954 F.3d 1119
8th Cir.2020Background
- FBI traced Kik account “havingsomefun67” (requested/admired child pornography and admitted molestation) to account registered as kevingreen1719@gmail.com and to CenturyLink IP addresses tied to a Davenport, Iowa street address.
- Public records and databases (Lexis/Nexis, DMV, USPS) linked that address to Kevin Dean Green; surveillance and social-media photos corroborated his presence and contact with minors.
- FBI Agent McMillan’s warrant affidavit recited the Kik communications, the account registration/IP linkage, and his investigative experience that child-pornography evidence is often stored at defendants’ homes; affidavit sought seizure and search of electronic devices.
- Magistrate judge issued the warrant; agents searched the house, seized Green’s phone, and discovered 370 child‑pornography images; Green was indicted and pleaded guilty while preserving his right to appeal the suppression denial.
- At sentencing the court applied a Guidelines enhancement for use of a “computer,” increasing Green’s Guidelines range; the court also ordered $27,000 restitution ($3,000 per nine victims).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause to search house and phone; validity of phone search | Warrant lacked nexus/probable cause to search house or phone; phone seizure did not authorize content search under Riley | Kik account + IP + account registration tied to Green’s address and affidavit experience created a fair probability devices in the home would contain evidence; warrant attachment authorized searching seized devices; Riley limited to searches incident to arrest | Warrant supported by probable cause; search and phone-content search were authorized; suppression denied |
| Sentencing enhancement for use of a “computer” (vagueness) | The term “computer” (via 18 U.S.C. §1030(e)(1)) is unconstitutionally vague, so enhancement is invalid | Guidelines are not subject to vagueness challenges; Beckles bars attacking the Guidelines via statutory-definition vagueness | Vagueness challenge fails under Beckles; enhancement upheld |
| Restitution amount ($27,000; $3,000 per victim) | Restitution is excessive under the Eighth Amendment and/or an abuse of discretion | §2259 requires full victims’ losses; $3,000 per victim is consistent with post‑Paroline precedent and congressional guidance | District court did not abuse its discretion; $27,000 restitution affirmed |
Key Cases Cited
- Weeks v. United States, 232 U.S. 383 (exclusionary rule for unlawfully obtained evidence)
- United States v. Chrobak, 289 F.3d 1043 (8th Cir.) (linking an email/account to a suspect supplies probable cause to search the suspect’s home)
- United States v. Johnson, 848 F.3d 872 (8th Cir.) (probable‑cause/nexus standard under the totality of the circumstances)
- Riley v. California, 573 U.S. 373 (2014) (general rule requiring warrant to search cell‑phone data seized incident to arrest)
- United States v. Crumble, 878 F.3d 656 (8th Cir.) (Riley limited to searches incident to arrest; distinguish other search contexts)
- United States v. Gregoire, 638 F.3d 962 (8th Cir.) (a warrant authorizing seizure of a computer and records contemplates at least a limited search of its contents)
- Paroline v. United States, 572 U.S. 434 (2014) (standard for §2259 restitution attributable to possession of child pornography)
- Beckles v. United States, 137 S. Ct. 886 (2017) (Sentencing Guidelines are not subject to vagueness challenges)
- United States v. Huyck, 849 F.3d 432 (8th Cir.) (child‑pornography investigations support inference that suspects retain pornography for extended periods)