U.S. v. Grosenheider

• Decision Date: 11 January 2000
• Docket Number: No. 98-50888,98-50888
• Citation: 200 F.3d 321
• Parties: (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellant-Cross-Appellee, v. JOHN STEPHEN GROSENHEIDER, Defendant-Appellee-Cross-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 321

200 F.3d 321 (5th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellant-Cross-Appellee, v. JOHN STEPHEN GROSENHEIDER, Defendant-Appellee-Cross-Appellant.

No. 98-50888

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

January 11, 2000

[Copyrighted Material Omitted] Appeals from the United States District Court for the Western District of Texas, Austin Division

Before GARWOOD, SMITH and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-cross-appellant John Stephen Grosenheider (Grosenheider) was indicted for the receipt and possession of computer images of child pornography under 18 U.S.C. 2252A(a)(5)(B). After the district court denied his motion to suppress the evidence taken from his computer, Grosenheider entered a conditional guilty plea to one count of possession. The court sentenced him to twelve months' incarceration. Grosenheider appeals the denial of his suppression motion, and the government appeals the sentence. We affirm the district court's denial of the suppression motion, but vacate the sentence and remand for resentencing.

Facts and Proceedings Below

On October 24, 1997, Grosenheider dropped off his personal computer for repair work at Upgraders, a computer repair shop in Austin, Texas. While conducting a final quality assurance check of the computer on Thursday, October 30, 1997, Upgraders employee Patrick Rowan (Rowan) discovered an unusually large number of image files, known as "JPG's", on the computer's hard drive. Knowing that JPG's in large numbers often depict pornographic images, Rowan opened some of these files and found between two and five images of child pornography. Rowan showed the images to his employer, Nathaniel Monks (Monks), the owner of Upgraders, as well as to two other employees, all of whom agreed that the images depicted child pornography. The repairs now complete, the Upgraders staff returned the computer to the retail store for pick up. Grosenheider retrieved the computer some time later that day.¹

At approximately 9:00 a.m. the next morning, Friday, October 31, 1997, Monks contacted the Austin Police Department about the images Rowan had discovered. He spoke with Steven Meaux (Meaux), a vice officer, and informed Meaux about the images he had seen and the fact that the computer was now back in Grosenheider's possession. Meaux arrived at Upgraders thirty to forty-five minutes later. His primary purpose was to identify and interview the staff members who had seen the images. Meaux first entered the retail store, but an employee directed him to the tech shop, where Monks, Rowan, and the other employees who had seen the images were waiting. When Meaux got there, Monks told him that Grosenheider had brought the computer back that morning because the hard drive was still not operating properly, and that Rowan had begun working on it in the tech shop. As Meaux began to interview the assembled employees, another employee entered the tech shop and said that Grosenheider had again returned to the retail store, asking about his computer. Meaux told Monks to "stall" Grosenheider by telling him the store needed to order additional parts. Monks complied, and from the tech shop Meaux watched Grosenheider leave the retail store and drive away.

After Grosenheider left, Meaux completed his interview of Rowan, Monks, and the other employees about the images they had seen on the computer. They told him that the images depicted young girls approximately ten years old engaged in sexual conduct of various kinds. During this time, Rowan had been working on his repair of Grosenheider's computer, a process which took approximately fifteen minutes to complete. There is some dispute -which the district court expressly declined to resolve-whether Meaux then asked to see or Rowan offered to show him the pictures. In any event, Rowan attempted to access the images on the computer, only to find them "locked", that is, inaccessible without a password. The password lock had not appeared the day before. Unable to override the lock, Rowan asked another, more experienced Upgraders employee, Cary Richardson (Richardson), for help. By using another image viewing program, Richardson by-passed the lock. Rowan then showed Meaux the images he had seen the day before, as well as additional ones. After viewing between six and ten images, Meaux "had seen enough" to determine that the computer contained depictions of child pornography.

At approximately 11:00 a.m., Meaux took the computer from Upgraders to his office at the Austin Police Department, and contacted Theodore Siggins (Siggins), a special agent with the United States Customs Service. Meaux advised Siggins of his discovery and asked if Siggins was interested in pursuing a federal investigation. Siggins agreed to take over the case, and immediately began preparing a search warrant affidavit. In his affidavit, Siggins recounted the discovery by the Upgraders staff of the pornographic images, Grosenheider's bringing the computer back to Upgraders, and the call from Monks to Meaux. He did not mention Meaux's viewing of the images or his seizure of the computer. At approximately 4:30 p.m. that afternoon, Siggins applied for and received a warrant to search the computer from a United States Magistrate Judge.

After obtaining the warrant, Siggins secured the computer from Meaux and took it to Upgraders, where he informed Monks that he had a warrant for the computer and would return it to Upgraders once he had finished searching it. Siggins then took the computer back to his office and made a backup image of the computer's entire hard drive. He analyzed the image on one of the government's computers, and found that Grosenheider had subscribed to Forte Agent, an on-line service that enables subscribers to access various "newsgroups" on the Internet.² Grosenheider had subscribed to fifteen newsgroups, thirteen of which featured images and messages concerning child pornography.³ Siggins found that from these newsgroups Grosenheider had downloaded over 500 images of young females, ages ten to fourteen, engaged in various sexually explicit acts. Grosenheider had also established over 250 files, each of which contained at least one image of child pornography and sometimes included textual commentary with the image. Siggins determined further that Grosenheider had viewed many of these images more than once because the "creation date" on the files sometimes differed from the "last access date", meaning that the file had been modified or viewed after being downloaded. Based on these findings, Siggins applied for and received another warrant to search Grosenheider's home in Austin.

On the following Monday, November 3, 1997, Siggins returned the computer to Upgraders in anticipation of a "controlled delivery." Grosenheider's wife picked up the computer from Upgraders that same day and took it back to their home. Federal agents followed Mrs. Grosenheider to the residence; upon her arrival, they executed the search warrant. The agents seized the computer, but did not find any additional child pornography at the residence.

Grosenheider was indicted and charged with (1) Receipt of Visual Depictions of Minors engaged in Sexually Explicit Conduct in violation of 18 U.S.C. 2252(a)(2), and (2) Possession of Visual Depictions of Sexual Activities by Minors in violation of 18 U.S.C. 2252A(a)(5)(B). On February 26, 1998, Grosenheider filed a motion to suppress the evidence seized from his computer and residence. While conceding that the first search of his computer by Rowan was a private search, and therefore not subject to the Fourth Amendment, Grosenheider challenged the second search by Meaux. Specifically, he alleged that Meaux's breaking (with the help of Upgraders employees) the password lock, viewing more images than Rowan had seen, and subsequently seizing the computer violated Grosenheider's rights under the Fourth Amendment. The district court conducted two evidentiary hearings, on March 13 and May 1, 1998, and denied the motion in a May 11, 1998 memorandum order. The following day, May 12, Grosenheider entered a conditional guilty plea to the possession charge (Count II), pursuant to which he reserved the right to appeal the denial of his suppression motion. The remaining count was dismissed.

The district court conducted a sentencing hearing on July 31, 1998, and found that Grosenheider's total offense level was eighteen, with an applicable incarceration range of twenty-seven to thirty-three months.⁴ Apparently reasoning that Grosenheider's case bore little resemblance to the "pornography" cases the court had previously sentenced, which (with one exception) had all involved "perverted people with a long track record of harm to others," the district court departed downward and sentenced Grosenheider to twelve months incarceration, followed by a three-year term of supervised release.⁵ In the court's opinion, this sentence was amply sufficient,⁶ though the court plainly doubted its legality.⁷

Grosenheider now appeals the district court's denial of his motion to suppress. The United States appeals Grosenheider's sentence. We affirm the denial of the suppression motion, but vacate the sentence and remand for resentencing.

Discussion

I. Grosenheider's Motion to Suppress

Grosenheider contends that the district court erred in denying his motion to suppress the evidence obtained from his computer. Specifically, he argues that Meaux's search of the computer, during which Meaux viewed images of child pornography with help from and in the presence of Upgraders employees, was illegal, as was Meaux's subsequent warrantless seizure of the computer. We conclude, however, that because Siggins obtained the evidence by lawful means independent of Meaux's search or seizure, the evidence used against Grosenheider was not the "tainted fruit" of any illegality. Under the "independent source" doctrine, we conclude that this evidence should not be...