United States v. Smith
| Citation | 967 F.3d 198 |
| Decision Date | 28 July 2020 |
| Docket Number | Docket No. 17-2446-cr,August Term, 2018 |
| Parties | UNITED STATES of America, Appellee, v. Kirkland SMITH, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Paul D. Silver (Cyrus P. Rieck, of counsel), Assistant United States Attorneys, for Grant C. Jaquith, United States Attorney, Northern District of New York, Albany, NY, for Appellee.
James P. Egan (Molly K. Corbett, on the brief), for Lisa A. Peebles, Federal Public Defender, Office of the Federal Public Defender, Albany, NY, for Defendant-Appellant.
Before: Katzmann, Chief Judge, Kearse, Circuit Judge, and Meyer, District Judge.*
Judge KEARSE concurs in a separate opinion.
It is common for the police to temporarily seize a suspect's personal property if they have probable cause and intend to apply for a warrant to search the property for evidence of a crime. When the police do so, however, the Fourth Amendment requires that they act with diligence to apply for a search warrant.
This appeal primarily requires us to decide if the police failed to act with the diligence that the Constitution demands. The New York State Police seized a tablet that belonged to defendant-appellant Kirkland Smith after a trooper glimpsed an image on its screen that was possibly child pornography. But the police then waited 31 days before applying to a judge for a warrant to search the tablet's contents.
We conclude that, in the absence of extenuating reasons for this month-long delay, it was unreasonably long in violation of the Fourth Amendment. Nevertheless, we decline to apply the exclusionary rule, because the error by the police was due to isolated negligence and because an objectively reasonable officer would not have known in light of existing precedent that the delay violated the Fourth Amendment.
The district court did not otherwise commit procedural or substantive error when it imposed a sentence of 212 months of imprisonment in light of the large amount of child pornography that Smith possessed as well as his history of sexually abusing children. Accordingly, we affirm the judgment of conviction and sentence of the district court.
On the afternoon of October 30, 2014, Trooper Timothy Snickles of the New York State Police noticed a car pulled off in an embankment on the side of the road near Keene, New York. The driver was defendant-appellant Kirkland Smith. He was hunched unconscious over the steering wheel while the car was still in the "drive" position with the engine running and the doors locked. Snickles knocked on the window for about two minutes before he finally got a response from Smith, who unlocked the doors. Opening one of the doors, Snickles reached in to put the vehicle in "park," turn the engine off, and take the key from the ignition.
There was a strong smell of alcohol, and lying on the passenger seat of the car were plastic wine jugs as well as a Nextbook tablet computer and a cell phone. When Smith tried to get out of the car, he fell to the ground intoxicated and barely able to speak. Snickles then went back inside the car to check the glove compartment for any identification or vehicle information.
While Snickles was looking for this information, he noticed an image on the screen of the Nextbook tablet as it lay on the front passenger seat. According to a written deposition statement that he completed later that same day, Snickles saw that "[o]n the screen of this device was a Black male penis, appearing near a bald white female[’]s vagina." A. 130.
Snickles contacted his dispatcher to run Smith's information and learned that Smith was a registered sex offender. He then spoke by telephone with Kyle Kirby—a state police investigator—to share what he had seen on the tablet, and Kirby instructed Snickles to secure any electronic devices that were in the car. Snickles stated in his deposition that "[t]he electronic device [the Nextbook tablet] was secured as it may pertain to a possible illegal sexual encounter with a female" and that another trooper "secured the item, for further possible evaluation[.]" A. 130.
By the time that the tablet was seized, the tablet was off and the image that Snickles reported seeing was no longer visible on the screen. The tablet was secured by another trooper into an evidence bag and stored at a state police barracks.
In the meantime, Smith was placed under arrest for driving while intoxicated, and he was taken to the hospital where he stayed overnight before returning home the next day. That next day—October 31, 2014—Kirby went to Smith's home to seek Smith's consent to a search of the contents of the tablet and cell phone, but Smith declined to consent.
After Smith declined to consent to a search, Kirby waited for more than a month until December 1, 2014, before seeking a warrant from a state court judge to search the tablet and cell phone. The subsequent search of the tablet yielded dozens of videos and images of child pornography. This discovery in turn triggered additional search warrants for Smith's residences where the police seized devices that contained even more child pornography.
A federal grand jury charged Smith with six counts of unlawful possession of child pornography, in violation of 18 U.S.C. § 2252A. Smith moved on multiple grounds to suppress the evidence from his tablet and from the subsequent searches of other electronic devices. The district court (Mordue, J. ) conducted a hearing and then denied the motion to suppress. Smith entered a conditional plea of guilty to all six counts of the indictment, reserving the right to appeal the denial of the motion to suppress. The district court sentenced Smith principally to a term of 212 months of imprisonment.
Smith appealed the denial of his motion to suppress and the length of his sentence. By prior summary order, we rejected all but one of Smith's challenges to the denial of the motion to suppress. See United States v. Smith , 759 F. App'x 62 (2d Cir. 2019). Specifically, we concluded that the police had probable cause to seize the tablet from Smith's car but that the record was not sufficiently developed to decide if the police had waited an unreasonably long time before seeking a warrant to search the contents of the tablet. Id. at 64–65.
The case was remanded to the district court to conduct an additional evidentiary hearing and to make findings. Id. at 65. We retained jurisdiction following remand to review the district court's determination as well as to review Smith's challenge to the length of his sentence. Id. at 65 & n.3.
The district court on remand conducted an additional evidentiary hearing with testimony from Kirby and Smith. It then re-affirmed in a written ruling its prior conclusion that the delayed search was not unreasonable. In doing so, the district court addressed each of the four factors that we identified as relevant to deciding whether the delay was unreasonable: "[1] the length of the delay, [2] the importance of the seized property to the defendant, [3] whether the defendant had a reduced property interest in the seized items, and [4] the strength of the state's justification for the delay." Smith , 759 F. App'x at 65.
As to the first factor (length of delay), the district court concluded that "a month-long delay in obtaining a search warrant is not unreasonable per se ." Supp. App. 127. It stated that "[c]ourts have found similar and even longer delays to be reasonable where the delay was justified by other factors." Id.
As to the second factor (importance of the tablet to Smith), the district court noted Smith's testimony that he used the tablet at times for "keeping in touch with family and friends" and for "some basic personal projects," id. at 128, but it also noted that Smith had a computer and alternative devices that could serve these functions. The district court found "no evidence that the seizure significantly infringed on [Smith's] property interests or prevented him from accessing important personal information," pointing out that Smith "never asked for the return of the tablet, nor did he communicate to authorities that he stored important personal information on it." Id.
As to the third factor (whether Smith had a reduced property interest), the district court determined that Smith's possessory interest in the tablet was diminished because probable cause existed to believe that the seized device contained child pornography. According to the district court, the seriousness of the crime gave the police a strong interest in retaining the tablet rather than returning it to Smith.
Lastly, as to the fourth factor (the justification for delay), the district court found that Kirby "was solely responsible for 24 active criminal investigations across an expansive, rural area of New York State." Id. These investigations "included matters involving rape, suicide, drowning, burglary, grand larceny, sexual abuse, accidental shooting, unattended death, death of an incompetent person, and endangering the welfare of an incompetent person." Id . at 122. The size of Kirby's district "involved travel times of up to an hour and a half" to drive to outlying towns from the state trooper headquarters in Ray Brook, New York. Id. The district court cited Kirby's testimony that "he considered [Smith's] case to be one [of] the highest priorities on his case list," that "he worked all 19 of his scheduled workdays between October 30th and December 1st, and that he actively worked on [Smith's] case and other cases during that time." Id. at 129.
The district court went on to acknowledge that "[a]lthough Investigator Kirby's investigation could be viewed as slow-footed, he testified that he obtained the warrant ‘as soon as possible.’ " Id . It added that "while one might expect that a search warrant would have been sought more...
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