633 F.3d 219 (3rd Cir. 2011), 09-3500, United States v. Stabile

Docket Nº:09-3500, 09-3501.
Citation:633 F.3d 219
Opinion Judge:VAN ANTWERPEN, Circuit Judge.
Party Name:UNITED STATES of America v. Salvatore STABILE, Appellant.
Attorney:Robert W. Ray, Esq. [Argued], Ross M. Bagley, Esq., Pryor Cashman LLP, New York, NY, for Appellant. Paul J. Fishman, George S. Leone, John F. Romano [Argued], Office of United States Attorney, Newark, NJ, for Appellee.
Judge Panel:Before: JORDAN, HARDIMAN and VAN ANTWERPEN, Circuit Judges.
Case Date:February 01, 2011
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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633 F.3d 219 (3rd Cir. 2011)

UNITED STATES of America

v.

Salvatore STABILE, Appellant.

Nos. 09-3500, 09-3501.

United States Court of Appeals, Third Circuit.

February 1, 2011

Argued Dec. 16, 2010.

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Robert W. Ray, Esq. [Argued], Ross M. Bagley, Esq., Pryor Cashman LLP, New York, NY, for Appellant.

Paul J. Fishman, George S. Leone, John F. Romano [Argued], Office of United States Attorney, Newark, NJ, for Appellee.

Before: JORDAN, HARDIMAN and VAN ANTWERPEN, Circuit Judges.

OPINION

VAN ANTWERPEN, Circuit Judge.

Defendant-Appellant Salvatore Stabile (" Stabile" ) pleaded guilty to one count of bank fraud in violation of 18 U.S. C. § 1344, waived a jury trial and stipulated to facts for a bench trial with regard to three counts of receipt of child pornography and one count of possession of child pornography in violation of 18 U.S. C. § 2252A(a)(5)(B). The District Court found Stabile guilty of these child pornography charges. Stabile retained the right to appeal the District Court's ruling on his suppression motions. All charges were consolidated for sentencing, and the District Court sentenced Stabile to concurrent sentences of 78 months' imprisonment on each count. Stabile appeals the District Court's denial of his motion to suppress as well as the sentence the District Court imposed.

The facts in this case are complex and they relate to a number of issues. In particular we face issues regarding the scope of the plain view doctrine in the context of computer searches. We will affirm the District Court's suppression order. Stabile also appeals his sentence, however we decline to exercise our jurisdiction over the sentencing appeal because Stabile waived his right to appeal his sentence.

I. Facts

A. Background

Prior to the beginning of the investigation, Stabile resided in Mahwah, New Jersey, with Debbie Deetz. Deetz believed that she was married to Stabile. However, Stabile was already married and had not divorced his first wife. Appx. at A-453. The house shared by Stabile and Deetz was secured by a mortgage and home equity credit line in the name of Stabile's brother. Stabile defaulted on these loans and tried to mask his default by passing more than $156,000 in counterfeit checks. These counterfeit checks initially formed the basis for investigating Stabile.

B. Search of Stabile's House

At 1:00 p.m. on July 24, 2006, Secret Service Special Agents Christopher Albanese and John Croes, and Detective Joseph Nieciecki of the Bergen County Sheriff's Department, arrived at Stabile's house to question Stabile about counterfeiting checks. Stabile was not at home, but Deetz answered the door, invited the agents inside, asked the officers to sit at a table near the living room, and offered them something to drink. The officers informed Deetz of the purpose of their visit and explained that they suspected that Stabile had engaged in financial crimes. Albanese then asked Deetz for consent to search the house. Albanese provided Deetz with a consent form and informed Deetz that she could refuse consent. Deetz reviewed the consent form for approximately thirty minutes and then signed it. Deetz testified that one of the reasons she voluntarily signed the form was so she herself could find out about Stabile's deceptive financial practices.

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Deetz granted consent orally and in writing by signing a consent form. 1 Without a search warrant but with Deetz's consent, the agents began a search of the house. During the course of the search, Deetz led the agents around the house, provided the agents with documents related to Stabile's finances, and showed the agents the locations of several computers. Next to one computer, the agents found check stock, check writing software, photocopies of checks, copies of previously-passed fraudulent checks, two printers, and checks with an alias. Deetz also showed the agents two computers and several hard drives in the basement of the house. At the suppression hearing, Deetz testified:

Q. And who pointed out those hard drives to the law enforcement officers?

A. I [Deetz] did.

Q. Did you provide consent for the officers to search those computers?

A. Yes, I did.

Appx. at A-467. The agents then called the Bergen County Prosecutor's Office, which sent two members from its Computer Crimes Unit to disconnect the hard drives. Deetz showed the recently-arrived Bergen County officers the locations of the computers and the hard drives. Deetz watched the officers remove the hard drives. When one officer had difficulty removing a hard drive, Deetz asked the officer if he needed a screwdriver. The officer replied that he did, so Deetz got a screwdriver from Stabile's toolbox and gave it to the officer. At approximately 6:00 p.m., the Bergen County officers Justified the house, taking with them six hard drives. Stabile was not present in his house at any point during this search. In fact, the search had been completed when Stabile arrived home, at approximately 7:15 p.m. During their search of Stabile's house, the agents also found several DVDs in a desk bearing labels which led the agents to believe the DVDs contained child pornography.2 The officers seized the DVDs but, upon a later viewing of their contents, determined that they did not contain child pornography.

When Stabile arrived home, Deetz waited outside the house while the agents interviewed Stabile. Although the agents attempted to question Stabile, Stabile refused to answer questions without an attorney present. When informed that Deetz had already consented to the search, Stabile attempted to revoke Deetz's consent by stating " I take it back." The

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agents then departed. It is undisputed that Stabile did not request the return of his property at this time. In fact, Stabile did not request return of his seized property until February 15, 2008, when he filed a motion to return property.

C. Issuance of the State Search Warrant

Although the agents obtained the six hard drives on July 24, 2006, Agent Albanese did not apply for a state search warrant until October 19, 2006 because he was assigned to a Secret Service security detail for the President and other high officials. Finally, Albanese applied for a state search warrant on October 19, 2006 in New Jersey Superior Court in Morris County.3 The state search warrant was issued and authorized search of the computer hard drives 4 for evidence of " both financial crimes and the possession of child pornography." Probable cause to search the hard drives for evidence of financial crimes was based on the check stock, printed checks, and check printing software found in Stabile's house. Probable cause to search for evidence of child pornography was based on the DVDs found in a desk in Stabile's house. The affidavit submitted by Albanese stated that " This Affiant believes these DVDs contain labels with language that refers to mature women and young boys and contains images of minors." Unbeknownst to Albanese, between the July 24, 2006 seizure of the DVDs and the October 19, 2006 state search warrant application, state law enforcement officers had already viewed the DVDs and determined that they did not contain child pornography. Albanese was not aware that the DVDs had been viewed and determined not to contain child pornography when he applied for the state search warrant on October 19, 2006. Accordingly, the state search warrant obtained on October 19, 2006 stated that it authorized search of the hard drives for evidence of both financial crimes and child pornography.

On November 16, 2006, after the issuance of the state search warrant, Agent Albanese traveled to the Bergen County Prosecutor's Office where the evidence was stored. Albanese picked up the evidence and transported it to the Morris County Prosecutor's Office. During this process, but before Albanese brought the hard drives to the Morris County Prosecutor's Office, Albanese learned that the DVDs from the desk had been viewed and were found not to contain child pornography. Appx. at A-726. Upon arrival, Albanese " informed everybody," including the detective who would perform the forensic search, that there was a " problem" with the state search warrant as it related to child pornography. Appx. at A-726.

D. Execution of State Search Warrant

In mid-November, 2006, Detective Vanadia, a forensic specialist at the Computer Crimes Unit of the Morris County Prosecutor's Office, received the hard drives. Vanadia had been instructed to search

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only for evidence of financial crimes and told that if he came across child pornography, he was to stop his review and contact the Secret Service. Appx. at A-528, A-562, A-580-81, A-727-28.

With these instructions, Detective Vanadia commenced his forensic hard drive search. He began with the 120 GB hard drive (Western Digital 120 GB 3.5 inch HDD, Ser # WMAAT2323593). During this search, Vanadia noted numerous suspicious folders. One such folder was entitled " Kazvid." Vanadia understood this folder to reference " Kazaa," a peer-to-peer file sharing program used to share music, movies, pictures, and programs. Appx. at A-532. Vanadia also testified that, in his experience, Kazaa has been used to share and distribute child pornography.

Detective Vanadia then " highlighted" the Kazvid folder, a procedure that allowed him to view a list of file names contained in the folder. Vanadia later testified that he highlighted the Kazvid folder not because it necessarily contained child pornography but because— as a suspicious folder— it could harbor...

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