United States v. Loera
Opinion
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
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
*912
sufficiently particular warrant, they must execute it according to the warrant's terms.
Horton v. California
,
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
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 *913 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 were seized *914 and placed in the evidence control room at the local FBI office.
ROA Vol. I at 120. In paragraph 23, Cravens explained that on November 27, 2012, he "reviewed the four CDs ... that were believed to contain child pornography," id. at 121, and that "[d]uring the review of the CDs, [he] observed multiple pictures of children many of which are in various states of dress," id. Then, in paragraphs 24-27, Cravens provided a detailed description of one image from each CD that depicted a minor engaged in sexually explicit conduct. Cravens' descriptions included the apparent age of the minor and the conduct depicted. On November 29, 2012, based on Cravens' affidavit, a federal magistrate judge approved a warrant to search the thirteen CDs and six other electronic devices that were seized from Loera's residence for child pornography ("the second warrant").
C. Searches Pursuant to the Second Warrant
Agent Nishida executed the second warrant on two separate dates. In December 2012, Nishida searched Loera's laptop pursuant to both the first and second warrants, looking for evidence of computer fraud and child pornography. He discovered more than 730 child pornography images on Loera's laptop. In April 2013, Nishida searched the four CDs seized from Loera's residence for child pornography pursuant to the second warrant. He discovered approximately 330 images and two movies of child pornography on those CDs.
D. Proceedings Below
A federal grand jury indicted Loera on several counts of possessing child pornography that implicated the images found on both his laptop and his CDs. Loera filed a motion to suppress that child pornography evidence, and the district court denied the motion. Loera filed a motion for reconsideration, which the district court also denied. Following that denial, Loera pled guilty to one count of knowingly receiving child pornography in violation of
On appeal, Loera argues that the district court should have suppressed the child pornography evidence discovered during the first search, the second search, and the searches conducted pursuant to the second warrant because, according to Loera, each search was unlawful. Loera argues that the first search exceeded the scope of the first warrant, the second search exceeded the scope of the first warrant, and the last two searches, while authorized by the second warrant, were unlawful because that warrant was invalid. Additionally, Loera maintains that none of the exceptions to the warrant requirement apply to the searches in this case. We conclude that the first search was lawful, but we agree with Loera that the remaining searches were unlawful. Nevertheless, we AFFIRM the district court's denial of Loera's motion to suppress and motion to reconsider under the inevitable discovery doctrine.
II. DISCUSSION
A. Standard of Review
"When reviewing the district court's denial of a motion to suppress, we view the evidence in the light most favorable to the government and accept the district court's factual findings unless they are clearly erroneous,"
United States v. Grimmett
,
B. Validity of the Government's Application for the First Warrant
First, Loera argues that the FBI agents obtained the initial warrant to search his residence for evidence of computer fraud as a pretext to search instead for evidence of child pornography. The district court disagreed, finding that the sole purpose of the first search was to uncover evidence of computer fraud. We affirm that conclusion.
Loera's pretext argument is based on a statement that Agent Nishida made in a report dated February 28, 2013, three months after the first and second searches were conducted. In that report, Nishida wrote:
On November 14, 2012, SA Michael Boady requested that the above listed specimen or specimens be examined for evidence of intercepting a communication. For example, e-mail messages to or from the domain Susanna2010.com. In addition, SA Boady requested that the evidence also be examined for evidence of child pornography possession and receipt.
ROA Vol. II at 191-92. Loera argues that this report proves that on November 14, 2012, six days before the first search, Agent Nishida received instructions to search Loera's home and effects for evidence of child pornography.
The district court made explicit factual findings to the contrary, which are supported by the record. First, the district court found that, had the FBI agents had suspicions that Loera possessed child pornography, agents would have included that information in their application for the first warrant. Second, Agent Nishida testified at the suppression hearing that the February 2013 report summarized two separate instructions from SA Boady: on November 14, 2012, Boady instructed Nishida to search for evidence of interception, and, later , Boady instructed Nishida to search for evidence of child pornography. Finally, both Cravens and Nishida testified at the suppression hearing that the purpose of the November 20 search was only to uncover evidence of computer fraud, and the district court credited that testimony. Each of these facts supports the district court's determination that the agents conducted the first search solely to look for evidence of computer fraud. And we are unpersuaded by Loera's only evidence of pretext, the report written three months after the allegedly pretextual search. 2
Thus, we conclude the FBI agents had no pretextual motivations for obtaining the first warrant, and we affirm the district on this issue.
C. Reasonableness of the First and Second Searches
Next, we determine that the first search of Loera's residence was reasonable because it was directed solely at uncovering the items specified in the first warrant both before and after the officers discovered the child pornography evidence. However, *916 we conclude that the second search was unreasonable because it was directed at uncovering evidence of child pornography.
1. Relevant legal principles
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV. It is now well-recognized that "the ultimate touchstone of the Fourth Amendment is 'reasonableness.' "
Brigham City v. Stuart
,
However, obtaining a sufficiently particular warrant is just the first step to conducting a reasonable search. The officers tasked with executing a sufficiently particular warrant must conduct their search "strictly within the bounds set by the warrant."
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics
,
Determining whether a search exceeds the scope of its authorizing warrant is, like most inquiries under the Fourth Amendment, an exercise in reasonableness assessed on a case-by-case basis.
Dalia v. United States
,
Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase. Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.
To deal with this problem, rather than focusing our analysis of the reasonableness
*917
of an electronic search on "what" a particular warrant permitted the government agents to search (i.e., "a computer" or "a hard drive"), we have focused on "how" the agents carried out the search, that is, the reasonableness of the search method the government employed.
See
United States v. Burgess
,
Carey
is the only case in which we invalidated an electronic search for exceeding the scope of its authorizing warrant.
See
The
Carey
court held that this was an unlawful, general exploratory search because, although it was permissible for the officer to open the first JPG file to see if it was responsive to the warrant,
Next, we turn to
Walser
and
Burgess
, both of which
upheld
electronic searches in which the investigator discovered incriminating, nonresponsive material while executing a search warrant but then navigated away from it. In
United States v. Walser
, the police obtained a warrant to search the defendant's hotel room for electronically stored records of "evidence of the possession of controlled substances."
We upheld the officer's search as reasonable because we determined that, by using a particularized search method, the officer avoided conducting the kind of "sweeping, comprehensive search of a computer's hard drive" that
Carey
prohibited.
Finally, in
United States v. Burgess
,
Based on the warrant, officers searched two hard drives and a laptop found in the motorhome.
The defendant asked the district court to suppress the child pornography evidence because, he argued, the agent's use of the "preview" program exceeded the scope of the warrant because he did not employ a particularized search method like the agent in
Walser
but instead looked through each image file contained on the hard drive. We determined that the agent's use of the "preview" program was reasonable and did not exceed the scope of the warrant for two reasons. First, we noted that, because the warrant did not expressly limit the
file types
that the agent was allowed to search, for example, by limiting the search to text files (.doc, .wpd, .txt, etc.), the agent was well within the scope of the warrant when he decided to view all of the image files on the hard drive using the preview program.
Reading these cases together, we determine that four features of the unconstitutional search in Carey demonstrate that it was unreasonably directed at uncovering evidence of child pornography, rather than directed at the evidence specified in the warrant, and distinguish it from the reasonable searches in Walser and Burgess : (1) the length of time the searching officer spent looking at the incriminating, nonresponsive evidence (five hours in Carey versus less than one minute in Walser and Burgess ); (2) the fact that the nonresponsive files were set apart from the responsive files saved on the storage device (JPG files downloaded onto separate disks in Carey versus generic files intermingled all in one place in Burgess ); (3) the manner in which the evidence was discovered (purposefully in Carey versus inadvertently in Walser and Burgess ); 3 and (4) the breadth *920 of the search method employed (the wide detour in Carey versus the narrowly tailored search in Walser ). Contrary to Loera's assertion, these cases do not require that officers stop searching upon discovering evidence of a crime outside the scope of the warrant. Such a rule would prohibit what the Fourth Amendment expressly permits-reasonable searches based upon a warrant supported by probable cause. We have never required that.
This conclusion brings us in line with every circuit that has confronted this issue.
See
United States v. Stabile
,
Although officers do not have to stop executing a search warrant when they run across evidence outside the warrant's scope, they must nevertheless reasonably direct their search toward evidence specified in the warrant. What that looks like depends on the particular facts of a given case. Narrowly tailored search methods that begin looking "in the most obvious places and [then] progressively move from the obvious to the obscure,"
Burgess
,
An analogy to the physical realm is helpful here. Imagine a warrant authorizes police officers to search a "residence" for evidence of "firearms and ammunition." Under that warrant, it would be reasonable for a police officer to search the medicine cabinet in the bathroom for a minute or two to see if a small gun or *921 ammunition is hidden there, however, it would be unreasonable for the officer to spend two hours reading the labels on each bottle of medicine in the cabinet. On the other hand, if the warrant had authorized the officer to search the residence for evidence of "illegal drug trafficking and manufacture," an intensive search of the medicine cabinet would be reasonable. In both cases, the medicine cabinet is fair game to search, but the intensity level of the permitted search differs depending on the evidence to be seized. The same is true for electronic searches. While in some cases many (perhaps all) electronic areas of a computer will be fair game to search, the level of intensity that officers are permitted to spend searching those areas will differ depending on whether the area appears to contain responsive material. This is true even when officers come across evidence of incriminating, nonresponsive material. In all cases, the ultimate test is the one mandated by the Fourth Amendment: whether the search was "reasonable" under the circumstances. In the case of a computer search, "reasonableness" requires officers to take into account the flexibility of computers and the multiple configurations to which they may be adapted. As the computer search continues and as the executing officer obtains more information about how a suspect used his computer, that too may inform the reasonableness of the continuing search.
We now apply these principles to the November 20 and 27 searches conducted in this case.
2. November 20 search was reasonable
Loera argues that, although the first warrant permitted the FBI agents to search his CDs for evidence of computer fraud, the officers' search exceeded the scope of the first warrant when they continued searching after discovering evidence of child pornography. We disagree. The searches that Agent Cravens and Agent Nishida each conducted of Loera's CDs on November 20 were reasonable and conducted within the scope of the first warrant because at all times each was reasonably directed at discovering evidence of computer fraud. Therefore, the first search did not violate the Fourth Amendment and thus did not warrant suppression of the evidence discovered during that search.
The agents' searches on November 20 resemble the searches in Walser and Burgess more than they resemble the search in Carey , both before and after they discovered the child pornography evidence. First, both agents here spent very little time looking at the child pornography images they discovered. They noticed them, alerted a supervisor, and then moved on to the rest of the images on the same CD (in Nishida's case), or the other CDs (in Cravens' case), looking for evidence of computer fraud. Both responses were reasonable because, as mentioned above, the agents were not required to stop searching altogether. And both responses demonstrate an effort to navigate away from the nonresponsive material and toward files that they believed were more likely to contain material responsive to the warrant. Second, the files on the CDs that the agents previewed were not characteristically distinct or set apart from the other files, in contrast to Carey . Agent Cravens testified that, when he put a CD into his computer to see the files that it contained, the computer pulled up a generic list of those files. The record does not indicate that there were any folders or distinctive titles setting clearly apart the nonresponsive child pornography files from the other files on the disk. Loera bears the burden of proof on his suppression motion, and he has offered no evidence on this point. Third, *922 the agents discovered the child pornography files inadvertently on November 20. Fourth, both agents' search methods were reasonably narrow under the circumstances, considering the fact that the CDs did not seem particularly organized. Given that the warrant permitted the agents to search the CDs for "photographs," "documents," and "configuration files," it was reasonable for Nishida and Cravens to search all file types on the CDs (image, video, and text) for evidence of computer fraud rather than to narrow that search to one particular file type. The agents' searches on November 20 were reasonable because they fell within the scope of the first warrant both before and after they discovered the child pornography evidence. We reverse the district court's ruling to the contrary.
3. November 27 search was unreasonable
Loera also argues that Agent Cravens' subsequent search on November 27, 2012, of the four seized CDs that contained child pornography violated the Fourth Amendment because Cravens was "[i]ntentionally searching for evidence of a crime outside the scope of the [f]irst [w]arrant prior to obtaining a new warrant." Aplt. Br. 29. In making this argument, Loera accepts that the first warrant permitted the government to seize the four CDs that were found to contain some child pornography and to search them for evidence of computer fraud . Therefore, Loera challenges Cravens' November 27 search only for exceeding that permission. Accordingly, we confine our analysis to whether the second search exceeded the scope of the first warrant. The district court concluded that it did and that neither exigent circumstances nor any other exception to the warrant requirement justified that search. We agree and conclude that the district court correctly excised the evidence obtained during the November 27th search from Cravens' affidavit for the second warrant. Several of the district court's factual findings support that result.
The district court found that "Cravens was not searching for evidence of electronic fraud" on November 27 but instead was searching for child pornography. Dist. Ct. Op. at 144. The district court based this finding on Cravens' testimony at the suppression hearing that he reopened Loera's CDs on November 27 specifically "[t]o write a description of an image on the disc" so that he could "obtain a second warrant for child pornography." ROA Vol. II at 72. That admission is the most probative fact in the record that Cravens' search was directed at finding child pornography. The district court also found that Cravens had the four CDs for a total of two-and-a-half hours that day, during which time he searched the CDs and drafted the second affidavit. Although the record does not indicate how long Cravens searched the CDs, he testified at the suppression hearing that he looked at several images on each CD-"more than just a couple" but "[m]ost likely less than a dozen." ROA Vol. II at 143. Whatever the amount of time, Cravens' devoted it exclusively to nonresponsive material. Rather than navigate away from the child pornography images when he found them, Cravens explicitly navigated toward such images. Based on these findings, we agree with the district court that, in contrast with the agents' searches on November 20, Agent Cravens' search on November 27 was unreasonable because it was directed at uncovering evidence of child pornography.
The government argues that two exceptions save Cravens' search from violating the Fourth Amendment: the plain view doctrine and the foregone-conclusion exception. We disagree. For its plain view
*923
argument, the government asserts that the law permitted Agent Cravens to take a "second look" at the child pornography images on Loera's CDs because members of the FBI had already seen the images in plain view during a lawful search, and, therefore, his "second look" was no further invasion of Loera's privacy than the initial, lawful viewing. The government points to a Fourth Circuit case,
United States v. Jackson
,
There are too many factual distinctions between
Jackson
and this case to permit Cravens' second look under the plain view doctrine. First, as government counsel admitted at oral argument, there is no evidence in the record that Cravens looked at the same photos on November 27 that the officers viewed on November 20. Second, seven days elapsed between the first and second searches in this case, not a matter of minutes. Third, Cravens' "second look" led him to peruse more than just the child pornography images, so we cannot say that the November 27 search did not cause a further invasion of Loera's privacy. The plain view doctrine permits the warrantless
seizure
of evidence of criminal activity when police officers observe the evidence during a lawful search.
United States v. Naugle
,
The government also argues that Cravens' "second look" was justified under what it has termed the "foregone-conclusion exception" to the warrant requirement. This doctrine comes from several of our plain view cases where we have permitted the warrantless
search
of containers in plain view whose contents "are a foregone conclusion" because the container is "not closed," "transparent," or, if it is closed, "its 'distinctive configuration ... proclaims its contents' " nonetheless.
United States v. Corral
,
Thus, Cravens' November 27 search was unlawful because it exceeded the scope of the first warrant and none of the exceptions to the warrant requirement apply.
D. Reasonableness of the Searches Conducted Under the Second Warrant
Additionally, Loera argues that the child pornography evidence that Agent Nishida *924 discovered when he executed the second warrant should have been suppressed because the second warrant was not supported by probable cause and no exceptions to the warrant requirement apply. We agree that the second warrant was not supported by probable cause and that the good faith exception is inapplicable here. However, the inevitable discovery doctrine supports the district court's denial of Loera's motion to suppress, and we affirm on that basis.
1. Second warrant was not supported by probable cause
We review whether a magistrate properly issued a search warrant by determining whether there was a "substantial basis" for probable cause in the affidavit submitted in support of the warrant.
Illinois v. Gates
,
While "probable cause does not demand the certainty we associate with formal trials,"
Gates
,
The child pornography descriptions that Agent Cravens obtained during the unlawful second search appear in paragraphs 24-27 of Cravens' affidavit. Once we excise those descriptions, all that remains substantively is Cravens statement that, "During the preview, the examiners identified four writable CDs which appeared to contain images of child pornography." ROA Vol. I at 120. This sentence does not support a finding of probable cause.
In
United States v. Pavulak
, the Third Circuit reviewed an affidavit to support a warrant to search for child pornography that contained language very similar to the bare-bones description left in the affidavit in our case,
Therefore, the affidavit supporting the second warrant lacked probable cause absent *925 the tainted information. We reverse the district court's contrary conclusion.
2. Good-faith exception inapplicable to these facts
Next, we consider whether the good faith exception to the exclusionary rule from
United States v. Leon
,
In
United States v. Leon
, the Supreme Court modified the exclusionary rule "so as not to bar the use in the prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause,"
We considered whether Leon applied to a warrant affidavit based on tainted evidence in
Scales
,
The district court in
Scales
denied the motion, finding that, even if the seizure of the suitcase was unlawful, the good faith exception ratified the agents' behavior.
Scales and Leon control our outcome here. Cravens conducted an unlawful search of Loera's CDs on November 27 in the absence of a warrant. He included the tainted fruit that he uncovered during that search in the affidavit that he submitted in support of the second warrant. Cravens' warrant affidavit was facially valid, and therefore the magistrate did not error by issuing a warrant based upon it. Instead, the constitutional error came from Agent Cravens.
The government argues that Cravens acted in good faith because he "transparently informed the magistrate judge of the steps he had taken to obtain the descriptions he included in his affidavit." Aple. Br. at 40. Cravens' affidavit provided some information about the first search. It explained that, while executing the first search warrant, the FBI agents identified four CDs that contained child pornography and seized them. Then, Cravens wrote:
On November 27, 2012, the writer, an FBI certified CART Technician, reviewed the four CDs, each of which are designated in attachment A, that were believed to contain child pornography. During the review of the CDs, the writer observed multiple pictures of children many of which are in various state of dress including the following images ....
ROA Vol. I at 50. However, that information was not sufficient to allow the magistrate to determine the constitutionality of the second search such that the magistrate can be said to have endorsed Cravens' pre-warrant conduct. Furthermore, even if it was, that would not affect our outcome. Tenth Circuit precedent dictates that the good faith exception does not apply at all when a warrant affidavit is based on tainted evidence from a prior, unlawful search.
Four other circuits have likewise concluded that Leon is inapplicable when an officer executes in good faith a search warrant that is based on unlawfully-obtained evidence.
United States v. Scott
,
However, five other circuits have concluded that the good faith exception can apply where an affidavit supporting a search warrant is tainted by illegally-obtained evidence in at least some limited circumstances. Three of those circuits apply the good faith exception if the predicate search, although ultimately determined to be unlawful, was
arguably
lawful under the binding precedent in effect at the time of the search.
United States v Bain
,
Therefore, the district court erred by finding that the good faith doctrine applied to the searches Agent Nishida conducted in execution of the second warrant.
3. Inevitable discovery doctrine supports denial of Loera's motion
Finally, we consider whether the government would have inevitably discovered the child pornography evidence on Loera's electronic devices. Loera argues that, because there was no probable cause to support the second warrant, all evidence *928 discovered as a result of the execution of the second warrant should have been suppressed. The issue before us, then, is whether the FBI agents would have inevitably discovered the roughly 330 child pornography images on Loera's CDs and 730 child pornography images on Loera's laptop that Nishida found when he executed the second warrant. We conclude that they would have. Accordingly, we affirm the district court's denial of Loera's motion to suppress.
When evidence is obtained in violation of the Fourth Amendment, that evidence need not be suppressed if agents inevitably would have discovered it through lawful means independent from the unconstitutional search.
United States v. Christy
,
Here, the district court's supportable findings demonstrate by a preponderance of the evidence that the FBI would have inevitably discovered the child pornography evidence on Loera's electronic devices through lawful means independent from Agent Cravens' unlawful second search. On November 26 (the day before the second search), the government lawfully had in its possession Loera's computers, external hard drives, iPhone, iPad, and thirteen CDs (nine without child pornography and four with child pornography). 4 The government had the authority under the first warrant to search Loera's electronic devices-most importantly his laptop and CDs-for evidence of computer fraud. The district court issued an explicit factual finding that, had the second warrant never been obtained, Agent Nishida would "have searched [Loera's laptop] for evidence of electronic mail hijacking and computer fraud pursuant to the [f]irst [w]arrant." Dist. Ct. Op. at 24. The district court further found that, as part of that search, lawfully conducted pursuant to the parameters of the first warrant, Agent Nishida would have searched the electronic folders where he discovered child pornography when he executed the second warrant, including, the "My Documents" folder, the "Bookmarks" tab of Loera's internet browser, and a folder saved on the Desktop titled "Allmyfiles.txt." Id. at 24-25. The district court also accepted Nishida's statement that, had he found child pornography images on the laptop during a search conducted solely pursuant to the first warrant, he would have "alerted the case agent so that [he] could get a search warrant for child pornography." Id. at 25.
The laptop, including the specific files referenced above, contained over 730 images and 40 movies involving child pornography. Id. at 24. To take one specific example, *929 the "Allmyfiles.txt" file, which the district court found Nishida would have lawfully opened pursuant to the first warrant, contained files called "Spycam 9yr Undress." Id . Such information would have been sufficient to establish probable cause to support a warrant to search all of the electronic devices belonging to Loera that the government had in its possession, including the four CDs that Agent Cravens searched unlawfully on November 27. That fact, combined with Agent Nishida's indication that he would have sought a warrant, allows us to conclude that the inevitable discovery doctrine applies in this case such that the evidence discovered pursuant to the second warrant did not need to be suppressed.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the orders of the district court denying the defendant's motion to suppress and motion for reconsideration.
There is no indication in the record whether the four CDs that contained child pornography also contained evidence responsive to the warrant. However, Loera does not challenge the FBI's seizure of those CDs pursuant to the first warrant.
Alternatively, even if the agents had an additional motive for conducting the first search, that argument would fail as a matter of law under
Whren v. United States
,
We acknowledge that in
Horton v. California
,
As mentioned above, although Loera challenges the first search of these four CDs, he does not separately challenge their seizure were we to determine, as we have, that the first search was constitutional.
Reference
- Full Case Name
- UNITED STATES of America Plaintiff - Appellee, v. Jason LOERA, Defendant - Appellant.
- Cited By
- 24 cases
- Status
- Published