United States v. Fall

• Decision Date: 03 April 2020
• Docket Number: No. 18-4673,18-4673
• Citation: 955 F.3d 363
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Robert Michael FALL, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

955 F.3d 363

UNITED STATES of America, Plaintiff - Appellee,

v.Robert Michael FALL, Defendant - Appellant.

No. 18-4673

United States Court of Appeals, Fourth Circuit.

Argued: December 10, 2019

Decided: April 3, 2020

ARGUED: Mark Diamond, Richmond, Virginia, for Appellant. Elizabeth Marie Yusi, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF: G. Zachary Terwilliger, United States Attorney, Daniel T. Young, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Before DIAZ and QUATTLEBAUM, Circuit Judges, and Max O. COGBURN, United States District Judge for the Western District of North Carolina, sitting by designation.

Affirmed by published opinion. Judge Quattlebaum wrote the opinion in which Judge Diaz and Judge Cogburn joined.

QUATTLEBAUM, Circuit Judge:

Robert Michael Fall asks us to reverse his conviction of receipt, possession and transportation of child pornography for four reasons. First, he claims that the Virginia Beach Police Department (the "VBPD") violated his Fourth Amendment rights in the way it searched his laptop computer. Second, he asserts the counts against him for receipt and possession of child pornography produced improper multiplicity. Third, he argues that moving images from one’s laptop to one’s Dropbox account does not amount to transportation of child pornography. And fourth, he contends that the presence of child pornography images in temporary storage files on a laptop computer does not sufficiently prove knowing receipt of child pornography because such images can be saved through inadvertent internet use. These arguments require us to apply well-settled principles of criminal law to the realities of modern technological advancements in computers and the internet. While we agree with Fall that personal computing devices like laptops and cell phones implicate privacy interests about which we must exercise care, upon considering this record, we find no reversable error by the district court. Accordingly, we affirm.

I.

Fall was living with his parents in Virginia Beach, Virginia when he invited his niece, S.D., to stay with them. While S.D. and her boyfriend were watching television in the guest bedroom, they noticed a laptop computer partially visible under the guest bed. S.D.’s boyfriend opened the laptop and discovered at least one image of child pornography. S.D. then observed several pictures of children visible on the laptop’s home screen, as well as a "sexually explicit" video of a child. J.A. 77. Continuing to examine the contents of the computer, S.D. also discovered "mechanic stuff," leading her to believe that the laptop belonged to Fall—who owned an auto repair shop. J.A. 77.

S.D. then went into Fall’s bedroom, where she saw another laptop. After opening it, she discovered additional child pornography images. She left that laptop in her uncle’s bedroom and drove the laptop from the guest bedroom to the local VBPD station.

While meeting with Officer James Mockenhaupt at the police station, S.D. showed him some of the images of child pornography on the laptop. Officer Mockenhaupt then contacted a VBPD Special Victims Unit detective, who instructed him to send S.D. to the VBPD headquarters.

There, S.D. met with Detectives Patrick Henderson and Ryan Sweeney. After S.D. explained what she had seen on the laptop, Detective Henderson opened it and observed thumbnail "icons on the desktop that appeared to be nude individuals." J.A. 95. He thought the images could have depicted children. Detective Henderson then clicked on two video thumbnails on the laptop’s home screen, both of which depicted child pornography.¹

Detectives Henderson and Sweeney drove to Fall’s auto repair shop to interview him. After receiving Miranda warnings, Fall invoked his right to counsel and refused consent for a search of his residence. The detectives then began drafting an affidavit for a search warrant. Officer Mockenhaupt traveled to Fall’s residence to secure the scene. While Mockenhaupt was there, Fall arrived at the house, picked up his mother and left.

Subsequently, neighbors told Officer Mockenhaupt that they saw a man crawl out of Fall’s second-story window behind the house, throw something on top of the lower-level roof and then jump off the roof and flee. They did not recognize the man.

When Officer Mockenhaupt investigated, he discovered a laptop on the lower-level roof. Fearing rain, he and another officer secured the laptop in the second-floor bathroom until police could execute a search warrant.

The completed affidavit submitted with the warrant application stated,

On August 4th, 2016, this affiant met with [S.D.] at Police HQ. [S.D.] is temporarily living at [redacted] in the city of Virginia Beach with her uncle, Robert Fall. ... Under the bed in the room she is staying in, she discovered a laptop. She opened the laptop to see if it was operable and immediately noticed on the desktop several icons which appeared to be of pornography. She opened at least one file and saw that it was child pornography. She brought the laptop to this affiant at police headquarters. Detective Henderson and this affiant spoke with [S.D.] and Detective Henderson viewed two files on the desktop computer. One file depicted a female approximately 10-12 years old kneeling next to a man masturbating. The other video was of a 10-12 year old girl masturbating completely naked while lying on the floor. [S.D.] mentioned she believes the computer belongs to her uncle because there were programs on the computer indicative of mechanical knowledge and her uncle owns a mechanic shop. She then went into her uncle’s bedroom and found a laptop. When looking at that laptop, she described that on the desktop of the computer she saw a thumbnail with a naked girl on it. ... Prior to this occasion an individual matching Mr. Fall’s clothing description and identified by a neighbor as Mr. Fall was seen exiting the residence at [redacted] and throwing a laptop computer on the roof of the residence before exiting the yard.

J.A. 65.

After obtaining a warrant later that evening, the VBPD searched Fall’s residence. The VBPD seized various pieces of electronic evidence during the search, including the laptop recovered from the roof, another laptop from the defendant’s closet and numerous compact discs from Fall’s bedside table. All these items contained videos and images of child pornography.

A federal grand jury in Norfolk, Virginia indicted Fall on five counts of receipt and attempted receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2) ; one count of transportation of child pornography, in violation of 18 U.S.C. § 2252(a)(1) ; and three counts of possession of a matter containing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). Upon the government’s motion, the district court dismissed two of the receipt counts and one of the possession counts.

Fall moved to suppress the physical evidence seized during the search of his residence, arguing that it was the product of an improper search of the laptop that S.D. found in the guest bedroom. He argued that the third-party consent doctrine did not apply to the search of his computer or his residence, and that the VBPD’s search of the laptop extended beyond the private search of S.D. and her boyfriend. According to Fall, the information gained from this illegal search tainted the search warrant and, thus, the physical evidence obtained from his residence under that warrant. He also claimed that the warrant application improperly represented that Fall’s neighbor reported seeing Fall on the roof of his residence when she merely said she saw a person on the roof.

The district court denied the motion, concluding "there is no evidence to suggest that Detective Henderson expanded the search beyond that which was needed to verify the report by the private citizen S.D. Instead, it appears from the evidence that Detective Henderson was merely verifying that what S.D. found was actually child pornography." J.A. 642. The district court also found that the alleged misrepresentation about Fall being seen on the roof was merely an error resulting from a miscommunication from one law enforcement officer to another, the reliance on which did not "constitute ‘reckless disregard for the truth.’ " J.A. 643. The court further found that the statement was not necessary to obtain the search warrant.

Fall was tried on six counts from the indictment: Counts 3, 4 and 5, which each charged him with receipt and attempted receipt of a single image of child pornography; Count 6, which charged him with transportation of child pornography by uploading a video of child pornography from his laptop to an online file-storage account; and Counts 7 and 8, which charged him with possession of child pornography on the roof laptop and the compact discs. The jury found Fall guilty on all counts.

Prior to sentencing, the government moved to dismiss Counts 7 and 8 to minimize any potential double jeopardy issues on appeal. The district court granted the government’s motion to dismiss Count 8, but denied it as to Count 7. It reasoned that the high degree of factual overlap between the images on the discs in Count 7 and the roof laptop in Count 7 was significant enough to merit the dismissal of Count 8. It then compared the images in Count 7 with those identified in Counts 3, 4 and 5. It found that the degree of overlap was so small that the dismissal of Count 7 would be inappropriate.

Fall was sentenced to 96 months of imprisonment on Counts 3, 4, 5, 6 and 7—to run concurrently—and 20 years of supervised release. Fall filed a timely notice of appeal. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1331.

II.

Fall first argues that the physical evidence should have been suppressed as fruit of the poisonous tree—the improper warrantless search of his computer that S.D. and her boyfriend found in the guest bedroom and took to the VBPD....