U.S. v. Burgess

• Decision Date: 11 August 2009
• Docket Number: No. 08-8053.,08-8053.
• Citation: 576 F.3d 1078
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David BURGESS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

576 F.3d 1078

UNITED STATES of America, Plaintiff-Appellee, v. David BURGESS, Defendant-Appellant.

No. 08-8053.

United States Court of Appeals, Tenth Circuit.

August 11, 2009.

James C. Anderson, Assistant United States Attorney (Kelly H. Ranking, United States Attorney, with him on the briefs) Cheyenne, WY, for Plaintiff-Appellee.

Norman R. Mueller (Ty Gee with him on the briefs) of Haddon, Morgan, Mueller, Jordan, Mackey & Foreman, P.C., Denver, CO, for Defendant-Appellant.

Before TACHA, O'BRIEN, and McCONNELL, Circuit Judges.

O'BRIEN, Circuit Judge.

Following a traffic stop and a canine alert, police searched David Burgess' motor home for drugs and evidence of drug trafficking. The search led to the discovery of a laptop computer and two external hard drives. The hard drives contained thousands of pictures of child pornography, which Burgess moved to suppress, arguing the warrant authorizing their search lacked sufficient particularity and the search exceeded the scope of the warrant. The district court denied the motion. Burgess continues to press his arguments here and also challenges the admission of 404(b) evidence and the length of his sentence. We affirm.

I. FACTS

A. Introduction

On July 24, 2007, Wyoming Trooper Matt Arnell observed a motor home with Nevada license plates at a restaurant parking lot in Evanston, Wyoming. It was towing a trailer bearing an expired Wyoming license plate. Arnell was aware (from a prior briefing) the motor home was associated with the Hell's Angels motorcycle club. He verified that the trailer plate was expired but did nothing more until the motor home was driven on to Interstate 80 heading east. As Arnell followed the vehicle, he called for a drug canine to be brought to the area. He then stopped the motor home to issue a citation for the expired plate. When the driver, Shayne Waldron, stepped out, Arnell smelled the odor of burnt marijuana. As Arnell spoke with Waldron, a passenger in the motor home, David Burgess, joined the conversation. Burgess said he was the owner of the motor home and both men acknowledged the trailer's license plate was expired. Burgess explained the trailer belonged to a person who permitted them to use it and they were traveling to another town in Wyoming to update the registration and obtain current plates.

As Arnell was issuing a citation for the expired plate, Deputy David Homar and his canine, Blitz, arrived. Blitz (who had never given a false alert to the presence of drugs) alerted at the doors of the motor home. Trooper Arnell informed Burgess he was going to search the vehicle. Burgess said he would rather Arnell get a warrant. Nevertheless, because of the suspicions raised by Blitz's alert and the smell of marijuana, Arnell entered the motor home where he found some marijuana, a pipe, and two bags of cocaine—each containing approximately seven grams. Arnell advised Waldron and Burgess of their rights per the Miranda decision.¹ When Arnell said he had found marijuana, Burgess admitted the marijuana was his. Arnell resumed the search. He noticed a laptop computer and a Seagate hard drive in the bedroom. After approximately fifteen to thirty minutes, Arnell left the motor home and arranged to have it towed to a Wyoming Department of Transportation shop for further inspection.

In the meantime, Agent Russell Schmitt, a narcotics officer with the Green River, Wyoming, police department arranged to meet Arnell at the shop. The two officers went to the Department of Criminal Investigations office in Evanston to prepare an affidavit and request for a search warrant. Paragraph 17 of the affidavit stated in relevant part: "Based upon training and experience, your Affiant [Schmitt] knows that persons involved in trafficking or the use of narcotics often keep photographs of coconspirators or photographs of illegal narcotics in their vehicle." (R. Vol. I at 133.) Arnell and Schmitt's team leader, Agent Webster, reviewed the documents. Arnell and Schmitt then took the documents to the county attorney for review and approval. Finally, they presented the affidavit and request for a warrant to the county judge, who incorporated the affidavit into the warrant and authorized a search for:

The property and premises of a white, 1999, Freightliner Motorhome ... [for] certain property and evidence to show the transportation and delivery of controlled substances, which may include but not limit[ed] to, cash, or proceeds from the sale of controlled substances, Marijuana, Cocaine, Methamphetamine, or other illegal controlled substances, along with associated paraphernalia to include but not limited to pipes, bongs, syringes, packaging material, computer records, scales, laboratory dishes, flasks, beakers, tubes, pie tins, electrical timers, containers to be used for storing, manufacturing and selling, chemicals used in the creation of illegal narcotics as well as their diluting agents, items of personal property which would tend to show conspiracy to sell drugs, including pay-owe sheets, address books, rolodexes, pagers, firearms and monies.

(Id. at 130.) The warrant authorized a search on July 24, 2007, "or within ten days thereafter." (Id.)

After serving the warrant, the officers returned to the search of the motor home. Arnell discovered a Maxtor hard drive pushed underneath the couch in the living room. The Maxtor drive along with the laptop and the Seagate drive discovered earlier were seized and transported to Cheyenne, Wyoming, for forensic examination. Agent Scott Hughes, special agent with the Internet Crimes Against Children Division² was assigned to the case on August 1, 2007. When Hughes went to retrieve the material from the evidence locker, the associated paperwork was not present. Hughes immediately requested the paperwork, which he received on August 21, 2007. After reviewing the warrant, Hughes was concerned about the time delay (the items were seized on July 24). He contacted a DCI staff attorney who advised he could search for evidence of controlled substances, but if he found evidence of any other crime, he must stop and request a new warrant to continue his search. The search of the hard drives was commenced on September 6, 2007.

Hughes began with the Maxtor hard drive using a program called EnCase. The protocol is to first make a byte-for-byte copy of the hard drive. After the contents of the original hard drive are copied, the original drive is secured and the copied material is examined—this process ensures evidence is not corrupted. Hughes planned to contact the investigating agent to see if there were any special key or code words which may have been found during the investigation to facilitate further search once the copying process was complete.

Copying the files can take up to twelve hours but EnCase allows an investigator to "preview" files as they are being copied. (Id. at 246.) Hughes decided to take advantage of the preview feature to look for "trophy photos," i.e., pictures of a "person holding the controlled substance in front of a stack of money," similar to the kinds of photographs described in Paragraph 17 of Schmitt's affidavit. (Id.) The images are shown in a "gallery view," an option where multiple reduced size photos are displayed on one page. (Id.) After viewing 200-300 digital images of personal photographs, Hughes came upon an image depicting child sexual exploitation. He immediately closed the preview program and secured a new warrant authorizing a search for evidence of child sexual exploitation. He then searched all three devices, the laptop, the Seagate hard drive and the Maxtor hard drive. While the laptop did not contain child pornography, his search revealed approximately 166,000 images, including movies and texts, between the two hard drives. Hughes stopped counting the number of child pornography files when the count exceeded 1,300. His conservative estimate was 30% to 45% of the files contained child pornography, approximately 70,000 images. Some of the same pornographic pictures were on both the Maxtor and the Seagate hard drives.

A grand jury indicted Burgess for knowing transportation of child pornography across state lines in violation of 18 U.S.C. §§ 2252A(a)(1) and (b)(1) (Count One) and knowing possession of child pornography transported in interstate commerce in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2) (Count Two). Both charges were based on the images found in the Maxtor hard drive "including, but not limited to," six specific images.

B. Pretrial Motions

Burgess moved to suppress the evidence claiming the original search of the Maxtor hard drive violated his rights under the Fourth Amendment. He maintained the first warrant (authorizing a search for drug trafficking evidence) lacked specificity and the search constituted an impermissible general search.³ The government claimed, even if the warrant was defective, the search was permissible under the automobile exception to the general presumption that warrantless searches are unreasonable. The district court denied Burgess' motion, concluding both the seizure and the search of the computer equipment was supported by probable cause, the seizure was valid under the automobile exception and the search warrant was sufficient to allow a search of the computer equipment for evidence of drug trafficking. Finally, the court held the search did not exceed the scope of the warrant.

Prior to trial, Burgess said he planned to defend against the charges by testing the government's ability to prove he knowingly possessed the images charged in the indictment and found on the Maxtor hard drive. In response the government filed a motion declaring its intent to introduce 78 images from the Seagate hard drive, including numerous pictures of R.C., a fourteen-year-old female ward of Burgess' friend, Rebecca Deshaise. Numerous pictures of R.C. were found on both hard drives and trial testimony revealed R.C. had spent many hours at...