State v. HinaharaState v. Hinahara
{1} The State appeals the district court’s order suppressing sexually explicit images of minors retrieved pursuant to a search of Defendant’s computer. The district court determined that the search warrant was not sufficiently particularized under the Fourth Amendment and that it did not authorize a search of the hard drive of Defendant’s computer. We hold that the search warrant and affidavit were sufficiently particularized. Additionally, we hold that the search of all files on Defendant’s hard drive for illegal images was within the scope of the search warrant. We therefore reverse the district court’s suppression order and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
{2} Defendant was charged with multiple counts of sexual exploitation of a minor, contrary to NMSA 1978, § 30-6A-3(A) (2001), and with aggravated assault against a household member, contrary to NMSA 1978, § 30-3-13 (1995). The sexual exploitation of a minor charges arose out of images depicting minors engaged in sexual activity discovered on the hard drive of Defendant’s computer. The search warrant affidavit and the testimony at the suppression hearing established that Defendant’s adult daughter, Kimiko, contacted police, reporting that Defendant had threatened her with a gun and also possessed child pornography. Detective Michael Pelligrini then went to Defendant’s residence where, at that time, Kimiko and her partner, Erin Gundlach, lived with Defendant. Kimiko and Erin stated that they discovered images of child pornography under the mattress in Defendant’s bedroom. The images appeared to have come from the internet and depicted what Kimiko and Erin described as “young children who were naked in sexually explicit poses.” Kimiko stated that when she confronted Defendant about the images, he threatened her with a gun and discharged it near her head. Detective Pelligrini also interviewed Defendant, who said that he had removed the printed images from his home and thrown them away in a trash can before Detective Pelligrini arrived. Detective Pelligrini was not able to locate the images.
{3} Based on this information, Detective Pelligrini sought a search warrant, requesting to seize all “firearms, magazines, ammunition and gun eases, computers, video tapes, computer diskettes, CD[s], DVDs, photographs and magazines containing child pornography or any other miscellaneous items.” The search warrant authorized police to search the property described in the affidavit and, by its terms, incorporated the affidavit into the warrant. Police then seized Defendant’s computer and gave it to the FBI for analysis.
{4} Agent Jane Bales, an FBI forensic computer examiner, testified that she made an exact copy of Defendant’s hard drive and isolated the image files from e-mails and text documents using various programs. Agent Bales also searched the free space on Defendant’s hard drive to recover deleted images. Agent Bales testified that she looked at every graphic on the computer, including deleted images, in thumbnail form. If she saw an
{5} FBI Agent Robert Georgi testified that he received a disk from Agent Bales, containing images that she extracted from Defendant’s hard drive. The disk also contained e-mails, tending to show that Defendant purchased child pornography over the internet. Agent Georgi then reviewed the images and identified those that he believed constituted child pornography.
{6} Defendant moved to suppress the images as the product of an unconstitutional search, arguing that the search warrant was insufficiently particular and that the search exceeded the scope of the warrant. .The district court suppressed all evidence retrieved from Defendant’s computer, finding that the search warrant did not “state with particularity what is to be seized, what is to be looked at, what is to be reviewed.” The court also found that the search warrant did not authorize a search of the computer’s hard drive. We disagree and therefore reverse.
{7} In reviewing the grant of a suppression motion, “we review the district court’s ruling ... to determine whether the law was correctly applied to the facts, viewing the facts in the light most favorable to the prevailing party.” State v. Branham,
II. DISCUSSION
A. Particularity of the Search Warrant
{8} The Fourth Amendment directs that “no warrants shall issue, but on probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend TV. “The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer[.]” Marron v. United-States,
{9} “The test for particularity is whether an executing officer reading the description in the warrant would reasonably know what items are to be seized.” State v. Patscheck,
{10} Viewing the search warrant and accompanying affidavit under these standards, we believe that the particularity requirement was met. The warrant in this case authorized the seizure of “firearms, magazines, ammunition and gun cases, computers, video tapes, computer diskettes, CD[s], DVDs, photographs and magazines containing child pornography or any other miscellaneous items.” The search warrant affidavit recited facts establishing probable cause to believe
{11} Additionally, the search warrant and accompanying affidavit limited the officers to searching for images depicting “child pornography,” “young children who were naked in sexually explicit poses,” and “children in various sexual poses.” We believe that these terms were sufficiently particular to focus police in the search. See United States v. Hall,
{12} Defendant argues that the warrant was insufficiently particular because it did not specifically list the hard drive as an item to be seized. We disagree. Applying a common sense reading to the affidavit, we believe that the reference to computers and computer disks was sufficient to guide the officers to seize the computer’s hard drive. See Patscheck,
{13} Defendant also argues that the search warrant was insufficiently particular because Detective Pelligrini did not tell the issuing magistrate that Defendant’s adult daughter lived in the home, and that the
{14} Additionally, we do not believe that the failure to limit the search of the computer to files associated with Defendant’s user name rendered the warrant insufficiently particular. The police had probable cause to believe that illegal images were contained within the computer. It was therefore reasonable for the warrant to authorize the police to search for those images in any location within the computer where those images might be contained, not just those files associated with Defendant’s user name. See State v. Capps,
{15} Defendant also argues that the magistrate would have required corroborating information had Detective Pelligrini stated the printed images had been discarded. However, this is an argument that the warrant was not supported by probable cause. As Defendant did not raise this issue in the district court, and conceded that probable cause existed, we will not address the argument on appeal. See In re Aaron L.,
First Amendment
{16} Defendant also argues on appeal that, under the state and federal constitutions, a greater degree of particularity was required because the search warrant authorized a search of images based on their content. Defendant argues that a search for images is presumptively prohibited under the First Amendment and Article II, Section 17 of the New Mexico Constitution when the content of the images is the basis for their seizure.
{17} We reject Defendant’s First Amendment argument because the search warrant in this case sought images depicting child pornography, minors engaged in sexually explicit conduct, sexual conduct between adults and minors, and young children in sexual poses. “A search warrant infringes upon First Amendment rights if it acts as a prior restraint of protected material.” Patscheck,
{18} Defendant also argues that more particularity was required in the search warrant under the state constitution. Defendant specifically relies on Article II, Section 17 of the New Mexico Constitution, but he raised no argument whatsoever below about this constitutional provision. Because Defendant raises the state constitutional claim for the first time on appeal, we do not address it. See State v. Gomez,
B. Scope of the Search Warrant
{19} In addition to his particularity argument, Defendant argues that the district
{20} The warrant in this case authorized police to search computers and computer diskettes containing child pornography. Thus, a search of Defendant’s computer for child pornography was authorized by the warrant. We believe that a search of a computer for images contained within the computer necessarily includes a search of those parts of a computer in which the images would be stored, including the computer’s hard drive. “If there is probable cause to search for a particular item, the officer can search every container and location within the permitted area where that item could be located.” Capps,
{21} Additionally, the seizure of unlawful images from within Defendant’s computer was within the scope of the warrant because the warrant authorized the search of the computer for the illegal images. See Patscheck,
{22} Defendant also argues that the officers exceeded the scope of the warrant by searching every file contained within the hard drive. However, we believe the search of all files to determine whether they contained illegal images was within the scope of the warrant. ‘When searching computer files, investigators necessarily must look at all files and not just those with names suggestive of criminal activity, as few people keep documents of their criminal transactions in a folder marked [crime] records.” State v. Schroeder,
{23} Here, Agent Bales testified that she made an identical copy of Defendant’s hard drive and viewed the contents of Defendant’s hard drive to determine whether any files contained images of child pornography. Those images that appeared to be child pornography were then extracted and transferred to another disk. The extracted images were then reviewed to determine whether they constituted child pornography. We believe that this procedure was sufficient to restrict the search to locations within Defendant’s computer that could contain evidence of child pornography and to restrict the nature of the items seized to evidence of child pornography as authorized by the warrant. The search remained focused on the seizure of images of child pornography, and
C. Record on Appeal
{24} The initial transcript of the district court suppression hearing filed by the State did not contain counsels’ closing arguments, or the district court’s bench ruling granting suppression. Defendant filed a motion to dismiss the State’s appeal based on the State’s failure to file a complete transcript of the suppression hearing, which this Court denied. In our order denying the motion, we noted that Defendant could raise his arguments regarding the sufficiency of the appellate record in his answer brief. Before this case was submitted, the State supplemented the record with a complete transcript of the suppression hearing, which included the closing arguments of counsel and the district court’s bench ruling. In his answer brief, Defendant again asks this Court to dismiss the State’s appeal based on the State’s failure to timely file the entire transcript of the suppression hearing.
{25} We decline to do so. In light of the fact that the complete transcript of the suppression hearing has been made available, we do not believe that Defendant has suffered any prejudice as a result of the initial incompleteness of the transcript. We therefore deny Defendant’s request that we dismiss the appeal. See State ex rel. Educ. Assessments Sys., Inc. v. Coop. Educ. Servs. of N.M., Inc.,
III. CONCLUSION
{26} For these reasons, we reverse the district court’s suppression order and remand.
{27} IT IS SO ORDERED.