684 F.3d 500 (5th Cir. 2012), 11-60277, United States v. Triplett

Docket Nº:11-60277.
Citation:684 F.3d 500
Opinion Judge:LESLIE H. SOUTHWICK, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert Warren TRIPLETT, Jr., Defendant-Appellant.
Attorney:Clyde McGee, IV (argued), William Chadwick Lamar, Asst. U.S. Attys., Oxford, MS, for Plaintiff-Appellee. Robert Sneed Laher (argued), Laher Law Firm, Tupelo, MS, for Defendant-Appellant.
Judge Panel:Before SMITH, GARZA and SOUTHWICK, Circuit Judges.
Case Date:June 13, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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684 F.3d 500 (5th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert Warren TRIPLETT, Jr., Defendant-Appellant.

No. 11-60277.

United States Court of Appeals, Fifth Circuit.

June 13, 2012

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Page 502

         Clyde McGee, IV (argued), William Chadwick Lamar, Asst. U.S. Attys., Oxford, MS, for Plaintiff-Appellee.

          Robert Sneed Laher (argued), Laher Law Firm, Tupelo, MS, for Defendant-Appellant.

         Appeal from the United States District Court for the Northern District of Mississippi.

          Before SMITH, GARZA and SOUTHWICK, Circuit Judges.

          LESLIE H. SOUTHWICK, Circuit Judge:

         Robert Triplett, Jr. pled guilty under a plea agreement to possession of child pornography. His plea was conditioned on retaining the right to challenge the denial of his motion to suppress on appeal. Triplett claims the search warrant that led officers to the pornography violated the Fourth Amendment's particularity and probable cause requirements. We AFFIRM.

         FACTUAL AND PROCEDURAL HISTORY

         On August 27, 2010, the United States District Court for the Northern District of Mississippi sentenced Triplett to 120 months in prison on a single count of knowing possession of a computer containing images of child pornography that had been shipped in interstate commerce. 18 U.S.C. §§ 2252A(a)(5)(B), 2256(8)(A). Before his plea, Triplett filed a motion to suppress. The district court granted that motion in part and denied it in part. Under the terms of his plea bargain, Triplett retained the right to appeal that denial to this court. He has timely exercised that right.

         The evidence supporting Triplett's conviction resulted from what began as a state missing-person's investigation. Triplett reported to the Lowndes County Sheriff's Department that his stepdaughter Kaila Morris was missing. The report was made on September 18, 2009, after his wife Bonnie (who is Kaila Morris's mother) asked him to call. Morris was a student at Mississippi State University. The night before the sheriff was contacted, she had been visiting her parents' home in Columbus, Mississippi. At 3:44 p.m., Morris last used her cellular phone and Triplett reports that she left home at 8 p.m. in a dark colored vehicle he did not recognize. Supposedly she left to visit a friend in Alabama. Morris has not been heard from since.

         Authorities obtained a search warrant from a Lowndes County Justice Court judge on September 23, 2009. It authorized the seizure at Triplett's house of " [a]ny and all articles of clothing of Kaila Morris, bed sheets, electronic devices, electronic memory devices, cell phones, DNA, hand digging and cutting tools, vehicles, and utility vehicles." The warrant declared the " public interest to locate Kaila Morris" as its purpose, and incorporated an affidavit setting forth a factual basis titled " Underlying Facts and Circumstances."

          In addition to the information already discussed, this factual basis included other important information. Triplett was thought to have been convicted of rape in Louisiana and to be serving non-adjudicated probation in Mississippi for attempted sexual battery. He reported inappropriately touching Morris. 1 Recently he had washed her bed sheets. Also included

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were details of a trip by Triplett to property in Pickens County, Alabama. He told the FBI that the day before her disappearance, Morris had asked him " to check some of her property" in Pickens County. Triplett said he traveled there with an ax and shovel, and that for two hours his four-wheel vehicle had been stuck. Because the property in Pickens County was on the route to Morris's friend's home, Triplett suggested that authorities might check there for her.

         An additional fact was a statement from Triplett's wife that her husband " had recently changed the hard drive in his computer." The affiant, Lowndes County Sheriff Investigator Ryan Rickert, also orally swore to the Justice Court judge that during the earlier investigation of the attempted sexual battery, a search of Triplett's computer had uncovered pornography that, while lawful to possess, depicted scenes of bondage.

         The day after obtaining the warrant, on September 24, Rickert and other law enforcement officers executed it at the Triplett residence in Columbus. Among the items seized from the home were pill bottles, external computer storage drives, three laptops, a desktop computer, a Magellan GPS device, a Sony camcorder, a digital camera, three hard drives, a cellular phone, pieces of mattress, blankets and pillows, two shoes retrieved from vehicles, and axes. A forensic investigator at Triplett's residence copied the hard drive of one of the laptops, a Hewlett-Packard Pavilion DV 9000. During a preliminary examination on scene, several images thought to be child pornography were discovered. The computer search was discontinued at that point.

         On October 2, a Lowndes County detective obtained a second warrant which authorized " the continuation of the search for information of Morris' whereabouts, other illegal images, and any other contraband" on the Pavilion computer. The warrant stated that the Pavilion was believed to " contain images of Child Pornography."...

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