Submitted: January 15, 2016
Appeal from United States District Court for the Southern District of Iowa - Des Moines
Before MURPHY, SMITH, and BENTON, Circuit Judges.
David Paul Makeeff conditionally pleaded guilty pursuant to a written plea agreement to possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2), preserving his right to appeal the district court's denial of his motion to suppress evidence. On appeal, he argues that the seizure of a Universal Serial Bus (USB) drive during a court-authorized, supervised-release search of his residence by federal probation officers violated his Fourth Amendment rights. Additionally, he argues that the probation officers lacked authority to examine the contents of the USB drive, thereby engaging in an impermissible search under the Fourth Amendment. We affirm the district court's denial of Makeeff's motion to suppress evidence.
In 2005, Makeeff was convicted in federal court of possessing 1, 500 images of child pornography; he was sentenced in 2006 to 41 months' imprisonment and 10 years of supervised release. As part of his supervised release, the district court ordered Makeeff "not [to] commit another federal, state or local crime" and "not [to] unlawfully possess a controlled substance." The court also ordered Makeeff to "answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer" and to "permit a probation officer to visit him . . . at any time at home or elsewhere and [to] permit confiscation of any contraband observed in plain view of the probation officer." Additional supervised-release terms specific to Makeeff included the requirement that he "participate in and follow the rules of sex offender treatment as directed by the Probation Office." And, he was ordered to "not view or possess any form of pornography" and to "not have access to or possess a computer at home or elsewhere without the prior approval of the U.S. Probation Office."
On August 5, 2013, the court modified Makeeff's supervised release because of Makeeff's failure to follow multiple conditions of that release. Makeeff "admitted to drinking alcohol, abusing his Wellbutrin, using drugs, and viewing pornography. Moreover, [he] admitted [that] he had lied to his heart doctor in order to get a medical waiver preventing him from taking polygraphs." Specifically, Makeeff admitted that, during the prior six months, he had used methamphetamine, marijuana, and synthetic marijuana. He confessed to drinking alcohol throughout his entire supervised-release term and hiding it in his house so that the probation officers would not see it during home visits. He "disclosed [that] he ha[d] periodically viewed pornography on his wife's computer, " but he stated that he was "'relatively sure' [that] it was all adult pornography." Makeeff agreed to certain modifications of his supervised-release conditions. Most notably, he agreed to submit to reasonable searches by a probation officer "based upon reasonable suspicion of contraband or evidence of a violation of a condition of release."
On May 2, 2014, two probation officers conducted an unannounced home visit at Makeeff's residence. One of the probation officers had received a tip that Makeeff bragged about using a computer and possessing child pornography while on supervision. Makeeff and his wife were present at the time that the probation officers conducted the visit. The probation officers observed a black USB drive sitting on a table in plain view upon entering a spare bedroom of the residence. Makeeff initially denied ownership of the USB drive and stated that he had no knowledge as to the USB drive's contents. Makeeff told the probation officers that the USB drive belonged to his wife; however, his wife denied ownership of it. Both Makeeff and his wife gave the probation officers consent to look at the contents of the USB drive, though at some unknown point this consent was withdrawn. But at no point did Makeeff or his wife tell the probation officers that they owned or had an interest in the USB drive. Before the probation officers viewed the USB drive's contents, Makeeff warned them that the USB drive contained a virus. When the probation officers questioned Makeeff regarding his knowledge of the virus on the USB drive, he refused to answer.
Shortly after the probation officers left Makeeff's residence, they received a call from Makeeff. Makeeff admitted to using the computer, using the internet, and viewing adult pornography. He also claimed that the USB drive contained a virus that put child pornography images onto the device. That same day, after receiving Makeeff's call, one of the probation officers viewed the contents of the USB drive and confirmed that it contained child pornography. The probation office immediately filed a petition to revoke Makeeff's supervised release.
On May 3, 2014, Makeeff contacted his probation officer via text message, writing, in part:
I gues i shld hve started at the beginning yesterday, but i was just so rattled by the unfortuitous chain of events. It did start whn i convinced Julie we needed sme porn 2 spice up our sex life. So we looked around and we downloaded frm a couple of diffrnt sites. Two days later we get an email frm a Consantine Fitsepeya, claimng 2 b with the Russian police. He said that what we downloaded was actually child porn, and unles we paid him 5000, he would send our file 2 us authorities, I argued with him that it wsnt, he said take a closer look, so I did.
(Grammatical and spelling errors in original.)
The probation officer contacted a special agent with the Department of Homeland Security, Homeland Security Investigations, who obtained a search warrant for the USB drive. A forensic examination of the USB drive showed that it contained approximately 3, 002 images and 10 videos depicting child pornography. The forensic analysis concluded that ...