United States of America v. John Tapley

Not for publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15-1601
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN TAPLEY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Torruella, Stahl, and Barron,
Circuit Judges.
Jon A. Haddow and Farrell, Rosenblatt & Russell on brief for
appellant.
Thomas E. Delahanty II, United States Attorney, and Renée M.
Bunker, Assistant United States Attorney, on brief for appellee.
February 5, 2016

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STAHL, Circuit Judge. John Tapley pled guilty to
possessing child pornography after having sustained a prior
conviction for unlawful sexual contact with a minor, in violation
of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). Tapley's guilty plea
was conditioned on his right to seek appellate relief from the
district court's denial of his motion to suppress. Discerning no
error, we AFFIRM.
I. Facts & Background
In January 2013, after experiencing technical
difficulties with his laptop computer, Tapley left the computer
for repairs at Computer Essentials, a repair shop in Ellsworth,
Maine. Shortly thereafter, a technician by the name of Robert
Harriman was assigned to assess and repair the computer.
In the course of a routine diagnostic evaluation,
Harriman discovered several pictures depicting young, but fully-
clothed girls who appeared to Harriman to be under the age of ten,
as well as a picture of an approximately fourteen to eighteen-
year-old girl standing nude in a shower. In reviewing Tapley's
internet search history, Harriman discovered searches for topics
such as "preteen porn." Finding these items "disturbing," Harriman
searched the Maine sex offender registry and determined that Tapley
was on it.
Harriman contacted the Ellsworth Police Department and
reported his findings to Officer Gil Jameson. After consulting

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with a detective, Officer Jameson determined that Tapley had not
broken any laws. Officer Jameson called Computer Essentials and
left a message with Harriman's manager informing Harriman of his
conclusion. In an incident report, Officer Jameson wrote that
"[t]he case can be closed."
Harriman remained "alarmed" by what he had seen and "did
not feel comfortable" completing his work and returning the
computer to Tapley. On his own initiative, Harriman conducted a
further search of the computer, and this time found a set of videos
appearing to depict young children performing sexual acts.
Harriman again called Officer Jameson with his findings.
In turn, Officer Jameson spoke with Detective Alan Brown of the
Hancock County Sheriff's Department. In short order, Detective
Brown visited Computer Essentials and took possession of the
laptop. Based on the information provided by Harriman, Detective
Brown applied for, and received, a warrant to search the computer.
That search resulted in Tapley's indictment for possession of child
pornography.
In proceedings before the district court, Tapley moved
to suppress the evidence against him, arguing that Harriman's
second search had been performed in violation of the Fourth
Amendment and that, absent the information provided by Harriman
from that search, Detective Brown's search warrant lacked probable
cause. On the report and recommendation of a magistrate judge,

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the district court denied the motion to suppress, reasoning that
Harriman had acted solely as a private citizen and not as an agent
of the government. See United States v. Tapley, No. 1:14-cr-
00080-JAW, 2014 WL 6679127, at *2 (D. Me. Nov. 25, 2014).
Tapley entered a guilty plea conditioned on his right to
seek appellate review of the denial of his motion to suppress.
See Fed. R. Crim. P. 11(a)(2). The district court later sentenced
Tapley to a prison term of 120 months.
II. Discussion
We review the district court's denial of a motion to
suppress by means of a two-tiered inquiry. United States v. White,
804 F.3d 132, 136 (1st Cir. 2015). The district court's factual
findings are reviewed for clear error, and its legal conclusions
de novo. Id. A finding of fact will amount to clear error "only
if, after considering all the evidence, we are left with a definite
and firm conviction that a mistake has been made." United States
v. Mousli, 511 F.3d 7, 11 (1st Cir. 2007) (quoting United States
v. Ferreras, 192 F.3d 5, 9-10 (1st Cir. 1999)). "So long as any
reasonable view of the evidence supports the decision, the district
court's ruling will be upheld." United States v. McLellan, 792
F.3d 200, 212 (1st Cir. 2015).
"The Fourth Amendment's protection against unreasonable
searches and seizures applies only to government action and not
'to a search or seizure, even an unreasonable one, effected by a

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private individual not acting as an agent of the [g]overnment.'"
United States v. Silva, 554 F.3d 13, 18 (1st Cir. 2009) (quoting
United States v. Jacobsen, 466 U.S. 109, 113 (1984)). To determine
whether a private party acts as an agent of the government, we
consider three factors: (1) "the extent of the government's role
in instigating or participating in the search"; (2) "its intent
and the degree of control it exercises over the search and the
private party"; and (3) "the extent to which the private party
aims primarily to help the government or to serve its own
interests." Id. (quoting United States v. Pervaz, 118 F.3d 1, 6
(1st Cir. 1997)).
Applying these criteria to the facts before us, we have
little difficulty concluding that Harriman acted as a private
individual and not as an agent of the government in searching
Tapley's computer. As we have described, Harriman in fact
undertook two separate searches. The first was indisputably in
Harriman's capacity as a private citizen. As an employee of
Computer Essentials, Harriman was assigned to assess Tapley's
laptop, to diagnose the technical problems it was experiencing,
and to conduct the necessary repairs. In the course of a routine
evaluation, Harriman encountered the photographs of young children
which prompted his initial telephone call to Officer Jameson.
The second search, on the other hand, was conducted after
the initial contact with Officer Jameson, prompting Tapley to

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contend that Harriman undertook this search as an agent of the
government. This argument is unconvincing when considered in light
of the determinative factors.
There is no evidence suggesting that Harriman's second
search was instigated by the government, or that the government
participated in, or controlled, that search in any way. To the
contrary, Officer Jameson left a message for Harriman informing
him that Tapley had not broken the law, and he made a note in his
file indicating that "[t]he case can be closed." In other words,
as far as Officer Jameson was concerned, there was no further
investigative work to be done. But Harriman remained "alarmed"
and "did not feel comfortable" returning the laptop to Tapley
without further review of its contents. Therefore, entirely on
his own initiative and without the government's direction,
control, or knowledge, Harriman undertook the second search.
We must also consider Harriman's intent in order to
assess whether his primary aim was to help the government. See
Silva, 554 F.3d at 18. The district court concluded, and we agree,
that "Harriman's motive is difficult to discern." Tapley, 2014 WL
6679127, at *2. In a written statement provided to Detective
Brown, Harriman indicated that, even after receiving the message
from Officer Jameson that Tapley had not broken the law, he
remained "alarmed" and "did not feel comfortable . . . releasing
[the laptop] to Mr. Tapley." Therefore, he "decided to look

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further before [he] contacted Mr. Tapley and released [the laptop]
to him." The district court thus concluded that "whether Mr.
Harriman searched the computer because of a strong personal belief,
a desire to assist law enforcement, or a company policy, is not
apparent." Id. We agree that there is simply not enough in the
record to suggest that Harriman's aim was "primarily to help the
government." 1 Silva, 554 F.3d at 18; see also United States v.
Cameron, 699 F.3d 621, 638 (1st Cir. 2012) (noting that the
defendant bears the burden to show that the party conducting the
search "did what it did to further the government's interest,"
even if the record does not reflect an alternative interest).
III. Conclusion
For the reasons we have described, we conclude that
Harriman acted as a private individual and not as an agent of the
government in searching Tapley's computer. Thus, there was no
Fourth Amendment violation. The district court's denial of
Tapley's motion to suppress is AFFIRMED.
1 We find Tapley's reliance on United States v. Barth,
26 F. Supp. 2d 929 (W.D. Tex. 1998), to be both factually and
legally misplaced. There, the court concluded that a computer
repairman had acted as a government agent in searching the
defendant's hard drive for child pornography, but the repairman
was an FBI informant and he conducted his search while the
government's investigation was ongoing. Id. at 932-36. What is
more, Barth applied a two-factor test focusing on the government's
knowledge or acquiescence and the private party's intent. Id. at
935. We expressly rejected this test as "oversimplified or too
general" in Pervaz, where we adopted this Circuit's three-factor
inquiry described above. See 118 F.3d at 5-6.

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