842 F.3d 1070
8th Cir.2016Background
- Police detected a computer offering child pornography via P2P on Aug 4, 2013, and traced its IP address to Damien Morgan 24 days later; a search warrant for his home issued 75 days after the IP was first identified (51 days after association with Morgan).
- Officers executed the warrant and arrested Morgan on an unrelated transit violation; while in custody Morgan requested his cell phone, scrolled through contacts under officer supervision, and did not object to a detective viewing the screen.
- Detectives found original child-pornography images on a home computer, including an image showing a man with a tattooed arm touching a girl’s genitalia; Morgan voluntarily exposed his tattoo at the station and allowed it to be photographed.
- Police later identified the child and linked her to a woman who appeared among Morgan’s phone contacts via public Facebook profiles.
- District court denied Morgan’s suppression motion and, after a conditional guilty plea to production and attempted production of child pornography, sentenced Morgan to 360 months, applying (1) a four-level enhancement for sadistic/violent images and (2) a five-level enhancement for a pattern of prohibited sexual activity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the search warrant affidavit was stale (probable cause) | Morgan: 75-day delay from IP identification (51 days after associating IP to him) rendered information stale and lacked probable cause | Government: Child-porn collectors retain images; computer artifacts persist; prior cases allow longer delays | Warrant not stale; affidavit provided fair probability evidence would be on Morgan’s computers (probable cause upheld) |
| Whether viewing Morgan’s cell-phone screen violated the Fourth Amendment | Morgan: Detective’s observation of phone contents was a warrantless search requiring suppression | Government: Morgan voluntarily had phone, made screen visible, and volunteered information; no reasonable expectation of privacy | No Fourth Amendment violation; voluntary exposure waived privacy—plain-view visual observation permissible |
| Whether photographing Morgan’s tattoo was a warrantless search requiring suppression | Morgan: Photographs of tattoo taken while in custody were an unlawful search/seizure | Government: Morgan consented to lift sleeve and be photographed; consent was voluntary | Consent was found voluntary; photographs admissible |
| Whether images constituted "sadistic" material for Guidelines §2G2.1(b)(4) | Morgan: Images did not amount to penetration or per se sadistic conduct | Government: Fingers inside labia and spreading constituted a form of penetration and degrading conduct | Court found factual penetration-like contact; four-level sadistic enhancement proper |
| Whether attempted production counts as "prohibited sexual conduct" for Guidelines §4B1.5(b) pattern-of-activity enhancement | Morgan: Definitions suggest attempt isn’t included in "prohibited sexual conduct," creating ambiguity; rule of lenity should apply | Government: Definitions incorporate chapter 110, which covers attempted production; plain reading includes attempt | Attempted production is covered; no ambiguity invoking lenity; five-level pattern-of-activity enhancement proper |
Key Cases Cited
- Illinois v. Gates, 462 U.S. 213 (probable-cause standard for search warrants)
- Katz v. United States, 389 U.S. 347 (reasonable expectation of privacy test)
- Kyllo v. United States, 533 U.S. 27 (distinguishing visual observation from technology-aided searches)
- Riley v. California, 573 U.S. 373 (cell-phone searches require warrants absent exceptions)
- Texas v. Brown, 460 U.S. 730 (plain-view observation doctrine)
- United States v. Estey, 595 F.3d 836 (computer-based child-porn case on staleness)
- United States v. Horn, 187 F.3d 781 (timeliness and persistence of computer files)
- United States v. Belflower, 390 F.3d 560 (images showing penetration are per se sadistic)
- United States v. Parker, 267 F.3d 839 (sadistic material can include coercive, degrading conduct)
- Lockhart v. United States, 136 S. Ct. 958 (rule of lenity as last resort in statutory interpretation)
- United States v. Broxmeyer, 699 F.3d 265 (interpretation that attempted offenses can be included under certain guideline definitions)