United States v. Roy J. Hudspeth
459 F.3d 922
8th Cir.
2006
Check Treatment
Docket

*1 However, remotely take the deal” could at Station 19. Littrell has not he “better forth evidence to that threat, set demonstrate vague but it was qualify as speech his November of 2002 motivated from temporally removed best engage alleged defendants to in their retal- agreement. Considering all signing iatory conduct the summer of 2003. As circumstances, surrounding we con- 5, placement to his at Station he concedes jury no reasonable could find clude that that defendants made the decision based prevented that the conduct of others Litt- animosity upon might experi- Littrell exercising his free will rell from when he ence from his at other co-workers stations. agreement. The district court signed the 32.) {See Appellant’s Br. at Littrell had properly determined that the release requested the same concern and has never by Littrell was valid. On that ba- signed placement at a station other than Station sis, summary judgment favor of defen- investigate 5. As to defendants’ refusal to to those claims relat- dants is warranted as threats, complaints his of death Littrell ing agreement. only upon allegation relies his that refusal was result of the statements he Arising B. After the Claims Release over six made months before. Such bare Littrell contends that two of his allegation is insufficient to survive sum- First Amendment and retaliation claims Howard, mary judgment. See 363 F.3d at by they are not barred the release because (mere speculation 801-02 insufficient relate to actions that occurred after the claim). support First Amendment For agreement signed was and that were not reasons, these we conclude Littrell contemplated by agreement. We prima has failed to meet his facie burden may agree challenge that Littrell such ac on his First Amendment retaliation claims. prima tions defendants. To establish a Summary judgment was warranted. facie of retaliation case based the First Amendment, a public employee plaintiff III. CONCLUSION (1) engaged protect must show that he stated, For the reasons we affirm the (2) speech, ed his interest as a citizen in grant summary judg- district court’s making speech outweighs employ such inment favor of defendants. in promoting public er’s interest efficient (3) speech motivating service and his was a against

factor the adverse action taken him. Howard v. Columbia Pub. Sch. (8th Dist., 797, Cir.2004); 363 F.3d see Ark., Okruhlik v. Univ. 395 F.3d America, UNITED STATES of (8th Cir.2005) (noting analy the same Appellee, sis applies to First Amendment and Title claims). speech VII retaliation Whether Roy HUDSPETH, a motivating question Appellant. factor “is a J. fact, sufficiency but the of the evidence to No. 05-3316. create an issue of fact a question of law.” Appeals, United States de Berglund, Llano v. Eighth Circuit. (8th Cir.2002). Submitted: Feb. alleges

Littrell placement that his Aug. Station 5 Filed: and defendants’ failure to investi- gate complaint his of death threats were in

retaliation for reporting activity sexual

MELLOY, Judge. Circuit

Roy Hudspeth (Hudspeth) entered possession guilty plea conditional of 18 U.S.C. pornography, child violation *3 (2000). 2252A(a)(5) (b)(2) § and The dis- sixty trict court sentenced Hudspeth appeals, imprisonment. months’ court’s denial of his challenging the district and suppress motion to Sentencing Guidelines. For the reasons below, affirm in and part set forth we part. reverse in

I. BACKGROUND 25, 2002, July investiga- of an On as large quantities of tion into the sale of tablets, pseudoephedrine-based cold Patrol and the Highway Missouri State En- Combined Ozarks Multi-Jurisdictional (COMET) forcement Team executed Service, Inc. search warrant at Handi-Rak (Handi-Rak). The search warrant listed “[a]ny property including: to be seized and all documents” related to papers and/or inventory pseudoephed- and “the stock tablets,” cold “financial state- rine based ments,” journals,” “a customer “payment receiving pseudoephedrine list of clients tablets,” “employee personnel cold based files,” routes,” and “the “employee sales inventory pseudoephedrine out of and cold based tablets.” CEO, Hudspeth, Handi-Rak’s arrived at Handi-Rak after the search was under- way. Trooper Corporal Missouri State Cooley, argued, Springfield, Donald R. (Cpl.Nash) Daniel Nash informed Hud- MO, appellant. for rights. Hudspeth of his Miranda1 Barber, argued, Rose A. Asst. U.S. rights. Hudspeth said he understood his MO, Atty., Springfield, (Philip Koppe, M. agreed questions then to answer some Graves, Atty., Asst. U.S. Todd P. U.S. wanting lawyer, stating, denied to talk to a MO, briefs), Atty., City, Kansas on the “I anything wrong don’t think I’ve done appellee. just I get up.” want to this cleared RILEY, HEANEY, Sergeant Cooper (Sgt.Cooper) Before Michael MELLOY, Judges. Highway of the Missouri Patrol su- Circuit State Arizona, 1. Miranda v. L.Ed.2d 384 U.S. during couple’s team the with the children. Nash in-

pervised the COMET himself, High- State Handi-Rak search. Missouri troduced Mrs. showed An- way identification, Patrol Mobile Crime Information and identified the men Farrow), (Analyst alyst Connie Farrow him with as law enforcement officers. assigned who was to search None of the officers were in uniform or office, Sgt. Cooper’s attention to directed carrying weapons. Hudspeth permit- (CDs) disks compact ted the officers to enter the house and sent Sgt. Cooper selected a Hudspeth’s desk. the children to a back bedroom.

homemade CD with handwritten label Cpl. Nash Hudspeth they informed Mrs. Analyst open and directed Farrow to had arrested her *4 executing husband after containing images folder thumbnail of a search at warrant Handi-Rak and find- graphics image opened files. The first ing contraband on her husband’s business pornography. Sgt. to be adult appeared computer. Cpl. explained Nash his con- rapidly more Cooper then viewed thumb- computer cern that the home contained images nails and discovered several con- Cpl. contraband. Nash did not tell Mrs. taining pornography. child After obvious Hudspeth that her husband refused to con- or discovering images similar two three sent to the search of the home CDs, Sgt. Cooper stopped other the search Attorney’s and called the United States Hudspeth Mrs. and the officers dis- guidance. office for family’s cussed the computers: two one Sgt. Cooper Cpl. informed Nash about garage. the children’s room and one in the discovery pornography. child After Cpl. permission Nash asked for to search Hudspeth’s oral and Cpl. Nash obtained the residence. Hudspeth per- Mrs. denied computer, written consent to search the Cpl. requested per- mission. Nash then im- Cpl. Hudspeth Nash asked about the computer mission to take the ga- by Sgt. Cooper. Hud- ages discovered rage. Hudspeth Mrs. said she did not speth Cpl. he told Nash knew there Cpl. know what to do and asked Nash CDs, “guy computer stuff’ on the but if happen what would she did not consent. Hudspeth said he did not know it was Cpl. Hudspeth Nash told Mrs. he would Hudspeth illegal. Cpl. told Nash he down- an armed uniformed at leave officer from images loaded the Internet onto his prevent home to destruction of the com- office and then the im- burned puter applied and other evidence while he say ages Hudspeth onto CDs. refused to Hudspeth for search warrant. Mrs. said images whether he had downloaded similar call, phone wanted to make a went into she computer. Cpl. on his home Nash re- kitchen, unsuccessfully and tried quested permission Hudspeth’s to search minutes, attorney. contact her After a few computer. Hudspeth give home refused to Hudspeth Mrs. returned to the officers Cpl. permission. Cpl. Nash Nash had gave comput- her to take the consent Hudspeth placed under arrest and trans- Cpl. er. Nash homemade next to saw CDs jail. ported county computer similar to the ones found if Hudspeth Handi-Rak and asked Mrs. he totality Based on the of the circum- stances, Cpl. could take the CDs. Nash testified Nash believed yes, and Hud- Hudspeth said Mrs. por- home also contained child she not tell the officers nography. Cpl. Nash and three other offi- testified did not to take the CDs. The entire visit lasted Hudspeth Georgia cers went to the home. (Mrs. minutes. Hudspeth) approximately thirty was at home by statutory a second search months. Confined maxi- The officers obtained authorizing years, warrant the search of the mum sentence of five see 18 U.S.C. 2252A(b)(2) (2000), computers § and CDs from both the seized the district court pornography. for child office and the home impris- sentenced to 60 months’ obtaining Prior to the second search war- Hudspeth appeals onment. the district rant, the contents of officers looked suppress court’s denial his motion to seized from the home. some disks its the Guidelines. images por- The search uncovered child II. DISCUSSION from

nography computer-based obtained Hudspeth downloaded to newsgroups that Suppress A. Motion to disks, CDs, computers’ floppy and the Hudspeth argues the district court erred investigators hard drives. The also found suppressing the evidence seized Hudspeth’s stepdaughter ap- movie files of computers from his review CDs. “We pearing stages nude and in various of un- findings sup- the district court’s factual Hudspeth surreptitiously dress. recorded port of its denial of a suppress motion to by using computer stepdaughter web legal” clear error and its conclusions de camera. *5 Solomon, novo. United States v. 432 F.3d on Hudspeth was indicted one count of (8th Cir.2005). 824, 827 possession pornography, of child in viola- 2252A(a)(5) (b)(2). § and tion of 18 U.S.C. 1. Search and Seizure of Business Hudspeth suppress, filed motion to which Computer A the district court denied. second su- Hudspeth argues the district court erred perseding charged Hudspeth indictment suppressing in not the evidence seized producing with an additional count of and computer from the search of his business produce pornography, to child attempting impermissibly officers exceed- 2251(a) (d). § in violation of 18 U.S.C. and warrant, scope ed the of the search which Hudspeth guilty plea entered a conditional only authorized the search of Handi-Rak’s possessing pornography, reserving to child business records. also contends appeal to the denial of his motion scope officers exceeded the of Hud- suppress. to speth’s oral and written consent to search The district court sentenced computer. the business 23, 2005, August advisory and used the in calculating Hudspeth’s Guidelines2 sen- language “The of a search war Hudspeth’s surreptitious tence. Based on rant must describe the items to be seized filming stepdaughter, particularity: of his the district with language sufficient ‘the § court applied (trafficking sufficiently U.S.S.G. 2G2.1 must be definite to enable the material involving exploitation reasonably sexual searcher to ascertain and iden ” minor), of a a higher tify things which carried base authorized be seized.’ level, Lowe, 604, offense imposed enhancements United States v. 50 F.3d 607 (8th Cir.1995) due to stepdaughter’s age (quoting and relation- United States v. Saunders, (8th ship adjustments, 1488, all Hudspeth. After 957 F.2d 1491 Cir. 1992)). 121 range requirement Guidelines to 151 that a “[T]he search July 2. Based on an offense conduct date of used the Guidelines Manual effective Novem- 25, 2002, 2001, the district court sentenced Hud- pursuant ber to U.S.S.G. 2252A(b)(2), § under 18 U.S.C. before 1B1.11(b)(1). § Congress amended the statute in ”); objects particu with of records’ describe its class see also United warrant States Walser, (10th accuracy’ v. larity ‘practical is a standard of F.3d Cir. 2001) (concluding hypertechnieal rather than a one.” United the’ officer did not ex (8th Peters, scope 92 F.3d 769-70 ceed of a search warrant autho States Cir.1996) 607). Lowe, rizing the search (quoting computer F.3d records for of a drug evidence transaction where the language of the search war opened officer a homemade CD and dis support affidavit in rant and the covered child pornography because the sufficiently search warrant demonstrate search warrant authorized the search of anticipated warrant the search the search files). computer computer age, this First, computer. business logical warrant search business records types the search warrant described the ly reasonably includes a search of “any searched as: and all” records be computer data. sales, regarding records or documents Next, officers involved the initial lists, inventory, finan payables, customer computer search of the business testified statements, personnel cial files. While they anticipated searching Hudspeth’s “computer” the inclusion of the word business Analyst Farrow testi- specified among have one location would fied she was told the search warrant in- might several where the officers look for cluded Sgt. Cooper records. items, prevent those its omission did not twenty-six years testified based on his from searching Hudspeth’s the officers experience, law enforcement he believed computer for business such records. See the search warrant the computer covered Peters, (concluding the use *6 you’re and CDs explaining, “when search- general of the term “records” ing for ... especially records at a busi- “adequately warrant covered the search ness, ... electronic records and compu- form”); search of records audio cassette going terized records are to be of Lowe, (holding videotape 50 F.3d at 607 Sgt. Cooper records as a whole.” also of a scope fell within search warrant Hudspeth’s computer par- testified was of authorizing including the seizure of items types because the ticular interest rec- “[ajddress books, and other photographs, likely sought ords most would be Hud- items that tend to show co-defendants or speth’s office and not available to other “[ijtems co-conspirators,” personal Sgt. Cooper explained further employees. identification, [sic], utility such as letter “assigned duty” searching was Hud- bills, licenses, etc., passports, driver’s to speth’s Sgt. computer business possession show constructive con computer-ar- Cooper knowledge had trolled substances found at the above de records chiving graphic images. as address”); Lucas, scribed United States v. (8th Cir.1991) (con Finally, Drug 1215-16 the affidavit of Enforce- cluding authorizing Special Agent a search warrant the ment Administration Tim Krisik) records, “[b]ooks, receipts, (Agent support seizure of Krisik of the notes, ledgers papers relating anticipated and other search warrant likewise ordering, computer; to the The affi- specifically transportation, search business purchase Cpl. investigation of controlled davit detailed Nash’s distribution sufficiently particular leading up substances” was to for the feder- warrant, an ma included inter- answering include the seizure of al search which views, tape buys, chine and its cassette because “the controlled and the execution at Handi-Rak. ‘generic seizure of records refers to the of a state search warrant Carey, the circumstances in no Based on interviews with two Handi-Rak Unlike Sgt. to be- such abandonment occurred here. Cpl. Nash had reason salespersons, personnel regular- Cooper briefly viewing testified that after lieve Handi-Rak’s sales finding cold tablets “two or three CDs” and more child ly pseudoephedrine-based sold legal pornography, stopped in excess of the limit and documented he his search “be- separate seeing things invoices: one cause [he] [he] those sales with two see,” expecting the other hand- wasn’t and he called the computer-generated, and Cpl. Attorney’s also had reason to be- United States office for instruc- written. Nash Hudspeth seizing comput- lieve knew about the excess tions. After the business er, Agent records in his Handi- secured a search kept sales those Krisik second authorizing Rak office. The statements the affidavit warrant the search of Hud- clearly investigators speth’s computer demonstrate the an- home and business hard ticipated searching Hudspeth’s pornography. office com- drives and CDs for child of Handi-Rak’s puter records evidence Furthermore, Hudspeth’s assertion of double-invoicing practice. limited consent is contradicted the lan- guage given of the consent and his conduct Carey, Relying on United States v. following Hudspeth gave consent. consent (10th Cir.1999), Hudspeth F.3d 1268 to “search located in his [his] argues prolonged the officers’ search ex business,” place of which indicates Hud- scope ceeded the of his consent because speth’s consent was not limited to business Hudspeth search for consented busi addition, only. records In failed only. Carey, ness records detectives object to the search or withdraw con- Carey, Carey’s arrested then secured con sent after Nash told about sent to comput seize and search his home images discovered on the drug trafficking. ers for evidence of Id. at Instead, Hudspeth having acknowledged obtaining After a search warrant images on the referred to authorizing pertain the search of records stuff,” “guy them as and said he did not ing drug trafficking, a detective down they illegal. know were We conclude the computers. loaded the directories of both officers did not scope exceed the of Hud- the search of When text-based files *7 speth’s consent to search the unsuccessful, proved the detective began did Hudspeth’s ignorance regarding nor viewing graphics files and discovered child illegality of child pornography invali- pornography. point, Id. at 1271. At that date consent. “temporarily the detective abandoned” the drug-related search for evidence of docu Computer Seizure of Home pornogra ments “to look for more child Hudspeth validity also challenges the of phy, only and searching ‘went back’ to computer the warrantless seizure of the drug-related conducting documents after and argues CDs from his home. He pornography five hour search of the child expressly he denied consent and that his files.” Id. at 1273. The Tenth Circuit wife’s consent should not “overrule” his scope concluded the detective exceeded denial. of acting the warrant because he “was judicial authority without when he Fourth guarantees aban Amendment drug doned his search for evidence of deal right people “[t]he to be secure ing” houses, effects, and persons, papers, should have obtained a new their search warrant authorizing against the search for and sei- unreasonable searches Const, child pornography. Subject zures.” amend. U.S. IV.

929 exceptions, wearing a war- unarmed and street clothes. The to a few well-established per Hudspeth se unreasonable. children were the house at rantless search Cortez-Palomino, time, Hudspeth v. 438 the but Mrs. sent the chil- States United curiam). (8th Cir.2006) 910, (per dren to a back bedroom before beginning F.3d 913 exception to search is a valid conversation with the officers. Al- Consent though if requirement Hudspeth upset the consent is became when warrant voluntarily given. Cpl. Nash informed her about knowingly United her hus- (8th Sanders, 768, contraband, 424 for possession v. F.3d 773 band’s arrest of States Cir.2005). voluntary regained composure shortly Whether consent was she her there- after, in product question or the of coercion “is a of because she did not want totality upset Hudspeth fact to determined from the of her children. Mrs. be testi- spoke all circumstances.” v. fied that the officers quietly Schneckloth and her Bustamante, 218, 227, children “pretty U.S. were much unaware” of (1973); 2041, going per- 36 L.Ed.2d 854 United States what was on. When asked for (8th Cir.2006). 782, residence, Perry, 437 F.3d mission to search the Mrs. Hud- government “The has the burden to estab exercised her free will and refused freely voluntarily permission. lish ... consent was given and not a result of duress or coer The record demonstrates Nash ful- States, Laing v. 891 F.2d cion.” United ly Hudspeth right informed Mrs. she had a (8th Cir.1989). showing A permission to refuse when he asked to a claim lawful “acquiescence mere hand, take the On the other discharge authority” will not this burden. Cpl. Hudspeth Nash also informed Mrs. if Carolina,

Bumper v. North 391 U.S. consent, she did not he would leave 548-49, 88 S.Ct. 20 L.Ed.2d 797 uniformed officer at the home to prevent destruction of the or other evi- applied dence while he for a search war- assessing the voluntariness of accurately rant. Cpl. Nash informed Mrs. consent, party’s “age, look to the intelli we Hudspeth her refuse and his education, whether or not he or gence, authority fur- under the law. The record intoxicated, she whether he or she had ther indicates Mrs. was not re- or her been informed Miranda stricted or detained the officers. Mrs. rights, previous and whether he or she had living left the officers justice sys experience with the criminal room, went into the kitchen to call her Lee, tem.” United States v. attorney, and walked around the house for (8th Cir.2003); Perry, see also considering minutes while whether few factors, Considering F.3d at 785. these *8 to the to take the allow officers nothing there was coercive about the offi min- thirty The entire visit lasted about Hudspeth’s cers’ conduct to render Mrs. utes. involuntary. consent The record shows search, only indication of involuntariness is that at the time of the Mrs. Hud The testimony in the speth Hudspeth’s was her mid-thirties and had Mrs. she told Cpl. years college three education. officers to take the very “began get upset” Nash described Mrs. as “a Nash to and Mrs. Hud- a Hudspeth’s “might confident woman.” The home feared her children have suburban, area, in In to the fact the officers big was residential rather fit.” addition deny Cpl. upset, than a secluded or remote area. The offi Nash ever became this p.m., testimony sharp cers arrived at the house around 7:00 is in contrast to Mrs. other, testimony occupant that the offi- one when the other who later Hudspeth’s loud,” evidence, “[t]hey and not quietly suppress present “talked seeks the cers her children shouting,” expressly weren’t were at the scene and refuses to con- “pretty much un- Randolph, in the bedroom Id. at 1518-19. In the sent.” transpiring. of the events Accord- police permission aware” asked the defendant for controlling her con- ing Hudspeth, to Mrs. estranged his after search house upsetting cern to avoid her children. was wife told officers there that were “items testimony uncorroborated Hudspeth’s Mrs. drug evidence” the house. Id. at 1519. vague, of some she consented because unequivocally The defendant refused. The speculative support fear is not sufficient to police then turned to his wife for consent. the officers coerced argument Mrs. She consented to the search. Id. The Hudspeth’s totality consent. Under the of Court held that the seizure was not lawful. circumstances, all we conclude the evi- (“We Id. at 1526 therefore hold that a supports dence the district court’s conclu- dwelling warrantless search of a shared volun- Hudspeth’s sion Mrs. consent was express evidence over the refusal of con- tary and not coerced. physically present sent resident can- justified not be as reasonable as to him on though Hudspeth’s Even con given police by the basis consent to the coerced, voluntary and not sent resident.”). another comput consent to the seizure of the home doing, In so distinguished the Court er was not valid because her consent can from Randolph Matlock based on the fact Mr. denial of “overrule” that in Randolph expressly the defendant holding consent. here flows from Our search, denied consent to whereas in Mat- Supreme jurisprudence regarding Court’s lock searches, the defendant was silent. The ability co-tenants’ to consent to sum, Matlock, stated: “In there is no common un- as seen United States v. derstanding that generally one co-tenant U.S. S.Ct. L.Ed.2d 242 (1974), recently authority prevail has or Georgia and most v. over the — U.S. -, express another, wishes of whether Randolph, issue is the color of 164 L.Ed.2d 208 The the curtains or invita- Supreme -Matlock, fact, tions to outsiders.” Court held in “the consent Id. of one expressly the Court possesses authority “[disputed who common stated that over permission is ... no match premises against or effects is valid for this central Amendment, absent, value of the Fourth non-consenting person with and the whom countervailing State’s other authority is shared.” Id. at claims do not case, up outweigh add it.” Id. at 1524. S.Ct. 988. In that officers arrested residence, Matlock in yard of his de Georgia Randolph directly does not tained him in a squad nearby, car and then case, present address the situation in this obtained permission to search the house physically which a co-tenant is not pres- from one of Matlock’s co-tenants. Id. at ent at the search but expressly denied 166, 94 S.Ct. officers Matlock prior police consent to search seek- did not ask Matlock whether he would ing permission consenting from the co- consent to a search. present tenant who is property. *9 , —U.S. In Georgia Randolph -, Nevertheless, the prin- same constitutional (2006), ciples L.Ed.2d 208 the underlying Supreme the Court’s ... evidentiary asked “whether an in Randolph apply regardless concerns seizure ... permission is lawful with the non-consenting whether the is co-tenant residence, developed not in the at the outside district court we re- physically present car, or, case, in a as in our proceedings residence mand for further on the the sei- place employment. Un- off-site at his zure of the home computer. express We hypothetical like in or in the situ- Matlock opinion no as to whether there are in which a Randolph ation discussed grounds, alternative other than Mrs. Hud- objector, nearby but not invited “potential consent, speth’s for admission of pho- the colloquy, to take in the threshold tos. out,” invited to

loses here con- participate expressly denied his B. Sentencing Thus, to Id. at 1527. sent search. Normally if we were to reverse on a invitation, Hudspeth’s “disputed without issue, suppression we would not discuss more, no [gave police officer better the] sentencing typi- issues since the defendant entering to than claim reasonableness cally expected would be to withdraw from officer would have in the absence of plea agreement and the conviction any consent at all.” Id. at 1523. would be vacated. If the defendant were Further, majority and the dis- both then re-convicted the same or different Randolph may sent in state that there be charge, the district court would have to if danger consenting spouse serious possibil- resentence the defendant with the police protect cannot enter to the non- ity plea agreement of a different or differ- consenting spouse during a domestic dis- case, computations. ent Guideline this pute spouses present where both are when are in posture. we a somewhat unusual 1525-26, the officers arrive. Id. at 1537- is a guilty plea This conditional and it is argument normally not 38. This would be prerogative still the defendant’s as to non-consenting spouse a concern when the whether he wants withdraw from the physically present. Consequently, is not plea agreement guilty and withdraw his degree, respecting to some the case for plea. the fact that Given we have denied by a non-present denial of consent occu- suppression motion as to the office stronger is than the refusal of the pant necessarily it not clear us physically-present occupant. op- the defendant exercise that will Accordingly, proceed tion. we to decide Supreme

We believe that the Court has concerning the issues raised the sentenc- police made it clear that get must ing on the basis of the current conditional co-occupant warrant when one denies con- plea agreement, recognizing that the de- case, sent to search. In this that would may ultimately fendant withdraw from the significant have been burden. agreement. Therefore, we conclude that Mrs. Hud-

speth’s consent does not overrule Hud- Hudspeth argues court the district speth’s denial. erred its of the Guidelines to parties supplemen- government invited the enhance

We file his sentence. Supreme ap- tal briefs after the Court issued counters waived his Randolph. supple- peal any sentencing excep- its decision in In its errors with the brief, government argues mental Ran- tion of a that exceeds the statu- sentence tory government if maximum. The further dolph apply, does not but it does there asserts, notwithstanding, grounds are alternative for the admission the waiver correctly photos comput- applied stored on the home district court the Guide- er, Hudspeth’s offense including discovery. inevitable Since lines and increased predicate those issues and the factual were level.

932 interpretation signed plea agreement novo the Based on the

We review de plea agreement. change plea colloquy, a the of we conclude and enforcement of 803, Hudspeth knowingly voluntarily Egenberger, 424 F.3d United States “ (8th Cir.2005). appellate rights. Aronjar- waived his See Generally, ‘a defen- Inda, challenge 422 F.3d at 738. A to the appellate rights,’ dant is allowed to waive of the Guidelines “is not sub im- including involving those the sentence ject in appeal appeal the face of a valid posed.” Aronjor-Inda, States v. United Andis, waiver.” 333 F.3d at 892. Hud- (8th Cir.2005) (quoting 422 F.3d speth challenges ground his sentence on a Andis, United States v. 333 F.3d scope which falls within the of his valid Cir.2003) (8th (en banc)). When we review appellate rights. waiver of The sentence purported appellate rights, waiver of “we statutory not imposed did exceed the maxi appeal must confirm that the falls within mum and Ac challenged illegal. as the of and that scope the waiver both the cordingly, we do not reach those issues. plea agreement waiver and were entered Andis, knowingly voluntarily.” into III. CONCLUSION 889-90. These conditions not- reasons, foregoing For the we affirm the withstanding, “we will not enforce a waiver Hudspeth’s district court’s denial of motion where do so would result a miscar- suppress resulting the evidence from riage justice.” 890. The burden the search and seizure of the business with proof government rests the to show judgment but reverse its plea “that a agreement clearly and unam- there was a valid consent to the search and biguously waives a defendant’s computer. According- seizure of his home appeal.” Id. ly, proceedings we remand for further con- sist opinion. with this government met this burden. change plea At the hearing, Hudspeth RILEY, Judge, concurring Circuit acknowledged signing and understanding dissenting part. plea agreement. terms Hud majority’s I concur with the conclusions speth said he understood the court would regarding the lawful search and seizure of formulating refer to the Guidelines in Hudspeth’s business and its sentence, ultimately, reasonable but that holding regarding I Hudspeth’s sentence. imposed up the sentence would be also concur the majority’s with conclusion district court. admitted the fac Hudspeth’s voluntary consent was tual guilty plea, basis for his including Although and not coerced. I agree with by facts applying used the district court in portions these well-reasoned and articulate Finally, the Guidelines enhancements. majority’s I opinion, disagree with appel district court recited the waiver of majority’s conclusion Mrs. rights late signed plea contained Georgia consent is invalid under v. Ran agreement stating, respect to all “With — U.S. -, dolph, S.Ct. issues, however, you expressly other waive L.Ed.2d 208 your right to appeal your directly sentence collaterally or ground, except First, majority Randolph. misreads imposed sentence in excess of the statuto In Randolph, Supreme “dealt ry maximum or an illegal sentence.” Hud directly with the police reasonableness of speth acknowledged understanding entry reliance on consent one occu- waiver. pant subject to challenge by immediate

933 espoused by majority occu- broader rule the and held an authorized another” here, is consent to a warrantless search the not pant’s Court would have continuous- specific in and limited instance invalid the ly phrase “physically used the present,” ” co-occupant “physically present a where police entry and would have ruled without 1522, objects. (emphasis Id. at 1519 add- a warrant is unreasonable whenever the ed). holding, the Court distin- In so suspect refuses consent to search his resi- Rodriguez, 497 guished Illinois v. U.S. dence, regardless suspect of where the 2793, 177, 110 111 L.Ed.2d 148 S.Ct. may be located at the express time of his Matlock, (1990), and United States refusal. This absentee’s refusal of con- 39 L.Ed.2d U.S. sent, therefore, trump would the consent Randolph, 126 S.Ct. at 1527- See occupants premises. of all other In the held consent Rodriguez, Court Second, if, holds, majority as the Ran- reasonably ap- if person is the sufficient applies “regardless dolph of whether the authority to have common over the pears non-consenting physically co-tenant is Rodriguez, 497 at premises. U.S. residence, at Matlock, present the outside the resi- In the Court held S.Ct. car, or, case, off-site,” dence in a as in co-occupant the consent of a with common our absent, authority against 930-31, an non- supra Randolph necessarily valid Matlock, 415 consenting co-occupant. Matlock, U.S. expressly overturned which it did Randolph 988. The Court Matlock, S.Ct. not. suspect the “was not solely upon the distinguished Matlock present opportunity object, with the objecting occupant at the proximity squad away.” he was in a car [but] not far co-occupant time the consents to the Randolph, 126 S.Ct. at 1527. In Rodri- Randolph, search. 126 S.Ct. at 1527-28. guez, actually in suspect asleep “was expressly The did not Mat- overrule apartment, police might and the have lock, reasoning, accept “Better to the for- roused him a knock with on the door.” Id. distinguishing malism of Matlock from this majority’s interpretation makes the impose requirement, ease than to time- “physically present objecting” lan- consuming in in the court- the field and guage Randolph surplusage. mere room, systemic justifica- apparent with no Third, creating irreconcil- addition concluded, tion.” Id. The Court “This able distinctions between Matlock and straightforward [.Randolph ] case invites Randolph, majority’s holding raises application of the rule that a physically express of con- present public policy encouraging inhabitant’s refusal concerns law a police dispositive sent to search is as to adopt enforcement to a “don’t ask” or an him, regardless of the consent of fellow policy. Nothing “ignorance is bliss” occupant” places requirement no dictates, majority nor Randolph does the po- law enforcement officers to locate “a suggest, required the officers were to tell tentially acting objecting co-tenant before Mrs. her husband refused con- permission they already on the had re- Yet, majority’s holding, sent. under the an authorized ceived” from co-tenant. Mrs. consent would have been added). (emphasis knowledge of valid but for the officers’ Thus, majority’s Hudspeth’s refusal. Randolph apply does not to this case enforcement, holding encourages law custody and was consent, lest seeking bypass suspect physically present at the home when consent, suspect refuse and instead Hudspeth gave her consent. If the co- adopt only seek the consent of an authorized Supreme Court desired *12 occupant, thereby avoiding the knowledge

bar. physically present was not objecting Hudspeth gave when Mrs. voluntary consent; her and non-coerced therefore, Randolph apply. does not Nor Supreme

does other decision apply circuit Court or this and make Mrs. simply consent invalid knew officers earlier had refused consent.

Thus, I dissent. HACKER, Appellant,

Joanne M. BARNHART, Anne B. Jo Commis sioner, Security Social Admin

istration, Appellee.

No. 0541110. United Appeals, States Court of

Eighth Circuit. Submitted: June Filed: Aug.