U.S. v. Rosa

• Decision Date: 08 March 2011
• Docket Number: Docket No. 09-0636-cr
• Parties: UNITED STATES of America, Appellee, v. Efrain J. ROSA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

626 F.3d 56

UNITED STATES of America, Appellee,

v.Efrain J. ROSA, Defendant-Appellant.

Docket No. 09-0636-cr.

United States Court of Appeals,Second Circuit.

Argued: March 2, 2010.

Decided: Oct. 27, 2010.

Rehearing En Banc Denied March 8, 2011.

James P. Egan, Office of the Federal Public Defender (Alexander Bunin, Federal Public Defender, and Lisa A. Peebles, First Assistant Federal Public Defender, on the brief), Syracuse, N.Y., for Defendant-Appellant.

Brenda K. Sannes, Assistant United States Attorney (Andrew T. Baxter, Acting United States Attorney for the Northern District of New York, and Lisa M. Fletcher, Assistant United States Attorney, of Counsel, on the brief), Syracuse, N.Y., for Appellee.

Before: WALKER and LIVINGSTON, Circuit Judges, and KAPLAN, District Judge.^*

JOHN M. WALKER, JR., Circuit Judge:

Defendant-Appellant Efrain J. Rosa appeals from the February 12, 2009 judgment of the United States District Court for the Northern District of New York (Norman A. Mordue, Chief Judge) convicting him, upon a conditional guilty plea, of three counts of producing child pornography and one count of witness tampering. Prior to his guilty plea, Rosa moved to suppress physical evidence seized from his home on the basis that it was taken pursuant to an overbroad search warrant thatfailed to state how electronic items to be seized were connected to any suspected criminal activity or, more specifically, child pornography. While we agree with Rosa that the Supreme Court's decision in Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004), has abrogated United States v. Bianco, 998 F.2d 1112 (2d Cir.1993), to disallow consideration of unattached and unincorporated supporting documents to cure an otherwise defective search warrant, and that the warrant in this case is thus constitutionally invalid, we conclude that the district court correctly refused to exclude the resulting evidence. We therefore AFFIRM the district court's denial of Rosa's motion to suppress.

BACKGROUND

Late on September 26, 2007, the Oswego County, New York, Sheriff's Office began investigating possible child exploitation by Efrain J. Rosa after Deputy Sheriff John Burke was dispatched to a local address upon receipt of a 911 call from two mothers reporting that their minor sons had just disclosed being sexually abused by a neighbor, whom the boys referred to only as "J." Upon speaking with the two women and interviewing each of the boys, Deputy Sheriff Burke learned that "J" had shown the boys files on his computer containing nude pictures of the boys and other children and that "J" had engaged in sexual conduct with the boys. The boys further stated that "J" kept three laptop computers in his apartment, had a USB flash drive on which he kept images of nude children that included images of the two boys, had a pistol in his bedside table, and had sexually abused each of the boys on multiple occasions over a period of two months. In the course of the investigation, at approximately 2:00 a.m., the responding officers sought the assistance of Oswego County Investigator Bryan Blake, who had specialized training in performing computer forensic exams in child pornography cases. Based on the information provided to him by Deputy Sheriff Burke and another officer, the sworn statements of the two boys and one of the mothers, and his own specialized computer training, Investigator Blake prepared a search warrant application and affidavit, which he then presented to Granby Town Justice Bruce Wells in connection with his request for a search warrant of Rosa's apartment.

On September 27, 2007, at 4:10 a.m., Judge Wells issued a search warrant directing the Oswego County Sheriff's Office to search

[t]he entire residence known as 30 West 11th Street Building E Apartment 1 Chateau West Apartments in the Town of Granby, County of Oswego, State of New York. This is to include any containers or rooms whether locked or otherwise[ ]

for the following property:

The property sought to be seized and searched is described as computer equipment, electronic digital storage media included but not limited to floppy diskettes, compact disc, hard drives whether mounted in a computer or otherwise, video or audio tapes, video surveillance systems, video and digital camera systems, printing devices, monitors, firearms and any written and/or printed and/or electronic stored notes or records which would tend to identify criminal conduct and any personal papers or documents which tend to identify the owner, leasee or whomever has custody or control over the premises searched or the items seized.

While the search warrant itself did not incorporate any supporting documents, or set forth the nature of the suspected criminal activity, section A of the search warrant application stated that the property tobe searched was evidence of three New York criminal offenses—two sex offenses, one of which related to crimes involving child pornography, and one firearms offense. ¹ Sections B and C of the search warrant application then described the location to be searched and the items to be searched and/or seized identically to the descriptions used in the search warrant. Finally, the search warrant application requested that "the court issue a search warrant directing the search as set forth in section C of this application for property described and set forth in sections A and B of this application and the seizure thereof." Investigator Blake swore to the information in the search warrant application before Judge Wells, and the application bore each man's signature.

The materials presented to Judge Wells also included an affidavit by Investigator Blake that (a) incorporated the statements made by each of the boys and one of the two women, (b) explained Investigator Blake's forensics training and the characteristics common to individuals engaged in the production of child pornography and in child molestation, and (c) set forth Rosa's New York criminal history and lack of a pistol permit. The affidavit also stated the following as to the items specified for seizure:

All of the materials requested for seizure will identify children who are being sexually exploited through child molestation and child pornography. The materials will also identify other adults who are engaging in the sexual exploitation of children by these means. In addition, these materials will demonstrate the sexual proclivity, inclination, preference, and activities of the person under investigation providing evidence that will tend to show that the person under investigation has committed felonies.

After issuance of the search warrant, Investigator Blake convened a team of officers, proceeded to Rosa's apartment, and, at approximately 5:00 a.m., executed the warrant. During the search, officers seized numerous items, including, inter alia, six computers, multiple USB thumb drives, USB cables, a Sony Playstation, two digital cameras, multiple external hard drives, a cassette recorder, two USB cameras, numerous compact discs, a pair of handcuffs, condoms, three marijuana pipes, a handgun, ammunition, and over seventy grams of marijuana. Investigator Blake personally participated in the execution of the warrant and, as the warrant's affiant, was responsible for ensuring that the items seized were within the scope of the approved search.

Investigator Blake subsequently performed a forensic analysis of the computers and related storage media, during which he discovered several thousand images and over a hundred videos of child pornography. Investigator Blake also uncovered three digital file folders, two of which were labeled with the complainants' first names, that contained sexually explicit images of minor children, including images of the defendant engaging in sexual conduct with each of the complainants. File data from the images indicated that they were produced by the same type of camera as the one seized from Rosa's apartment.

In October 2007, following his arrest and arraignment on state court charges, a federal grand jury indicted Rosa on three counts of producing child pornography. In February 2008, Rosa moved to suppress post-arrest statements he made to law enforcementofficers, arguing that the statements were involuntary, made under duress, and taken despite his request for counsel, all in violation of the Fifth Amendment. On March 13, 2008, the grand jury returned a nineteen-count superseding indictment charging Rosa with three counts of producing child pornography, one count of witness tampering, two counts of attempting to receive child pornography in interstate commerce, and thirteen counts of possessing child pornography.

In June 2008, Rosa filed a second motion to suppress, this time arguing that physical evidence seized from his apartment was obtained in violation of the Fourth Amendment. Specifically, Rosa argued that the issuing date on the search warrant was altered, that the officers failed to provide him with or show him a copy of the warrant, that the warrant lacked particularity and was overbroad because it allowed for the seizure of any items that "would tend to identify criminal conduct," and that the inventory from the search lacked sufficient detail. In a supplemental memorandum, Rosa further described the search warrant's lack of particularity, arguing that it failed to show "how the items to be seized are connected to criminal activity" or to "state or make any mention of child pornography." Thus, according to Rosa, the warrant purportedly authorized a general search of his electronic equipment without providing any guidance to the executing officers as to the type of criminal conduct suspected or the particular items to be seized.

On August 6, 2008, following an evidentiary hearing as to Rosa's post-arrest statements only, the district court, in a ruling from the bench, denied Rosa's motion to suppress those statements as well as his subsequent motion to suppress physical evidence seized...