U.S. v. Crespo–rÍos, 09–2252.

• Decision Date: 08 June 2011
• Docket Number: No. 09–2252.,09–2252.
• Citation: 645 F.3d 37
• Parties: UNITED STATES of America, Appellant,v.Fernando CRESPO–RÍOS, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

645 F.3d 37

UNITED STATES of America, Appellant,

v.Fernando CRESPO–RÍOS, Defendant, Appellee.

No. 09–2252.

United States Court of Appeals, First Circuit.

Heard Dec. 6, 2010.Decided June 8, 2011.

J. Campbell Barker, Attorney, Appellate Section, Criminal Division, U.S. Department of Justice, with whom Lanny A. Breuer, Assistant Attorney General, Greg D. Andres, Acting Deputy Assistant Attorney General, Rosa Emilia Rodríguez–Vélez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, and Richard M. Re, Attorney, Criminal Division, U.S. Department of Justice, were on brief for appellant.Rachel Brill, for appellee.Before LYNCH, Chief Judge, TORRUELLA and STAHL, Circuit Judges.TORRUELLA, Circuit Judge.

Fernando Crespo–Ríos(“Crespo”) was charged with (1) transferring obscene material to a minor under the age of sixteen in violation of 18 U.S.C. § 1470 and (2) possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B).The district court granted his motion to suppress the child pornography that agents discovered on various digital media while they were executing a warrant to search for evidence of (1) transferring obscene material to a minor in violation of 18 U.S.C. § 1470 and (2) enticing or coercing a minor in violation of 18 U.S.C. § 2422(b).The government now appeals the grant of the motion to suppress and the denial of its motion for reconsideration.We reverse and remand with instructions to deny the motion to suppress.

I.Background

In August 2007, Special Agent Odette D. Tavares of the Federal Bureau of Investigation entered a Spanish-language chat room posing as a twelve-year-old Puerto Rican girl.She was part of a covert online investigation aimed at identifying individuals attempting to engage in sexual relations with minors.An individual later identified as Crespo approached Tavares in the chat room and asked if Tavares had “MSN,” referring to an instant messaging program.Tavares replied affirmatively, and they continued to chat through MSN's “instant messenger.”

During this first conversation and others that followed over the course of approximately the next eight months, Crespo repeatedly communicated with Tavares about matters of a sexual nature despite being informed that she was only twelve years old and in seventh grade.During the majority of Crespo's chat sessions with Tavares, he displayed his bare erect penis to Tavares at some point.Crespo also repeatedly asked Tavares to meet with him and discussed the sexual activities that would take place if they met.He said, among other things, that (1)he would perform oral sex on Tavares, (2)he and Tavares could watch pornographic films before having sex, (3) the pair would have sex, (4)he would teach Tavares how to kiss and how to bathe him, and (5)she could model a g-string for him.Crespo also displayed two photos of himself to Tavares and repeatedly asked her to send him photos of herself.

In addition, Crespo mentioned or suggested at various points that he had engaged in sexual activities with minors before.During one chat, he noted that he had had sex with a fourteen-year-old girl.During another conversation, in the context of encouraging Tavares to shave her genital area, he told her that he knew of an individual who shaved her genital area as of the age of eleven.

Based on information learned as a result of the chats with Crespo, information received from the Puerto Rico Telephone Company, and information gleaned from motor vehicle checks, Tavares submitted an affidavit in support of a search warrant.A magistrate judge issued a search warrant for a residence in Mayagüez, Puerto Rico.The warrant authorized agents to search the residence for evidence, fruits, and instrumentalities of a violation of 18 U.S.C. § 1470(transfer of obscene material to a minor) and 18 U.S.C. § 2422(b)(coercion or enticement of a minor).The warrant incorporated “Attachment B” of Tavares's affidavit, which listed, among other items that could be seized, the following:

2.Records, documents, correspondence (limited to electronic communications), notes and/or any other materials relating to correspondence or contact between [Crespo] and [Tavares], including but not limited to electronic mail, chat logs, and electronic messages.

3.Records, documents, correspondence (including but not limited to electronic communications), notes, and/or any other materials relating to correspondence or contact between [Crespo] and individuals purporting to be minors, or any attempt by [Crespo] to induce any minor to engage in illegal sexual[ ] activity, including but not limited to electronic mail, chat logs, and electronic messages.

....

10.Any magnetic, electronic or optical storage device capable of storing data, such as floppy disks, hard disks, tapes, CD–ROMs, CD–R[s], CD–RWs, DVDs, optical disks, printer or memory buffers, smart cards, PC cards, memory calculators, electronic dialers, electronic notebooks, cellular telephones, and personal digital assistants[.]

....

12.Any computer equipment used to encode or store data....

The main text of Tavares's affidavit referred to child pornography when it described the parameters of the potential search as including, among other things, “any and all chat logs, child pornography, child erotica, information pertaining to the sexual interest in children, [and] images depicting sexual contact between adults and minors.”“Attachment B” authorized agents to search for “[c]orrespondence ... which refers to ... child pornography” and “sex toys to include but not limited to pornographic videos.”

When Tavares executed the search warrant, she seized, among other things, a computer system, an external hard drive, and a number of CDs.The government forensically analyzed the seized items and discovered child pornography.The record is not clear as to exactly where and how each item of child pornography was discovered, or which items were photographs as opposed to videos.¹According to Crespo's appellate brief, however, some of the child pornography was found on the external digital media.At oral argument, Crespo's counsel explained that child pornography images were found on both the computer Crespo used for his chats and on the external hard drive.Crespo's counsel also mentioned, in responding to a question about the location of the child pornography, that there was a video that was found on the external hard drive and also on a CD.

Crespo was ultimately charged with (1) knowingly possessing both still images and movie files of actual minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252, and (2) attempting to transfer obscene matters to someone who was apparently under the age of sixteen, in violation of 18 U.S.C. § 1470.Following his indictment, Crespo filed a motion to suppress the child pornography evidence on the ground that the search warrant was impermissibly general and authorized government agents to search for items without probable cause to believe those items would be present.²

A magistrate judge recommended that the court deny Crespo's motion to suppress, concluding that there was probable cause to search for child pornography.The magistrate judge also noted that the good faith exception to the exclusionary rule, seeUnited States v. Leon,468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677(1984), applied, and that the doctrine of inevitable discovery, seeNix v. Williams,467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377(1984), might apply.

The district court rejected the magistrate's recommendation, concluding that Tavares's affidavit did not provide probable cause to believe that Crespo's digital media would contain child pornography.The district court also concluded that the good faith exception to the exclusionary rule did not apply.Addressing the magistrate's inevitable discovery argument, the district court noted that it believed that the plain view doctrine would be a more appropriate framework than the inevitable discovery doctrine, and concluded that the government ultimately could not prevail under the plain view doctrine.In a later order denying the government's motion for reconsideration, the district court clarified its reasoning on this point.According to the second order, because there was no probable cause to search for child pornography, the law enforcement officers who conducted a forensic examination of Crespo's digital media were not conducting a lawful search, and thus were not entitled to avail themselves of the plain view exception to the warrant requirement.The government now appeals.

II.Standard of Review

In assessing a district court's decision to grant a motion to suppress, “[w]e review ‘the court's findings of fact for clear error and the application of the law to those facts de novo.’ ”United States v. Siciliano,578 F.3d 61, 67(1st Cir.2009)(quotingUnited States v. Vilches–Navarrete,523 F.3d 1, 12(1st Cir.2008)).

III.Discussion

The government makes three alternative arguments: (1) probable cause supported the warrant's authorization to search Crespo's computer for child pornography, (2) suppression was inappropriate given the good faith doctrine because the agents acted in objectively reasonable reliance on the warrant, and (3) the child pornography evidence should not be suppressed because it was discovered in plain view during a lawful search.Crespo responds, first, that there was no probable cause to seize and search all of Crespo's digital media in order to look for child pornography because Tavares's affidavit did not allege any nexus between Crespo's behavior and possession of child pornography and because the warrant application was overly broad.In addition, Crespo contends that the good faith exception is inapplicable because Tavares, who executed the warrant, could not have reasonably believed that there was probable cause to search for child pornography....