United States v. Burgess, ___ F.3d ___, 2009 WL 2436674 (10th Cir. 2009).
Known Hell’s Angels’ motor home stopped for expired plate on trailer. A drug dog alerts, cops smell pot, defendant (D) says can’t search--get a warrant. Cop enters anyway and finds pot and cocaine, sees a laptop, D says pot is his. D is arrested. Cops get warrant to search entire motor home (alleges that drug dealers keep photos of associates!). Affidavit incorporated into the warrant outlines all sorts of drug stuff, and “computer records.” In executing warrant cops seized two hard drives and laptop. Agent used a preview function as the hard drives were being quick copied to look for fotos of drugs and money, and saw a foto of child sexual abuse. He immediately stopped looking and got a new warrant to search for child SA. D tried on 2 counts of possessing child porn, a number of fotos come in to evidence to which he objects, he is convicted, objects to GL, is sentenced to 180 months.
1. Suppression: 10th ducks deciding whether search of the hard drives could be incident to D’s arrest for drugs, thereby obviating need for warrant and justifying what D claims was an overbroad warrant. It signals that it might just buy the government’s argument that a computer is no different than a suitcase that may be searched incident to arrest, but notes that Gant changes the landscape to some extent.
Warrant not overly broad though a close question. There was sufficient nexus between and context for the drug trafficking crime being investigated and search of computer records. Heavy emphasis placed on executing officer’s understanding of the search being limited to drug info. Regarding scope and the necessity of a computer search strategy being included in the warrant in order to guard against uncovering of irrelevant material: court distinguishes Carey and reminds that the inquiry is fact intensive. Dancing around it, the court largely rejects requiring a search strategy being spelled out ahead of time, but it might depend on case.
Finally, even if warrant was deficient, Leon good faith would allow the evidence in. And, no plain error in searching the hard drives after the warrant expired. Probable cause had not expired.
2. Evidence: 16 images beyond the 4 to which D stipulated were admitted. D’s defense was that he did not know the stipulated (4) images were on his (first) hard drive. Government could admit the 4 additional images with text that were from the second hard drive of the same child as in the 4 stipulated to images under 404(b) to show inferentially that D took the stipulated 4 pictures and knew they were on his drive. The evidence does not need to be vital to the government’s case to withstand a 403 balancing. The remaining additional 12 images, though a closer call (especially the sheer number of images), were admissible to impeach testimony of girl’s guardian, D’s friend, who said that the girl was under her care at all times and D could not have taken the pictures.
3. Sentence: Two point reduction under USSG Sec. 2G2.2 (b)(1) for receipt and non-trafficking in child porn did not apply to D since he was convicted of transporting porn over state lines.
United States v. Charles, ___ F.3d ___, 2009 WL 2436663 (10th Cir. 2009).
Reasonable suspicion, if not probable cause to detain and search defendant who scuffled with police as he pushed them on a stair well. Cops found a gun in his waistband.
Defendant, sentenced as a career offender, challenged characterizing as a crime of violence his conviction for a walkaway from a halfway house. Case remanded for re-sentencing in light of Chambers, for the district court to analyze whether that conviction qualifies as a crime of violence.
Known Hell’s Angels’ motor home stopped for expired plate on trailer. A drug dog alerts, cops smell pot, defendant (D) says can’t search--get a warrant. Cop enters anyway and finds pot and cocaine, sees a laptop, D says pot is his. D is arrested. Cops get warrant to search entire motor home (alleges that drug dealers keep photos of associates!). Affidavit incorporated into the warrant outlines all sorts of drug stuff, and “computer records.” In executing warrant cops seized two hard drives and laptop. Agent used a preview function as the hard drives were being quick copied to look for fotos of drugs and money, and saw a foto of child sexual abuse. He immediately stopped looking and got a new warrant to search for child SA. D tried on 2 counts of possessing child porn, a number of fotos come in to evidence to which he objects, he is convicted, objects to GL, is sentenced to 180 months.
1. Suppression: 10th ducks deciding whether search of the hard drives could be incident to D’s arrest for drugs, thereby obviating need for warrant and justifying what D claims was an overbroad warrant. It signals that it might just buy the government’s argument that a computer is no different than a suitcase that may be searched incident to arrest, but notes that Gant changes the landscape to some extent.
Warrant not overly broad though a close question. There was sufficient nexus between and context for the drug trafficking crime being investigated and search of computer records. Heavy emphasis placed on executing officer’s understanding of the search being limited to drug info. Regarding scope and the necessity of a computer search strategy being included in the warrant in order to guard against uncovering of irrelevant material: court distinguishes Carey and reminds that the inquiry is fact intensive. Dancing around it, the court largely rejects requiring a search strategy being spelled out ahead of time, but it might depend on case.
Finally, even if warrant was deficient, Leon good faith would allow the evidence in. And, no plain error in searching the hard drives after the warrant expired. Probable cause had not expired.
2. Evidence: 16 images beyond the 4 to which D stipulated were admitted. D’s defense was that he did not know the stipulated (4) images were on his (first) hard drive. Government could admit the 4 additional images with text that were from the second hard drive of the same child as in the 4 stipulated to images under 404(b) to show inferentially that D took the stipulated 4 pictures and knew they were on his drive. The evidence does not need to be vital to the government’s case to withstand a 403 balancing. The remaining additional 12 images, though a closer call (especially the sheer number of images), were admissible to impeach testimony of girl’s guardian, D’s friend, who said that the girl was under her care at all times and D could not have taken the pictures.
3. Sentence: Two point reduction under USSG Sec. 2G2.2 (b)(1) for receipt and non-trafficking in child porn did not apply to D since he was convicted of transporting porn over state lines.
United States v. Charles, ___ F.3d ___, 2009 WL 2436663 (10th Cir. 2009).
Reasonable suspicion, if not probable cause to detain and search defendant who scuffled with police as he pushed them on a stair well. Cops found a gun in his waistband.
Defendant, sentenced as a career offender, challenged characterizing as a crime of violence his conviction for a walkaway from a halfway house. Case remanded for re-sentencing in light of Chambers, for the district court to analyze whether that conviction qualifies as a crime of violence.
posted by Anonymous at 10:26 AM
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