United States Court of Appeals For the First Circuit

No. 21-1326

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT CORLETO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Kayatta, Lipez, and Howard, Circuit Judges.

Mark G. Miliotis, with whom Elliot M. Weinstein was on brief, for appellant. Seth R. Aframe, Assistant United States Attorney, with whom John J. Farley, United States Attorney, was on brief, for appellee.

December 28, 2022 KAYATTA, Circuit Judge. After the district court denied

Robert Corleto's motion to suppress evidence collected during the

investigation that led to his arrest, he pled guilty to one count

of sexual exploitation of a minor. In so doing, he preserved his

right to appeal the denial of his motion to suppress. For the

following reasons, we affirm the judgment of the district court.

I.

For the purposes of this appeal, "[w]e recount the facts

in the light most favorable to the district court's ruling on the

motion to suppress, but only to the extent that they have support

in the record and are not clearly erroneous." United States v.

Dubose,

(1st Cir. 2009) (quoting United States

v. Holloway,

(1st Cir. 2007)). Although Corleto

takes issue with some of the district court's factual findings, he

develops no argument that these findings were clearly erroneous.

Any such argument is thus waived. See United States v. Zannino,

(1st Cir. 1990).

A.

FBI Special Agent Timothy DeMann applied for a warrant

to search Corleto's residence and any vehicles registered to that

residence. In his supporting affidavit, DeMann explained that on

March 18, 2019, an undercover FBI task force officer used the KIK

Messenger app to chat with a person ("the target") who claimed to

use KIK to communicate with a "12 year-old slave" who did whatever

- 2 - the target asked. The target ultimately connected the undercover

agent and the purported minor in a live group chat, and the target

directed the minor to send photos of herself in her underwear and,

ultimately, proof of her masturbating. Asked by the undercover

agent if he had past photos of the purported minor, the target

sent an image showing nail polish that seemed to match that seen

in the live chat images.

That same day, the FBI sent an emergency request to KIK

seeking the subscriber identification and IP access information

associated with the target's KIK username. KIK's responsive

disclosures included IP addresses from March 16, 2019, through

March 18, 2019, and indicated that the target was using an iPhone.

The FBI focused on one frequently used IP address, which was

assigned to Comcast. The FBI sent an emergency request to Comcast

seeking subscriber information for that IP address. Comcast

identified the subscriber as Nicole Corleto and provided the

physical service address as a location on Elmwood Drive in Hudson,

New Hampshire. Public records indicated that Robert Corleto

resided there, and that a 2016 blue Chevy Equinox and a 2001 white

Ford F150 were registered at that address to Nicole and Robert

Corleto, respectively.

After relating this information, DeMann's affidavit

described the likelihood that a "computer or storage medium" found

at the Elmwood Drive address would contain contraband and/or

- 3 - evidence of crimes, "[b]ased on [his] knowledge, training, and

experience." Again invoking his "training and experience," DeMann

asserted that the evidence he sought "is by its very nature

portable" and may be stored on "extremely compact storage devices,"

including "smart phones," and that "it is not uncommon for

individuals to keep such media in multiple locations within their

premises, including in outbuildings and motor vehicles."

A magistrate judge issued a search and seizure warrant

on March 19, 2019. As requested, the warrant authorized the search

of the Elmwood Drive residence and "any vehicles registered to

that address," including the F150 and the Equinox registered to

Robert and Nicole Corleto, for, among other things, "records and

visual depictions of minors engaged in sexually explicit conduct."

The warrant also authorized the seizure of "[a]ny computer . . .

that [was] or may have been used as a means to commit the offenses

described on the warrant," employing a broad definition of

"computer" that included smartphones.

B.

That same day, DeMann and other FBI agents executed the

search warrant for the Elmwood Drive address. When the agents

arrived, Robert Corleto and his wife Nicole were in the process of

leaving the residence's parking lot in the Equinox. Without

drawing his gun, DeMann stopped the Equinox and identified himself.

- 4 - DeMann approached the SUV's passenger side -- where Robert Corleto

was seated -- and asked him to exit the vehicle.

At the suppression hearing, DeMann expressed some

uncertainty as to whether Corleto had the phone in his hand or in

a pocket as he exited the car, ultimately concluding that it was

in Corleto's hand. Corleto agreed, and the district court so

found. After DeMann asked if Corleto could unlock the phone for

him, Corleto opened his iPhone by pressing the "home" button and

handed it to DeMann.1

After DeMann and Corleto moved away from the car, DeMann

explained that they had a warrant to search for evidence of child

pornography. DeMann then stepped away for a few moments, back to

the vehicle, until Corleto motioned him over. Unprompted, Corleto

informed DeMann that everything the officer sought was on his

phone.

Agents nevertheless proceeded to execute the warrant by

searching Corleto's residence. At no point was Corleto handcuffed

nor were any weapons drawn. As the agents searched the home,

Corleto reiterated to DeMann several times that his phone contained

what the agents sought. DeMann eventually suggested that they

discuss things at the Hudson Police Department. DeMann testified

that he made that suggestion because the residence contained around

1 The phone did not have a passcode or biometric fingerprint lock.

- 5 - ten agents plus the Corletos, "and everybody [was] walking around,"

there was "really no place to sit down," and DeMann "figured that

the interview was going to have some sensitive . . . questions

that I was going to be asking him." DeMann testified that, at the

station, he "could sit down," "take notes," and "record the

interview."

Corleto asked if he could take his truck, but it had yet

to be searched. Instead, DeMann drove Corleto to the station with

Corleto seated in the front seat of DeMann's car. Corleto was not

handcuffed, and another agent sat in the backseat.

Corleto was interviewed in a room at the station. The

interview was recorded in its entirety. The door was open during

parts of the interview, and Corleto was told multiple times that

he was free to leave.2 Four different law enforcement officers,

including DeMann, participated in various portions of the

interview. Corleto admitted, among other things, that he solicited

sexual photographs from a twelve-year-old girl and had similar

interactions with a "handful" of others. In response to DeMann

2 Near the start of the interview, DeMann told Corleto, "You are not under arrest. You are not in custody. At any point, if you want to leave, you're more than welcome. I'll drive you back to your house. No problem." About fifteen minutes later, during a round of questioning, DeMann again stated, "You're not in custody and you're free to go at any point, as we have explained." DeMann subsequently informed Corleto of this right once more during the interview.

- 6 - asking whether there was "anything else you need to let us know,"

Corleto stated, "It's all right there on the phone."

When the interview ended, DeMann asked Corleto where he

would like DeMann to drive him, and Corleto indicated that he

wanted to go home. DeMann drove him there, with Corleto again in

the front seat.

In due course, a grand jury returned an indictment

charging Corleto with one count of sexual exploitation of a minor,

(a), (e), and one count of transportation of child

pornography, 18 U.S.C. § 2252A(a)(1), (b)(1). Corleto moved to

suppress the evidence obtained from the March 19 search, as well

as the statements he made during the search and later at the

station. After holding an evidentiary hearing, the district court

denied the motion. Corleto then agreed with the government to

plead guilty to sexual exploitation of a minor in exchange for the

government dismissing the second count, though Corleto retained

the right to appeal the denial of his suppression motion. Corleto

timely appealed on that basis.

II.

"In reviewing the denial of a motion to suppress, we

review the district court's . . . conclusions of law, including

its ultimate constitutional determinations, de novo." United

States v. Merritt,

(1st Cir. 2019). We will

uphold the denial "as long as 'any reasonable view of the evidence

- 7 - supports the decision.'"

(quoting United States v. Clark,

(1st Cir. 2012)).

Corleto advances an array of arguments on appeal.

Invoking the Fourth Amendment, he argues that the warrant lacked

sufficient nexus and particularity and that it was executed as an

unlawful general warrant. He also insists that his iPhone's

seizure exceeded the scope of the warrant; that he did not

consensually surrender the phone; that the phone's seizure was not

within the plain-view exception to the warrant requirement; and

that the search of the iPhone was improper. Finally, he argues

that the use of statements made by him violated his Fifth Amendment

right against self-incrimination.

We begin with Corleto's challenges to the warrant

itself, then examine his claims about its execution, and conclude

with his Fifth Amendment argument.

A.

Corleto faults DeMann for obtaining the warrant by

providing testimony about the general practices of those who

possess child pornography, rather than specific information about

Corleto's suspected activities. Corleto further insists that

"there was insufficient guidance applied for and obtained to limit

the scope of the potential seizures of smart phones." He broadly

frames these challenges in terms of the warrant's failure to

establish a nexus between the place to be searched and the alleged

- 8 - criminal activity, and the warrant's lack of sufficient

particularity. We consider those challenges in turn.

1.

When evaluating a challenge to a warrant, "[w]e review

a determination of probable cause de novo and look only to the

'"facts and supported opinions" set out within the four corners of

the affidavit.'" United States v. Lindsey,

(1st

Cir. 2021) (quoting United States v. Austin,

(1st

Cir. 2021)). A warrant application must show probable cause to

believe both that "a crime has been committed" and that "enumerated

evidence of the offense will be found at the place searched."

(quoting United States v. Dixon,

(1st Cir. 2015)).

The latter condition, known as the "nexus" requirement, demands a

"'fair probability' -- not certainty -- that evidence of a crime

will be found in a particular location."

(quoting Dixon,

). Nexus can be "inferred from the type of crime, the

nature of the items sought, . . . and normal inferences as to where

a criminal would hide [evidence of a crime]."

(alterations in

original) (quoting United States v. Rodrigue,

(1st

Cir. 2009)).

Corleto's appellate brief invokes the nexus requirement

in an argument heading, but then declines to mention it again in

the substantive argument. Any argument about this requirement is

therefore likely waived. See Zannino,

. But even

- 9 - if we considered his claim that there was insufficient evidence

linking the Elmwood Drive residence and associated vehicles to the

commission of a crime, we would find it unavailing.

DeMann's affidavit described evidence that a KIK user

had solicited and sent child pornography from an iPhone using an

IP address affiliated with the Corleto residence. This amply

supports the inference that one of the residents of the Elmwood

Drive address used a portable smartphone to commit the stated crime

and that there may have been evidence of this crime on such a phone

at the specified address, which DeMann included in the definition

of the premises to be searched.

DeMann then relied on his training and experience in

child-pornography investigations to express the hardly surprising

opinion that "it is not uncommon" for individuals with such

contraband to store it on portable devices "in multiple locations

within their premises, including . . . motor vehicles." Robert

and Nicole Corleto had between them two personal vehicles

registered to the Elmwood Drive residence, and the affidavit

specifically included both vehicles in its definition of the

premises to be searched. We have established beyond any doubt

"the concept that a law enforcement officer's training and

experience may yield insights that support a probable cause

determination." United States v. Floyd,

(1st Cir.

2014) (collecting cases); see, e.g., United States v. Larson, 952

- 10 - F.3d 20, 24 (1st Cir. 2020) (citing with approval a warrant

affidavit's statement that based on "[the agent's] experience as

an investigator concerned with [child pornography], those who seek

the forbidden pornography tend to keep the examples they obtain").

Moreover, such an inference about the portable storage of

contraband was particularly apt in this case, where law enforcement

knew the target had already used a portable device to transmit

saved images.

In light of the foregoing facts and inferences, there

can be no serious question that the warrant's affidavit established

a sufficient nexus between the criminal activity and the places to

be searched.3 See United States v. Corleto, No. 19-cr-76-1,

, at *8 (D.N.H. Jan. 23, 2020) ("The chain connecting the

KIK account to a Comcast IP address and the IP address to Corleto's

residence could hardly be clearer.").

2.

Corleto devotes comparatively more ink to the warrant's

purported failure to "particularly describ[e] the place to be

3 Corleto also cites several cases concerning warrantless searches of cell phones and warrantless collection of location data for the proposition that a search of his phone occurred. See Carpenter v. United States,

(2018); Riley v. California,

(2014). But these opinions themselves have little in common with a case like this in which the government acknowledges that there was a search and obtained a warrant to seize the smartphone and search for, among other things, "records and visual depictions of minors engaged in sexually explicit conduct" and "information pertaining to KIK."

- 11 - searched, and the persons or things to be seized." U.S. Const.

amend. IV. This particularity requirement exists "to prevent

wide-ranging general searches by the police." United States v.

Moss,

(1st Cir. 2019) (quoting United States v.

Bonner,

(1st Cir. 1986)). We have previously

construed particularity as implicating two distinct demands. See

United States v. Upham,

(1st Cir. 1999). "[A]

valid warrant: (1) must supply enough information to guide and

control the executing agent's judgment in selecting where to search

and what to seize, and (2) cannot be too broad in the sense that

it includes items that should not be seized." Lindsey,

(quoting United States v. Kuc,

(1st Cir.

2013)).

The warrant here included two attachments, corresponding

to the "premises to be searched" and the "items to be seized."

Attachment A listed the Elmwood Drive address and its two

affiliated vehicles as the "subject premises." Attachment B

described several categories of records sought that relate to child

pornography, the use of KIK, and the occupancy of the Elmwood Drive

address. Attachment B included as search targets any computers

that may have been used to commit the offense, listing several

- 12 - further types of computer-specific evidence sought, and it defined

"computer" to include "mobile 'smart' telephones."

Corleto argues generally that this warrant was

defective, invoking the specter of colonial-era general warrants.

But he fails to explain how the warrant obtained here failed to

constrain the agents' discretion or was overly broad. At his most

specific, he claims that the warrant failed the first prong of

particularity in that it "did not provide enough guidance to the

agents executing the [search]" because the iPhone ultimately

seized "may have been either in his pocket or hand, or dropped on

the ground." But Corleto invokes no authority for the implied

proposition that a warrant affidavit need predict with omniscient

precision exactly where on the premises the evidence to be seized

may be located. And for good reason: The authority is to the

contrary. See United States v. Banks,

(9th Cir.

2009) ("The prohibition of general searches is not . . . a demand

for precise ex ante knowledge of the location and content of

evidence." (quoting United States v. Meek,

(9th

Cir. 2004))); United States v. Ross,

, 820–21 (1982)

("[A] warrant that authorizes an officer to search a home for

illegal weapons also provides authority to open closets, chests,

drawers, and containers in which the weapon might be found.").

To the extent Corleto intended his particularity

argument to encompass the requirement's demand disfavoring

- 13 - overbreadth, by contending that the warrant permitted the seizure

of too wide a range of electronic devices (including his iPhone),

we disagree. In light of the evidence reported in the affidavit

concerning the nature of the offense, the seizure and subsequent

search of all such devices in the Corletos' residence and vehicles

"was about the narrowest definable search and seizure reasonably

likely to obtain the images." Upham,

(upholding

a warrant seeking "[a]ny and all computer software and hardware"

in a child-pornography investigation); see also United States v.

McLellan,

, 213–14 (1st Cir. 2015) (upholding a warrant

to search the electronic devices of three roommates living in a

single-family dwelling where evidence of child pornography was

linked to an IP address shared by all residents).

Finally, Corleto also appears to argue that warrants

targeting smartphones categorically require some greater standard

of particularity than might otherwise be required. But even were

that so -- a matter we need not consider here -- this warrant was

sufficiently particular to satisfy whatever heightened standard

might reasonably apply to warrants targeting smartphones.

Attachment B to the warrant affidavit specifically listed as an

"item[] to be seized" "[a]ny computer or electronic media that

were or may have been used as a means to commit the offenses

- 14 - described on the warrant, including the production, receipt,

possession, distribution, or transportation of child pornography."

B.

Corleto next insists that his iPhone's seizure exceeded

the scope of the warrant for two separate reasons. He first

contends that the warrant did not actually authorize agents to

search the Corleto vehicles unless they were stationary and

"located on the subject property." This contention simply

mischaracterizes the warrant's parameters. As Corleto recognizes

elsewhere in his brief, the warrant's Attachment A specifically

stated that the "subject premises" to be searched "include the

residential property" at the Elmwood Drive address, "as well as

any vehicles registered to that address." It clarified that the

"subject premises includes the following registered motor

vehicles," listing the F150 and the Equinox with their registration

numbers. The attachment thus contained no constraint on the

location of the vehicles.4

4 For the same reason, Corleto's corollary argument that Attachment A is ambiguous because the warrant affidavit's definitions section fails to define the words "subject," "premises," or "property" is unavailing. The entire function of the attachment is to define the term "subject premises," as that term is then used throughout the affidavit and warrant (to which the same attachment was appended). Relatedly, his assertion that "[t]he agents could not be certain as to the identities of the persons in the Equinox" is irrelevant, as the warrant permitted the search of the Equinox regardless of who was driving it.

- 15 - Second, Corleto argues that the seizure of his phone

necessarily required a search of his person that was not permitted

by the warrant. He invokes Supreme Court case law holding that a

warrant to search a place does not automatically authorize the

search of all persons found within. See United States v. Di Re,

(1948); Ybarra v. Illinois,

(1979). But regardless of whether the warrant here would have

permitted a search of Corleto's person, the district court

reasonably found that no such search occurred. Rather, adopting

Corleto's own testimony on the encounter, it found that Corleto

was already holding the phone in his hand as he exited the Equinox.

Corleto further testified that the phone was within DeMann's view

as Corleto got out of the car.5

5 Corleto separately asserts that he did not consensually surrender the phone. But given the warrant authorizing the seizure of any smartphones "used as a means to commit the offenses," there was no need for Corleto's consent. Additionally, Corleto arguably hints at an argument to the effect that the warrant did not authorize a search of the iPhone, even assuming that the iPhone's seizure was permissible. Corleto did not raise this argument to the district court below, and he does not come close to properly developing it on appeal. Even if we deemed it forfeited, rather than waived, and thus subject to plain error review, United States v. Rodriguez,

(1st Cir. 2002), the argument still fails. The warrant here authorized officers to search for records "in any form wherever they may be stored" relating to the relevant offenses, in addition to listing certain records -- such as "information pertaining to KIK" -- that were especially likely to exist on a smartphone. See Upham, 168 F.3d at 535–36.

- 16 - C.

Finally, we turn to Corleto's argument that his

statements to the agents should have been suppressed because he

never received a Miranda warning. The only statement Corleto

addresses with any specificity on appeal is his "commentary

concerning the production of the iPhone." Accordingly, our review

is limited to his interactions with agents prior to his offering

that commentary.6

"It is well established that Miranda warnings must be

communicated to a suspect before he is subjected to 'custodial

interrogation.'" United States v. Li,

, 83 (1st Cir.

2000). "Both 'custody' and 'interrogation' must be present to

require Miranda warnings." United States v. Molina-Gomez,

(1st Cir. 2015). "Interrogation" consists of "either

express questioning or its functional equivalent." Rhode Island

v. Innis,

(1980), 300–01. "The 'functional

equivalent' of questioning is 'any words or action on the part of

the police . . . that the police should know are reasonably likely

to elicit an incriminating response from the suspect.'" United

6 Corleto's Fifth Amendment discussion fails to mention relevant aspects of his interview at the police station, including any other statements made at the station that he might have claimed should have been suppressed. We therefore deem any arguments regarding the statements at the station waived. See Zannino,

.

- 17 - States v. Davis,

(1st Cir. 2014) (omission in

original) (quoting Innis,

).

Here, Corleto volunteered at his residence without

interrogation the very statements he now seeks to suppress. Even

in the absence of a Miranda warning, "[v]olunteered statements of

any kind are not barred." Miranda v. Arizona,

(1966). The district court properly found that Corleto's

"commentary concerning the production of the iPhone" was

admissible.7

III.

For the foregoing reasons, the judgment of the district

court is affirmed.

7 Not surprisingly, Corleto makes no argument that his repetition of these same statements at the station should be suppressed even if his statements at his residence are not suppressed.

- 18 -