923 F.3d 907
10th Cir.2019Background
- FBI obtained a warrant (first warrant) to search Jason Loera’s residence and electronic media for evidence of computer fraud (illegal interception/computer offenses).
- During on-site execution (Nov. 20, 2012), two agents previewed CDs: they discovered child pornography on four CDs but continued their searches for computer-fraud evidence; 13 CDs and several electronic devices were seized.
- One week later (Nov. 27, 2012), Agent Cravens reopened the four CDs at the FBI office to select and describe images for an affidavit to obtain a second warrant to search the seized devices for child pornography; he viewed multiple images on each CD.
- A magistrate issued the second warrant; subsequent searches under that warrant produced hundreds more child-pornography images on Loera’s laptop and the CDs.
- Loera moved to suppress evidence from the searches; district court denied the motion; Loera pleaded guilty but preserved appeal of suppression denial. The Tenth Circuit affirmed denial overall but split rulings: first (on-site) search was reasonable; Cravens’ Nov. 27 re-review and the second-warrant probable-cause showing were unlawful, yet suppression was avoided under the inevitable-discovery doctrine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the on-site preview/search (Nov. 20) exceeded the scope of the first warrant after agents discovered child pornography | Loera: agents should have stopped searching when they discovered child pornography; continued search exceeded warrant | Government: searches remained directed at computer-fraud evidence authorized by the first warrant; incidental discovery permitted | Held: On-site searches were reasonable and within the first warrant’s scope (agents navigated away from nonresponsive material) |
| Whether Cravens’ Nov. 27 re-opening of the four CDs (to prepare affidavit) exceeded the first warrant | Loera: Cravens intentionally searched for child pornography without a warrant; unlawful pre-warrant search | Government: Cravens’ re-review was a permissible “second look”/plain-view or foregone-conclusion | Held: Nov. 27 search was unlawful — directed at child pornography and not saved by plain view or foregone-conclusion doctrines |
| Whether the second warrant was supported by probable cause given tainted affidavit material | Loera: affidavit relied on descriptions obtained unlawfully; absent that, no probable cause | Government: affidavit still established probable cause (and disclosed steps) | Held: After excising tainted descriptions, affidavit lacked probable cause; second warrant invalid |
| Whether exclusionary rule or exceptions (good-faith, inevitable discovery) permit admission of evidence seized under the second warrant | Loera: evidence must be suppressed; no exception applies | Government: Leon good-faith exception and plain view/foregone-conclusion apply; alternatively, evidence would have been inevitably discovered | Held: Leon/good-faith inapplicable because magistrate error did not cause the defect (police misconduct did); but inevitable-discovery applies — agents would have lawfully found the files pursuing the first-warrant search, so suppression not required |
Key Cases Cited
- Horton v. California, 496 U.S. 128 (1989) (warrant must be executed according to its terms; plain-view doctrine limits)
- United States v. Carey, 172 F.3d 1268 (10th Cir. 1999) (invalidated an electronic search that became a prolonged, targeted perusal for nonresponsive child-pornography files)
- United States v. Walser, 275 F.3d 981 (10th Cir. 2001) (upheld electronic search where agent used a particularized method and ceased upon encountering nonresponsive material)
- United States v. Burgess, 576 F.3d 1078 (10th Cir. 2009) (upheld broad image-preview technique where practical necessity made item-by-item review reasonable)
- Leon v. United States, 468 U.S. 897 (1984) (good-faith exception to exclusionary rule when magistrate, not police, caused the defect)
- United States v. Scales, 903 F.2d 765 (10th Cir. 1990) (Leon does not save warrants founded on evidence obtained by unlawful police conduct)
- Illinois v. Gates, 462 U.S. 213 (1983) (magistrate’s probable-cause determination reviewed for a substantial basis)
- United States v. Christy, 739 F.3d 534 (10th Cir. 2014) (explaining the inevitable-discovery doctrine and its proof-by-preponderance standard)
- Whren v. United States, 517 U.S. 806 (1996) (subjective officer motive does not invalidate an otherwise lawful search)