United States v. Laist

• Decision Date: 11 December 2012
• Docket Number: No. 11–15531.,11–15531.
• Citation: 702 F.3d 608
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. David Bishop LAIST, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

702 F.3d 608

UNITED STATES of America, Plaintiff–Appellee,

v.David Bishop LAIST, Defendant–Appellant.

No. 11–15531.

United States Court of Appeals,Eleventh Circuit.

Dec. 11, 2012.

Michelle Lee Schieber, Danial Edward Bennett, Michael J. Moore, Graham A. Thorpe, U.S. Attys., Macon, GA, Sonja Ralston, U.S. Dept. of Justice, Crim. Div., Washington, DC, for Plaintiff–Appellee.

Page Anthony Pate, The Pate Law Firm, LLC, Atlanta, GA, for Defendant–Appellant.

Appeal from the United States District Court for the Middle District of Georgia.

Before MARCUS and PRYOR, Circuit Judges, and FRIEDMAN,^* District Judge.

MARCUS, Circuit Judge:

At the heart of this appeal is whether a government delay of some 25 days in submitting an application for a search warrant while holding a computer based on probable cause is an unreasonable seizure under the Fourth Amendment. In the proceedings below, the defendant David Laist pleaded guilty conditionally to possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2), but reserved the right to appeal the district court's denial of his motion to suppress all evidence retrieved from his personal computer and five external hard drives. After thorough review, we affirm the district court's denial of the motion based on the totality of the circumstances presented by this case, which indicates that the government acted reasonably in obtaining the search warrant at issue.

I.

A.

The essential facts are these. In July 2008, the FBI Innocent Images National Initiative began investigating the online username “Tar Heel” for possession and distribution of child pornography images. The FBI traced that username to a student at the University of Georgia, David Laist. On March 4, 2009, FBI Special Agent James Cearley and two other agents, including a Computer Analysis and Response Team (“CART”) Examiner, visited Laist's apartment in Athens, Georgia. The agents' purpose was to conduct a “knock and talk”—to interview the person at the address associated with the “Tar Heel” username and to request his or her consent to seize and search his or her computer.

The agents found Laist outside the apartment complex. Laist agreed to speak with the agents in his apartment. When informed that the FBI had reason to suspect Laist's computer contained child pornography, Laist confirmed that there was child pornography on the computer and on five external hard drives. The agents then asked Laist to sign two consent forms authorizing the search and seizureof his computer and hard drives. The forms were substantially similar, and the second, labeled FD–941, read, “I, David Laist, have been asked by Special Agents of the [FBI] to permit a complete search ... of any and all computers, any electronic and/or optical data storage and/or retrieval system or medium, and any related computer peripherals ... for any evidence of a crime or other violation of the law.” The form further stated, “I have been advised of my right to refuse to consent to this search, and I give permission for this search .... I authorize those Agents to take any evidence discovered during this search, together with the medium in/on which it is stored, and any associated data, hardware, software and computer peripherals.” Laist signed the consent form, provided the agents with his username and password, and also accessed the computer to show the agents an image that appeared to be child pornography.

Based on the image, Special Agent Cearley concluded that he needed to seize the computer and hard drives as evidence. At that time, Laist asked if he could copy some school documents that he needed for his studies at the University of Georgia, and the agents allowed him to copy his files onto a different external hard drive. The agents then took custody of the computer and departed.

During two hearings on Laist's motion to suppress, the court found, or the parties stipulated to the following facts regarding the warrant application process. On March 4, 2009, when the agents took the computer and hard drives, the FBI had already “confirmed at the scene at the time that there was actual ... child pornography on the computer by admission of the defendant and also by review by [CART Examiner] Figueroa.” Prior to taking the computer, however, the FBI allowed Laist to “download whatever he wanted to download,” and Laist “did take off what he thought he needed at that time.” On March 5, 2009, Laist called Cearley and provided him with additional passwords to the five hard drives.

On March 11, 2009, Laist's attorney drafted a letter revoking his consent, which the FBI received on March 12, 2009. Cearley “put the ball in motion the very first day that he received the notice” by calling Assistant U.S. Attorney (“AUSA”) Paul McCommon, asking what needed to be done, and beginning to prepare the warrant affidavit and application. At the time, Cearley was in a two-person office that covered ten counties, one of which—Clarke County—the district court found “could keep you pretty busy all by itself.”

The trial court also found that “there [was] considerable effort that was put into the preparation of [Cearley's] affidavit.” As the judge put it, the affidavit contained “a lot of valuable information” that was “very informative ... about how these crimes are committed,” such as an explanation of the peer-to-peer file sharing system used to distribute the child pornography. The warrant affidavit also contained extensive information Cearley obtained from other agents regarding the investigation that initially identified Laist, including descriptions of how the Innocent Images National Initiative “conducted several online undercover sessions during July 9 and July 11 of 2008.” In addition to this background information, there was a “very substantial amount of information specifically as to the Defendant's conduct,” which began on page 14 and continued to page 17 of the affidavit. The district court specifically determined that it “didn't find that [the warrant affidavit] had a lot of boilerplate in it.”

The warrant affidavit and application were completed and submitted to Magistrate Judge Claude Hicks on April 7, 2009. At the time, the magistrate judge notified the government he would not be able to review the warrant application until the following week. After “a delay of roughly a week” due to a habeas hearing that kept him occupied, Hicks issued the search warrant on April 13, 2009. Ultimately the FBI discovered that the computer and external hard drives contained thousands of images and videos depicting child pornography.

B.

Laist was indicted on January 19, 2011, in the United States District Court for the Middle District of Georgia and charged with Possession of Child Pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and Distribution of Child Pornography, in violation of 18 U.S.C. § 2252(a)(2). A superseding indictment filed on May 12, 2011, replaced the Distribution charge with Receipt of Child Pornography, in violation of 18 U.S.C. § 2252(a)(2).

On February 8, 2011, Laist moved to suppress all evidence obtained from his computer and the five external hard drives. Relying primarily on United States v. Mitchell, 565 F.3d 1347 (11th Cir.2009), Laist argued that he had a substantial possessory interest in the items; that after he revoked his consent to their search, the FBI continued to hold them only on the basis of probable cause; and that the subsequent delay in obtaining a search warrant was unreasonable and therefore violated his Fourth Amendment rights.

The district court held a hearing on the motion on June 29, 2011, but held off on making a decision until the government could explain why the magistrate judge took an additional six days to issue the warrant. On July 28, 2011, the court admitted a statement from McCommon explaining that the magistrate judge took six days to issue the warrant because he was occupied by a habeas hearing. At the same hearing, the district court denied the motion to suppress. The court treated the relevant time frame as between March 12, 2009, and April 7, 2009, based on its decision not to “hold the Government accountable for the failure of the magistrate to take six days to sign this affidavit.” The court then considered its factual findings under a “totality of the circumstances” approach, held that “the delay in this case of 23 to 25 days is reasonable under the circumstances,” and consequently denied the motion to suppress.

On November 16, 2011, the court sentenced Laist to 120 months for each crime, to be served concurrently, 25 years of supervised release, and a fine of $17,500. Judgment was entered on November 22, 2011, and Laist filed a timely notice of appeal on the same day. Laist is currently incarcerated.

II.

We review “a district court's denial of a motion to suppress evidence as a mixed question of law and fact, with rulings of law reviewed de novo and findings of fact reviewed for clear error, in the light most favorable to the prevailing party in district court.” United States v. Lindsey, 482 F.3d 1285, 1290 (11th Cir.2007) (citing United States v. Boyce, 351 F.3d 1102, 1105 (11th Cir.2003)). Because the government prevailed in the district court, this “Court must construe the facts in the light most favorable to ... the Government.” United States v. Holloway, 290 F.3d 1331, 1334 (11th Cir.2002) (citing United States v. Wilson, 894 F.2d 1245, 1254 (11th Cir.1990)).

The primary issue in this case is whether the FBI acted unreasonably and hence violated the Fourth Amendment when it took 25 days to prepare its application for a search warrant while holding Laist's computer based on probable cause.¹ A preliminary issue is whether an additional six-day delay, which occurred because the magistrate judge had taken some time to approve the warrant application, is properly attributable to the government for purposes of...