Petition for Writ of Certiorari — Jacob Paul Bermel, Petitioner v. United States

Supreme Court briefMay 2, 2024

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APPENDIX

APPENDIX A:

United States v. Jacob Paul Bermel, 3:21-cr-00110-SMR-SBJ-001,

(S.D. Iowa) (criminal proceedings) Order Defendant’s Motion to

Suppress entered April 19, 2022. .................................................. 1

APPENDIX B:

United States v. Jacob Paul Bermel, 3:21-cr-00110-SMR-SBJ-001,

(S.D. Iowa) (criminal proceedings) Judgment entered September

26, 2022. ....................................................................................... 12

APPENDIX C:

United States v. Jacob Paul Bermel, 22-3092, (8th Cir.) (direct

criminal appeal), Opinion entered December 12, 2023. ............. 20

APPENDIX D:

United States v. Jacob Paul Bermel, 22-3092, (8th Cir.) (direct

criminal appeal), Judgment entered December 12, 2023. ......... 27

APPENDIX E:

United States v. Jacob Paul Bermel, 22-3092, (8th Cir.) (direct

criminal appeal), Order denying Petition for Rehearing entered

February 6, 2024. ......................................................................... 29

Case 3:21-cr-00110-SMR-SBJ Document 47 Filed 04/18/22 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF IOWA

DAVENPORT DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

JACOB PAUL BERMEL,

Defendant.

)

Case No. 3:21-cr-00110-SMR-SBJ-1

ORDER DEFENDANT’S MOTION TO

SUPPRESS

A hidden camera was discovered in one of the bathrooms in Defendant Jacob Paul

Bermel’s home. The camera and its SD memory card were then turned over to the Muscatine

Police Department (“MPD”). A detective with the MPD obtained two search warrants based on

the video contents of the SD card. The FBI also used the videos to support a search warrant

application. Based on the evidence yielded from the SD card and the three search warrants,

Defendant was charged with production, possession, and distribution of child pornography. He

now seeks to exclude this evidence, arguing law enforcement procured it in violation of his rights

protected by the Fourth Amendment to the United States Constitution. For the reasons described

below, the Motion to Suppress is DENIED.

BACKGROUND

On May 6, 2021, a mother contacted the MPD regarding a hidden camera discovered by

her daughter in a bathroom at her father’s home. The father is Defendant. He and his ex-wife

shared custody of their 14-year-old daughter. The camera was discovered during one of the

daughter’s visits to her father’s home. After seeing the camera, the daughter called her mother to

pick her up because she was not comfortable staying there any longer. She also removed the

camera from the bathroom and took it with her, concealing the camera in her sock when she left.

sent to client 4/19/22 APPENDIX A

APP. p. 001

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Defendant leaves for work early in the morning so the daughter rides the bus to school when she

stays there. The excuse she gave Defendant for leaving was that she did not want to ride the bus

to school the following day.

Officer Jacob Elliott and his partner met with the mother and daughter after the mother’s

report to the MPD. The daughter handed Officer Elliott a plastic ziplock bag containing the

camera. She did not know how to operate the camera and was unsure if it was still recording when

she took it, so she placed a piece of duct tape over the lens. Although her mother’s home was the

daughter’s primary residence at the time of the incident, they informed Officer Elliott that she

frequently stayed at Defendant’s residence as there was no structured custody schedule. The

daughter said the bathroom where the camera was found is the bathroom she used when staying at

Defendant’s residence. She reported Defendant primarily used a second bathroom.

Officer Elliott took the camera back to the police station and viewed the contents of the SD

memory card. He testified that the video begins with Defendant’s face as he was apparently

mounting the camera. Officer Elliott said it appeared that Defendant was looking at another

unidentified device during this process, consistent with him positioning the angle of the camera

through a video feed. The next image seen on the video was the daughter undressing before

entering the shower.

The following day, Detective Adam Raisbeck obtained and executed a search warrant

signed by a state district court judge, authorizing the search of Defendant’s residence, vehicles,

and person for evidence of child pornography. [ECF No. 32] (sealed). It also authorized the

seizure of electronic devices. During the search, a cellular phone and a laptop computer were

seized from Defendant’s residence. Officers observed that the bathroom at the residence was

identical to the bathroom visible in the videos.

-2APP. p. 002

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Officers conducted an interview with Defendant at his employer while the search warrant

at his residence was executed. He was informed of his Miranda1 rights and a different cellular

phone was seized from his person. Defendant admitted that there was a camera in the bathroom

but claimed it was not operable. He said he last used it in February, testing it to see if it “flashed”

but simply left it in the bathroom. Defendant confirmed he purchased the camera in February from

Amazon, noting it cost $22. When asked if he had child pornography on his phone, Defendant

responded there “shouldn’t be,” continuing that porn sites should only show girls over the age

of 18.

After he was asked if any of the electronic devices at his home contained sexual depictions

of underage girls, Defendant invoked his Fifth Amendment rights and requested to speak to an

attorney. Officers then terminated the interview and placed Defendant under arrest. He was

charged with sexual exploitation of a minor under Iowa law and released on his own recognizance.

On May 10, 2021, the FBI met with officers from the MPD and viewed the videos. The

next day, Detective Raisbeck applied for a second search warrant from a state judge to allow him

to search the cellular phones seized from Defendant’s residence and from his person. [ECF No.

32-1].

The daughter was interviewed by the Mississippi Valley Child Protection Center (CPC) on

May 12, 2021. She explained that the bathroom where she discovered the camera was “her”

bathroom and Defendant uses a different bathroom regularly, at least while she is staying with

him. The daughter told the interviewer that Defendant asked her several times during the course

of the day if she planned to take a shower. She said these questions bothered her, but she ultimately

decided to shower before bed. Defendant went into the bathroom immediately before she did. The

See Miranda v. Arizona, 384 U.S. 436 (1966).

-3APP. p. 003

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daughter stated this did not strike her as odd. As she was getting dressed after her shower, she

noticed a light or glare but thought it may be some sort of temperature device if the bathroom was

too hot. Upon closer inspection, she realized it was a camera. After removing it, the daughter was

very uncomfortable and contacted her mother to retrieve her from Defendant’s residence. The

CPC interviewer showed the daughter the recovered video and she noted it was not the same video

as the day she discovered the camera because her outfit was different.

The MPD later informed the FBI that Defendant was suspected to have uploaded possible

child pornography to MeWe, a social media and networking service. MeWe functions much like

other social media websites where users can post text and images, react to the posts of others,

create special groups, post ephemeral content, and chat with other users directly or in a group.

MPD was notified of Defendant’s suspicious activity by the National Center for Missing and

Exploited Children (NCMEC) Cybertipline via the Iowa Division of Criminal Investigation (DCI)

Internet Crimes Against Children (ICAC) unit. MPD was provided with two reports from the

NCMEC which officers made available to the FBI.

The first Cybertipline report was made to NCMEC by MeWe on November 19, 2019. In

the report, MeWe advised that 24 suspected images of child pornography were uploaded on

December 17, 2018 by user KillJoy1983, and account that was registered to the email address

jacobbermel1983@gmail.com. The MeWe login for this event was resolved to Verizon Wireless

and Muscatine Power and Water. The NCMEC reviewed the images, classifying them as “Child

Pornography (unconfirmed).” These images were uploaded on MeWe and were publicly available

to other users. The second report from Cybertipline was made to NCMEC by MeWe on

May 27, 2020. Two images suspected of constituting child pornography were uploaded by the

same user, with the login again resolved to Verizon Wireless and Muscatine Power and Water.

-4APP. p. 004

Case 3:21-cr-00110-SMR-SBJ Document 47 Filed 04/18/22 Page 5 of 11

The FBI reviewed the images which showed fully frontal nude teenage girls who appeared to be

under the age of 18.

A warrant for the MeWe account KillJoy83 was obtained by the MPD on July 6, 2020.

Among the content data for that account included the two photos that were the subject of the second

Cybertipline report. The user account was registered to a “563” Verizon Wireless phone number.

Verizon Wireless provided the subscriber data for the phone number which was registered to Jacob

Bermel with the same Muscatine, Iowa address as Defendant. A search warrant was obtained on

June 7, 2021 for the laptop seized by the MPD on May 7, 2021. [ECF No. 32-2].

Defendant was indicted by a federal grand jury on three counts of child pornography for

production, receipt and distribution, and possession. [ECF No. 2]. On April 7, 2022, the Court

held an evidentiary hearing on this Motion to Suppress. [ECF Nos. 29; 44].

II.

ANALYSIS

In his Motion to Suppress, Defendant advances two2 bases to exclude the evidence against

him. First, he alleges the seizure of the camera and search of the SD card by law enforcement

violated the Fourth Amendment. Second, he claims the search of his laptop by the FBI was delayed

to the point it unreasonably interfered with his possessory rights.

A. Seizure of Camera

“The Fourth Amendment protects persons against unreasonable searches and seizures by

the government.” United States v. Stephen, 984 F.3d 625, 629 (8th Cir. 2021) (quoting Arnzen v.

Palmer, 713 F.3d 369, 372 (8th Cir. 2013) (emphasis omitted)). A seizure of personal property

without a warrant “is per se unreasonable unless it falls within a well-defined exception to the

warrant requirement.” United States v. Mays, 993 F.3d 607, 614 (8th Cir. 2021) (quoting Robbins

The Motion also alleged a violation under Franks v. Delaware, 438 U.S. 154 (1978) but

he abandoned this claim at the evidentiary hearing.

-52

APP. p. 005

Case 3:21-cr-00110-SMR-SBJ Document 47 Filed 04/18/22 Page 6 of 11

v. City of Des Moines, 984 F.3d 673, 680 (8th Cir. 2021)). However, if officers have probable

cause that property contains contraband, they may seize it prior to obtaining a warrant when “the

exigencies of the circumstances demand” such an action. Id. (quoting United States v. Place,

462 U.S. 696, 701 (1983)).

Defendant asserts that it was an unreasonable seizure and search when Officer Elliott took

possession of the camera from the daughter and viewed its contents prior to obtaining a warrant.

A similar Fourth Amendment argument regarding a hidden camera was advanced by the defendant

in Stephen but was rejected by the district court. In that case, United States District Court Judge

C.J. Williams of the Northern District of Iowa denied a motion to suppress by the defendant,

rejecting the argument that police violated his Fourth Amendment rights when—after receiving

information from a citizen regarding a hidden camera in a bathroom—asked him to bring the

device to the police station. Judge Williams held that police had not “seized” the camera, disguised

to look like a USB, because a seizure for Fourth Amendment purposes requires “meaningful

interference with an individual’s possessory interests.” Stephen, 2018 WL 4839065, at *8 (quoting

United States v. Jacobsen, 466 U.S. 109, 113 (1984)) There was no meaningful interference with

the defendant’s possessory interest because the private citizen had already taken the property. Id.

Furthermore, Judge Williams found that the exigent circumstances exception also applied.

The citizen who took the USB from the defendant’s bathroom viewed the videos and told police

the videos depicted nude underage males. Based on this information, police had probable cause

to believe it contained contraband and if it were returned to the property owner, the evidence would

likely be lost or destroyed. Id. at *9. On appeal, the United States Court of Appeals for the Eighth

Circuit did not reach the Jacobsen property-interference issue but affirmed Judge Williams on the

exigent circumstances exception, finding “without immediate seizure, the police risked losing

digital evidence.” Stephen, 984 F.3d at 630–31.

-6APP. p. 006

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The same reasoning applies here. When Officer Elliott responded to the mother’s report

and spoke with her and the daughter, he was informed that the camera was hidden in the bathroom.

Its location, angle, and the fact that it was a recording device surreptitiously located in a bathroom

often used by a minor provided the MPD with probable cause that the memory card contained

evidence of contraband. A probable cause determination is a “practical, nontechnical conception”

that calls for “facts and circumstances sufficient to warrant a prudent man in believing that the

(suspect) had committed or was committing an offense.” Gerstein v. Pugh, 420 U.S. 103, 111–12

(1975). It requires “only the kind of fair probability on which reasonable and prudent people, not

legal technicians act.” Kaley v. United States, 571 U.S. 320, 338 (2014).

The Eighth Circuit has found exigent circumstances were present in other cases where

police seized a digital device prior to a warrant to prevent deletion or destruction of the evidence.

See Mays, 993 F.3d at 614; United States v. Smith, 715 F.3d 1110, 1117 (8th Cir. 2013) (affirming

denial of motion to suppress based on a warrantless seizure of a laptop bag because of need to

“prevent destruction of evidence”); United States v. Clutter, 674 F.3d 980, 985 (8th Cir. 2012)

(upholding seizure of a computer because police “had probable cause to believe the computers

contained evidence of child pornography”). Here, Officer Elliott received custody of the camera

from the daughter. If, after taking possession of the camera, he had returned it to Defendant it was

highly likely that any incriminating evidence on it would have been destroyed. It was also

reasonable for Officer Elliott to believe he had consent, as the Court will discuss next, to take

possession of the camera as the daughter was a co-tenant of Defendant’s residence and had at least

apparent authority to voluntary give the camera to law enforcement.

B. Search of SD Card

Defendant next argues that his Fourth Amendment rights were violated when Officer

Elliott and the other MPD officers reviewed the contents of the SD card without a warrant. He

-7APP. p. 007

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insists that neither the MPD officers nor the FBI agents who examined the videos had legal

authority to do so and asks the Court to exclude the evidence as a result.

It has long been held that “because the ultimate touchstone of the Fourth Amendment is

‘reasonableness,’ the warrant requirement is subject to certain exceptions.” Brigham City v. Stuart,

547 U.S. 398, 403 (2006). One of these exceptions is voluntary consent. See United States v.

Esquivias, 416 F.3d 696, 700 (8th Cir. 2005) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 222

(1973)); see also United States v. Amratiel, 622 F.3d 914, 915 (8th Cir. 2010) (“[t]he Fourth

Amendment does not prohibit the warrantless search of premises when police obtain valid

consent.”). Consent to a search “need not be given by the defendant, but rather may be given by

‘a third party who possessed common authority over or other sufficient relationship to the premises

or effects sought to be inspected.’” Amratiel, 622 F.3d at 915 (quoting United States v. Matlock,

415 U.S. 164, 171 (1974)). Actual authority is not required but, consistent with the Fourth

Amendment’s “touchstone” of reasonableness, a consent to search is valid so long as “‘an officer

reasonably relies on a third party’s demonstration of apparent authority’ over the premises.” Id.

An individual has apparent authority to consent to a search 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 premises.’” Id. (quoting Illinois v. Rodriguez, 497 U.S. 177, 188 (1990)).

Common authority for consent requires “mutual use, and joint access or control.” Id. A property

interest is not required if the third party “possesse[s] . . . [a] sufficient relationship to the premises.”

See Matlock, 415 U.S. at 171.

The Eighth Circuit does not “require police to go behind

appearances to verify third party authority . . . [but instead] has been more liberal about allowing

police to form their impressions from context.” United States v. Almeida-Perez, 549 F.3d

1162, 1171 (8th Cir. 2008) (citations omitted).

-8APP. p. 008

Case 3:21-cr-00110-SMR-SBJ Document 47 Filed 04/18/22 Page 9 of 11

The mother and daughter told Officer Elliott that the daughter split time between

Defendant’s residence and her mother’s. Furthermore, the camera was removed from a bathroom

that the daughter said was primarily, if not exclusively, used by her when she stayed with

Defendant. She said Defendant used a different bathroom when she was visiting him. The camera

was not locked, fastened, or otherwise fixed to the bathroom. It was not even completely concealed

from view as the daughter noticed its light while exiting the shower. It is clear that the daughter

had, at a minimum, joint access and control over the bathroom. Defendant has offered no evidence

that the daughter did not have joint access over the common areas as a part-time joint occupant

who was able to stay with Defendant when she chose.

Defendant argues that it was not reasonable for Officer Elliott to believe that the daughter

had authority to give consent because her father was present at the time she took the camera and

he did not provide consent. However, Defendant was not present at the time consent was given to

search the SD card. Regardless of whether the daughter had actual authority to consent to a search

of property taken from a residence, she had apparent authority. It was not unreasonable for Officer

Elliott or other law enforcement officers to rely on the consent given by the daughter to search a

memory card found in a home where she commonly resided and shared space with Defendant.

Rodriguez, 497 U.S. at 185–86 (“Of the many factual determinations that must regularly be made

by agents of the government,’ the Fourth Amendment does not require the agents always be

correct, ‘but that they always be reasonable.’”).

It is the Government’s burden to prove consent. See Almeida-Perez, 549 F.3d at 1169.

They have done so here. There is no indication that the consent to search was anything but

voluntary. This was not a situation where law enforcement showed up at the home and imposed

any “duress or coercion, express or implied” on the daughter. United States v. Cisneros-Gutierrez,

598 F.3d 997, 1003 (8th Cir. 2010) (citation omitted). Officer Elliott was summoned to meet with

-9APP. p. 009

Case 3:21-cr-00110-SMR-SBJ Document 47 Filed 04/18/22 Page 10 of 11

the daughter by the mother’s report to police. Officer Elliott testified that, while speaking with the

mother on the phone, he heard the daughter in the background expressly agree to meet with him.

The daughter, although a minor, was of a mature age capable of making independent decisions.

Given the nature of the police report, and the surrendering of the camera to Officer Elliott, the

consent to a search was apparent. See United States v. Williams, 346 F.3d 796, 799 (8th Cir. 2003)

(finding consent may be “reasonably implied from behavior”). There is absolutely no indication

that the daughter’s consent was not voluntarily and freely given.

C. Duration of Seizure of Laptop

Defendant next challenges the search of the laptop by the FBI. He asserts that the delay

between the seizure of the laptop on May 7, 2021, and the application for the federal search warrant

on June 7, 2021, was unreasonably long. “[A] seizure reasonable at its inception because [it is]

based upon probable cause may become unreasonable as a result of its duration.” Segura v. United

States, 468 U.S. 796, 812 (1984). The analysis for whether a search of property is unreasonably

delayed, thereby transforming a previously reasonable seizure into an unreasonable one, is based

on the totality of the circumstances. See United States v. Farnell, 701 F.3d 256, 261 (8th Cir. 2012)

(holding whether the duration of a seizure is reasonable “is measured in objective terms by

examining the totality of the circumstances”).

Fifteen days has been found to be a “considerable period” for length of a seizure. Mays,

993 F.3d 617. However, the duration of a seizure is context-specific where sometimes “a delay as

short as 90 minutes may be unreasonable,’ while in other contexts, ‘a delay of over three months

may be reasonable.’” Mays, 993 F.3d at 617 (quoting United States v. Laist, 702 F.3d 608, 613

(11th Cir. 2012)).

The cases upon which Defendant relies are distinguishable. Those cases all pertained to

the warrantless seizure of property based on probable cause or consent. See Place, 462 U.S. at 710

-10APP. p. 010

Case 3:21-cr-00110-SMR-SBJ Document 47 Filed 04/18/22 Page 11 of 11

(seizure of luggage at an airport without a warrant); United States v. Burgard, 675 F.3d 1029, 1032

(7th Cir. 2012) (warrantless seizure of cell phone); United States v. Van Leeuwen, 397 U.S.

249, 253 (1970) (postal packages); United States v. Mitchell, 565 F.3d 1347, 1350 (11th Cir. 2009)

(computer hard drive); Laist, 702 F.3d at 611 (computer); United States v. Sullivan,

797 F.3d 623, 633 (9th Cir. 2015) (laptop computer). While the camera was seized based on the

consent of the daughter, a state search warrant was obtained and the laptop was retained on the

authority of that warrant. Because the property had been seized pursuant to the state search

warrant, Defendant had no property interest in the return of the evidence before the end of the

investigation. Defendant’s challenge to the seizure of the laptop based on its duration is without

merit.

III.

CONCLUSION

For the reasons described above, Defendant’s Motion to Suppress is DENIED. [ECF

No. 29].

IT IS SO ORDERED.

Dated this 18th day of April, 2022.

_________________________________

STEPHANIE M. ROSE, CHIEF JUDGE

UNITED STATES DISTRICT COURT

-11APP. p. 011

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APPENDIX B

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.