U.S. v. Carey

• Decision Date: 14 April 1999
• Docket Number: No. 98-3077,98-3077
• Citation: 172 F.3d 1268,1999 WL 215669
• Parties: 1999 CJ C.A.R. 2287 UNITED STATES of America, Plaintiff-Appellee, v. Patrick CAREY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1268

172 F.3d 1268

1999 CJ C.A.R. 2287

UNITED STATES of America, Plaintiff-Appellee, v. Patrick CAREY, Defendant-Appellant.

No. 98-3077.

United States Court of Appeals, Tenth Circuit.

April 14, 1999.

Order Denying Rehearing April 30, 1999.

John V. Wachtel, Klenda, Mitchell, Austerman & Zuercher, L.L.C., Wichita, KS, for Defendant-Appellant.

Thomas G. Luedke, Assistant United States Attorney (Jackie N. Williams, United States Attorney, with him on the briefs), Topeka, Kansas, for Plaintiff-Appellee.

Before PORFILIO, McWILLIAMS, and BALDOCK, Circuit Judges.

PORFILIO, Circuit Judge.

Patrick J. Carey was charged with one count of possessing a computer hard drive that contained three or more images of child pornography produced with materials shipped in interstate commerce. See 18 U.S.C. § 2252A(a)(5)(B) (1996). ¹ Following a conditional plea of guilty, he appeals an order of the district court denying his motion to suppress the material seized from his computer on grounds it was taken as the result of a general, warrantless search. He also contends his sentence was illegal and the district court erred in failing to depart downward from the guideline range, but we do not reach these issues. We conclude the motion to suppress should have been granted and reverse.

I.

Mr. Carey had been under investigation for some time for possible sale and possession of cocaine. Controlled buys had been made from him at his residence, and six weeks after the last purchase, police obtained a warrant to arrest him. During the course of the arrest, officers observed in plain view a "bong," a device for smoking marijuana, and what appeared to be marijuana in defendant's apartment.

Alerted by these items, a police officer asked Mr. Carey to consent to a search of his apartment. The officer said he would get a search warrant if Mr. Carey refused permission. After considerable discussion with the officer, Mr. Carey verbally consented to the search and later signed a formal written consent at the police station. Because he was concerned that officers would "trash" his apartment during the search, Mr. Carey gave them instructions on how to find drug related items.

The written consent to search authorized Sergeant William Reece "to have conducted a complete search of the premises and property located at 3225 Canterbury # 10, Manhattan, KS 66503." It further provided, "I do freely and voluntarily consent and agree that any property under my control ... may be removed by the officers ... if said property shall be essential in the proof of the commission of any crime in violation of the Laws of the United States...." Armed with this consent, the officers returned to the apartment that night and discovered quantities of cocaine, marijuana, and hallucinogenic mushrooms. They also discovered and took two computers, which they believed would either be subject to forfeiture or evidence of drug dealing.

The computers were taken to the police station and a warrant was obtained by the officers allowing them to search the files on the computers for "names, telephone numbers, ledger receipts, addresses, and other documentary evidence pertaining to the sale and distribution of controlled substances." Detective Lewis and a computer technician searched the contents of the computers, first viewing the directories of both computers' hard drives. They then downloaded onto floppy disks and printed the directories. Included in the directories were numerous files with sexually suggestive titles and the label "JPG." ² Lewis then inserted the disks into another computer and began searching the files copied from Mr. Carey's computers. His method was to enter key words such as, "money, accounts, people, so forth" into the computer's explorer to find "text-based" files containing those words. This search produced no files "related to drugs."

Undaunted, Detective Lewis continued to explore the directories and encountered some files he "was not familiar with." Unable to view these files on the computer he was using, he downloaded them to a disk which he placed into another computer. He then was "immediately" able to view what he later described as a "JPG file." Upon opening this file, he discovered it contained child pornography.

Detective Lewis downloaded approximately two hundred forty-four JPG or image files. These files were transferred to nineteen disks, only portions of which were viewed to determine that they contained child pornography. Although none of the disks was viewed in its entirety, Detective Lewis looked at "about five to seven" files on each disk. Then, after viewing the contents of the nineteen disks in that fashion, he returned to the computers to pursue his original task of looking for evidence of drug transactions.

Mr. Carey moved to suppress the computer files containing child pornography. During the hearing on the motion, Detective Lewis stated although the discovery of the JPG files was completely inadvertent, when he saw the first picture containing child pornography, he developed probable cause to believe the same kind of material was present on the other image files. When asked why, therefore, he did not obtain a warrant to search the remaining image files for child pornography, he stated, "that question did arise, [a]nd my captain took care of that through the county attorney's office." No warrant was obtained, but the officer nonetheless continued his search because he believed he "had to search these files as well as any other files contained [in the computer]."

Upon further questioning by the government, Detective Lewis retrenched and stated until he opened each file, he really did not know its contents. Thus, he said, he did not believe he was restricted by the search warrant from opening each JPG file. Yet, after viewing a copy of the hard disk directory, the detective admitted there was a "phalanx" of JPG files listed on the directory of the hard drive. ³ He downloaded and viewed these files knowing each of them contained pictures. He claimed, however, "I wasn't conducting a search for child pornography, that happened to be what these turned out to be."

At the close of the hearing, the district court ruled from the bench. Without any findings, the court denied the motion, saying: "[a]t this point, the Court feels that the ... Defendant's Motion to Suppress ... would be--should be denied. And that will be the order of the Court, realizing that they are close questions." No subsequent written order containing findings of fact or conclusions of law was filed.

II.

We review the denial of a motion to suppress for clear error. See United States v. Griffin, 7 F.3d 1512, 1516 (10th Cir.1993). Reasonableness of a search is reviewed de novo. See United States v. Eylicio-Montoya, 18 F.3d 845, 848 (10th Cir.1994). Mr. Carey complains: (1) search of the computers exceeded the scope of the warrant, (2) he did not consent to the search of his apartment, and (3) seizure of the computers was unlawful because the officers lacked probable cause. We address only the first issue.

Mr. Carey argues the search of the computers transformed the warrant into a "general warrant" and resulted in a general and illegal search of the computers and their files. The Fourth Amendment requires that a search warrant describe the things to be seized with sufficient particularity to prevent a general exploratory rummaging in a person's belongings. See Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927) ("The requirement that warrants shall particularly describe things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is to be left to the discretion of the officer executing the warrant."). As we have instructed:

The essential inquiry when faced with challenges under the Fourth Amendment is whether the search or seizure was reasonable--reasonableness is analyzed in light of what was reasonable at the time of the Fourth Amendment's adoption.... It is axiomatic that the 4th Amendment was adopted as a directed response to the evils of the general warrants in England and the writs of assistance in the Colonies.

O'Rourke v. City of Norman, 875 F.2d 1465, 1472 (10th Cir.1989) (citations omitted).

Mr. Carey argues that examined against history and case law, the search constituted general rummaging in "flagrant disregard" for the terms of the warrant and in violation of the Fourth Amendment. United States v. Foster, 100 F.3d 846, 849-50 (10th Cir.1996). Despite the specificity of the search warrant, files not pertaining to the sale or distribution of controlled substances were opened and searched, and according to Mr. Carey, these files should have been suppressed. See id. at 849.

The government responds that the plain view doctrine authorized the police search. See Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). A police officer may properly seize evidence of a crime without a warrant if:

(1) the officer was lawfully in a position from which to view the object seized in plain view; (2) the object's incriminating character was immediately apparent--i.e., the officer had probable cause to believe the object was contraband or evidence of a crime; and (3) the officer had a lawful right of access to the object itself.

United States v. Soussi, 29 F.3d 565, 570 (10th Cir.1994) (citing Horton v. California, 496 U.S. 128, 134, 110 S.Ct. 2301, 2307, 110 L.Ed.2d 112 (1990)).

According to the government, "a computer search such as the one undertaken in this case is tantamount to looking for documents in a file cabinet, pursuant to a valid search warrant, and instead finding child pornography." Just as if officers has seized pornographic photographs from a file cabinet, seizure of the pornographic computer images was permissible because officers had a valid warrant, the pornographic...