17‐442‐cr United States v. Beal

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 9th day of April, two thousand eighteen.

PRESENT: AMALYA L. KEARSE, GUIDO CALABRESI, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee,

v. 17‐442‐cr

DANIEL C. BEAL, Defendant‐Appellant.

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FOR APPELLEE: RAJIT S. DOSANJH, Assistant United States Attorney (Geoffrey J.L. Brown, Assistant United States Attorney, on the brief), for Grant C. Jaquith, United States Attorney for the Northern District of New York, Syracuse, New York.

FOR DEFENDANT‐APPELLANT: BRUCE R. BRYAN, Syracuse, New York.

Appeal from the United States District Court for the Northern District of

New York (Sannes, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant‐appellant Daniel Beal appeals from a judgment, entered

January 31, 2017, following his plea of guilty, convicting him of distribution, receipt,

and possession of child pornography. He was sentenced principally to 84 monthsʹ

imprisonment and 15 yearsʹ supervised release. As part of his plea agreement, Beal

reserved his right to appeal a July 11, 2016, district court decision and order denying his

motion to suppress electronic evidence and statements made to law enforcement

officials, which decision he now challenges on appeal. We assume the partiesʹ

familiarity with the underlying facts, procedural history, and issues on appeal.

On July 21, 2015, federal law enforcement officials obtained a warrant to

search for evidence of child pornography files that were being shared from a computer

traced to Dacobe Enterprises, LLC (ʺDacobeʺ), in Utica, New York. The warrant listed

the property to be searched as ʺDacobe Enterprises LLC located at 325 Lafayette Street,

Utica, NY described further in Attachment A.ʺ Sp. App. 23. Attachment A provided a

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description of the premises and included a photograph of the exterior of the building.

The face of the warrant referred to ʺAttachment B,ʺ which described the items to be

seized as ʺ[i]tems evidencing violations of Title 18, United States Code, Sections 2252A

(distributing, receiving, viewing or possessing child pornography),ʺ and specifically

listed computers and computer equipment. Sp. App. 27. The bottom of the warrant

contained the handwritten notation ʺAddendum attached,ʺ followed by what appears

to be the initials of the issuing judge. Sp. App. 23. The Addendum explained

procedures for the seizure and search of computers and other electronic media.

On July 29, 2015, agents executed the warrant at Dacobe. At the time, law

enforcement officials had not yet identified the individual who downloaded and shared

the child pornography. Upon entering the premises, the agents first spoke with Bealʹs

business partner, who then notified Beal of the agentsʹ presence and the purpose of their

visit. Beal then approached the agents ‐‐ who were sitting in a showroom ‐‐ and

volunteered that they were looking for him.

The agents then began to interview Beal. At the outset, Beal told the

agents that he had downloaded images and videos of child pornography using a peer‐

to‐peer software program called Ares. Beal also admitted that he brought a personal

computer from his home that he used to download adult and child pornography, and

stored pornographic videos on an external hard drive at his desk. The agents were

dressed in plain clothes and carried weapons, but the weapons were not visible. The

agents offered Beal bottled water, and asked him twice whether he wanted a bathroom

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break. Beal was never told that he was not free to leave. Beal also told the agents that

he was expecting his son to arrive at Dacobe, and wanted to check his phone to see if he

had any messages. He was told he could not have his phone because it was likely being

searched, but an agent offered to look for his son outside and tell him that Beal was in a

meeting.

After approximately an hour and 45 minutes, the agents informed Beal

that the interview would be moved across the street to the Utica Police Department.

Beal was then arrested and read his Miranda rights.

On March 2, 2016, Beal was charged with distribution, receipt, and

possession of child pornography. On April 11, 2016, Beal filed a motion to suppress the

physical evidence seized from Dacobe and statements he made during his interview

with law enforcement officials. The district court denied the motion on July 11, 2016.

Beal conditionally pleaded guilty on September 26, 2016. He was then

sentenced as set forth above on January 26, 2017. This appeal timely followed.

On appeal from a district courtʹs ruling on a motion to suppress evidence,

this Court reviews the district courtʹs legal conclusions de novo, and its findings of fact

for clear error. United States v. Ganias,

(2d Cir. 2016) (en banc).1

1 The law is not clear as to whether we view the evidence in a light most favorable to the prevailing party on a motion to suppress. Compare United States v. Schaffer,

(2d Cir. 2017) (explaining that in reviewing the denial of a motion to suppress, we view ʺthe evidence in the light most favorable to the governmentʺ), with United States v. Bershchansky,

(2d Cir. 2015) (ʺWe think the better approach is to review the district courtʹs findings of fact for clear error without viewing the evidence in favor of either party.ʺ). We need not decide this issue, however, because we conclude that the district court properly denied the ‐ 4 ‐

Beal challenges the district courtʹs denial of the motion to suppress on two

grounds: First, Beal argues that the search warrant at issue did not satisfy the Fourth

Amendmentʹs particularity requirement because it did not list computers or electronic

media in the section of the warrant identifying the place to be searched. Second, Beal

argues that the statements he made to agents during his interview should be

suppressed because he was in custody and did not receive Miranda warnings.

As to Bealʹs first argument, we are not persuaded. Beal cites no authority

for the proposition that, to comport with the Fourth Amendmentʹs particularity

requirement, a warrant must identify computers and electronic media as ʺplaces to be

searched,ʺ as opposed to only items to be seized. In any event, we agree with the

district court that the ʺsearches in this case [fell] within the particularized, authorized

scope of the warrant, and thus did not violate the Fourth Amendment.ʺ Sp. App. 11. In

its authorization as to ʺthe property to be seized,ʺ the warrant stated ʺSee Attachment

B,ʺ App. 34; Attachment B stated that ʺ[t]he authorization includes the search of

electronic dataʺ App. 35; see, e.g., Groh v. Ramirez,

, 557‐58 (2004) (explaining

that courts may construe warrants with reference to supporting documents that are

attached to the warrant and incorporated by reference). Additionally, by expressly

authorizing the search of Dacobe and the seizure of electronic devices evidencing

violations of 18 U.S.C. § 2252A, the warrant authorized the search of those items for

motion to suppress regardless of whether we view the facts in a light more favorable to either party. ‐ 5 ‐

evidence. See, e.g., Fed. R. Crim. P. 41(e)(2)(B) (ʺUnless otherwise specified, the warrant

authorizes a later review of the media or information consistent with the warrant.ʺ).

We also agree with the district court that even if the warrant were invalid,

the good faith exception to the exclusionary rule applies because the officersʹ reliance

upon the warrant was objectively reasonable. See United States v. Clark,

(2d Cir. 2011) (recognizing ʺan exception to the exclusionary rule for evidence obtained

in objectively reasonable reliance on a subsequently invalidated search warrantʺ

(internal quotation marks omitted)). As the warrant was not facially deficient, for the

reasons set forth above, we agree that ʺa reasonably well‐trained officer executing the

warrant would not have known that the search and seizure exceeded the scope of the

warrant, and therefore, suppression would serve no deterrent purpose and is

unwarranted,ʺ Sp. App. 14; see, e.g., Bershchansky,

.

As to Bealʹs second argument, we also agree with the district court that

Beal was not in custody for purposes of triggering Miranda protections.2 See United

States v. Familetti,

(2d Cir. 2017) (explaining that for Miranda safeguards

to apply, a person must both be ʺin custodyʺ and subject to ʺinterrogationʺ (internal

quotation marks omitted)). Our decisions in Familetti and United States v. Faux,

We acknowledge that there is some dispute over which party carries the burden of proving that a defendant was in custody. See United States v. Simmonds, 641 Fed. Appʹx 99, 102 (2016) (summary order) (explaining that we need ʺnot decide the [burden] issue . . . because . . . the totality of the circumstances show that [the defendant] was not in custodyʺ). We also need not decide that issue here, because we conclude that Beal was in custody regardless of which party had the burden of proof. ‐ 6 ‐

130 (2d Cir. 2016), are instructive. In Familetti, we held that the defendant was not in

custody because the officers had questioned him in his bedroom in a conversational

tone, he was not restrained, and the agentsʹ weapons were not drawn. 878 F.3d at 60‐63.

In Faux, we also found that the defendant was not in custody where she was

interviewed for hours at her home, was not handcuffed, was never told she was not free

to leave, and officers did not display weapons or otherwise threaten or use physical

force against her. 828 F.3d at 138‐39.

As in those cases, Beal was questioned in a conversational tone by agents,

he was not restrained, and the officersʹ weapons were not visible. Additionally, Beal

voluntarily met with the agents, and the agents wore plain clothes, interviewed Beal at

his place of business in an open showroom, and did not tell Beal that he could not leave

or physically block or prevent him from leaving the room. Although the officers did

not affirmatively tell Beal that he could leave, that fact is insufficient to indicate that he

was in custody. ʺIn the absence of actual arrest, an interrogation is not custodial unless

the authorities affirmatively convey the message that the defendant is not free to leave,

or that he is completely at the mercy of the police.ʺ Familetti,

(citation

omitted). Under the circumstances, ʺthe environment did not present the same

inherently coercive pressures of concern in Miranda.ʺ Sp. App. 22. Accordingly, we

agree with the district court that Beal was not in custody for purposes of Miranda, and

suppression of the statements was not warranted.

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We have considered Bealʹs remaining arguments and find them to be

without merit. For the reasons set forth above, we AFFIRM the district courtʹs

judgment.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk of Court

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