United States v. Konrad Wolff
714 F. App'x 617
9th Cir.2017Background:
- Konrad Wolff convicted after a bench trial on stipulated facts for receiving child pornography in violation of 18 U.S.C. § 2252(a)(2).
- Wolff’s wife found images on a hard drive and other electronic devices, contacted police, and voluntarily turned over the devices to law enforcement.
- Police obtained search warrants to examine the hard drive and other devices; affidavits recited the wife’s viewing of hundreds of images and an officer’s training-based opinion about storage of such material on electronic devices.
- At sentencing, Wolff’s counsel agreed to waive a challenge to a restitution order; the district court then awarded an additional Guidelines reduction for acceptance of responsibility under § 3E1.1(b).
- Wolff appealed, raising Fourth Amendment, probable-cause, Kimbrough/Guidelines-variance, and restitution-waiver procedural-issue arguments.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether police seizure occurred when wife gave devices to police | Wolff: wife acted as police agent; thus government seizure violated Fourth Amendment | Government: wife acted privately and voluntarily relinquished items; no seizure by police | No Fourth Amendment violation; private voluntary relinquishment not a seizure (affirmed) |
| Whether warrants lacked probable cause | Wolff: affidavits insufficient to support probable cause | Government: wife’s direct viewing + officer’s training/experience provided ample probable cause | Warrants supported by probable cause (affirmed) |
| Whether district court committed procedural error by not recognizing Kimbrough discretion | Wolff: court failed to appreciate/consider its discretion to vary from child-pornography Guidelines | Government: judge read and considered materials, called Guidelines advisory, and imposed within-range sentence—no failure to appreciate discretion | No procedural Kimbrough error; judge considered and elected not to vary (affirmed) |
| Whether waiver of restitution challenge was invalid because court negotiated it | Wolff: waiver was judicially procured/negotiated at sentencing and therefore invalid | Government: waiver was counsel’s proposal after the court invited response; court did not initiate or promise the reduction for waiver | Waiver valid; judge did not directly negotiate or promise § 3E1.1(b) in exchange for waiver (affirmed) |
Key Cases Cited
- United States v. Black, 767 F.2d 1334 (9th Cir. 1985) (government acceptance of items voluntarily relinquished after a private search is not a Fourth Amendment seizure)
- Coolidge v. New Hampshire, 403 U.S. 443 (1971) (private party who independently turns over evidence to police does not make subsequent seizure unlawful)
- United States v. Jacobsen, 466 U.S. 109 (1984) (addresses Fourth Amendment limits on government conduct after private handling of property)
- United States v. Jones, 565 U.S. 400 (2012) (search/seizure analysis focused on physical trespass and search concepts)
- Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (panel must follow prior panel precedent unless irreconcilable with intervening higher authority)
- United States v. Smith, 795 F.2d 841 (9th Cir. 1986) (courts may credit a private party’s direct viewing of illicit images in probable-cause analysis)
- United States v. Lacy, 119 F.3d 742 (9th Cir. 1997) (officer training/experience about storage of illicit materials on electronic devices can support probable cause)
- Kimbrough v. United States, 552 U.S. 85 (2007) (district courts have discretion to vary from Guidelines on policy grounds)
- United States v. Henderson, 649 F.3d 955 (9th Cir. 2011) (procedural error occurs when court fails to appreciate Kimbrough discretion; courts need not vary absent an actual policy disagreement)
- United States v. Gonzalez-Melchor, 648 F.3d 959 (9th Cir. 2011) (invalidates judicial-initiated plea/appellate-waiver bargaining at sentencing)
- United States v. Carty, 520 F.3d 984 (9th Cir. 2008) (when nonfrivolous § 3553(a) arguments are raised, judge should explain acceptance or rejection)
- Rita v. United States, 551 U.S. 338 (2007) (when a party raises a specific, nonfrivolous sentencing argument, the judge should explain acceptance or rejection)