U.S. v. Williamson, 05-30150.
| Decision Date | 13 March 2006 |
| Docket Number | No. 05-30150.,05-30150. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Loren Samuel WILLIAMSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Larry A. Roloff, Eugene, OR, argued the cause and was on the briefs for the appellant.
Jeffrey J. Kent, Assistant United States Attorney, Eugene, OR, argued the cause for the appellee. Karin J. Immergut, United States Attorney, was on the brief.
Appeal from the United States District Court for the District of Oregon, Ann L. Aiken, District Judge, Presiding. D.C. No. CR-02-60017-AI.
Before DIARMUID F. O'SCANNLAIN, ANDREW J. KLEINFELD, and SUSAN P. GRABER, Circuit Judges.
We consider whether federal agents and local police legally seized a home computer and related equipment used in the international transmission of child pornography.
In June, 2000, police in the European country of Croatia discovered 19 child pornographic photographs that had been posted to an internet site and, using publicly available information, traced the source of the pictures to a computer in Roseburg, Oregon, and thereafter notified the Federal Bureau of Investigation ("FBI"). Further investigation led FBI agents to suspect that the pictures originated from a computer used at the home of Loren Williamson.
FBI Agent Victor Nielsen, investigating the tip, submitted an Affidavit in support of a search warrant, which claimed probable cause to believe "evidence of violations of [18 U.S.C. § ] 2252" could be found at Williamson's residence. Agent Nielsen averred that he had reviewed the 19 images and that they depicted "`minors' engaged in `sexually explicit conduct' as defined in [18 U.S.C. § ] 2256, and within the meaning of [18 U.S.C. § ] 2252." The cited provisions are part of the Child Pornography Prevention Act of 1996, 18 U.S.C. § 2251 et seq.
The search warrant sought permission to seize a wide range of property. Paragraph (a) on the warrant's Attachment B listed the items to be seized, including computers and related hardware and software "which may be or are used to visually depict child pornography, child erotica, information pertaining to the sexual interest in child pornography, sexual activity with children or the distribution, possession or receipt of child pornography, child erotica or information pertaining to an interest in child pornography or child erotica." Paragraph (b) permits seizure of "correspondence pertaining to the possession, receipt or distribution of visual depictions of minors engaged in sexually explicit conduct, as defined in[18 U.S.C. § ] 2256 attached hereto at Attachment B1." Paragraph (c) plainly states that "[t]he term minors as used in this list of items to be seized means persons under the age of 18 years." Similarly, paragraphs (d) through (l) authorize the seizure of books and magazines, motion pictures, pictures and negatives, correspondence, receipts relating to shipment, address books, diaries, notebooks, and other materials related to the "visual depiction of minors engaged in sexually explicit conduct, as defined in [18 U.S.C. § 2256]."
With respect to the original 19 images, the Affidavit concluded:
Your affiant's review of the above referenced image files revealed that all 19 photographs contain images depicting "minors" engaged in "sexually explicit conduct" as defined in [18 U.S.C. § 2256], and withing [sic] the meaning of [18 U.S.C. § 2252]. Specifically, these images depict unclothed "minors" in various states of sexual arousal and many of them depict "minors" engaged in sexual acts as defined by [18 U.S.C. § 2256]. Your affiant and other trained agents have examined these images and concluded that a majority of them depict individuals under the age of 18 years engaging in actual or simulated sexual acts....
The statute defines a "minor" as "any person under the age of eighteen years." 18 U.S.C. § 2256(1). In 2001, the statute defined "child pornography" to mean
any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct where—
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct;
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or
(D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct[.]
18 U.S.C. § 2256(8) (2001). At the time the warrant was drawn, we had already decided that subsections (B) and (D) were unconstitutionally overbroad. Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999), aff'd Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002).
On July 5, 2001, FBI agents executed the search warrant. At the outset of the search, the agents displayed the search warrant and their official credentials to Williamson, then age 50, and his mother, who lived in different buildings on the same property. Law enforcement officers present included four FBI agents—with Agent Nielsen directing the search—and two local police officers. After arriving at the main house, Agent Nielsen showed Williamson's mother the face page of the warrant. Agent Nielsen then accompanied her to her son's residence behind the main house and retrieved him while the FBI agents secured several weapons lying in plain sight.
Agent Nielsen then sat with Williamson and his mother on the living room couch in the main house and explained that the agents sought child pornography in Williamson's possession. Agent Nielsen testified that he "explained to Mrs. Williamson and Loren [Williamson] that we were there to search for child pornography and various things that go along with child pornography." Agent Nielsen also inquired as to where Williamson's possessions were, so that the agents could limit the scope of their search and avoid searching Williamson's parents' property. Agent Nielsen had a copy of the search warrant on his lap during this conversation, but did not provide a copy to either Williamson or his mother, and neither requested one.
After Agent Nielsen explained the purpose of the search, two FBI agents began searching Williamson's room. While the two agents searched, Agent Nielsen remained with Williamson and his mother, conversing with them. At some point near the conclusion of the four-hour search, Williamson's father came home. Williamson's father was angry and uncooperative. While the police attempted to explain the contents of the warrant and the purpose of their search to Williamson's father, he refused to calm down. As the search neared completion, Williamson's father requested a copy of the search warrant. An agent responded that "we're about to give it to you, along with a receipt which we're now preparing of the items that we're taking, and that we will leave that in your custody."
Before leaving, the agents provided Williamson with a copy of the search warrant (with attachments) and a receipt for the items taken. The police also offered to allow Williamson and his parents to inspect the items seized and compare them to those listed on the receipt, but they declined to do so.
During the search, agents seized copies of the 19 photographs allegedly transmitted to Croatia, as well as computer equipment, a digital camera, digital editing software, hard drives, CD-ROMs, Zip disks, and a variety of pornographic photographs. The FBI agents discovered thousands of additional child pornographic pictures on the seized digital media.
Williamson stipulated that the government could establish that the 19 photographs were of "actual"1 minors engaged in sexually explicit conduct. Further, Williamson stipulated that FBI agents recovered "thousands of visual depictions of child pornography as defined above [`visual depictions of actual minors under 18 years of age engaged in sexually explicit conduct,'] and in [18 U.S.C. § 2256.]"
Agent Nielsen testified that when he executed the search warrant, he was unaware of our case law requiring him to provide a copy of the search warrant at the outset of the search. The government concedes failure to do so was error. As Agent Nielsen explained:
We always provide a copy of the search warrant and receipt when we exit a residence. We always show them a copy as we go in....
In my mind-set, I was definitely going to leave them a copy of the warrant at the end. And it was not—it was not necessary to give them the warrant until we were finished.
The district court denied the motion to suppress concluding:
Agent Nielsen testified that it was standard protocol to leave a copy of the search warrant at the conclusion of the search, and that is what the agents had intended to do....
I accept the testimony of Agent Nielsen.... I further find that Nielsen's actions evince no deliberate disregard of [Federal Rule of Criminal Procedure] 41(d).
The district court noted that under United States v. Gantt, 194 F.3d 987, 1001 (9th Cir.1999), the purpose for requiring law enforcement officers to turn over a copy of the warrant is "to give notice" of what they are entitled to seize and to provide assurance of their lawful authority. Given the nature of the search, the district court concluded that "an order of suppression would elevate form over substance and would not further the underlying purpose of Rule 41(d)."
On June 17, 2003, the district court convicted Williamson through a stipulated facts trial. On March 8, 2005, the...
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