Opinion
Case No. 2:04CR675 TC.
April 4, 2005
ORDER
The Federal Grand Jury for the District of Utah has charged Allen Albert Johnson with the knowing and intentional receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2) and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Mr. Johnson has moved to suppress all evidence obtained from a forensic search of his computers which occurred approximately eight months after the computers were seized from his home. Mr. Johnson contends that his Fourth Amendment Rights were violated because the search warrant authorizing the forensic search of his computers did not particularly describe the items to be seized and that his consent to the initial search and seizure of his computers at his home did not extend to the later forensic search.
For the reasons set forth below, Defendant's motion to suppress is GRANTED.
Findings of Fact
Unless otherwise noted, all facts are taken from the January 5, 2005 evidentiary hearing.
The officers arrived at Mr. Johnson's home and identified themselves as law enforcement officers. Mr. Johnson invited the officers into his home where they explained that there had been a complaint that he had been "involved in child pornography." (Id. at 8). Special Agent Ross testified that Mr. Johnson responded by saying: "Yeah, it's been a problem for me for quite some time, and I've tried to take care of it." (Id.).
The officers asked Mr. Johnson if he owned any computers to which he responded that he had a Dell desktop and a Gateway notebook computer. The officers then presented Mr. Johnson with a standard, four-sentence consent to search form. The form, in its entirety, reads:
1. I have been asked by Special Agents of the Federal Bureau of Investigation to permit a complete search of:
1 laptop Gateway Solo 2300
1 personal computer Dell Dimension 4550, black in color
2. I have been advised of my right to refuse consent.
3. I give this permission voluntarily.
4. I authorize these agent to take any items which they determine may be related to their investigation.
(Tr. at 28 Consent to Search Form attached as Ex. B to Def. Mem. Supp. Mot. Suppress) (the description of the computers was written in by Special Agent Ross). The form was signed by Mr. Johnson and dated December 10, 2003. (Id.).
After Mr. Johnson signed the consent form, the officers ran a "pre-search" program on the computer. Special Agent Ross described the process: "You start the program up, and what it does is it pulls up all active images — image files that are currently stored on the computer — just still images. Doesn't pull up video." (Tr. at 10). Special Agent Ross testified that the pre-search of the Dell desktop revealed "several images of child pornography, all involving young girls under the age of 18 engaged in either posing in a sexually explicit manner or engaged in sexual acts." (Tr. at 11). The officers attempted to perform a pre-search on the notebook computer, but the program was taking too long and they stopped.
Special Agent Ross testified: "When we saw the child pornography, we explained to [Mr. Johnson] we'd be taking [the computers], and taking them to the lab for a more forensic analysis." (Tr. at 28). Mr. Johnson watched the officers take the computers from his home and made no attempt to stop them. The officers also took several floppy disks and CDs.
After they told Mr. Johnson that they were going to take his computers, the officers advised Mr. Johnson of his rights as required by Miranda v. Arizona, 384 U.S. 436 (1966). Mr. Johnson signed an advice of rights form. He continued to talk with the officers. According to Special Agent Ross, Mr. Johnson told them that:
for the past couple of years he had been accessing child pornography web sites through popups. That he had obtained child pornography through file sharing programs. . . . through various Yahoo news groups. And that he spent a great deal of time chatting on the internet . . . with young teens, observing their web cams, and that he would occasionally send them images of . . . an individual that he portrayed to be himself, and also of an erect penis.
(Id. at 13). Toward the end of the conversation, Mr. Johnson "asked what he should do to take care of [his problem]." (Id. at 14). One of the officers gave Mr. Johnson a phone number where he could get a list of preferred treatment providers for sex offenders.
Later that same evening, Mr. Johnson contacted Special Agent Ross to tell him that he had been having contact with a young girl over the internet and by telephone. Additionally, Mr. Johnson told Special Agent Ross that he had made arrangements to meet with a girl, but denied having gone to meet her. Mr. Johnson contacted Special Agent Ross again the following day with additional information.
Special Agent Ross met with Mr. Johnson at Mr. Johnson's home on December 11, 2003. Mr. Johnson was again advised of his rights, and signed a second "advice of rights" form. At this second meeting at Mr. Johnson's home, no search was performed and Mr. Johnson was cooperative, giving Special Agent Ross more information.
On December 17, 2003, Special Agent Ross obtained a warrant to allow a forensic search of Mr. Johnson's computers. He testified that he obtained the warrant "Because there have been a couple of instances where a couple days later someone will call up and revoke their consent." (Id. at 42).
The warrant was based on the affidavit of Special Agent Ross. The one-page warrant identifies the items to be searched as:
A. One personal laptop computer, a black Gateway Solo 2500, serial number 0014737682.
B. One personal computer, a black Dell Dimension 4550 tower, serial number GKXW721.
C. One black diskette with the label "Allen Johnson. [ sic]
D. 26 recordable CDs and DVDs.
(Search Warrant attached as Ex. C to Def. Mem. Supp. Mot. Suppress). Further, the warrant states that the property:
was unlawfully acquired or is unlawfully possessed; or has been used to commit or conceal a public offense; or is being possessed with the purpose to use it as a means of committing or concealing a public offense and consists of an item or constitutes evidence of illegal conduct possessed by a party to the illegal conduct.
You are therefore commanded . . . to make a search of the above described items for the herein-above described property or evidence [.]
(Id.) The warrant does not identify the crimes Mr. Johnson is alleged to have committed. The warrant does not identify what the officers were searching for or specifically where in the computer they intended to search, that is, the warrant did not specify the types of files or locations of files to be searched. Special Agent Ross' Affidavit for Search Warrant is not specifically incorporated into the warrant by reference. There is also no evidence in the record suggesting that the affidavit was presented to the Utah Forensic Computer Lab with the warrant.
In early September of 2004, the Utah Forensic Computer Lab in Salt Lake City, Chief Investigator Daniel D. Hooper, conducted a forensic search of Mr. Johnson's computers. (Sept. 3, 2004 Processing Report attached as Ex. D to Def. Mem. Supp. Mot. Suppress). Mr. Johnson is seeking to have the evidence discovered in this September search suppressed.
Conclusions of Law
Mr. Johnson has based his motion to suppress on two grounds: (1) that the warrant is invalid for lack of particularity; and (2) that his consent to the search in his home did not extend to the second search occurring over eight months later.
Warrant
Mr. Johnson argues that the warrant is invalid on its face because it does not describe the types of files sought under the warrant or the method of search. Specifically, Mr. Johnson argues the warrant was not sufficiently particular to prevent "a general exploratory rummaging." United States v. Carey, 172 F.3d 1268, 1272 (10th Cir. 1999). The government has responded that, because of the nature of the items to be seized and the circumstances of the investigation, the warrant was sufficiently particular on its face."The Fourth Amendment requires that a search warrant describe the things to be seized with sufficient particularity to prevent a general exploratory rummaging in a person's belongings."Carey, 172, F.3d at 1272. See also Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir. 1985); Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). "As to what is to be taken, nothing is left to the discretion of the officer executing the warrant." Marron v. United States, 275 U.S. 192, 196 (1927). The court in Carey specifically addressed the issue of computer searches emphasizing that officers should be clear as to what they are searching for on the computer and search in a manner that avoids searching file of types not identified in the warrant. Carey, 172 F.3d at 1275; see also, United States v. Walser, 275 F.3d 981, 986 (10th Cir. 2001).
Without any reference to Carey, the government argues that the warrant is sufficiently specific because it enabled the searchers to reasonably identify the things to be seized. In support, the government relies on United States v. Wolfenbarger, 696 F.2d 750, 752 (10th Cir. 1982) (quotation omitted) (warrant valid where it described "an unknown make .38 caliber, blue steel, with wood grips, revolver[.]"). (See Pla. Mem. Opp. Mot. Suppress at 8). Further, citing United States v. Harris, 903 F.2d 770 (10th Cir. 1990), the government argues that the warrant was sufficient because even "a warrant that describes items to be seized in broad and generic terms may be valid if the description is as specific as circumstances and the nature of the activity under investigation permit." Harris, 903 F.2d at 775. (See Pla. Mem. Opp. Mot. Suppress at 9). But the warrants upheld inHarris were very different than the warrant challenged here and the court finds that Carey provides more guidance. C.f. Harris, 903 F.2d at 774.
The warrant in Harris identified the following categories of items to be seized:
(1) travel records and receipts; (2) bank safe deposit records; (3) currency; (4) stocks, bonds or other securities; (5) gold, silver and/or jewelry; (6) books, records, memorandum, notes, bank records, investment records, or any other documents evidencing the obtaining, secreting, transfer, and/or concealment of assets and/or money obtained through illegal means, the source of which has been attempted to be hidden from the government in effort to circumvent, thwart, conceal or otherwise impair and impede the U.S. government; and (7) marijuana and/or processing and/or packaging material for marijuana.Harris, 903 F.2d at 774. The warrant challenged by Mr. Johnson does not identify the subject matter sought, nor the crime for which he was being investigated.
Carey indicates that a higher standard must be met when searching a person's computer. In Carey, the challenged warrant authorized a search for "names, telephone numbers, ledger receipts, addresses and other documentary evidence pertaining to the sale and distribution of controlled substances." Carey, 172 F.3d at 1271. In the course of the search, the officers discovered files containing child pornography which they proceeded to open and copy. Id. The court held that the search, after the initial inadvertent discovery of the first image, became unconstitutionally general. Id. at 1276. The application of Carey is not limited to that holding. It also provides general guidance regarding the nature of computer searches.
The court noted that: "electronic storage is likely to contain a greater quantity and variety of information than any previous storage method, computers make tempting targets in searches for incriminating information." Id. (quoting Raphael Winick,Searches and Seizures of Computers and Computer Data, 8 Harv. J.L. Tech. 75, 104 (1994). Because of the danger of potential electronic rummaging, the officers must specify in the warrant "which types of files are sought." Id. at 1276. Subsequent cases have clarified the principles stated in Carey and the application thereof.
In United States v. Walser, 275 F.3d 981, 986 (10th Cir. 2001), the court explained:
The underlying premise in Carey is that officers conducting searches . . . cannot simply conduct a sweeping, comprehensive search of a computer's hard drive. Because computers can hold so much information touching on many different areas of a person's life, there is a greater potential for the "intermingling" of documents and a consequent invasion of privacy when police execute a search for evidence on a computer.
Because of the potential invasion of privacy related to searches of computers, "[o]fficers must be clear as to what it is they are seeking on the computer and conduct the search in a way that avoids searching files of types not identified in the warrant."Id. In Walser, while conducting a search for evidence of drug trafficking pursuant to a warrant, the officer discovered evidence of child pornography. The Tenth Circuit, unlike inCarey, upheld the officer's further search of the computer because the officer stopped and obtained a new warrant authorizing a search for files related to child pornography before continuing. Id. at 987. In United States v. Campos, 221 F.3d 1143 (10th Cir. 2000), the court upheld a warrant for a computer search finding that:
Rather than authorizing an unfocused inspection of all Mr. Campos' property, the warrant was directed at items relating to child pornography. It authorized the agents to seize computer equipment "which may be, or [is] used to visually depict child pornography, child erotica, information pertaining to the sexual activity with children[.]"Campos, 221 F.3d at 1147 (citation omitted).
The Tenth Circuit has clearly and repeatedly held that the nature of computers and electronic storage require identification of the subject matter sought. The high potential for "general rummaging" requires more than a general warrant to search the contents of a computer. The warrant obtained by Special Agent Ross does not identify the content sought, the types of files sought, the potential locations of those files, or even the crime for which Mr. Johnson was being investigated. Accordingly, the court finds that the warrant in this case was overbroad and insufficient to permit the search of Mr. Johnson's computers conducted in September of 2004.
Although not raised by the government, the court notes that the search pursuant to the warrant is not valid under the good-faith exception under United States v. Leon, 468 U.S. 897 (1984). Under Leon, evidence is admissible if it was obtained in good-faith reliance on a facially valid warrant that was later found to be invalid. However, reliance on a warrant is not objectively reasonable when the warrant is so facially deficient that a reasonable officer could not have believed it to be valid.Leon, 468 U.S. at 923; Brown v. Illinois, 422 U.S. 590, 610-11 (1975). The warrant at issue was so lacking in particularity that belief in its validity is unreasonable.
The court recognizes that an affidavit can cure an overbroad warrant if: (1) the affidavit is physically connected to the warrant so they constitute one document; and (2) the search warrant expressly refers to the affidavit and incorporates it by using suitable words of reference. United States v. Leary, 846 F.2d 592, 603 (10th Cir. 1988); see also United States v. Dahlman, 13 F.3d 1391, 1395. The government has not presented facts to support a determination that the overbreadth of the warrant was cured by incorporation of the affidavit.
Consent
Mr. Johnson argues that the scope of his voluntary consent to the initial search of his computers does not extend to the search conducted eight months later. The government has responded that Mr. Johnson consented to a "complete search" of the computers which necessarily extends the scope of that consent to the later search.
Consent is a well-established exception to the warrant requirement. Shneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973). Although Mr. Johnson does not contest that he consented to the initial search of his computers, he contends that scope of that consent did not extend to the later search.
"The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of `objective' reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Florida v. Jimeno, 500 U.S. 248, 251 (1991); see also United States v. Wald, 216 F.3d 1222, 1228 (10th Cir. 2000); United States v. Kimoana 383 F.3d 1215, 1224 (10th Cir. 2004) (the subjective motivation and understanding of the police officer is irrelevant in determination of the scope of defendant's consent). The scope of a search "is generally defined by its expressed object and is limited by the breadth of the consent given." United States v. Elliott, 107 F.3d 810, 814-15 (10th Cir. 1997) (internal quotations and citations omitted); see also United States v. Lemmons, 282 F.3d 920, 924 (7th Cir. 2002) (the scope of a defendant's consent must be determined by the surrounding circumstances). "Whether a search remains within the boundaries of the consent is a question of fact to be determined from the totality of the circumstances[.]" United States v. Pena, 920 F.2d 1509, 1514 (10th Cir. 1990); Wald, 216 F.3d at 1228.
The general rule is that:
Except in unusual circumstances or when the consent expressly indicates otherwise, it would seem that a consent to a search may be said to be given upon the understanding that the search will be conducted forthwith and that only a single search will be made. . . . Nor should it be viewed as authorizing a second search at some future time if the first search is not fruitful.
4 Wayne R. LaFave, Search and Seizure: A Treatise On The Fourth Amendment § 8.1 (4th ed.). See e.g., Shamaeizadeh v. Cunigan, 338 F.3d 535, 548 (6th Cir. 2003) (initial consent to enter home did not extend to second or third search for which consent was not explicitly given); United States v. Ibarra, 731 F.Supp. 1037, 1039 (D.Wyo. 1990) (noting that a search pursuant to consent is generally to be conducted forthwith and that consent extends only to a single search); Gray v. State, 441 A.2d 209, 221 (Del. 1981) (twenty-hour lapse between time of consent and time of search not problematic because it was limited to a single search for the identified item).
Mr. Johnson's signature on the consent-to-search, dated December 10, 2003, indicates that he consented to a search of his computers at that time and also authorized the agents "to take any items which they determine may be related to their investigation." (Consent to Search Form, attached as Ex. B to Def. Mem. Supp. Mot. Suppress). Special Agent Ross testified that Mr. Johnson was told that his computers would be searched later, not asked if he would consent to such a search. (Tr. at 28). The September 2004 forensic search was, by all appearances, a second separate search for which either a warrant or renewed consent was necessary.
A similar situation was presented in Carey where the defendant was presented with a consent-to-search form which read "that any property under my control . . . may be removed by the officers . . . if said property shall be essential in the proof of commission of any crime. . . ." Carey, 172 F.3d at 1274. The Tenth Circuit noted: "The agreement, by its own terms, did not permit the officer to open the files contained in the computer, a fact he obviously recognized because he obtained a proper warrant to search for drug-related evidence before he began opening files." Id.
The consent to search form signed by Mr. Johnson permitted a complete search of his computers and also a taking of any evidence of a crime. An objectively reasonable person would understand this form to mean that if, through the search of the computers, the officers discovered evidence of the crime, the computers would be taken. The phrase "I authorize these agent to take any items which they determine may be related to their investigation" in no way indicates that the officers planned on searching those items a second time. Similar to Carey, Special Agent Ross' attempt to obtain a proper warrant is also an indication that the consent to search form did not permit a later search.
Further, Mr. Johnson's failure to object to a second search was not a manifestation of continuing consent. In Wald, the government argued that the defendant's failure to object to a search of his trunk was evidence that such a search was within the scope of consent. Wald, 216 F.3d at 1228-29. The Tenth Circuit found that the defendant's "initial consent was not general, but limited to a `quick look inside the vehicle[.]'"Id. at 1228. The fact that the defendant had been confronted with evidence of a crime prior to the search of the trunk led the court to find that "a reasonable person . . . might well conclude that [the defendant's] failure to object . . . stemmed from his belief that he was currently under arrest and therefore had no power to prevent the search." Id. at 1228-29. The court also noted that the arresting officer had testified that the defendant was not free to go. Id. at 1228.
In the present case, the officers found evidence of a crime before taking the computers. Additionally, Special Agent Ross did not ask Mr. Johnson, but told him that the computers would be searched again. Special Agent Ross testified that "We informed [Mr. Johnson] that as a result of the fact that [the computer] contained contraband, we had to seize it." (Tr. at 40). It is reasonable to conclude that Mr. Johnson believed that the officers had obtained the evidence sought and that any objection would be fruitless. His failure to object is not an indication that he consented to a second search, particularly one which occurred eight months later.
Accordingly, the court concludes that the government has failed to establish that Mr. Johnson consented to the search which occurred in early September of 2004.
ORDER
For the reasons set forth above, the court GRANTS Mr. Johnson's motion to suppress all evidence obtained as a result of the forensic search of his computers in September of 2004.