U.S. v. Potts

• Decision Date: 16 November 2009
• Docket Number: No. 08-3269.,08-3269.
• Citation: 586 F.3d 823
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Coen C. POTTS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

586 F.3d 823

UNITED STATES of America, Plaintiff-Appellee, v. Coen C. POTTS, Defendant-Appellant.

No. 08-3269.

United States Court of Appeals, Tenth Circuit.

November 16, 2009.

Stephen M. Joseph, Joseph & Hollander, PA, Wichita, KS, for the Appellant.

Christine E. Kenney, Assistant United States Attorney, (Marietta Parker, Acting United States Attorney, with her on the brief), District of Kansas, Topeka, KS, for the Appellee.

Before HENRY, Chief Judge, HOLLOWAY and GORSUCH, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant-appellant Coen Potts was indicted on two offenses: receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) and possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). The indictment also sought forfeiture of defendant's computer and various related devices. Mr. Potts moved to suppress all evidence that had been seized during the execution of a search warrant at his apartment. The district court denied the motion in a published opinion. United States v. Potts, 559 F.Supp.2d 1162 (D.Kan.2008).

Defendant Potts then entered a plea of guilty to both charges under an agreement that permitted him to appeal the denial of his motion to suppress. Mr. Potts was sentenced to 85 months' imprisonment, forfeiture of the specified property, a term of five years of supervised release, and was ordered to pay a special assessment of $200.00. He now brings this appeal, which is under the jurisdiction granted this court by 28 U.S.C. § 1291.

I The Affidavit Supporting the Application for the Search Warrant

The investigation of defendant began on September 8, 2006, when a woman contacted FBI Special Agent Stacie Lane to report an encounter that she said had happened about ten months earlier.¹ The witness told Agent Lane that she had begun having telephone conversations with Coen Potts through a telephone dating service in October 2005. In their telephone conversations, he had told the witness that he lived in Topeka where he was employed teaching art to very young elementary school pupils.

After several telephone conversations, the witness and Mr. Potts arranged to meet in Norman, Oklahoma, probably on October 29, 2005. During this meeting, apparently the only time the two met in person, Mr. Potts brought out a large notebook and began showing photos to the witness. After he had shown her some innocuous images, Mr. Potts showed the witness three photos that she quickly realized were child pornography. The witness had described two of the photos to Agent Lane but said that she had been so shocked by these photos that she could not remember the third image. The witness said that she got the impression that Mr. Potts frequently viewed child pornography on the internet and had downloaded the images he had shown her from the internet.

The witness told Agent Lane that she had only three subsequent telephone conversations with Mr. Potts. The witness told Agent Lane that in each of those three conversations she had brought up Potts's interest in child pornography to find out if he was still viewing it. Potts said that he had been doing it too long to stop.

In these conversations Mr. Potts said two things that upset the witness to the extent that she said that she ceased all contact with Potts. Both had to do with Mr. Potts's fantasies about having sexual contact with children. The witness said that the third and last call had occurred on November 17, 2005, after which she had no further contact with Mr. Potts until Agent Lane asked her to contact him again as part of the investigation.

Afterwards, Agent Lane's affidavit recited, the witness tried to put all of this out of her mind and forget it. In September 2006, however, a friend persuaded her to call law enforcement. The witness "broke down" when discussing the matter, according to Agent Lane. She could not explain why she had delayed for ten months or so to report the matter, other than saying that it made her very uncomfortable to talk about it. Agent Lane's affidavit states that the witness "continued to break down whenever she discussed the comments Potts made concerning child exploitation" in subsequent telephone conversations.

Agent Lane began a limited investigation after her telephone interview with the witness. Agent Lane established that Mr. Potts had been employed at a certain school district in the Topeka area since 2002. Contact with the school superintendent confirmed that Potts was employed as an art teacher. Agent Lane also examined public records and determined that Potts was "associated with" apartment # 125 on 4120 SW Twilight Drive in Topeka. Other than establishing these basic facts, the only other thing Agent Lane appears to have done to confirm the witness's account and to establish probable cause for a search of defendant's apartment was to arrange for the witness to make a recorded telephone call to defendant.

The witness recorded a telephone conversation she had with Potts on October 2, 2006. We quote the district court's description of the transcript of that conversation, which quotes liberally from the transcript itself:

During this telephone conversation, defendant confirmed that he still worked as an art teacher and that he owns his own computer. Three significant exchanges occurred during this recorded conversation. First, the informant raised the issue of child pornography in a discreet way. Without specifically referencing children or child pornography, the informant said that "you sound like you're still into that ... the whole ..." and "like when we talked before—that's what you kinda' wanted, so I don't know, I was just hoping you didn't." Defendant responded that "it's not like it's 24 hours a day or anything and in fact I really, uh, don't hit any of those sites, uh, anymore than, I mean I know where they are, but I don't revisit them very often" and "it costs money to get on the Net, that often ... when you're downloading things that take hours to download."

....

Third, defendant raised the fact that the informant wanted him to get help. The informant responded that "there's help out there for people that have addictions ... or like things that are not normal" and "I'm not saying you're not normal, but you know what I mean." Defendant said that "I have admittedly ... I've had a porn addiction in a way." When the informant asked "[d]o you think that's what led to that?," defendant responded "well no" and "it's just because I've been really by myself and really sort of unsuccessful with women virtually my whole life...."

559 F.Supp.2d at 1166.²

The Search Warrant

The search warrant included an "Attachment B" with the heading "List of Items To Be Seized." Attachment B was a one-and-one-half page document with 13 paragraphs describing the objects of the search. Paragraph 1 listed all computer-related equipment, inter alia, that could be used to store visual depictions of child pornography, etc. Paragraph 2 covered "correspondence" pertaining to possession, receipt or distribution of visual depictions of minors engaged in sexually explicit conduct.... Each of the other 11 paragraphs also included specific language limiting the objects of the search to matters connected with child pornography.

The warrant also included this provision: "The search shall be conducted in accordance with the search protocol outlined in the attached Addendum." Because of its importance in this case, we reproduce the Addendum in full (emphasis in the original):

ADDENDUM

The search procedure of the electronic data contained in computer equipment subject to the foregoing Search Warrant, whether performed on site or in a laboratory, or other controlled environment, may include the following techniques:

(a) surveying various file "directories" and the individual files they contain (analogous to looking at the outside of a file cabinet for markings identifying its contents and opening a drawer believed to contain pertinent files);

(b) "opening" or cursorily reading the first few "pages" of such files in order to determine their precise contents;

(c) "scanning" storage areas to discover and possibly recover recently deleted data;

(d) scanning storage areas for deliberately hidden files; or

(e) performing "keyword" searches through all electronic storage areas to determine whether occurrences of language, symbols, or other data contained in such storage areas exist that are intimately related to the subject matter of the investigation.

This Search Warrant and the above-described search procedure specifically excludes a search of any kind of unopened electronic mail. No search of unopened electronic mail shall be conducted without a separate search warrant supported by probable cause. The examiner(s) will limit his/her search related to the criminal charges under investigation. Appropriate efforts shall be made to minimize the disclosure of records and other information that are not the subject of this Search Warrant. If files and/or information is found related to other criminal activity, then a separate warrant will immediately be sought to obtain that information.

The Hearing on the Motion to Suppress Evidence

Much of the testimony adduced from Agent Lane by the government at the suppression hearing has been recited supra in our summary of Agent Lane's affidavit supporting the application for search warrant. The government also presented the testimony of Agent Jeffrey Owen, a computer forensic expert and the officer who conducted the search of defendant's computer, after an initial search by Agent Lane.

For purposes of this opinion, Sergeant Owen's testimony was significant in establishing that he used specialized software to search for files that might fit the descriptions included in Attachment B of the warrant. He explained how a program automatically finds and collects all images stored on the computer. These images have to be viewed by the examiner to determine the nature of the images. With text...