in full by the District
Court, gave four independent reasons for denying the suppression motion. First, Mr.
Laschober gave valid consent to the search. Second, even if the consent was invalid,
the police were justified in relying on Mr. Laschober's apparent authority to consent.
Third, the search was justified, in any event, under the doctrine of abandonment. And
fourth, the evidence would have inevitably been discovered anyway as a result of an
alternative line of investigation. We respectfully disagree with all four of these
rationales.

                                          A.

      The District Court found that Mr. Laschober had common authority over the
discs because of his possession of the discs and his previous opening (on one
occasion, anyway) of Mr. James's mail. We believe this finding was plain error.

       Generally, the Fourth Amendment requires that a warrant be issued by a neutral
magistrate on probable cause before an item can be searched or seized. See United
States v. Harris, 453 F.2d 1317, 1321 (8th Cir. 1972). There are, however, a few
exceptions to the warrant requirement. United States v. Riedesel, 987 F.2d 1383,



                                         -6-
1388 (8th Cir. 1993). If the government wishes to rely on an exception, it bears the
burden of demonstrating that the exception exists. Ibid.

       At the suppression hearing, the government relied on Mr. Laschober's consent
to the search of Mr. James's discs to excuse its failure to obtain a warrant. Consent
to search, a valid exception to the warrant requirement, Schneckloth v. Bustamonte,
412 U.S. 218, 222 (1973), may be given either by the suspect or by some other person
who has common authority over, or sufficient relationship to, the item to be searched.
United States v. Matlock, 415 U.S. 164, 171 (1974). Common authority is a function
of mutual use, joint access, and control, United States v. Bradley, 869 F.2d 417, 419
(8th Cir. 1989), and is a question of fact. United States v. Baswell, 792 F.2d 755, 758
(8th Cir. 1986). Thus, whether Mr. Laschober had actual authority to consent is a
question of fact, and we review the evidence for plain error looking to see whether
the government produced evidence sufficient to show that he had the requisite
authority.

       Most consent cases involve jointly occupied places and a roommate or cotenant
who allows a search of shared space. See, e.g., Bradley, 869 F.2d at 419. In these
instances, the factual finding of common authority makes intuitive sense. The space
is jointly resided in; the parties expect intrusions into each other's limited space as a
function of communal living.2 This is not necessarily the case when the person
claimed to have given consent is only a bailee.

       A review of our case law and the law of other circuits shows that although a
bailee of a concealed item may have potential physical access to the inner contents

      2
        We do not mean to establish a per se rule for shared space. See, e.g., United
States v. Block, 590 F.2d 535, 541 (4th Cir. 1978) (holding that while a mother could
consent to a search of her son's room, she did not have authority to consent to a search
of a locked footlocker within the room). Instead, we note the greater ease with which
common authority can be found in a shared-space situation.

                                          -7-
of the item (he can pick the lock; break the seal; open up the storage bin), this kind
of access does not mean the bailee has actual authority to look at the contents of the
items, or to consent to another's searching them. Put another way, one does not cede
dominion over an item to another just by putting him in possession. For example, one
does not give authority to a common carrier to turn over goods he shipped to law
enforcement merely by entrusting the goods to the common carrier. United States v.
Kelly, 529 F.2d 1365, 1371 (8th Cir. 1976). A girlfriend does not give her boyfriend
authority to consent to a search of her purse left in the trunk of a rental car by the
mere fact of their relationship and her having left it in the car. United States v.
Welch, 4 F.3d 761, 764 (9th Cir. 1993). A person who entrusts a briefcase to a friend
solely for storage and then instructs the friend to destroy the briefcase does not
thereby give the friend authority to let the FBI search the briefcase. United States v.
Basinski, 226 F.3d 829, 834 (7th Cir. 2000). A lessee does not have authority to
consent to a search of the lessor's financial records stored at the leased house merely
on account of the lessor-lessee relationship. Marvin v. United States, 732 F.2d 669,
675-76 (8th Cir. 1984). Therefore, in order to show the validity of Mr. Laschober's
consent, the government needed to introduce evidence of authority beyond the mere
act of storage.

       We are firmly convinced that Mr. James did not give permission to Mr.
Laschober to exercise control over the discs, or to consent to the searching of the
discs. Instead, he gave the discs to Mr. Laschober for the sole purpose of storing
them (except that, as the police knew, but Mr. Laschober did not, the defendant had
given instructions that the discs be destroyed). The discs came to him in sealed
envelopes. They were packaged within the envelope in tape. Mr. James never told
Mr. Laschober "go ahead and look at these." Instead, he asked only that they be
stored (and, as we have noted, that all of them be destroyed). Further, defendant
marked the disc in question "confidential" and "private," evidencing a desire that no
one, including Mr. Laschober, view the contents of the disc. Cf. Trulock v. Freeh,
275 F.3d 391, 403 (4th Cir. 2001) (finding no authority to search personal files on a

                                         -8-
shared computer because defendant had evidenced a privacy interest in protecting the
files with a password). Similarly important, the disc could not be opened on just any
computer. To get access to the disc, a special officer had to use an advanced
computer. Taken as a whole, such demonstrations of intended privacy evidence
Mr. James's expectation that Mr. Laschober not view the disc's contents.

        The fact that Mr. Laschober opened Mr. James's mail, on at least one occasion,
is of little or no consequence in our analysis. In opening the mail, Mr. Laschober was
acting pursuant to express authorization by Mr. James. Mr. James told him to do so.
In contrast, Mr. James never told Mr. Laschober to look at the discs. He told him to
store them. Nothing within that instruction gave Mr. Laschober the right to let others
look at the discs. The grant of authority to open the mail does not presuppose a grant
of authority to look at the discs. It is a stretch of logic to read a limited instruction
into a broader grant. If Mr. James had intended to allow Mr. Laschober to look at the
discs, why would he have delivered them sealed in tape, sealed in an envelope, with
"confidential" written across the top of the pertinent disc? We have a definite and
firm conviction that Mr. Laschober had no common authority either to look at the
contents of the discs, or to allow anyone else to do so, and that the absence of
evidence to this effect is plain.

                                           B.

      The District Court also found that the detectives reasonably believed that Mr.
Laschober had the authority to consent, even if he did not in fact have it. As the
Supreme Court has stated, the rule for law-enforcement officers' reliance on a
consenting party's apparent authority "is not that they always be correct, but that they
always be reasonable." Illinois v. Rodriguez, 497 U.S. 177, 185-86 (1990). Mr.
James contends that the detectives' reliance on Mr. Laschober's apparent authority
was unreasonable. We agree.



                                          -9-
       The determination of whether the government's reliance on Mr. Laschober's
consent was reasonable is a question of law that we review de novo. See United
States v. Jones, 269 F.3d 919, 927 (8th Cir. 2001) ("The ultimate determination of
reasonableness under the Fourth Amendment is a question of law which we review
de novo."); see also United States v. Ringold, 335 F.3d 1168, 1171 (10th Cir. 2003).
On review, we ask this question: would the facts available to the officer at the time
the consent is given warrant a person of reasonable caution in the belief that the
consenting party had authority over the item to be searched? Rodriguez, 497 U.S. at
188; United States v. Sanchez, 32 F.3d 1330, 1333-35 (8th Cir. 1994). We think the
answer has to be no.

       At the time of the consent, the detectives knew the following. Mr. Laschober
was Mr. James's long-time friend. Mr. James at times had his mail delivered to Mr.
Laschober's home, and Mr. Laschober had at least once opened the mail. Mr. James
had Mr. Laschober store back-up discs for him on previous occasions. On this
occasion the discs were stored in a sealed envelope that bore Mr. James's name on the
front. They knew that the discs contained in the envelope belonged to defendant and
not Mr. Laschober. They knew, once the envelope had been opened, that the top disc
said "confidential," "personal," "private." They knew that it took an advanced
computer to view the disc's contents. And they had a piece of information that Mr.
Laschober did not. They knew that his actual authority had changed. They knew,
because they had intercepted and read the letter to Carrie Finley, that Mr. Laschober's
only authority was to scratch and destroy the discs. This last fact is critical.

       It cannot be reasonable to rely on a certain theory of apparent authority, when
the police themselves know what the consenting party's actual authority is — in this
case, not to store the discs, but to destroy them. The standard of reasonableness is
governed by what the law-enforcement officers know, not what the consenting party
knows. Here the detectives knew too much about Mr. James's manifested desire to



                                         -10-
keep others, including Mr. Laschober, from seeing the contents of the disc to rely on
Mr. Laschober's authority to consent.

                                          C.

     The District Court further found that Mr. James had abandoned the property
when he delivered it to Mr. Laschober. We hold that the property had not been
abandoned.

      A warrantless search of abandoned property does not violate the Fourth
Amendment, as any expectation of privacy in the item searched is forfeited upon its
abandonment. United States v. Tugwell, 125 F.3d 600, 602 (8th Cir. 1997). An
abandonment determination is a question of fact, see United States v. Caballero-
Chavez, 260 F.3d 863, 866 (8th Cir. 2001), which, given Mr. James's failure to object
properly to the Magistrate Judge's recommendation, we review for plain error.
McNeil, 184 F.3d at 775. At the suppression hearing, the government bore the
burden of establishing that Mr. James had abandoned the discs. Kelly, 529 F.2d at
1371. Two principal factors guide our review: first, whether Mr. James denied
ownership of the item, and second, whether he physically relinquished the item.
United States v. Landry, 154 F.3d 897, 899 (8th Cir. 1998).

      Neither factor supports a finding of abandonment. Mr. James never denied
ownership of the discs. In fact, at the time of the search, Mr. James had claimed
ownership in the only way he could. He had put his name on the outside of the
envelope. Second, Mr. James did not physically relinquish the discs in a way that
demonstrates abandonment. For example, in United States v. Chandler, 197 F.3d
1198 (8th Cir. 1999), and United States v. Liu, 180 F.3d 957 (8th Cir. 1999), the two
cases principally relied on by the District Court, the defendants physically left items
in a manner manifesting an intent never to reclaim them. In Chandler, a suspended
police officer left a duty bag full of narcotics in the police station for eight months

                                         -11-
and never inquired back to claim the contents of the bag. Chandler, 197 F.3d at 1199.
In Liu, a passenger on a train got off the train leaving the bag filled with narcotics
behind after a police officer began inquiring into the bag's contents. Liu, 180 F.3d
at 958-59. Both defendants seemed to be abandoning the items with the hope that
they would prevent association with the contraband. Such is not the case with Mr.
James. He simply gave the discs to Mr. Laschober to store. We are convinced that
a person does not abandon his property merely because he gives it to someone else
to store. Basinski, 226 F.3d at 837; see Kelly, 529 F.2d at 1371. A bailor, by
definition, does not retain possession of a thing, but he still has title and the right to
instruct the bailee as to what to do with it, including returning it, or, as here,
destroying it.

        Nor do we find any support for the abandonment theory from Mr. James's
instruction to destroy the discs. As the Seventh Circuit reasoned in a similar case, the
destruction order "did not invite all the world to rummage through the [discs] at will
. . .." Basinski, 226 F.3d at 838. Instead, the destruction order "manifested a desire
that nobody possess or examine the contents of the [discs]." Ibid. It was in essence
the ultimate manifestation of privacy, not abandonment.

      We hold that the District Court's finding that Mr. James abandoned the discs
was plain error. Mr. James did not abandon the discs when he gave them to Mr.
Laschober to store, nor did he abandon them when he gave the instruction to destroy
them.

                                           D.

      As a last alternative holding, the District Court held that even if the search and
seizure of the discs did violate the Fourth Amendment, the discs need not be
suppressed, because of the doctrine of inevitable discovery. We respectfully disagree.



                                          -12-
       The inevitable-discovery doctrine posits that if the prosecution can establish
by a preponderance of the evidence that the information, otherwise to be suppressed
under the exclusionary rule, ultimately or inevitably would have been discovered by
lawful means, then the exclusionary rule does not apply. Nix v. Williams, 467 U.S.
431, 444 (1984). In making a demonstration of inevitable discovery, our case law
requires the prosecution to show that: (1) there was a reasonable probability that the
evidence would have been discovered by lawful means in the absence of police
misconduct, and (2) that the government was actively pursuing a substantial,
alternative line of investigation at the time of the constitutional violation. United
States v. Conner, 127 F.3d 663, 667 (8th Cir. 1997). Because there was no evidence
of an alternative line of investigation, we need not reach the question of reasonable
probability.

      In finding that the discs would have been inevitably discovered, the District
Court reasoned:

             the police were actively pursuing the investigation of
             defendant on the child sexual misconduct charges he was
             facing in the City of St. Louis and clearly they would have
             eventually come upon his use of the computer and would
             have proceeded to investigate, given the widespread use of
             the computer and internet for the dissemination of
             pornography and the known tendency of pedophiles to
             make full use of it.

       The law requires that the government prove that there was, at the time of the
search of the disc, an actual other investigation that would have led to discovery of
the otherwise unconstitutionally obtained evidence. Certainly the St. Louis detectives
were in charge of the investigation of Mr. James on the sexual-misconduct charges.
But he had already been arrested on these charges, and was in jail. The investigation
appears to have been over. In any event, there is no evidence in this record that the


                                        -13-
detectives were pursuing it. There was no evidence at all of any then-existing
alternative investigation.

       We are not concerned that the lack of evidence from the record may be
attributed to oversight by the prosecutor. Just as Mr. James has had to endure the
additional burden of showing plain error due to his failure to object timely to the
Magistrate Judge's recommendation, so too must the government endure the
consequences of failing to construct a record carefully.

       Because of this complete lack of evidence, we hold that the application of the
inevitable-discovery rule was incorrect.

                                          IV.

       In sum, we find that the detectives' behavior in this case did violate the Fourth
Amendment, and that the evidence should have been suppressed. While a warrant to
search the discs might perhaps have been obtained, that is beside the point. At the
time of the search, there was no valid exception to the warrant requirement justifying
the detectives' behavior. The law constrains us to reverse the judgment of the District
Court, and to remand this case for further proceedings consistent with this opinion.

      It is so ordered.
                          ______________________________




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