PEOPLE v. EMERSON (2003)

The defendant stands charged in a 43 count indictment with Possessing a Sexual Performance by a Child, in violation of Penal Law § 263.16, in his computer.   Each of the 43 counts are identical, with the exception that a different image is alleged in each count, corresponding to a different computer file name.   Defendant moves to suppress the evidence against him on the ground that the computer on which these images were found was seized without a warrant by the police, and on the further ground that, immediately prior to the seizure, which occurred without a warrant, the police participated in a warrantless search of the files.   The motion to suppress is also made on the ground that the search warrant application presented to the issuing judge the day following was tainted by allegations that are a fruit of the prior warrantless search and seizure of the computer.

The facts are not disputed, and therefore a hearing is not necessary.   In early December, 2001, the defendant experienced difficulty re-booting his computer, and hired Patrick Mulrooney to repair it.   Mr. Mulrooney, owner of MGM Technology Group, Inc., went to the defendant's residence at 235 Paddy Hill Drive in the Town of Greece to pick up and repair the computer.   Mulrooney tried to turn the computer on while at the defendant's residence, but the computer would not boot up.   As Mulrooney was leaving defendant's residence with the computer and a box of defendant's CD's, the defendant told him, “(not in these exact words) you're going to see weird things on the D drive because my brother-in-law has a sick sense of humor.” ¹

Mulrooney began repair work on the computer on December 7, 2001, locating viruses in 14 locations on the D drive and in 24 locations on the C drive.   After some repair work, Mulrooney was able to re-boot the computer, and immediately discovered that a number of the files were labeled with pornographic titles.   During the repair work, Mulrooney discovered a folder titled, “xxx,” which he opened, finding “pages of file names describing children performing sexual acts.”   Remembering what the defendant had said about “weird things” on the D drive, Mulrooney discovered several other files in a separate “MPG” folder having “pornographic titles with a good portion of these titles having titles describing children performing sexual acts.”   Mulrooney looked at several of the files, and discerned that “they contained children between the ages of 10 and 15 naked and/or performing sexual acts.”

Mulrooney called the Irondequoit Police Department and spoke with Captain Mark Bonsignore.   He told Bonsignore of what he found, and Bonsignore told Mulrooney that an investigator would come by the following Monday.   When the police showed up at Mulrooney's place of business on December 10, 2001, Mulrooney “showed them Mr. Emerson's computer and I opened several files which contained child pornography.”   Mulrooney “then shut down the computer and turned the computer and the box containing the CD's over to Officer Degnan.”   A search warrant was obtained the next day authorizing the seizure and search of the computer.   Mulrooney's affidavit, quoted above, was the primary basis for issuance.

Using details gleaned from the discovery package provided to defendant by the prosecution, which indicates the last access date concerning the computer files in question, defendant contends that the search on December 10th in the presence of two Irondequoit law enforcement officers, Officer Degnan and Capt. Bonsignore, exceeded the scope of Mulrooney's private search on December 7th.   Defendant avers that 18 “xxx” files and 6 “MPG” files were accessed on December 7th by Mulrooney himself, and that 6 “xxx” files and 31 “MPG” files were accessed in front of police personnel on December 10th, thus exceeding Mulrooney's private viewing of only 6 “MPG” files.   Defendant avers further that the viewing of the files on December 10th in the presence of Bonsignore and Degnan was “undoubtedly at their direction,” thus constituting an official search subject to Fourth Amendment scrutiny.   Moreover, the defendant challenges the warrantless seizure of the computer immediately thereafter by Bonsignore and Degnan, their asportation of it to the station house, and the subsequent warrant application the next day was a fruit of the unlawful search of the computer at Mulrooney's place of business on December 10th.   Additionally, defendant predicates the seizure of the computer and the transporting of it to the station house without a warrant as a predicate taint requiring suppression of the evidence gathered during execution of the search warrant.

A. Mulrooney's Private Search on December 7th is Not Subject to Fourth Amendment Scrutiny

 The Fourth Amendment prohibition against unreasonable searches and seizures “proscrib[es] only governmental action;  it is wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.’ ” United States v. Jacobsen, 466 U.S. 109, 113-14, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984)(quoting Walter v. United States, 447 U.S. 649, 662, 100 S.Ct. 2395, 2404, 65 L.Ed.2d 410 (1980)(Blackmun, J., dissenting)).   See People v. Adler, 50 N.Y.2d 730, 736-37, 431 N.Y.S.2d 412, 409 N.E.2d 888 (1980)(“well settled that a search by a private person, even an unlawful search, does not implicate Fourth Amendment considerations”).   The defendant has never alleged, nor does anything in the record support, that the December 7th search by Mulrooney was in any manner infected by governmental involvement.   Accordingly, Mulrooney's discovery of contraband, i.e., images of child pornography in violation of the statute, cannot be the subject of suppression, and the court does not understand defendant's motion papers to seek the same.  United States v. Crowley, 285 F.3d 553, 559 (4th Cir.2002)(“The Fourth Amendment is not triggered when a private party initiates a search and contacts police after evidence is discovered.”);  People v. Powless, 298 A.D.2d 987, 748 N.Y.S.2d 301 (4th Dept.2002).²

B. Mulrooney's Reopening of the Computer Files in the Presence of Captain Bonsignore and Officer Degnan

Defendant's contention that Mulrooney's conduct in opening the computer files on December 10th, when Captain Bonsignore and Officer Degnan came to his place of business, does not warrant a hearing even his display of computer files to the officers came at their behest.   The December 10th search would have been proper if done by the police alone at the repair shop.   Defendant maintains that Mulrooney's decision to turn the computer on and to open the files for Bonsignore and Degnan came at their direction and “exceeded the scope of the search” conducted by Mr. Mulrooney on December 7, 2001.   The court will assume for purposes of this motion that Mulrooney's actions on December 10th came at “law enforcement direction,” even though there is no evidence to that effect, and that the officers saw all that Mulrooney had seen on December 7th.   The separate claim that the officers exceeded the scope of the prior private search is dealt with in the next section.

 Because the defendant does not dispute that the People “could utilize” Mulrooney's testimony concerning the “contents of the ․ [computer files],” and indeed they concede both in their papers and at oral argument that Mulrooney's putative testimony concerning the December 7th private search would fully provide probable cause for seizure of the computer and the search of at least that part its contents which was the subject of the December 7th search, “it hardly infringed respondent's privacy for the agents to re-examine the contents” of the computer on December 10th to the extent that Mulrooney had on December 7th.  United States v. Jacobsen, 466 U.S. at 119, 104 S.Ct. at 1659-60 (adding further that a government “agent's viewing of what a private party had freely made available for his inspection, did not violate the Fourth Amendment”).   In short, and assuming for purposes of this aspect of defendant's argument that nothing more was seen on December 10th, the December 10th search “enabled the agent[s] to learn nothing that had not been previously been learned during the private search.”  Id., 466 U.S. at 120, 104 S.Ct. at 1660 (also noting that, “in the context of their previous examination of the package, their communication of what they had learned to the agent, and their offer to have the agent inspect it, that act surely could not create any privacy interest with respect to the package that would not otherwise exist,” id. 466 U.S. at 120 n. 17, 104 S.Ct. at 1660 n. 17).

The fact that, in this case, we must assume for purposes of determining whether a hearing is necessary that Mulrooney acted at the behest of the police when he turned the computer on and displayed images of child pornography on December 10th does not alter the calculus or require that a hearing be held.   This much is clear from People v. Adler, in which the package opened by United Airlines personnel and searched in Los Angeles was subsequently re-packaged in Los Angeles for transport to New York, and then independently opened by law enforcement personnel alone at Kennedy Airport.   The court nevertheless held that the search at Kennedy Airport by law enforcement personnel “intruded upon no privacy interest not already invaded by the private party and thus [the police] lawfully seized the evidence proffered.”  Id., 50 N.Y.2d at 738, 431 N.Y.S.2d 412, 409 N.E.2d 888.   In other words, “when the New York Police searched the package, there was no independent intrusion requiring a warrant, but simply a continuation of the valid search and seizure effected in Los Angeles” by the private party.  Id., 50 N.Y.2d at 738-39, 431 N.Y.S.2d 412, 409 N.E.2d 888.

 Although certain portions of the Jacobsen opinion give some pause on the question of re-opening a closed package (Jacobsen post-dated Adler ), recent case law makes clear that the police may do so after a private search in a case like this.   On this point, we start with the proposition that the computer folders containing the images of child pornography, and perhaps even the individual image files themselves, are “closed containers” as that term has been interpreted under the Fourth Amendment.   See United States v. Carey, 172 F.3d 1268, 1273-76 (10th Cir.1999);  Commonwealth v. Hinds, 437 Mass. 54, 58-62 & n. 2, 768 N.E.2d 1067 (2002).   Compare United States v. Runyan, 275 F.3d 449, 458 (5th Cir.2001), appeal after remand, 290 F.3d 223 (5th Cir.2002) cert. denied, 537 U.S. 888, 123 S.Ct. 137, 154 L.Ed.2d 149 (2002).   Nevertheless, “[i]f the files were closed and their contents not apparent from the exterior, the reasonable expectation of privacy continued [only] so long as the files had not been searched before contact with the government occurred[,] [because,] [o]therwise, that expectation of privacy would have been frustrated and at an end.”  United States v. Knoll, 16 F.3d 1313, 1320 (2d Cir.1994), appeal after remand, 116 F.3d 994, 997-98 (2d Cir.1997).   See also, United States v. $557,933.89, More or Less, in U.S. Funds, 287 F.3d 66, 87 (2d Cir.2002)(“reasonable expectation of privacy in closed files existed only insofar as they had not already been legitimately searched” by private party).   Therefore, the re-opening on December 10th of the “xxx” and “MPG” computer file folders examined by Mulrooney on December 7th, which were found to contain (in the “xxx” folder) “pages of file names describing children performing sexual acts” and (in the “MPG” folder) “pornographic titles with a good portion of these titles having titles describing children performing sexual acts,” together with the very files in each folder previously opened by Mulrooney, would have been permissible if done by the police alone.   Defendant no longer harbored a reasonable expectation of privacy in each file folder “table of contents” containing the file titles, or those individual files containing child pornography images examined by Mulrooney alone in his repair shop.

C. The December 10th Search, Which Involved Viewing More Files than the December 7th Private Search, Nevertheless Did Not Exceed the Scope of the Private Search.

The viewing of files containing child pornography on December 10th in front of law enforcement personnel did not, in any functional sense geared to defendant's reasonable expectation of privacy in the “xxx” or “MPG” file folder, exceed the scope of the private search conducted by Mulrooney on December 7th.   Defendant acknowledges that 18 “xxx” files were opened on December 7th and that a fewer number, 6 “xxx” files, were opened on December 10th, but he alleges that only 6 “MPG” files were accessed on December 7th while some 31 “MPG” files were accessed on December 10th in front of Irondequoit Police Department personnel. Of critical importance here is that the viewing of files on both dates concerned images of child pornography only, and that they were files contained in the only two computer file folders, denominated “xxx” and “MPG,” accessed during Mulrooney's private search.   Defendant does not allege that the officers ventured into any other computer file folders, or that they accessed other types of private information elsewhere on the computer's hard drive.   Cf., United States v. Carey, 172 F.3d 1268, 1273-76 (10th Cir.1999);  Commonwealth v. Hinds, 437 Mass. 54, 58-62 & n. 2, 768 N.E.2d 1067 (2002).

 The mere fact that additional child pornography files were accessed is not, alone, determinative.  “The additional invasions of respondent's privacy by the Government agent must be tested by the degree to which they exceeded the scope of the private search.”  United States v. Jacobsen, 466 U.S. at 115, 104 S.Ct. at 1657.   See also, id. 466 U.S. at 116, 104 S.Ct. at 1658 (“the legality of the Governmental search must be tested by the scope of the antecedent private search”).  “The Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated.”  Id., 466 U.S. at 117, 104 S.Ct. at 1658-59.³  For the reasons stated below, the court holds that, when an earlier, private search opens child pornography image files on a hard drive in identified computer file folders which the private searcher found replete with file titles plainly suggesting images of like kind, defendant retains no reasonable expectation of privacy with respect to additional such image files in the same two computer file folders.

In Walter v. United States, supra, the private party opened a carton containing rolls of motion picture films that appeared to be contraband, and later turned the carton over to the FBI without viewing or otherwise inspecting the films.   The FBI, without obtaining a warrant, used a projector and viewed the films.   It was held in a plurality opinion that the FBI's viewing of the films using the projector “was a significant expansion of the search which had been conducted previously by a private party and therefore must be characterized as a separate search.”  Walter v. United States, 447 U.S. at 657, 100 S.Ct. at 2401 (plurality opinion of Stevens, J.) See also, Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001).   Here, of course, and unlike in Walter, the private party actually viewed images of child pornography during his private search on December 7th, and therefore was possessed of information, imparted that day to the authorities, which thoroughly frustrated defendant's expectation of privacy in the contents of the two computer file folders examined by him.   As in People v. Adler, supra, “there was no governmental involvement until after the private search revealed the presence of contraband.”  Id., 50 N.Y.2d at 737, 431 N.Y.S.2d 412, 409 N.E.2d 888.   Because “the existence of illicit ․ [contraband] had been discovered in the course of a private search[,] any invasion of defendant's privacy interest was complete at that point ․ [and][n]o new or different search was effected by the immediate surrender to and inspection by the police officer.”  People v. Adler, 50 N.Y.2d at 737, 431 N.Y.S.2d 412, 409 N.E.2d 888 (adding that, under the Walter test, “[t]he police did not go beyond the private search when they examined the contents of the package”).

 The viewing of more “MPG” files on December 10th than were viewed by Mulrooney privately on December 7th cannot, in this context of child pornography images, implicate any expectation of privacy that was not already thoroughly frustrated by the earlier private discovery of child pornography images.   That more files were seen, or, to take the record here in a light most favorable to defendant, that several more were viewed when a great many had already been discovered in the same computer file folder and disclosed verbally to the police by Mulrooney, cannot implicate any incremental expectation of privacy in the remaining child pornography images that the Fourth Amendment is prepared to recognize as reasonable.   As well stated in United States v. Runyan, supra, which also involved computer child pornography:

The police do not exceed the scope of a prior private search when they examine the same materials that were examined by the private searchers, but they examine these materials more thoroughly than did the private parties. [citation omitted].   In the context of a closed container search, this means that the police do not exceed the private search when they examine more items within a closed container than did the private searchers.   Though the Supreme Court has long recognized that individuals have an expectation of privacy in closed containers, [citations omitted], an individual's expectation of privacy in the contents of a container has already been compromised if that container was opened and examined by private searchers, [citation omitted].   Thus, the police do not engage in a new “search” for Fourth Amendment purposes each time they examine a particular item found within the container.

Id., 275 F.3d at 464-65(emphasis supplied).   See also, United States v. Slanina, 283 F.3d 670, 680 (5th Cir.2002)(“FBI's full search of the computer equipment, which had already been partially searched by ․ [a private person], did not run afoul of the Fourth Amendment”)(emphasis supplied), vacated on other gr., 537 U.S. 802, 123 S.Ct. 69, 154 L.Ed.2d 3 (2002).   This court agrees with the above stated rationale insofar as it applies to the particular facts of the December 10th official search, and finds it to be consistent with the holding of People v. Adler, supra, particularly given the facts of Adler.⁴

D. The Warrantless Seizure of the Computer at Mulrooney's Place of Business and Transport to the Irondequoit Station House

Defendant contends that the warrantless seizure, itself, of the computer from the repairman, Mulrooney, on December 10th requires suppression of the computer and its contents.   In People v. Adler, supra, the court held that “the Fourth Amendment simply was not implicated by the voluntary transfer of the package to the police, for no governmental seizure in the constitutional sense exists in such a situation.”  Id., 50 N.Y.2d at 737, 431 N.Y.S.2d 412, 409 N.E.2d 888.   For purposes of this motion, however, an assumption must be made that the Irondequoit Police asserted dominion and control over the computer quite without regard to whether, independently, Mulrooney intended to give it to them at the time.   In United States v. Jacobsen, supra, such action was described as a “seizure” within the meaning of the Fourth Amendment, but the Court held that, in circumstances such as these, “that seizure was not unreasonable.”  Id., 466 U.S. at 120, 104 S.Ct. at 1660.   The Court held that “[s]uch containers may be seized, at least temporarily, without a warrant” because “it is well settled that it is constitutionally reasonable for law enforcement officials to seize ‘effects' that cannot support a justifiable expectation of privacy without a warrant, based on probable cause to believe they contain contraband.”  Id., 466 U.S. at 121-22, 104 S.Ct. at 1661.   See also, United States v. Knoll, 116 F.3d at 998 (“no error at all, much less plain error, in the government's continued possession of the files”-the police are “entitled to retain and hold for subsequent use the evidence in its possession as a result of the private search”).   See also, United States v. Jacobsen, 466 U.S. at 120 n. 18, 104 S.Ct. 1652 (“the decision by governmental authorities to exert dominion and control over the package for their own purposes clearly constituted a ‘seizure,’ though not necessarily an unreasonable one”).

 Accordingly, the motion to suppress by reason of the warrantless seizure and search of the computer hard drive is denied.   Given this disposition, it is not necessary to reach the People's alternative inevitable discovery argument.

E. Failure to Swear to the “Return”

 Finally, defendant's motion to suppress on the ground that the police failed to comply with C.P.L. § 690.50(4)-(5) is denied;  “suppression ․ [would not be] mandated because defendant was not provided with an inventory of the items seized.”  People v. Dominique, 229 A.D.2d 719, 720, 645 N.Y.S.2d 625 (3d Dept.1996), aff'd., 90 N.Y.2d 880, 661 N.Y.S.2d 597, 684 N.E.2d 27 (1997);  Town of East Hampton v. Omabuild USA No. 1, Inc., 215 A.D.2d 746, 748, 627 N.Y.S.2d 723 (2d Dept.1995)(“noncompliance with these ministerial requirements would not undermine the validity of the warrant or the search”);   People v. Camarre, 171 A.D.2d 1003, 1004, 569 N.Y.S.2d 224 (4th Dept.1991)(“return requirement is ministerial and even relatively lengthy delays in complying with it will not invalidate a seizure”).   Accordingly, the motion to suppress on the ground of noncompliance with the return requirement of C.P.L. § 690.50 is denied.

Conclusion

The motion to suppress evidence resulting from issuance of the computer warrant is denied.   Inasmuch as the parties are in agreement that no evidence seized during execution of the home warrant will be introduced at trial, it is unnecessary to reach the question of probable cause for issuance of that warrant presented in defendant's motion papers.

SO ORDERED.

DECISION AND ORDER

Defendant moves to reargue the suppression motions which were denied in the court's decision and order dated July 9, 2003.   The motion is made on a number of grounds, only some of which require discussion here.   The following is the court's decision and order granting the motion to reargue.

A. The directive to Mulrooney to keep the computer secure until the police arrive following the weekend was not unreasonable

Defendant maintains that the police directive to Mulrooney on December 7th to secure defendant's computer in Mulrooney's shop until the police arrived on December 10th was an unlawful seizure of his property, and should lead to suppression under fruit of the poisonous tree grounds.   The same argument was made in defendant's original moving papers, and resolved against him in Part D of the original decision.   Defendant now posits that the seizure actually occurred on December 7th via the telephone directive, not on December 10th when the police took the computer to the stationhouse pending issuance of the warrant the next day, and that therefore it was unreasonable in length.

While it is true that an official seizure occurred on the 7th, United States v. Mayomi, 873 F.2d 1049, 1053 (7th Cir.1989)(“after the government requested him to detain” the computer, Mulrooney “acted as an agent of the government”), the original decision is adhered to.   In this case, defendant entrusted his computer to Mulrooney for repairs.   Defendant does not allege that the entrustment was for any particular length of time, nor does he allege that the repairs were done and that the computer was scheduled for return.   Here, we are dealing with a brief four day delay over the weekend without any expectation of return by defendant.   Compare United States v. Hall, 142 F.3d 988, 994 (7th Cir.1998)(delay of one day after scheduled return of computer upheld).   Courts must consider the level of suspicion involved, “the brevity of the invasion of the individual's Fourth Amendment interests,” and “whether the police diligently pursue their investigation.”  United States v. Place, 462 U.S. 696, 709, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110 (1983).   The reported cases arise largely in the mail context, and “have previously upheld as reasonable a detention of letters over a weekend for the purpose of subjecting them to a canine sniff.”  United States v. Pitts, 322 F.3d 449, 455 (7th Cir.2003)(citing, United States v. Mayomi, 873 F.2d at 1054).  “Where investigators have acted with reasonable diligence, courts have found acceptable the detention of mail for anywhere from twenty-nine hours to five days,” United States v. Ramirez, 342 F.3d 1210 (10th Cir.2003)(collecting cases), particularly when a weekend is involved.  United States v. Gill, 280 F.3d 923, 929 (9th Cir.2002)(“[s]ignificant that the investigation began at the end of one week and was completed at the beginning of the following week”).   While the delay here would be more troubling without the weekend factor, on balance it is held reasonable, especially given the strong probable cause present, the circumstances of defendant's entrustment of the computer to Mulrooney, and the nature of the contraband.

B. The official search did not exceed the scope of the private search even if the official search did not concern any of the image files opened by Mulrooney in his private search

Defendant contends that there is no way to determine a relationship between the private search conducted by Mulrooney alone on December 7th, and the December 10th search conducted by the police with Mulrooney.   With a clearer discussion of the mechanics involved than appeared in the original motion papers, defendant alleges that “[a]ny file accessed on December 10th, for example, could also have been accessed on December 7th.”   Freeman Affirmation of August 2, 2003, at ¶ 27.   Defendant now contends, for the first time, that Mulrooney may have looked at none of the files accessed by the police on the 10th when he conducted his private search on the 7th.  Id. ¶ 31.   Defendant reasons, again for the first time, that his discovery material is such that any file opened by the police and Mulrooney on the 10th would show a “last access” date of the 10th, and that there would be no way to determine whether Mulrooney looked at any of those files on December 7th.   Defendant concludes that “it must be assumed, from the current record, that the warrantless police search on December 10th was an entirely new search, encompassing exclusively files that were not opened on the 7th.”  Id. at ¶ 35.

This argument is without merit.   My decision of July 9 did not turn upon this particular detail, although I acknowledge that I framed the facts in the terms originally presented to me by the defendant's moving papers (which incorporated the search warrant application).   Rather, the key point is that, when Mulrooney and the police on December 10th turned the computer on, they accessed in the first instance, or at least before examination of any image file, only two file folder directories, one denominated “xxx” and the other “MPG.” These computer file folders each appear on the screen, when first opened, as a directory of folder files, or a “table of contents,” containing the titles of individual computer image files.¹  Although defendant now contends that, on this record, we must assume that Mulrooney opened none of the files on December 7th that he and the police opened together on December 10th, the so-called table of contents pages of the two folders in question were assuredly opened by Mulrooney on December 7th (he could not access any individual image file without going through the folder directory or table of contents page).   And it is equally clear that these two table of contents pages were first opened by Mulrooney and the police on December 10th (for the same reasons) before they could have opened, respectively, any image files in each folder.

Accordingly, it is clear beyond peradventure that the official search on December 10th did not, to that limited extent of accessing the directory or table of contents page, go beyond what Mulrooney did himself on December 7th.   We also know, however, that Mulrooney in his private search on December 7th opened many of the files labeled as child pornography and verified that they indeed contained what the label promised.   In other words, the private search of a sampling of the image files fully confirmed what the labels only provided probable cause to believe, i.e., that all of the files so labeled contained child pornography contraband.  United States v. Bowman, 907 F.2d 63, 65 (8th Cir.1990)(presence of contraband in the privately opened containers “spoke volumes as to [the] contents” of the remaining containers)(discussed in the court's original decision at fn. 4).   Moreover, with exception of the image files, discussed below, each folder directory was comprised largely if not exclusively of the same type and kind of image files.   Cf., United States v. Carey, 172 F.3d 1268, 1275 (10th Cir.1999)(“not a case in which ambiguously labeled files were contained in the hard drive directory” and thus “not a case in which the officers had to open each file drawer before discovering its contents”).²

Because of the labeling of the computer image files in each of the two “folder” directories, or table of contents pages in question, which were necessarily accessed by Mulrooney on the 7th before he could get into any of the individual image files, and because such labels were necessarily first encountered by the police and Mulrooney on December 10th before they could get into any of the individual image files, the December 10th search could not have exceeded in a functional sense the scope of the December 7th viewing by Mulrooney.   Any viewing of the individual files by the police on December 10th was justified by application of the plain view doctrine, for the reasons stated in footnote 4 in my July 9th decision, and the reasons stated above.  People v. Brown, 96 N.Y.2d 80, 88-89, 725 N.Y.S.2d 601, 749 N.E.2d 170 (2001)(“police should be able to seize incriminating evidence in plain view if they had a right to be where they were when they saw it” because “such a seizure involves no invasion beyond what the warrant (or some other exception to the warrant requirement) allows”).   Therefore, it makes no difference if indeed, as defendant now alleges, the police and Mulrooney accessed image files on the 10th that Mulrooney never opened on the 7th.

This is a different situation than that encountered in the context of simple obscenity, as opposed to child pornography.   If we were only dealing with materials alleged to be obscene, the labeling, on the computer file folder table of contents page, of files as “sexually explicit” would not be enough to suggest that, in addition, the file images contained therein were obscene, because an additional finding beyond sexual explicitness, which could only occur by a viewing of the files, would have to be made.   In that situation, a warrant would have to be obtained to open the individual files labeled as sexually explicit, on an additional showing beyond the labeling that obscenity may probably be present.   That is the point of Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980)(from the labeling alone, “one could only draw inferences about what was on the films”), and also the point of United States v. Carey, 172 F.3d at 1273-76.

In the context of child pornography, however, a labeling which clearly says that an image file contains a sexual performance by a child, in the context of Mulrooney's earlier private search verifying the same during a sampling of the files, needs no additional viewing to determine that it is, indeed, contraband.  United States v. Carey, 172 F.3d at 1274-75;  United States v. Bowman, supra.   And these individual file labels, in plain view on the table of contents page of each file folder in question, is what Mulrooney said he saw, and what the police said they saw, when the “xxx” file folder was opened and the “MPG” file folder was opened.   Defendant's original moving papers presupposed these facts, if they did not explicitly set them forth as the operative factual scenario.   Accordingly, defendant had no reasonable expectation of privacy in the “xxx” and “MPG” computer files which are the subject of the motion to suppress which was not thoroughly frustrated by the private search on December 7th, and no evidentiary hearing was needed.

Defendant makes another allegation in his motion for reargument which requires discussion.   Taking issue with the court's finding that the “viewing of files on both dates concerned images of child pornography only,” and not “other types of private information elsewhere on the computer's hard drive,” defendant points to the fact that one of the files examined by the police and Mulrooney on the 10th, from the “xxx” file folder, had a title indicating that it was not child pornography, but rather only pornography.   Defendant contends, therefore, that “there are not facts in the record that allow the court to conclude that only the ‘xxx’ and ‘MPG’ folders were accessed during the warrantless police search” on December 10th (emphasis in original).

This argument does not support reexamination of the court's denial of the motion to suppress.   First, defendant's motion papers made no allegation that the police ventured outside “xxx” and “MPG” file folders.   Second, the critical point is that defendant's motion to suppress only targeted for a suppression order the 43 child pornographic images which are the subject of the indictment.   Nothing additional was sought to be suppressed.   The motion to suppress, framed as it was in these terms, did not require examination into whether the December 10th search went beyond the “xxx” and “MPG” file folders, or included two files in the “xxx” file folder not containing child pornography.   Even if it had, the remedy would be, as I pointed out in my original decision, suppression of “only the information attributable to that additional ‘search,’ not suppression of the results of the entire search.”   United States v. $557,933.89, More or Less, in U.S. Funds, 287 F.3d 66, 87-88 (2d Cir.2002)(emphasis in original), quoted in fn. 3 of the original decision.   There is no precedent supporting suppression of those items a valid plain view search turns up simply because the police seize other items not in plain view which the People do not intend to use at trial.  United States v. Rouse, 148 F.3d 1040, 1041 (8th Cir.1998)(suppression ordered only of those items with respect to which the defendant did not “already ha[ve] his expectation of privacy frustrated”).   Cf., in the context of severing an invalid portion of a search warrant, People v. Brown, 96 N.Y.2d at 86-87, 725 N.Y.S.2d 601, 749 N.E.2d 170. Inasmuch as the motion to suppress targeted only the child pornography images, and they were lawfully seized and searched in plain view, the motion for reargument is denied.   Defendant's remedy, if any, would be a motion for a return of those items improperly seized.   Waller v. Georgia, 467 U.S. 39, 44 n. 3, 104 S.Ct. 2210, 2214 n. 3, 81 L.Ed.2d 31 (1984);  Andresen v. Maryland, 427 U.S. 463, 482 n. 11, 96 S.Ct. 2737, 2749 n. 11, 49 L.Ed.2d 627 (1976).   For the same reasons, the fact that two image files in the “xxx” and “MPG” folders had titles not suggesting child pornography does not require re-examination of the original decision denying the motion to suppress, because defendant did not in his original motion papers seek suppression of those two image files.   In any event, the People have expressed no intent to use them at trial.

Finally, defendant's attempt to liken this situation to the pre-warrant confirmatory searches condemned in Murray v. United States, 487 U.S. 533, 540, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) is without merit. As stated above, when the police with Mulrooney opened up the “xxx” and “MPG” file folder directories on December 10th, they necessarily first encountered a table of contents page replete with image file titles expressly announcing the presence of child pornography.   Because Mulrooney had already confirmed for the police the results of his private search on December 7th, i.e., that indeed the titles were accurate for the many image files he opened on that earlier date, defendant retained no expectation of privacy in the remaining images of child pornography in those two file folders under the Jacobsen-Walter-Adler rationale (see United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85; Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410; People v. Adler, 50 N.Y.2d 730, 431 N.Y.S.2d 412, 409 N.E.2d 888).  Accordingly, the police were “lawfully present,” for purposes of the plain view doctrine, 1 Wayne R. LaFave, Search and Seizure:  A Treatise on The Fourth Amendment § 2.2 at 395 & n. 1 (3d ed.1996), or in other words “they had a right to be where they were when they saw,” People v. Brown, 96 N.Y.2d at 88-89, 725 N.Y.S.2d 601, 749 N.E.2d 170, the two file folder directory or table of contents pages.   The case of Murray v. United States, supra, (see also, People v. Burr, 70 N.Y.2d 354, 362, 520 N.Y.S.2d 739, 514 N.E.2d 1363 (1987)), involves police acquisition of probable cause at a time when they had no right to be where they were, e.g., an illegal entry during which drugs are observed, a subsequent retreat from the premises to obtain a search warrant (leaving the contraband within), and a subsequent search pursuant to the warrant issued solely on the basis of observations made during the illegal entry.  Murray and its progeny plainly have no application to an official search of items with respect to which defendant no longer enjoys a reasonable expectation of privacy because of an earlier private search.   Otherwise, the Walter-Jacobsen-Adler line of cases would be meaningless.

CONCLUSION

The motion for reargument is granted, and upon reargument the original decision is adhered to.

SO ORDERED.

FOOTNOTES

1.   See Mulrooney's affidavit, sworn to December 11, 2002, submitted as part of the search warrant application (and quoted in defendant's moving papers).

2.   In particular, “when an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities, and if that occurs the Fourth Amendment does not prohibit Governmental use of that information.”  United States v. Jacobsen, 466 U.S. at 117, 104 S.Ct. at 1658.   This is true whether the defendant assumed that Mulrooney would keep the information a secret or not.  Id.

3.   If the official search “had been more intrusive than the initial search by ․ [the private party], only the information attributable to that additional ‘search’ would require suppression.”  United States v. $557,933.89, More or Less, in U.S. Funds, 287 F.3d at 87-88 (emphasis in original).

4.   The court is mindful of the criticism of Runyan found in Wayne R. LaFave, Search and Seizure:  A Treatise on the Fourth Amendment § 1.8 (1996)(2003 Pocket Part, at 61-63).   But the facts of this case are not invoked by that portion of the Runyan holding criticized by Professor LaFave.   In Runyan, the police opened more computer CD's than the private searcher had, and with no indication that the newly opened CD's contained the same material as found in the privately opened CD's other than that they came from the same owner.   CD's are by their nature free standing and separate from the computer's hard drive.   Here, by contrast, the additional image files were on the same computer hard drive, and from the same computer file folder the private searcher found replete with titles clearly suggesting the presence of specified contraband.   In this situation, the case is more like United States v. Bowman, 907 F.2d 63 (8th Cir.1990), embraced in LaFave, supra (2003 Pocket Part, at 62), in which the police opened more bundles of cocaine than the private searcher had.   The presence of cocaine in the privately opened bundles “spoke volumes as to [the] contents [of the remaining bundles].”  Id. 907 F.2d at 65 (quoting United State v. Jacobsen, 466 U.S. at 121, 104 S.Ct. at 1660)(quoting Texas v. Brown, 460 U.S. 730, 743, 103 S.Ct. 1535, 1544, 75 L.Ed.2d 502 (1983)).   See also, People v. Acosta, 198 A.D.2d 285, 603 N.Y.S.2d 569 (2d Dept.1993).   Because of the location and labeling of the computer image files in the “MPG” folder in defendant's hard drive, it is unnecessary to apply the full reach of Runyan's holding (and that limited part criticized by LaFave) to the facts of this case.   The rationale of Runyan quoted above, however, nevertheless has application to the facts of this case, is but an application of the plain view doctrine, People v. Brown, 96 N.Y.2d 80, 88-89, 725 N.Y.S.2d 601, 749 N.E.2d 170 (2001), and therefore is embraced insofar as it applies to these facts.   See also, Amy Baron-Evans, When the Government Seizes and Searches Your Client's Computer, 27 The Champion 18, 18-19, 21-22 (June, 2003) (© National Association of Criminal Defense Lawyers).

1.   This is just the nature of a computer's packaging of individual image files into a “folder.”   The folder table of contents page is viewed first, enabling the user to click onto (or “open”) the individual image files.   By all accounts, i.e., by accounts not challenged in defendant's original moving papers or his current moving papers, the individual image files were explicitly labeled.

2.   In Carey, of course, these observations about the type and kind of files in question, containing child and other pornography, were relevant to show why a police officer's computer search of such files in aid of a drug investigation violated The Fourth Amendment.   They are equally relevant to demonstrate that, even before the search on December 10th reached the point of opening up individual image files, Mulrooney knew from his December 7th private search, imparted lawfully to the police, that each file “was properly labeled and its contents were clearly described on the label.”  United States v. Carey, 172 F.3d at 1275.   For this reason, and the additional reason that defendant concedes that probable cause to support issuance of a warrant was fully provided by Mulrooney's private search on December 7th, there is a sufficient record to conclude that the search warrant would have been issued anyway.  People v. Del Rio, 220 A.D.2d 122, 131, 646 N.Y.S.2d 117 (2d Dept.1996).   However, in view of the disposition above, and the failure of the People to argue the independent source point, it is unnecessary and inappropriate to reach this issue.

KENNETH R. FISHER, J.