U.S.A v. King
| Decision Date | 30 April 2010 |
| Docket Number | No. 09-1861.,09-1861. |
| Parties | UNITED STATES of America,v.Richard D. KING, Jr., Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
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Frederick E. Martin (Argued), Office of United States Attorney, Williamsport, PA, Attorneys for Appellee.
Ronald C. Travis (Argued), Rieders, Travis, Humphrey, Harris, Waters & Waffenschmidt, Williamsport, PA, Attorneys for Appellant.
Before: SLOVITER, FUENTES and HARDIMAN, Circuit Judges.
Richard King appeals his judgment of sentence following a conditional guilty plea to violating 18 U.S.C. § 2241(c) (). The principal question of precedential import is whether the rule of law established in Georgia v. Randolph, 547 U.S. 103, 122-23, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) viz., that a present and objecting resident can override another resident's consent to search a home, applies to the seizure of a computer. We hold that it does not.
In August 2003, King was using the screen name “ayoungbeaverluvr” when he met Angela Larkin on a website called “CherryPoppinDaddys.” In their initial conversation, King acknowledged that performing oral sex on his own daughter caused his divorce. He also offered to drive over 200 miles from his home in Mohnton, Pennsylvania, to Larkin's home in Emporium, Pennsylvania, so he could perform oral sex on Larkin's two-year-old daughter, whom she called “Peanut.” 1
During the next two months, King and Larkin chatted online about their mutual interest in watching minors engage in sex acts with adults and shared child pornography. After Larkin said she liked one depiction of a young child engaged in a sex act with an adult, King responded he would “most definitely” do the same to Peanut. In September 2003, King chatted with others about his sexual interest in Peanut. That same month, Larkin also sent nude pictures of Peanut to King and others.
In addition to his involvement with Larkin and her daughter, King maintained several online relationships with underage girls to whom he sent child pornography. As part of his self-professed desire to “sexually initiate” them, King taught them to masturbate and sent them pictures of his genitals.
Larkin briefly lost contact with King in October 2003 when she left her husband and moved with Peanut and her computer to Buffalo, New York. In mid-November 2003, however, Larkin contacted King through a series of e-mails and phone calls, asking to move in with him because she was unhappy in Buffalo. King responded by e-mail: “you know what my fantasy is.” Soon thereafter, Larkin e-mailed King to ask if Peanut would sexually satisfy him. Following these internet exchanges, on Thanksgiving Day 2003, King drove to Buffalo, where he picked up Larkin and Peanut and brought them to his home in Mohnton, Pennsylvania.
Within a week after Larkin moved in with him, King began performing oral sex on Peanut. Though they lived under the same roof, King and Larkin continued corresponding via e-mails that show King's sexual contact with Peanut was frequent enough to make Larkin jealous. King also helped Larkin use a PayPal account to obtain payment for distributing pornographic images of Peanut over the internet.
Larkin's conduct was discovered by law enforcement agents in mid-February 2004 after pornographic images of Peanut were found on a computer in Texas. The Texas authorities promptly notified the Pennsylvania State Police, who in turn notified Special Agent James Kyle of the Federal Bureau of Investigation, of a potential child pornography victim in Emporium, Pennsylvania. On February 19, 2004, Agent Kyle obtained and executed a warrant to search Larkin's former residence in Emporium.
Upon his arrival at Larkin's former residence, Agent Kyle determined that the furniture and distinctive walls matched those depicted in the child pornography images found in Texas. While executing the warrant, Kyle met Larkin's ex-husband, Robert McCullen, who stated that Larkin had moved to Buffalo in the fall with Peanut and her computer. After Kyle explained the nature of his investigation, McCullen identified the girl in the pictures as his daughter. Because McCullen was unaware of Larkin's whereabouts after she left Buffalo, he sent Larkin an instant message asking her for a phone number where she and Peanut could be reached. Larkin responded a few hours later with a phone number. Officers initially traced the number to a post office box in Mohnton, but further investigation revealed that it was connected to King's residence at 93 Pennypacker Road in Mohnton.
Although Larkin had no warrants in the National Crime Information Center database, Agent Kyle called the State Police in Reading, Pennsylvania, apprised them of the situation, and asked them to check for local warrants. This search located an outstanding 2002 bench warrant for Larkin's arrest issued by the Court of Common Pleas of Potter County. After receiving confirmation that the arrest warrant was still active-and after independently verifying the connection between the phone number and 93 Pennypacker Road-State Police Troopers Coyle and Rodriguez proceeded to King's residence to execute the arrest warrant.
When King answered the door, Troopers Coyle and Rodriguez advised him of the warrant for Larkin's arrest and asked to see her. King led them upstairs to the hallway right outside the kitchen where they handcuffed Larkin; for officer safety they asked the other residents-King, his mother and his step-father-to stay put. At some point, Peanut joined them in the hall. From where they stood, the officers could not see into the bedrooms down the hall.
While at King's residence, Trooper Coyle received a phone call from an officer who suggested that Coyle ask Larkin for permission to take her computer. After Larkin consented to the seizure, King walked the troopers to a bedroom down the hall and disconnected the computer. Before the troopers could seize it, however, King claimed ownership of the hard drive and objected to its seizure. King then requested permission to remove the hard drive, but the troopers denied his request and seized the computer, including the hard drive. The troopers departed King's residence with Larkin, Peanut and the computer.
The next day, Agent Kyle and another FBI agent transported Larkin to the Clinton County Correctional Facility in the Middle District of Pennsylvania. During the drive, Larkin signed a form authorizing the FBI to assume her online identity and disclosed all of her passwords. Upon receiving this authorization, Agent Kyle called a colleague and requested that Larkin's passwords be changed to preserve the content of her e-mails.
The following Tuesday, King contacted two of Larkin's other “customers,” Rod Long and Kenneth Amerine, to warn them that the FBI was using Larkin's screen names. King also told Amerine that he “just threw away [three] 120 gig hard drives” and that the only way to destroy a hard drive is by removing it and physically destroying it with a hammer, so the FBI cannot recover anything. There is no direct proof that King or Amerine destroyed any evidence, but no child pornography was found on Amerine's computer even though he admitted viewing it.
Later that week, when Agent Kyle reviewed Larkin's e-mails and chats, he found incriminating conversations between Larkin and King, including the conversations about Peanut. With this evidence in hand, on March 3, 2004, Agent Kyle obtained and executed two search warrants-one for the seized computer and the other for King's home, including all computers contained therein. Although King was not home when Agent Kyle executed the warrant, King spoke with Kyle over the phone and initially declined Kyle's invitation to speak with him in person. That night, King changed his mind and called to arrange a meeting with Kyle at the FBI's office in Williamsport, Pennsylvania, which is near the Clinton County Correctional Facility where Larkin was housed. Because King planned to be in the area to visit Larkin the next Saturday, March 6, 2003, he arranged to meet Kyle that day.
King got lost on the way to Williamsport and arrived late Saturday afternoon when the front doors were locked and the building was relatively empty. Agent Kyle opened the door for King and, after patting him down for weapons, led him to the FBI office. Agent Kyle entered a code to unlock the office door, which remained unlocked from the inside, and led King to an interrogation room. Before asking any questions, Agent Kyle told King he was free to leave at any time and that the interview was voluntary. Because no other FBI agents were in the Williamsport office at the time, an agent in the Philadelphia office listened over the phone.
Over the course of several hours, King admitted performing oral sex on Peanut and traveling to New York for that purpose. Agent Kyle showed King the incriminating e-mails he retrieved from Larkin's account, and then asked King about his online relationships with other young girls as well as about the thousands of child pornography images found on King's computer. King admitted to a long-standing interest in sexual contact with young girls that began with his own daughter. When the interview ended, visiting hours at the Clinton County Correctional Facility were over, so Agent Kyle tried to arrange for King to visit Larkin, but he was unsuccessful. King then departed.
Larkin was indicted in the Middle District of Pennsylvania on February 26, 2004. On April 8, 2004, a superseding indictment charged King with the offense at issue in this appeal (18 U.S.C. § 2241(c)) and he promptly surrendered to authorities. One year later, on April 15, 2005, a second superseding indictment added charges against King for sending and causing the receipt of...
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