Filed: Jan. 13, 2021
Latest Update: Jan. 14, 2021
United States Court of Appeals
For the First Circuit
No. 19-1983
UNITED STATES OF AMERICA,
Appellee,
v.
RYAN MUMME,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, Chief U.S. District Judge]
Before
Lynch and Barron, Circuit Judges,
and Burroughs,* District Judge.
Mary E. Davis, by appointment of the Court, with whom Davis
& Davis was on brief, for appellant.
Benjamin M. Block, Assistant United States Attorney, with
whom Halsey B. Frank, United States Attorney, was on brief, for
appellee.
January 13, 2021
* Of the District of Massachusetts, sitting by designation.
LYNCH, Circuit Judge. Ryan Mumme ("Mumme") was
convicted of possession of child pornography in violation of 18
U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2), and 2256(8)(A), and was
sentenced to ninety-six months' imprisonment to be followed by
lifetime supervised release. He appeals the district court's
denial of his motion to suppress statements made to investigating
officers at his home and the evidence derived from the consensual
seizure of his computer. He argues that the officers
unconstitutionally coerced his consent to the seizure of his
computer and questioned him within the curtilage of his home. He
also appeals the denial of his renewed motion to withdraw his
guilty plea, arguing that the district court erroneously failed to
hold an evidentiary hearing on his claim of ineffective assistance
of counsel. Finding no error, we affirm.
I. Background
A. Facts
In March 2015, agents from Homeland Security
Investigations ("HSI") informed Maine State Police Detective
Christopher Tupper ("Det. Tupper") that they had evidence showing
that Mumme had wired more than $16,000 to accounts in the
Philippines and Russia from November 2010 to March 2015, including
at least one payment to an individual in the Philippines suspected
of producing child pornography. Electronic payment records showed
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that Mumme used the email address "dexter.rick@yahoo.com" to make
these payments on all but one occasion.
On August 31, 2015, Det. Tupper, HSI Special Agent
Gregory Kelly ("Agent Kelly"), and HSI Special Agent Chase Ossinger
("Agent Ossinger") traveled to Mumme's home in Eastport, Maine, to
try to interview him about these suspicious transactions.1 The
officers drove two unmarked cars and wore plain clothes. Det.
Tupper wore a recording device that remained on throughout the
ensuing encounter.
Mumme's home is located at the corner of a paved road
and a dirt road. The paved road runs along one side of the home
and the home is located directly next to the paved road. There
are other homes also located along that road. The dirt road comes
off the paved road and ends in a dead-end in a grassy field past
Mumme's home. The home is set back a short distance off the dirt
road and the front door is located on the dirt-road side of the
home. Trees and bushes surround the home on several sides,
including along the dirt road, directly behind the house, and on
the side of the house where the field is located. The field is
situated beyond the trees and bushes directly next to the house.
Across the dirt road from Mumme's home is another residence which
1 They were accompanied by a civilian computer forensics
analyst with the Maine State Police, who remained in Det. Tupper's
vehicle and did not participate in any of the questioning.
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is not surrounded by any trees or foliage. The grassy field at
the end of the dirt road is also surrounded by a denser growth of
trees and foliage on several sides. Although there is no evidence
that the field would be visible from several sides because of the
surrounding trees and Mumme's home, the field is completely visible
from the end of the dirt road, and it is also visible from at least
some portion of the paved road that runs past Mumme's home as well
as from the adjacent property. There was no fence surrounding
that side of the field or any other enclosure on the property that
would have shielded the field from public view, nor were there any
signs posted against trespassing. There was no fence around the
property and there was no impediment to public access to the dirt
road, which the officers believed to be a public road.2
The officers parked along the side of the dirt road near
a recreational vehicle ("RV") which was parked on the lawn next to
Mumme's house. Beyond where the RV was parked was the end of the
dirt road and the field. Det. Tupper walked on a path through the
bushes to the front door and knocked, but no one answered. A man
then approached the officers from the direction of the RV. He
identified himself as Chris Mumme and told them he was the father
of Ryan Mumme, the defendant here. Mumme's father further
identified himself as a former law enforcement officer and tried
2 There is no evidence establishing that the dirt road was
private property owned by Mumme or his father.
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to get the officers to leave without speaking to his son. He also
told the officers that he owned the property.
While the officers were speaking with Mumme's father,
Mumme drove past them on the dirt road and parked in the field
about twenty yards beyond the house and the RV. Det. Tupper told
Mumme's father that they wanted to speak with Mumme and that they
had information that Mumme had purchased child pornography.
Mumme's father tried to convince the officers to allow him to go
speak to Mumme first to "see what he knows" because he wanted "to
make sure that [Mumme] is not going to get into trouble." He also
offered to contact the officers later. Det. Tupper told Mumme's
father that Mumme is "an adult, you can't invoke his rights . . .
and we can just go around you." Det. Tupper also stated that they
had driven all the way from Bangor and were going to talk to Mumme.
He said "[w]e're trying to do this low key . . . and professional."
Mumme's father stated "he's not going to incriminate himself that's
for damn sure you know that" and "if you have information I'd like
to see it or he'd like to see it." Det. Tupper responded "[a]t
this point, I'm going to ask you not to hinder our investigation
and I'm gonna go talk to Ryan." As Det. Tupper walked past Mumme's
father towards the defendant, he yelled back over his shoulder,
"[d]on't hinder."
Agents Kelly and Ossinger remained with Mumme's father.
At some point, Mumme's father told the agents that they needed a
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warrant to be standing where they were. The agents responded that
they were standing on a public road where they had a right to be
as much as any other private individual who could access the road.
The agents believed that the dirt road was public because it was
accessible from multiple properties, and Mumme's father did not
assert that he owned the dirt road or tell the officers that they
were trespassing or to get off his property. The agents never
physically restrained Mumme's father, nor did they raise their
voices to him or attempt to intimidate him. Indeed, Mumme's father
was allowed to go in and out of the RV several times while Mumme
was being questioned. Mumme's father never yelled to or attempted
to go over and speak with Mumme while the officers were talking to
Mumme.
After walking past the father, Det. Tupper approached
Mumme, who was standing near the back of his truck in the grassy
field. Det. Tupper stood several feet away from Mumme while they
spoke. Det. Tupper informed Mumme that the officers had evidence
that Mumme had sent money to a person in the Philippines who
trafficked in live sex shows involving children. Mumme admitted
to having paid for live sex videos but denied that the videos
involved children. He also admitted to having seen child
pornography online. He stated that, about a month or two before,
a pixelated image of an approximately thirteen-year-old girl
performing oral sex on an older man popped up on his computer while
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he was searching for other pornography. Agent Kelly then joined
the conversation, leaving Agent Ossinger with Mumme's father.
Mumme confirmed that his father owned the property but that he was
the only full-time resident of the home because his parents lived
in Florida for most of the year. Neither Det. Tupper nor Agent
Kelly ever informed Mumme that he was free to leave the
conversation, and Mumme never asserted they were standing on his
private property, told them they were trespassing, or asked them
to leave the property.
Mumme admitted to using the email address
"dexter.rick@yahoo.com" for the past five or six years to send
monthly payments of approximately $100 to a woman in the
Philippines for live sex videos. He denied having any child
pornography on his computer or saved to an external hard drive.
The officers told Mumme that they had a civilian analyst who could
search his computer to make sure there was no child pornography on
it. Mumme declined to allow the officers to search through his
electronic devices, stating several times that he did not want his
privacy invaded. Det. Tupper then explained to Mumme that he had
two options because he refused to consent to a search of the
devices:
I can seize your house and apply for a search
warrant or you can turn your devices over to
me and I can apply for a search warrant to
search your devices. And . . . either way
that you go I'm gonna have to do a search
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warrant at this point or apply for one. . . .
So we can camp out in your driveway or you can
turn your devices over and I can apply for a
warrant, if I don't get it I will return your
devices. But at this point I can't . . . go
ahead and look at it. I have to do one or the
other. I have to either seize your whole house
or just your electronics, but I can't look at
them without a warrant at this point cause you
told me no.
After Mumme asked what seizing and securing the house
would entail, Det. Tupper explained:
I have to . . . go see a judge, is what it
entails. . . . [O]r you could turn over your
computer and I still have to go see a judge
but I go see that judge tomorrow and not today.
And I don't go thr[ough] your entire house.
But either way I can't look at that computer
without a warrant so it all depends on how you
. . . want me to actually take physical
possession of the device. And that's your
call. But at this point, we know that there's
child pornography on that computer even if
it's one image. And if it's one image that's
pixilated [sic] I'm not overly concerned with
that and I don't even know if that's
chargeable. . . . [W]e know that there's an
awful lot of money that has gone to th[e]
Philippines, we know one of the people that
you sent [money to] trafficks live
children . . . . So, the choice is yours. If
you want to turn your device over I can apply
for a search warrant if I don't get it, I bring
it back to you untouched. . . . Or I can get
somebody to keep anybody from going in the
house, and go see a judge right now, it's your
call. . . . And if you want to explain
anything, if you want to talk about anything,
I'm here, but I'm not gonna force ya.
(Emphasis added.)
Mumme stated that "I should probably get a lawyer at
this point," and Det. Tupper responded "[t]hat's your call" and it
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"[m]akes no difference to me." Mumme repeated that he would "have
to contact a lawyer." Det. Tupper stated "so am I securing your
house for today" and Mumme replied "I guess you're gonna have to."
Mumme then asked whether "[t]hat means I can't go in and make a
phone call," to which Det. Tupper responded "[n]ope." Mumme never
stated that the reason he needed to go in the house to use the
phone was to call an attorney. Det. Tupper did not tell Mumme
that he could not contact his lawyer or use a cell phone or some
other telephone to make a phone call, but just that he could not
go into the house. Det. Tupper testified at the suppression
hearing that he would not allow Mumme back into the house because
he was concerned about officer safety and that Mumme might try to
destroy evidence.
After telling Mumme he could not go back into the house,
Det. Tupper asked if there was anyone else in the house and
explained that he was going to make arrangements for other officers
to come secure the home. At that point, Mumme said "[y]ou know
what never mind[,] [g]o ahead and go get the computer." He then
allowed the officers into the home to seize his computer and hard
drive. After gathering those devices, Det. Tupper reiterated that
"I'm going to seize these today, apply for a search warrant
tomorrow, if it's rejected, you get the stuff back . . . untouched"
and "if it's not rejected . . . then we're gonna process them and
if there's nothing on them, you get 'em back." He also stated
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that "[i]f there's child pornography on it, we'll give you the
opportunity to explain it, put it in the proper context, and we'll
go from there." The officers and Mumme went back to the officers'
vehicles so that Det. Tupper could give Mumme an evidence inventory
sheet reflecting the items that had been seized.
Det. Tupper then informed Mumme of his Fifth Amendment
rights, stating that "I want to make sure that you understand you
have the right to an attorney, that you do not have to talk to
me[,] . . . [and] that if you do talk to me, you know it can be
used against you."3 Mumme asked if he was being arrested, and Det.
Tupper responded "[n]o[,] I am not arresting you today . . . [but]
I just want you to be aware of your rights . . . [c]ause I don't
want to violate them, that's why I'm going to get a search warrant
for these devices." He told Mumme that "[i]f you wanna clarify
something or explain something, I will listen," to which Mumme
responded "[n]o, I guess I'll keep my mouth shut." Det. Tupper
then told Mumme that he "didn't mean to scare [Mumme] but . . . at
the end of the day those devices will speak for themselves . . .
[a]nd what's on them will speak for themselves."
Shortly thereafter, Mumme told the officers that they
would find child pornography on the devices and explained to them
3 The officers did not provide Mumme with a full Miranda
warning at any point. See Miranda v. Arizona, 384 U.S. 436, 444-
45, 467-74 (1966).
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how he had obtained the videos. He also admitted that the youngest
child depicted on his computer was around six years old. At one
point during this exchange, Det. Tupper said "you're scared
shitless right now," to which Mumme responded "[a] little bit."
Det. Tupper reiterated that he was going to apply for a search
warrant and noted that there was "a low probability" that he would
be rejected, "but that's going to be up to the judge."
The officers never frisked or restrained Mumme during
the interview or told him that he was not free to leave. Nor did
they yell or curse at Mumme or otherwise threaten or intimidate
him. The officers calmly gave Mumme a straightforward explanation
of what they intended to do and made no misrepresentations to him
as to their authority to obtain a warrant. Although the officers
were all armed, the only visible firearm was Det. Tupper's
holstered gun, which was never removed from its holster.
Det. Tupper included Mumme's confession in his
application for a search warrant for the electronic devices, which
the Maine state district court granted. The search of the laptop
computer revealed approximately sixteen images and thirty videos
of child pornography.
B. Procedural History
In December 2017, Mumme was indicted on one count of
possession of child pornography. In February 2018, Mumme filed a
motion to suppress the statements made to the officers and the
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evidence derived from the seizure and search of his devices. Mumme
argued that: (1) the officers' threat to seize his home and to
obtain a search warrant rendered his consent to enter his home and
to seize his electronic devices involuntary; (2) the officers
lacked probable cause to obtain a search warrant; (3) the officers
engaged in an impermissible warrantless search when they
trespassed onto private property to interrogate him; and (4) he
was in custody throughout the entire interaction and so should
have been provided a Miranda warning at the outset of the
interrogation.
The district court held a hearing on the motion to
suppress in May 2018, at which all three officers testified and
the government submitted the audio recording and transcript of the
conversation with Mumme, an aerial photograph of the property, and
the search warrant. Neither Mumme nor his father testified at the
hearing. The court issued an order denying the motion in June
2018. United States v. Mumme, No. 1:17-cr-00171-NT, 2018 WL
2729200, at *1 (D. Me. June 6, 2018).
As to the voluntariness issue, the district court held
that, under the totality of the circumstances, Mumme's consent to
enter the home and to seize his electronic devices was voluntary.
Id. at *3-5. The court concluded that the officers' statements
that they would secure the home and seek a search warrant unless
Mumme consented to the seizure of his devices did not vitiate his
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otherwise voluntary consent. Id. at *3-4. The court explained
that "the officers never told Mr. Mumme that they would, with any
certainty, obtain a warrant . . . [but] [r]ather, Det. Tupper
stated more than once that a judge could reject his warrant
application, in which case Mr. Mumme's devices would be returned
to him untouched."
Id. at *4.
So the "purported threats . . .
lacked the potentially coercive force of a representation that he
had a warrant in hand or could definitely secure one."
Id.
Furthermore, the court determined that the officers "ha[d] a
reasonable belief that a warrant would issue" and they "could
reasonably assume that the image [of child pornography Mumme
admitted he had viewed in the past couple of months], when taken
together with the evidence of Mr. Mumme's unusual history of
payments to the Philippines, including one to a suspected producer
of child pornography, constituted probable cause sufficient to
obtain a warrant to search Mr. Mumme's computer."
Id. The court
also concluded that the officers had the lawful authority to secure
Mumme's home while they applied for a search warrant and the
"choice between th[e] two lawful options" of either consenting or
the officers securing the home while they sought a warrant did not
render Mumme's consent involuntary.
Id. at *4 n.3.
The district court also found that none of the other
circumstances of the interview indicated that Mumme's consent was
coerced. Mumme was "a 46-year-old man who evidenced his awareness
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that he could refuse to consent to the officers' requests by doing
so at least once" and he "was questioned in a conversational
fashion in his own backyard by two officers in civilian clothes
who did not touch or menace him in any way." Id. at *4.
The court
noted that "the recording of the events gives no indication that
Mr. Mumme was overwhelmed or otherwise incapable of offering valid
consent at the time that he consented."
Id. The court rejected
Mumme's assertion that he was coerced by virtue of the officers'
interactions with his father, who, the court found, was never
physically restrained or otherwise intimidated.
Id. Finally, the
court rejected Mumme's argument that he was coerced into consenting
because the officers refused to allow him into the house to call
a lawyer, finding that securing the home was a lawful step and
Mumme "was never told that he could not use a cell phone or leave
the premises to place a call to his lawyer."
Id. at *5.
As to the trespass argument, the district court noted
that Mumme's attorney had conceded at the motion hearing that the
conversation with Det. Tupper and Agent Kelly did not take place
within the curtilage of the home. Id. Based on that concession,
the district court concluded that "any 'trespass' did not give
rise to an impermissible search for purposes of the Fourth
Amendment" "[b]ecause the claimed intrusion did not reach into a
constitutionally protected area."
Id.
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Lastly, the district court held that Mumme was not in
custody for purposes of Miranda, and so the failure to apprise him
of his rights prior to questioning did not implicate his Fifth
Amendment rights.
Id. at *6. The court found that "[t]he officers
were dressed in civilian clothes," "only Det. Tupper carried an
exposed weapon," "Mumme was never physically restrained," "the
officers never drew their weapons or otherwise threatened or
attempted to intimidate him," and while "[t]he officers did not
inform Mr. Mumme that he was free to leave, . . . they also never
told him he could not do so."
Id.
Mumme entered a conditional plea of guilty in June 2018,
subject to his ability to appeal the denial of the motion to
suppress. Because Mumme also challenges the denial of his motion
to withdraw his plea, we describe the underlying facts.
In December 2018, Mumme filed a motion to withdraw the
guilty plea because of ineffective assistance of counsel,
asserting that his former attorney failed to present certain
arguments or call witnesses at the suppression hearing. A hearing
on the motion was held in February 2019. In the course of preparing
for the hearing, Mumme's new attorney realized that Mumme was
really just trying to relitigate the failed suppression motion.
Mumme's attorney explained to him that he could still challenge
the suppression order on appeal and challenge the effectiveness of
his first attorney through a habeas petition. On the advice of
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his new counsel, Mumme agreed to withdraw the motion at the
hearing.
In April 2019, Mumme filed, through counsel, a renewed
motion to withdraw his guilty plea against the advice of his
attorney. He argued, among other things, that his first attorney
was ineffective and failed to properly develop and argue the law
relating to trespass and curtilage. In the renewed motion, Mumme's
then-attorney reiterated that "[i]t is clear that Defendant's main
concern is that he does not believe his strongest arguments for
suppression were adequately raised or raised at all."4
In May 2019, the district court denied the renewed motion
without a hearing. It stated that "the Defendant's motion is
predicated entirely on his belief that if his plea is withdrawn,
I will permit him to reopen and relitigate his motion to suppress,"
which the court stated was "mistaken." The court said that there
were no grounds for relitigating that motion and that it would
have found the officers were not within the curtilage during their
conversation with Mumme even without defense counsel's concession
at the suppression hearing. The court determined that the
4 Also in the renewed motion, Mumme's then-attorney
indicated his intent to file a motion to withdraw as defense
counsel because of Mumme's insistence on pursuing the motion to
withdraw his guilty plea against the advice of counsel. Mumme's
attorney eventually did file a motion to withdraw as defense
counsel for that reason, and the district court allowed that motion
and appointed Mumme a new attorney for the sentencing hearing.
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defendant could pursue relief either through direct appeal of the
suppression order or through a habeas petition.
In September 2019, Mumme was sentenced to ninety-six
months' imprisonment to be followed by lifetime supervision. He
timely appealed.
II. Denial of Motion to Suppress
Mumme first challenges the denial of the motion to
suppress. In reviewing the denial of a motion to suppress, we
review the district court's findings of fact for clear error and
conclusions of law de novo. United States v. Graf, 784 F.3d 1, 6
(1st Cir. 2015). "To prevail, [a defendant] must show that no
reasonable view of the evidence supports the denial of the motion
to suppress."
Id. (alteration in original) (quoting United States
v. Belton,
520 F.3d 80, 82 (1st Cir. 2008)).
Mumme makes two primary arguments on appeal with respect
to suppression: (1) his consent to allow the officers to enter his
home to seize his electronic devices without a warrant was not
voluntary, particularly in light of the officers' threat to obtain
a warrant and not to allow him back into his home until they did
so; and (2) the officers unconstitutionally intruded onto the
curtilage of the home to question him, which rendered his consent
involuntary.5 We address each argument in turn.
5 Mumme does not argue on appeal that the officers lacked
probable cause to obtain a search warrant for his electronic
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A. The Defendant's Consent to Enter His Home and to Seize His
Electronic Devices Was Voluntary
"Valid consent renders a warrantless search
constitutionally permissible . . . ." United States v. Perez-
Montañez, 202 F.3d 434, 438 (1st Cir. 2000). "[W]hile consent
must be voluntary to be valid, there is no requirement that the
person who gave consent must have been explicitly advised of the
right to withhold it."
Id. (citing Schneckloth v. Bustamonte,
412
U.S. 218, 234 (1973)). The burden is on the government "to
establish, by a preponderance of the evidence, that consent was
'freely and voluntarily given;' there must be more than mere
acquiescence in the face of an unfounded claim of present lawful
authority."
Id. (quoting Bumper v. North Carolina,
391 U.S. 543,
548 (1968)).
The court must assess the totality of the circumstances
in assessing the voluntariness of the defendant's consent.
Schneckloth, 412 U.S. at 248-49;
Perez-Montañez, 202 F.3d at 438.
devices, nor does he challenge the district court's determination
that he was not in custody during his interview and so was not
subject to the Miranda requirements. See
Miranda, 384 U.S. at
467-74. Those arguments are thus waived. See Vázquez-Rivera v.
Figueroa,
759 F.3d 44, 47 & n.1 (1st Cir. 2014) (holding that
challenges not presented or developed in the party's brief are
"deemed waived by the total absence of argument"); United States
v. Dávila-Félix,
667 F.3d 47, 51 n.5 (1st Cir. 2011) (holding that
an argument not made in the defendant's opening brief was waived);
Rodríguez v. Municipality of San Juan,
659 F.3d 168, 175 (1st Cir.
2011) ("[W]e deem waived claims not made or claims adverted to in
a cursory fashion, unaccompanied by developed argument.").
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Factors that courts consider in determining whether consent was
voluntarily given include: the defendant's age, demeanor,
intelligence, education, experience, "knowledge of the right to
refuse consent," and "possibly vulnerable subjective state," as
well as "evidence of inherently coercive tactics, either in the
nature of police questioning or in the environment in which the
questioning took place." United States v. Twomey, 884 F.2d 46, 51
(1st Cir. 1989); see also United States v. Hinkley,
803 F.3d 85,
91 (1st Cir. 2015); United States v. Barnett,
989 F.2d 546, 555
(1st Cir. 1993). Ultimately, the question of the voluntariness of
consent is a factual matter that we review for clear error. United
States v. Weidul,
325 F.3d 50, 53 (1st Cir. 2003); United States
v. Rodriguez Perez,
625 F.2d 1021, 1024 (1st Cir. 1980).
The district court correctly applied the multi-part
legal analysis and did not commit error, much less clear error, in
its factual finding that Det. Tupper's statement to Mumme that he
would seek a search warrant did not vitiate Mumme's consent to
enter his home and to seize his electronic devices. "[C]onsent to
a search is not invalid merely because it is secured by an
officer's accurate assurance that there will soon be a lawful
search anyway," and while "the law rejects consent secured by
knowingly false representations . . . [,] at the same time [it]
see[s] no reason to deter officers from securing convenient and
prompt consensual access by conveying accurate information to a
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recipient." United States v. Vázquez, 724 F.3d 15, 22 (1st Cir.
2013) (collecting cases); see also United States v. Lee,
317 F.3d
26, 33 (1st Cir. 2003) (holding that police officers' statement
that they would secure a warrant unless the defendant consented to
a search, where "the facts were sufficient to support the issuance
of a search warrant, d[id] not constitute coercion"); United States
v. Miller,
589 F.2d 1117, 1132 n.13 (1st Cir. 1978) ("Nor did [the
officer's] assertion that he would seek a warrant if appellant did
not consent make consent involuntary. 'Bowing to events, even if
one is not happy about them, is not the same thing as being
coerced.'" (quoting Robbins v. MacKenzie, 364 F.2d 45, 50 (1st
Cir.), cert. denied,
385 U.S. 913 (1966))).
Det. Tupper and Agent Kelly made no misrepresentations
to Mumme about already having a warrant to search the home or to
seize his devices, nor did they tell him that they would, for
certain, obtain a search warrant. Rather, they told him that they
would apply for a warrant if he did not consent, and that a judge
could reject the warrant application. See Perez-Montañez, 202
F.3d at 438-39 ("Nor is there anything false or unduly coercive
about a statement of an intention to seek other means to obtain
access to property[,] . . . [particularly where the other means]
would have been a search warrant, which on any fair view of the
evidence would have been amply supported by probable cause.");
Twomey, 884 F.2d at 51-52 (determining that the officers'
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statements "that they did not in fact have a search warrant and
could be required to obtain one" weighed against a finding that
consent was coerced). They also told Mumme that if he did consent
to the seizure of his electronic devices, and a judge ultimately
rejected a search warrant for those devices, the officers would
return the devices to him "untouched."
Mumme does not contest on appeal that the officers had
probable cause to seize the electronic devices and to enter the
home to effect that seizure. The district court did not clearly
err in finding that the officers reasonably believed that they had
probable cause to secure a search warrant for the devices based on
the evidence known to them at the time they stated they would seek
a search warrant, including the evidence of Mumme's payments to a
woman in the Philippines suspected of producing child pornography
and his admission that he had viewed at least one image of child
pornography on his computer in the last two months. See Vázquez,
724 F.3d at 19 (holding that an officer's claim that a search will
ensue unless consent is given must be "based on a reasonable
assessment of the facts under the applicable law"); United States
v. Marshall,
348 F.3d 281, 286 (1st Cir. 2003) (holding that "the
fact that the officers told [the defendant's roommate] that they
were going to search the apartment regardless of whether she
consented because they intended to get a warrant [was] not
inherently coercive . . . [because] [p]robable cause had been
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established and the officers had a good faith belief that a warrant
would issue"). The officers simply conveyed to Mumme accurate
information based on their reasonable belief regarding their
lawful authority. Under these circumstances, the officers'
statements of their intent to obtain a search warrant did not
render Mumme's consent involuntary.
Moreover, the district court did not commit clear error
in finding that the officers' statements of their intent to secure
the home while they applied for a search warrant did not render
his consent involuntary. Nor did the district court commit clear
error in finding that the officers' refusal to allow Mumme to go
into the house to make a phone call did not vitiate his consent.
Indeed, the Supreme Court has held that, where officers have
probable cause, they may temporarily secure an individual's home
and prevent unaccompanied reentry into the home during the brief
period of time necessary to secure a search warrant. Illinois v.
McArthur, 531 U.S. 326, 331-33 (2001) (holding that such a seizure
is reasonable under the Fourth Amendment because it is limited in
time and scope and justified by the important law enforcement
interest in preventing the destruction of evidence during the time
necessary to secure a warrant); see also United States v. Pérez-
Díaz,
848 F.3d 33, 40-41 (1st Cir. 2017) (holding that the
officers' temporary seizure of the defendant's apartment was
justified under McArthur because they had probable cause to believe
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that he possessed child pornography, they had a reasonable belief
that he would destroy evidence of the child pornography on the
laptop if they did not secure the home while they applied for a
search warrant, the scope of the intrusion was minimal since they
did not actually search the home while waiting for the warrant but
rather only stood inside it, and the duration of the seizure was
limited to the time necessary to secure the warrant, which was
only a few hours).
Mumme does not contest that the officers had probable
cause when they told him that they would secure his home and seek
a warrant. The scope and duration of the seizure also likely would
have been limited. The officers told Mumme that they were going
to secure the home from the outside by "camp[ing] out in [his]
driveway," which was no more intrusive than the seizures approved
in McArthur and Pérez-Díaz. See McArthur, 531 U.S. at 335-36
(holding that permitting reentry conditioned on observation by the
police officer from inside the doorway of the home was a reasonable
restriction);
Pérez-Díaz, 848 F.3d at 40-41 (holding that securing
the apartment by standing inside until a search warrant was
obtained was reasonable). In response to Mumme's question
regarding what securing the house would entail, Det. Tupper told
him that they "can get somebody to keep anybody from going in the
house, and go see a judge right now" or "[Mumme] could turn over
[the] computer and [the officers] still [would] have to go see a
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judge but [they would] go see that judge tomorrow and not today."
These statements that the officers intended to seek a warrant that
day, if he did not consent to turn over the electronic devices,
show that the seizure of the home would have been limited in
duration.6 Det. Tupper testified at the suppression hearing that
he believed he needed to secure the home and prevent reentry to
ensure officer safety and to prevent the possible destruction of
evidence on the computer or other devices. See Pérez-Díaz, 848
F.3d at 40-41. The district court did not clearly err in finding
that the officers had lawful authority to seize the home under
McArthur. And telling an individual to choose between two lawful,
if undesirable, alternatives does not automatically render consent
involuntary. See
Vázquez, 724 F.3d at 22;
Lee, 317 F.3d at 33;
Miller, 589 F.2d at 1132 n.13.
We also reject the defendant's argument that the
officers were required to allow him back into the house while being
accompanied by an officer to make a phone call, or that they were
required to offer him alternative ways to contact an attorney.
Nothing in McArthur requires officers to permit limited access to
6 Mumme does say that he was told by the officers that he
would be prevented from entering the house until the following
day. But the record does not bear that out. Det. Tupper told
Mumme that if Mumme denied the officers entry, Det. Tupper would
"have to go see a judge" to obtain a search warrant, but if Mumme
consented to the seizure of the devices, Det. Tupper would "still
have to go see a judge but [would] go see that judge tomorrow and
not today."
- 24 -
the home when they have the authority to prohibit reentry
completely. 531 U.S. at 335 ("Under these circumstances, the
reasonableness of the greater restriction (preventing reentry)
implies the reasonableness of the lesser (permitting reentry
conditioned on observation).").
Even assuming that Mumme intended to call a lawyer from
inside the house, the officers did not prevent him from contacting
his attorney through an alternative method, such as a cell phone.
Thus, they did not force him to grant them access to his home
before allowing him to speak to his attorney in a manner that might
bear on the voluntariness of his consent. The district court did
not clearly err in finding that the refusal to allow Mumme into
the house to make a phone call did not vitiate his consent.
Finally, nothing about the other circumstances of
Mumme's interaction with the officers renders the district court
finding of voluntary consent clear error. And Mumme clearly knew
that he could refuse consent because he initially did refuse to
allow the officers into his house to seize his electronic devices
and also refused to consent to a warrantless search of those
devices even after they were seized.7
7 The defendant's reliance on Georgia v. Randolph, 547
U.S. 103 (2006), is also misplaced. In Randolph, the co-occupant
who objected to the entry into the home was the same person who
sought suppression of evidence being used against him as a result
of that warrantless search.
Id. at 107-08.
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B. The Officers Did Not Unconstitutionally Intrude onto the
Curtilage of the Home
Mumme also argues that the officers unconstitutionally
entered the curtilage of his home without a warrant, which he
argues invalidated his subsequent statements and the consensual
seizure of the electronic devices. Even bypassing his trial
counsel's concession at the suppression hearing that the officers
were not on the curtilage during their exchange with Mumme, the
argument has no merit.
"[T]he area 'immediately surrounding and associated with
the home' -- what our cases call the curtilage -- [is regarded] as
'part of the home itself for Fourth Amendment purposes.'" Florida
v. Jardines, 569 U.S. 1, 6 (2013) (quoting Oliver v. United States,
466 U.S. 170, 180 (1984)). As such, an unlicensed physical
intrusion onto the curtilage for the purpose of gathering evidence
is a search within the meaning of the Fourth Amendment and is
Here, Mumme attempts to rely on his father's purported
objection to the officers' presence on the property without a
warrant. Even if we were to accept that, under Randolph, Mumme's
father's Fourth Amendment rights were violated by the officers'
continued presence on the property, Mumme makes no argument for
why we should expand Randolph to hold that when officers search a
home based on the consent of one present individual but over the
objection of another, the consenting party's rights are also
violated. And he cannot now invoke the purported violation of his
father's rights because he lacks standing to do so. See Rakas v.
Illinois, 439 U.S. 128, 133-34 (1978); see also Kentucky v. King,
563 U.S. 452, 469-70 (2011) (explaining that an individual has no
obligation to speak to police officers, "need not allow the
officers to enter the premises[,] and may refuse to answer any
questions at any time").
- 26 -
presumptively unreasonable without a warrant. Collins v.
Virginia, 138 S. Ct. 1663, 1670 (2018);
Jardines, 569 U.S. at 11-
12. But "[t]he Fourth Amendment does not . . . prevent all
investigations conducted on private property" and "an officer may
(subject to [the reasonable-expectation-of-privacy test]) gather
information in what we have called 'open fields' -- even if those
fields are privately owned -- because such fields are not
enumerated in the Amendment's text."
Jardines, 569 U.S. at 6.
And police officers have an implied license to approach the home
through the curtilage and to knock on the front door to request an
opportunity to speak to the occupant -- what is known as a "knock
and talk." See
id. at 8 (citing Kentucky v. King,
563 U.S. 452,
469 (2011));
Pérez-Díaz, 848 F.3d at 39; see also
Miller, 589 F.2d
at 1133 ("Where an owner has not attempted to secure open fields
and woods from 'invasion' by a casual, or an official visitor, a
police officer may cross private land in order to question the
inhabitants of dwellings thereon.").
The Supreme Court has identified four factors in
determining whether an area falls within or outside the curtilage:
(1) "the proximity of the area claimed to be curtilage to the
home," (2) "whether the area is included within an enclosure
surrounding the home," (3) "the nature of the uses to which the
area is put," and (4) "the steps taken by the resident to protect
the area from observation by people passing by." United States v.
- 27 -
Dunn, 480 U.S. 294, 301 (1987); see also United States v. Diehl,
276 F.3d 32, 38 (1st Cir. 2002) ("[T]hese factors are useful only
to the extent they shed light on 'the centrally relevant
consideration -- whether the area in question is so intimately
tied to the home itself that it should be placed under the home's
"umbrella" of Fourth Amendment protection.'" (quoting Dunn, 480
U.S. at 301)). The determination as to whether a particular area
is within or outside the curtilage is generally a mixed question
of fact and law in which we review the district court's factual
findings for clear error but review the ultimate constitutional
conclusion de novo.
Diehl, 276 F.3d at 37-38. But because Mumme's
trial counsel initially conceded the curtilage issue at the
suppression hearing, we review the district court's determination
for plain error. See United States v. Delgado-Sánchez,
849 F.3d
1, 6 (1st Cir. 2017) ("Ordinarily, a party who fails to lodge an
objection or raise an argument below is deemed to have forfeited
the argument and faces plain error review."). Under the plain
error standard, we assess whether Mumme can show "(1) that an error
occurred (2) which was clear or obvious and which not only (3)
affected [his] substantial rights, but also (4) seriously impaired
the fairness, integrity, or public reputation of the judicial
proceedings." Id. at 7 (alteration in original) (quoting United
States v. Arsenault,
833 F.3d 24, 29 (1st Cir. 2016)).
- 28 -
As our prior description of the property makes evident,
the encounter was not on the curtilage. The field was not
immediately next to the home but was separated by trees and
foliage. It was not enclosed by a fence or any other sort of
structure, and there was a completely unobstructed view of the
field from the public dirt road and the main paved road, as well
as from the adjacent residence. There is no evidence that in any
way shows that the field was closely tied to the home itself. The
district court's conclusion that the officers' physical intrusion
onto the field to talk to Mumme did not constitute a search for
purposes of the Fourth Amendment was not error, let alone clear or
obvious error.8
And in any event, the officers had an implied license to
approach the home and request an opportunity to speak with Mumme.
See Jardines, 569 U.S. at 8;
Pérez-Díaz, 848 F.3d at 39. There
were no signs, fences, or other indicators that the officers were
not allowed onto the property to speak with Mumme. Cf. United
States v. Smith,
919 F.3d 1, 10 & n.6 (1st Cir. 2019). Mumme had
no obligation to speak with the officers and could have ended the
conversation or requested that they leave the property. See
King,
563 U.S. at 469-70. Mumme chose not to do so and cannot now rely
8 Mumme does not argue that he had a reasonable expectation
of privacy in the field under Katz v. United States, 389 U.S. 347,
360-61 (1967) (Harlan, J., concurring).
- 29 -
on his father's suggestion to the officers that they needed a
warrant to be on the property as a vicarious invocation of Mumme's
rights. See Rakas v. Illinois, 439 U.S. 128, 133-34 (1978). Mumme
has not shown plain error in the denial of his suppression motion
with respect to the curtilage issue.
III. Denial of Motion to Withdraw Guilty Plea
Mumme also challenges the denial of his renewed motion
to withdraw his guilty plea. Specifically, he argues that the
district court erred in refusing to hold an evidentiary hearing as
to that motion so that he could develop the facts related to his
ineffective assistance of counsel claim. We review for abuse of
discretion a decision not to hold an evidentiary hearing with
respect to a motion to withdraw a guilty plea. United States v.
Santiago-Rivera, 805 F.3d 396, 398 (1st Cir. 2015).
We conclude that the district court did not abuse its
discretion in denying the defendant's motion without a hearing.
The district court justifiably found there was no "fair and just
reason" for withdrawal of the plea, Fed. R. Crim. P. 11(d)(2)(B),
because Mumme was simply attempting to relitigate the failed
suppression motion by alleging that his first attorney failed to
develop certain arguments. The attorney who filed the motion on
behalf of Mumme told the district court as much, and he eventually
sought and obtained leave to withdraw as defense counsel because
Mumme insisted on pursuing withdrawal of the plea against his
- 30 -
attorney's advice. Given that the district court found Mumme's
suppression arguments meritless and that there was no basis to
reopen the suppression motion, an evidentiary hearing was not
required because his allegations would not "entitle him to relief."
See United States v. Pulido, 566 F.3d 52, 57 (1st Cir. 2009).
Moreover, we decline to remand for an evidentiary
hearing on Mumme's ineffective assistance of counsel claim, see
Santiago-Rivera, 805 F.3d at 398, which is predicated on the
alleged failure of Mumme's first attorney to adequately litigate
the suppression motion. "This is not one of those rare cases that
presents 'special circumstances' justifying deviation from our
general rule that 'such claims "must originally be presented to
the district court" as a collateral attack under 28 U.S.C.
§ 2255.'"
Id. (citation omitted) (first quoting United States v.
Vega Molina,
407 F.3d 511, 531 (1st Cir. 2005); and then quoting
United States v. Colón-Torres,
382 F.3d 76, 84 (1st Cir. 2004)).
IV. Conclusion
The defendant's arguments are without merit and we
affirm his conviction.
Affirmed.
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