U.S. v. Edmundson, 89-1475
| Decision Date | 23 July 1991 |
| Docket Number | No. 89-1475,89-1475 |
| Citation | 937 F.2d 609 |
| Parties | Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Randy EDMUNDSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before DAVID A. NELSON, Circuit Judge, KRUPANSKY, Senior Circuit Judge, * and BELL, District Judge. **
The Child Protection Act of 1984 makes it a criminal offense knowingly to receive child pornography through the mail. See 18 U.S.C. Sec. 2252(a)(2). Defendant Randy Edmundson, an admitted pedophile who had served several years in a state prison for criminal sexual conduct with young members of his family, was convicted on one count of an indictment charging him with a violation of the Child Protection Act and a second count charging him with violating federal law relating to the possession of firearms by convicted felons. See 18 U.S.C. Secs. 922(g)(1) and 924(a)(1)(B).
Defendant Edmundson appeals on three grounds: (1) that an "anticipatory" search warrant pursuant to which the contraband was discovered in his residence was issued and executed in violation of his rights under the Fourth Amendment; (2) that the search of his residence exceeded the scope of the warrant; and (3) that he was the target of a "sting" operation so outrageous in character that it violated his right to due process under the Fifth Amendment. Finding none of these contentions persuasive, we shall affirm the convictions.
The search warrant in question was issued by a United States magistrate on the strength of an affidavit executed by a postal inspector named Michael O'Hara. Inspector O'Hara's affidavit stated, among other things, that five years earlier Mr. Edmundson had been convicted on criminal sexual conduct charges arising out of sexual relationships with several young nieces; that police reports indicated that the sexual misconduct had begun when the nieces were five years old or younger; and that at the time of his arrest by the Michigan authorities, photographs depicting the minor nieces in nude and semi-nude poses had been found in a chicken coop next to Mr. Edmundson's house.
The inspector's affidavit went on to say that a photoprocessing firm had recently reported that Mr. Edmundson was bringing in rolls of film to be developed; that an employee of the firm said that Mr. Edmundson's pictures "are of some real weird things such as little girls underwear and ... close up shots of the girls butts and front side;" and that another employee said that Mr. Edmundson's films included "pictures of little kids between the ages of 5 and 13 with the look of utter terror on their faces."
Shortly after the date on which these reports started coming in from the photoprocessing firm, as Inspector O'Hara was to testify at trial, the inspector arranged to have an advertisement mailed to Mr. Edmundson from a purported mail order pornography business in American Samoa. The Samoan operation was actually a Postal Service front.
The text of the advertisement contained this language: "If you are interested in obtaining forbidden material send $2 for information to Samoan Adventures, Post Office Box 3371, Pago Pago, AS 96799." The affidavit stated that Mr. Edmundson had answered this solicitation; that he had subsequently expressed an interest in buying sexually-oriented materials involving pre-teen girls; and that Mr. Edmundson had recently sent in an order for Volume 4, Issue 5 of a magazine called "Lollitots," the cost of which was $29.95. The magazine was to be sent to a designated post office box rented by Mr. Edmundson some months earlier.
Inspector O'Hara's affidavit contained the following explanation of how the inspector intended to respond to the order placed by Mr. Edmundson;
The affidavit described in detail both the premises to be searched and the items to be seized there.
Based on this affidavit, United States Magistrate Marsha Cooke issued a warrant authorizing a search of Mr. Edmundson's residence within ten days. Inspector O'Hara's affidavit was incorporated in the warrant.
One day after the warrant's issuance, the Postal Service placed a card in Mr. Edmundson's post office box advising him of the arrival of a piece of mail that was too big for the box. Mr. Edmundson picked up the card soon thereafter, presented it to a window clerk, and was handed an oversized padded envelope bearing a Pago Pago return address and containing the magazine he had ordered. (This publication--which had pictures that the trial judge was to describe as "frightening"--had been confiscated by the Postal Service in a previous child pornography investigation.) After observing the delivery from inside the post office, Inspector O'Hara drove to Mr. Edmundson's house and waited for him to return.
Other law enforcement officials kept Mr. Edmundson under surveillance after he left the post office. He was seen to make two stops, one at a doctor's office and one at a restaurant, and he reached his house more than an hour later. Inspector O'Hara, who was parked down the street, saw Mr. Edmundson enter the house with the envelope.
After 15 or 20 minutes, Inspector O'Hara and another law enforcement officer knocked on Mr. Edmundson's front door. When Edmundson appeared, they told him that they had a federal search warrant and advised him of his Miranda rights. In the course of the ensuing search, two weapons--a .22 caliber Glenfield rifle and a .410 gauge Mossberg shotgun--were found behind a bedroom door. On the bed were the padded envelope and the issue of Lollitots. The inspector seized these items, and we are told that he also took diaries, family photographs, and church announcements.
A grand jury indicted Mr. Edmundson on two counts of sexual exploitation of children (the first of which counts was subsequently dropped) and one count of possession of firearms by a convicted felon. Edmundson filed several pre-trial motions, including a motion to suppress all of the evidence seized from his residence and a motion for separate trials on different counts of the indictment. After an evidentiary hearing before District Judge Richard Suhrheinrich, now a judge of this court, the motion to suppress was denied. Judge Suhrheinrich granted the severance motion, indicating a willingness to proceed with two separate juries. The defendant subsequently waived his right to trial by jury, however, and the case was tried to the court. Judge Suhrheinrich found the defendant guilty on both counts, and this appeal followed.
Defendant Edmundson acknowledges that "anticipatory" search warrants are often issued in drug cases. (An anticipatory warrant is one issued on the strength of representations that the items being sought have not yet arrived at the premises to be searched, but are expected to be there by the time the search is conducted.) Edmundson contends that an anticipatory search warrant was improper here because of the absence of exigent circumstances of the type common in drug cases. The argument is that there was no risk that the pornography would be ingested, distributed or destroyed in the short time that would have been required to obtain a warrant after Mr. Edmundson had taken the offending magazine home.
Other courts have upheld the use of anticipatory warrants in child pornography cases despite the lack of exigent circumstances. See United States v. Dornhofer, 859 F.2d 1195 (4th Cir.1988), cert. denied, 490 U.S. 1005 (1989); U.S. v. Goodwin, 854 F.2d 33 (4th Cir.1988); United States v. Hale, 784 F.2d 1465 (9th Cir.), cert. denied, 479 U.S. 829 (1986). Dornhofer is perhaps most like the case before us. There too the government was conducting a sting operation. An anticipatory search warrant was issued for the defendant's home on the condition that the contraband would be placed in the mail addressed to the home. The court held that anticipatory warrants are permissible in child pornography cases "where the contraband to be seized 'is on a sure course to its destination.' " 859 F.2d at 1198, quoting Goodwin, 854 F.2d at 36. We see no reason here to depart from Dornhofer and decisions like it.
It is true that in the case at bar the controlled delivery was to be made not to Mr. Edmundson's home, but to the post office where he chose to receive his mail. It was hardly unreasonable to expect him to take his mail home from the post office, however, and it is significant that the warrant was not to be executed if Edmundson refused delivery or did not return to his home.
Mr. Edmundson complains that the warrant did not specify that he had to return directly home and did not require that he return home within any time period shorter than that for which the warrant was good. The warrant could thus have been executed even if he had dropped off the pornography at his doctor's office, taken a vacation, and returned home empty-handed days later.
We are not willing to invalidate the warrant on the basis of contingencies this remote. Few doctors are pedophiles, and unless National...
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