U.S. v. Upham

• Decision Date: 11 December 1998
• Docket Number: No. 98-1121,98-1121
• Citation: 168 F.3d 532
• Parties: UNITED STATES, Appellee, v. Troy UPHAM, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 532

168 F.3d 532

UNITED STATES, Appellee, v. Troy UPHAM, Defendant, Appellant.

No. 98-1121.

United States Court of Appeals First Circuit.

Heard Dec. 11, 1998.

Decided Feb. 12, 1999.

Donald R. Furman, Jr., on brief for appellant.

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

Before BOUDIN, LYNCH, and LIPEZ, Circuit Judges.

BOUDIN, Circuit Judge.

In February 1997, U.S. Customs agents who were monitoring a "chat room" on the Internet, while engaged in an undercover investigation, received in Buffalo, New York a number of images depicting child pornography. Records of the Internet service provider showed that the computer from which the images had been sent was owned by Kathi Morrissey at an address in Costigan, Maine. Acting pursuant to a warrant, the agents conducted a search of Morrissey's home on March 21, 1997.

Among the items seized and taken from the house were Morrissey's computer and a number of diskettes. Using a computer utilities program and the "undelete" function, the government was able to recover from the computer's hard disk and the diskettes some 1,400 previously deleted images of minors engaged in sexually explicit conduct. These images included the relatively small number of images that the agents had received in Buffalo in February 1997 from Morrissey's computer.

Further investigation revealed that from about September 1996 until March 1997, the inhabitants of Morrissey's house included Morrissey, her two young children and her then-boyfriend Troy Upham. Later evidence, including admissions from Upham, showed that Upham was the principal user of the computer and that child pornography had been sent and received by him over the Internet on a regular basis. Upham left Morrissey's home for Canada in mid-March 1997. In May 1997, he was indicted by a federal grand jury, and he returned from Canada to face trial.

As set forth in a superceding indictment, the grand jury charged Upham with four counts of transporting in interstate commerce computer graphic images of minors engaged in sexually explicit conduct, the production of which involved the use of minors engaged in such conduct; each count related to transmissions on a different date in February 1997. See 18 U.S.C. § 2252(a)(1). The fifth count charged Upham with possession, on "a date uncertain" but between about February 7, 1997, and March 21, 1997, of the 1,400 images of minors engaged in sexually explicit conduct, the production of which involved the use of minors engaged in such conduct. See 18 U.S.C. § 2252(a)(4)(B).

Asserting numerous grounds, Upham filed a motion to suppress evidence derived from the search of Morrissey's home. On August 11, 1997, the district court conducted an evidentiary hearing on the motion. The district court denied the motion, and the images derived from the search--recaptured from their deleted state--were later admitted at trial. We defer for the moment a description of the grounds now advanced by Upham to justify suppression and the government's responses to those claims.

Upham was tried by a jury in a three-day trial conducted in September 1997. The government provided evidence as to the images received in Buffalo from Morrissey's computer and of those recovered from the computer hard drive and disks seized in the search. It also offered evidence connecting Upham with the transmission and receipt of the images. Finally, a doctor testified for the government to provide medical evidence as to the ages of the children depicted in the images.

Upham testified at trial in his own defense but did not deny sending and receiving child pornography over the Internet. Instead, Upham argued that he had been sexually abused as a child and that his exchanges of such images on the Internet with other "chat room" participants were done in connection with his preparation of a serious book relating to child abuse. He said that he had written a small number of pages, albeit over a very long period, as part of this project.

The jury convicted Upham on all five counts. The jury was given a separate interrogatory to be answered if it convicted on one or more counts: "Was the defendant's sole purpose in committing the offense or offenses to produce a serious literary work?" The jury answered in the negative. In due course, Upham was sentenced to 78 months in prison, the minimum provided by the Sentencing Guidelines for the offenses in light of Upham's prior criminal history.

Upham now appeals, raising a wide range of issues in a brief submitted by counsel and in a supplement prepared by Upham himself. Of these, the only one requiring full discussion is Upham's multi-part claim that the motion to suppress should have granted. In particular, Upham says that the warrant was too broad and that its scope was exceeded when the government recovered from the hard drive and diskettes the images that had previously been deleted.

At the outset, the government objects that Upham had no standing to challenge the search. This is so, it says, because Upham has now conceded that he broke up with Morrissey and moved out on March 13, 1997, before the search occurred, and he therefore lacked any privacy interest in the premises. See Rakas v. Illinois, 439 U.S. 128, 131 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The government concedes that it did not make this argument in the district court. Quite possibly, it did not then have what it now regards as a clear admission from Upham, namely, that when he moved to Canada, he did not intend to return to Morrissey's house.

Although the government has waived the standing argument, nothing prevents us from considering it if we choose to do so, always assuming this would not be unfair to Upham. Cf. United States v. Pervaz, 118 F.3d 1, 4 (1st Cir.1997). In this case we think it would not be fair. Despite some evidence of the break-up, the record is not so clear as to prevent Upham from arguing (and indeed testifying) that he planned to return or had some other residual link to the property. The proper place to settle such issues was the suppression hearing.

Upham's first challenge to the warrant in this court is that it was generic in its description of what was to be seized and did not satisfy the supposed tests for such a warrant. The warrant itself attached, and incorporated by reference, the list of materials to be seized that had been included in the application for the warrant. The first two items on the list--the only ones directly pertinent here--were as follows:

Any and all computer software and hardware, ... computer disks, disk drives....

Any and all visual depictions, in any format or media, of minors engaging in sexually explicit conduct [as defined by the statute].

The government says that neither paragraph is defective. The government also says that Upham's attack on the warrant as too general was not made in the motion to suppress and that Upham is therefore limited to plain error on this issue. The government appears to be right as to waiver, but since we think there was no error at all, we prefer to address the matter in these terms in order to give guidance on what may be a recurring issue.

The question whether a warrant is sufficiently "particular" has been much litigated with seemingly disparate results. See Twenty-Sixth Annual Review of Criminal Procedure, 85 Geo. L.J. 821, 836-38 & nn. 75-78 (1997)(collecting cases). The root is the Fourth Amendment's direction that a warrant describe "particularly" the place to be searched and "the persons or things to be seized." U.S. Const. amend IV. The requirement of particularity arises out of a hostility to the Crown's practice of issuing "general warrants" taken to authorize the wholesale rummaging through a person's property in search of contraband or evidence. See Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

The cases on "particularity" are actually concerned with at least two rather different problems: one is whether the warrant supplies enough information to guide and control the agent's judgment in selecting what to take, see United States v. Abrams, 615 F.2d 541, 545-46 (1st Cir.1980); and the other is whether the category as specified is too broad in the sense that it includes items that should not be seized, see United States v. Kow, 58 F.3d 423, 427 (9th Cir.1995). See also Davis v. Gracey, 111 F.3d 1472, 1478-79 (10th Cir.1997) (discussing both problems). Unfortunately, making a warrant more objective may also make it broader, and vice versa.

Upham's main attack is on the first paragraph, allowing the seizure of computer equipment, which he describes as "generic." Although Upham relies principally on United States v. Klein, 565 F.2d 183, 188 (1st Cir.1977), that case was concerned with whether a warrant was imprecise because it permitted unduly subjective judgments. Here, the first paragraph is easily administered based on objective criteria (i.e., whether the items seized are computer equipment). The problem is not imprecision but arguable overbreadth.

As a practical matter, the seizure and subsequent off-premises search of the computer and all available disks was about the narrowest definable search and seizure reasonably likely to obtain the images. A sufficient chance of finding some needles in the computer haystack was established by the probable-cause showing in the warrant application; and a search of a computer and co-located disks is not inherently more intrusive than the physical search of an entire house for a weapon or drugs. We conclude, as did the Ninth Circuit in somewhat similar circumstances, see United States v. Lacy, 119 F.3d 742, 746-47 (9th Cir.1997), that the first paragraph was not unconstitutionally overbroad.

Of course, if the images themselves could have been easily obtained through an on-site...