United States v. Rivera-Morales

• Decision Date: 29 May 2020
• Docket Number: No. 17-1258,17-1258
• Citation: 961 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. Jean Carlos RIVERA-MORALES, a/k/a Carli, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

961 F.3d 1

UNITED STATES of America, Appellee,

v.Jean Carlos RIVERA-MORALES, a/k/a Carli, Defendant, Appellant.

No. 17-1258

United States Court of Appeals, First Circuit.

May 29, 2020

Eleonora C. Marranzini, Assistant Federal Public Defender, with whom Eric Alexander Vos, Federal Public Defender, and Vivianne M. Marrero, Assistant Federal Public Defender, Supervisor, Appeals Section, were on brief, for appellant.

Julia M. Meconiates, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before Howard, Chief Judge, Selya and Barron, Circuit Judges.

SELYA, Circuit Judge.

The warrant requirement of the Fourth Amendment is among the most important of the constitutional protections enumerated in the Bill of Rights. Even so, not all government intrusions into seemingly private areas, whether physical or virtual, trigger the warrant requirement. One such type of intrusion, seldom encountered, is embodied in the private search doctrine. In general terms, that doctrine provides that law enforcement officers may, without a warrant, examine evidence that a private party has unearthed and made available to them, as long as their actions remain within the scope of the antecedent private search. See United States v. Jacobsen, 466 U.S. 109, 115, 118-20, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) ; United States v. Powell, 925 F.3d 1, 5 (1st Cir.), cert. denied, ––– U.S. ––––, 139 S. Ct. 616, 202 L.Ed.2d 444 (2018).

This appeal requires us to apply the private search doctrine in the evolving context of modern technology. At a granular level, it concerns a wife's search of a cellphone belonging to her husband (defendant-appellant Jean Carlos Rivera-Morales), leading to her discovery of a disturbing video. The wife then brought the cellphone to the authorities and directed their attention to the video. Her actions paved the way for the defendant's indictment on a charge of production of child pornography. After the district court denied the defendant's motion to suppress the video, see United States v. Rivera-Morales, 166 F. Supp. 3d 154, 170 (D.P.R. 2015),¹ a jury found him guilty as charged.

The defendant now appeals. After careful consideration, we affirm the district court's denial of the motion to suppress under the private search doctrine and, thus, affirm his conviction. We also affirm the defendant's sentence.

I. BACKGROUND

We briefly rehearse the relevant facts and travel of the case. With respect to suppression, our account gives credence to the facts supportably found by the district court. See United States v. Coombs, 857 F.3d 439, 443 (1st Cir. 2017). As to the assignments of sentencing error, we draw the facts from the trial record, the undisputed portions of the presentence investigation report (PSI Report), and the transcript of the disposition hearing. See United States v. Flete-Garcia, 925 F.3d 17, 21-22 (1st Cir.), cert. denied, ––– U.S. ––––, 140 S. Ct. 388, 205 L.Ed.2d 232 (2019).

On the evening of January 5, 2015, the defendant and his then-wife, Beskis Sánchez-Martínez (Sánchez), were at home. Sánchez used the defendant's cellphone, an Apple iPhone, to unblock a part of a game that she was playing on her own cellphone. While on the defendant's cellphone, she elected to scroll through his photographs to find pictures of their pets that he had forwarded to her earlier that day. In the process, she encountered a photograph of the defendant's penis next to a pair of blurry hands. When she confronted the defendant about the photograph, he told her that it was old.

Still upset, Sánchez retrieved the defendant's cellphone later that night. In the recently deleted files, she found the same photograph. She also found a fourteen-second video of their six-year-old daughter masturbating the defendant. Enraged, she demanded that the defendant leave the house — but she kept his cellphone.

Sánchez proceeded to contact her uncle, a municipal police officer, so that he could explain the process for reporting what she had uncovered.² Following his advice, she repaired to the local police station. She told the desk officers what had transpired and, "out of anger and upset," decided to show them the blurry photograph and the video. Sánchez held the cellphone throughout the conversation, and the desk officers did not see anything besides the photograph and the video. Taken aback, the desk officers arranged for Sánchez to meet with Puerto Rico Police Officer Aileen Pérez-Ramos (Officer Pérez) the following morning.

Sánchez and Officer Pérez met at the appointed time. Sánchez explained what had occurred overnight. On her own initiative, Sánchez pulled the cellphone out of her purse and, while holding it in her hand, played the video for Officer Pérez, who then instructed Sánchez to turn off the cellphone. Officer Pérez took the cellphone from Sánchez and asked her to return the next day for an interview at the district attorney's office.

The following day, Sánchez and Officer Pérez met with Agent Pedro Román (a representative of Immigration and Customs Enforcement). Officer Pérez gave the cellphone to Agent Román, and the three of them headed to the district attorney's office and met with a coterie of federal and local officials. Sánchez recounted the events of January 5. She then asked for the cellphone so that she could play the video. Agent Román passed the cellphone to Sánchez, who pulled up the video. With the cellphone in the hands of either Sánchez or Officer Pérez — there is conflicting testimony on this point — the assemblage watched the video. Agent Román then reclaimed the cellphone. As was true of her interview with Officer Pérez, Sánchez did not show the group anything other than the video.

Later the same day, federal agents (accompanied by Officer Pérez) interviewed the defendant at the police station. After waiving his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the defendant admitted having recorded the video. At the conclusion of the interview, the defendant consented to a search of his cellphone.

In due course, a federal grand jury sitting in the District of Puerto Rico handed up a single-count indictment, which charged the defendant with production of child pornography. See 18 U.S.C. § 2251(b). The defendant moved to suppress the video and his ensuing confession on the ground that the officers transgressed the Fourth Amendment by accessing the video on his cellphone without a warrant and prior to obtaining his consent. The district court referred the motion to a magistrate judge, see 28 U.S.C. § 636(b)(1)(B) ; Fed. R. Crim. P. 59(b)(1), who held a two-day evidentiary hearing. The magistrate judge took the matter under advisement and subsequently issued the R&R, recommending that the district court deny the motion pursuant to the private search doctrine. See Rivera-Morales, 166 F. Supp. 3d at 168. The magistrate judge's rationale was that Sánchez searched the cellphone as a private party, and the officers' subsequent viewings of the video did not exceed the scope of her search. See id. Over the defendant's objection, the district court adopted the R&R and denied the motion to suppress.

Conceding his factual guilt but seeking to preserve his right to appeal the denial of his motion to suppress, the defendant explored the possibility of entering a conditional plea. See Fed. R. Crim. P. 11(a)(2). The government withheld its consent, and the defendant instead proposed that he would waive his right to trial by jury. When the district court was about to convene the bench trial, the government stated that it intended to call witnesses to testify because the defendant had not stipulated to all of the relevant facts. In light of this development, the court continued the matter and decided to impanel a jury. Sánchez was the sole witness at the two-day jury trial, and her testimony was supplemented by a multipart factual stipulation. The defendant conceded his guilt in his opening statement and, not surprisingly, the jury returned a guilty verdict. With an eye toward sentencing, the district court ordered the preparation of the PSI Report.

In the PSI Report, the probation officer provided more lurid details about the defendant's sexual abuse of his daughter. On at least three occasions between September and December of 2014, the defendant told his daughter to touch his penis, which he called a "toy." He rubbed his penis against her vagina or anus multiple times and digitally penetrated her vagina at least once. The PSI Report also contained the probation officer's calculation of the defendant's guideline sentencing range (GSR). It recommended offense-level enhancements to account for the victim's age, see USSG § 2G2.1(b)(1)(A), the commission of a sexual act, see USSG § 2G2.1(b)(2)(A), the parent-child relationship, see USSG § 2G2.1(b)(5), and the pattern of activity involving prohibited sexual conduct, see USSG § 4B1.5(b)(1).³ The PSI Report suggested a two-level downward adjustment for acceptance of responsibility under USSG § 3E1.1(a) but not the additional one-level reduction under USSG § 3E1.1(b). The defendant objected to the proposed pattern-of-activity enhancement and requested the additional one-level discount for acceptance of responsibility.

At the disposition hearing, the district court sustained the defendant's objection to the pattern-of-activity enhancement. It denied his request for the third-level reduction for acceptance of responsibility under section 3E1.1(b), noting the extensive pretrial effort that the government had devoted to the case. This fine-tuning produced a GSR of 235 to 293 months. Emphasizing the tender age of the victim and her relationship to the defendant, the government sought a sentence of 360 months (the statutory maximum). The defendant sought a sentence of 180 months (the statutory minimum)....