United States v. Bermel, 2023 WL 8591410 (8th Cir. 2023)
Jacob Bermel hid a camera to record his teen daughter getting out of the shower. His defense was novel: His daughter did not have permission to seize the camera from its hidden location in her bathroom because it was his property, not hers. So, how did that work out for him?
Bermel and his ex-wife shared custody of their 14-year-old daughter. She was free to come and go from Bermel’s house without a set visitation schedule and was sometimes left alone at his house. When she stayed at Bermel’s house, she used a particular bathroom, where she discovered a small hidden camera. The daughter called her mother, told her about the camera and asked her mother to pick her up.
Her mother called the police. An officer came to the mother’s home and spoke with her and the daughter. The daughter had taped over the lens, not sure whether it was still recording. When the officer said, “I’m going to take this, okay?” neither mother nor daughter objected. Officers later found a memory card in the camera with video of the daughter getting in and out of the shower. Subsequent investigation showed Bermel had uploaded child pornography to the internet.
Bermel was indicted for multiple crimes involving child pornography; he unsuccessfully petitioned the trial court to suppress evidence taken from the hidden camera. The trial judge ruled the camera’s seizure was justified by exigent circumstances and that the search was lawful because the daughter consented to it. Bermel entered a conditional guilty plea and appealed the denial of his suppression motion.
Bermel argued his teenage daughter could not legally consent to search of his property. Alternatively, even if a minor child might have actual or apparent authority to consent to such searches under certain circumstances, his daughter lacked such authority in his case. He also claimed the trial court clearly erred in finding that the daughter consented to the search of the camera and the memory card contained within it.
As long as the officer has a good-faith belief that the person has authority to consent, the consent will be upheld in court.
The appellate court quickly dismissed Bermel’s first argument. Bermel cited no legal precedent for a per se rule that minor children cannot consent to a search of their parents’ property. The court noted the Supreme Court has observed that even “a child of eight might well be considered to have the power to consent to the police crossing the threshold into that part of the house where any caller might well be admitted” (Georgia v. Randolph, 547 U.S. 103 (2006)).
As long as the officer has a good-faith belief that the person has authority to consent, the consent will be upheld in court (Illinois v. Rodriguez, 497 U.S. 177 (1990)). Persons who have joint access to an area are deemed to have common authority to consent (United States v. Matlock, 415 U.S. 164 (1974)). Apparent authority exists if “the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the property” (Illinois v. Rodriguez). Applying that Supreme Court precedent, the court of appeals held the daughter had apparent authority to consent to the search because she had joint access to and control over the bathroom where the camera and its memory card were located.
The court also disagreed that the police did not have the daughter’s consent to search the camera and the internal memory card. Bermel claimed the daughter had not given explicit verbal consent; the court held the lack of an explicit verbal response did not negate consent. Finally, Bermel argued the daughter could not consent to the search of the memory card because she initially did not know the camera contained one. The court again disagreed, holding the scope of the daughter’s consent reasonably extended to the camera’s memory card.
In the end, Bermel was ordered to pay $3,000 in restitution to each of a total of four identified victims. He was sentenced to 25 years in federal prison. It didn’t really work out so well for him.