10th Circuit upholds child porn conviction based on evidence seized under drug-related warrant
U.S v. Burgess, No. 08-8053 (10th Cir. Aug. 11, 2009)
David Burgess was convicted in Wyoming for “knowing transportation of child pornography across state lines in violation of 18 U.S.C. §§ 2252A(a)(1) and (b)(1) and knowing possession of child pornography transported in interstate commerce in violation of 18 U.S.C.§§ 2252A(a)(5)(B) and (b)(2).” On appeal Burgess challenges the “scope” of the warrant, based on drug-related evidence discovered in the course of a traffic stop, that led to a search of his motor home.
The warrant, in relevant part, authorized a search of “computer records . . . limited to the kind of drug and drug trafficking information likely to be found on a computer.” According to the court and to the investigating officers, such a search could “reasonably include ‘trophy photos’” (the requesting officer included “photographs of coconspirators or photographs of illegal narcotics” in his request). The court held the warrant and the search of the computer was valid. Burgess, however, argued that the search was in violation of 10th’s Circuit own 4th Amendment ruling in United States v. Carey, 172 F.3d 1268, 1275 (10th Cir. 1999) in which an officer, upon discovering images of child pornography, “temporarily abandoned” his warrant-related search and began searching for more images of child pornography. In that case the 10th Circuit held that “the extension of the search to locate further evidence of child pornography exceeded the scope of the warrant authorizing a search for evidence of drug crimes.” In the instant case, however, the investigating officer “immediately stopped the preview upon seeing an instance of suspected child pornography and obtained another warrant to search for pornography.” Therefore, there is no 4th Amendment violation.
In the opinion there is some discussion of the methodology of searches for “computer records,” in particular of those involving images:
Respect for legitimate rights to privacy in papers and effects requires an officer executing a search warrant to first look in the most obvious places and as it becomes necessary to progressively move from the obvious to the obscure . . . But in the end, there may be no practical substitute for actually looking in many (perhaps all) folders and sometimes at the documents contained within those folders, and that is true whether the search is of computer files or physical files. It is particularly true with image files.
The investigating officer used a program called EnCase to copy the hard drives; the program allows content previews during the lengthy copying process. This was how the officer discovered the child pornography. Regarding this methodology in the context of the 4th Amendment, the court wrote:
First, Hughes was not previewing all files, only image files and his search was properly targeted . . . Second, had Hughes omitted the preview and, instead, waited to do a structured search on the copied files his search for “trophy photos” would eventually and inevitably have led to discovery of the charged images . . . Third, Hughes immediately closed the gallery view when he observed a possible criminal violation . . . Fourth, in general a structured approach may provide only the illusion of protecting privacy interests . . . ultimately resulting in opening most files to make sure they were not deceptively labeled.
COMMENTS
