Eric Thomas v. United States ( 2019 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-12157
Non-Argument Calendar
________________________
D.C. Docket Nos. 8:17-cv-02161-VMC-CPT,
8:13-cr-00462-VMC-TBM-1
ERIC THOMAS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 17, 2019)
Before MARCUS, ROSENBAUM and HULL, Circuit Judges.
PER CURIAM:
Petitioner Eric Thomas appeals the district court’s denial of his 28 U.S.C.
§ 2255 motion to vacate, set aside, or correct his sentence. A judge of this Court
granted Thomas a certificate of appealability (“COA”) on the following issue:
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“Whether law enforcement’s delay in obtaining a federal warrant to seize
Mr. Thomas’s computer violated his Fourth Amendment possessory interest in the
device?” After review, we affirm the district court’s denial of Thomas’s § 2255
motion.
I. UNDERLYING CRIMINAL PROCEEDINGS
A. Initial Investigation and Indictment
On July 21, 2012, Thomas’s then-wife, Caroline Olausen, called police after
discovering suspected child pornography on one of their home computers. At the time
of the search, Thomas and Olausen were married and lived together in their marital
home. Olausen had access to and used the three household computers in Thomas’s
home office. When officers first arrived at the house, Thomas was still sleeping.
Olausen gave the officers consent to search the three computers in Thomas’s home
office, and the officers began searches of those computers.
At some point, Thomas woke up, spoke to one of the officers, and ultimately
revoked consent to search the computers. The officers then seized all three computers
from Thomas’s home office, to be searched once a warrant was obtained. On August
24, 2012, 33 days after the initial seizure, law enforcement obtained a federal search
warrant for one of Thomas’s computers, an HP desktop.1 The subsequent search of
that HP desktop revealed more than 900 images of child pornography.
1
Though the officers initially seized all three of Thomas’s home computers, they sought and
obtained a warrant only for the HP desktop. Thomas does not challenge the seizure of the other two
2
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In September 2013, a federal grand jury indicted Thomas on one count of
knowingly accessing with intent to view child pornography, in violation of 18 U.S.C.
§ 2252(a)(4)(B), (b)(2). Thomas pled not guilty.
B. Thomas’s Motion to Suppress
Prior to trial, Thomas moved to suppress the evidence gathered from the HP
desktop computer. Thomas challenged the search of the computer on several grounds,
but did not argue that the 33-day delay in obtaining the warrant itself rendered the
search invalid. Specifically, Thomas argued that: (1) Olausen’s uncorroborated
statement that she saw child pornography on the HP desktop did not provide probable
cause for the seizure of Thomas’s computer; (2) Olausen’s consent did not provide a
basis for the seizure because Thomas revoked consent; (3) no other exception to the
warrant requirement, such as plain view or exigent circumstances, justified the seizure
of Thomas’s computer in this case; and (4) the search of the computer was not
supported by probable cause because the facts in the warrant affidavit were stale and
unreliable.
A magistrate judge held three hearings on Thomas’s motion to suppress. The
testimony at the suppression hearings revealed the following details about the July 21,
2012, initial search at Thomas’s house and law enforcement’s subsequent efforts to
obtain a search warrant for the HP desktop.
computers. Rather, his sole argument is that the delay in obtaining a search warrant for the HP
desktop was unreasonable.
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Officer Matt Steiner of the Largo Police Department testified that he was the
first officer to arrive at Thomas’s house on July 21, 2012, in response to Olausen’s
call. Upon arriving, Steiner spoke to Olausen, who told him that when she got home
the night before, Thomas appeared nervous and had a racing heartbeat. Olausen then
explained that, when she turned on the HP desktop computer that morning and opened
Internet Explorer, she received a prompt asking if she wanted to restore the previous
browsing session. Olausen clicked “yes,” and eight to ten websites opened up.
Olausen described the websites as containing images of prepubescent and pubescent
girls, many of whom were naked and some of whom were performing oral sex on
adult men.
Thomas was sleeping when Steiner arrived, so Steiner asked Olausen for
consent to search the computers in the residence. Olausen told Steiner that Thomas
primarily used the computers for his home business, but that she also had access to
and used the computers. Olausen gave both verbal and written consent to search the
computers. Olausen’s written consent to the search included three computers—the
HP desktop, a Dell desktop, and a Toshiba tablet—as well as a Maxtor internal hard
drive, and allowed officers to remove any property from the home. Steiner looked at
the HP desktop and saw two websites still open, “NNLollys” and “HDSchoolTeens.”
Both websites showed pictures of young girls wearing only their underwear, but did
not depict any sexual activity.
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Detective Nathan Dix, a cyber crimes detective for the Largo Police
Department and task force agent with the Federal Bureau of Investigation’s (“FBI”)
Child Exploitation Task Force, testified that he was the third officer to arrive at
Thomas’s residence on July 21, 2012. After receiving a briefing from the other
officers on the scene, Dix took a quick look at the HP desktop before speaking to
Olausen. Dix saw two open websites containing images that he described as “child
erotica,” as well as terms and links “indicative of child pornography,” but no actual
child pornography. Dix explained that “child erotica” refers to material that does not
meet the legal definition of child pornography, but depicts children in a manner
intended to provide sexual arousal to individuals who are sexually attracted to
children. Dix testified that, in his experience, child erotica and child pornography are
often comingled on websites, and he had “never had a subject with child pornography
files on his computer that did not [also] have child erotica files on the computer.” Dix
also explained that the term “Lollys” in the “NNLollys” website is short for “Lolita,”
which is a common term used in child pornography to refer to young girls.
When Dix spoke to Olausen, she confirmed that she had given consent to
search the computers. Olausen also reiterated the information she provided to Steiner
earlier about Thomas’s unusual behavior the night before, their household computers,
and her discovery of the suspected child pornography that morning. Olausen told Dix
that she saw images of children between the ages of 4 and 13, most of whom were
nude. Olausen stated that some of the children were in “sex poses” or “being sexually
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abused,” and one of the images “depicted an adult male penis and a completely nude
child’s vagina.” Dix testified that, based on Olausen’s description, at least some of
the images she saw were child pornography.
After speaking with Olausen, Dix began a forensic search of the Dell desktop to
scan for video and image files. While Dix was analyzing the Dell desktop, Detective
Corey Monaghan arrived and began a forensic analysis of the HP desktop using a
program called OS Triage. At some point, Thomas woke up, and Monaghan left the
room to interview Thomas. Dix remained in the home office, completed the scan of
the Dell desktop, and began a scan of the Toshiba tablet.
About 40 to 45 minutes later, Monaghan returned to the office and informed
Dix that Thomas had revoked consent to search the computers. Dix and Monaghan
stopped their scans, but seized the computers because they had probable cause to
believe there was or could be child pornography on the computers, and there was a
“very high risk” that evidence could be destroyed if they left the computers in the
residence. Dix acknowledged that neither of the scans he performed on the Dell
desktop or the Toshiba tablet revealed any child pornography, but also explained that
those scans were merely a “preliminary review” and not “a full forensic review.”
Officer James Shinn of the Largo Police Department testified that when he
arrived at Thomas’s residence on July 21, 2012, Thomas was still asleep. Shinn’s job
was to keep watch and notify the investigating officers if Thomas woke up. When
Thomas did wake up, Shinn stopped him from entering the home office and directed
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him to the living room to speak with Detective Monaghan. Shinn did not participate
in the interview, but could hear Monaghan and Thomas’s conversation. Shinn heard
Monaghan ask Thomas for consent to search the computers, and Thomas gave verbal
consent. Monaghan then asked Thomas to fill out a written consent form, and
Thomas initially agreed. As he started to fill out the form, however, Thomas asked to
speak to Olausen. Monaghan encouraged Thomas to finish filling out the consent
form first, but Thomas began to equivocate and indicated he would not complete the
form until he spoke to Olausen. Monaghan left the room briefly to see if Olausen
would speak to Thomas, but Olausen refused. At that point, Thomas stated that his
sister was a lawyer and he would like to speak with her, and Monaghan then ended the
conversation. Thomas never completed the written consent form.
Detective Monaghan, a cyber crimes agent for the Florida Department of Law
Enforcement, testified that he was a member of the FBI’s Innocent Images Task Force
investigating online child exploitation. When he arrived at Thomas’s residence on
July 21, 2012, Monaghan received a briefing from Dix, who told him that Olausen
had consented to a search of the computers. Monaghan then began running the OS
Triage program on the HP desktop. Monaghan saw the “NNLollys” and
“HDSchoolTeens” websites on the HP desktop. Monaghan described the “NNLollys”
site as containing images of child erotica, as well as several links to other websites
with names indicative of child pornography.
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Monaghan explained that the OS Triage program he used to scan the HP
desktop does two things: first, it collects the computer’s internet history and “registry”
files 2; and second, it performs a scan of the computer’s image and video files for key
words indicative of child pornography. The first part occurs within the first minute of
starting the program. Thus, Monaghan was able to begin reviewing the HP desktop’s
internet history shortly after starting the OS Triage program. Within the internet
history, Monaghan saw websites with names indicative of child pornography. The
second part, which Monaghan referred to as a “deeper search” can take several hours
to complete. While that deeper search was running, Monaghan spoke to Olausen.
Olausen gave Monaghan the same description of events that she gave to Detective Dix
and Officer Steiner.
When Thomas woke up, Monaghan went into the living room to speak with
him. Monaghan explained to Thomas that Olausen had called the police about
suspected child pornography on his computer. Thomas denied viewing child
pornography. When Monaghan asked him for consent to search the computer,
Thomas said yes. Monaghan gave Thomas a written consent form, but Thomas stated
that he wanted to speak to Olausen.
Monaghan went to ask Olausen if she would speak to Thomas, but she refused.
When Monaghan returned and told Thomas that Olausen would not speak to him,
2
Monaghan explained that the computer’s registry “has data that the computer uses when it’s
trying to access different software programs.”
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Thomas stated that he would not sign the form without speaking to her. Monaghan
then tried to clarify with Thomas whether he was consenting to the search of the
computers, and ultimately determined that Thomas was revoking his consent to
search. Accordingly, Monaghan went back to the home office, told Dix consent had
been withdrawn, and cancelled the OS Triage program.
The officers seized Thomas’s computers. Monaghan testified that he believed
there was child pornography on the HP desktop because of Olausen’s statements and
the internet history results. Based on his experience, Monaghan believed it was likely
there would be child pornography on the other computers as well. Monaghan further
stated that, based on his experience, if they had left the computers at Thomas’s
residence, any evidence on the computers would have been destroyed.
Monaghan initially discussed obtaining a state search warrant for the HP
desktop with a state prosecutor on July 23, 2012, the Monday following the search,
which took place on Saturday, July 21. The state attorney requested that Monaghan
“clarify information about [Thomas] and [Olausen’s] relationship.” On July 26, 2012,
Monaghan again met with a state attorney, who stated that she would review the
warrant application and follow up with Monaghan the next day. Between July 27 and
August 22, 2012, Monaghan “had multiple [telephone] conversations” with the state
attorney “in reference to obtaining a search warrant for the computer media in this
case.” On August 22, 2012, the state attorney advised Monaghan there was
insufficient probable cause to obtain a state search warrant.
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That same day, August 22, Monaghan contacted a federal Assistant United
States Attorney (“AUSA”) about obtaining a federal search warrant. The AUSA
advised Monaghan to conduct an additional investigation by reviewing the OS Triage
results. Monaghan did so, and those results indicated access and viewing of child
pornography. The internet history contained website names indicative of child
pornography, and when Monaghan viewed some of those sites, he found at least one
image of child pornography. Monaghan conceded that he could not be sure the
content of the websites was the same on the day he reviewed them as it would have
been on July 20, 2012, when Thomas viewed them. Nonetheless, Monaghan
incorporated those results in his federal warrant application, which was submitted to
and approved by a magistrate judge on August 24, 2012. After obtaining the federal
warrant, the HP desktop was forensically analyzed, and the search revealed hundreds
of images of child pornography.
C. Magistrate Judge’s Report and Recommendation
Following the suppression hearings, the magistrate judge issued a report
recommending that Thomas’s motion to suppress be denied. The magistrate judge
found no Fourth Amendment violation as to the initial search of the computers based
on Olausen’s consent, given her actual or apparent authority over the computers. The
magistrate judge further determined that the search and seizure of data from the HP
desktop before Thomas revoked consent was proper, and Thomas’s revocation of
consent did not require suppression of the evidence already lawfully obtained. The
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magistrate judge noted that the “seizure of the HP computer and its removal from the
home [was] slightly more problematic,” but ultimately concluded the seizure was “of
little consequence,” as the computer was not actually searched until Monaghan
obtained a warrant. The magistrate judge determined that Monaghan had probable
cause to believe evidence of child pornography would likely be found on the HP
desktop when he seized the computer and that the evidence would be lost or destroyed
if they left the computer at the scene while seeking a search warrant. Finally, the
magistrate judge concluded that the warrant was supported by probable cause.
Over Thomas’s objections, the district court adopted the magistrate judge’s
recommendation and denied Thomas’s motion to suppress.
D. Trial, Sentencing, and Direct Appeal
After the district court denied Thomas’s motion to suppress, he proceeded to
trial. The jury found Thomas guilty as charged. The district court sentenced Thomas
to 96 months’ imprisonment, followed by a lifetime of supervised release.
Thomas appealed, challenging the district court’s denial of his motion to
suppress, and this Court affirmed. United States v. Thomas, 818 F.3d 1230 (11th Cir.
2016). On direct appeal, Thomas argued that Olausen lacked authority to consent to a
forensic search of the HP desktop and, as such, the officers did not have a lawful
ground for conducting the warrantless OS Triage scan of the computer. Id. at 1239.
Thomas further asserted that the results of the OS Triage scan and all the evidence
discovered after Monaghan obtained the search warrant (based on an affidavit that
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included the OS Triage results) should be suppressed as fruit of the poisonous tree.
Id.
This Court concluded that Olausen did have common authority over the HP
desktop, such that she could consent to the OS Triage scan, and that the fruits of the
search warrant were admissible. Id. at 1241-42. This Court also held that the
evidence seized from the HP desktop pursuant to the search warrant was admissible
under the independent source doctrine because, even absent the OS Triage results,
there was sufficient evidence to support a finding of probable cause that child
pornography would be found on the HP desktop. Id. at 1243-44. Accordingly, this
Court affirmed Thomas’s conviction. Id. at 1244.3
II. 28 U.S.C. § 2255 PROCEEDINGS
In September 2017, Thomas filed the instant counseled § 2255 motion.
Thomas asserted that his trial counsel was ineffective for failing to argue that the
evidence recovered from the HP desktop should have been suppressed due to law
enforcement’s unreasonable delay in obtaining a search warrant. In a supporting
memorandum, Thomas submitted that binding precedent at the time of his trial
established that a 33-day delay in securing a search warrant was unreasonable. Thus,
Thomas’s trial counsel was ineffective in failing to raise the delay as a basis for
Thomas’s suppression motion. Thomas further contended that counsel’s deficient
3
The Supreme Court denied Thomas’s petition for a writ of certiorari. Thomas v. United
States, 137 S. Ct. 171 (2016).
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performance prejudiced him because, had his suppression motion been granted, the
government would have had no evidentiary basis for his conviction. Thomas also
requested an evidentiary hearing.
In response, the government argued that Thomas failed to show deficient
performance because the 33-day delay in obtaining the warrant was not unreasonable.
The government asserted that Monaghan diligently pursued a state search warrant and,
when he learned the state would not proceed, immediately sought a federal warrant.
The government stressed that Thomas never requested the return of his computer or
any files contained therein during the 33-day period before Monaghan obtained the
federal warrant. The government further submitted that it was not necessary for
Monaghan to pursue federal and state warrants simultaneously. The government
maintained that trial counsel’s decision to pursue four other suppression arguments
was a strategic choice. The government opposed Thomas’s request for an evidentiary
hearing.
Thomas filed a reply, reiterating the need for an evidentiary hearing. Thomas
rejected the government’s argument that his trial counsel made a strategic choice in
not raising the delay issue, noting there was no evidence in the record regarding trial
counsel’s decision-making process. Thomas also contested the government’s
assertion that the 33-day delay was reasonable. Thomas contended that the record
contained no details about the warrant application process during the 25-day period
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from July 27 through August 22, and that gap showed a lack of diligence on the part
of the government.
In a surreply, the government attached an affidavit from Thomas’s former trial
counsel, Matthew Farmer. In the affidavit, Farmer recounted the four suppression
theories he had raised on Thomas’s behalf, including that the warrant application was
stale due to the delay in obtaining the federal warrant. Farmer stated that he did “not
recall whether or not [he] considered asserting a distinct fifth theory of suppression
based on the passage of 33 days between the seizure of Mr. Thomas’ computer and
the issuance of the federal search warrant,” but that he did “recall that [he] did not file
such a motion.” 4 Farmer also stated, however, that “[a]ccording to discovery
provided by the government and information [he] obtained through Florida’s Public
Records Act, [he] learned that the case agent repeatedly attempted during the period
of July 21, 2012 to August 22, 2012 to encourage the Pinellas-Pasco State Attorney’s
Office to seek a state judicial warrant for a search of Mr. Thomas’s computer, which
remained in the custody of law enforcement.” Farmer further noted that he was not
4
At one of the suppression hearings, the magistrate judge flagged the delay as a possible
issue, stating:
I haven’t said, but there is a recent case in the Eleventh Circuit—I haven’t
argued this case, and I’m not going to consider it as part of the argument, but there is a
recent case in which the Eleventh Circuit said that there was undue delay in obtaining
a warrant where they had seized a computer and then the agent had gone off to some
kind of training program or something, and the argument was made that the search
warrant should be invalidated because it was—there was undue delay, and the court
actually agreed with that because of the nature of information kept on the computers
and the usability of it and so forth. But it’s for another day. I just throw that out. You
may want to take a look at that case if you get a chance.
However, neither the parties nor the magistrate judge or district court expressly addressed that issue.
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aware of “any efforts during this period by Mr. Thomas to request the return of his
property,” but that his representation of Thomas began many months later.
Ultimately, the district court denied Thomas’s § 2255 motion and his requests
for an evidentiary hearing and a COA. The district court determined that the delay in
obtaining a warrant in Thomas’s case was not unreasonable. The district court found
that Monaghan diligently pursued a state search warrant initially because he believed
the investigation would proceed in state court, and immediately began pursuing a
federal warrant when he learned the state would not prosecute. The district court
stated that “Monaghan was pursuing a search warrant during the entire [33]-day
period before the warrant was issued,” and under the circumstances, the timing was
reasonable. The district court further concluded that, because Thomas did not show
the delay was unreasonable, he could not show he was prejudiced by trial counsel’s
failure to raise that issue.
Thomas then moved for a COA in this Court, and a judge of this Court granted
him a COA on the following issue: “Whether law enforcement’s delay in obtaining a
federal warrant to seize Mr. Thomas’s computer violated his Fourth Amendment
possessory interest in the device?”
III. COA GRANT
As a preliminary matter, we note that the COA granted in this case does not
specify the correct legal issue. That is because it addresses only the merits of the
underlying Fourth Amendment claim Thomas asserts his trial counsel should have
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raised, rather than the overarching ineffective-assistance claim that was the basis of
Thomas’s § 2255 motion. While it is necessary to consider the merits of the
underlying Fourth Amendment issue to determine whether Thomas’s counsel
performed deficiently, a COA is required, but missing, on the ineffective assistance
claim that Thomas actually raised, and the district court actually ruled on.
Nonetheless, after review, we conclude that the issue here is not frivolous, and we
thus sua sponte expand the COA to include whether the district court erred in denying
Thomas’s ineffective assistance claim (which itself encompasses a consideration of
the Fourth Amendment question already granted). See Mays v. United States, 817
F.3d 728, 733 (11th Cir. 2016) (recognizing this Court’s power to expand a COA sua
sponte); Dell v. United States, 710 F.3d 1267, 1272-73 (11th Cir. 2013) (same).
With that, we now turn to the merits of Thomas’s § 2255 motion.
IV. MERITS DISCUSSION
A. Ineffective Assistance Claim
Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), a
movant demonstrates ineffective assistance of trial counsel by showing that
(1) counsel’s representation fell below an objective standard of reasonableness, and
(2) counsel’s deficient performance prejudiced the defendant. Nejad v. Att’y Gen.,
830 F.3d 1280, 1290 (11th Cir. 2016). The movant must satisfy both prongs to
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demonstrate ineffective assistance of counsel. Bishop v. Warden, 726 F.3d 1243,
1254 (11th Cir. 2013). 5
Trial counsel’s performance is entitled to a presumption of reasonableness and,
to overcome that presumption, a defendant must show that “no competent counsel
would have taken the action that his counsel did take.” Chandler v. United States, 218
F.3d 1305, 1315 (11th Cir. 2000). To show prejudice on an ineffective assistance
claim based on trial counsel’s failure to raise an issue in a motion to suppress, a
movant must show that (1) his underlying Fourth Amendment claim is meritorious,
and (2) there is a reasonable probability the verdict would have been different if the
evidence were suppressed. See Zakrzewski v. McDonough, 455 F.3d 1254, 1260
(11th Cir. 2006).
B. Fourth Amendment Precedent
The Fourth Amendment protects against unreasonable searches and seizures.
U.S. Const. amend. IV. A seizure that is lawful at its inception may nonetheless
violate the Fourth Amendment if the manner of its execution unreasonably infringes
on a possessory interest protected by the Fourth Amendment. See United States v.
Jacobsen, 466 U.S. 109, 124, 104 S. Ct. 1652, 1662 (1984). As relevant here, this
5
In reviewing the denial of a § 2255 motion raising ineffective assistance of counsel claims,
we review legal questions de novo and factual findings for clear error. Rhode v. United States, 583
F.3d 1289, 1290 (11th Cir. 2009). We review the denial of an evidentiary hearing in a § 2255
proceeding for an abuse of discretion. Winthrop-Redin v. United States, 767 F.3d 1210, 1215 (11th
Cir. 2014). A district court abuses its discretion if it applies an incorrect legal standard, unreasonably
or incorrectly applies the law, follows improper procedures in making its determination, or makes
clearly erroneous factual findings. Id.
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Court has held that the seizure of a computer based on probable cause is
unconstitutional if law enforcement acts with “unreasonable delay” in securing a
search warrant. United States v. Mitchell, 565 F.3d 1347, 1350-51 (11th Cir. 2009).
When evaluating the reasonableness of the government’s delay in obtaining a
search warrant, we must carefully balance governmental and private interests. Id. at
1351; United States v. Laist, 702 F.3d 608, 613 (11th Cir. 2012). In doing so, “rather
than employing a per se rule of unreasonableness,” we “evaluate the totality of the
circumstances presented by each case.” Laist, 702 F.3d at 613 (internal quotation
marks omitted); Mitchell, 565 F.3d at 1351 (“The reasonableness of the delay is
determined in light of all the facts and circumstances, and on a case-by-case basis.”
(internal quotation marks omitted)).
C. Our Precedent in Mitchell and Laist
As background, and because the parties rely so heavily on them, we discuss our
decisions in United States v. Mitchell and United States v. Laist regarding whether a
governmental delay of some 20 to 25 days in submitting an application for a search
warrant, while holding a computer based on probable cause, is an unreasonable
seizure under the Fourth Amendment.6
6
The parties also cite our decision in United States v. Sparks, 806 F.3d 1323 (11th Cir. 2015).
In that case, the defendants left their cell phone at a Walmart store, and the employee who found it
turned the phone over to law enforcement after discovering images of child pornography on the
phone. Id. at 1329. On appeal, the defendants challenged, among other things, the 23-day delay
between the phone being turned over and law enforcement obtaining a search warrant. Id. at 1338.
This Court did not reach the issue of whether the delay was reasonable, however, because the Court
concluded that the defendants abandoned their possessory interest in the phone, at most, three days
after law enforcement seized the phone. Id. at 1339.
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We begin with Mitchell, a 21-day delay case. In Mitchell, the defendant was
identified as a possible target in a large-scale child pornography investigation. 565
F.3d at 1348-49. On February 22, 2007, two law enforcement agents went to
Mitchell’s residence and asked to speak to him about an ongoing investigation. Id. at
1349. Mitchell agreed to speak with the agents and let them in. Id. The agents told
Mitchell they were investigating child pornography, and Mitchell admitted he had
purchased subscriptions to two child pornography websites. Id. Mitchell also told the
agents he had two computers in the house, one of which was a desktop that Mitchell
primarily used. Id. The agents asked Mitchell whether either computer contained
“illegal contraband” and whether they contained child pornography, and Mitchell
responded “yes, probably” to both questions. Id. Mitchell would not consent to a
search of the desktop computer, but admitted to the agents that the desktop was the
computer that contained child pornography. Id. Accordingly, the agents seized the
desktop computer’s hard drive and took it with them. Id.
A few days later, on February 25, 2007, the primary case agent traveled out of
state to attend a two-week training course. Id. It was not until March 15, 2007, three
days after the agent’s return from that training and 21 days after the initial seizure,
that the primary case agent obtained a warrant to search the hard drive. Id. The
warrant application that the agent submitted was comprised primarily of boilerplate
language, with only six paragraphs of original content. See id. at 1349-50. After the
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warrant was issued, the agent searched Mitchell’s hard drive and discovered images of
child pornography. Id. at 1350.
Mitchell was indicted, but moved to suppress the evidence recovered from the
search of his hard drive. Id. The district court denied his motion, and Mitchell pled
guilty while preserving his right to appeal the suppression issue. Id. On appeal,
Mitchell argued that the 21-day delay in obtaining the search warrant was
unreasonable. Id.
This Court explained that, “while the initial seizure of [Mitchell’s] hard drive
was permissible,” a seizure based on probable cause can be unconstitutional “if the
police act with unreasonable delay in securing a warrant.” Id. (internal quotation
marks omitted). This Court further explained that “[t]he reasonableness of the delay
is determined in light of all the facts and circumstances, and on a case-by-case basis.”
Id. at 1351 (internal quotation marks omitted). “The reasonableness determination
will reflect a careful balancing of governmental and private interests.” Id. (internal
quotation marks and alteration omitted).
As to Mitchell’s possessory interest, this Court noted that “[c]omputers are
relied upon heavily for personal and business use,” and a three-week detention of
Mitchell’s hard drive before obtaining a warrant “constitute[d] a significant
interference with Mitchell’s possessory interest.” Id. That interference was not
eliminated by Mitchell’s admissions to law enforcement that the computer contained
child pornography, which provided the probable cause for the seizure. Id.
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As to the government’s interest, the Mitchell Court found the government’s
“excuse offered for the three-week delay in applying for a warrant [was] insufficient.”
Id. at 1352. The Court emphasized that the agent had two-and-a-half days to seek a
warrant before he left on his training, the warrant affidavit itself was largely
composed of boilerplate language and could have been put together quickly, and the
other investigating agent could have secured a warrant in the primary case agent’s
absence. Id. at 1351. The Court further emphasized that the “only reason” the agent
gave for the 21-day delay was that he “didn’t see any urgency of the fact that there
needed to be a search warrant during the two weeks that he was gone, and that he felt
there was no need to get a search warrant for the content of the hard drive until he
returned back from training.” Id. (internal quotations and alterations omitted).
This Court also rejected the government’s argument that the delay “had no
practical effect upon Mitchell’s rights” because the forensic examination of his
computer could not have been done until the case agent returned from his training in
any event. Id. at 1352. The Court explained that this argument was “predicated on
the premise that [the agent’s] attendance at the training session would have provided
an excuse for the delay in applying for the warrant and, if a warrant had been
obtained, it would have justified a delay in commencing the search of the hard drive.”
Id. In rejecting that premise, the Court stressed that the purpose of securing a warrant
quickly is to ensure that a suspect’s property is promptly returned if the search reveals
no incriminating evidence, and “this consideration applies with even greater force to
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the hard drive of a computer, which is the digital equivalent of its owner’s home.” Id.
(internal quotation marks omitted).
Under the circumstances, this Court concluded that the government’s “excuse
offered for the three-week delay in applying for a warrant [was] insufficient.” Id.
The Court reiterated, however, that the reasonableness inquiry is dependent on all of
the circumstances and observed that there may be some circumstances when “a delay
that might otherwise be unduly long would be regarded as reasonable.” Id. at 1352-
53. This Court stated, “we emphasize again that we are applying a rule of
reasonableness that is dependent on all of the circumstances.” Id. at 1352. The
problem in Mitchell’s case was that law enforcement made “[n]o effort . . . to obtain a
warrant within a reasonable time” because they “simply believed that there was no
rush.” Id. at 1353. This Court therefore concluded that, under those circumstances,
the 21-day delay in obtaining the warrant was unconstitutional, and Mitchell’s motion
to suppress should have been granted. Id.
By contrast, in Laist, this Court held that a 25-day delay in obtaining a warrant
to search the defendant’s computer was reasonable. 702 F.3d at 610. In Laist, the
FBI identified the defendant, a University of Georgia student, as a suspect in a child
pornography investigation. Id. On March 4, 2009, agents visited Laist’s apartment
and asked to speak with him. Id. Laist agreed and allowed the agents into his
apartment. Id. When the agents informed Laist that there was reason to believe his
computer contained child pornography, Laist admitted that it did. Id. He also
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admitted that he had child pornography on five external hard drives. Id. Laist signed
two consent forms authorizing the seizure of his computer and hard drives, provided
the agents with his username and password, and accessed the computer to show the
agents an image of child pornography. Id. at 610-11. The agents determined that they
needed to seize the computer and hard drives, but first allowed Laist to copy whatever
files he wanted onto a different external hard drive. Id. at 611.
Subsequently, on March 11, 2009, Laist’s attorney drafted a letter revoking
consent to the search and seizure, which the FBI received on March 12, 2009. Id.
That same day, the case agent contacted the AUSA to determine what needed to be
done and began preparing a warrant affidavit and application. Id. At the time, the
case agent was stationed in a two-person office covering a ten-county area. Id. The
warrant affidavit, which was highly detailed and specific to the facts of the case, was
submitted to a magistrate judge on April 7, 2009. Id. Because of the magistrate
judge’s busy schedule, however, the warrant was not issued until April 13, 2009. Id.
at 612.
Upon searching the computer and hard drives, the FBI discovered thousands of
images and videos of child pornography. Id. In 2011, Laist was indicted and charged
with possession and receipt of child pornography. Id. Laist moved to suppress the
evidence obtained from his computer and hard drives, arguing that the delay in
obtaining the search warrant was unreasonable. Id. The district court denied the
motion to suppress, and Laist pled guilty. Id. at 610, 612.
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On appeal in Laist, this Court emphasized that the reasonableness inquiry does
not employ per se rules, but instead involves balancing of private and governmental
interests based on the totality of the circumstances. Id. at 613. The Laist Court then
identified several “highly relevant” factors to consider in this context: (1) the
significance of the interference with the person’s possessory interest; (2) the duration
of the delay; (3) whether the person consented to the seizure; and (4) the
government’s legitimate interest in holding the property as evidence. Id. at 613-14.
The Laist Court also observed that, in determining the reasonableness of the
government’s actions, courts must take into account whether law enforcement were
diligent in pursuing their investigation. Id. at 614. In doing so, courts may consider:
(1) the nature and complexity of the investigation, and whether overriding
circumstances arose, necessitating a diversion of law enforcement resources; (2) the
quality of the warrant application and the amount of time one would expect it would
take to prepare; and (3) any other evidence pertaining to law enforcement’s diligence.
Id. This Court emphasized that the balancing calculus in this area is “fact-intensive”
and not easily reduced to brightline rules, as a delay as short as 90 minutes might be
unreasonable in some contexts, while in others a delay of more than three months
might be reasonable. Id.
Addressing the facts of Laist’s case, this Court first determined that it would be
improper to attribute the six-day delay caused by the magistrate judge to the
government under the circumstances. Id. at 614-16. The Court explained that doing
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so “would fail to serve the purposes for which [the exclusionary rule] remedy was
created.” Id. at 614-15. In particular, the Court stressed that the sole purpose of the
exclusionary rule is to deter future Fourth Amendment violations, not to redress an
injury already suffered. Id. at 615. As such, where suppression would not yield
appreciable deterrence, exclusion is unwarranted. Id. The Court reasoned that
attributing the magistrate judge’s delay to the government in Laist’s case would not
have any appreciable deterrent effect, as there was no reason why “the government,
having completed the warrant application, would want to delay further the time when
its search became lawful.” Id.
Moreover, the Laist Court noted that the Supreme Court had long held that
“when it comes to applying the exclusionary rule, the identity of the responsible party
does matter,” and that the failings of judges and magistrate judges do not trigger the
same remedy as those of law enforcement. Id. at 615-16. The Court also rejected
Laist’s argument that the government should have sought out a new magistrate judge,
stating that such a requirement would encourage forum shopping. Id. at 616. Thus,
the Court considered only the 25-day period from March 12 (the day consent was
withdrawn) to April 7 (the day the warrant application was submitted) in determining
whether the delay was reasonable. Id.
The Laist Court then turned to the “essential question” of “whether the 25-day
delay in this case was unreasonable” and held that it was not. Id. The Court noted
that Laist undoubtedly retained a significant possessory interest in his computer and
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hard drives, and that the interference with that interest was not insubstantial. Id.
Nonetheless, the Court also concluded that Laist’s possessory interest was diminished
for several reasons: (1) Laist was given the opportunity to remove whatever files he
wanted from the computer and hard drives before turning them over; (2) Laist did not
request that he be allowed to access any additional files after revoking his consent;
and (3) Laist admitted to the presence of child pornography on his computer and
actually showed the agents an image of child pornography on the computer during the
interview. Id. The Court pointed out that this last fact both diminished Laist’s
interest in the computer and enhanced the government’s legitimate interest in
maintaining custody of the computer as evidence of a crime. Id.
The Laist Court further concluded that the government acted diligently, and
thus reasonably, in pursuing the search warrant. Id. at 616-17. In particular, the Court
noted that: (1) the case agent immediately began preparing a warrant affidavit on the
day he learned Laist had revoked consent; (2) in the weeks prior to submitting the
warrant application, the case agent exchanged rounds of edits with the AUSA; and
(3) the warrant affidavit was not “replete with boilerplate language,” but instead
contained a highly detailed account of the investigation and Laist’s conduct. Id. at
617. The Laist Court further noted that “[a]n investigation of this scope and
complexity requires more time to prepare a warrant” than a simpler case would. Id.
Furthermore, the case agent was extremely busy, given that he worked in a very small,
two-person office that covered a comparatively large geographical area. Id. In sum,
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the Court concluded that, although a 25-day delay is “far from ideal,” under the
totality of the circumstances in Laist’s case, the government’s actions were
sufficiently diligent and reasonable. Id.
As a final point, the Laist Court rejected Laist’s argument that Mitchell
compelled a different result. Id. at 617-19. The Court explained that the facts of
Laist’s case were readily distinguishable from Mitchell, emphasizing that: (1) the
defendant in Mitchell did not consent to the seizure; (2) unlike the agents in Mitchell,
the agents in Laist had actually seen child pornography on the computer; (3) Laist was
permitted to remove personal files from the computer before it was seized; (4) the
case agent in Laist acted far more diligently to prepare the warrant application than
the agent in Mitchell, whose only excuse for the delay was that he did not see any
urgent need to obtain a warrant; (5) unlike the application in Mitchell, the application
in Laist was not largely boilerplate; and (6) there was no evidence the agent in
Mitchell was busy at the time. Id. at 618. The Court similarly dismissed Laist’s
argument that Mitchell established a brightline rule that any delay over 21 days is
unreasonable. Id. The Court reiterated that the reasonableness determination is
highly fact-specific and “always based on the totality of the circumstances.” Id.
D. Analysis
Neither Mitchell nor Laist directly resolves Thomas’s case. As both of those
cases acknowledge, the reasonableness inquiry in this context is highly fact-specific
and based on the totality of the circumstances in each individual case. See id. at 614
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(stating that the balancing calculus is “fact-intensive”); Mitchell, 565 F.3d at 1352
(emphasizing that “reasonableness . . . is dependent on all of the circumstances”).
And the facts and circumstances of Thomas’s case are different from those in both
Mitchell and Laist. Thus, while Mitchell and Laist provide some guidance on how to
evaluate Thomas’s case, we must examine his case on its own particular facts to
determine whether, under the totality of the circumstances here, the government’s 33-
day delay in obtaining a search warrant for the HP desktop was reasonable.
On Thomas’s side of the balance, we note that Thomas retained a significant
possessory interest in his computer. See Laist, 702 F.3d at 616; Mitchell, 565 F.3d at
1351. Thomas used the HP desktop both as a personal computer and for his home
business, he did not consent to the seizure of the computer, and he denied that the
computer contained any child pornography. And the government’s interference with
Thomas’s possessory interest by holding his computer for 33 days without his consent
was not insubstantial. See Laist, 702 F.3d at 616.
Nevertheless, Thomas’s possessory interest in the HP desktop was somewhat
diminished for at least two reasons. First, though the officers themselves did not see
any child pornography on the HP desktop, they had very strong reasons to believe that
a search of the computer would reveal child pornography based on: (1) Olausen’s
statements describing the images of child pornography she saw on the computer
before police arrived; (2) their own observation of child erotica on the computer,
which Dix testified is commonly found alongside child pornography; and (3) the links
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on the “NNLollys” website, which were indicative of child pornography. These facts
both diminish Thomas’s possessory interest in the HP desktop and enhance the
government’s interest in maintaining custody of it as substantial evidence of a serious
federal crime. See Laist, 702 F.3d at 616.
Second Thomas did not request the return of the HP desktop during the 33 days
it took the government to secure a search warrant. See United States v. Burgard, 675
F.3d 1029, 1033 (7th Cir. 2012) (“[I]t can be revealing to see whether the person from
whom the item was taken ever asserted a possessory claim to it—perhaps by checking
on the status of the seizure or looking for assurances that the item would be returned.
If so, this would be some evidence (helpful, though not essential) that the seizure in
fact affected [his] possessory interests.”); see also United States v. Stabile, 633 F.3d
219, 235 (3d Cir. 2011) (concluding three-month delay in obtaining a warrant, caused
by the lead agent’s assignment on a protective Secret Service detail, was reasonable
where the defendant did not request return of his hard drive until 18 months after the
initial seizure). Additionally, though Thomas was not given the opportunity to
remove any files from the HP desktop before it was seized, he also never requested
access to the computer after the seizure to retrieve any files he might need. See Laist,
702 F.3d at 616.
Of course, even when a defendant’s possessory interest in a computer is
diminished, the government still must act diligently to obtain a search warrant. Id.
Several facts bear on the government’s diligence here. To start, Agent Monaghan
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began his efforts to obtain a state search warrant just two days after seizing Thomas’s
computers. The seizure occurred on Saturday, July 21, 2012, and Agent Monaghan
prepared a draft of the warrant affidavit and presented it to the state attorney the
following Monday, July 23, 2012. Over the course of the next few days, between July
23 and July 26, Agent Monaghan took additional investigative steps at the request of
the state attorney and submitted the warrant application to the state attorney for
review. Thus, within five days of seizing the HP desktop, Agent Monaghan had
already completed and tendered a case-specific affidavit and warrant application to
the state attorney for the purpose of obtaining a state search warrant. These early
efforts demonstrate that Agent Monaghan acted with dispatch in seeking a warrant
and are a far cry from the complete lack of effort exercised by the agent in Mitchell,
who did nothing to secure a warrant for three weeks simply because he believed there
was no rush. See Mitchell, 565 F.3d at 1351, 1353.
Notably too, Monaghan was a state law enforcement officer, albeit one who
also worked with the FBI’s Innocent Images Task Force. The other four officers who
were present during the search at Thomas’s house on July 21, 2012, were officers of
the City of Largo, Florida Police Department. Monaghan indicated at the suppression
hearing that he believed the case against Thomas would proceed in the state system,
that he had experience prosecuting child pornography offenses under state law, and
that he believed there was probable cause for a search warrant in Thomas’s case under
Florida law. Given all of these circumstances, it was reasonable for Monaghan to
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initially seek a search warrant in state court by coordinating with the state attorney’s
office.
Moreover, even during the 25-day period from July 27 to August 22, when the
state attorney was considering whether there was probable cause for a warrant under
state law, Agent Monaghan did not just sit on his hands. Rather, as his police reports
reflect, Agent Monaghan “had multiple [telephone] conversations” with the state
attorney during that period “in reference to obtaining a search warrant for the
computer media in [Thomas’s] case.” Indeed, the affidavit from Farmer, Thomas’s
trial counsel, confirms that Agent Monaghan “repeatedly attempted . . . to encourage
the Pinellas-Pasco State Attorney’s Office to seek a state judicial warrant” during that
time. And within two days of learning that the state attorney would not pursue a state
search warrant, Agent Monaghan prepared and submitted a federal warrant
application. As soon as Agent Monaghan learned on August 22, 2012, that the state
prosecutor would not seek a state search warrant, he reached out to an AUSA about
obtaining a federal search warrant. The AUSA advised Agent Monaghan to review
the OS Triage results, and once Monaghan had incorporated those results into the
federal warrant application, he submitted it on August 24, 2012.7
7
We note that Thomas’s case presents a materially different situation than the Fourth
Circuit’s recent decision in United States v. Pratt, 915 F.3d 266 (4th Cir. 2019). In Pratt, there was a
31-day delay in obtaining a warrant for the defendant’s cell phone because the defendant had
committed crimes in both North and South Carolina, and the government had to decide the location
where to seek a warrant. Id. at 272. The Fourth Circuit held that the agents did not act diligently in
that case because it “shouldn’t have taken a month” for the agents to decide where to seek a warrant,
particularly given the government’s concession that it was “unlikely that the forum for a warrant
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Taking all of these efforts by Agent Monaghan together, it is clear that the
delay in this case “was not the result of complete abdication of his work or failure to
‘see any urgency.’” See Burgard, 675 F.3d at 1034 (quoting Mitchell, 565 F.3d at
1351). To be sure, with the benefit of hindsight, we can imagine other paths Agent
Monaghan might have pursued to secure a warrant more quickly—perhaps by seeking
a federal warrant in the first instance. Id. “[B]ut that does not necessarily mean that
[Agent Monaghan’s] conduct was unreasonable.” Id. Indeed, we have found no case,
and Thomas points to none, holding that law enforcement must always seek a federal
warrant first, must seek federal and state warrants simultaneously, or must switch
gears and seek a federal warrant if the state warrant application process is taking too
long.
Ultimately, our task here is to determine, considering all the circumstances and
balancing Thomas’s possessory interest in the HP desktop against the government’s
interest in maintaining custody of it as evidence of a crime, whether Agent
Monaghan’s efforts in this case were sufficiently diligent and, therefore, reasonable.
See Laist, 702 F.3d at 613, 616; Mitchell, 565 F.3d at 1350-51. Under the totality of
the circumstances here, we conclude that they were. As we explained above,
would affect a later prosecution.” Id. Further, in Pratt, the government was not waiting for a state
prosecutor to act.
Here, by contrast, Agent Monaghan determined at the outset to seek a state warrant, believing
that the case would proceed in state court, and quickly took steps toward obtaining such a warrant.
Monaghan also repeatedly communicated with the state prosecutor, and then obtained a federal
warrant just two days after the state prosecutor declined to pursue a state warrant.
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Thomas’s possessory interest in the HP desktop was diminished by his failure to
request access to or the return of the computer after it was seized and the
government’s several strong reasons to believe that child pornography would be found
on the computer. Meanwhile, the government had a compelling interest in retaining
the laptop as evidence of a serious federal crime in this case—the agents may not have
seen child pornography on the computer themselves, but the child erotica images,
links to other websites indicative of child pornography, and Olausen’s descriptions of
the images she saw gave every indication that a search of the computer would reveal
child pornography. Importantly, Agent Monaghan acted diligently in pursuing a
search warrant. Agent Monaghan began the process just two days after seizing the HP
desktop, submitted a warrant application to the state attorney less than a week after
the initial seizure, remained in contact with the state attorney while she was reviewing
the warrant application, and promptly pursued a federal search warrant when the state
declined to pursue the case. In light of all of these facts and circumstances, the 33-day
delay in obtaining a warrant in this case, though by no means ideal, was not
unreasonable. See Laist, 702 F.3d at 617.
Accordingly, because the delay here was not unreasonable under the totality of
the circumstances, Thomas’s trial counsel was not deficient for failing to raise the
delay issue as one of the grounds in Thomas’s motion to suppress. See Denson v.
United States, 804 F.3d 1339, 1342 (11th Cir. 2015) (“Failing to make a meritless
objection does not constitute deficient performance.”). Furthermore, because we
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conclude that the delay issue ultimately lacks merit, Thomas also cannot show
prejudice. See Zakrzewski, 455 F.3d at 1260.
IV. CONCLUSION
For the reasons outlined above, we conclude that the district court did not err in
concluding that Thomas’s § 2255 motion lacked merit. Accordingly, we affirm the
district court’s denial of Thomas’s § 2255 motion.
AFFIRMED.
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