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United States v. Loera

United States Court of Appeals, Tenth Circuit

May 13, 2019

UNITED STATES OF AMERICA Plaintiff - Appellee,
JASON LOERA, Defendant-Appellant.

          Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:13-CR-01876-JB-1)

          Jerry A. Walz, Walz and Associates, P.C., Albuquerque, New Mexico for Defendant-Appellant.

          Kristopher N. Houghton, Assistant United States Attorney (John C. Anderson, United States Attorney, with him on the brief), Albuquerque, New Mexico for Plaintiff-Appellee.

          Before LUCERO, EBEL, and PHILLIPS, Circuit Judges.


         This appeal requires us to apply Fourth Amendment principles to a situation where a police officer executing a warrant to search an electronic storage device for evidence of one crime discovers evidence of other criminal activity. Here, while executing a warrant to search Jason Loera's home for evidence of computer fraud, FBI agents discovered child pornography on four of Loera's CDs. Despite discovering the pornography, the agents continued their search for evidence of computer fraud-one agent continued to search the CDs that were found to contain some child pornography and a second agent searched other electronic devices belonging to Loera, not including those particular CDs (Search 1). After the agents finished their on-site search, they seized a number of electronic devices that appeared to contain evidence of computer fraud, plus the four CDs that were found to contain child pornography, and then brought the seized items back to their office. One week later, one of the agents reopened the CDs that he knew contained some child pornography so that he could describe a few pornographic images in an affidavit requesting a (second) warrant to search all of the seized electronic devices for child pornography (Search 2). A magistrate judge issued the warrant, and, upon executing it through two searches, the agents found more child pornography.

         In the subsequent prosecution against him for possessing child pornography, Loera filed a motion to suppress the evidence seized pursuant to each search, arguing that the searches violated the Fourth Amendment. On denial of his motion, Loera pled guilty to receipt of child pornography but preserved his right to appeal that denial. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the denial of Loera's motion to suppress. We hold, among other things, that the Fourth Amendment does not require police officers to stop executing an electronic search warrant when they discover evidence of an ongoing crime outside the scope of the warrant, so long as their search remains directed at uncovering evidence specified in that warrant.

         I. BACKGROUND

         This case involves several police searches governed by the Fourth Amendment. The Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Generally, for a search to be reasonable, it must be authorized by a warrant that "particularly" describes "the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. Once officers obtain a sufficiently particular warrant, they must execute it according to the warrant's terms. Horton v. California, 496 U.S. 128, 140 (1990). The following undisputed facts explain how the warrant-based searches in this case arose.

         In 2012, the FBI began investigating Jason Loera for illegally intercepting emails intended for then-sitting New Mexico Governor Susana Martinez and her staff in violation of 18 U.S.C. § 2511 (illegal interception) and 18 U.S.C. § 1030 (computer fraud) [collectively, "computer fraud"]. As part of that investigation (more details of which can be found in the district court's opinion United States v. Loera, 59 F.Supp.3d 1089, 1095-1108 (D.N.M. 2014)), FBI agents applied for and received a warrant to search Loera's residence for computer fraud, including any such evidence residing on electronic devices or storage media ("the first warrant").

         The first warrant authorized FBI agents to search and seize, in relevant part, "All records, in any form, relating to violations of [computer fraud], involving Jason Loera." ROA Vol. I at 37. The warrant defined the terms "records" and "information" as including: "all of the foregoing items of evidence in whatever forms and by whatever means they may have been created or stored, including any form of computer or electronic storage (such as hard disks or other media that can store data)." Id. at 39. In a separate provision, the warrant sought "Any computers, cell phones, and/or electronic media that could have been used as a means to commit the offenses described on the warrant." Id. at 87. Finally, for any electronic device, whether it was used to commit the offenses or simply had relevant records stored on it, the warrant permitted the agents to search and seize evidence of who used, owned, or controlled the device, such as "configuration files . . . documents, browsing history . . . photographs, and correspondence . . . ." Id. at 38.

         A. The First Search

         On November 20, 2012, FBI agents including Agent Aaron Cravens and Special Agent Brian Nishida executed the first search warrant. They discovered a large volume of electronic media in Loera's residence, including CDs, DVDs, laptop computers, external hard drives, a USB flash drive, an iPhone, and an iPad. Cravens and Nishida were responsible for "previewing" the CDs at Loera's residence to ensure that the FBI seized only those CDs that contained information relevant to the authorized investigation. ROA Vol. II at 53, 58. The two agents split up the CDs between themselves and searched them separately.

         Cravens tried to view the files of the first CD using a program called FTK Imager, which would have allowed Cravens to limit his search to a particular type of file, for example, only image, text, or audio files. However, the program did not work. Consequently, Cravens opened the CD on a computer and used the "thumbnail view" to preview the files stored on it, meaning, he saw small images of the files, the file names, and the file types in a vertical list that he had to scroll through to see in its entirety. Although Cravens believed he had authority under the first warrant to view the entire contents of the CD, Cravens used the thumbnail-image view to fast-track his search. He would scroll past irrelevant files but "click[] on anything that didn't appear correct, or any documents" to open them. Id. at 92. While Cravens was "scrolling down through the images or files . . . on the CDs, [he] found what looked like a nude child." Id. at 60. He opened the file to confirm that it was an image of child pornography. After determining that it was, Cravens ejected the CD from his computer, set it aside, and alerted Agent Nishida and the FBI agent in charge of Loera's case. Then, Cravens searched the rest of the CDs assigned to him for evidence of computer fraud. Cravens later found a child pornography image on a second CD. Just as he did with the first, Cravens set the CD aside after discovering the illegal images and did not open any other files on that CD.

         Agent Nishida took a different approach to his search. He previewed the files on his assigned CDs using the "details view" of Windows Explorer, meaning that he saw a list of files, file names, and last-modified dates of those files, but not pictures associated with the files. Id. at 157. For his search of the CDs, or "triage," as he called it, Nishida would open two or three files on each CD and then determine from that sample whether the CD should be seized pursuant to the warrant. Id. at 160. If Nishida found something he believed might be responsive to the warrant in the files that he sampled, he would set the CD aside to be reviewed off-site. As he was sampling files, Nishida found child pornography on two CDs. Unlike Cravens, Nishida did not cease his search of those CDs after discovering child pornography; he continued sampling files on the CDs to determine if they contained information that was responsive to the warrant.

         The FBI seized thirteen CDs in total from Loera's residence: four contained child pornography images and nine contained evidence of computer fraud.[1] In addition to the thirteen CDs, the FBI seized computers, external hard drives, an iPhone, and an iPad.

         B. The Second Search

         One week later, on November 27, 2012, Cravens decided to apply for a search warrant to search the items seized from Loera's residence for child pornography. Cravens wanted to include in his warrant affidavit a detailed description of one child pornography image from each of the four CDs on which he and Nishida had found child pornography during their on-site preview. Consequently, Cravens opened each of the four CDs, viewing several images on each, to find child pornography images that he could accurately describe. Viewing the photos and drafting the affidavit took a total of two-and-a-half hours. However, Cravens testified before the district court that he did not spend "anywhere near the two-and-a-half hours" actually looking at photos on the CDs. Id. at 74-75.

         Cravens' affidavit included two sections. In Section I, Cravens described his training and experience with computers and child pornography. In Section II, Cravens explained the details of the FBI's investigation of Loera that led to the agent's discovery of child pornography on the CDs in Loera's residence. In particular, paragraph 21 described in general terms how Cravens discovered the child pornography:

21. In the process of executing this warrant, an FBI certified computer forensic examiner and a computer analysis response team (CART) technician previewed the loose media located during the search (e.g., thumb drives, CD-Rs, DVD-Rs, memory cards, etc.) for evidence relevant to the original unrelated investigation. During the preview, the examiners identified four writable CDs which appeared to contain images of child pornography. The CDs were seized and placed in the evidence control room at the local FBI office.

ROA Vol. I at 120. In paragraph 23, Cravens explained that on November 27, 2012, he "reviewed the four CDs . . . that were believed to contain child pornography," id. at 121, and that "[d]uring the review of the CDs, [he] observed multiple pictures of children many of which are in various states of dress," id. Then, in paragraphs 24-27, Cravens provided a detailed description of one image from each CD that depicted a minor engaged in sexually explicit conduct. Cravens' descriptions included the apparent age of the minor and the conduct depicted. On November 29, 2012, based on Cravens' affidavit, a federal magistrate judge approved a warrant to search the thirteen CDs and six other electronic devices that were seized from Loera's residence for child pornography ("the second warrant").

         C. Searches Pursuant to the Second Warrant

         Agent Nishida executed the second warrant on two separate dates. In December 2012, Nishida searched Loera's laptop pursuant to both the first and second warrants, looking for evidence of computer fraud and child pornography. He discovered more than 730 child pornography images on Loera's laptop. In April 2013, Nishida searched the four CDs seized from Loera's residence for child pornography pursuant to the second warrant. He discovered approximately 330 images and two movies of child pornography on those CDs.

         D. Proceedings Below

         A federal grand jury indicted Loera on several counts of possessing child pornography that implicated the images found on both his laptop and his CDs. Loera filed a motion to suppress that child pornography evidence, and the district court denied the motion. Loera filed a motion for reconsideration, which the district court also denied. Following that denial, Loera pled guilty to one count of knowingly receiving child pornography in violation of 18 U.S.C. §§ 2252(a)(2), 2252(b)(1), and 2256, pursuant to a plea agreement, but he reserved the right to appeal the denial of his motions.

         On appeal, Loera argues that the district court should have suppressed the child pornography evidence discovered during the first search, the second search, and the searches conducted pursuant to the second warrant because, according to Loera, each search was unlawful. Loera argues that the first search exceeded the scope of the first warrant, the second search exceeded the scope of the first warrant, and the last two searches, while authorized by the second warrant, were unlawful because that warrant was invalid. Additionally, Loera maintains that none of the exceptions to the warrant requirement apply to the searches in this case. We conclude that the first search was lawful, but we agree with Loera that the remaining searches were unlawful. Nevertheless, we AFFIRM the district court's denial of Loera's motion to suppress and motion to reconsider under the inevitable discovery doctrine.


         A. Standard of Review

         "When reviewing the district court's denial of a motion to suppress, we view the evidence in the light most favorable to the government and accept the district court's factual findings unless they are clearly erroneous," United States v. Grimmett, 439 F.3d 1263, 1268 (10th Cir. 2006), but "[t]he ultimate question of reasonableness under the Fourth Amendment is a legal conclusion that we review de novo." Id. Accordingly, de novo review applies to the issues we address in this opinion, including, the scope of a search warrant, United States v. Angelos, 433 F.3d 738, 745 (10th Cir. 2006), the sufficiency of a search warrant, United States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir. 2000), the applicability of the good-faith exception, id., and the applicability of the inevitable discovery doctrine, United States v. Christy, 739 F.3d 534, 540 (10th Cir. 2014).

         B. Validity of the Government's Application for ...

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