U.S. v. Payton

• Decision Date: 21 July 2009
• Docket Number: No. 07-10567.,07-10567.
• Citation: 573 F.3d 859
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Clay PAYTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

573 F.3d 859

UNITED STATES of America, Plaintiff-Appellee, v. Michael Clay PAYTON, Defendant-Appellant.

No. 07-10567.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 19, 2008.

Filed July 21, 2009.

Eric V. Kersten, Assistant Federal Public Defender, Fresno, CA, for the plaintiff-appellee.

Sherrill A. Carvalho, Assistant United States Attorney, Fresno, CA, for the defendant-appellant.

Appeal from the United States District Court for the Eastern District of California, Oliver W. Wanger, District Judge, Presiding, D.C. No. CR-05-00333-OWW.

Before: WILLIAM C. CANBY, JR. and KIM McLANE WARDLAW, Circuit Judges, and RICHARD MILLS,^* District Judge.

CANBY, Circuit Judge:

Michael Payton appeals the district court's denial of his motion to suppress evidence of child pornography found on his personal computer. Payton pled guilty to knowingly possessing images of child pornography in violation of 18 U.S.C. § 2252(a)(4), conditioned on his right to make this appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse the judgment of the district court and remand with instructions.

BACKGROUND

In 2004, a California Superior Court judge issued a search warrant for a house in Merced County where Payton resided. Police believed that the occupants were selling drugs. The warrant directed officers to search for any item listed in "Attachment A," which included methamphetamine and materials used to cut and package it. Attachment A also included, among other things, "[s]ales ledgers showing narcotics transactions such as pay/owe sheets" and "[f]inancial records of the person(s) in control of the residence or premises, bank accounts, loan applications, [and] income and expense records." The warrant did not explicitly authorize the search of computers.

During the execution of the search, the officers found no evidence of drug sales. Officer Horn found a computer in Payton's bedroom with the screen saver activated. He moved the mouse, which removed the screen saver, and clicked open a file. It disclosed an image that he thought was child pornography. This and images like it eventually led to Payton's charge for possession of child pornography. Payton moved to suppress the evidence, challenging the search on the two grounds he raises on appeal. First, he argued that the warrant lacked probable cause because it relied on a misrepresentation of a neighbor's complaint. Second, he argued that the search of the computer exceeded the scope of the warrant. After the district court rejected these challenges and denied the motion to suppress, Payton entered a conditional guilty plea and was sentenced.

To establish probable cause, the warrant incorporated by reference Officer Horn's affidavit, which included Officer Horn's statement of probable cause. This statement requested permission to search any computer within the residence, although Officer Horn did not have any particular reason to believe that a computer would be found in the house. The Superior Court judge testified at the suppression hearing that he had intended to authorize the search of any computer found in the residence, but the warrant as issued did not explicitly direct a search for, or search of, any computers.

Officer Horn declared in his probable cause statement that neighbors had complained of drug sales. It is uncontested, however, that only one neighbor complained, and of drug use, not drug sales. To determine the consequence of the misrepresentation, the district court held a Franks hearing. See Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (requiring evidentiary hearing when defendant preliminarily shows that false statement was knowingly and intentionally, or with reckless disregard for the truth, included by affiant in search warrant affidavit). Officer Horn testified at that hearing that he suspected drug sales for a few reasons. First, the contents of a video that the neighbor had taken showed people not thought to be residents using drugs outside of the house. Second, the police had previously arrested one of the residents in the house and had found 2.7 grams of methamphetamine on her person; to Officer Horn, this quantity, and the fact that it was divided into two separate packages, evidenced an intent to sell. Officer Horn had included all of this information in his affidavit stating probable cause, as well as a statement that "based upon [his] training and experience," drug dealers maintain records of sale on their computers.

The district court held that probable cause supported the issuance of the warrant. The district court stated that "even if [it] excised and consider[ed] the entire warrant without a complaint of neighbors of drug sales," the warrant was still sufficient in light of the other evidence presented. The district court also held that the search of the computer was valid because the failure to include the word "computers" in Attachment A was an oversight cured by the issuing judge's testimony of his intent. Accordingly, it dismissed the motion to suppress the evidence of child pornography obtained as a result of the search. We agree with the district court that the search warrant was supported by probable cause despite Officer Horn's misrepresentation of a neighbor's report. We conclude, however, that the search of the computer violated Payton's Fourth Amendment rights. Accordingly, we reverse the denial of the motion to suppress, and remand with instructions to permit Payton to withdraw his conditional guilty plea.

DISCUSSION

I. Probable Cause Supporting the Search Warrant

Payton contends that Officer Horn's affidavit contains a materially false statement that invalidates the warrant by destroying probable cause. We review de novo the district court's conclusion that probable cause existed, examining whether there was a "fair probability" of drug sales. See United States v. Bishop, 264 F.3d 919, 924 (9th Cir.2001). We must "give due weight to inferences drawn from[the] facts by resident judges and local law enforcement officers." Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

Officer Horn's statement that neighbors had complained of drug sales was materially false. See United States v. Stanert, 762 F.2d 775, 780-82 (9th Cir. 1985) (affiant's statement that someone had reported the manufacturing of drugs was materially false, when report had only been of suspected drug use). There had been no complaint of drug sales, only of drug use. That fact does not end the inquiry whether there was probable cause to believe that drug sales had been occurring, however, because suppression is required only if the remaining evidence is insufficient to establish probable cause. See Franks, 438 U.S. at 155-56, 98 S.Ct. 2674. There is no such insufficiency here. Officer Horn stated in the probable cause statement and at the suppression hearing that the quantity and packaging of the drugs recently discovered on a resident of the house indicated to him drug sale activity. This was a reasonable interpretation of the facts, and the issuing judge was entitled to rely on the training and experience of Officer Horn. See United States v. Chavez-Miranda, 306 F.3d 973, 978 (9th Cir.2002). Accordingly, the district court did not err in denying Payton's challenge to the validity of the warrant.

II. Scope of the Search Warrant

We conclude that the search of Payton's computer exceeded the scope of the warrant and did not meet the Fourth Amendment standard of reasonableness. There is no question that computers are capable of storing immense amounts of information and often contain a great deal of private information. Searches of computers therefore often involve a degree of intrusiveness much greater in quantity, if not different in kind, from searches of other containers. Such considerations commonly support the need specifically to authorize the search of computers in a search warrant, as Officer Horn requested in the present case. Despite his request, the warrant did not explicitly authorize the search of Payton's computer, and it incorporated Officer Horn's affidavit only to support probable cause, not to describe the objects to be searched or searched for. The after-the-fact testimony of the issuing judge that he intended expressly to authorize the search of computers could not cure the failure of the warrant to authorize the search of computers, because one purpose of a warrant is to inform the person subject to the search just what may be searched. United States v. Hayes, 794 F.2d 1348, 1355 (9th Cir.1986).

The search warrant did explicitly authorize a search of Payton's premises to find and seize, among other things, "[s]ales ledgers showing narcotics transactions such as pay/owe sheets," and "[f]inancial records of the person(s) in control of the premises." The crucial question is whether these provisions authorized the officers to look for such records on Payton's computer. We conclude that, under our recent and controlling precedent of United States v. Giberson, 527 F.3d 882 (9th Cir.2008), as applied to the circumstances of this case, they did not.

In Giberson, officers discovered that Giberson had used false identification and was delinquent in his child support payments. They obtained a search warrant authorizing a search of his residence for, among other things, "`records, documents or correspondence ... related to the use or attempted use' of other individual's identities." Id. at 884. During the search, the officers discovered a computer on a desk in Giberson's bedroom; the computer was connected to a printer on a dresser. Next to the printer, the officers found a sheet of what appeared to be fake identification cards that were not of high quality and looked as if they could have been printed on the adjacent printer. In and on the desk, the officers found other documents evidencing the production of false identification, including...