United States v. Galpin

• Citation: 720 F.3d 436
• Decision Date: 25 June 2013
• Docket Number: Docket No. 11–4808–cr.
• Parties: UNITED STATES of America, Appellee, v. James R. GALPIN, Jr., Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

720 F.3d 436

UNITED STATES of America, Appellee,

v.James R. GALPIN, Jr., Defendant–Appellant.

Docket No. 11–4808–cr.

United States Court of Appeals,Second Circuit.

Argued: Nov. 19, 2012.

Decided: June 25, 2013.

James P. Egan (Lisa Peebles and James F. Greenwald on the brief) Federal Public Defender's Office, Northern District of New York, Syracuse, NY, for Defendant–Appellant James Galpin, Jr.

Paul D. Silver, Assistant United States Attorney (Richard S. Hartunian, United States Attorney, and Miroslav Lovric, Assistant United States Attorney, on the brief), Northern District of New York, Albany, NY, for Appellee.

Before: JACOBS, Chief Judge, WINTER, Circuit Judge, and SWAIN, District Judge.^*

SWAIN, District Judge:

Defendant–Appellant James R. Galpin, Jr. (“Galpin”), was convicted in the United States District Court for the Northern District of New York (McAvoy, J.) upon a conditional guilty plea, of several counts of production of child pornography, committing a felony offense involving a minor while being required to register as a sex offender, and possession of child pornography. He was sentenced on November 1, 2011, principally to 572 months of imprisonment. Prior to his guilty plea, Galpin had moved to suppress all of the evidence, including images of child pornography found on Galpin's computer, digital cameras, and digital storage devices, that had been seized in the execution of a search warrant that authorized officers to search for “evidence that will constitute, substantiate or support violations of NYS Corrections Law, section 168–f subdivision four, NYS Penal Law and or Federal Statutes.” ¹ The district court denied Galpin's motion in its entirety, holding that, although the warrant was overbroad and probable cause was lacking for its authorization to conduct a search for child pornography, the warrant was severable and the images that were found would have been in plain view during the execution of a properly limited search. Galpin appeals from the district court's November 2, 2011, judgment. We affirm the district court's determinations that the officers lacked probable cause to search for evidence of child pornography and that the warrant was facially overbroad. Because we find deficient the factual and analytical record as to whether the warrant was severable and whether the images of child pornography were seized in plain view, we vacate the judgment and remand the case for further proceedings consistent with this opinion.

Background

The Underlying Investigation

Galpin was convicted in New York in 1991 of Sexual Abuse in the First Degree. He had abused 22 boys between the ages of 10 and 15. In June 2009, several years after his release from custody and following a tip from a “concerned citizen” who reported having seen Galpin with a young boy and calls from two parents reporting that Galpin had contacted their children, the Southern Tier Cyber Predator Task Force opened an investigation. Law enforcement officials in Tioga County, New York, installed a 24–hour surveillance camera outside of Galpin's residence. The surveillance revealed numerous boys between the ages of 10 and 16 visiting the residence and spending the night. The investigation also revealed that Galpin was communicating with at least one minor boy on the Internet social networking site “MySpace” using the screename “Medic Guy.” Specifically, investigators found Galpin's photograph and the “Medic Guy” online identity posted on the MySpace page of a 13–year old boy, who was Galpin's relative. Upon discovering the posting, investigators reviewed Galpin's sex offender registration and learned that he had failed to register the “Medic Guy” identifier as required by N.Y. Correction Law § 168–f.²

The Search Warrant

On July 6, 2009, Tioga County Sheriff's Department Senior Investigator Patrick Hogan (“Hogan”) applied to the Owego Town Court for a warrant to search Galpin's residence, person, and vehicles for, inter alia, cameras, computers, cell phones, and any and all computing or data processing software, “which may reveal evidence which substantiates violations of Penal Law statutes, Corrections Law statutes and or Federal statutes.” Warrant Appl. 1, July 6, 2009. In the warrant application, Hogan set forth the details of the investigation, including observed interactions and communications with young males, and the fact that an internet provider had revealed in response to a subpoena that the subscriber I.P. address associated with the “Medic Guy” posting belonged to Galpin.

Based on this information, Hogan concluded in his application that Galpin was “engaged in the use of the internet via MySpace and chat to lure juvenile males to the residence for the purpose of engaging in sexual conduct, ... using [his] cell phone to make contact with and direct the pickup of juveniles, ... [and] transport[ing] juvenile males to his residence.” Warrant Appl. 2. Citing his training and experience, Hogan further proffered that “persons involved in child sexual exploitation use the internet, cell phones and practices of becoming juvenile friendly to groom juveniles for the purpose of engaging in sexual behavior with children.” Warrant Appl. 2. In addition, Hogan made the following claim:

[I]t is reasonable to expect that upon execution of this warrant evidence will be obtained that James Galpin Jr. is using his computer or other device[s] capable of accessing the World Wide Web to include but not limited to computer's [sic], cell phones, game systems or ipod's [sic] capable of communicating with other persons, to post, chat, text, sending pictures or video's [sic], or talk live and evidence of such will be located at the residence or on the person, or vehicle of James Galpin, Jr.

Warrant Appl. 3. Finally, again citing his training and experience, Hogan asserted that “persons who engage in sexual predator behaviors do not provide current e-mail address's [sic], user names or passwords on their sexual offender registration to avoid detection of illegal activities by Law Enforcement and to divert Law Enforcement to a plausible or legitimate e-mail which do [sic] not contain any of the subjects [sic] illicit activities.” Warrant Appl. 3.

Upon being presented with the application, Town of Owego Justice Robert W. Henning issued a warrant to search Galpin's residence, vehicle, and person for property “believed to contain evidence that will constitute, substantiate or support violations of NYS Corrections Law, section 168–f subdivision four, NYS Penal Law and or Federal Statutes.” Warrant 1, July 6, 2009. More specifically, the warrant, which did not incorporate the application, authorized the seizure and subsequent search of:

1) Any Computers, central processing units, external and internal drives, storage units or media terminals and video display units, together with peripheral equipment such as keyboards, printers, modems, scanners or digital camera's [sic] and their internal or external storage media.

2) Any and all computing or data processing software, or data including but not limited to hard disks, floppy disks, magnetic tapes, intregal [sic] RAM or ROM units, and any other permanent or portable storage device(s) which may reveal evidence and substantiates violations of the aforementioned NYS and federal statutes.

3) The following records and documents, whether contained or stored on the computer, magnetic tape, cassette, disk, diskette, photo optical device, or any other storage medium:

a. Any access numbers, passwords, personal identification numbers PINS), logs, notes, memoranda and correspondence relating to computer, electronic and voice mail systems, internet address's [sic] and/or related contacts.

b. Any computing or data processing literature, including, but not limited to printed copy, instruction books, notes, papers, or listed computer programs, in whole or in part.

c. Any audio or video cassette tape recordings, books magazines [sic], periodicals, or other recorded or printed material, the possession of which constitutes a violation of the aforementioned statutes of the Laws of New York state or Federal Statutes.

d. Any and all photographs depicting sexual conduct by a child and/or minors engaged in sexually explicit conduct.

e. Any records or correspondence relating to the possession, transmission, collection, trading or production of the aforementioned photographs.

Id.

Hogan executed the warrant on July 8, 2009. Among the items discovered were a computer and digital photography equipment that were found upon forensic examination to contain images of child pornography. On March 10, 2010, a grand jury handed up a nine-count indictment, charging Appellant with four counts of production of child pornography in violation of 18 U.S.C. § 2251(a) and (e), one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and four counts of committing a felony offense involving a minor, specifically the four production counts, while being required to register as a sex offender in violation of 18 U.S.C. § 2260A.

Galpin's Suppression Motion

On December 16, 2010, Galpin moved to suppress the evidence obtained and derived from the search warrant.³ Galpin argued that investigators lacked probable cause to believe that he had committed any offense beyond failing to register an internet identifier, as required by N.Y. Correction Law § 168–f(4), and thus had no basis for conducting a broad search of the information contained on his computer and camera equipment. Galpin also argued that, by expansively referencing “NYS Penal Law and or Federal Statutes,” the warrant authorized an impermissible general search. The government opposed the motion to suppress, arguing that the warrant application established probable cause to believe that Galpin was using the internet and cell phones to lure minors for sexual activity, and that he had failed to register the “Medic Guy” identifier that Galpin had used to contact a...