U.S. v. Grimmett

• Citation: 439 F.3d 1263
• Decision Date: 10 March 2006
• Docket Number: No. 05-3030.,05-3030.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stephen GRIMMETT, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

439 F.3d 1263

UNITED STATES of America, Plaintiff-Appellee, v. Stephen GRIMMETT, Defendant-Appellant.

No. 05-3030.

United States Court of Appeals, Tenth Circuit.

March 10, 2006.

COPYRIGHT MATERIAL OMITTED

Christopher M. Joseph (with M. Kristine Savage and Stephen M. Joseph on the

briefs), Joseph & Hollander, P.A., Topeka, KS, for Defendant-Appellant.

Tanya J. Treadway, Assistant United States Attorney (with Eric F. Melgren, United States Attorney on the brief), Topeka KS, for Plaintiff-Appellee.

Before HENRY, Circuit Judge, McKAY, and HARTZ, Circuit Judges.

HENRY, Circuit Judge.

Stephen Grimmett appeals the district court's denial of his motion to suppress evidence retrieved pursuant to a warrant to search his home based on information that he possessed and produced child pornography. Mr. Grimmett also challenges the constitutionality of one statute under which he was convicted, 18 U.S.C. § 2251, which criminalized that production of child pornography. We affirm Mr. Grimmett's conviction and hold that § 2251 is a valid exercise of Congress's power, and is also constitutional as applied to Mr. Grimmett.

I. FACTUAL BACKGROUND

On June 29, 2002, Mr. Grimmett invited a six-year old boy to his house after giving him a Mountain Dew drink. Mr. Grimmett undressed, lay down on a bed, then instructed the child how to masturbate him and how to perform fellatio on him. Mr. Grimmett instructed the child by telling him what to do, showing him what to do, and by having the child emulate what was occurring on a video playing in the bedroom.

Mr. Grimmett taped the sodomy with an 8mm video camera, copied the 8mm tape onto a VHS tape, and loaded eight still pictures from the videotape onto his computer. Mr. Grimmett has admitted that he showed the tape to at least one other person. The forensic analysis of the defendant's computer indicated that he received over 1,500 images and 142 movies of child pornography over the Internet.

On September 25, 2002, Detective Scott Askew, a detective with the Shawnee County, Kansas, Sheriff's Office, presented an affidavit in support of a search and seizure warrant to Shawnee County District Court Judge Thomas Conklin. The affidavit stated in its third paragraph:

This affidavit is made in support of an application for a warrant to search the entire premises located at 920 SE 33rd Street, Topeka, Shawnee County, Kansas. Additionally, this application is to search any computer media found therein.

Aplt's App. at 488 (Aff. in Support of a Warrant, Det. Scott B. Askew, dated Sept. 25, 2002) (emphasis added). The affidavit further stated: "It is only with careful laboratory examination of electronic storage devices that it is possible to recreate the evidence trail." Id. at 491.

The affidavit indicated that

• A woman who, unbeknownst to the defendant, served as a confidential informant for the Shawnee County Sheriff's Office on drug cases was at the defendant's residence on September 21, 2002, performing oral sex for money.

• During this sexual encounter, the defendant was playing an adult pornographic video on his television.

• The defendant could not get sexual gratification from the adult pornography.

• Therefore, the defendant switched to playing a video on his computer, which depicted child pornography.

• The child pornography involved a female child, approximately nine or ten years old, performing oral sex on an adult male.

• Following the sexual encounter, the defendant asked the woman whether she would be interested in having sex with him and a ten-year-old girl.

• The defendant offered to pay the woman hundreds of dollars if she could provide him with young girls.

• The defendant also asked the woman whether she would be interested in bringing her minor children, a male and a female, to the defendant's house for sex.

• The defendant offered to pay the woman well if she would agree to bring her own children to him for sex.

• On September 24, 2002, the woman reported what had occurred at the defendant's house to Sheriff's Deputy Phil Higdon.

The state court judge signed the warrant, indicating his conclusion that probable cause existed that evidence of the sexual exploitation of a child, in violation of Kan. Stat. Ann. § 21-3516, would be found in defendant's residence.

The warrant authorized, among other things, the search and seizure of "[a]ny and all computer hardware," and "[a]ny and all computer software." Aplt's App. at 494 (Search Warrant, dated Sept. 25, 2002). The warrant further directed law enforcement officers to seize computer equipment, computer storage devices, and various items related to the use of the computer equipment, as well as a variety of other media that contained depictions of minors engaged in sexually explicit conduct, i.e., child pornography, including books, magazines, originals, copies and negatives, motion picture films, and video-cassettes.

Detective Askew removed the hard disk drive from a computer in Mr. Grimmett's home and viewed it on a laptop computer he had brought with him. After Detective Askew viewed various items, he returned the search warrant to the judge and requested the assistance of Immigration and Customs Enforcement in the investigation and examination of the computer's contents.

The Shawnee County Kansas Sheriff's Department delivered to Agent James Kanatzar the computer hard drive seized from the defendant's residence. Agent Kanatzar had over four years of experience investigating child pornography and has been trained in computer forensics since 1998.

On October 1, 2002, Agent Kanatzar made a bit-by-bit copy of the hard drive to perform his forensic analysis. Thereafter, Agent Kanatzar examined the directories and subdirectories for images of child pornography. Although Agent Kanatzar opened every folder, he did not open every file, instead concentrating on those files most likely to contain child pornography images—files containing extensions indicating pictures (.jpg, .gif) and movies (.avi, .mpg).

Agent Kanatzar's examination of the defendant's computer revealed over 1,500 images containing child pornography, and 142 movies of child pornography, with creation dates ranging from February 2001 through September 2002. Agent Kanatzar found no evidence of distribution.

II. PROCEDURAL HISTORY

On January 28, 2004, a grand jury returned an indictment against the defendant, charging him with Count 1, producing child pornography, in violation of 18 U.S.C. § 2251(a); and Count 2, possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B); and Count 3, forfeiture, 18 U.S.C. § 2253. Mr. Grimmett entered a conditional plea of guilty to all counts, reserving the right to appeal the district court's denials of his (1) motion to suppress evidence and (2) motion to dismiss Count 1. The district court sentenced the defendant on Counts 1 and 2 to concurrent ten-year terms of imprisonment and concurrent three-year terms of supervised release.

III. DISCUSSION

A. Motion to suppress

1. Standard of Review

When reviewing the district court's denial of a motion to suppress, we view the evidence in the light most favorable to the government and accept the district court's factual findings unless they are clearly erroneous. United States v. Kimoana, 383 F.3d 1215, 1220 (10th Cir.2004). The ultimate question of reasonableness under the Fourth Amendment is a legal conclusion that we review de novo. Id.

If the search and seizure was done pursuant to a warrant, we review the issuing judge's finding of probable cause with great deference: we look to ensure that the judge "had a `substantial basis' for concluding" that the affidavit in support of the warrant established probable cause. United States v. Cusumano, 83 F.3d 1247, 1250 (10th Cir.1996). The issuing judge's task "is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id.

2. Analysis

Mr. Grimmett asked the district court to suppress both the child pornography found on his computer and in the video tapes. The district court denied defendant's motions to suppress, reasoning that (1) no second warrant was required to search the computer because the state search warrant authorized the search of the computer equipment and computer storage devices seized from defendant's home; (2) Agent Kanatzar did not perform an impermissible general search of the computer equipment and computer storage devices; and (3) probable cause existed to search for child pornography present in the defendant's residence, regardless of the type of media in which it was contained. For the reasons stated below, we agree with the reasoning of the district court.

a. No additional warrant was required.

Mr. Grimmett argues that the warrant authorized only the seizure, but not the subsequent search, of his computer and computer storage devices (collectively, "the computer"). Although not couched in "particularity" terms, Mr. Grimmett appears to argue that the warrant was not sufficiently particular to authorize a search of the computer.

Mr. Grimmett relies on United States v. Carey, 172 F.3d 1268, 1270 (10th Cir.1999) for his argument that a second warrant is required to search a properly seized computer. In Carey, the original warrant authorized a search of the computer for evidence related to illegal drug sales. But, when the officers found evidence of another crime—possession of child pornography—another warrant was needed to search for this evidence, which was beyond the scope of the original warrant. Id. at 1271, 1273-74 ("[I]t is plainly evident each time [the officer] opened a subsequent JPG file, he expected to find child pornography and not material related to drugs.... Under these circumstances, we cannot say the contents of each of those files were inadvertently discovered.").

Carey does not support Mr....