United States v. Corleto ( 2022 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 21-1326
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    ROBERT CORLETO,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF NEW HAMPSHIRE
    [Hon. Paul J. Barbadoro, U.S. District Judge]
    Before
    Kayatta, Lipez, and Howard,
    Circuit Judges.
    Mark G. Miliotis, with whom Elliot M. Weinstein was on brief,
    for appellant.
    Seth R. Aframe, Assistant United States Attorney, with whom
    John J. Farley, United States Attorney, was on brief, for appellee.
    December 28, 2022
    KAYATTA, Circuit Judge.      After the district court denied
    Robert Corleto's motion to suppress evidence collected during the
    investigation that led to his arrest, he pled guilty to one count
    of sexual exploitation of a minor.      In so doing, he preserved his
    right to appeal the denial of his motion to suppress.         For the
    following reasons, we affirm the judgment of the district court.
    I.
    For the purposes of this appeal, "[w]e recount the facts
    in the light most favorable to the district court's ruling on the
    motion to suppress, but only to the extent that they have support
    in the record and are not clearly erroneous."        United States v.
    Dubose, 
    579 F.3d 117
    , 120 (1st Cir. 2009) (quoting United States
    v. Holloway, 
    499 F.3d 114
    , 115 (1st Cir. 2007)).     Although Corleto
    takes issue with some of the district court's factual findings, he
    develops no argument that these findings were clearly erroneous.
    Any such argument is thus waived.       See United States v. Zannino,
    
    895 F.2d 1
    , 17 (1st Cir. 1990).
    A.
    FBI Special Agent Timothy DeMann applied for a warrant
    to search Corleto's residence and any vehicles registered to that
    residence.   In his supporting affidavit, DeMann explained that on
    March 18, 2019, an undercover FBI task force officer used the KIK
    Messenger app to chat with a person ("the target") who claimed to
    use KIK to communicate with a "12 year-old slave" who did whatever
    - 2 -
    the target asked.    The target ultimately connected the undercover
    agent and the purported minor in a live group chat, and the target
    directed the minor to send photos of herself in her underwear and,
    ultimately, proof of her masturbating.      Asked by the undercover
    agent if he had past photos of the purported minor, the target
    sent an image showing nail polish that seemed to match that seen
    in the live chat images.
    That same day, the FBI sent an emergency request to KIK
    seeking the subscriber identification and IP access information
    associated with the target's KIK username.           KIK's responsive
    disclosures included IP addresses from March 16, 2019, through
    March 18, 2019, and indicated that the target was using an iPhone.
    The FBI focused on one frequently used IP address, which was
    assigned to Comcast.   The FBI sent an emergency request to Comcast
    seeking subscriber information for that IP address.            Comcast
    identified the subscriber as Nicole Corleto and provided the
    physical service address as a location on Elmwood Drive in Hudson,
    New Hampshire.      Public records indicated that Robert Corleto
    resided there, and that a 2016 blue Chevy Equinox and a 2001 white
    Ford F150 were registered at that address to Nicole and Robert
    Corleto, respectively.
    After   relating   this   information,   DeMann's   affidavit
    described the likelihood that a "computer or storage medium" found
    at the Elmwood Drive address would contain contraband and/or
    - 3 -
    evidence of crimes, "[b]ased on [his] knowledge, training, and
    experience."     Again invoking his "training and experience," DeMann
    asserted that the evidence he sought "is by its very nature
    portable" and may be stored on "extremely compact storage devices,"
    including   "smart      phones,"   and    that   "it   is   not    uncommon    for
    individuals to keep such media in multiple locations within their
    premises, including in outbuildings and motor vehicles."
    A magistrate judge issued a search and seizure warrant
    on March 19, 2019. As requested, the warrant authorized the search
    of the Elmwood Drive residence and "any vehicles registered to
    that address," including the F150 and the Equinox registered to
    Robert and Nicole Corleto, for, among other things, "records and
    visual depictions of minors engaged in sexually explicit conduct."
    The warrant also authorized the seizure of "[a]ny computer . . .
    that [was] or may have been used as a means to commit the offenses
    described   on    the    warrant,"   employing     a   broad      definition   of
    "computer" that included smartphones.
    B.
    That same day, DeMann and other FBI agents executed the
    search warrant for the Elmwood Drive address.                  When the agents
    arrived, Robert Corleto and his wife Nicole were in the process of
    leaving the residence's parking lot in the Equinox.                     Without
    drawing his gun, DeMann stopped the Equinox and identified himself.
    - 4 -
    DeMann approached the SUV's passenger side -- where Robert Corleto
    was seated -- and asked him to exit the vehicle.
    At   the   suppression    hearing,   DeMann   expressed   some
    uncertainty as to whether Corleto had the phone in his hand or in
    a pocket as he exited the car, ultimately concluding that it was
    in Corleto's hand.      Corleto agreed, and the district court so
    found.   After DeMann asked if Corleto could unlock the phone for
    him, Corleto opened his iPhone by pressing the "home" button and
    handed it to DeMann.1
    After DeMann and Corleto moved away from the car, DeMann
    explained that they had a warrant to search for evidence of child
    pornography.    DeMann then stepped away for a few moments, back to
    the vehicle, until Corleto motioned him over.       Unprompted, Corleto
    informed DeMann that everything the officer sought was on his
    phone.
    Agents nevertheless proceeded to execute the warrant by
    searching Corleto's residence.       At no point was Corleto handcuffed
    nor were any weapons drawn.          As the agents searched the home,
    Corleto reiterated to DeMann several times that his phone contained
    what the agents sought.      DeMann eventually suggested that they
    discuss things at the Hudson Police Department.          DeMann testified
    that he made that suggestion because the residence contained around
    1   The phone did not have a passcode or biometric fingerprint
    lock.
    - 5 -
    ten agents plus the Corletos, "and everybody [was] walking around,"
    there was "really no place to sit down," and DeMann "figured that
    the interview was going to have some sensitive . . . questions
    that I was going to be asking him."      DeMann testified that, at the
    station, he "could sit down," "take notes," and "record the
    interview."
    Corleto asked if he could take his truck, but it had yet
    to be searched.    Instead, DeMann drove Corleto to the station with
    Corleto seated in the front seat of DeMann's car.       Corleto was not
    handcuffed, and another agent sat in the backseat.
    Corleto was interviewed in a room at the station.         The
    interview was recorded in its entirety.       The door was open during
    parts of the interview, and Corleto was told multiple times that
    he was free to leave.2      Four different law enforcement officers,
    including     DeMann,   participated   in   various   portions   of   the
    interview. Corleto admitted, among other things, that he solicited
    sexual photographs from a twelve-year-old girl and had similar
    interactions with a "handful" of others.        In response to DeMann
    2  Near the start of the interview, DeMann told Corleto, "You
    are not under arrest. You are not in custody. At any point, if
    you want to leave, you're more than welcome. I'll drive you back
    to your house. No problem." About fifteen minutes later, during
    a round of questioning, DeMann again stated, "You're not in custody
    and you're free to go at any point, as we have explained." DeMann
    subsequently informed Corleto of this right once more during the
    interview.
    - 6 -
    asking whether there was "anything else you need to let us know,"
    Corleto stated, "It's all right there on the phone."
    When the interview ended, DeMann asked Corleto where he
    would like DeMann to drive him, and Corleto indicated that he
    wanted to go home.   DeMann drove him there, with Corleto again in
    the front seat.
    In due course, a grand jury returned an indictment
    charging Corleto with one count of sexual exploitation of a minor,
    
    18 U.S.C. § 2251
    (a), (e), and one count of transportation of child
    pornography, 18 U.S.C. § 2252A(a)(1), (b)(1).     Corleto moved to
    suppress the evidence obtained from the March 19 search, as well
    as the statements he made during the search and later at the
    station.   After holding an evidentiary hearing, the district court
    denied the motion.    Corleto then agreed with the government to
    plead guilty to sexual exploitation of a minor in exchange for the
    government dismissing the second count, though Corleto retained
    the right to appeal the denial of his suppression motion.   Corleto
    timely appealed on that basis.
    II.
    "In reviewing the denial of a motion to suppress, we
    review the district court's . . . conclusions of law, including
    its ultimate constitutional determinations, de novo."        United
    States v. Merritt, 
    945 F.3d 578
    , 583 (1st Cir. 2019).       We will
    uphold the denial "as long as 'any reasonable view of the evidence
    - 7 -
    supports the decision.'"        
    Id.
     (quoting United States v. Clark, 
    685 F.3d 72
    , 75 (1st Cir. 2012)).
    Corleto      advances    an    array      of   arguments     on    appeal.
    Invoking the Fourth Amendment, he argues that the warrant lacked
    sufficient nexus and particularity and that it was executed as an
    unlawful general warrant.           He also insists that his iPhone's
    seizure   exceeded   the    scope    of   the       warrant;     that   he    did   not
    consensually surrender the phone; that the phone's seizure was not
    within the plain-view exception to the warrant requirement; and
    that the search of the iPhone was improper.                    Finally, he argues
    that the use of statements made by him violated his Fifth Amendment
    right against self-incrimination.
    We   begin    with   Corleto's           challenges    to    the   warrant
    itself, then examine his claims about its execution, and conclude
    with his Fifth Amendment argument.
    A.
    Corleto   faults     DeMann        for    obtaining    the    warrant     by
    providing testimony about the general practices of those who
    possess child pornography, rather than specific information about
    Corleto's suspected activities.                Corleto further insists that
    "there was insufficient guidance applied for and obtained to limit
    the scope of the potential seizures of smart phones."                    He broadly
    frames these challenges in terms of the warrant's failure to
    establish a nexus between the place to be searched and the alleged
    - 8 -
    criminal   activity,    and   the    warrant's     lack   of   sufficient
    particularity.    We consider those challenges in turn.
    1.
    When evaluating a challenge to a warrant, "[w]e review
    a determination of probable cause de novo and look only to the
    '"facts and supported opinions" set out within the four corners of
    the affidavit.'"     United States v. Lindsey, 
    3 F.4th 32
    , 39 (1st
    Cir. 2021) (quoting United States v. Austin, 
    991 F.3d 51
    , 55 (1st
    Cir. 2021)).     A warrant application must show probable cause to
    believe both that "a crime has been committed" and that "enumerated
    evidence of the offense will be found at the place searched."        
    Id.
    (quoting United States v. Dixon, 
    787 F.3d 55
    , 59 (1st Cir. 2015)).
    The latter condition, known as the "nexus" requirement, demands a
    "'fair probability' -- not certainty -- that evidence of a crime
    will be found in a particular location."         
    Id.
     (quoting Dixon, 787
    F.3d at 60).     Nexus can be "inferred from the type of crime, the
    nature of the items sought, . . . and normal inferences as to where
    a criminal would hide [evidence of a crime]."        Id. (alterations in
    original) (quoting United States v. Rodrigue, 
    560 F.3d 29
    , 33 (1st
    Cir. 2009)).
    Corleto's appellate brief invokes the nexus requirement
    in an argument heading, but then declines to mention it again in
    the substantive argument.     Any argument about this requirement is
    therefore likely waived.      See Zannino, 
    895 F.2d at 17
    .      But even
    - 9 -
    if we considered his claim that there was insufficient evidence
    linking the Elmwood Drive residence and associated vehicles to the
    commission of a crime, we would find it unavailing.
    DeMann's affidavit described evidence that a KIK user
    had solicited and sent child pornography from an iPhone using an
    IP address affiliated with the Corleto residence.                       This amply
    supports the inference that one of the residents of the Elmwood
    Drive address used a portable smartphone to commit the stated crime
    and that there may have been evidence of this crime on such a phone
    at the specified address, which DeMann included in the definition
    of the premises to be searched.
    DeMann then relied on his training and experience in
    child-pornography investigations to express the hardly surprising
    opinion that "it is not uncommon" for                    individuals with        such
    contraband to store it on portable devices "in multiple locations
    within their premises, including . . . motor vehicles."                        Robert
    and    Nicole    Corleto       had    between    them   two   personal    vehicles
    registered to the Elmwood Drive residence, and the affidavit
    specifically included both vehicles in its definition of the
    premises to be searched.              We have established beyond any doubt
    "the   concept    that     a    law    enforcement      officer's    training     and
    experience      may   yield     insights   that    support    a     probable   cause
    determination."       United States v. Floyd, 
    740 F.3d 22
    , 35 (1st Cir.
    2014) (collecting cases); see, e.g., United States v. Larson, 952
    - 10 -
    F.3d 20, 24 (1st Cir. 2020) (citing with approval a warrant
    affidavit's statement that based on "[the agent's] experience as
    an investigator concerned with [child pornography], those who seek
    the forbidden pornography tend to keep the examples they obtain").
    Moreover,   such   an   inference   about   the   portable   storage   of
    contraband was particularly apt in this case, where law enforcement
    knew the target had already used a portable device to transmit
    saved images.
    In light of the foregoing facts and inferences, there
    can be no serious question that the warrant's affidavit established
    a sufficient nexus between the criminal activity and the places to
    be searched.3   See United States v. Corleto, No. 19-cr-76-1, 
    2020 WL 406357
    , at *8 (D.N.H. Jan. 23, 2020) ("The chain connecting the
    KIK account to a Comcast IP address and the IP address to Corleto's
    residence could hardly be clearer.").
    2.
    Corleto devotes comparatively more ink to the warrant's
    purported failure to "particularly describ[e] the place to be
    3  Corleto also cites several cases concerning warrantless
    searches of cell phones and warrantless collection of location
    data for the proposition that a search of his phone occurred. See
    Carpenter v. United States, 
    138 S. Ct. 2206
     (2018); Riley v.
    California, 
    573 U.S. 373
     (2014). But these opinions themselves
    have little in common with a case like this in which the government
    acknowledges that there was a search and obtained a warrant to
    seize the smartphone and search for, among other things, "records
    and visual depictions of minors engaged in sexually explicit
    conduct" and "information pertaining to KIK."
    - 11 -
    searched, and the persons or things to be seized."                U.S. Const.
    amend. IV.      This particularity requirement exists "to prevent
    wide-ranging general searches by the police."               United States v.
    Moss, 
    936 F.3d 52
    , 58 (1st Cir. 2019) (quoting United States v.
    Bonner, 
    808 F.2d 864
    , 866 (1st Cir. 1986)).               We have previously
    construed particularity as implicating two distinct demands.                 See
    United States v. Upham, 
    168 F.3d 532
    , 535 (1st Cir. 1999).                   "[A]
    valid warrant: (1) must supply enough information to guide and
    control the executing agent's judgment in selecting where to search
    and what to seize, and (2) cannot be too broad in the sense that
    it includes items that should not be seized."             Lindsey, 3 F.4th at
    40 (quoting United States v. Kuc, 
    737 F.3d 129
    , 133 (1st Cir.
    2013)).
    The warrant here included two attachments, corresponding
    to the "premises to be searched" and the "items to be seized."
    Attachment A     listed   the    Elmwood       Drive   address   and   its   two
    affiliated    vehicles    as    the   "subject    premises."      Attachment B
    described several categories of records sought that relate to child
    pornography, the use of KIK, and the occupancy of the Elmwood Drive
    address.     Attachment B included as search targets any computers
    that may have been used to commit the offense, listing several
    - 12 -
    further types of computer-specific evidence sought, and it defined
    "computer" to include "mobile 'smart' telephones."
    Corleto     argues     generally      that      this     warrant   was
    defective, invoking the specter of colonial-era general warrants.
    But he fails to explain how the warrant obtained here failed to
    constrain the agents' discretion or was overly broad.                  At his most
    specific, he claims that the warrant failed the first prong of
    particularity in that it "did not provide enough guidance to the
    agents   executing     the   [search]"     because    the    iPhone     ultimately
    seized "may have been either in his pocket or hand, or dropped on
    the ground."     But Corleto invokes no authority for the implied
    proposition that a warrant affidavit need predict with omniscient
    precision exactly where on the premises the evidence to be seized
    may be located.        And for good reason:          The authority is to the
    contrary.   See United States v. Banks, 
    556 F.3d 967
    , 973 (9th Cir.
    2009) ("The prohibition of general searches is not . . . a demand
    for precise ex ante knowledge of the location and content of
    evidence." (quoting United States v. Meek, 
    366 F.3d 705
    , 716 (9th
    Cir. 2004))); United States v. Ross, 
    456 U.S. 798
    , 820–21 (1982)
    ("[A] warrant that authorizes an officer to search a home for
    illegal weapons also provides authority to open closets, chests,
    drawers, and containers in which the weapon might be found.").
    To   the    extent    Corleto       intended    his      particularity
    argument    to   encompass       the    requirement's       demand     disfavoring
    - 13 -
    overbreadth, by contending that the warrant permitted the seizure
    of too wide a range of electronic devices (including his iPhone),
    we disagree.   In light of the evidence reported in the affidavit
    concerning the nature of the offense, the seizure and subsequent
    search of all such devices in the Corletos' residence and vehicles
    "was about the narrowest definable search and seizure reasonably
    likely to obtain the images."       Upham, 
    168 F.3d at 535
     (upholding
    a warrant seeking "[a]ny and all computer software and hardware"
    in a child-pornography investigation); see also United States v.
    McLellan, 
    792 F.3d 200
    , 213–14 (1st Cir. 2015) (upholding a warrant
    to search the electronic devices of three roommates living in a
    single-family dwelling where evidence of child pornography was
    linked to an IP address shared by all residents).
    Finally, Corleto also appears to argue that warrants
    targeting smartphones categorically require some greater standard
    of particularity than might otherwise be required.        But even were
    that so -- a matter we need not consider here -- this warrant was
    sufficiently particular to satisfy whatever heightened standard
    might   reasonably   apply   to    warrants   targeting   smartphones.
    Attachment B to the warrant affidavit specifically listed as an
    "item[] to be seized" "[a]ny computer or electronic media that
    were or may have been used as a means to commit the offenses
    - 14 -
    described   on    the   warrant,      including   the    production,   receipt,
    possession, distribution, or transportation of child pornography."
    B.
    Corleto next insists that his iPhone's seizure exceeded
    the scope of the warrant for two separate reasons.                     He first
    contends that the warrant did not actually authorize agents to
    search   the     Corleto   vehicles     unless    they   were   stationary   and
    "located    on    the   subject    property."       This    contention   simply
    mischaracterizes the warrant's parameters.               As Corleto recognizes
    elsewhere in his brief, the warrant's Attachment A specifically
    stated that the "subject premises" to be searched "include the
    residential property" at the Elmwood Drive address, "as well as
    any vehicles registered to that address."                It clarified that the
    "subject    premises       includes     the    following    registered    motor
    vehicles," listing the F150 and the Equinox with their registration
    numbers.       The attachment thus contained no constraint on the
    location of the vehicles.4
    4  For the same reason, Corleto's corollary argument that
    Attachment A is ambiguous because the warrant affidavit's
    definitions section fails to define the words "subject,"
    "premises," or "property" is unavailing. The entire function of
    the attachment is to define the term "subject premises," as that
    term is then used throughout the affidavit and warrant (to which
    the same attachment was appended). Relatedly, his assertion that
    "[t]he agents could not be certain as to the identities of the
    persons in the Equinox" is irrelevant, as the warrant permitted
    the search of the Equinox regardless of who was driving it.
    - 15 -
    Second, Corleto argues that the seizure of his phone
    necessarily required a search of his person that was not permitted
    by the warrant.     He invokes Supreme Court case law holding that a
    warrant to search a place does not automatically authorize the
    search of all persons found within.          See United States v. Di Re,
    
    332 U.S. 581
    , 587 (1948); Ybarra v. Illinois, 
    444 U.S. 85
    , 91
    (1979).     But regardless of whether the warrant here would have
    permitted    a   search   of   Corleto's    person,   the    district   court
    reasonably found that no such search occurred.              Rather, adopting
    Corleto's own testimony on the encounter, it found that Corleto
    was already holding the phone in his hand as he exited the Equinox.
    Corleto further testified that the phone was within DeMann's view
    as Corleto got out of the car.5
    5  Corleto separately asserts that he did not consensually
    surrender the phone. But given the warrant authorizing the seizure
    of any smartphones "used as a means to commit the offenses," there
    was no need for Corleto's consent. Additionally, Corleto arguably
    hints at an argument to the effect that the warrant did not
    authorize a search of the iPhone, even assuming that the iPhone's
    seizure was permissible. Corleto did not raise this argument to
    the district court below, and he does not come close to properly
    developing it on appeal. Even if we deemed it forfeited, rather
    than waived, and thus subject to plain error review, United States
    v. Rodriguez, 
    311 F.3d 435
    , 437 (1st Cir. 2002), the argument still
    fails. The warrant here authorized officers to search for records
    "in any form wherever they may be stored" relating to the relevant
    offenses, in addition to listing certain records -- such as
    "information pertaining to KIK" -- that were especially likely to
    exist on a smartphone. See Upham, 
    168 F.3d at
    535–36.
    - 16 -
    C.
    Finally,       we    turn   to     Corleto's      argument      that   his
    statements to the agents should have been suppressed because he
    never received a Miranda warning.                   The only statement Corleto
    addresses     with   any    specificity        on   appeal    is    his    "commentary
    concerning the production of the iPhone."                Accordingly, our review
    is limited to his interactions with agents prior to his offering
    that commentary.6
    "It is well established that Miranda warnings must be
    communicated to a suspect before he is subjected to 'custodial
    interrogation.'"       United States v. Li, 
    206 F.3d 78
    , 83 (1st Cir.
    2000).    "Both 'custody' and 'interrogation' must be present to
    require Miranda warnings."              United States v. Molina-Gomez, 
    781 F.3d 13
    , 22 (1st Cir. 2015).            "Interrogation" consists of "either
    express questioning or its functional equivalent."                        Rhode Island
    v.   Innis,    
    446 U.S. 291
       (1980),       300–01.        "The    'functional
    equivalent' of questioning is 'any words or action on the part of
    the police . . . that the police should know are reasonably likely
    to elicit an incriminating response from the suspect.'"                         United
    6 Corleto's Fifth Amendment discussion fails to mention
    relevant aspects of his interview at the police station, including
    any other statements made at the station that he might have claimed
    should have been suppressed.     We therefore deem any arguments
    regarding the statements at the station waived. See Zannino, 
    895 F.2d at 17
    .
    - 17 -
    States v. Davis, 
    773 F.3d 334
    , 339 (1st Cir. 2014) (omission in
    original) (quoting Innis, 
    446 U.S. at 301
    ).
    Here,   Corleto    volunteered    at   his   residence   without
    interrogation the very statements he now seeks to suppress.            Even
    in the absence of a Miranda warning, "[v]olunteered statements of
    any kind are not barred."     Miranda v. Arizona, 
    384 U.S. 436
    , 478
    (1966).    The    district   court    properly   found   that   Corleto's
    "commentary    concerning    the    production   of    the   iPhone"   was
    admissible.7
    III.
    For the foregoing reasons, the judgment of the district
    court is affirmed.
    7  Not surprisingly, Corleto makes no argument that his
    repetition of these same statements at the station should be
    suppressed even if his statements at his residence are not
    suppressed.
    - 18 -