United States v. Parrish, 110119 FED6, 18-3446

Docket Nº:18-3446
Opinion Judge:SUTTON, Circuit Judge.
Party Name:United States of America, Plaintiff-Appellee, v. Shawn P. Parrish, Defendant-Appellant.
Attorney:John Endresen, Tyler J. Owen, UNIVERSITY OF MICHIGAN LAW SCHOOL, Ann Arbor, Michigan, for Appellant. Kevin Koller, UNITED STATES ATTORNEY'S OFFICE, Cincinnati, Ohio, for Appellee. John Endresen, Tyler J. Owen, Melissa M. Salinas, UNIVERSITY OF MICHIGAN LAW SCHOOL, Ann Arbor, Michigan, for Appella...
Judge Panel:Before: SUTTON, COOK, and THAPAR, Circuit Judges.
Case Date:November 01, 2019
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

United States of America, Plaintiff-Appellee,

v.

Shawn P. Parrish, Defendant-Appellant.

No. 18-3446

United States Court of Appeals, Sixth Circuit

November 1, 2019

Argued: October 24, 2019.

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:16-cr-00243-1-Algenon L. Marbley, District Judge.

COUNSEL

ARGUED:

John Endresen, Tyler J. Owen, UNIVERSITY OF MICHIGAN LAW SCHOOL, Ann Arbor, Michigan, for Appellant.

Kevin Koller, UNITED STATES ATTORNEY'S OFFICE, Cincinnati, Ohio, for Appellee.

ON BRIEF:

John Endresen, Tyler J. Owen, Melissa M. Salinas, UNIVERSITY OF MICHIGAN LAW SCHOOL, Ann Arbor, Michigan, for Appellant.

C. Mitchell Hendy, UNITED STATES ATTORNEY'S OFFICE, Cincinnati, Ohio, for Appellee.

Before: SUTTON, COOK, and THAPAR, Circuit Judges.

OPINION

SUTTON, Circuit Judge.

Police executed a search warrant at Shawn Parrish's house after detecting that an IP address associated with his home had downloaded child pornography. The search turned up nude videos of Parrish's twelve-year-old daughter on his cell phone. A jury convicted him of receiving and possessing child pornography, and a prior related conviction triggered a sentence enhancement. Parrish appeals his conviction, arguing that the search of his cell phone violated the Fourth Amendment and that the child pornography statute is void for vagueness. He also appeals his sentence, arguing his prior conviction exceeded the mandatory minimum's scope. The district court rejected each argument. We affirm.

I.

In August 2016, officers executed a search warrant at 87 Daugherty Circle in Newark, Ohio. Days earlier, investigators with Franklin County's Internet Crimes Against Children Taskforce had detected child pornography being downloaded via peer-to-peer file-sharing software. They traced the downloads to an IP address belonging to Brenda Meckley, who lived at 87 Daugherty Circle. Ms. Meckley lived there with two other people, Jerimiah Wigle and Shawn Parrish. The taskforce thought Parrish might be responsible for the downloads due to his prior North Carolina conviction for "indecent liberties with children." N.C. Gen. Stat. § 14-202.1(a)(1).

Special Agent Nate Simon, a member of the task force, prepared a warrant application, which included a detailed affidavit and two attachments. The affidavit explained what the officer knew about the downloads and about the storage of child pornography. Attachment A listed evidence the task force hoped to find, such as "visual depictions of minor(s) engaged in sexually explicit conduct, child pornography or child erotica." R.122 at 23. Attachment B detailed the places to be searched, including "[t]he residence . . . [and] all its appurtenances, parking areas, outdoor working areas, and detached buildings, and any computers or digital media located therein." Id. at 24.

When the taskforce executed the warrant, Parrish and two other residents came to the front door and let the officers enter the house after learning that they had a warrant. Eleven or twelve officers conducted the search. Before long, two officers-Special Agent Simon and Investigator Amanda Saxton-asked if Parrish would speak to them in their mobile forensic lab. Parrish agreed, following the officers to the mobile lab. Both officers carried sidearms, and Saxton wore a bulletproof vest.

The mobile lab is a modified truck with a cab and two segments in the back. The front segment contains forensic gear and controls for the audio and video equipment. The rear segment is an interview room, which has a table with bench seats on either side. The lab was new and had been used just a few times before.

So new, its audio equipment created challenges for the officers. During the interview, one of them pushed the mute button, turning off the audio recording. That meant Parrish's interview was captured on video alone.

After introducing themselves, Simon and Saxton explained that they were at Parrish's home to execute a search warrant for child pornography and gave Parrish a form spelling out his Miranda rights. Everyone, including Parrish, agrees that Parrish told the agents he understood the form.

Simon explained to Parrish "what devices we would be looking at, you know, whether it's laptops, cell phones, thumb drives, hard drives." R.37 at 78. Parrish admits he volunteered that he had nude pictures of his 12-year-old daughter on his cell phone. Either before or after this statement-the record points in both directions-Simon asked Parrish for his cell phone. He gave it to them, and Simon asked Parrish to change the phone's password to a simple one.

After Parrish changed the password to 1-2-3-4, Simon scrolled through the cell phone's contents and located the videos. In response, Parrish explained what would become his defense theory at trial: that he had discovered the videos on his daughter's phone after she sent them to a man on Facebook, prompting Parrish to copy them to his own phone to confront her about the risks of such behavior. Because his daughter lived with her grandparents, he said he needed to preserve the videos so he could confront her about them later.

The interview lasted about 30 minutes. At the end, Parrish signed a consent form authorizing the police to search and seize his daughter's cell phone to confirm his story that she had taken the nude videos herself. The agents also seized his phone.

Forensic evidence confirmed part of Parrish's story. His daughter had sent the images to a man on Facebook, and most of the videos on Parrish's phone originated on his daughter's phone. But he had taken at least one inappropriate video of her on his own. And analysis showed that he hadn't just saved the videos on his phone; he had watched them repeatedly, on different days at different times, and had taken screenshots of them. Nor, when he had the chance, did he confront his daughter or her grandparents about the videos she created.

A jury convicted Parrish of receiving and possessing child pornography. 18 U.S.C. § 2252(a)(2), (a)(4)(B). At the prosecution's request, the district court dismissed the possession charge to avoid the risk of a double jeopardy violation. Parrish received a sentence of 180 months on the remaining count, the mandatory minimum for someone with a prior offense relating to "abusive sexual conduct involving a minor." 18 U.S.C. § 2252(b)(1).

II.

Parrish's challenge to the search implicates three questions: Did the warrant authorize officers to search Parrish's phone? If not, did the officers have a reasonable, good-faith belief that the warrant authorized the search? United States v. Leon, 468 U.S. 897, 905 (1984). If not, did Parrish consent to the search?

Warrant authorization.

There are two sides to the warrant-authorization question. On one side, the warrant permitted officers to search "any computers or digital media" in Parrish's house or "its appurtenances, parking areas, outdoor working areas, and detached buildings." R.122 at 6. Dictionary definitions suggest that a cell phone counts as a form of digital media. A medium, in the relevant sense, is "something (as a magnetic disk) on which information may be stored," Merriam-Webster Unabridged Online (2016), or a "physical material (as tape, disk, paper, etc.) used for the storage of data," Oxford English Dictionary Online (3d ed. 2019). Appending the adjective "digital" just changes the kind of data being stored. Cell phones store digital information, seemingly bringing them within the scope of the warrant's permission to search "digital media" in Parrish's house. Pointing in the same direction, the warrant covered "[a]ny visual depiction of minor(s) engaged in sexually explicit conduct." R.122 at 5. Ordinarily, police executing a warrant of a house may search anywhere there is probable cause to believe an item described in the warrant might be found, unless the warrant adds location restrictions. See Horton v. California, 496 U.S. 128, 140-41 (1990); United States v. Ross, 456 U.S. 798, 823-24 (1982). This warrant did not include location restrictions.

On the other side, the warrant did not explicitly permit a search of persons (and any cell phones on them), an easy enough request and a rather obvious one when it comes to a search for evidence of child pornography. So obvious, the officers sought authority to search "any persons, computers, and computer related media" located at 87 Daugherty Circle. R.122 at 22. But the magistrate, for reasons of his own, granted authority only to search the premises plus the "computers or digital media located therein"-and did not mention permission to search...

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