Appeal from the United States District Court for the Central District of California Otis D. Wright, District Judge, Presiding D.C. No.2:09-cr-00486-ODW-1
The opinion of the court was delivered by: Trott, Circuit Judge:
Argued and Submitted June 7, 2011-Pasadena, California
Before: Robert R. Beezer, Stephen S. Trott, and Pamela Ann Rymer, Circuit Judges.
Opinion by Judge Trott; Dissent by Judge Beezer
Kevin Stanley conditionally pleaded guilty pursuant to Federal Rule of Criminal Procedure 11(a)(2) to one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). As part of his plea, he reserved the right to appeal the denial of his motion to suppress the offending material located during a search of his computer, a search conducted by federal agents led by Agent Michael Prado pursuant to the alleged consent of his one-time friend and now fiancee, Tiana Stockbridge. We have jurisdiction over this timely appeal in accord with 28 U.S.C. § 1291, and we affirm.
The computer on which Stanley kept his collection of child pornography had a complicated history of ownership, custody, and control. During the time Stanley and his girlfriend Tiana Stockbridge lived together before he was imprisoned in 2004 for child molestation, Stockbridge and Stanley jointly owned and used the computer. Each had his and her own directories and folders on the computer which were tied to individual user names, "Kevin" for Stanley and "Tiana" for Stockbridge. Stanley had his material "password-protected" during that time and took steps to hide his cache of child pornography in the computer's subsystems.
We predicate our statement that the computer was jointly owned on the district court's factual finding that Stockbridge was a "co-owner," a finding that necessarily rejected Stan-ley's and Stockbridge's protestations to the contrary. The district court's findings regarding the computer are supported by (1) Stockbridge's earlier statements to Agent Prado and to David Trimm, (2) Trimm's statements to Agent Prado, and (3) Stanley's original statement to Agent Prado that he and Stockbridge jointly owned it. More about this issue in Part IV of this opinion.
When Stanley and Stockbridge ended their relationship in 2004, Stanley moved and took the computer with him. Subsequently, he removed the password-protection from the computer, leaving Stockbridge's files intact.
In 2004, after Stanley was arrested on state child molestation charges, Stockbridge went to Stanley's residence and took possession of the computer, at the behest of Stanley's parents. Stanley acquiesced in her acquisition and possession of it, expecting that he would get it back after serving his prison sentence, presumably with the child pornography intact - which he says caused him to engage in conduct resulting in his conviction of child molestation. Neither Stanley nor his parents placed any restrictions on Stockbridge's use of or access to the computer.
About one and one-half years later, the computer "crashed" and ceased to function, as computers are wont to do. Stock-bridge gave it to a friend to fix, but he failed to do so. Thus, in early 2006, Stockbridge gave it to another friend to repair, one David Trimm. By education and experience Trimm was qualified to take on this task.
As Trimm examined the unprotected contents of the computer, he noticed files on it clearly suggesting child pornogra- phy. This discovery posed serious problems for Trimm because he was on federal probation himself for a drug felony, so he called Stockbridge, advised her of his predicament, and asked her permission to turn the computer over to his probation officer. According to Trimm, she gave him permission to do so, and he did.
Next, U.S. Probation Officer Daniel Vianello called Immigration and Customs Enforcement Special Agent Michael Prado who handles these matters and told him that Trimm, one of his supervisees, had given him a computer hard drive that possibly contained child pornography.
A few days later, Agent Prado met with Trimm, who filled him in on the computer's history and what he believed it contained. Trimm told Agent Prado that Stanley and Stockbridge were joint owners of the device. Agent Prado then took possession of it.
The next day, Agent Prado contacted Stockbridge by telephone. His purpose was to determine - as Trimm had told him - that she was a joint owner of the computer and thus could consent to its search. According to Agent Prado's sworn declaration, Stockbridge confirmed that she "jointly owned" it and consented to its search for illicit material. She said (1) that because of his conviction for child molestation, she was concerned that Stanley was involved in the possession and distribution of child pornography, and (2) that she wished to have it examined to see if there was illegal material on it. She was correct in her assumptions, and the contents of the computer became the basis for Stanley's conditional plea and conviction.
A. The district court denied Stanley's motion to suppress his cache of illicit material. In so ruling, the court implicitly and understandably rejected Stockbridge's declaration prepared for the suppression hearing. In the declaration, she partially contradicted Agent Prado's recitation of their telephone conversation. Now, she could not remember whether or not she consented to the search, but she denied telling Agent Prado that she suspected Stanley of harboring pornography.
Stockbridge's credibility in connection with her declaration was seriously - if not fatally - undermined by her recent engagement to be married to Stanley, his record as a child molester notwithstanding. The circumstance of her engagement was brought to the court's attention both in her declaration and by the prosecution during its argument on the issue of consent. This factor plainly falls into the category of potential witness bias.
The Supreme Court has said that
Bias is a term used in the "common law of evidence" to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his [or her] testimony in favor of or against a party. . . . Proof of bias is almost always relevant because the [factfinder] and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony.
United States v. Abel, 469 U.S. 45, 52 (1984). The Court said also that "[a] successful showing of bias on the part of a witness would have a tendency to make the facts to which he [or she] testified less probable in the eyes of the [factfinder] than it would be without such testimony." Id. at 51.
After a lengthy hearing which included the testimony of Agent Prado and Stanley plus the admission in evidence of Stockbridge's declaration as direct testimony, the court made these findings of fact:
[F]rom all objective indicia, the government was certainly reasonable in concluding that . . . Stockbridge had authority to consent and, in fact, did give consent and that the search was done pursuant to that consent.
The court also held that Stanley had no reasonable expectation of privacy in the computer while for two years it was in Stockbridge's possession and control, and found that she was a "co-possessor, a co-owner, a common user and therefore had the authority to give consent to the search." The factual record sufficiently supports the district court's findings and conclusions.
B. Stanley argues unconvincingly that because his pornographic material was "password-protected" before he went to prison, and that prior to going to prison his files and hers were segregated from each other, Stockbridge did not and could not have had the authority two years later to consent to the search. This argument fails. Among other deficiencies in this argument, when the computer came into Stockbridge's sole pos- session and custody after Stanley went to prison, his material was no longer password-protected, as his attorney conceded during oral argument. Cf. Trulock v. Freeh, 275 F.3d 391, 403 (4th Cir. 2001) (although a third party may have had authority to consent to a general search of a jointly-used computer, that authority did not extend to another user's password-protected files).
Moreover, at the time she consented to the search, Stock-bridge had had total and unfettered control of the unprotected computer for all purposes for two uninterrupted years during Stanley's time in prison, as demonstrated by her statements to Agent Prado and her delivery of it to two different friends for repair. Stanley's own testimony confirms this arrangement:
Q. (to Stanley) And with respect to the computer that both you and Ms. Stockbridge used, did you at times allow Ms. Stockbridge to access files in your portion of the computer?
Q. And was your portion of the computer password protected?
A. Earlier on it was but not at the time.
A. The time when I moved to Porterville, California.
Q. So even though you placed your trust in Ms. Stockbridge, she could have accessed your files ...