Child pornography landed lawfully in police hands

United States v. Stephen, 2021 WL 18456 (8^th Cir. 2021)

Gregory Stephen’s friend and former brother-in-law, Vaughn Ellison, was remodeling one of Stephen’s houses. While using the bathroom, Ellison noticed a USB drive on the toilet tank. Because he had recently researched hidden recording devices following a break-in, Ellison recognized the USB as a hidden camera. Curious and concerned as to why there was a hidden camera in the bathroom—and what it had recorded—Ellison took the USB home but did not view its contents.

The next morning, Ellison returned to Stephen’s home and found a young boy asleep in the bedroom next to the bathroom where Ellison had found the USB. Stephen, a youth basketball coach, arrived shortly after with another boy. He told Ellison he was taking them both to a basketball game. After returning home, Ellison viewed the USB’s contents, finding at least 50 videos depicting children secretly recorded in various stages of undress.

Ellison took the USB to the police. Investigators obtained a warrant and viewed its contents. They then obtained search warrants for Stephen’s homes, where they found more secret recording devices and a hard drive containing approximately 400 visual depictions of nude minor boys, including images of Stephen molesting unconscious victims. Stephen unsuccessfully asked the trial court to suppress the evidence. The court sentenced Stephen to 180 years in federal prison. Stephen appealed both the denial of the motion to suppress the USB (and the evidence that resulted from discovery of its contents) and the somewhat lengthy 2,160-month sentence.

The Fourth Amendment prohibits unreasonable searches and seizures by the government. Stephen claimed Ellison was acting as a government agent because, after viewing the contents, he intended to assist the police. The appellate court observed that whether Ellison was a government agent “necessarily turns on the degree of the Government’s participation in the private party’s activities.”

The government had no participation in Ellison’s seizure of the USB or his viewing of its contents. That he intended to help law enforcement was laudable, but it didn’t transform him into a government agent. Moreover, Ellison took the USB and viewed it out of curiosity. Even after he discovered its contents, Ellison “really didn’t know what to do with the USB.” He decided to take it to the police only after talking it over with his girlfriend.

Stephen also claimed the police improperly seized the USB. The appellate court sidestepped the question of whether the police actually seized the USB Ellison had taken and voluntarily surrendered to them. The court held the police had probable cause to seize the USB from Ellison based on the information that it held child pornography. Once the police had the USB, they waited to search it until after obtaining a search warrant. “Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant,” the Fourth Amendment “permits seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present” (United States v. Place, 462 U.S. 696 (1983)).

The appellate court was equally unimpressed by Stephen’s argument that the lengthy sentence did not reflect his life’s accomplishments and his guilty plea. “Stephen grossly downplays the seriousness and magnitude of his offense. The district court found that Stephen had committed ‘a horrendous offense’ by sexually exploiting more than 400 children over nearly two decades. And the district court emphasized that the harm to the children was ‘incalculable and profound’ and radiated to their families. Further, the district court acknowledged that Stephen’s use of his position as a youth basketball coach to carry out his offense made it even more sinister.” Thus, 180 years in prison was just fine.