from the United States District Court for the District of New
Mexico (D.C. No. 1:13-CR-01876-JB-1)
A. Walz, Walz and Associates, P.C., Albuquerque, New Mexico
Kristopher N. Houghton, Assistant United States Attorney
(John C. Anderson, United States Attorney, with him on the
brief), Albuquerque, New Mexico for Plaintiff-Appellee.
LUCERO, EBEL, and PHILLIPS, Circuit Judges.
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.
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.
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.
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").
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.
The First Search
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.
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.
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.
seized thirteen CDs in total from Loera's residence: four
contained child pornography images and nine contained
evidence of computer fraud. In addition to the thirteen CDs,
the FBI seized computers, external hard drives, an iPhone,
and an iPad.
The Second Search
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.
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
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").
Searches Pursuant to the Second Warrant
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.
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.
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.
Standard of Review
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
Validity of the Government's Application for ...