U.S. v. Brobst

• Citation: 558 F.3d 982
• Decision Date: 09 March 2009
• Docket Number: No. 07-30284.,07-30284.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerald Elmo BROBST, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

558 F.3d 982

UNITED STATES of America, Plaintiff-Appellee, v. Jerald Elmo BROBST, Defendant-Appellant.

No. 07-30284.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 9, 2008.

Filed March 9, 2009.

Thomas J. Phalen (argued), Phoenix, AZ, for the defendant-appellant.

Eric B. Wolff (argued), Assistant United States Attorney, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana, Donald W. Molloy, Chief District Judge, Presiding. D.C. No. CR-06-00055-DWM.

Before: RICHARD R. CLIFTON and N. RANDY SMITH, Circuit Judges, and BRIAN E. SANDOVAL,^* District Judge.

N.R. SMITH, Circuit Judge:

Whether or not a search and seizure or a warrantless arrest is reasonable, within the meaning of the Fourth Amendment, depends on the traditional standards of reasonableness and not the law of a particular state. Therefore, we conclude Brobst's constitutional rights were not violated, because (1) the search warrant described the place and things to be searched and seized with sufficient particularity; (2) probable cause existed for Brobst's arrest; (3) Brobst's post arrest statements were admissible; (4) the document the prosecutor failed to produce was not material to Brobst's conviction; and (5) the district court did not improperly shift the burden of proof to Brobst during trial.

Brobst also appeals his sentence, arguing that his simultaneous conviction and concurrent sentences for both receipt and possession of child pornography violated the Double Jeopardy Clause.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm his conviction, vacate his sentence, and remand.

I. Factual and Procedural Background

On July 11, 2006, Jerald Brobst hired Ken Gerg to perform some cabinet work at Brobst's residence, located at 31 Driftwood Lane, in Woods Bay, Montana. While Brobst was away, Gerg performed the work. While performing the work, Gerg found child pornography in Brobst's home.

Finding the pornography, Gerg reported it to Lake County Sheriff's Deputy Kim Leibenguth. Gerg told Deputy Leibenguth that Brobst had a photograph of a naked girl, six to seven years old, in a sexual position. Gerg said that the photograph had been printed from the internet, because it had internet-type markings on it. Upon seeing the photograph, Gerg became nervous and put it back under the filing cabinet (where he found it). However, Gerg also saw other papers (which he suspected contained additional photographs), but he did not inspect them. Gerg provided Deputy Leibenguth with the address of Brobst's home, but did not provide her with a map or directions.

Based upon this information, Detective Daniel Yonkin drafted an affidavit for a search warrant. The warrant described the residence as a "single story, single family, ranch style dwelling with shingle roof, located at 31 Driftwood Lane, Woods Bay, Montana." The warrant provided for the search and seizure of "photographs depicting children engaged in actual or simulated sexual conduct, computers, compact disks, floppy disks, hard drives, memory cards, printers, and other portable digital devices, DVDs, and video tapes." A magistrate judge approved the warrant based upon the information set forth in the application.

After obtaining the warrant, Detective Yonkin and Detective Leibenguth drove to Brobst's residence. Both detectives dressed in plain clothes. Detective Yonkin carried a concealed weapon. An armed and uniformed officer, Deputy Lance Ewers, followed the officers in a patrol vehicle. Upon arrival, Detective Yonkin remarked a new address, 32877 Driftwood Lane, posted on the property. However, they also saw Brobst's name on a tree and on the mailbox in front of the residence. (Detective Yonkin additionally testified that Brobst's name also appeared on a wishing well in front of the residence.) The property had two separate residences and a garage, all of which were single story, ranch style dwellings with shingle roofs. Two other ranch style houses were also located on Driftwood Lane.

Because of the posting 32877 Driftwood Lane, the detectives spoke to "neighbors" to confirm that Brobst lived there. The neighbors confirmed the residence was Brobst's residence. Detective Yonkin also obtained a tax/property map that showed the piece of property belonged to Brobst. During the trial, Detective Yonkin disclosed that he (1) called Lake County sheriff dispatch, without success, to "cross-check" the 31 Driftwood Lane address and (2) tried to verify the ownership of a vehicle parked next to the residence, but again received no information.

Brobst was not at his residence when the officers arrived, so the officers entered through an open window. The officers found the cabinet identified by Gerg and located 28 pages of printed material, including photographs of children engaged in sexual conduct.

Brobst and a friend arrived at Brobst's residence while the officers were searching. Upon their arrival, Deputy Ewers approached Brobst outside of the house and stated, "you need to come with me" to speak with Detective Yonkin. Brobst then went with Deputy Ewers inside the residence. When Brobst started talking with Detective Yonkin, Deputy Ewers returned to the front door to watch Brobst's friend, who remained in the vehicle. Detective Yonkin explained to Brobst that the officers had a search warrant for the residence and provided Brobst with a copy of it. Detective Yonkin also told Brobst the officers found child pornography in his bedroom and asked Brobst if it were his. Brobst, without the benefit of Miranda warnings, stated that he owned the house, thus the materials must also be his. The entire conversation lasted approximately two minutes.

After Brobst admitted ownership of the materials, Detective Yonkin placed him under arrest. Officer Ewers took Brobst into custody and transported him to the Detention Center. Approximately two hours later, Detective Yonkin read Brobst his Miranda rights. Brobst also signed a Miranda waiver and agreed to speak to Detective Yonkin. Detective Yonkin then conducted a recorded interview. During the interview, Brobst admitted purchasing child pornography for approximately three years. Brobst also admitted that, some years ago, he printed the photographs that the officers found. While Brobst was being interviewed, his attorney called and requested that the interview cease. At that time, Brobst (after being advised of his attorney's advice) ended the interview.

On October 20, 2006, a federal grand jury indicted Brobst on three counts: (1) receipt of child pornography in interstate commerce, 18 U.S.C. § 2252A(a)(2); (2) possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B); and (3) forfeiture of property used to commit the offenses, 18 U.S.C. § 2253(a). Relevant to this appeal, Brobst filed four motions to suppress in the federal district court. The motions to suppress alleged: (1) the lack of particularity of the warrant; (2) the insufficient probable cause for seizure of various items of evidence, including his computer; (3) the suppression of Brobst's pre-arrest statements made while he was "in custody;" and (4) the admissibility of Brobst's Mirandized statements made after a warrantless arrest. On February 6, 2007, the district court denied three of the motions to suppress, finding: (1) the warrant was sufficient notwithstanding the use of the former address for Brobst's residence; (2) the officers had probable cause to believe that Brobst was engaged in child pornography offenses involving his computer; and (3) the admissibility of Brobst's Mirandized statements were "predicated on a finding that the search warrant was invalid." The district court, however, set a hearing on the "in custody" issue.

A magistrate judge heard the remaining motion to suppress and recommended that the district court deny the motion. The district court adopted the recommendation and held that "Brobst's freedom of movement was not restrained to the degree associated with a formal arrest and a reasonable person in his situation would have understood that he was free to leave."

Following a bench trial, the district court found Brobst guilty of all three counts. After his convictions for the child pornography offenses, Brobst appealed (1) the denial of his four suppression motions (asserting in part that Montana law applies to the search, seizure and arrest) and (2) the denial of his motion to dismiss the indictment or motion to reconsider (made during trial) based upon the late disclosure of material information. Brobst also asserts the district court improperly shifted the burden of proof during the bench trial.

II. Application of State or Federal Law

Brobst argues that we must look to Montana law, not federal law, to determine whether these seizures violate the Fourth Amendment to the Constitution. Specifically, Brobst argues that we should apply the language in Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) (plurality opinion), which states that courts should determine the lawfulness of arrests by reference to state law. 374 U.S. at 37, 83 S.Ct. 1623. Thus, Brobst argues that, because Montana law provides more protections from search and seizure than federal law, his search, seizure and subsequent arrest is constitutional only if it complied with applicable Montana law. The Supreme Court's recent decision in Virginia v. Moore, ___ U.S. ___, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008), however, precludes this argument.

In Moore, the Supreme Court held that "warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections." Moore, 128 S.Ct. at 1607. The Supreme Court has long analyzed "search and seizure" using the traditional standards of reasonableness. See Atwater v. City of Lago...