UNITED STATES OF AMERICA v. DAVID ROGER ALLEN

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United States Court of Appeals, Fifth Circuit.

UNITED STATES OF AMERICA, Plaintiff-Appellee v. DAVID ROGER ALLEN, Defendant-Appellant

No. 09-50283

Decided: November 4, 2010

Before JOLLY and GARZA, Circuit Judges and STARRETT , District Judge.   KEITH STARRETT, District Judge:  David Roger Allen (Allen) appeals the district court's denial of a motion to suppress evidence seized in an allegedly illegal search.   He argues the search warrant was overbroad, lacked particularity, was based on stale information and was not supported by probable cause.   Allen, a college professor and first time offender, was indicted by a federal grand jury on May 28, 2008.   The indictment charged Allen with two Counts of Shipping by Computer, Visual Depictions of Minors Engaging in Sexually Explicit Conduct (Counts One and Two) and another Count charging Receiving Matter Containing Visual Depictions of Minors Engaging in Sexually Explicit Conduct (Count Three).   Allen filed a motion to suppress the evidence seized from his home pursuant to a search warrant on the basis that the search warrant was invalid under the Fourth Amendment because it lacked particularity and was not supported by probable cause.   After an evidentiary hearing, the district court denied the Motion to Suppress and excluded, as irrelevant, the testimony of a defense witness offered in support of the motion.   The district court later entered a written order memorializing the denial of the motion.   On September 3, 2008, following denial of his motion to suppress, Allen pled guilty to Count Three of the Indictment pursuant to a plea agreement.   In the plea agreement, Allen waived his right to appeal the conviction or sentence, but reserved the right to appeal the motion to suppress and any and all evidentiary rulings made during the hearing on the motion to suppress.   The remaining two counts were dismissed.   As set forth in the Factual Basis filed in support of the guilty plea, the following occurred:  In July of 2006 Agents with Immigration and Customs Enforcement (ICE) identified an individual in Oregon by the name of Jeremy Rice. A forensic examination of Rice's computer reveal[ed] over 1,800 images depicting minors engaging in sexually explic[i]t conduct.   Rice was found to exchange or share those files using a Google program called Hello.   Rice was found to have exchanged these child pornography images with an individual later identified as Jerry Mikowski of Michigan.   Mikowski's computer was seized on or about March 29, 2007, during the execution of a court authorized search warrant.   A forensic examination of Mikowski's computer revealed approximately 2,000 images of child pornography.   A list of Mikowski's Google Hello “friends” included “mrhyde6988”.   A subsequent investigation revealed “mrhyde6988” to be this defendant.   A file found on Mikowski's computer entitled “from mrhyde6988” contained two images of minor females, the reviewing Magistrate Judge found these images to depict minors engaging in sexually explicit conduct, to wit:  the lascivious exhibition of the genitalia of these children.   On or about May 15, 2008, ICE Agents executed a court authorized search warrant at the defendant's residence.   Several computers and external hard drives were seized.   A forensic examination of the defendant's computer revealed approximately 3,300 images of child pornography, of those approximately 40 images, including duplicates, involved depictions of children involved in “bondage”, a form of sadomasochism, and approximately two depict children involved in beastiality [sic ].   The children depicted in these images vary in age from infancy to approximately 15 years of age.   On or about December 13, 2006, the defendant shared images with Mikowski, known to him as “candyman”.   Additionally, on or about February 22, 2007, the defendant also used the Google Hello program on his computer to send several images to an individual known only as “lilangel55555”.   During the investigation, Agents discovered that, in addition to receiving child pornography images, the defendant also shipped and transported child pornography images in interstate commerce.   These images were sent using the Google Hello program.   Allen was sentenced on Count Three to 121 months imprisonment and 10 years of supervised release.   He subsequently filed a timely notice of appeal, arguing that the district court erred in denying his motion to suppress.   Specifically, Allen contends that the search warrant lacked particularity, in violation of the Fourth Amendment, and was based on stale information, over-broad, and not supported by probable cause.   Allen further contends that the two images found on the Michigan computer did not depict minors engaged in sexually explicit conduct and thus were insufficient to provide the magistrate judge with a substantial basis for concluding that probable cause existed to issue the warrant.   Finally, Allen appeals the exclusion of testimony at the suppression hearing.   STANDARD OF REVIEW When reviewing the denial of a motion to suppress, we review factual findings for clear error and legal conclusions regarding the sufficiency of the warrant or the reasonableness of an officer's reliance on a warrant de novo.   United States v. Cherna, 184 F.3d 403, 406 (5th Cir.1999)(citing United States v. Kelley, 140 F.3d 596, 601 (5th Cir.1998)).   We view the evidence in the light most favorable to the prevailing party, in this case, the United States.   United States v. Garza, 118 F.3d 278, 282 (5th Cir.1997).   The Fourth Amendment requires a warrant to “particularly describ[e] the place to be searched, and the persons or things to be seized.”   U.S. Const. amend.   IV. The Fourth Amendment's particularity requirement demands that the place to be searched and the items to be seized be described with sufficient particularity so as to leave “nothing ․ to the discretion of the officer executing the warrant.”   Marron v. United States, 275 U.S. 192, 196 (1927);  Williams v. Kunze, 806 F.2d 594, 598 (5th Cir.1986)(“The items to be seized must be described with sufficient particularity such that the executing officer is left with no discretion to decide what may be seized.”).   See also United States v. Christine, 687 F.2d 749, 752 (3d Cir.1982) (“The particularity requirement ‘makes general searches ․ impossible.’ ” (quoting Marron, 275 U.S. at 196)).  “A general order to explore and rummage through a person's belongings is not permitted.”   United States v. Cook, 657 F.2d 730, 733 (5th Cir. Unit A Sept. 1981).  “The uniformly applied rule is that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional.”   Groh v. Ramirez, 540 U.S. 551, 559 (2004) (quoting Massachusetts v. Sheppard, 468 U.S. 981, 988 n.5 (1984) (internal citations omitted)).  “When the Government conducts a search pursuant to a warrant that does not particularly describe the things to be seized, the appropriate remedy is for the court to exclude from the evidence in a later criminal action the items improperly taken.”   Cook, 657 F.2d at 734.   This Court conducts a two-part inquiry to determine whether a seizure conducted pursuant to a search warrant violated the Fourth Amendment.   Cherna, 184 F.3d at 407.   First, we ask whether the seizure falls within the good-faith exception to the exclusionary rule.   United States v. Leon, 468 U.S. 897, 920-21 (1984);  Cherna, 184 F.3d at 407.   The good-faith inquiry is confined “to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization.”   Leon, 468 U.S. at 923 n.23. Thus, under the good-faith exception, if the evidence was obtained by law enforcement officers who relied on the warrant in objectively reasonable good-faith, then the evidence obtained during the search is admissible.   United States v. Davis, 226 F.3d 346, 351 (5th Cir.2000) (citing United States v. Shugart, 117 F.3d 838, 843 (5th Cir.1997)). This is true even if the evidence in the affidavit on which the warrant was based was not sufficient to establish probable cause.   Id. If the good-faith exception applies, this court affirms the district court's decision denying the motion to suppress.   Id. If the good-faith exception does not apply, then this court goes to the second step and determines whether the magistrate issuing the warrant had a “substantial basis for believing there was probable cause for the search.”   Id. (citing Cherna, 184 F.3d at 407).   ANALYSIS At the suppression hearing, and in his motion to suppress, Allen argued that the good-faith exception to the exclusionary rule should not be applied because the warrant was overly broad and failed the particularity requirement and that no reasonable officer should have relied on the validity of the warrant.   Allen also argued that the warrant was so lacking in probable cause that no reasonable officer would have believed the warrant was valid.   The Government concedes that the warrant was not sufficiently particularized and that the attachment detailing the items to be seized was not incorporated by reference in the warrant.   Nevertheless, the Government contends that, under the circumstances, the agents involved in the search reasonably believed that the warrant was valid because the warrant application, affidavit, and attachments had been reviewed by several ICE agents and the United States Attorney's Office prior to submission to the magistrate judge.   The magistrate judge then reviewed the documents and ultimately signed both the warrant and affidavit.   Furthermore, Agent Stone, the agent in charge, made certain that those taking part in the search reviewed the warrant, affidavit, and attachments and were familiar with what could be seized.   The Government also emphasizes that the agents exercised restraint during the search by contacting the U.S. Attorney's Office several times during the search whenever there was a question about what could be seized.   Thus, the Government argues that the evidence seized was admissible under the good-faith exception to the exclusionary rule.   The warrant at issue clearly does not pass constitutional muster.   It is undoubtedly broad because of its lack of particularity, absent the affidavit and attachments.   Simply incorporating the affidavit and attachments, which stated specifically what the search entailed and what was to be seized, by reference in the warrant could have cured the deficiency of the warrant.   That being said, the issue here is not the constitutional invalidity of the warrant, but whether the evidence seized pursuant to the unconstitutionally vague warrant should be suppressed.   Indeed, the Supreme Court has clearly stated that suppression is “an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.”   Leon, 468 U.S. at 906 (quoting Illinois v. Gates, 462 U.S. 213, 223 (1983)).   Even though the warrant in this case was not sufficiently particular, we conclude that the fruits of the search are admissible under the good-faith exception.   See Leon, 468 U.S. at 913 (“[O]ur evaluation of the costs and benefits of suppressing reliable physical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate leads to the conclusion that such evidence should be admissible․”).  The district court correctly found that the agents involved acted in objectively reasonable good-faith in relying on the search warrant.   As the Supreme Court pointed out recently in Herring v. United States,_ U.S._, 129 S.Ct. 695, 699-700 (2009), the exclusionary rule is a judicially fashioned remedy whose focus is not on restoring the victim to his rightful position but on deterring police officers from knowingly violating the Constitution.   Therefore, evidence should be suppressed “only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.”   Id. at 701 (quoting Illinois v. Krull, 480 U.S. 340, 348-49 (1987));  see also United States v. Otero, 563 F.3d 1127 (10th Cir.2009).   Otherwise, the “good-faith” rule of Leon applies.   The Herring Court identified several critical factors in deciding whether or not evidence should be excluded:  whether the application of the exclusionary rule results in deterrence;  whether the benefits of deterrence outweigh its costs;  and whether the misconduct was flagrant or deliberate.   Id. at 700-02.   Then the Court stated:  An error that arises from nonrecurring and attenuated negligence is thus far removed from the core concerns that led us to adopt the rule in the first place․1

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