U.S. v. Turner, 98-1258

• Decision Date: 09 December 1998
• Docket Number: No. 98-1258,98-1258
• Citation: 169 F.3d 84,1999 WL 90209
• Parties: UNITED STATES of America, Plaintiff, Appellant, v. Daniel TURNER, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 84

169 F.3d 84

UNITED STATES of America, Plaintiff, Appellant, v. Daniel TURNER, Defendant, Appellee.

No. 98-1258.

United States Court of Appeals First Circuit.

Heard Dec. 9, 1998.

Decided Feb. 26, 1999.

F. Mark Terison, Assistant United States Attorney, with whom Jay P. McCloskey, United States Attorney, and Gail Fisk Malone, Assistant United States Attorney, were on brief for appellant.

James C. Munch III, with whom Terence M. Harrigan and Vafiades, Brountas & Kominsky were on brief for appellee.

Before SELYA, Circuit Judge, CYR, Senior Circuit Judge, and STAHL, Circuit Judge.

CYR, Senior Circuit Judge.

After police detectives discovered several nude photographs in his personal computer files, defendant Daniel Turner was indicted for possessing child pornography in violation of 18 U.S.C. § 2252. Thereafter, the district court suppressed the photographs and the government brought this interlocutory appeal. See id. § 3731. We affirm the district court ruling, albeit on different grounds.

I BACKGROUND ¹

At 2:00 a.m. on July 28, 1997, 26-year-old Megan Thomas was awakened in her bedroom by a masked intruder wielding a knife. During the ensuing struggle Thomas cut her hands when she grabbed the knife. The intruder fled. Turner, who lived in the apartment next door to Thomas, notified the Bangor police. When police detectives arrived at the scene, Turner told them that while seated upstairs at his computer he had observed the intruder fleeing the Thomas apartment, then telephoned the police.

The next morning, Bangor Police Detectives Reagan and Gould returned to the crime scene for further investigation, and noticed that window screens on both the Thomas and Turner apartments were ajar and the sill on the Turner apartment was smeared with blood. The detectives awakened Turner, told him about these discoveries, and expressed their concern that the intruder might have entered Turner's apartment as well. Turner responded by handing the detectives a knife which he claimed to have found near his kitchen sink, but did not remember having placed there. The knife fit the description Thomas had given the police earlier.

The detectives then obtained verbal consent to "look around" Turner's apartment. At that point Turner was not considered a suspect in the Thomas assault. Turner accompanied the detectives on their initial tour of his apartment, during which they found additional blood stains on the stairway walls leading to the second floor, and on a trash can lid in the computer room on the second floor. When asked about these discoveries, Turner could provide no explanation.

The detectives then began to suspect that Turner was the assailant. At their request, Turner signed a written consent to search "the premises," "his vehicle," and "personal property." Before doing so, he was expressly told that the officers would search for "any signs the suspect had been inside [the apartment]," "any signs a suspect had left behind, or anything of that sort," and "evidence of the assault itself."

While a detective remained on the first floor with Turner, other officers began their 90-minute search of the second floor. In the closet of the second-floor computer room, Detective Gould found several videotapes which apparently contained sexually explicit material. Then, while removing boxes from the closet and stacking them on or near the computer station, Gould noticed that Turner's computer monitor screen suddenly turned on, and the Windows "desktop" disclosed a photograph of a nude woman with "light-colored hair," which Gould concluded was "similar" to Ms. Thomas' hair color based on descriptions Gould had been given.

At that point Gould seated himself at the computer and engaged the "mouse" to access the "Documents" index from the Windows 95 task bar, which itemized titles of files most recently accessed by Turner. Gould noticed several indexed files with the suffix ".jpg," denoting a file containing a photograph. After clicking on these file names, he located photographs of nude blonde women in bondage. Further into the "Documents" listing, he noted several text files bearing titles which suggested rape and/or bondage. After calling the district attorney's office for guidance, Gould copied the adult-pornography files onto a floppy disk.

Gould then searched the computer hard drive for other incriminating files. Opening the "My Computer" icon and a folder labeled "G-Images," he noted several files with names such as "young" and "young with breasts." Upon opening one such file, he viewed what he believed to be child pornography, then closed down and seized the computer. It was at this point that Turner first came upstairs and discovered that his computer files had been subjected to search.

After Turner was charged in a single count with possessing child pornography, see id. § 2252, he moved to suppress the computer files. The district court granted the motion following a suppression hearing, on the ground that it was not objectively reasonable for Detective Gould to have concluded that evidence of the Thomas assault--the stated object of the consent search--would be found in files with such labels as "young" or "young with breasts."

II DISCUSSION

The district court ruled that even if the Turner consent authorized the opening of nondescript files containing photographs, it did not permit the opening of files labeled "young" or "young with breasts," which were unlikely to contain evidence pertinent to the Thomas assault. The government vigorously responds that the consent was so broad--authorizing search of all Turner's "personal property"--that it necessarily encompassed a comprehensive search of his computer files. As we conclude that the consent did not authorize the search of the computer, we affirm the district court judgment. See United States v. Doe, 61 F.3d 107, 111-12 (1st Cir.1995) (appellate court may affirm suppression ruling on any ground apparent in the record). ²

Since it comes within an established exception to the Fourth Amendment warrant requirement, "[a] consensual search may not exceed the scope of the consent given." United States v. Rudolph, 970 F.2d 467, 468 (8th Cir.1992). ³ "The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness--what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991); United States v. Donlin, 982 F.2d 31, 33 (1st Cir.1992). ⁴ We therefore look beyond the language of the consent itself, to the overall context, which necessarily encompasses contemporaneous police statements and actions.

"The scope of a [consensual] search is generally defined by its expressed object." Jimeno, 500 U.S. at 251, 111 S.Ct. 1801 (emphasis added); Doe, 61 F.3d at 112 n. 7; see United States v. Pena, 143 F.3d 1363, 1368 (10th Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 236, 142 L.Ed.2d 194 (1998); United States v. Saadeh, 61 F.3d 510, 518 (7th Cir.1995). For example, in United States v. Dichiarinte, 445 F.2d 126 (7th Cir.1971), police officers who sought consent to search the defendant's premises had made "repeated reference to [their] interest in narcotics [ ] and there was no indication that they desired to look for anything other than narcotics themselves." Id. at 129. After the defendant consented, however, the officers inspected personal papers. The Seventh Circuit held that the search exceeded the scope of the consent: "Government agents may not obtain consent to search on the representation that they intend to look only for certain specified items and subsequently use that consent as a license to conduct a general exploratory search." Id. at 129-30 & n. 3 ("Thus if government agents obtain consent or a warrant to search for a stolen television set, they must limit their activity to that which is necessary to search for such an item; they may not rummage through private documents and personal papers.").

In the present case the detectives preliminarily restricted the scope of the consent in several respects. Upon their arrival at the Turner apartment early in the morning on July 28, the detectives, by their own admission, did not consider Turner a suspect in the Thomas assault. See supra Section I, p 2. Rather, after finding a window screen ajar in the Turner apartment, they suspected that Thomas's assailant might have broken into the Turner apartment while fleeing the crime scene next door, something which Turner presumably need not have done to gain access to his own apartment.

Later, after finding a knife and scattered blood stains for which Turner could provide no explanation, and before Turner signed the written consent form, the detectives told Turner that he was a suspect. The detectives nevertheless couched their search request in terms normally understood to refer only to an intruder, rather than a permanent resident, by announcing their intention to look for "any signs the suspect had been inside [the apartment]," and "any signs a suspect had left behind." See, e.g., United States v. Elliott, 107 F.3d 810, 815 (10th Cir.1997) (where officer "explained to [the person whose consent was being sought] that he just wanted to see how things were 'packed' or 'packaged[,]' [w]e conclude that a typical reasonable person would have construed these additional statements as expressly limiting the scope of [the officer's] request"); 3 Wayne R. LaFave, Search and Seizure § 8.1(c), at 620 (3d ed. 1996) ("When a purpose is included in the [officer's] request, then the consent should be construed as authorizing only that intensity of police activity necessary to accomplish the stated purpose.").

We think that an objectively reasonable person assessing in context the exchange between Turner and these detectives would have understood that the police intended to search only in places where...