United States v. Mannion , 54 F. App'x 372 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4426
MICHAEL SCOTT MANNION,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Falcon B. Hawkins, Senior District Judge.
(CR-01-339)
Submitted: November 27, 2002
Decided: December 19, 2002
Before LUTTIG and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
David P. McCann, Charleston, South Carolina, for Appellant. J.
Strom Thurmond, Jr., United States Attorney, Rhett DeHart, Assistant
United States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. MANNION
OPINION
PER CURIAM:
Michael Scott Mannion was indicted for possession of child por-
nography in violation 18 U.S.C. § 2252A(a)(5)(B) (2000). The district
court denied Mannion’s motion to suppress evidence obtained by the
police from his wife and in the execution of a search warrant at his
residence. Mannion then entered a conditional guilty plea to the
offense. See Fed. R. Crim. P. 11(a)(2).
Mannion now appeals the adverse determination of his motion to
suppress arguing that his wife’s transfer of a computer disk containing
images of child pornography to the police constituted an illegal search
and that the warrant did not establish probable cause supported by
oath or affirmation. The Government contends that the transfer of the
computer file was not a search, that the warrant was supported by
probable cause, and that even if it were not, the good faith exception
to the warrant requirement applies. Finding no error, we affirm.
The factual findings underlying a motion to suppress are reviewed
for clear error, while the legal determinations are reviewed de novo.
Ornelas v. United States, 517 U.S. 690, 691 (1996); United States v.
Rusher, 966 F.2d 868, 873 (4th Cir. 1992). When a suppression
motion has been denied, this court reviews the evidence in the light
most favorable to the government. United States v. Seidman, 156 F.3d
542, 547 (4th Cir. 1998).
Mannion argues that when his wife gave the computer disk to
Detective Blanchard and Blanchard took and viewed the disk, it was
a warrantless search and seizure. Mannion also asserts that the police
conduct cannot be justified on the basis of his wife’s consent because
the computer and computer files were his private property and his
wife did not have equal access to the items. Mannion challenged the
admission of evidence from the disk and its use to establish probable
cause for a search warrant, but did not raise this consent issue in the
district court. The failure to preserve a related suppression issue
amounts to waiver under Fed. R. Crim. P. 12(f). United States v. Wil-
son, 115 F.3d 1185, 1190 (4th Cir. 1997) (holding that defendant’s
UNITED STATES v. MANNION 3
argument that the warrant was improperly executed when defective
warrant argued below resulted in waiver under Rule 12).
Nonetheless, there is no evidence in the record that Mannion’s wife
did not have access to the computer. On cross-examination, Blan-
chard testified that as far as she knew, Mannion’s wife had access to
the computer, just as the Defendant did. Defense counsel did not
introduce any evidence to the contrary. In fact, during the course of
the hearing, Blanchard testified that she met with Mannion’s wife in
the bedroom where the computer was kept. Further, the disk was
labeled "grocery list" and had a note about a school project, making
it more likely that the computer was used as a family computer.
Finally, Janet Mannion was able to log onto the computer and view
and download Defendant’s files.
Regardless, Mannion’s wife had authority to give the disk to
Detective Blanchard, as a resident of Mannion’s home. A search with-
out probable cause is valid if consent is voluntarily given. Schnec-
kloth v. Bustamonte, 412 U.S. 218, 219 (1973). By using the family
computer, Mannion assumed the risk that his wife would give such
contraband to police. Consent to search may be given by a person
other than the subject or victim of the search if "the third person
shares with the absent target of the search a common authority over,
general access to, or mutual use of the place or object sought to be
inspected under circumstances that make it reasonable to believe that
the third person has the right to permit the inspection in his own right
and that the absent target has assumed the risk that the third person
may grant this permission to others." United States v. Block, 590 F.2d
535, 539-40 (4th Cir. 1978). Mannion’s reliance on cases where the
third party who gave consent for a search had no relationship or
authority over the property or premises is misplaced and may be dis-
tinguished.
Mannion argues that the involvement of federal officers makes the
application a federal warrant and, therefore, Fed. R. Crim. P. 41
should be complied with, which requires oral statements to be sworn
and recorded. He further argues that, even if compliance with Rule 41
is not required, the Fourth Amendment requires that a warrant be
based upon probable cause supported by oath or affirmation. See
United States v. Clyburn, 24 F.3d 613, 617 (4th Cir. 1994). Without
4 UNITED STATES v. MANNION
Blanchard’s oral statements to Judge Dennis, Mannion contends that
the warrant application was not supported by probable cause because
the use of a confidential informant was not supported by a statement
of the confidential informant’s reliability. See id. at 617.
The suppression hearing transcript establishes that federal officials
were not the driving force behind the application for the warrant and
therefore the warrant obtained from the state court judge did not have
to comply with Fed. R. Crim. P. 41. The test to be applied in deter-
mining whether a warrant must be obtained in compliance with Rule
41 is "whether the warrant application was made ‘at the direction or
urging of a federal officer.’" United States v. Williams, 977 F.2d 866,
870 (4th Cir. 1992) (quoting United States v. Smith, 914 F.2d 565,
569 (4th Cir. 1990)). Here, the only federal involvement seen in the
record related to application for the search warrant is when Detective
Blanchard called FBI Agent McCants for advice about whether to
reveal Mannion’s wife’s name in the warrant affidavit. The case was
not referred for federal prosecution until after the search was over.
Therefore, Fed. R. Crim. P. 41 was not applicable.
The Government argues that, even if the warrant lacked probable
cause, the Leon good faith exception to the warrant requirement
applies. "Under the good faith exception to the warrant requirement,
evidence obtained from an invalidated search warrant will be sup-
pressed only if the officers were dishonest or reckless in preparing
their affidavit or could not have harbored an objectively reasonable
belief in the existence of probable cause." United States v. Lalor, 996
F.2d 1578, 1583 (4th Cir. 1993) (citations omitted). There are four sit-
uations excluded from the good faith exception. These are:
(1) The magistrate judge was misled by information in an
affidavit that the officer knew was false or would have
known was false except for the officer’s reckless disregard
for the truth;
(2) The magistrate wholly abandoned his detached and
neutral judicial role;
(3) The warrant was based on an affidavit that was so
lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable; and
UNITED STATES v. MANNION 5
(4) The warrant was so facially deficient, by failing to par-
ticularize the place to be searched or the things to be seized,
that the executing officers cannot reasonably presume it to
be valid.
United States v. Hyppolite, 65 F.3d 1151, 1156 (4th Cir. 1995).
Assuming without deciding that no probable cause supported the
warrant, we will proceed immediately to a consideration of the offi-
cer’s good faith without determining whether probable cause sup-
ported the warrant. See United States v. Leon, 468 U.S. 897, 925
(1984); United States v. Legg, 18 F.3d 240, 243 (4th Cir. 1994). Even
had the search warrant been invalid due to its reliance on unsworn
oral statements, however, we find that the evidence does not establish
that: Blanchard knowingly presented false information or recklessly
disregarded the truth, the state court judge who issued the warrant was
biased, Blanchard’s affidavit utterly failed to establish probable cause,
or the search warrant was facially insufficient in particularizing the
place to be searched or the items to be seized.
Blanchard’s decision not to reveal the identity of Mannion’s wife
as the confidential informant was based upon a concern for her safety
and was not an attempt to avoid the reliability of her source. Indeed,
the state court judge was fully aware of the informant’s identity and
reliability. Blanchard’s decision to seek a warrant is evidence of her
good faith, as she could have searched Mannion’s house with his
wife’s consent. Consequently, we conclude that Mannion has not
established that his case is beyond the purview of the good faith
exception.
We therefore affirm the denial of the motion to suppress and the
criminal judgment. 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