United States v. Loera

• Decision Date: 13 May 2019
• Docket Number: No. 17-2180,17-2180
• Parties: UNITED STATES of America Plaintiff - Appellee, v. Jason LOERA, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

923 F.3d 907

UNITED STATES of America Plaintiff - Appellee,

v.Jason LOERA, Defendant - Appellant.

No. 17-2180

United States Court of Appeals, Tenth Circuit.

FILED May 13, 2019

Jerry A. Walz, Walz and Associates, P.C., Albuquerque, New Mexico for Defendant-Appellant.

Kristopher N. Houghton, Assistant United States Attorney (John C. Anderson, United States Attorney, with him on the brief), Albuquerque, New Mexico for Plaintiff-Appellee.

Before LUCERO, EBEL, and PHILLIPS, Circuit Judges.

EBEL, Circuit Judge.

This appeal requires us to apply Fourth Amendment principles to a situation where a police officer executing a warrant to search an electronic storage device for evidence of one crime discovers evidence of other criminal activity. Here, while executing a warrant to search Jason Loera’s home for evidence of computer fraud, FBI agents discovered child pornography on four of Loera’s CDs. Despite discovering the pornography, the agents continued their search for evidence of computer fraud—one agent continued to search the CDs that were found to contain some child pornography and a second agent searched other electronic devices belonging to Loera, not including those particular CDs (Search 1). After the agents finished their on-site search, they seized a number of electronic devices that appeared to contain evidence of computer fraud, plus the four CDs that were found to contain child pornography, and then brought the seized items back to their office. One week later, one of the agents reopened the CDs that he knew contained some child pornography so that he could describe a few pornographic images in an affidavit requesting a (second) warrant to search all of the seized electronic devices for child pornography (Search 2). A magistrate judge issued the warrant, and, upon executing it through two searches, the agents found more child pornography.

In the subsequent prosecution against him for possessing child pornography, Loera filed a motion to suppress the evidence seized pursuant to each search, arguing that the searches violated the Fourth Amendment. On denial of his motion, Loera pled guilty to receipt of child pornography but preserved his right to appeal that denial. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the denial of Loera’s motion to suppress. We hold, among other things, that the Fourth Amendment does not require police officers to stop executing an electronic search warrant when they discover evidence of an ongoing crime outside the scope of the warrant, so long as their search remains directed at uncovering evidence specified in that warrant.

I. BACKGROUND

This case involves several police searches governed by the Fourth Amendment. The Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Generally, for a search to be reasonable, it must be authorized by a warrant that "particularly" describes "the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. Once officers obtain a sufficiently particular warrant, they must execute it according to the warrant’s terms. Horton v. California, 496 U.S. 128, 140, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). The following undisputed facts explain how the warrant-based searches in this case arose.

In 2012, the FBI began investigating Jason Loera for illegally intercepting e-mails intended for then-sitting New Mexico Governor Susana Martinez and her staff in violation of 18 U.S.C. § 2511 (illegal interception) and 18 U.S.C. § 1030 (computer fraud) [collectively, "computer fraud"]. As part of that investigation (more details of which can be found in the district court’s opinion United States v. Loera, 59 F. Supp. 3d 1089, 1095–1108 (D.N.M. 2014) ), FBI agents applied for and received a warrant to search Loera’s residence for computer fraud, including any such evidence residing on electronic devices or storage media ("the first warrant").

The first warrant authorized FBI agents to search and seize, in relevant part, "All records, in any form, relating to violations of [computer fraud], involving Jason Loera." ROA Vol. I at 37. The warrant defined the terms "records" and "information" as including: "all of the foregoing items of evidence in whatever forms and by whatever means they may have been created or stored, including any form of computer or electronic storage (such as hard disks or other media that can store data)." Id. at 39. In a separate provision, the warrant sought "Any computers, cell phones, and/or electronic media that could have been used as a means to commit the offenses described on the warrant." Id. at 87. Finally, for any electronic device, whether it was used to commit the offenses or simply had relevant records stored on it, the warrant permitted the agents to search and seize evidence of who used, owned, or controlled the device, such as "configuration files ... documents, browsing history ... photographs, and correspondence ...." Id. at 38.

A. The First Search

On November 20, 2012, FBI agents including Agent Aaron Cravens and Special Agent Brian Nishida executed the first search warrant. They discovered a large volume of electronic media in Loera’s residence, including CDs, DVDs, laptop computers, external hard drives, a USB flash drive, an iPhone, and an iPad. Cravens and Nishida were responsible for "previewing" the CDs at Loera’s residence to ensure that the FBI seized only those CDs that contained information relevant to the authorized investigation. ROA Vol. II at 53, 58. The two agents split up the CDs between themselves and searched them separately.

Cravens tried to view the files of the first CD using a program called FTK Imager, which would have allowed Cravens to limit his search to a particular type of file, for example, only image, text, or audio files. However, the program did not work. Consequently, Cravens opened the CD on a computer and used the "thumbnail view" to preview the files stored on it, meaning, he saw small images of the files, the file names, and the file types in a vertical list that he had to scroll through to see in its entirety. Although Cravens believed he had authority under the first warrant to view the entire contents of the CD, Cravens used the thumbnail-image view to fast-track his search. He would scroll past irrelevant files but "click[ ] on anything that didn’t appear correct, or any documents" to open them. Id. at 92. While Cravens was "scrolling down through the images or files ... on the CDs, [he] found what looked like a nude child." Id. at 60. He opened the file to confirm that it was an image of child pornography. After determining that it was, Cravens ejected the CD from his computer, set it aside, and alerted Agent Nishida and the FBI agent in charge of Loera’s case. Then, Cravens searched the rest of the CDs assigned to him for evidence of computer fraud. Cravens later found a child pornography image on a second CD. Just as he did with the first, Cravens set the CD aside after discovering the illegal images and did not open any other files on that CD.

Agent Nishida took a different approach to his search. He previewed the files on his assigned CDs using the "details view" of Windows Explorer, meaning that he saw a list of files, file names, and last-modified dates of those files, but not pictures associated with the files. Id. at 157. For his search of the CDs, or "triage," as he called it, Nishida would open two or three files on each CD and then determine from that sample whether the CD should be seized pursuant to the warrant. Id. at 160. If Nishida found something he believed might be responsive to the warrant in the files that he sampled, he would set the CD aside to be reviewed off-site. As he was sampling files, Nishida found child pornography on two CDs. Unlike Cravens, Nishida did not cease his search of those CDs after discovering child pornography; he continued sampling files on the CDs to determine if they contained information that was responsive to the warrant.

The FBI seized thirteen CDs in total from Loera’s residence: four contained child pornography images and nine contained evidence of computer fraud.¹ In addition to the thirteen CDs, the FBI seized computers, external hard drives, an iPhone, and an iPad.

B. The Second Search

One week later, on November 27, 2012, Cravens decided to apply for a search warrant to search the items seized from Loera’s residence for child pornography. Cravens wanted to include in his warrant affidavit a detailed description of one child pornography image from each of the four CDs on which he and Nishida had found child pornography during their on-site preview. Consequently, Cravens opened each of the four CDs, viewing several images on each, to find child pornography images that he could accurately describe. Viewing the photos and drafting the affidavit took a total of two-and-a-half hours. However, Cravens testified before the district court that he did not spend "anywhere near the two-and-a-half hours" actually looking at photos on the CDs. Id. at 74-75.

Cravens’ affidavit included two sections. In Section I, Cravens described his training and experience with computers and child pornography. In Section II, Cravens explained the details of the FBI’s investigation of Loera that led to the agent’s discovery of child pornography on the CDs in Loera’s residence. In particular, paragraph 21 described in general terms how Cravens discovered the child pornography:

21. In the process of executing this warrant, an FBI certified computer forensic examiner and a computer analysis response team (CART) technician previewed the loose media located during the search (e.g. , thumb drives, CD-Rs, DVD-Rs, memory cards, etc.) for evidence relevant to the original unrelated investigation. During the preview, the examiners identified four writable CDs which appeared to contain images of child pornography. The CDs

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