U.S. v. Wong

• Decision Date: 26 June 2003
• Docket Number: No. 02-10070.,02-10070.
• Citation: 334 F.3d 831
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond WONG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

334 F.3d 831

UNITED STATES of America, Plaintiff-Appellee, v. Raymond WONG, Defendant-Appellant.

No. 02-10070.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 6, 2002.

Filed June 26, 2003.

COPYRIGHT MATERIAL OMITTED

Arthur Wachtel, Esq. and James P. Collins, Esq., San Francisco, California, for the Appellant.

Amber S. Rosen, Assistant United States Attorney, San Jose, California, for the Appellee.

Appeal from the United States District Court for the Northern District of California; Claudia Wilken, District Judge, Presiding. D.C. No. CR-00-40069-CW.

Before BRUNETTI, TASHIMA, Circuit Judges, and EZRA,^* District Judge.

OPINION

BRUNETTI, Circuit Judge:

Appellant Raymond Wong pleaded nolo contendere to violations of 18 U.S.C. §§ 2252(a)(2) and 2252(a)(4)(B), statutes prohibiting the receipt and possession of child pornography. On February 8, 2002, Wong was sentenced to 27 months' imprisonment. Police discovered the evidence related to the child pornography charges when they executed a series of search warrants at Wong's home and on his computers in connection with the disappearance and murder of Wong's live-in girlfriend Alice Sin. Wong preserved the right to appeal the district court's denial of his motion to suppress the evidence retrieved pursuant to three search warrants dated January 26, 2000, January 28, 2000, and February 2, 2000. Wong now appeals the district court's denial of his motion to suppress. Wong claims the warrants lacked probable cause, were overbroad, and were fruit of the poisonous tree. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the district court's denial of the motion to suppress.

I.

On November 22, 1999, Wong reported to the Pinole, California Police Department that his live-in girlfriend Alice Sin had been missing since the previous day. Wong initially told police that he and Sin were married, when in fact, they were not. Sin was pregnant at the time of her disappearance, a fact Wong did not tell police until days after he reported her missing. Pinole officers investigated Sin's disappearance, and, on November 24, discovered her car one-half mile from the home she shared with Wong. Police cadaver dogs detected decaying human flesh in the trunk of Sin's car. During a consensual search of Wong's home, police noticed a nine millimeter gun in his closet. Officers also learned that Wong and Sin fought in the months prior to her disappearance. Wong's other girlfriend Jessica Tang mother of his infant daughter, began staying at Wong's home when Sin disappeared. Pinole officers discovered that Tang had threatened Sin shortly before her disappearance. On November 30, 1999, Wong agreed to take a polygraph test administered by a Contra Costa County senior inspector. The polygraph results showed that Wong was over 99% deceptive when he answered "no" to the questions "Do you know what happened to Alice Sin?" and "Are you lying about what happened to Alice?" On January 24, 2000, Sin's body was discovered in Churchill County, Nevada. Sin had been shot twice in the head, once in the back, and once under her arm. Nine millimeter shell casings were found near her body. Police also found Monopoly money marked with the letters "NWO" and "ZOG," letters commonly used by white supremacy groups, near Sin. Because of the evidence gathered during the investigation, Pinole police applied for a warrant to search Sin and Wong's house.

On January 26, 2000, Pinole Sergeant Carmichael presented to the magistrate judge a search warrant, affidavit, and statement of probable cause to search Wong's house and cars. The preface of the search warrant limited the seizure to items used to commit a felony, or evidence that tended to show a felony had been committed or a particular person committed the felony. Sergeant Carmichael specified in the search warrant that he would be looking for "[a]ny writings or documents which display the letters `NWO' and `ZOG'"; "[a]ny maps, reciepts [sic], or writings, depicting Churchill County Nevada"; and "[a]ny and all identification and documents belonging to Alice Sin." Sergeant Carmichael additionally requested, in Item Nine of the warrant, to search the computers, their components, and disks to "obtain data as it relates to this case." In his statement of probable cause, Carmichael asserted that he believed probable cause existed to search Wong and Tang's home and cars for evidence of murder. The warrant issued and the police recovered many items from Wong's home, including the computers the search of which Wong challenges in this appeal.

On January 28, 2000, Sergeant Carmichael presented a new search warrant and "Addendum to Search Warrant — Statement of Probable Cause" ("Addendum") to search the computers, two Palm Pilots, a computer tower, and six laptops recovered on January 26, seized pursuant to the first warrant. He included the January 26 warrant and statement of probable cause when presenting the second warrant to the magistrate judge. The Addendum presented on January 28 provided further justifications to search the seized computers. Sergeant Carmichael indicated in the Addendum that Alice Sin kept personal information in the Palm Pilots. Sin also used the computers for email and writing. During the search of Wong's house on January 26, Sergeant Carmichael noticed software for online services. As indicated in the Addendum, in his training and experience, Sergeant Carmichael realized that people can use the internet to make travel reservations and research items such as white supremacy groups. On January 28, the magistrate judge added a handwritten notation to the attached first warrant indicating that the "[i]tems described in Addendum, Search Warrant 2" could be searched. The magistrate judge signed the second warrant.

At the request of Sergeant Carmichael, and pursuant to the January 28 search warrant, Wilson Van Alst, a Special Agent with the California Department of Justice and computer forensic specialist, searched Wong's computers for maps and writings related to Churchill County, Nevada; information related to nine millimeter firearms; references to or depictions of Monopoly money; Sin's documents; and files containing the symbols "NWO" and "ZOG." Van Alst determined that the items for which he was searching could be in plain text, special text, or graphics files. Specifically, Van Alst believed that any Churchill County maps, depictions of Monopoly money, or references to "NWO" or "ZOG" downloaded from the internet would be located in graphics files. After he began his search of the graphics files, Van Alst discovered child pornography. He made a note of the pornography files' location, and continued with his search for evidence related to Sin's murder. Van Alst's written report, dated March 6, 2000, indicated that he had discovered on Wong's computers numerous images of children as young as age three engaged in sexual acts with other children and adults.

After execution of the January 26 warrant, Sergeant Carmichael discovered that Wong, who was in Canada on business for his employer Safeway Corporation ("Safeway"), told his colleagues that he would not be returning to California because of the investigation into Sin's death. Wong failed to return to work at the Canadian Safeway and left behind a Dell laptop computer that a Canadian Safeway employee mailed to a Safeway store in California. The computer had the same type of disks as those found in Wong's home. On February 2, 2000, Sergeant Carmichael applied for a third warrant, which included a request to search the computer, located at Safeway, for "any and all computer files whether text or image," the associated disks, and the carrying case for the computer. The affidavit for the search warrant specifically incorporated the attached statement of probable cause. The attached statement of probable cause indicated that Sergeant Carmichael had discovered child pornography on the computers searched pursuant to the January 28 warrant, and believed probable cause existed that child pornography would be on the laptop. The magistrate judge signed the third warrant. After the execution of the February 2 warrant, Sergeant Carmichael discovered that the laptop computer specified in the warrant belonged to Teligent Corporation ("Teligent"), Wong's former employer. Because Wong no longer worked for Teligent in January 2000, Teligent's attorney claimed that Wong had no right to the computer and that Teligent considered it to be stolen property.

On March 16, 2000, Wong was indicted on child pornography charges. On April 28, 2000, Wong filed a motion to suppress related to the evidence recovered during the search of Wong's house and computers. On November 6, 2000, the district court denied the motion as to the January 26, January 28, and February 2, 2000 search warrants. Wong pleaded nolo contendere to the charges, but reserved his right to appeal the denial of his motion to suppress.

II.

On appeal, Wong claims that the January 26, 2000 warrant lacked probable cause and specificity. He asserts that the January 28, 2000 warrant was both fruit of the poisonous tree and overbroad. Finally, he claims that the February 2, 2000 warrant was fruit of the poisonous tree. The government contests Wong's standing to appeal the search of the computer in the February 2 warrant.

A.

First, Wong contends that the January 26 warrant lacked both probable cause that evidence of criminal activity would be found on the computers and specificity. We review a magistrate judge's finding of probable cause to issue a search warrant for clear error. United States v. Patterson, 292 F.3d 615, 625 (9th Cir.2002). Probable cause is determined by looking at the totality of circumstances. Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Probable cause exists if "it would be reasonable to seek the evidence in the place indicated in the affidavit." United States v....