U.S. v. D'andrea

• Citation: 648 F.3d 1
• Decision Date: 10 May 2011
• Docket Number: Nos. 08–2455,09–1018.,s. 08–2455
• Parties: UNITED STATES of America, Appellee,v.Kendra D'ANDREA and Willie Jordan, Defendants, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

648 F.3d 1

UNITED STATES of America, Appellee,
v.
Kendra D'ANDREA and Willie Jordan, Defendants, Appellants.

Nos. 08–2455

09–1018.

United States Court of Appeals, First Circuit.

Heard Oct. 4, 2010.Decided May 10, 2011.

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Judith H. Mizner, with whom Behzad Mirhashem and Federal Defender Office, District of Massachusetts were on brief, for appellant Kendra D'Andrea.Terrance J. McCarthy, for appellant Willie Jordan.J. Cam Barker, Criminal Division, Appellate Section, with whom Carmen M. Ortiz, United States Attorney, Lanny A. Breuer, Assistant Attorney General, Criminal Division, and Greg D. Andres, Deputy Assistant Attorney General, Criminal Division, were on brief, for appellee.Before TORRUELLA and LIPEZ, Circuit Judges, and Smith,^* District Judge.SMITH, District Judge.

Defendants-appellants Kendra D'Andrea and Willie Jordan separately appeal their convictions following conditional guilty pleas. For the reasons set forth below, we hold that the district court erred in denying defendants' motions to suppress without an evidentiary hearing, vacate the judgments, and remand for an evidentiary hearing on the suppression motions.

I. The Facts

The following facts are essentially undisputed except as otherwise indicated. At around 6:30 p.m. on December 2, 2004, a woman (the “Tipster”) called the Judge Baker child abuse hotline of the Massachusetts Department of Social Services (“DSS”).¹ She said she resided in California and had a child with defendant Willie Jordan, but requested to remain anonymous.² The Tipster identified defendants Kendra D'Andrea and Willie Jordan as partners, provided D'Andrea's residential address,³ and identified Jordan's

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employer of the past two months, a trucking company based in Missouri, by name. She informed DSS that she had received a message on her mobile phone containing photographs of D'Andrea and Jordan performing sexual acts on D'Andrea's eight-year-old daughter (the “victim”) and of the victim with her genitalia exposed. (Apparently D'Andrea had intended to send the text message to Jordan but had sent it to the Tipster by mistake.) The Tipster said the pictures could be accessed by going to www. sprintpcs. com and entering a certain phone number and pass codes, which she provided to the DSS intake agent. ⁴

Shortly after receiving the anonymous call, DSS agents reported it to the Gloucester, Massachusetts Police Department to alert them to this possible case of child abuse. After several unsuccessful attempts at accessing the website and at least one other telephone conversation with the Tipster, DSS agents were able to access the website, where they found numerous pornographic pictures of the victim consistent with the Tipster's report. A DSS agent printed out more than 30 of these photographs and took them to the Gloucester Police Department. Three telephone numbers, two of which appeared to be alternate numbers for the same person (Jordan), and some text messages also appeared on the website along with the pictures. In some of the text messages, the person associated with one of the phone numbers, later revealed to be Jordan, asks for more pornographic pictures of the victim to be sent by the person with one of the other phone numbers, later revealed to be D'Andrea.

After viewing the pictures, a detective with the Gloucester Police Department applied for a warrant to search D'Andrea's residence for files that may contain evidence of child abuse and child pornography. The warrant affidavit stated that the Tipster had told DSS that the child abuse was occurring at D'Andrea's residence in Gloucester at an address she provided, and that a Registry of Motor Vehicles check had indicated that D'Andrea had a revoked Massachusetts license with the same address as that provided by the Tipster. The warrant was signed at midnight and the search commenced ten minutes later. The searching officers found D'Andrea and her two little children, one of whom was the victim, at the residence.⁵ They seized, among other things, a mobile camera phone containing pornographic pictures of the victim, one of them showing her with her genitals exposed and the other showing Jordan performing oral sex on her.⁶ D'Andrea was taken into custody and admitted that both she and Jordan had sexually abused the victim. She also admitted that she would take pornographic pictures of the victim with her mobile phone, send them to Jordan's mobile phone, and upload them on the Sprint website so that Jordan could view them. The authorities subsequently

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obtained an arrest warrant for Jordan and arrested him in Michigan.

When the police knocked on D'Andrea's door on the morning of December 3, she called Jordan, whereupon Jordan contacted Sprint and deleted the account. Therefore, the copies printed by the DSS agent appear to be the only surviving copies of the images on the Sprint website.

After being indicted, defendants moved to suppress the images, the evidence seized from D'Andrea's home (including the camera phone), and D'Andrea's incriminating statements on the grounds that all of it was obtained in violation of their Fourth Amendment right to be free from unreasonable searches and seizures. The district court denied the motions without holding an evidentiary hearing. It also denied defendants' motion for a Franks hearing to challenge the veracity of the warrant affidavit. Defendants then entered conditional pleas of guilty to sexual exploitation of a child and conspiracy to sexually exploit a child, reserving their right to appeal the denial of the motions to suppress and the motion to hold a Franks hearing. The district court sentenced Jordan to 30 years in prison and restitution in the amount of $67,600, and D'Andrea to 27 years in prison and restitution in the amount of $67,600.⁷

Defendants separately appeal their convictions, raising five issues: Whether the district court erred in (1) denying defendants' motions to suppress without holding an evidentiary hearing, (2) denying the requests for a Franks hearing without holding an evidentiary hearing, (3) imposing an unreasonably high prison sentence, (4) denying Jordan's request to be present and allocute at the restitution hearing, and (5) failing to hold an evidentiary hearing to determine the appropriate amount of restitution.

II. AnalysisA. The Motions to Suppress

Defendants' first claim of error targets the district court's denial of the motions to suppress without conducting an evidentiary hearing. A criminal defendant does not have a presumptive right to an evidentiary hearing on a motion to suppress. United States v. Brown, 621 F.3d 48, 57 (1st Cir.2010) (citing United States v. Panitz, 907 F.2d 1267, 1273 (1st Cir.1990)). “A hearing is required only if the movant makes a sufficient threshold showing that material facts are in doubt or dispute, and that such facts cannot reliably be resolved on a paper record.... Most importantly, the defendant must show that there are factual disputes which, if resolved in his favor, would entitle him to the requested relief.” United States v. Staula, 80 F.3d 596, 603 (1st Cir.1996) (citations omitted).

A district court's denial of an evidentiary hearing is reviewed for abuse of discretion. Id.; United States v. Lewis, 40 F.3d 1325, 1332 (1st Cir.1994). In considering the denial of the motions to suppress, the district court's factual findings are reviewed for clear error and its legal conclusions, including ultimate constitutional determinations, are reviewed de novo. Lewis, 40 F.3d at 1332–33 (citing United States v. Zapata, 18 F.3d 971, 975 (1st Cir.1994)).

A search within the meaning of the Fourth Amendment “occurs when the

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government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). A warrantless search is unreasonable unless one of the recognized exceptions to the warrant requirement applies. See, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The exclusionary rule, where applicable, requires suppression of evidence obtained in violation of the Fourth Amendment. Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 699, 172 L.Ed.2d 496 (2009).

The focus of defendants' appeal of the denial of the motions to suppress is the DSS agent's accessing the Sprint PCS website and downloading and printing the pictures uploaded there. Because the Tipster was a private actor, her unauthorized viewing of the website did not implicate the Fourth Amendment. See United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984).⁸ Nor did the police search of D'Andrea's residence, on its own, violate the Fourth Amendment, because it was carried out pursuant to a warrant. If the DSS agent's accessing the website violated the Fourth Amendment, however, evidence obtained during the ensuing police search of the D'Andrea residence may be inadmissible because it was “tainted” by the earlier violation and became “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 484–88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).⁹

For the purpose of defending this appeal only, the government does not dispute that defendants had a subjective expectation of privacy in their password-protected online account and that this expectation of privacy was, at least initially, reasonable. Nor is there any question that the DSS agent's unauthorized accessing of the website constituted a warrantless search. The question presented is whether the warrantless search was nonetheless valid because an exception to the warrant requirement applied or there were circumstances defeating the reasonableness of defendants' expectation of privacy. The government presses three theories: (1) the private search doctrine; (2) emergency intervention; and (3) inevitable discovery.

1. The Private Search Doctrine

The district court held that the...