Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 09-2603

UNITED STATES,

Appellee,

v.

JOSHUA BACH,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Torruella, Lipez and Thompson,

Circuit Judges.

Bruce M. Merrill, P.A., on brief for appellant.

Renée M. Bunker, Assistant U.S. Attorney and Paula D. Silsby,

United States Attorney, on brief for appellee.

August 5, 2010
 References to the district court's determinations and 1

findings are references to the magistrate judge's Recommended

Decision since the district court adopted it in full. 

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Per Curiam. Defendant-appellant Joshua Bach, who entered

a conditional guilty plea to one count of possessing a computer

that contained images of child pornography, in violation of 18

U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A), files this direct criminal

appeal to challenge the district court's denial of his motion to

suppress computer files seized from his home during a warrantless

search by United States Immigration and Customs Enforcement ("ICE")

agents. He disputes the district court's determination that his

consent to the search was voluntary. Appellant also contends that 1

the search was invalid because it was begun before he signed the

written consent form, contrary to the district court's finding.

Thirdly, he argues that even if his consent was voluntarily and

timely given, the items seized were beyond the scope of his

consent. Finally, appellant contends that the district court did

not apply de novo review in adopting the Magistrate Judge's

Recommended Decision, to which appellant had objected, in violation

of 28 U.S.C. § 636(b)(1)(C). Finding none of these claims on

appeal to have merit, we summarily affirm.

I. Voluntariness of Consent

Because the ICE agents did not have a warrant to search

Bach's home or his computer, they relied upon an exception to the

warrant requirement for consensual searches. "In order for consent
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to be valid, the Government must prove by a preponderance of the

evidence that the consenting party gave it freely and voluntarily.

The assessment of whether consent is free and voluntary is a

question of fact that requires an examination of the totality of

the circumstances surrounding the relevant transaction between lawenforcement authorities and the consenting party. The district

court's factual findings relating to the validity of the consent

are reviewed for clear error." United States v. Jones, 523 F.3d

31, 37 (1st Cir. 2008).

Appellant argues that his consent was not voluntary under

the totality of the circumstances, "given the length of time that

Appellant was questioned (90 minutes), in a confined space, by two

agents who were openly displaying weapons, and who did not advise

him of his right to refuse consent." Examination of each of those

factors, and consideration of them in combination, does not

establish that the district court clearly erred in its

determination that Bach's consent to the computer search was

voluntary.

Length of Time. According to the district court's

findings, approximately 50 minutes passed from the time when the

ICE agents first asked Bach if they could search his computer (at

4:30 or 4:35) and when he signed the written consent form (at 5:20

p.m.), and the entire length of time that the police were in Bach's

home was just under two hours. It was not clearly erroneous for
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the district court to conclude that this duration of time was

insufficient to render the consent involuntary, especially where it

further found that during the elapsed time, Bach "carefully read a

written consent form and asked a number of questions, to which

police gave truthful answers, in an attempt to make a fullyinformed decision." Compare United States v. Ivy, 165 F.3d 397,

402 (6th Cir. 1998) (holding that consent to search was involuntary

where one and a half hours passed between the officers' initial

request for consent and Ivy's ultimate decision to sign the consent

form, the "entire incident" took from seven to eight hours, and

"the police officers used unlawful threats to secure Ivy's

consent"). Nor did the fact that the officers twice asked Bach to

read and consider signing the consent form render the eventual

consent involuntary. See Jones, 254 F.3d at 696 (stating that

there is "no legal rule that asking more than once for permission

to search renders a suspect's consent involuntary, particularly

where the suspect's initial response is ambiguous").

Confined Space & Open Display of Weapons. The district

court found that "[a]t no time did the agents restrict [Bach's]

freedom of movement, refer to their weapons, or tell the defendant

he was in custody." The agents' weapons were "visibly holstered at

their belts," but Bach testified that they never unholstered their

weapons. See United States v. Pena, 143 F.3d 1363, 1367 (10th Cir.

1998) (holding that consent was voluntary notwithstanding presence
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of four armed officers where "none of the officers unholstered his

firearm"); United States v. Baker, 78 F.3d 1241, 1244 (7th Cir.

1996)(holding that consent was voluntary even though the officer

had his hand on his gun, where he "never drew it out of his

holster"). The mere presence of visible weapons is not enough to

render Bach's consent involuntary.

Bach argues that he was in a "confined space" when he

consented, which he maintains supports a finding that the consent

was not voluntary. However, consent is most likely to be found to

be involuntary where it occurs in a "stationhouse atmosphere,"

rather than in "familiar surroundings." 4 Wayne R. LaFave, Search

and Seizure, § 8.2(b) (4th ed. 2004)(collecting cases). Here, the

fact that Bach was in his own home when he consented to the search

weighs in favor of finding that consent was given voluntarily. See

United States v. Blakeney, 942 F.2d 1001, 1016 (6th Cir.

1991)(holding that defendant's consent was voluntary and

emphasizing that his "consent was not given in a police station,

but at his home").

Notification of Right to Refuse Consent. The MagistrateJudge concluded that he was

satisfied, from the evidence as a whole,

including the defendant's background and

intelligence, the wording on the form itself,

and the many questions he asked agents, to

which essentially accurate responses were

provided, that he was effectively apprised

that he had a right to refuse consent, and

that if he did so, agents would be obliged to
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obtain a search warrant to search the

computer.

Based upon our review of the transcript of the hearing on the

motion to suppress, that finding is supported by "a reasonable view

of the evidence," and is not clearly erroneous. United States v.

Coraine, 198 F.3d 306, 308 (1st Cir. 1999).

The magistrate judge rejected Bach's testimony that Agent

McDonnell had told him that if he did not consent they would "go

get a search warrant" (rather than "apply" for a search warrant, as

McDonnell testified). The former version of events would lend

support to Bach's argument that the consent was involuntary. See

4 Search and Seizure, § 8.2(c). However, the district court's

choice to credit Agent McDonnell's testimony, which "comport[ed]

with [Agent] Madden's contemporaneous handwritten notes," was not

clearly erroneous. See Coraine, 198 F.3d at 310.

II. Timing of Consent

Appellant argues that the consent was invalid because it

occurred only after the search had commenced. The district court

found that Agent McDonnell "did not begin to run the pre-search

software until the defendant finally signed the written consent

form." Appellant maintains that "[t]here exists a serious question

as to whether that consent was obtained before or after the presearch software was inserted into Appellant's computer and run."

"In the absence of a reason not to do so, this court

defers to the district court's personal observations and evaluation
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of the witnesses' credibility." United States v. Marshall, 348 F.3d

281, 286 (1st Cir. 2003). The magistrate judge explained at length

its reasoning for crediting Agent McDonnell's testimony regarding

the timing of the consent over Bach's version of events. The

record supports the district court's finding in this regard, and

appellant has not shown that it is clearly erroneous. See Coraine,

198 F.3d at 308 ("the district court's findings of fact deserve

deference so long as a reasonable view of the evidence will support

them").

III. Scope of Consent

Appellant argues that even if he voluntarily signed the

written consent form before the computer search began, the evidence

seized should have been suppressed because it did not fall within

the scope of his consent. Bypassing the question whether appellant

waived this argument because he raised it for the first time in his

objection to the Recommended Decision of the magistrate judge, we

conclude that in any event it is unavailing.

"'A consensual search may not exceed the scope of the

consent given.'" United States v. Turner, 169 F.3d 84, 87 (1st Cir.

1999)(citation omitted). In determining the scope of consent

given, this court employs an "objective reasonableness" standard,

and "look[s] beyond the language of the consent itself, to the

overall context, which necessarily encompasses contemporaneous

police statements and actions." Id.
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Appellant argues that the language of the written consent

form authorized the ICE agents to search his computer only for

images of children "engaged in adult sexual activities" and that

the images on his computer did not fall within that scope.

However, Agent McDonnell testified at the evidentiary hearing

before the magistrate judge that after Bach received the written

consent form, but before he signed it, McDonnell "informed Mr. Bach

that the federal statute covering the definition of child

pornography included the lascivious display of the genitals of a

child under age 18." Bach admitted that McDonnell had "told [him]

the definition of child pornography."

Given the undisputed evidence that Agent McDonnell

explained to Bach, before he signed the written consent form, the

definition of the child pornography which was the object of the

search, the items seized (which fit within the stated definition)

were within the scope of the consent. See United States v.

Brenton-Farley, 607 F.3d 1294, 1332, (11th Cir. 2010)(holding that

defendant's consent to the search of his laptop computer

encompassed the child pornography evidence because by the time

defendant consented to the search "he was well aware of the true

subject of the investigation").

IV. De Novo Review by the District Court

Appellant has not identified any legal authority for his

contention that the district court's order adopting a magistrate
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judge's decision must include an express statement that it has

applied de novo review (although it is the better practice).

Although the district court was "required to review the magistrate

judge's decision de novo, 28 U.S.C. § 636(b)(1)(C)," Jonco, LLC v.

ALI, Inc., 157 F.3d 33, 35 (1st Cir. 1998), it was not required to

make "separate findings of fact or issue an opinion setting forth

its own reasoning." Id. "The statute authorizes the district

court to adopt in whole as well as in part the proposed findings or

recommendations of the magistrate judge." Elmendorf Grafica, Inc.

v. D.S. America (East), Inc., 48 F.3d 46, 49 (1st Cir. 1995).

Despite the district court's failure to expressly state that it had

engaged in de novo review, appellant has not demonstrated that the

district court failed to do so. See Claude v. Peikes, 534 F.3d

801, 801 (2d Cir. 2008)(adopting rule that district court is

presumed to have conducted a de novo review of a magistrate judge's

report and recommendation absent some clear indication otherwise).

Affirmed. See 1st Cir. R. 27.0(c).