United States v. Cobb

• Decision Date: 11 August 2020
• Docket Number: No. 19-4172,19-4172
• Citation: 970 F.3d 319
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. James Timothy COBB, Defendant - Appellant. American Civil Liberties Union; American Civil Liberties Union of West Virginia, Amici Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

970 F.3d 319

UNITED STATES of America, Plaintiff - Appellee,

v.James Timothy COBB, Defendant - Appellant.

American Civil Liberties Union; American Civil Liberties Union of West Virginia, Amici Supporting Appellant.

No. 19-4172

United States Court of Appeals, Fourth Circuit.

Submitted: June 1, 2020

Decided: August 11, 2020

Amended: August 17, 2020

L. Richard Walker, Senior Litigator, Clarksburg, West Virginia, Kristen Leddy, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. William J. Powell, United States Attorney, Sarah E. Wagner, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee. Nathan Freed Wessler, Brett Max Kaufman, Ezekiel Edwards, Jason D. Williamson, New York, New York, Jennifer Granick, ACLU FOUNDATION, San Francisco, California; Loree Stark, ACLU OF WEST VIRGINIA FOUNDATION, Charleston, West Virginia, for Amici American Civil Liberties Union and American Civil Liberties Union of West Virginia

Before WILKINSON and FLOYD, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by published opinion. Senior Judge Traxler wrote the opinion, in which Judge Wilkinson joined. Judge Floyd wrote a dissenting opinion.

TRAXLER, Senior Circuit Judge:

Defendant James Timothy Cobb ("Cobb") entered a conditional guilty plea to possession of child pornography. He appeals the district court's denial of his motion to suppress the images that were seized from his computer pursuant to a search warrant issued by a state magistrate judge. For the following reasons, we affirm.

I.

On September 7, 2014, Cobb, who was 57 years old at the time, was living with his parents, James and Freda Cobb, and his cousin, Paul Dean Wilson, in Marion County, West Virginia. A fight broke out that evening between Cobb and Wilson. Cobb put Wilson in a chokehold and put his knee in Wilson's chest. The fight was witnessed by Cobb's parents, who called 911 for assistance. Wilson was unresponsive when police arrived, and he was pronounced dead at the scene by emergency medical personnel. Cobb was arrested and jailed that evening, charged with the second-degree murder of Wilson.

Unbeknownst to Cobb's parents, the phone line remained open after the 911 calls were placed. The parents were recorded begging Cobb to stop, and telling Cobb that Wilson was "helpless," and he was "going to end up killing the man." J.A. 54. During questioning later by law enforcement, Cobb's parents gave varying accounts of the events leading up to the murder. Cobb's father said the fight started over Wilson's firearm. The father also said that Wilson threatened him and his son stepped in to protect him. The mother, on the other hand, told the officers that Wilson punched her in the mouth because she yelled at him for being mean to his cat, and that her son was protecting her. In a recorded jail call on September 8, Cobb and his parents discussed the various versions of the events. During the call, the mother told Cobb that she put cotton in her lip and took a picture, on the advice of a neighbor, to support her version.

On September 9, 2014, less than 48 hours after the murder, Cobb was recorded in another jail call telling his father to remove a laptop computer from the bed in Cobb's room and to "put it in his father's room ‘to keep it safe.’ " J.A. 163. Cobb told his father that "Wilson had previously used the computer and put some ‘shit’ on it," and Cobb requested that his father " ‘wipe down’ or ‘clean’ the computer." J.A. 163. Cobb also told his parents to get his cell phone from the jail.

After consulting with the state prosecutor, the investigating officers obtained a search warrant to search Cobb's residence for "[a]ny and all firearms belonging to Paul Dean Wilson Jr., any and all laptop computers, including tablets or desktop computers belonging to or operated by James Timothy Cobb, any and all cell phones belonging to or operated by James Timothy Cobb, and any and all evidence of a crime." J.A. 36. The probable cause statement reads as follows:

On 09/07/14, at approx. 2355 hrs [d]eputies responded to an altercation at [Cobb's home]. Once on scene deputies advised that a male subject was unresponsive and started CPR. Once the undersigned arrived on scene the male subject, identified as Paul Dean Wilson Jr., was pronounced dead by EMTs. The undersigned then spoke with witnesses in the residence, James K. Cobb and Freda Cobb, who advised a physical altercation had taken place between James Timothy Cobb and his cousin Paul Dean Wilson Jr. During the altercation between James T. Cobb and Wilson, James T. Cobb placed Wilson in a choke hold and placed his knee on his chest and pulled his head towards his knee. ... When deputies arrived on scene James T. Cobb still had Wilson restrained and Wilson was unresponsive. On 09/09/14 statements were made by James Timothy Cobb requesting his parents, James Keith Cobb and Freda Cobb, have a subject clean off his laptop and pick up his cellular telephone from the jail. Also upon speaking with James K. Cobb he advised that Paul Dean Wilson Jr. had possession of a hand gun he called a "Beretta" and started the altercation over the firearm not being where Mr. Wilson left the gun. The above events occurred in Marion Co. WV.

J.A. 36, 38. The investigating officers executed the warrant and seized, among other things, three firearms and a Gateway laptop computer believed to be the computer that Cobb referred to in the phone call with his father.

On September 23, 2014, the officers obtained a second warrant to search the internal contents of the Gateway laptop computer for evidence of the murder. The probable cause statement included in this warrant reads as follows:

On September 7, 2014[,] the Marion County Sheriff's Dept. responded to a domestic altercation between James Timothy Cobb and Paul Dean Wilson Jr. who are cousins both living with Cobb's parents at [their residence] in Marion Co. Wilson was pronounced dead at the scene. Cobb was arrested and charged with second degree murder. After new evidence was discovered the second degree murder charge was dismissed and Cobb was [c]harged with first degree murder. ... During the investigation Cobb's phone calls from the jail have been monitored. During one conversation Cobb was heard to tell his father to get the computer out of his room and put it in his father's room. He said there are some things on there that need to be cleaned up before anyone sees them. On at least two other occasions he made reference to his parents about never letting anyone borrow your electronic equipment. On September 16, 2014[,] the Marion County Sheriff's Dept. served a warrant on Cobb's residence ... and seized the Gateway laptop computer reference[d] by James Timothy Cobb.

J.A. 40, 42. The warrant authorized the search of the Gateway laptop computer in evidence for:

Any material associated with the homicide of Paul Dean Wilson Jr. stored internally on a Gateway laptop computer serial # NXY1UAA0032251C66F1601 dark gray in color belonging to or used by James Timothy Cobb. Any and all other evidence of any other crimes.

J.A. 40.

When the executing officer began to open the computer files, he quickly discovered pornographic photos of underage females in various stages of undress and engaged in sexual acts. The officer immediately stopped the search, again consulted with the state prosecutor who concurred that the pornographic images were of prepubescent females, and sent the computer to the West Virginia State Police Digital Forensic Lab. In a follow-up interview with Cobb's parents, "[n]either one of them seemed shocked that there [were] pornographic images of underage females on their son's computer," and "[t]hey both immediately blamed [Wilson] for the images being on there." J.A. 68.¹

As noted above, Cobb was initially charged with second-degree murder, but the charges were upgraded to first-degree murder due, in part, to the 911 calls and the inconsistent stories relayed to the officers by Cobb's parents. The officers later suspected that the child pornography was the motive for the murder. Months later, Cobb's cellmate told investigators that Cobb had admitted to killing Wilson because Wilson had discovered the child pornography on Cobb's computer and had threatened to turn him in to the authorities. Cobb ultimately pled guilty to second-degree murder and was sentenced to 20 years’ imprisonment in state prison.

On May 1, 2018, a federal grand jury indicted Cobb for possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). Cobb moved to suppress the child pornography found on the computer during the murder investigation. He argued that the warrants were unsupported by probable cause as required by the Fourth Amendment to the United States Constitution. In a supplemental pleading, Cobb asserted that the second warrant was also invalid under the Fourth Amendment because it lacked the requisite particularity.

The federal magistrate judge recommended that the district court grant in part and deny in part the motion to suppress. He concluded that both warrants were supported by probable cause to believe that evidence of the murder was contained on the computer, and that the first search warrant was sufficiently particular to satisfy the Fourth Amendment. With regard to the second search warrant, he concluded that the constitutional sufficiency of the warrant was not affected by the superfluous "any and all evidence of any other crime" phrase contained at the end of the warrant, but that the motion to suppress should be granted because the balance of the second warrant was insufficiently particular to satisfy the Fourth Amendment. The magistrate judge also recommended that the district court reject the government's request that the court apply the good-faith exception to the exclusionary rule, recognized by the Supreme Court in United States v. Leon , 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (19...