                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4670


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SCOTT CHRISTOPHER HOWE,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:09-cr-00510-LMB-1)


Submitted:   January 21, 2011             Decided:   March 4, 2011


Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed as modified by unpublished per curiam opinion.


Marvin D. Miller, LAW OFFICE OF MARVIN D. MILLER, Alexandria,
Virginia, for Appellant.      Neil H. MacBride, United States
Attorney, Gerald J. Smagala, Assistant United States Attorney,
Jeffrey H. Zeeman, Special Assistant United States Attorney,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Following a bench trial, Scott Christopher Howe was

found guilty of three counts of exploiting a minor child for the

purpose of producing a visual depiction of that exploitation,

the production of which was accomplished using materials that

had been transported in and affected interstate, in violation of

18    U.S.C.A.         § 2251(a)    (West    2000       &    Supp.    2010).          Howe    was

sentenced to 210 months’ imprisonment.

               Prior to trial, Howe moved to dismiss the indictment,

arguing       Congress      exceeded       its       authority       under     the    Commerce

Clause in enacting § 2251(a).                        Howe also lodged a multi-prong

attack on the admissibility of evidence seized from his home.

The district court’s denial of these motions is the subject of

this       appeal. 1      For   the   reasons         that    follow,     we    affirm       both

orders,       although     we   affirm      the       order     denying      the     motion    to

suppress on modified grounds.



                                             I.

               Taken in the light most favorable to the Government,

United States v. Lewis, 606 F.3d 193, 195 n.1 (4th Cir. 2010),

the    evidence         presented     at    the       hearing    on    Howe’s        motion   to

suppress established the following facts.                         At approximately 3:30

       1
            Howe does not appeal his 210-month sentence.



                                                 2
p.m., on the afternoon of August 11, 2009, Corporal Sean Healy

of    the   Fauquier   County    Sheriff’s   Office      was   dispatched    to    a

single family residence in Bealeton, Virginia.                 There, Healy met

the owners of the property, the Cottrells, who informed Healy

that they had recently rented the property to Howe.                       While in

the course of performing maintenance on the pool, the Cottrells

noticed what they suspected to be marijuana plants growing on

the deck, 2 and called the police.

             The   Cottrells     escorted    Healy      onto   the   property     to

allow him to view the plants.          According to Healy, he could not

see the plants until he walked beyond the deck area.                         Healy

concurred in the Cottrells’ assessment that they were marijuana.

Deputy Sheriff Steve Lewis was next to arrive on the scene,

followed shortly thereafter by Howe.

             Healy approached Howe’s truck alone to speak with him.

Healy informed Howe of what he had found, and explained that, in

his    experience,     other    evidence    of   drug    activity    is    usually

located inside a premises where marijuana is cultivated.                          At

this point, Howe offered to allow the officers to search the

house, and he executed a written consent form.




       2
       It is undisputed that the deck was connected to the house
via a sliding glass door.



                                       3
           Howe advised the officers that there was a handgun in

his   bedroom.     In    the   course       of   securing   that    weapon,   the

officers observed computers, a digital camera, boxer shorts, and

personal lubricant on the floor of Howe’s bedroom.                   Suspicions

aroused, Healy instructed Lewis to ask Howe if there was any

illegal content on this equipment.                 Upon prompting by Lewis,

Howe initially admitted to possessing adult pornography, but he

quickly added that the recordings depicted him and his fifteen

year-old boyfriend engaged in various sexual acts.                   Healy then

spoke with Howe, who confirmed that the videos were of sexual

acts between him and a male.        Neither Lewis nor Healy questioned

Howe any further or viewed the recordings.

           In    its    written   memorandum        denying   the    motion    to

suppress, the district court first rejected Howe’s argument that

Healy had illegally entered the curtilage of his property.                    The

district court concluded that the Cottrells were on the property

for the permissible reason of performing maintenance.                 Thus, the

court found it was reasonable for Healy to believe that they had

the authority to grant him entrance as well.                The district court

further opined that Howe’s consent to the search of the house

was knowing and voluntary, under the totality of circumstances,

and thus valid.




                                        4
                                             II.

             On appeal, Howe first argues that the district court

erred, as a matter of law, in finding Healy reasonably relied on

the   Cottrells’     invitation         onto       the    property       to   justify      his

warrantless      entry.      This     court        reviews       the    district     court’s

legal determinations in its adjudication of a suppression motion

de novo and findings of fact for clear error.                           United States v.

Hernandez-Mendez, 626 F.3d 203, 206 (4th Cir. 2010).

             The Fourth Amendment prohibits unreasonable searches;

a   search     conducted    without      a    warrant       is    per    se   unreasonable

unless    it    falls      within   a    valid           exception      to    the    warrant

requirement.        Schneckloth         v.    Bustamonte,         412     U.S.      218,   219

(1973).      As the district court properly concluded, the area of

the backyard that Healy entered to view the marijuana plants was

within the curtilage of the rented property, and absent exigent

circumstances, a warrantless search of curtilage is prohibited.

United States v. Van Dyke, 643 F.2d 992, 993-94 (4th Cir. 1981).

Because it is clear that there were no exigent circumstances

here, the issue is whether the Cottrells had the authority to

permit Healy’s entrance. 3


      3
       As the district did, we note that the Cottrells lacked
actual authority to consent to a warrantless search of the
rented property.  See United States v. Matlock, 415 U.S. 164,
171 & n.7 (1974).



                                              5
              The apparent authority doctrine allows the admission

of   evidence    obtained   via    third-party    consent    so   long   as   the

information known to the officer at the time consent was given

supports a reasonable basis to believe the individual had the

authority to consent to the search.              Illinois v. Rodriguez, 497

U.S. 177, 188 (1990); see United States v. Buckner, 473 F.3d

551, 555 (4th Cir. 2007).           As a matter of law, “a landlord may

not give the police consent to a warrantless search of a rented

apartment or room.”         United States v. Stevenson, 396 F.3d 538,

546 (4th Cir. 2005); see Chapman v. United States, 365 U.S. 610,

616-17 (1961).       The record clearly establishes that Healy knew

the Cottrells were the landlords of the property, which they had

rented to Howe.       Accordingly, the apparent authority doctrine

does not cure Healy’s mistake of law in concluding the Cottrells

had the apparent authority to authorize his warrantless entry

onto the curtilage of the rented property.

              Despite our disagreement with the district court on

this threshold issue, we nonetheless affirm the denial of Howe’s

motion to suppress, because Howe’s consent to search his home

purged the taint of the unlawful initial search.                   The Supreme

Court   has    authorized    the    admission    of   evidence    that   is   the

product   of    an   unlawful      search   or   seizure    so    long   as   the

connection between the unlawful conduct of the police and the

acquisition of the evidence is so attenuated as to purge the

                                        6
evidence of the primary taint.                      Wong Sun v. United States, 371

U.S. 471, 487-88 (1963).                To determine whether the taint of an

illegal search has been purged, we evaluate:                         (1) the length of

time between the illegal act and the seizure of evidence; (2)

whether          there   were    intervening          circumstances;      and    (3)   the

gravity,          flagrancy,     and    reason        for   the    police     misconduct.

United States v. Seidman, 156 F.3d 542, 548 (4th Cir. 1998)

(citing Brown v. Illinois, 422 U.S. 590, 603-04 (1975)).                               Our

analysis of these factors in this case leads us to conclude that

the taint of Healy’s illegal entrance was purged.

                  First, a considerable period of time — more than seven

hours — elapsed between Healy’s entry onto the curtilage and the

seizure of evidence related to child pornography.                               There was

also a significant period of time between Healy’s entry and his

request          for   consent    to    search.         Further,     Howe’s     voluntary

consent to the search of his home was an intervening act of free

will. 4      See id. at 549 & n.10 (holding, albeit in dicta, that

consent to further police interaction is sufficient to “sever

the connection between an unlawful act and the acquisition of

additional         evidence”).         Finally,       Healy’s     warrantless    entrance

onto       the    curtilage      of    Howe’s       property,     while   unlawful,    was


       4
       We note that Howe does not challenge the voluntariness of
his consent on appeal.



                                                7
neither flagrant nor offensive.                Id. at 550.         Accordingly, we

affirm the district court’s denial of the motion to suppress,

although on modified grounds.



                                      III.

            Howe next argues the district court erred in denying

his motion to dismiss the indictment, which was predicated on

his   challenge   to    the   constitutionality           of   §   2251(a).        This

argument challenges Congress’ authority to criminalize the use

of    an   instrument    that     traveled      in   or    affected       interstate

commerce in the production of intrastate child pornography.

            The   district       court    properly        concluded       that     this

argument is foreclosed by Circuit precedent.                   See United States

v. Malloy, 568 F.3d 166, 179-80 (4th Cir. 2009), cert. denied,

130 S. Ct. 1736 (2010); United States v. Forrest, 429 F.3d 73,

78-79 (4th Cir. 2005).          One panel of this court may not overrule

the precedent set by a prior panel.                  Barbour v. Int’l Union,

594 F.3d 315, 321 (4th Cir. 2010).               Accordingly, we affirm the

denial of Howe’s motion to dismiss the indictment.



                                         IV.

            For   the   foregoing     reasons,       we    affirm       the   district

court’s order denying the motion to dismiss, and we affirm the

district    court’s     order    denying       the   motion        to   suppress    on

                                         8
modified grounds.        See United States v. Smith, 395 F.3d 516,

518-19 (4th Cir. 2005) (“We are not limited to evaluation of the

grounds offered by the district court to support its decision,

but may affirm on any grounds apparent from the record.”).            We

dispense   with   oral     argument   because   the   facts   and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                  AFFIRMED AS MODIFIED




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