*2 officer, with the Carey verbally con- Luedke, Thomas G. Assistant United sented to the search and signed later (Jackie Attorney Williams, N. Unit- *3 formal written consent at the sta- Attorney, ed States with him on the tion. Because he was concerned that offi- briefs), Kansas, Topeka, for Plaintiff-Ap- cers would “trash” apartment during pellee. search, Mr. Carey gave them instruc- PORFILIO, McWILLIAMS, Before tions how on drug find related items. BALDOCK, Circuit Judges. The written consent to search autho- rized Sergeant William Reece “to have PORFILIO, Circuit Judge. conducted a complete prem- Carey Patrick J. was charged with one ises property located at 3225 Canter- of possessing count a computer hard drive bury Manhattan, # KS 66503.” It fur- that contained three or more images of ther provided, “I freely do voluntarily child produced pornography with materials consent and agree any that property under shipped in interstate commerce. See 18 my control ... may be by removed 2252A(a)(5)(B) (1996).1 § U.S.C. Follow- officers ... if said property shall essen- ing a plea conditional guilty, he appeals tial in the proof of the any commission of an order of the district court denying his crime in violation of the Laws of the Unit- to suppress motion ” material seized ed States.... consent, Armed with this from his computer grounds on it was taken the officers apartment returned as the result a general, warrantless night and quantities discovered cocaine, search. He also contends his sentence was marijuana, and hallucinogenic mushrooms. illegal and the district court erred in fail- They also discovered and took comput- two ing depart downward from guideline ers, which believed would either be range, but we do reach these issues. subject to forfeiture or evidence of drug We conclude the motion to suppress should dealing. have granted been and reverse. were taken the police station and a warrant was by obtained I. officers allowing them to search the files Carey Mr. had been under investigation on the computers “names, telephone possible some time for sale posses- numbers, ledger receipts, addresses, and sion of cocaine. buys Controlled had other documentary evidence pertaining to made from him residence, at his and six the sale and distribution of controlled sub- weeks after purchase, the last police ob- stances.” Detective Lewis and computer tained warrant to arrest him. During technician searched contents of the arrest, course of the officers observed computers, first viewing the directories of in plain view a “bong,” a device for smok- both computers’ hard drives. They then ing marijuana, what appeared to be downloaded onto floppy disks printed marijuana in apartment. defendant’s the directories. Included in the directo- by items, Alerted thése a police officer ries were numerous files with sexually sug- asked Mr. Carey to consent ato search gestive titles and the label “JPG.”2 Lewis 1. As amended in the statute now ap- 2. Detective Lewis later testified at the time he plies any person knowingly possesses who file, discovered the first image JPG or he did disk "that image contains not know what it was experi- nor had he ever produced pornography” with materials enced an occasion in which the "JPG” label shipped in interstate commerce. See 18 by drug used disguise dealers to text files. (1998). § 2252A(a)(5)(B) U.S.C. stated, Because however, He image files contain could Carey was charged August pertinent drug investigation 1996 version applies of the statute in this such pictures hydroponic growth "a case. system and how it's up operate." set any another com- to search these as well as other the disks into files then inserted files searching copied began computer].” files contained puter [in His method Carey’s computers. from Mr. questioning by govern- Upon further as, “money, key words such enter ment, Detective Lewis retrenched and accounts, so forth” into com- people, file, he opened really stated until he each find “text-based” explorer to puter’s Thus, said, not know its contents. search pro- those This words. was restricted he did believe he drugs.” no files “related duced opening each JPG Undaunted, continued Yet, viewing copy file. hard encountered explore the directories and directory, disk the detective admitted with.” not familiar Un- files he “was some “phalanx” there JPG listed *4 computer he these files on the able view directory on the of the hard He drive.3 them a disk using, he downloaded viewed downloaded and know- computer. into another placed which he each of them He ing pictures. contained “immediately” able view then was He claimed, however, conducting “I wasn’t a “JPG file.” later described as what he that pornography, hap- search for child file, it this he discovered Upon opening pened to what these turned out be.” pornography. child contained hearing, At the close of the the district approxi- Detective Lewis downloaded any court from the bench. Without ruled forty-four JPG im- mately hundred or two motion, the findings, the court denied say: These files were transferred age files. feels ing: point, this the Court that “[a]t disks, only of which were portions nineteen Suppress the ... Motion to Defendant’s they that contained viewed to determine ... be—should be denied. And none the Although of pornography. child Court, of the that will be the order realiz- entirety, in its disks was viewed questions.” that are close No ing at “about five to seven” files- Lewis looked subsequent containing Then, written order find- viewing the on each disk. of ings of fact or conclusions law filed. in that fash- contents of the nineteen disks ion, the computers pur- he returned to looking his of for evi- II. original
sue
task
drug
dence of
transactions.
review
denial of a motion to
We
the
Carey
suppress
Mr.
moved to
the com-
for clear error.
See United
suppress
pornography.
child
puter files
(10th
1512,
Griffin,
v.
States
motion,
During
Detec-
hearing
Cir.1993). Reasonableness of a search is
although
discovery
tive Lewis stated
reviewed
novo. See United States v.
de
inadvertent,
completely
JPG files was
845,
18 F.3d
Eylicio-Montoya,
picture containing
first
when he saw the
Cir.1994).
(1)
Carey complains:
Mr.
developed probable
pornography,
child
exceeded the
computers
the same kind material
cause to believe
(2)
warrant,
scope of the
did
con
image
on the other
files.
present
(3)
apartment,
search of his
sent
therefore, he
why,
did
When asked
computers
of the
was unlawful be
seizure
the remaining
to search
obtain a
probable
cause.
cause
officers lacked
for child
he stat-
image files
only
address
the first issue.
We
arise,
ed,
my cap-
question
[a]nd
“that
Carey
argues
through
county
care of that
tain took
computers transformed the warrant into
ob-
office.” No warrant was
attorney’s
tained,
gener-'
warrant”
in a
“general
nonetheless contin-
and resulted
but the officer
illegal
he “had
al and
search of the
ued
search because
believed
"young."
on Detective
the word "teen” or
shown
detective
note
JPG files
sexually
drug
directory
featured
testified
or dis-
printout
Lewis’
dealers often obscure
names, many
suggestive
including
guise evidence of
drug activity.
their
obscene
The Fourth Amendment re
their files.
character was immediately apparent—
i.e.,
quires that a search warrant describe the
probable
officer had
cause to
with
things
particu
to be seized
sufficient
object
believe the
was contraband or
general exploratory
larity
prevent
crime;
(3)
rummaging
person’s belongings.
in a
had a lawful
right
object
access
States,
192,
Marron v.
275 U.S.
United
itself.
76,
(1927)
74,
(1) searching lawfully in a defendant’s position computers permit the officer was only ted the object view the search of which to seized in the files (2) “names, plain view; object’s the for incriminating telephone numbers, ledgers, back” “went only child addresses, other documenta- receipts, documents drug-related searehing for dis- the sale pertaining ry evidence hour conducting The a five substances.” controlled tribution files. thus circumscribed pornography scope of the trafficking. drug pertaining to evidence testimony Detective his infer from were files the argument government’s scope expanding he was knew Lewis it is unavailing because view in plain open sought he when his search them- files not the the files contents he was Moreover, point, at that JPG files. Lewis Detective seized. were which selves had the officers position same in the between distinguish at first could to search wanted they first been when he upon which JPG files and text related drug contents Indeed, search. word an unsuccessful had to They aware were evidence. file JPG the first open had he did so. These warrant and obtain search what to determine contents its examine suggest circumstances Thus, opened he until contained. file judicial without acting clearly he was knew suspect file, he did stated he JPG first his search he abandoned authority when best, At pornography. find child dealing. drug con- might suspected says he relating consti- activity what of some question pictures Although tain of com- dealing. context drug view” “plain tutes appears intriguing and files is puter however, suspi- his words, own In court, for this impression first opening an issue immediately upon changed cions to reach others, con- do not need we viewing many After file. first JPG by its own only “proba- had file, then this case Judging it here. the first tents JPG remaining were seized the items facts, to believe conclude cause” ble *6 Further, material. erotic similar by contained warrant. files not authorized admis- own the officer’s Thus, of in not and thus files in closed they were each time evident sion, plainly it is view.4 plain file, expected JPG subsequent opened in decision Unit- recent We do note not material pornography to find child 84, 1999 WL Turner, 169 F.3d v. ed States knowl- with this Armed drugs. related 1999)5 affirming Feb.26, (1st Cir. 90209 JPG every open continued he still edge, of several suppression court’s the district Under expectations. his to confirm file on found pornography of child images say the circumstances, cannot these Turner, de- In computer. defendant’s inad- were files of those each of contents of a the victim was neighbor fendant’s Moreover, Detective vertently discovered. apartment, her in assault nighttime of the each opened as he clear made the defendant’s obtained officers evidence for looking not was files he JPG signs for apartment his search consent temporarily had He trafficking. drug for intruder more to look search abandoned not warrant did Because the warrant. inad- that he testimony officer's Given 4. files, ob view of those search during authorize his image vertently discovered first governmental improper aas result activi- tained drug relating to documents seeing what result as a opening, subsequent not to the holding is confined ty, our view.). knew, United States plain legitimately or the officer Cf. of numerous opening (S.D.Fla. Abbell, 520-21 F.Supp. images contain would expected, least at (In where 1995) prosecution a criminal pornography. child data generated computer large volume office, spe law the defendant’s Maxwell, seized 45 M.J. United also See docu whether determine 1996) (Where cial master (U.S. Forces Armed the search responsive data were ments transport computer personal used colonel exception fell within warrant plain obscenity child plain as the requirement such warrant the search of apply doctrine did view doctrine.). view listed name screen computer under assault itself. While searching apart- were investigating a sexual assault or ment, an officer noticed the defendant’s attempted rape.
computer screen suddenly illuminate with Id. a photograph of a nude woman resembling Turner, As in the government ar the assault n victim. He then sat at the gues here the consent Mr. Carey gave to computer and itemized the files most re- the search of apartment carried over to cently accessed. Several of the files had the contents of his computer files. We the “suffix ‘.jpg,’ denoting a file containing disagree. The arresting officer sought a photograph.” at Id. 86. The officer permission to search only the “premises opened these files and found photographs and property located at 3225 Canterbury of nude blonde women bondage. After Thus, # 10.” the scope of the consensual calling district attorney’s office for search was confined to the apartment it guidance, copied these adult self. The seizure of the computer was pornography files onto a floppy disk and permitted by Carey’s consent “that then searched the computer hard drive for any property under my control ... may be other incriminating files. He opened a removed the officers ... if proper said folder “G-Images” labeled and “noted sev- ty shall be essential in the proof of the eral files with such names as ‘young’ and ” ” commission of any crime.... This ‘young with breasts.’ Id. After opening agreement, by terms, its own did not per one files and observing por- mit the officer open the files contained nography, the officer shut down and in the computer, a fact he obviously recog seized the computer, and the defendant nized because he obtained a proper war was charged in a single count of possess- rant to search for drug related evidence ing child pornography. government The before began opening files. contended the “consent was so broad —au- thorizing search of all [the constrained the officer to defendant’s] ‘personal search for property’ items it that it listed. necessarily en- compassed States v. Reyes, a comprehensive of his Cir.1986). In our files.” But judgment, Id. First Cir- case cuit turns upon the affirmed the suppression fact that each of the com- the files puter files grounds pornographic “the consent material was la- *7 not beled authorize the “JPG” search and most of the computer” a sexually featured suggestive because “an title. objectively Certainly reasonable person opening the first assessing in file context the and exchange seeing image an between [the and defendant] the searching detectives would have aware—in understood that the advance opening the intended remain- ing search in files—what only places where an label meant. When intruder opened hastily might have disposed subsequent files, of any physi- knew he cal was not going of the ... find items assault ....” related to drug Id. at activity 88. specified The court also held: warrant, in the just like the officer in Turner
We cannot
knew he was
accept
the government’s con-
going to find
tention
evidence of
that
assault as
sexually suggestive im-
authorized
the consent.
age which suddenly came into “plain
on
view”
the computer screen rendered
At oral argument
the government sug-
[the defendant]^ computer files
gested
“fair
this situation is similar to an officer
game” under a consensual
simply
having a warrant
to search a file cabinet
because the [neighbor’s] assault had a
many
drawers. Although each
sexual component....
The critical
labeled,
con- drawer is
he had to open a drawer
sideration in this regard is that the
de-
find out whether the label was mislead-
tectives never announced, before
and
ing
[the
the drawer contained the objects
gave
defendant]
his consent,
that
of the search. While the
likely,
is
scenario
ig-
doctrines
Amendment
Fourth
of this
the facts
representative
is not
it
com-
modern
of massive
the realities
nore
ambigu-
which
in
a case
is
This
case.
courts
Alternatively,
Id.
storage.”
puter
in the
contained
were
labeled
ously
contain
often
computers
acknowledge
can
case in
not a
is
It
directory.
drive
hard
See United
“intermingled
documents.”
file
each
open
had
officers
which
591, 595-96
Tamura,
States
contents.
its
discovering
before
drawer
law
Cir.1982).6
this
(9th
approach,
Under
theory,
cabinet
file
employ
if
Even
the interme-
engage
must
enforcement
makes
testimony of
of docu-
types
sorting various
step of
diate
he stated
because
inapposite
analogy
speci-
ones
only search
then
ments
cause
probable
had
knew,
at least
or
come
officers
Where
in warrant.
fied
a
labeled
properly
know,
drawer
each
intermingled
so
documents
relevant
across
clearly described
were
its contents
they cannot
irrelevant documents
with
label.
site, the officers
at the
feasibly be sorted
pending
the documents
involves
or hold
may seal
Further,
this case
conditions
magistrate
aby
file
approval
cabi
computer,
in a
stored
images
a further
on
limitations
“Since
inadequate.
may
analogy
net
id. at 596.7
the documents.
through
a
likely to contain
storage
electronic
offi-
require
then
should
magistrate
The
variety of information
quantity
greater
type
which
in warrant
specify
cers
method, com
storage
any previous
than
sought.8
are
searches
targets
tempting
make
puters
Raphael
case,
information.”
offi
incriminating
Carey’s
in Mr.
Because
Comput
from his
computers
Seizures
Winick,
removed
Searches
had
cers
Data,
J.L. &
circum
“exigent
Harv.
control,
was no
there
Computer
ers and
offi
permit
reason
(1994). Relying
analogies
practical
stance or
75, 104
Tech.
all of
stored
through
may
rummage
cers to
file cabinets
or
containers
to closed
rela-
or its
its relevance
regardless
data
complex area
“oversimplify
courts
lead
Winick,
and Seizures
Searches
Raphael
.
Tamura,
8.See
595-
694 F.2d
6. Data,
J.L.
Computer
8 Harv.
Computers
Cir.1982),
of all of
seizure
held
(1994)
("Computer programs
during a relevant
documents
& Tech.
corporation’s
limiting seizure
variety of
than
formats.
period,
rather
in wide
time
store information
in a search
described
of documents
categories
spreadsheets
example, most
financial
For
gov-
despite
was unreasonable
completely
different
in a
store information
documents
irrelevant
contention
ernment’s
,
programs.
processing
word
than do
format
documents.
described
intermingled with
were
reasonably familiar
investigator
Similarly, an
the context
arise in
did not
Although this case
distinguish
be able
should
with
search,
concept of
we find
aof
files, tele-
mail
electronic
programs,
database
helpful here.
“intermingled
documents"
audio files
visual
stored
phone lists and
Carey
Where
contends
each other.
government
records,
possessed
had he
enforcement
guilty
law
"equally
only financial
have
seeks
book, maga
aof
form
to search
in the
allowed
material
not be
this
zine,
should
*8
officers
in And
a film.’’
or
processing
or word
telephone
lists
through
1986),
(10th
380,
we
Cir.
383
Reyes, 798
F.2d
to be-
reason
showing of some
absent
files
technology
modern
age of
"in the
explained
rec-
the financial
contain
files
lieve that
availability
various
commercial
type of
relying on
Where
sought.
ords
items,
warrant
could
forms
scope of the
fails
narrow
files
pre
exactitude
with
describe
expected
re-
should
magistrate
sufficiently,
search
take”
would
records
form
cise
by the
proposed
search methods
view the
cassettes,
found in
might be
drug records
Tamura,
officers.");
see also
investigating
cards,
cancelled
accounts
leases
(”[w]e recently approved
n. 4.
at 596
belief that
our
stated
We have
checks.
officers
whereby
enforcement
law
procedure
spe
requires
storage capacity of
to facilitate
lay
as consultants
bring
experts
in
intend
com
we do
approach,
cial
it
documents
requirement
for
search
the on-site
particularity
on the
ment
Rather,
matter”)
(cita-
subject
media.
contemporary
complex or technical
all
applies to
searches
omitted).
specifically
applies
discussion
our
tions
enforcement
lawin
computers held
of files
custody.
tion to the information specified in the
no findings on
question,
this
are
Winick,
warrant.”
Harv.
J.L. & Tech. at
not wont to opine on what would be an
105.9 With the computers and
in
data
point
immaterial
this
in
appeal.
custody,
their
law enforcement
can
officers
REVERSED and
REMANDED
fur-
generally employ several methods to avoid
ther
proceedings
accordance with this
searching
type
not identified in
opinion.
observing
warrant:
types
ti
tles listed
the directory,
doing
key
BALDOCK, Circuit Judge, concurring.
terms,
word
relevant
or reading
portions of each file stored
the memory.
join
I
in the court’s opinion, but write
id.
case,
at 107.
In this
separately to emphasize that the questions
Lewis and the computer technician did list presented in this case
extremely
are
close
files on the directory and also performed a
and,
calls
my
opinion,
totally
are
fact
search,
key word
but
did not use the
driven.
gained
information
limit
their search to
First, absent
specified
items
warrant,
in the
Detective Lewis’ testimo-
nor did
ny,
they obtain a
I
new
warrant
not suppress
authorizing a
the evidence.
search for child pornography.
“The plain view
may
doctrine
not be used
to extend a general exploratory search
III.
object
one
to another until something
We must conclude Detective Lewis ex-
incriminating at last emerges.” Coolidge
ceeded the scope of the warrant
in this v. New Hampshire,
403 U.S.
case. His seizure of the evidence upon
S.Ct.
(1971).
nography. The petition rehearing
denied.
DOME CORPORATION, an Oklahoma
Corporation; Neodyne Drilling Corpo
ration, an Oklahoma Corporation; WATSON,
THOMAS G. as an individ
ual and as a Director and Officer of Corporation
Dome Oil Neodyne
Drilling Corporation Oil Cor — Dome poration; Johns, Thomas C. an indi
vidual, Plaintiffs,
Compton KENNARD, K. as an individu
al and anas Officer and as Director of
South Pump Service, Florida Inc., a Corporation Florida Florida — South
Pump Service, Inc., Defendant,
Gary Hermann, individual, an
Defendant-Appellant,
The Cincinnati Company, Insurance
Ohio Insurance Company; Auto-Own
ers Insurance Company, Third-Party-
Defendants-Appellees.
No. 98-5001.
United States Court of Appeals,
Tenth Circuit.
April