U.S. v. Roberts

• Decision Date: 04 December 2001
• Docket Number: No. 00-20781,00-20781
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WILLIAM DOUGLAS ROBERTS, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1007

274 F.3d 1007 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WILLIAM DOUGLAS ROBERTS, Defendant-Appellant.

No. 00-20781

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

December 4, 2001

[Copyrighted Material Omitted]

Appeal from the United States District Court for the Southern District of Texas

Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Our analysis turns on whether the Fourth Amendment permits a non-routine, outbound search at the functional equivalent of the border, when Customs Agents reasonably suspect a traveler is smuggling contraband. William Douglas Roberts, convicted of possession and interstate transportation of child pornography, appeals the denial of his motion to suppress, claiming that diskettes containing child pornography seized during a warrantless search of his personal effects at an airport as he was departing the United States were obtained in violation of the Fourth Amendment. AFFIRMED.

I.

On 7 July 1998, the Customs Service Resident Agent in Charge for Lake Charles, Louisiana (RAC-Lake Charles), contacted Customs Senior Special Agent Coffman and informed him: (1) a William Roberts would be flying that day non-stop from Houston's Bush Intercontinental Airport (IAH) to Paris; (2) when he traveled, he typically carried a computer and diskettes containing child pornography; and (3) he usually carried the diskettes in a shaving kit. Agent Coffman relayed this information to Customs Special Agent Rios, and those two Agents proceeded to IAH. Roberts, however, did not board a flight that day.

Approximately seven weeks later, on 24 August, another Agent with RAC-Lake Charles notified Agent Rios that, the next day, Roberts would fly from Louisiana to Houston and take an international flight. RAC-Lake Charles also provided Roberts' photograph. The next morning, 25 August, an Officer with the Sheriff's Office for Natchitoches Parish, Louisiana, informed Agent Rios that Roberts was suspected of traveling with child pornography on diskettes that would be packed in a shaving kit; this conformed with the information provided by the RAC-Lake Charles on 7 July. Upon receiving this information, Agent Rios and Special Agent Stewart met Agent Coffman at IAH.

Agent Rios provided the information to Agent Coffman, and the Agents checked a computer database, verifying that Roberts was booked on a direct flight to Paris (Paris-flight). Agent Rios showed Roberts' photograph to Agent Coffman and informed him that Roberts would be arriving on a flight from Louisiana at 12:18 p.m. Agent Coffman watched the passengers disembark the flight from Louisiana and, using the photograph, identified Roberts and noted his clothing.

Agent Coffman then proceeded to organize an outbound inspection of the Paris-flight. He informed the inspection group that Roberts would be carrying diskettes containing child pornography in a shaving kit and described Roberts' clothing.

The Agents established the outbound inspection in the jetway to the Paris-flight. As Roberts entered the jetway, Agent Coffman identified him and directed him to a search table. Customs Inspector Hanson asked Roberts: (1) if he possessed more than $10,000 in currency he wanted to declare; and (2) to open his bags. Roberts opened his luggage and the Inspector found a shaving kit. The Inspector opened the kit and discovered six diskettes matching the information the Agents had received. Inspector Hanson asked Roberts what the diskettes contained, but Roberts gave no specific response.

Agent Coffman identified himself and took over the interview. He told Roberts he was with Customs and was looking for currency or the exportation of high technology or other data prohibited by law. Agent Coffman asked Roberts whether he was carrying anything that did not belong to him. Roberts indicated he was not.¹ Agent Coffman told Roberts the Agents would have to search the diskettes to ensure they could be carried out of the country legally. The Agent offered Roberts the choice of either: continuing on the Paris-flight, leaving the diskettes behind to be searched and mailed to him; or remaining at the airport while the diskettes were searched and departing on a later flight. Roberts indicated he would wait.

Agents Coffman, Rios, and Stewart, and Inspector Hanson escorted Roberts to a secondary inspection area. Agent Coffman opened Roberts' laptop computer and told Roberts he needed to scan the material on it. Agent Coffman also asked Roberts if he could describe what the diskettes contained. Roberts responded that he wanted to cooperate but asked to speak privately with Agent Coffman. Agent Coffman escorted him to an interview room.

There, Roberts told Agent Coffman "he was embarrassed that there was some child pornography on the diskettes and he didn't want everybody to see it". Agent Coffman asked, "What do you mean child pornography, like the teen stuff on the internet...?" Roberts replied, "No, young kids", followed by "six", which Agent Coffman understood to mean the diskettes contained images of six-year-old children. Agent Coffman then left the room and told Agent Rios that Roberts had stated the diskettes contained child pornography.

Agents Coffman and Rios presented Roberts a waiver form stating his Miranda rights. Roberts initialed each right and signed the waiver portion of the form. Agent Coffman informed Roberts it is illegal to possess and transport child pornography out of the country. When asked where he had obtained the pornography, Roberts responded: he had downloaded it from internet sites and chat rooms; he had not paid for it; and it was for personal use and not resale.

Shortly thereafter, Agent Coffman presented, and Roberts signed, a consent-to-search form, authorizing a complete search of his luggage, computer, and diskettes. The form also provided: "Agents are authorized by me to take any letters, papers, materials, or other property which they may desire to examine". The Agents signed a "Custody receipt for Retained or Seized Property", which listed the items seized from Roberts. Roberts signed the portion of the form titled "Notice of Abandonment and Assent to Forfeiture".

In accordance with Customs procedure, the Agents provided Roberts a blank form on which to make a written statement, if he so chose. They left Roberts alone, and he provided a four-page handwritten statement. Agent Rios and another Agent then finished the interview.

Agent Coffman testified at trial he believed another Agent turned on Roberts' computer that day and confirmed the presence of pornographic materials. The Agents did not, however, search the diskettes that day. The computer and diskettes were sent to a forensic agent for an examination; it revealed more than 5,000 graphic images, mostly depicting teens and pre-teens engaged in sexually explicit conduct.

On 20 July 1999, approximately 11 months after the search, the Agents executed an arrest warrant on Roberts at IAH. Agent Rios advised Roberts of his Miranda rights, and Roberts waived them in writing. Roberts admitted he knew the diskettes seized on 25 August 1998 contained child pornography; stated he had downloaded it from the internet; and denied having taken the photographs.

That August, Roberts was indicted on two counts for knowingly possessing and transporting, in interstate commerce, child pornography, in violation of 18 U.S.C. §§ 2252A(a)(1), 2252A(a)(5)(b), and 2256(8)(A). Roberts moved to suppress: (1) on Fourth Amendment grounds, the evidence seized in the searches; and (2) the statements he made on that date, as "fruit of the poisonous tree".

Through a comprehensive and insightful opinion analyzing the constitutionality vel non of routine and non-routine outbound border searches, the district court held, inter alia: (1) the initial stop and luggage search in the jetway, as well as escorting Roberts to the secondary search area, were permissible as a routine border search; (2) Roberts consented to the search of his computer and diskettes; and (3) even absent consent, the search of the computer and diskettes would have been valid as a routine border search. United States v. Roberts, 86 F. Supp. 2d 678, 687-89 (S.D. Tex. 2000). Regarding Roberts' statements, the district court held: (1) they were not "fruit of the poisonous tree", as there was no earlier Fourth Amendment violation; (2) they were not coerced; and (3) they were not subject to suppression under Miranda v. Arizona, 384 U.S. 436 (1966). Roberts, 86 F. Supp. 2d at 689-90.

In a subsequent bench trial, Roberts was convicted on both counts. He was sentenced to 51 months imprisonment and three years supervised release.

II.

The underlying facts are essentially undisputed. Disputed questions of law concerning a suppression ruling are reviewed de novo, including whether there was reasonable suspicion for the search. See United States v. Gonzalez, 190 F.3d 668, 671 (5th Cir. 1999). The denial "should be upheld 'if there is any reasonable view of the evidence to support it'". Id. (quoting United States v. Tellez, 11 F.3d 530, 532 (5th Cir. 1993)).

A.

The Fourth Amendment provides in part: "The right of the people to be secure in their persons ... and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause...." As a result, "warrantless searches and seizures are per se unreasonable unless they fall within a few narrowly defined exceptions". United States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993), cert. denied, 511 U.S. 1134 (1994).

1.

One exception is for border searches; Agents may conduct a "routine" search -- one that does not "seriously invade a traveler's privacy", id. at 1148 n.3 -- "at the international border or its functional equivalent without probable cause, a warrant, or any suspicion to justify the search". United States v. Rivas, 157 F.3d 364, 367 (5th Cir. 199...