995 F.3d 1061
9th Cir.2021Background
- Kyle Peterson was released on California parole in April 2017 and signed parole conditions consenting to warrantless searches and agreeing not to possess a camera cell phone or electronic media depicting sexually explicit conduct by minors.
- Parole agents found two cell phones in Peterson’s possession on May 23 and July 6, 2017; on-site previews revealed sexually explicit images of minors, the phones were seized, and HSI later performed forensic analyses after Peterson’s parole was revoked.
- A California CDCR officer interpreted policy to require a warrant once parole was revoked; the government initially did not oppose suppression of HSI’s forensic findings and the district court entered a minute order suppressing HSI’s analyzed evidence (but not the parole officer’s on-site previews).
- The government then obtained a search warrant based on the parole agent’s preliminary (on-site) observations, reanalyzed the phones using previously captured forensic images, and recovered child pornography; Peterson was indicted under 18 U.S.C. § 2252(a)(2).
- Peterson moved to suppress evidence and argued his parole conditions did not unambiguously cover cell phones and that subsequent forensic evidence was tainted; the district court denied suppression, Peterson entered a conditional guilty plea preserving appeal rights, later moved to withdraw the plea claiming he was not informed of the knowledge elements, and the court denied withdrawal and sentenced him.
Issues
| Issue | Plaintiff's Argument (Peterson) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether plea was informed as to the knowledge elements of §2252(a)(2) | Court failed to explain that defendant must know the performer was a minor and that the image depicted sexually explicit conduct | Indictment, plea agreement, and colloquy tracked statute and defendant acknowledged understanding elements | Court affirmed: plea colloquy, indictment, and plea agreement adequately apprised defendant; plea withdrawal denied |
| Whether warrantless parole searches of cell phones were authorized | Parole conditions did not unambiguously encompass cell phones and their contents | Peterson consented by parole terms; parolees have diminished privacy; California law permits warrantless parole searches | Court affirmed denial of suppression for parole searches; searches reasonable under precedent |
| Whether forensic evidence obtained after parole revocation (via later warrant) must be suppressed due to prior warrantless seizure/HSI analysis | Forensic images were tainted by prior seizure/HSI analysis and had been suppressed, so later use cannot stand | Warrant was based on independent information (parole agent’s preview); initial parole seizure was valid, so downstream use was lawful | Court affirmed denial of suppression of evidence obtained after warrant; government cured any initial defect by obtaining a warrant |
| Whether defendant waived argument that the government re-used previously captured forensic images rather than creating new ones after getting the warrant | The reanalysis used the same suppressed forensic images, so no independent source exists | Peterson failed to raise this theory below; issue is waived and could have been resolved by district court | Court held the argument was waived for appeal and declined to reverse on that basis |
Key Cases Cited
- United States v. X-Citement Video, Inc., 513 U.S. 64 (Sup. Ct. 1994) ("knowingly" in §2252 applies to both age and sexually explicit nature)
- United States v. Johnson, 875 F.3d 1265 (9th Cir. 2017) (parolee cell-phone searches may be upheld warrantless given diminished privacy)
- Bradshaw v. Stumpf, 545 U.S. 175 (Sup. Ct. 2005) (plea invalid if defendant unaware of nature/elements; court may rely on record and counsel representations)
- United States v. Ross, 511 F.3d 1233 (9th Cir. 2008) (standard of review for Rule 11 colloquy and plea withdrawal)
- Hyde v. United States, 520 U.S. 670 (Sup. Ct. 1997) (solemn statements at plea carry presumption of verity)
- Hamling v. United States, 418 U.S. 87 (Sup. Ct. 1974) (indictment sufficient if it follows statutory language and sets forth elements)