U.S. v. Syphers

• Decision Date: 20 October 2005
• Docket Number: No. 04-2438.,04-2438.
• Parties: UNITED STATES of America, Appellee, v. Donald SYPHERS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

426 F.3d 461

UNITED STATES of America, Appellee, v. Donald SYPHERS, Defendant, Appellant.

No. 04-2438.

United States Court of Appeals, First Circuit.

Heard August 4, 2005.

Decided October 20, 2005.

Jonathan R. Saxe, Assistant Federal Public Defender, for appellant.

Peter E. Papps, Assistant United States Attorney, with whom Thomas P. Colantuono, United States Attorney, was on brief, for appellee.

Before BOUDIN, Chief Judge, SILER,^* Senior Circuit Judge, and SARIS,^** District Judge.

SARIS, District Judge.

I. INTRODUCTION

Defendant-appellant Donald Syphers appeals the denial by the United States District Court for the District of New Hampshire of a motion to suppress evidence of child pornography recovered from his computer. Appellant argues that the affidavit in support of the state court warrant failed to establish probable cause to search the computer because it did not include copies or descriptions of the alleged pornographic images that would provide the basis for evaluating whether the subjects were likely real children, and fails the standard for the good faith exception to the Fourth Amendment exclusionary rule. Appellant also contends that the police held the computer for an unreasonable amount of time in order to conduct the search, in violation of Fed.R.Crim.P. 41(e)(2)(A). We affirm the district court's ruling.

II. BACKGROUND

In August 2001, the Concord, New Hampshire Police Department began investigating appellant's alleged sexual assault of two girls who were ages fourteen and fifteen at the time. The police interviewed the girls. Appellant had allegedly photographed them with their breasts exposed and fondled their breasts.

Based on this information, Detective Sean P. Dougherty, an investigator in the area of child abuse and sexual assault (but not child pornography), obtained a state court search warrant, which is not challenged, for appellant's residence in Hillsboro, New Hampshire. During the search on November 5, 2001, police seized a Gateway computer, as well as cameras, camera bags, undeveloped film, photographs, a camcorder, and more than seventy videotapes.

The search also yielded, according to Detective Dougherty, sheets of paper containing "photographs of female minors that appeared to be younger than 16 years old. In []several of the photographs, an erect penis had been superimposed and in contact or close proximity to the mouth of the female minor to simulate oral sex." Detective Dougherty applied for a second warrant, based on this description, to search the items seized in the first search because he believed that they would yield evidence of child pornography and sexual assault.

On November 8, 2001, a state court issued a second warrant (also not challenged) to search a footlocker, develop film, and view the videotapes seized at appellant's residence. Some of the videotapes contained commercially produced adult pornography spliced with segments of teenage television actresses. The videotapes also contained pornographic material "that appeared to have been filmed from a computer monitor." Detective Dougherty stated that the "monitor and backdrop appeared consistent with [appellant's] monitor and the backdrop of the room where the computer was located."

Detective Dougherty then sought a third warrant to search appellant's computer — the warrant at issue in this appeal. The affidavit in support of this warrant described the materials seized from appellant's apartment under the first two warrants, including the "photographs of female subjects, some who appeared to be minors." The affidavit also described the videotape of what appeared to be appellant's computer monitor:

Some of the pornographic materials appeared to originate from a web site identified as www.lolitas.com. These sites contained pornographic footage of female subjects engaged in oral sex and or intercourse with one or more male parties. Also noted on the tapes were still photographs of female subjects with breasts and or genitalia exposed. Some of the subjects of these tapes appear to be under the age of 18 years of age.

A state court issued the third warrant on November 28, 2001. The same day, the prosecutor moved for an additional twelve months to search the computer due to an "overwhelming backlog in similar computer crimes." The court granted the motion. In January 2002, Syphers pled guilty in state court to a reduced charge of simple assault.

Following the resolution of all pending state sexual assault charges, appellant filed a motion for return of his computer on April 5, 2002. The state objected on grounds that it needed more time to complete reviewing 64,000 newly de-encrypted images on the computer and to share the material with the United States Attorney's office. The state court denied the motion. The police completed the search of the computer in June 2002, within the twelve-month warrant extension window. The search of the computer yielded at least ten (but not more than 100) images of child pornography. The FBI reviewed the material, identified several of the subjects as real children, and identified the sources of some of the images.

On June 19, 2003, a federal grand jury returned an indictment of appellant on one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). On December 18, 2003, the United States District Court for the District of New Hampshire denied appellant's motion to suppress the material recovered from his computer. United States v. Syphers, 296 F.Supp.2d 50, 55-56 (D.N.H.2003) (DiClerico, J.) (denying motion to suppress under the good faith exception and holding that the duration of the computer seizure was not excessive).

On May 20, 2004, the district court declared a mistrial in appellant's case. The parties then negotiated a plea agreement in which appellant reserved the right to appeal the ruling on his motion to suppress, pursuant to Fed.R.Crim.P. 11(a)(2). The sentencing guideline calculation was based on appellant's possession of child pornography, the evidence of which was obtained from his computer. On October 14, 2004, appellant was sentenced to thirty months imprisonment. Appellant here challenges only the denial of his motion to suppress.

III. STANDARD OF REVIEW

"In reviewing a district court's denial of a suppression motion, this Court reviews the district court's findings of fact for clear error . . . [and] reviews questions of law de novo." United States v. Dunning, 312 F.3d 528, 531 (1st Cir.2002). "[D]eterminations of . . . probable cause should be reviewed de novo on appeal." Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). However, "a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Id. Review of good faith determinations is also de novo. United States v. Brunette, 256 F.3d 14, 17 (1st Cir.2001).

IV. DISCUSSION

A. Probable Cause

The Fourth Amendment requires probable cause for a search warrant to issue. U.S. Const. amend. IV. Probable cause for a warrant based on an affidavit "exists where information in the affidavit reveals `a fair probability that contraband or evidence of a crime will be found in a particular place.' `Probability is the touchstone' of this inquiry." United States v. Baldyga, 233 F.3d 674, 683 (1st Cir.2000) (quoting United States v. Khounsavanh, 113 F.3d 279, 283 (1st Cir.1997)). Thus, "[t]he standard of probable cause requires a probability, not a prima facie showing, of criminal activity." United States v. Burke, 999 F.2d 596, 599 (1st Cir.1993); see also United States v. DeQuasie, 373 F.3d 509, 518 (4th Cir.2004) ("The probable cause standard does not require officials to possess an airtight case before taking action." (internal quotations and citation omitted)).

"The standard applied in determining the sufficiency of an affidavit is a `totality of the circumstances' test." United States v. Garcia, 983 F.2d 1160, 1167 (1st Cir.1993) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). "[S]earch warrants and affidavits should be considered in a common sense manner, and hypertechnical readings should be avoided." Baldyga, 233 F.3d at 683 (quoting United States v. Bonner, 808 F.2d 864, 868 (1st Cir.1986)); see also Maryland v. Pringle, 540 U.S. 366, 370, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) ("[T]he probable-cause standard is a practical, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." (internal quotations and citation omitted)).

However, "probable cause to issue a warrant must be assessed by a judicial officer, not an investigating agent." Brunette, 256 F.3d at 18. "This judicial determination is particularly important in child pornography cases, where the existence of criminal conduct often depends solely on the nature of the pictures." Id.

A court reviewing a warrant application to search for pornographic materials ordinarily is unable to perform the evaluation required by the Fourth Amendment if the application is based on allegedly pornographic images neither appended to, nor described in, the supporting affidavit. Ideally, copies of such images will be included in all search warrant applications seeking evidence of child pornography crimes. If copies cannot feasibly be obtained, a detailed description, including the focal point and setting of the image, and pose and attire of the subject, will generally suffice to allow a magistrate judge to make a considered judgment.

Id. at 20.

Appellant argues that the third warrant lacked probable cause in light of this Court's holding in Brunette and the Supreme Court holding in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002).¹ In Free Speech Coalition,...