U.S. v. Loy

• Decision Date: 08 September 1999
• Docket Number: No. 98-3636,98-3636
• Parties: (3rd Cir. 1999) UNITED STATES OF AMERICA, v. RAY DONALD LOY APPELLANT
• Court: U.S. Court of Appeals — Third Circuit

Page 360

191 F.3d 360 (3rd Cir. 1999)

UNITED STATES OF AMERICA, v. RAY DONALD LOY APPELLANT

No. 98-3636

U.S. Court of Appeals, Third Circuit

Argued June 9, 1999

Decided September 08, 1999

Appeal from the United States District Court for the Western District of Pennsylvania District Judge: Honorable Alan N. Bloch (D.C. Criminal No. 98-cr-00089) [Copyrighted Material Omitted]

Marketa Sims, Esquire (argued) Assistant Federal Public Defender Shelley Stark, Esquire Federal Public Defender 415 Convention Tower 960 Penn Avenue Pittsburgh, PA 15222 Counsel For Appellant

Mary Beth Buchanan, Esquire (argued) Assistant United States Attorney Harry Litman, Esquire United States Attorney 633 U.S. Post Office and Courthouse Pittsburgh, Pennsylvania 15219 Counsel For The United States

Before: Sloviter and Mansmann, Circuit Judges, and Ward,^* District Judge.

OPINION OF THE COURT

Ward, District Judge

BACKGROUND

In 1997, the United States Postal Inspection Service and the Pennsylvania State Attorney General's Office conducted a joint undercover child pornography investigation. On March 6, 1997, Ray Donald Loy wrote a letter to Postal Inspector Thomas Kochman in response to an advertisement placed in a sexually explicit magazine by Special Agent Dave Guzy of the Attorney General's Office. In that letter, Loy indicated that he and his wife had a "good collection" of child pornography and he expressed an interest in trading tapes with Kochman. Loy stated that if Kochman was serious about trading, Kochman should call Loy so they could discuss it over the telephone.

On March 17, 1997, Inspector Kochman monitored and recorded a call placed by Special Agent Guzy to Loy. During that conversation, Loy gave detailed descriptions of some of the tapes in his collection and told the agent that he could "put together" tapes for trading. He also indicated that he trades with many people and offered to give Guzy their names. In addition, Loy described how he had produced videos by hiding a camcorder in his bag and filming up the skirts of young girls as they rode the escalators at a mall.

During the March 17 telephone conversation, Loy specified that he was interested in receiving material from the undercover agent involving girls ranging from eight to thirteen years of age. He specifically requested that Guzy send him a tape of girls between the ages of eight and ten in a bathtub ("Bath Time video"), which the agent agreed to do. On April 28, 1997, Inspector Kochman received a letter from Loy bearing the return address of R. Loy, P.O. Box 114, Langeloth, Pennsylvania 15054, requesting again that the agent send him the Bath Time video. In exchange, Loy offered to send a video of twelve and thirteen year old children engaged in sexually explicit conduct.

Postal Inspector Thomas Clinton determined that the post office box Loy used as his return address had, in fact, been opened by Loy. The application for the box listed Loy's address as 204 Charles Street, Langeloth, Pennsylvania 15054. On May 5, 1997, Inspector Clinton prepared a package containing the Bath Time video for delivery to Loy's P.O. Box and, the same day, submitted an affidavit and application for an anticipatory search warrant for Loy's residence at 204 Charles Street. The application requested authorization to seize evidence of violations of Title 18, U.S.C. §§ 2252 (a)(2), receipt of child pornography, and 2252(a)(4)(B), possession of child pornography. The evidence to be seized included: videotapes depicting child pornography, video equipment for viewing, producing, and reproducing child pornography, and lists of individuals with whom Loy traded. The application conditioned the search on Loy accepting delivery of the Bath Time tape and returning to his residence with the tape in his possession. Chief United States Magistrate Judge Kenneth J. Benson issued the anticipatory warrant requested by Inspector Clinton.

On May 6, 1997, Clinton delivered the package containing the tape to Loy's post office box in Langeloth, Pennsylvania and observed Loy accept delivery of the package. Other agents maintained surveillance of Loy as he left the post office and returned home with the tape. Loy was observed entering his residence with the package in his possession. Inspector Clinton then executed the search warrant, seizing from Loy's residence the Bath Time videotape as well as another tape depicting child pornography, fifteen computer disks containing child pornography, fifty videocassettes, several pornographic magazines, a VCR player and television set, as well as various letters describing Loy's solicitation of child pornography and his offers to trade such materials.

On May 2, 1998, a grand jury returned a two-count Indictment against Loy. The first count of the Indictment charged Loy with knowingly receiving child pornography through the United States mail in violation of 18 U.S.C. § 2252(a)(2). The second count charged him with knowingly possessing three or more items, containing visual depictions produced using materials transported in interstate and foreign commerce, the production of which involved the use of minors engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252 (a)(4)(B).

Loy moved to suppress the evidence seized from his home, alleging that the search warrant was not supported by probable cause. A suppression hearing was held before the district court on August 13, 1998. The district court denied Loy's motion, finding that the warrant was supported by probable cause and that even if the warrant was invalid, the evidence need not be suppressed because the good faith exception to the exclusionary rule applied. On September 3, 1998, Loy entered an unconditional plea of guilty to Count One of the Indictment and a conditional guilty plea to Count Two. Loy's conditional plea preserved his right to appeal whether the search warrant was supported by probable cause and whether the officers reasonably relied on the warrant in good faith. On December 3, 1998 the district court sentenced Loy to a thirty-three month term of imprisonment followed by three years of supervised release. Additionally, the district court imposed special conditions of supervised release requiring Loy to undergo testing and treatment for drugs and alcohol, prohibiting him from having unsupervised contact with minors, and forbidding him from possessing pornography of any type. Loy objected to these conditions on the grounds that they were not supported by the record and violated his fundamental rights.

On appeal, Loy raises three arguments. First, Loy argues that the district court erred in failing to suppress the evidence obtained from his home pursuant to the anticipatory search warrant. Second, Loy contends that the search warrant issued by the magistrate Judge did not describe the items to be seized with sufficient particularity since the overbroad language in the warrant could lead to the mistaken seizure of material protected by the First Amendment. The final argument made by Loy on appeal is that the district court abused its discretion in imposing the special conditions of supervised release.

DISCUSSION

I. Validity of the Warrant

A. Constitutionality of Anticipatory Search Warrants

As an initial matter, appellant urges this Court to rule that anticipatory warrants are per se unconstitutional. The constitutionality of anticipatory warrants, i.e. warrants that become effective upon the happening of a future event, is a question of first impression in this Circuit. However, we recognize that every circuit court of appeals to have addressed this question has held that anticipatory search warrants are not categorically unconstitutional. See, e.g., United States v. Hugoboom, 112 F.3d 1081, 1085-86 (10th Cir. 1997); United States v. Ricciardelli, 998 F.2d 8, 11 (1st Cir. 1993); United States v. Tagbering, 985 F.2d 946, 950 (8th Cir. 1993); United States v. Wylie, 919 F.2d 969, 974 (5th Cir. 1990); United States v. Garcia, 882 F.2d 699, 703 (2d Cir.), cert. denied, 493 U.S. 943 (1989); United States v. Goodwin, 854 F.2d 33, 36 (4th Cir. 1988); United States v. Goff, 681 F.2d 1238, 1240 (9th Cir. 1982); United States v. Lowe, 575 F.2d 1193, 1194 (6th Cir.) cert. denied, 439 U.S. 869 (1978); United States ex rel. Beal v. Skaff , 418 F.2d 430, 432-33 (7th Cir. 1969).¹ Such warrants have repeatedly been upheld where they are supported by probable cause and the conditions precedent to the search are clearly set forth in the warrant or supporting affidavit. Hugoboom, 112 F.3d at 1085 (citing cases). We agree with the other circuits that "the simple fact that a warrant is `anticipatory' . . . does not invalidate a warrant or make it somehow suspect or legally disfavored." United States v. Gendron, 18 F.3d 955, 965 (1st Cir.), cert. denied, 513 U.S. 1051 (1994); Hugoboom, 112 F.3d at 1085 (quoting Gendron, 18 F.3d. at 965). We hold, therefore, that anticipatory warrants which meet the probable cause requirement and specifically identify the triggering event are not per se unconstitutional.

B. Probable Cause

Anticipatory warrants differ from traditional warrants in that they are not supported by probable cause to believe the items to be seized are at the place to be searched when the warrant is issued. United States v. Rowland, 145 F.3d 1194, 1201 (10th Cir. 1998). In fact, when issuing an anticipatory warrant, the court knows that the contraband has not yet reached the place to be searched. Id. That does not mean, however, that anticipatory warrants do not have to be supported by probable cause. As with all warrants, there must be a sufficient nexus between the contraband to be seized and the place to be searched before an anticipatory warrant can be issued. Id. (quoting United States v. Dennis, 115 F.3d 524, 529 (7th Cir. 1997)).

To satisfy the nexus requirement, it is not enough that the anticipatory search warrant be conditioned on the contraband arriving at the...