United States v. Loera , 923 F.3d 907 ( 2019 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 13, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA
Plaintiff - Appellee,
v. No. 17-2180
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.
_________________________________
EBEL, Circuit Judge.
_________________________________
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
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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 e-
mails 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
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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
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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
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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.
1
There is no indication in the record whether the four CDs that contained child
pornography also contained evidence responsive to the warrant. However, Loera does
not challenge the FBI’s seizure of those CDs pursuant to the first warrant.
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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”).
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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
8
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.
II. DISCUSSION
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 the First Warrant
First, Loera argues that the FBI agents obtained the initial warrant to search
his residence for evidence of computer fraud as a pretext to search instead for
9
evidence of child pornography. The district court disagreed, finding that the sole
purpose of the first search was to uncover evidence of computer fraud. We affirm
that conclusion.
Loera’s pretext argument is based on a statement that Agent Nishida made in a
report dated February 28, 2013, three months after the first and second searches were
conducted. In that report, Nishida wrote:
On November 14, 2012, SA Michael Boady requested that the above
listed specimen or specimens be examined for evidence of intercepting a
communication. For example, e-mail messages to or from the domain
Susanna2010.com. In addition, SA Boady requested that the evidence
also be examined for evidence of child pornography possession and
receipt.
ROA Vol. II at 191–92. Loera argues that this report proves that on November 14,
2012, six days before the first search, Agent Nishida received instructions to search
Loera’s home and effects for evidence of child pornography.
The district court made explicit factual findings to the contrary, which are
supported by the record. First, the district court found that, had the FBI agents had
suspicions that Loera possessed child pornography, agents would have included that
information in their application for the first warrant. Second, Agent Nishida testified
at the suppression hearing that the February 2013 report summarized two separate
instructions from SA Boady: on November 14, 2012, Boady instructed Nishida to
search for evidence of interception, and, later, Boady instructed Nishida to search for
evidence of child pornography. Finally, both Cravens and Nishida testified at the
suppression hearing that the purpose of the November 20 search was only to uncover
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evidence of computer fraud, and the district court credited that testimony. Each of
these facts supports the district court’s determination that the agents conducted the
first search solely to look for evidence of computer fraud. And we are unpersuaded
by Loera’s only evidence of pretext, the report written three months after the
allegedly pretextual search.2
Thus, we conclude the FBI agents had no pretextual motivations for obtaining
the first warrant, and we affirm the district on this issue.
C. Reasonableness of the First and Second Searches
Next, we determine that the first search of Loera’s residence was reasonable
because it was directed solely at uncovering the items specified in the first warrant
both before and after the officers discovered the child pornography evidence.
However, we conclude that the second search was unreasonable because it was
directed at uncovering evidence of child pornography.
1. Relevant legal principles
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
2
Alternatively, even if the agents had an additional motive for conducting the first
search, that argument would fail as a matter of law under Whren v. United States,
517 U.S. 806, 813 (1996).
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U.S. Const. amend. IV. It is now well-recognized that “the ultimate touchstone of
the Fourth Amendment is ‘reasonableness.’” Brigham City v. Stuart, 547 U.S. 398,
403 (2006). “[R]easonableness generally requires the obtaining of a judicial
warrant,” Riley v. California, 134 S.Ct. 2473, 2482 (2014), subject to only a few
exceptions. The warrant must “particularly” describe “the place to be searched, and
the persons or things to be seized,” U.S. Const. amend. IV.
However, obtaining a sufficiently particular warrant is just the first step to
conducting a reasonable search. The officers tasked with executing a sufficiently
particular warrant must conduct their search “strictly within the bounds set by the
warrant.” Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388, 395 n.7 (1971) (quoting Marron, 275 U.S. at 196). The Supreme Court has
held that, “[i]f the scope of [a] search exceeds that permitted by the terms of a validly
issued warrant . . . the subsequent seizure [of evidence] is unconstitutional without
more.” Horton v. California, 496 U.S. 128, 140 (1990).
Determining whether a search exceeds the scope of its authorizing warrant is,
like most inquiries under the Fourth Amendment, an exercise in reasonableness
assessed on a case-by-case basis. Dalia v. United States, 441 U.S. 238, 258 (1979)
(holding that the manner of a search is subject to “later judicial review as to its
reasonableness”). The general Fourth Amendment rule is that investigators executing
a warrant can look anywhere where evidence described in the warrant might
conceivably be located. United States v. Ross, 456 U.S. 798, 824 (1982). For
example:
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Just as probable cause to believe that a stolen lawnmower may be found in
a garage will not support a warrant to search an upstairs bedroom, probable
cause to believe that undocumented aliens are being transported in a van
will not justify a warrantless search of a suitcase. Probable cause to believe
that a container placed in the trunk of a taxi contains contraband or
evidence does not justify a search of the entire cab.
Id. This limitation works well in the physical-search context to ensure that searches
pursuant to warrants remain narrowly tailored, but it is less effective in the electronic-
search context where searches confront what one commentator has called the “needle-in-
a-haystack” problem. Orin S. Kerr, Digital Evidence and the New Criminal
Procedure, 105 Colum. L. Rev. 279, 301 (2005). Given the enormous amount of data
that computers can store and the infinite places within a computer that electronic
evidence might conceivably be located, the traditional rule risks allowing unlimited
electronic searches.
To deal with this problem, rather than focusing our analysis of the
reasonableness of an electronic search on “what” a particular warrant permitted the
government agents to search (i.e., “a computer” or “a hard drive”), we have focused
on “how” the agents carried out the search, that is, the reasonableness of the search
method the government employed. See United States v. Burgess, 576 F.3d 1078(10th Cir. 2009); United States v. Walser, 275 F.3d 981 (10th Cir. 2001); United
States v. Carey, 172 F.3d 1268 (10th Cir. 1999). Our electronic search precedents
demonstrate a shift away from considering what digital location was searched and
toward considering whether the forensic steps of the search process were reasonably
directed at uncovering the evidence specified in the search warrant. Shifting our
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focus in this way is necessary in the electronic search context because search
warrants typically contain few—if any—restrictions on where within a computer or
other electronic storage device the government is permitted to search. See United
States v. Christie, 717 F.3d 1156, 1165 (10th Cir. 2013) (holding that, so long as an
electronic search warrant requires the government to “direct all of its search efforts”
toward evidence relating to a specific crime, the warrant is sufficiently particular,
even where it permits the government to search a “computer” for “all records”
relating to the crimes of “murder, neglect, and abuse”). Because it is “unrealistic to
expect a warrant prospectively [to] restrict the scope of a search by directory,
filename or extension or to attempt to structure search methods,” Burgess, 576 F.3d
at 1093 (alteration added), our ex post assessment of the propriety of a government
search is essential to ensuring that the Fourth Amendment’s protections are realized
in this context. Our precedent of Carey, Burgess, and Walser, to which we turn next,
are instructive as to what constitutes a reasonable electronic search pursuant to a
valid warrant.
Carey is the only case in which we invalidated an electronic search for
exceeding the scope of its authorizing warrant. See 172 F.3d at 1276. There, a
police officer obtained a warrant to search files on the defendant’s computer for
evidence “pertaining to the sale and distribution of controlled substances.” Id. at
1270. Prior to searching the computer, the officer first viewed the computer’s file
directory, which showed numerous “JPG” files with sexually suggestive titles. Id.During his search, the officer came across a number of files that he did not recognize
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and that he was unable to view on the computer that he was using. Id. at 1271. To
view the files, the officer downloaded them onto a separate disk, inserted that disk
into another computer, and then was immediately able to view a “JPG file” that
depicted child pornography. Id. Rather than navigating away from the
nonresponsive material, the officer “downloaded approximately two hundred forty-
four” more JPG files and then transferred them to nineteen disks, viewing five to
seven images on each disk to determine that they all contained child pornography.
Id. The whole process took about five hours. Id. at 1273. After he had catalogued
the child pornography images in this manner, he then “returned” to his “original task
of looking for evidence of drug transactions.” Id. at 1271.
The Carey court held that this was an unlawful, general exploratory search
because, although it was permissible for the officer to open the first JPG file to see if
it was responsive to the warrant, id. at 1273 n.4, his opening of the remaining files
exceeded the bounds of the authorizing warrant, id. at 1276. The Carey court’s
holding turned on four facts: (1) the officer spent five hours, a significant amount of
time, specifically perusing the trove of nonresponsive material, id. at 1273; (2) the
nonresponsive files were characteristically distinct and set apart from the other files
on the computer (such that they could have been avoided) because each file was
labeled “JPG,” many had sexually suggestive titles, and the officer had to download
them to open them, id. at 1274; (3) the officer did not discover the files inadvertently
(at least after his first look), id. at 1273; and (4) a more narrowly tailored search was
possible—the officer could have gone back to searching for drug-related documents
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much sooner than he did, id. at 1273. Importantly, we did not condemn the officer’s
decision to return to searching for drug-related documents after discovering the child
pornography, but, instead, we condemned his “temporar[y] abandon[ment]” of the
original search to conduct a “five hour search of the child pornography files.” Id. at
1273.
Next, we turn to Walser and Burgess, both of which upheld electronic searches
in which the investigator discovered incriminating, nonresponsive material while
executing a search warrant but then navigated away from it. In United States v.
Walser, the police obtained a warrant to search the defendant’s hotel room for
electronically stored records of “evidence of the possession of controlled
substances.” 275 F.3d 981, 983–84 (10th Cir. 2001). A police officer searched the
room pursuant to the warrant and found a laptop and a digital camera. Id. at 984.
The agent seized the laptop, removed it from the hotel room, and then conducted a
drug-specific search of the laptop, looking for “ledgers of drug transactions or images
of drug use.” Id. In order to find those things, the agent employed a particularized
search method that “selectively proceeded to the ‘Microsoft Works’ sub-folder on the
premise that[,] because Works is a spreadsheet program, that folder would be most
likely to contain records relating to the business of drug trafficking.” Id. at 986. It
was while searching the contents of the Works folder that the officer came across a
file labeled “bstfit.avi” and opened it. Id. at 984. When he viewed the contents, he
discovered that the file contained child pornography images. Id. at 986–87. He then
immediately ceased his search. Id.16
We upheld the officer’s search as reasonable because we determined that, by
using a particularized search method, the officer avoided conducting the kind of
“sweeping, comprehensive search of a computer’s hard drive” that Carey prohibited.
Id. at 986. The defendant in Walser argued that the agent exceeded the scope of the
warrant by opening the “AVI file,” a video file, because “it could not possibly have
contained the type of evidence the [a]gent was authorized to search for, namely,
records of drug transactions or still images of drug use.” Id. at 987. We rejected that
argument by interpreting Carey to excuse an officer’s discovery of child pornography
during a search for “relevant records in places where such records might logically be
found” so long as the officer does not conduct a supervening search specifically
directed at finding pornography evidence. Id. at 986. Applying that rule, we held in
Walser that the officer’s opening the “bstfit.avi” file was permissible because (1) he
was looking in a folder that was “most likely to contain records relating to the
business of drug trafficking” when he opened it, and (2) he did not conduct an
intervening search directly focused on child pornography like the agent in Carey. Id.Based on those facts, we concluded that the “search was reasonable and within the
parameters of the search warrant” and that the evidence found as a result of it did not
need to be suppressed. Id. at 987.
Finally, in United States v. Burgess, 576 F.3d 1078 (10th Cir. 2009), we again
upheld an electronic search that uncovered evidence of child pornography as
reasonable and within the scope of its authorizing warrant. There, police obtained a
warrant to search a motorhome for, among other things, “computer records” that
17
would tend to show “conspiracy to sell drugs.” Id. at 1083. The warrant
incorporated the affidavit on which it was based, which stated that the affiant “knows
that persons involved in trafficking or the use of narcotics often keep photographs of
coconspirators or photographs of illegal narcotics in their vehicle.” Id.Based on the warrant, officers searched two hard drives and a laptop found in
the motorhome. Id. An agent searched one of the hard drives by using a program
called EnCase, which copies the contents of a hard drive over to a computer to
prevent file corruption. Id. at 1083–84. EnCase allows an investigator to “preview”
reduced-sized photos of each image file as they are being copied. Id. at 1084, 1094.
The agent took advantage of this feature and viewed each image file on the hard drive
as it was being copied. Id. at 1084. After viewing 200-300 digital images, mostly
personal photos, the agent saw an image that looked like child sexual exploitation.
Id. He then closed the preview program and sought a warrant to search all of the
defendant’s electronic storage devices for evidence of child pornography. Id. Upon
conducting that search, the agent found more than one hundred thousand illegal
images. Id.The defendant asked the district court to suppress the child pornography
evidence because, he argued, the agent’s use of the “preview” program exceeded the
scope of the warrant because he did not employ a particularized search method like
the agent in Walser but instead looked through each image file contained on the hard
drive. We determined that the agent’s use of the “preview” program was reasonable
and did not exceed the scope of the warrant for two reasons. First, we noted that,
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because the warrant did not expressly limit the file types that the agent was allowed
to search, for example, by limiting the search to text files (.doc, .wpd, .txt, etc.), the
agent was well within the scope of the warrant when he decided to view all of the
image files on the hard drive using the preview program. Id. at 1092. Second, we
determined that there was no reasonable way for the agent to conduct a more
narrowly tailored search because, when the object of a search is likely to be an image
file, as it was in Burgess, “there may be no practical substitute for actually looking in
many (perhaps all) folders and sometimes at the documents contained within those
folders.” Id. at 1094.
Reading these cases together, we determine that four features of the
unconstitutional search in Carey demonstrate that it was unreasonably directed at
uncovering evidence of child pornography, rather than directed at the evidence
specified in the warrant, and distinguish it from the reasonable searches in Walser
and Burgess: (1) the length of time the searching officer spent looking at the
incriminating, nonresponsive evidence (five hours in Carey versus less than one
minute in Walser and Burgess); (2) the fact that the nonresponsive files were set apart
from the responsive files saved on the storage device (JPG files downloaded onto
separate disks in Carey versus generic files intermingled all in one place in Burgess);
(3) the manner in which the evidence was discovered (purposefully in Carey versus
inadvertently in Walser and Burgess);3 and (4) the breadth of the search method
3
We acknowledge that in Horton v. California, 496 U.S. 128, 130 (1990), the
Supreme Court held that, in physical searches, “even though inadvertence is a
19
employed (the wide detour in Carey versus the narrowly tailored search in Walser).
Contrary to Loera’s assertion, these cases do not require that officers stop searching
upon discovering evidence of a crime outside the scope of the warrant. Such a rule
would prohibit what the Fourth Amendment expressly permits—reasonable searches
based upon a warrant supported by probable cause. We have never required that.
This conclusion brings us in line with every circuit that has confronted this
issue. See United States v. Stabile, 633 F.3d 219, 240 (3d Cir. 2011) (upholding
denial of motion to suppress where officers continued warrant-authorized search of
the defendant’s computer for financial crimes after discovering child pornography);
United States v. Williams, 592 F.3d 511, 521–24 (4th Cir. 2010) (upholding search
where the officer continued his warrant-authorized search of the defendant’s
computer for evidence of “making threats and computer harassment” after
discovering child pornography); United States v. Miranda, 325 F.App’x 858, 859–60
(11th Cir. 2009) (per curiam) (unpublished) (upholding search where officer
continued his warrant-authorized search for evidence of counterfeit software after
discovering child pornography); United States v. Wong, 334 F.3d 831, 834 (9th Cir.
characteristic of most legitimate ‘plain view’ seizures, it is not a necessary
condition.” However, because Carey, Walser, and Burgess, each of which succeeded
Horton in time, considered the subjective intentions of the searching officers where
that information was available, we continue to include inadvertence as a factor to
consider when deciding whether an electronic search fell within the scope of its
authorizing warrant or outside of it. The fundamental differences between electronic
searches and physical searches, including the fact that electronic search warrants are
less likely prospectively to restrict the scope of the search, justify our inclusion of
that factor. See Horton, 496 U.S. at 139 (abandoning inadvertence as a necessary
condition for a legitimate plain view seizure).
20
2003) (upholding denial of motion to suppress where the officer continued his
warrant-authorized search of the defendant’s computer for, among other things,
“[a]ny maps, receipts, or writings, depicting Churchill County Nevada” after
discovering child pornography).
Although officers do not have to stop executing a search warrant when they
run across evidence outside the warrant’s scope, they must nevertheless reasonably
direct their search toward evidence specified in the warrant. What that looks like
depends on the particular facts of a given case. Narrowly tailored search methods
that begin looking “in the most obvious places and [then] progressively move from the
obvious to the obscure,” Burgess, 576 F.3d at 1094, should be used where possible but
are not necessary in every case. In cases like this one, where the electronic storage
device is not well-organized and the most practical way to search it is through an item-
by-item review, “there may be no practical substitute for actually looking in many
(perhaps all) folders and sometimes at the documents contained within those folders.”
Id. In such a case, however, the searching officer must respond appropriately to what
he or she sees. The reasonableness of a search evolves as the search progresses and
as the searching officer learns more about the files on the device that he or she is
searching.
An analogy to the physical realm is helpful here. Imagine a warrant authorizes
police officers to search a “residence” for evidence of “firearms and ammunition.”
Under that warrant, it would be reasonable for a police officer to search the medicine
cabinet in the bathroom for a minute or two to see if a small gun or ammunition is
21
hidden there, however, it would be unreasonable for the officer to spend two hours
reading the labels on each bottle of medicine in the cabinet. On the other hand, if the
warrant had authorized the officer to search the residence for evidence of “illegal
drug trafficking and manufacture,” an intensive search of the medicine cabinet would
be reasonable. In both cases, the medicine cabinet is fair game to search, but the
intensity level of the permitted search differs depending on the evidence to be seized.
The same is true for electronic searches. While in some cases many (perhaps all)
electronic areas of a computer will be fair game to search, the level of intensity that
officers are permitted to spend searching those areas will differ depending on
whether the area appears to contain responsive material. This is true even when
officers come across evidence of incriminating, nonresponsive material. In all cases,
the ultimate test is the one mandated by the Fourth Amendment: whether the search
was “reasonable” under the circumstances. In the case of a computer search,
“reasonableness” requires officers to take into account the flexibility of computers
and the multiple configurations to which they may be adapted. As the computer
search continues and as the executing officer obtains more information about how a
suspect used his computer, that too may inform the reasonableness of the continuing
search.
We now apply these principles to the November 20 and 27 searches conducted
in this case.
22
2. November 20 search was reasonable
Loera argues that, although the first warrant permitted the FBI agents to search his
CDs for evidence of computer fraud, the officers’ search exceeded the scope of the first
warrant when they continued searching after discovering evidence of child pornography.
We disagree. The searches that Agent Cravens and Agent Nishida each conducted of
Loera’s CDs on November 20 were reasonable and conducted within the scope of the
first warrant because at all times each was reasonably directed at discovering evidence of
computer fraud. Therefore, the first search did not violate the Fourth Amendment and
thus did not warrant suppression of the evidence discovered during that search.
The agents’ searches on November 20 resemble the searches in Walser and
Burgess more than they resemble the search in Carey, both before and after they
discovered the child pornography evidence. First, both agents here spent very little
time looking at the child pornography images they discovered. They noticed them,
alerted a supervisor, and then moved on to the rest of the images on the same CD (in
Nishida’s case), or the other CDs (in Cravens’ case), looking for evidence of
computer fraud. Both responses were reasonable because, as mentioned above, the
agents were not required to stop searching altogether. And both responses
demonstrate an effort to navigate away from the nonresponsive material and toward
files that they believed were more likely to contain material responsive to the
warrant. Second, the files on the CDs that the agents previewed were not
characteristically distinct or set apart from the other files, in contrast to Carey. Agent
Cravens testified that, when he put a CD into his computer to see the files that it
23
contained, the computer pulled up a generic list of those files. The record does not
indicate that there were any folders or distinctive titles setting clearly apart the
nonresponsive child pornography files from the other files on the disk. Loera bears
the burden of proof on his suppression motion, and he has offered no evidence on this
point. Third, the agents discovered the child pornography files inadvertently on
November 20. Fourth, both agents’ search methods were reasonably narrow under
the circumstances, considering the fact that the CDs did not seem particularly
organized. Given that the warrant permitted the agents to search the CDs for
“photographs,” “documents,” and “configuration files,” it was reasonable for Nishida and
Cravens to search all file types on the CDs (image, video, and text) for evidence of
computer fraud rather than to narrow that search to one particular file type. The agents’
searches on November 20 were reasonable because they fell within the scope of the
first warrant both before and after they discovered the child pornography evidence. We
reverse the district court’s ruling to the contrary.
3. November 27 search was unreasonable
Loera also argues that Agent Cravens’ subsequent search on November 27,
2012, of the four seized CDs that contained child pornography violated the Fourth
Amendment because Cravens was “[i]ntentionally searching for evidence of a crime
outside the scope of the [f]irst [w]arrant prior to obtaining a new warrant.” Aplt. Br. 29.
In making this argument, Loera accepts that the first warrant permitted the government to
seize the four CDs that were found to contain some child pornography and to search them
for evidence of computer fraud. Therefore, Loera challenges Cravens’ November 27
24
search only for exceeding that permission. Accordingly, we confine our analysis to
whether the second search exceeded the scope of the first warrant. The district court
concluded that it did and that neither exigent circumstances nor any other exception to
the warrant requirement justified that search. We agree and conclude that the district
court correctly excised the evidence obtained during the November 27th search from
Cravens’ affidavit for the second warrant. Several of the district court’s factual findings
support that result.
The district court found that “Cravens was not searching for evidence of
electronic fraud” on November 27 but instead was searching for child pornography.
Dist. Ct. Op. at 144. The district court based this finding on Cravens’ testimony at the
suppression hearing that he reopened Loera’s CDs on November 27 specifically “[t]o
write a description of an image on the disc” so that he could “obtain a second warrant
for child pornography.” ROA Vol. II at 72. That admission is the most probative
fact in the record that Cravens’ search was directed at finding child pornography.
The district court also found that Cravens had the four CDs for a total of two-and-a-
half hours that day, during which time he searched the CDs and drafted the second
affidavit. Although the record does not indicate how long Cravens searched the CDs,
he testified at the suppression hearing that he looked at several images on each CD—
“more than just a couple” but “[m]ost likely less than a dozen.” ROA Vol. II at 143.
Whatever the amount of time, Cravens’ devoted it exclusively to nonresponsive
material. Rather than navigate away from the child pornography images when he found
them, Cravens explicitly navigated toward such images. Based on these findings, we
25
agree with the district court that, in contrast with the agents’ searches on November
20, Agent Cravens’ search on November 27 was unreasonable because it was directed
at uncovering evidence of child pornography.
The government argues that two exceptions save Cravens’ search from
violating the Fourth Amendment: the plain view doctrine and the foregone-
conclusion exception. We disagree. For its plain view argument, the government
asserts that the law permitted Agent Cravens to take a “second look” at the child
pornography images on Loera’s CDs because members of the FBI had already seen
the images in plain view during a lawful search, and, therefore, his “second look”
was no further invasion of Loera’s privacy than the initial, lawful viewing. The
government points to a Fourth Circuit case, United States v. Jackson, 131 F.3d 1105(4th Cir. 1997), where a law enforcement officer had consent to search a residence for a
fugitive. Id. at 1107. While looking for the fugitive in the basement, the officer observed
some suspicious metal items on the floor. Id. He did not pause to examine those items at
that time, but he instead proceeded to finish his sweep for the fugitive. Id. Once
finished, he went back to take a closer look at the objects on the floor, this time
recognizing them as drug paraphernalia. Id. More officers arrived and took a look at the
paraphernalia, eventually using the presence of those items to obtain a search warrant for
the house, which uncovered a gun and large quantities of drugs. Id. at 1108. That further
search was held to have been constitutional under the plain-view doctrine. Id.There are too many factual distinctions between Jackson and this case to permit
Cravens’ second look under the plain view doctrine. First, as government counsel
26
admitted at oral argument, there is no evidence in the record that Cravens looked at the
same photos on November 27 that the officers viewed on November 20. Second, seven
days elapsed between the first and second searches in this case, not a matter of minutes.
Third, Cravens’ “second look” led him to peruse more than just the child pornography
images, so we cannot say that the November 27 search did not cause a further invasion
of Loera’s privacy. The plain view doctrine permits the warrantless seizure of
evidence of criminal activity when police officers observe the evidence during a
lawful search. United States v. Naugle, 997 F.2d 819, 822 (10th Cir. 1993). That
doctrine cannot be used to justify Cravens’ November 27 search.
The government also argues that Cravens’ “second look” was justified under
what it has termed the “foregone-conclusion exception” to the warrant requirement.
This doctrine comes from several of our plain view cases where we have permitted
the warrantless search of containers in plain view whose contents “are a foregone
conclusion” because the container is “not closed,” “transparent,” or, if it is closed,
“its ‘distinctive configuration . . . proclaims its contents’” nonetheless. United States
v. Corral, 970 F.2d 719, 725 (10th Cir. 1992). We have also held that the doctrine
applies “where the police have already seen the contents of a seized container prior to
conducting the search, [because] there is no significant additional invasion of privacy
involved in searching the container.” Id. at 725. We reject this argument for the
same reasons as the government’s plain view argument. Here, Cravens knew to a
near certainty that the seized and re-searched CDs contained some child pornography,
but he had no idea what else they contained. And, again, there is no evidence that
27
Cravens had previously seen the child pornography images that he viewed on
November 27.
Thus, Cravens’ November 27 search was unlawful because it exceeded the scope
of the first warrant and none of the exceptions to the warrant requirement apply.
D. Reasonableness of the Searches Conducted Under the Second Warrant
Additionally, Loera argues that the child pornography evidence that Agent
Nishida discovered when he executed the second warrant should have been
suppressed because the second warrant was not supported by probable cause and no
exceptions to the warrant requirement apply. We agree that the second warrant was
not supported by probable cause and that the good faith exception is inapplicable
here. However, the inevitable discovery doctrine supports the district court’s denial
of Loera’s motion to suppress, and we affirm on that basis.
1. Second warrant was not supported by probable cause
We review whether a magistrate properly issued a search warrant by determining
whether there was a “substantial basis” for probable cause in the affidavit submitted in
support of the warrant. Illinois v. Gates, 462 U.S. 213, 236 (1983). Because we find
that the November 27 search was unlawful, we must excise from the affidavit that
Cravens filed in support of the second warrant all of the descriptions of child
pornography that he unlawfully obtained during the second search and then
determine whether “there was probable cause absent that information.” United States
v. Sims, 428 F.3d 945, 954 (10th Cir. 2005). The district court determined that the
28
second warrant remained supported by probable cause without the tainted
descriptions. We disagree.
While “probable cause does not demand the certainty we associate with formal
trials,” Gates, 462 U.S. at 246, “[s]ufficient information must be presented to the
magistrate to allow that official to determine probable cause; his action cannot be a mere
ratification of the bare conclusions of others,” id. at 239 (emphasis added). For example,
“[a] sworn statement of an affiant that ‘he has cause to suspect and does believe that’
liquor illegally brought into the United States is located on certain premises” is not
sufficient to support a finding that probable cause exists to search the premises. Id.The child pornography descriptions that Agent Cravens obtained during the
unlawful second search appear in paragraphs 24-27 of Cravens’ affidavit. Once we
excise those descriptions, all that remains substantively is Cravens statement that,
“During the preview, the examiners identified four writable CDs which appeared to
contain images of child pornography.” ROA Vol. I at 120. This sentence does not
support a finding of probable cause.
In United States v. Pavulak, the Third Circuit reviewed an affidavit to support
a warrant to search for child pornography that contained language very similar to the
bare-bones description left in the affidavit in our case, 700 F.3d 651, 661 (3d Cir.
2012). The warrant affidavit in Pavulak stated that an informant had seen the
defendant “viewing child pornography” of females “between 16 and 18 years old,”
without providing any further details about what the images depicted. Id. at 657.
The Third Circuit held that the affidavit lacked probable cause because it did not
29
allow the magistrate judge “to independently evaluate whether the contents of the
alleged images [met] the legal definition of child pornography.” Id. at 661. We find
that analysis persuasive here. Agent Cravens’ remaining statement that the CDs
“appeared to contain images of child pornography” provides no detailed description
of what the images depicted such that a magistrate could independently assess
whether the images meet the legal definition of child pornography. ROA Vol. I at
120.
Therefore, the affidavit supporting the second warrant lacked probable cause
absent the tainted information. We reverse the district court’s contrary conclusion.
2. Good-faith exception inapplicable to these facts
Next, we consider whether the good faith exception to the exclusionary rule
from United States v. Leon, 468 U.S. 897, 918 (1984), applies when police execute a
search warrant that is based on information obtained through an unlawful predicate
search. Disagreeing with the district court, we conclude that it does not. The
Supreme Court’s opinion in Leon and our opinion in United States v. Scales, 903
F.2d 765, 768 (10th Cir. 1990), dictate that the good faith exception does not apply in
a case like the one before us because the illegality at issue stems from unlawful
police conduct, rather than magistrate error, and therefore the deterrence purposes of
the Fourth Amendment are best served by applying the exclusionary rule.
In United States v. Leon, the Supreme Court modified the exclusionary rule
“so as not to bar the use in the prosecution’s case in chief of evidence obtained by
officers acting in reasonable reliance on a search warrant issued by a detached and
30
neutral magistrate but ultimately found to be unsupported by probable cause,” 468
U.S. at 900. The Court reasoned that the purpose of the exclusionary rule is to deter
police misconduct and in such a case “there is no police illegality and thus nothing to
deter.” Id. at 920. In this circuit, “Leon’s good faith exception applies only narrowly,
and ordinarily only when an officer relies, in an objectively reasonable manner, on a
mistake made by someone other than the officer.” United States v. Cos, 498 F.3d 1115,
1132 (10th Cir. 2007) (declining to apply good faith exception to warrantless search of
apartment where officers mistakenly believed the person that consented to the search had
the authority to do so); United States v. Herrera, 444 F.3d 1238, 1251 (10th Cir. 2006)
(declining to apply good faith exception to state trooper who conducted a warrantless
inspection of a truck based on the officer’s mistaken belief the truck was a commercial
vehicle subject to such inspection). Thus, Leon is inapplicable here where the
mistake—the unconstitutional second search—was the fault of the officer, not the
magistrate.
We considered whether Leon applied to a warrant affidavit based on tainted
evidence in Scales, 903 F.2d at 768. There, we held that Leon did not apply to
excuse a law enforcement officer’s reliance on a search warrant where the facts in the
warrant affidavit were obtained through an unlawful predicate seizure. In that case,
DEA agents seized a suitcase that they believed contained drugs. Id. at 767. Then,
they took the suitcase to a drug-sniffing canine team that signaled the suitcase did
contain drugs. Id. Finally, after having had the suitcase in their possession for
twenty-four hours, the agents applied for and obtained a warrant to search the
31
suitcase based on the probable cause provided by the canine alert. Id. Upon
conducting the search, the agents discovered more than 2,000 grams of cocaine in the
suitcase. Id. The defendant moved to suppress the cocaine evidence, arguing that the
agents’ initial seizure of the suitcase was unlawful because it was unsupported by
probable cause. Id. at 767.
The district court in Scales denied the motion, finding that, even if the seizure
of the suitcase was unlawful, the good faith exception ratified the agents’ behavior.
Id. We reversed, holding that Leon was inapplicable “[b]ecause the DEA agents
were not acting in reliance on a search warrant when they seized the luggage and held
it for more than twenty-four hours.” Id. at 768. Our holding was informed by the
reasoning in Leon that “Penalizing the officer for the magistrate’s error, rather than
his [or her] own, cannot logically contribute to the deterrence of Fourth Amendment
violations.” Id. at 768 (quoting Leon, 468 U.S. at 921) (alteration in original).
Because the contraposition is also true—that penalizing an officer for his or her own
error does contribute to deterrence—we determined that the exclusionary rule must
apply to the agents’ unlawful pre-warrant seizure of the suitcase. Id.Scales and Leon control our outcome here. Cravens conducted an unlawful
search of Loera’s CDs on November 27 in the absence of a warrant. He included the
tainted fruit that he uncovered during that search in the affidavit that he submitted in
support of the second warrant. Cravens’ warrant affidavit was facially valid, and
therefore the magistrate did not error by issuing a warrant based upon it. Instead, the
constitutional error came from Agent Cravens.
32
The government argues that Cravens acted in good faith because he
“transparently informed the magistrate judge of the steps he had taken to obtain the
descriptions he included in his affidavit.” Aple. Br. at 40. Cravens’ affidavit
provided some information about the first search. It explained that, while executing
the first search warrant, the FBI agents identified four CDs that contained child
pornography and seized them. Then, Cravens wrote:
On November 27, 2012, the writer, an FBI certified CART Technician,
reviewed the four CDs, each of which are designated in attachment A,
that were believed to contain child pornography. During the review of
the CDs, the writer observed multiple pictures of children many of
which are in various state of dress including the following images . . . .
ROA Vol. I at 50. However, that information was not sufficient to allow the
magistrate to determine the constitutionality of the second search such that the
magistrate can be said to have endorsed Cravens’ pre-warrant conduct. Furthermore,
even if it was, that would not affect our outcome. Tenth Circuit precedent dictates
that the good faith exception does not apply at all when a warrant affidavit is based
on tainted evidence from a prior, unlawful search.
Four other circuits have likewise concluded that Leon is inapplicable when an
officer executes in good faith a search warrant that is based on unlawfully-obtained
evidence. United States v. Scott, 731 F.3d 659, 664 (7th Cir. 2013) (holding that
evidence discovered pursuant to a warrant based on illegally-obtained evidence will
be inadmissible unless other, untainted information in the affidavit establishes
probable cause); United States v. Mowatt, 513 F.3d 395, 405 (4th Cir. 2008) (holding
that “Leon only prohibits penalizing officers for their good-faith reliance on
33
magistrates’ probable cause determinations” and that the exclusionary rule operates
to penalize officers for any unconstitutional conduct preceding a magistrate’s
involvement); United States v. McGough, 412 F.3d 1232 (11th Cir. 2005) (refusing
to apply good faith exception where an unlawful entry into the defendant’s apartment
led to the officer’s request for a search warrant); United States v. Vasey, 834 F.2d
782, 789 (9th Cir. 1987) (holding that good faith exception did not apply to a warrant
that was based on information obtained in an illegal warrantless search because “[t]he
constitutional error was made by the officer . . ., not by the magistrate”). At least two
commentators support this analysis as well. See Wayne R. LaFave, Search &
Seizure: A Treatise on the Fourth Amendment § 1.3(f) (5th ed. 2016) (explaining
that, because courts rarely require affiants to prove that they obtained the evidence
listed in an affidavit lawfully, “there is no reason why that process should, via Leon,
shield that activity from full scrutiny at the suppression hearing”); Craig M.
Bradley, The “Good Faith Exception” Cases: Reasonable Exercise in Futility, 60 Ind.
L.J. 287, 302 (1985) (quoting Leon, 468 U.S. at 914) (“When the magistrate issued
the warrant, he did not endorse past activity; he only authorized future activity. . . .
[T]he function of the magistrate is to determine ‘whether a particular affidavit
establishes probable cause,’ not whether the methods used to obtain the information
in that affidavit were legal.”).
However, five other circuits have concluded that the good faith exception can
apply where an affidavit supporting a search warrant is tainted by illegally-obtained
evidence in at least some limited circumstances. Three of those circuits apply the
34
good faith exception if the predicate search, although ultimately determined to be
unlawful, was arguably lawful under the binding precedent in effect at the time of the
search. United States v Bain, 874 F.3d 1, 22–23 (1st Cir. 2017) (applying good faith
exception because binding precedent did not “clearly classify” as unlawful the
conduct that invalidated the predicate search); United States v. Hopkins, 824 F.3d
726 (8th Cir. 2016) (applying good faith exception because the reasonableness of the
illegal predicate search was “close enough to the line of validity” to make an
officer’s belief in the validity of the warrant objectively reasonable); United States v.
Holley, 831 F.3d 322, 326–27 (5th Cir. 2016) (also applying “close enough to the
line of validity” test). Two other circuits apply the good faith exception in these
types of cases when (1) the predicate search was arguably reasonable and (2) the
warrant affidavit truthfully conveyed the circumstances of the illegal predicate search
to the magistrate judge. United States v. McClain, 444 F.3d 556, 566 (6th Cir. 2005)
(applying Leon because the reasonableness of the predicate search was a close call
and the warrant affidavit “fully disclosed” the circumstances surrounding the initial
warrantless search); United States v. Thomas, 757 F.2d 1359 (2d Cir. 1985) (applying
good faith exception because officer’s affidavit fully described the unlawful, pre-
warrant canine sniff that supplied probable cause for the warrant and there was
“nothing more the officer could have or should have done” to be sure his search was
legal). We cannot read Leon or Scales to support the rules adopted by these courts.
When a magistrate issues a warrant based on illegally obtained evidence, typically the
manner in which the affidavit evidence is obtained is not before the magistrate, and the
35
magistrate is not asked explicitly to endorse the evidence-gathering procedure. Even
though some disclosure of the evidence-gathering technique may have occurred, that is
not ordinarily the focus of an application for a warrant. Thus, we are unwilling to read a
warrant as ratifying the information-gathering process of a search that preceded it. In any
event, we are bound by Scales, which appears to us to have been correctly decided.
Therefore, the district court erred by finding that the good faith doctrine applied to
the searches Agent Nishida conducted in execution of the second warrant.
3. Inevitable discovery doctrine supports denial of Loera’s motion
Finally, we consider whether the government would have inevitably discovered
the child pornography evidence on Loera’s electronic devices. Loera argues that, because
there was no probable cause to support the second warrant, all evidence discovered as a
result of the execution of the second warrant should have been suppressed. The issue
before us, then, is whether the FBI agents would have inevitably discovered the roughly
330 child pornography images on Loera’s CDs and 730 child pornography images on
Loera’s laptop that Nishida found when he executed the second warrant. We conclude
that they would have. Accordingly, we affirm the district court’s denial of Loera’s
motion to suppress.
When evidence is obtained in violation of the Fourth Amendment, that
evidence need not be suppressed if agents inevitably would have discovered it
through lawful means independent from the unconstitutional search. United States v.
Christy, 739 F.3d 534, 540 (10th Cir. 2014). The government is required to prove by a
preponderance of the evidence that the unlawfully-obtained evidence would have been
36
discovered through lawful means. Id. The “lawful means” need not be a second,
independent investigation. Id. Rather, the inevitable discovery doctrine will apply if
there was “one line of investigation that would have led inevitably to the obtaining of a
search warrant by independent lawful means but was halted prematurely by a search
subsequently contended to be illegal.” Id. (citations omitted). The key to applying this
doctrine is to place the government officers in the “same positions they would have
been in had the impermissible conduct not taken place,” and, from that vantage point,
to ask whether the government would have inevitably discovered the evidence
lawfully. Nix v. Williams, 467 U.S. 431, 447 (1984).
Here, the district court’s supportable findings demonstrate by a preponderance of
the evidence that the FBI would have inevitably discovered the child pornography
evidence on Loera’s electronic devices through lawful means independent from Agent
Cravens’ unlawful second search. On November 26 (the day before the second search),
the government lawfully had in its possession Loera’s computers, external hard drives,
iPhone, iPad, and thirteen CDs (nine without child pornography and four with child
pornography).4 The government had the authority under the first warrant to search
Loera’s electronic devices—most importantly his laptop and CDs—for evidence of
computer fraud. The district court issued an explicit factual finding that, had the
second warrant never been obtained, Agent Nishida would “have searched [Loera’s
4
As mentioned above, although Loera challenges the first search of these four CDs,
he does not separately challenge their seizure were we to determine, as we have, that
the first search was constitutional.
37
laptop] for evidence of electronic mail hijacking and computer fraud pursuant to the
[f]irst [w]arrant.” Dist. Ct. Op. at 24. The district court further found that, as part of
that search, lawfully conducted pursuant to the parameters of the first warrant, Agent
Nishida would have searched the electronic folders where he discovered child
pornography when he executed the second warrant, including, the “My Documents”
folder, the “Bookmarks” tab of Loera’s internet browser, and a folder saved on the
Desktop titled “Allmyfiles.txt.” Id. at 24–25. The district court also accepted
Nishida’s statement that, had he found child pornography images on the laptop
during a search conducted solely pursuant to the first warrant, he would have “alerted
the case agent so that [he] could get a search warrant for child pornography.” Id. at
25.
The laptop, including the specific files referenced above, contained over 730
images and 40 movies involving child pornography. Id. at 24. To take one specific
example, the “Allmyfiles.txt” file, which the district court found Nishida would have
lawfully opened pursuant to the first warrant, contained files called “Spycam 9yr
Undress.” Id. Such information would have been sufficient to establish probable
cause to support a warrant to search all of the electronic devices belonging to Loera
that the government had in its possession, including the four CDs that Agent Cravens
searched unlawfully on November 27. That fact, combined with Agent Nishida’s
indication that he would have sought a warrant, allows us to conclude that the
inevitable discovery doctrine applies in this case such that the evidence discovered
pursuant to the second warrant did not need to be suppressed.
38
III. CONCLUSION
For the foregoing reasons, we AFFIRM the orders of the district court denying
the defendant’s motion to suppress and motion for reconsideration.
39