United States v. James Morgan , 562 F. App'x 123 ( 2014 )

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No: 13-3405
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UNITED STATES OF AMERICA
v.
JAMES A. MORGAN,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-12-cr-00023-001)
District Judge: Hon. Joel H. Slomsky
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Submitted Under Third Circuit LAR 34.1(a)
March 28, 2014
Before: FUENTES and SHWARTZ, Circuit Judges, and ROSENTHAL, District Judge.*
(Filed: April 1, 2014)
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OPINION OF THE COURT
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ROSENTHAL, District Judge.
*
The Honorable Lee H. Rosenthal, United States District Judge for the Southern
District of Texas, sitting by designation.
The defendant, James Morgan, appeals his conviction for using a computer to
possess and send child pornography and to send sexually explicit communications to a
person he thought was a 13-year-old girl, but who in fact was an undercover law-
enforcement agent. The only issue on appeal is the District Court’s denial of Morgan’s
motion to suppress evidence seized pursuant to a search warrant and motion to suppress
inculpatory statements he made to FBI agents. Morgan entered a conditional guilty plea,
preserving his right to appeal the District Court’s judgment. Finding no error, we will
affirm.1
I. Background
On September 14, 2011, an undercover agent working for the Somervell County
Sheriff’s Office in Glen Rose, Texas entered a Yahoo!™ (“Yahoo”) internet chat room
and pretended to be a 13-year-old girl. The agent engaged in an internet chat with a
person using the name “Wook_Inky 101.” This person described himself as a father
living in Pennsylvania. Wook_Inky 101 sent the person he believed to be a 13-year-old
girl multiple explicit sexual messages, 15 images showing children in sexual acts, and,
using the computer’s webcam, video images of himself masturbating during the chat.
Between September 14 and December 2, 2011, Wook_Inky 101 and the
undercover agent had at least eight more internet chats. Wook_Inky 101 continued to
send images and videos of child pornography, webcam transmissions showing himself
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and this court has jurisdiction
pursuant to 28 U.S.C. § 1291. In reviewing the denial of a motion to suppress, this court reviews the
factual findings of the District Court for clear error and exercises plenary review of the District Court’s
application of the law to those facts. United States v. Price, 622 F.3d 209, 210 (3d Cir. 2010).
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masturbating, and explicit sexual messages. One webcam transmission the agent viewed
showed Wook_Inky 101 inserting a small baseball bat with lettering into his anus.
Wook_Inky 101 was wearing a shirt with a clearly visible design. In one chat,
Wook_Inky 101 told the “girl” that he wanted to come to Texas, where he believed she
lived, and that he and the “girl” would “have to make plans to have sex in person.” App.
at 53A.
On September 20, 2011, a federal grand jury issued Yahoo a subpoena ordering it
to provide information about the Wook_Inky 101 user. Yahoo’s information showed that
communications from Wook_Inky 101 originated from an internet protocol address
assigned to Verizon. Those records were subpoenaed and showed that the address was
assigned to James A. Morgan, 474 Edgewood Drive, Hatfield Boro, Pennsylvania. The
FBI verified with the Postal Service that someone named James Morgan and others with
the same last name received mail at that address.
On December 16, 2011, the FBI applied for and obtained a warrant to search the
474 Edgewood Drive residence. FBI Agent James Zajac submitted a lengthy affidavit
supporting the application. The warrant authorized searching the residence’s computers,
including hard drives, for depictions of child pornography, communications with
potential minors that were sexual in nature, and related materials. The warrant also
authorized agents to search for a baseball bat and a shirt, both specifically described to
match what the undercover agent saw on the webcam transmissions from Wook_Inky
101.
3
The FBI executed the search warrant on December 20, 2011. FBI agents,
including Agent Zajac, entered the residence and were met by Emma Morgan, the
appellant’s mother. The upstairs bedroom, which Emma Morgan said belonged to her
son, looked like the room the Wook_Inky 101 user was in when he sent the video of
himself masturbating. Agents found and seized the computer in that bedroom, as well as
a small baseball bat and shirt matching those described in the warrant.
Emma Morgan told the agents that Morgan was working at his job at a nearby
Costco. Agents Zajac, Michael Ruibal, and Michael Dzielak drove to the Costco and
asked to speak with Morgan. The agents were dressed in street clothes. They were
armed, but they did not draw or display their weapons. The agents did not tell the Costco
employees why they wanted to talk to Morgan.
An assistant manager took the agents to a room near the auto shop. The assistant
manager then found Morgan and took him to the room where the FBI agents were
waiting. Agent Ruibal stood outside the room while Agents Zajac and Dzielak
questioned Morgan. The questioning lasted about two hours. Before the agents had an
opportunity to introduce themselves, Morgan said, “I didn’t travel anywhere. I didn’t —
I didn’t travel to meet anybody.” App. at 103A. Morgan later admitted having the
internet chats and sending the sexual images, messages, and webcam videos, and that he
thought he was communicating with a 13-year-old girl in Texas. The agents arrested
Morgan when the questioning ended. No Miranda warnings were given. At no point did
Morgan ask to leave or stop the interview, or talk to an attorney.
4
On January 19, 2012, Morgan was charged with one count of using interstate
communications to attempt to seduce a minor, in violation of 18 U.S.C. § 2422(b); four
counts of transferring obscene material to a minor, in violation of 18 U.S.C. § 1470; four
counts of transporting and shipping images of child pornography, in violation of 18
U.S.C. § 2252(a)(1); and one count of possession of child pornography, in violation of 18
U.S.C. § 2252(a)(4). On March 31, 2012, Morgan moved to suppress the evidence seized
from his residence under the search warrant, on the basis that it was an invalid “general”
warrant and that the information in the warrant application was stale. On June 1, 2012,
he moved to suppress the statements he had made to Agents Zajac and Dzielak on the
basis that no Miranda warnings were given.
The District Court held an evidentiary hearing on the motion to suppress the
statements. Agent Zajac and Morgan testified. Agent Zajac testified that as soon as
Morgan came in, he said—in a joking tone—“It’s the FBI. It must be important if the
FBI is here.” App. at 102A. Agent Zajac also testified that even before the agents
introduced themselves and explained why they wanted to talk to him, Morgan blurted: “I
didn’t travel anywhere. I didn’t – I didn’t travel to meet anybody.” App. at 103A. Agent
Zajac testified that he then introduced himself and Agent Dzielak and said:
We just want to sit down and talk to you a little bit today to
see if you can help us figure out what’s going on. You don’t
have to talk to us if you don’t want to. You can leave if you
want. But we just want to ask you a few questions if that’s all
right with you.
App. at 104A (emphasis added). Morgan agreed to talk. Agent Zajac showed
Morgan the chat logs between Wook_Inky 101 and the undercover agent. Morgan
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admitted using the Wook_Inky 101 username to communicate through Yahoo Instant
Messenger. Morgan admitted that he received materials showing child pornography and
that he had child pornography images on his computer’s hard drive; admitted that he sent
the sexually explicit communications and images to the person he thought was a 13-year-
old girl; and admitted that he transmitted images of his genitals using his computer’s
webcam.
Morgan provided the FBI with written consent to search his Wook_Inky 101
account with Yahoo. The consent form he signed stated that he had given his consent
voluntarily and had been advised of his right to refuse consent. Agent Zajac testified that
neither he nor the other agents displayed a firearm, raised a voice, used an intimidating
gesture, or applied handcuffs during the interview.
Morgan disputed that Agent Zajac told him that he was free to leave. Morgan
testified that when the interview started, Agent Zajac showed his identification, said that
he wanted to talk to Morgan, and told him “to have a seat.” App. at 146A. Morgan
explained that he then talked freely because “well, with the FBI, I just kind of figured
I’m—I’m in trouble, I’m under arrest. And I started— whatever—whatever he was
asking, I was answering.” App. 147A. Morgan testified that he was aware the agents
were armed but admitted that they did not display their weapons; that the agents’ voices
would fluctuate between “soft” and “a little louder,” but that they did not yell; and that no
handcuffs were used. App. at 148A, 159A. Morgan acknowledged that he was allowed
to make a telephone call when he asked to do so.
6
The District Court issued a detailed opinion on November 13, 2012, denying the
motions to suppress. The court concluded that the search warrant “was thoroughly
supported by the general characteristics of those involved in child pornography, and by
the actual facts in this case.” App. at 24A. The District Court ruled that the evidence
was not stale, “especially considering the nature and duration of the interaction between
[Wook_Inky 101] and a thirteen-year-old girl,” and the fact that evidence of child
pornography “can be found on a computer that was stored for months, if not years.” App.
26A.
The District Court held that Miranda warnings were not required because Morgan
was not “in custody” when the questioning took place. The District Court credited Agent
Zajac’s testimony that he told Morgan that he was not required to speak and was free to
leave. App. at 13A n.3. The court found that the evidence clearly showed that no
intimidation, force, or other indicia of custody was present.
After the District Court denied the motions to suppress, Morgan entered a
conditional guilty plea to all ten counts in the indictment. The judgment was entered
August 1, 2013. Morgan timely appealed.
II. Analysis
A. The Motion to Suppress Evidence Seized Pursuant to the Search
Warrant
We first address Morgan’s contention that the District Court should have
suppressed the evidence found on his computer hard drives and other electronic storage
media because the warrant authorizing the search: (1) failed to state with sufficient
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particularity the things to be searched and seized, making it an invalid “general warrant”;
and (2) relied on “stale” information. We reject both arguments.
“The Fourth Amendment provides that warrants must ‘particularly describ[e] the
place to be searched and the persons or things to be seized.’” United States v. Yusuf, 461
F.3d 374, 393 (3d Cir. 2006) (alteration in original) (quoting U.S. CONST. AMEND. IV). A
warrant is “general” if it is so vague and overbroad that it authorizes “‘a general
exploratory rummaging in a person’s belongings.’” Id. (quoting Coolidge v. New
Hampshire, 403 U.S. 443, 467 (1971)). Morgan argues that the search warrant was an
invalid “general warrant” that gave the FBI agents “unbridled discretion in searching all
computers in the Morgan home because the warrant offered no information, guidance, or
limitations in that regard.” Appellant’s Br. at 16. Morgan’s argument fails to take into
account the detailed information in the warrant and the distinctive concerns that apply to
searching computers, hard drives, and other electronic storage media for evidence of
child pornography and related crimes against minors.
The search warrant described the items to be searched on the computers in the
Morgan residence in detail. The affidavit submitted in support of the application
described the online chats, the video transmissions, and the images sent, establishing
probable cause to believe that sexual offenses against a child were being committed using
a computer in Morgan’s home. An attached list specified the items to be seized. The
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listed items were limited to evidence of sexually explicit images and communications
involving minors and the electronic media on which the evidence was likely to be found.2
Morgan’s contention that the warrant was “general” because it authorized a search
for the specified items on all computers in the Morgan home, including their hardware,
software, and storage media, is without merit. To determine whether Morgan’s computers
contained evidence of child pornography and related criminal sexual exploitation of
children, law enforcement needed the authority to search the computers it found in the
home, including the hard drives.
The storage of information on hard drives and other digital storage devices
presents distinctive difficulties for law enforcement. A user may name, rename, and store
files in ways that allow the “files containing evidence of a crime [to] be intermingled
with millions of innocuous files.” United States v. Galpin, 720 F.3d 436, 447 (2d Cir.
2013). Child pornography images and communications can be saved under file names
and in formats that conceal the contents and make the file appear innocent. The contents
cannot be identified until the file is opened. “By necessity, government efforts to locate
particular files will require examining a great many other files to exclude the possibility
that the sought-after data are concealed there.” United States v. Comprehensive Drug
Testing, Inc., 621 F.3d 1162, 1176 (9th Cir. 2010) (en banc) (per curiam); see also United
2
The warrant authorized the seizure of “any and all computer equipment,” including “[a]ll storage media
capable of collecting, storing, maintaining, retrieving, concealing, transmitting, and backing up electronic
data.” App. at 66–67A. This storage media included hard drives. The warrant stated that the “seizure of
computer and computer related hardware relates to such computer-related items as being the
instrumentalities of crime and also to allow for analysis/search for evidence of crime in an appropriate
forensic setting.” Id. at 67A. The warrant also authorized seizure of a “brown or black baseball bat with
red or orange letters” and a “brown or black shirt with the wording ‘American Athletics 1776.’” Id.9
States v. Stabile, 633 F.3d 219, 237 (3d Cir. 2011) (“[I]t is clear that because criminals
can—and often do—hide, mislabel, or manipulate files to conceal criminal activity, a
broad, expansive search of the hard drive may be required.”).
We addressed these difficulties in United States v. Stabile. The defendant in that
case argued that the search of his computer hard drives was overbroad because the drives
contained “personal emails and other information not related to [the] financial crimes”
the defendant was suspected of committing. 633 F.3d at 233. We upheld the search and
seizure, reasoning that the breadth “was required because evidence of financial crimes
could have been found in any location on any of the six hard drives, and this evidence
very likely would have been disguised or concealed somewhere on the hard drive.” Id. at
234.
We agree that computers can store a vast amount of information, including private
information unrelated to the targets or purposes of the search. See United States v.
Payton, 573 F.3d 859, 861–62 (9th Cir. 2009) (“There is no question that computers are
capable of storing immense amounts of information and often contain a great deal of
private information. Searches of computers therefore often involve a degree of
intrusiveness much greater in quantity, if not different in kind, from searches of other
containers.”); United States v. Otero, 563 F.3d 1127, 1132 (10th Cir. 2009) (“The modern
development of the personal computer . . . increases law enforcement’s ability to conduct
a wide-ranging search into a person’s private affairs, and accordingly makes the
particularity requirement that much more important.”). But the warrant in this case
specified that the search was limited to particular items that could provide evidence of the
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crimes for which probable cause was established: child pornography images; sexual
communications with and about a child; and materials related to sexual offenses against
and involving children. The warrant gave the agents the ability they needed to identify
which computer and hard drive might contain the specified information. The warrant was
not overbroad and was not a general warrant.
We also reject Morgan’s argument that the information Agent Zajac submitted in
the warrant application was stale. The FBI applied for the search warrant on December
16, 2011. Morgan’s initial communications with the undercover agent occurred on
September 14, 2011. The last criminal conduct occurred on December 2, 2011, when
Wook_Inky 101 sent sexual messages to the undercover agent. There was at most a two-
week gap between Morgan’s last criminal conduct and the information in the search-
warrant application. We have found longer gaps permissible in the context of search
warrants for child pornography located on computer hard drives, recognizing that child
pornography “has a relatively long shelf life,” especially when the crime “is
accomplished through the use of a computer.” United States v. Vosburgh, 602 F.3d 512,
529 (3d Cir. 2010). In Vosburgh, a four-month gap did not make the information
supporting the search warrant application stale because “persons with an interest in child
pornography tend to hoard their materials and retain them for a long a time.” Id. at 528;
see also United States v. Lemon, 590 F.3d 612, 615–16 (8th Cir. 2010) (holding that an
18-month gap did not render evidence of child pornography stale). The two-week gap
between Morgan’s last alleged act and the date of the search-warrant application did not
make the evidence used in that application stale.
11
The District Court did not err in denying Morgan’s motion to suppress evidence
obtained pursuant to the search warrant.
B. The Motion to Suppress the Statements
Morgan contends that the District Court erred in denying his motion to suppress
the statements he made to the FBI before his arrest. Law-enforcement officers “are not
required to administer Miranda warnings to everyone whom they question.” Oregon v.
Mathiason, 429 U.S. 492, 495 (1977). Miranda warnings are needed when a suspect is
“(1) ‘in custody’ and (2) subject to ‘interrogation’ by the government.” United States v.
Dupree, 617 F.3d 724, 731 n.7 (3d Cir. 2010). The issue is whether Morgan was “in
custody” when he made the statements to Agent Zajac.
A suspect is “in custody” when “there is a ‘formal arrest or restraint on freedom of
movement’ of the degree associated with a formal arrest.” United States v. Leese, 176
F.3d 740, 743 (3d Cir. 1999) (quoting California v. Beheler, 463 U.S. 1121, 1125
(1983)). When the suspect is not under formal arrest, the question is whether a
reasonable person in the suspect’s situation would feel free to end the questioning and
leave. See Yarborough v. Alvarado, 541 U.S. 652, 662–63 (2004); United States v.
Jacobs, 431 F.3d 99, 105 (3d Cir. 2005). To answer this question, the Third Circuit uses
the following factors:
(1) whether the officers told the suspect he was under arrest
or free to leave; (2) the location or physical surroundings of
the interrogation; (3) the length of the interrogation; (4)
whether the officers used coercive tactics such as hostile
tones of voice, the display of weapons, or physical restraint of
the suspect’s movement; and (5) whether the suspect
voluntarily submitted to questioning.
12
United States v. Willaman, 437 F.3d 354, 359–60 (3d Cir. 2006).
The District Court carefully analyzed the record in light of these factors and found
that Morgan was not in custody when he made his statements to the FBI. Our review of
the record leads to the same conclusion.
The court credited Agent Zajac’s testimony that he told Morgan that he was free to
leave if he did not want to talk to the agents. The court declined to credit Morgan’s
testimony that he was not given this warning and would have refused to talk if he had.
This credibility choice is supported by Morgan’s statement, made before the FBI agents
introduced themselves, that he “didn’t travel anywhere” and “didn’t travel to meet
anybody.” App. at 103A. The court’s credibility determination is also supported by the
evidence that as soon as Morgan asked to make a call, the agents allowed him to do so.
Morgan called a woman he was dating, not a lawyer, and he did not ask the woman to
contact a lawyer for him. The record discloses no basis to reject the District Court’s
credibility choice. See Vento v. Dir. of V.I. Bureau of Internal Revenue, 715 F.3d 455,
468 (3d Cir. 2013) (“[W]e may overturn the District Court’s findings only if we are left
with a definite and firm conviction that a mistake has been committed.”) (internal
quotations omitted).
The District Court’s finding is also consistent with the other Willaman factors
except the length of the questioning. The agents questioned Morgan in a room at his
workplace, not a police station. The room had two exits that were unlocked and
unblocked. The agents used no coercive tactics. They did not use hostile voices or yell,
13
did not display their weapons, and did not handcuff Morgan or restrain his movement.
Despite the two-hour length of the interview, a reasonable person in Morgan’s position
would have felt able to end the questioning and leave.
Morgan was not in custody and Miranda warnings were not required. The District
Court did not err in denying Morgan’s motion to suppress the statements.
III. Conclusion
We affirm.
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