United States v. Douglas Suing , 712 F.3d 1209 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-2885
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Douglas I. Suing
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the District of Nebraska - Omaha
____________
Submitted: December 11, 2012
Filed: April 10, 2013
____________
Before WOLLMAN, BYE, and BENTON, Circuit Judges.
____________
BYE, Circuit Judge.
Law enforcement searched computer hard drives found in Douglas Suing's
vehicle and residence and discovered child pornography. After being charged with
three violations of federal child pornography laws, Suing entered a conditional guilty
plea to one count of producing and manufacturing child pornography in violation of
18 U.S.C. § 2251(a), preserving his right to appeal the district court's1 denial of his
motion to suppress evidence discovered in the searches of his vehicle and residence.
We conclude the searches did not violate the Fourth Amendment. We therefore
affirm Suing's conviction.
I
In October 2009, a member of the Federal Bureau of Investigation Cyber
Crimes Task Force (CCTF) identified a computer that was sharing images and videos
of known child pornography via a peer-to-peer network. The computer was identified
by its unique Internet Protocol (IP) address. The CCTF applied for and obtained an
administrative subpoena to serve on the Internet Service Provider (ISP) associated
with the computer's IP address. Based on the ISP's response to the subpoena, the
CCTF determined the IP address was assigned to Suing at a residence in Omaha,
Nebraska, specifically 11507 Decatur Plaza, Apartment 4117. The CCTF then
conducted surveillance at the Decatur Plaza address and a records check in
anticipation of obtaining a search warrant, but discovered Suing had moved out of the
apartment.
In May 2010, the CCTF issued another subpoena to the ISP in order to
determine Suing's new address. The May 2010 subpoena was issued by the Douglas
County (Nebraska) Attorney's office, and signed by the Chief Deputy County
Attorney. The ISP provided the CCTF with Suing's new address, specifically 10923
Western Plaza, Apartment 20, in Omaha. Between May 2010 and January 2011, the
CCTF conducted surveillance at the Western Plaza address, but was unable to
observe Suing (or a vehicle registered to Suing) at the address.
1
The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska, adopting the report and recommendation of the Honorable
Thomas D. Thalken, United States Magistrate Judge for the District of Nebraska.
-2-
In January 2011, in an event unrelated to the Omaha investigation, a Navajo
County (Arizona) Deputy Sheriff observed a vehicle with Nebraska license plates
traveling on Interstate 40 in northern Arizona and following too closely behind a semi
tractor trailer. The deputy stopped the vehicle to issue a warning ticket to the driver
for following too closely, a violation of Ariz. Rev. Stat. § 28-730. After stopping the
vehicle, the deputy identified Suing as the driver. While completing the warning
ticket, the deputy noticed Suing was exceptionally nervous, i.e., his hands were
shaking, he avoided eye contact, and he hesitated before responding to the deputy's
questions. The deputy also noticed that Suing's vehicle was full of items, as if he was
moving.
The deputy asked Suing if there was anything inside the vehicle about which
he should be concerned. Suing asked, "Like what?" The deputy responded,
“Anything illegal. Paraphernalia, weed, meth, guns, bongs." The deputy then asked
Suing if he would consent to a search of the vehicle. Suing agreed and signed a
consent form. The consent form allowed law enforcement to "search the vehicle
listed . . . to include luggage, containers, and contents of all." After waiting for a
back-up officer to arrive, the deputy began his search. During the search, he noticed
the back seat was broken and the area where the spare tire would normally be located
was inaccessible. From his past experience, the deputy suspected the vehicle's
condition signaled a possible hidden compartment used to transport drugs. The
deputy deployed the drug dog he had in his squad car. The drug dog alerted on both
the vehicle's passenger side and the broken back seat.
After the drug dog alert, the deputy brought the vehicle to the Sheriff's office
for a more thorough search. During this search, officers found an external computer
hard drive in a bag on the front passenger seat. Based on past experience of hard
drives containing evidence of narcotics activities such as drug ledgers, photos, and
other incriminating information, the supervisor of the narcotics and canine officers
plugged the hard drive into a computer to search its contents. Almost immediately
-3-
after beginning the contents search, the supervisor found a number of thumbnail
images of child pornography. He shut the computer down, contacted a local
prosecutor for advice, and then sought a search warrant to switch the focus of the
search from evidence of drug activity to evidence of child pornography. After a judge
authorized a new search for child pornography, over 124,000 images and 1,400
videos of child pornography were found on the hard drive. Suing was placed under
arrest.
Turning back to the Omaha investigation, the CCTF obtained a search warrant
for Suing's Western Plaza apartment in Omaha shortly after learning of his arrest in
Arizona. A second Douglas County Attorney subpoena (the January 2011 subpoena),
again signed by the Chief Deputy County Attorney and issued to the ISP provider,
reconfirmed that Suing's address was still at Western Plaza. The search warrant
application included historical information from the CCTF's lengthy investigation of
Suing in Omaha, as well as information regarding the Arizona arrest. A federal
magistrate judge authorized a search of Suing's apartment. During the search, an
additional 200 videos and 5,000 images of child pornography were found on
computer hard drives in the apartment. The metadata from some of the videos and
images indicated they were produced with a Canon Digital Camera. A CCTF
investigator then applied for and obtained a second federal warrant to search for the
camera and other equipment related to the manufacture and production of child
pornography. During the second search of Suing's apartment, the CCTF found and
seized a Canon Digital Camera.
In February 2011, a federal grand jury returned a three count indictment against
Suing charging him with one count of producing and manufacturing child
pornography in violation of 18 U.S.C. § 2251(a), one count of receiving and
distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2), and one count
of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Suing
filed a motion to suppress the evidence found during and following the Arizona
-4-
traffic stop, in part claiming the execution of the search warrant for the external hard
drive found in his vehicle violated the Fourth Amendment. He also challenged the
execution of the federal search warrants for his Omaha apartment, in part claiming
those search warrants were tainted by information from the allegedly unlawful
Arizona search. After conducting an evidentiary hearing, a federal magistrate judge
issued a report recommending that the motion to suppress be denied. The district
court adopted the report and recommendation and denied Suing's suppression motion.
Suing then entered a conditional plea of guilty to one count of producing and
manufacturing child pornography, preserving the right to file this appeal.
II
"When reviewing the denial of a motion to suppress, we review the district
court's factual findings for clear error and its legal conclusions de novo." United
States v. Anderson, 688 F.3d 339, 343 (8th Cir. 2012) (citing United States v. Davis,
457 F.3d 817, 822 (8th Cir. 2006)).
Suing first claims his Fourth Amendment rights were violated by the use of the
evidence discovered in Arizona. He concedes he signed a consent form after the
traffic stop allowing law enforcement to "search the vehicle listed . . . to include
luggage, containers, and contents of all," but contends the search of the computer
hard drive for child pornography exceeded the scope of his consent to search the
vehicle for drugs. In response, the government argues the search of the hard drive fell
within Suing's unlimited consent to allow a search of all containers and their contents
for "[a]nything illegal." In the alternative, the government contends the search for
child pornography was authorized by the second search warrant, obtained after law
enforcement immediately stopped the search for evidence of illegal drug activity
when they discovered child pornography on the computer hard drive.
-5-
The procedure followed by law enforcement in this case was addressed in
United States v. Hudspeth, 459 F.3d 922 (8th Cir. 2006), rev'd in part on other
grounds, 518 F.3d 954 (8th Cir. 2008) (en banc). In Hudspeth, as part of an
investigation into the sale of large quantities of pseudoephedrine cold tablets, police
executed a search warrant at the defendant's business. While examining his
computer, authorities found images of child pornography. As they did here, when
officials found the images, they immediately stopped searching for evidence of illegal
drug activity, contacted a prosecutor for advice, and obtained a second warrant
authorizing a search for child pornography. 459 F.3d at 925. We concluded "the
officers did not exceed the scope of Hudspeth's consent to search the computer"
because they did not interrupt the drug search and act without judicial authority by
continuing a child pornography search without first obtaining a new search warrant.
Id. at 928. We contrasted the procedure followed in Hudspeth with the Fourth
Amendment violation found in United States v. Carey, 172 F.3d 1268 (10th Cir.
1999). Id. In Carey, the Tenth Circuit concluded a detective exceeded the scope of
a warrant authorizing a search for evidence of drug trafficking when he abandoned
his "drug" search after finding child pornography on a computer, but continued a five-
hour search for child pornography without first obtaining a new search warrant. 172
F.3d at 1273.
The law enforcement conduct involved here is governed by Hudspeth and
unlike the Fourth Amendment violation found in Carey. Here, the officer did not
abandon his drug search and continue a new, extended search for child pornography
without judicial authority. Instead, he immediately stopped the search, called a
prosecutor for advice, and obtained a new warrant authorizing the search for child
pornography. We therefore conclude the officer did not exceed the scope of Suing's
consent, even assuming the consent was limited to a search of the vehicle for
evidence of drug activity.
-6-
Suing next argues his Fourth Amendment rights were violated by the use of the
evidence discovered in the searches of his Omaha apartment. Most of his arguments
hinge on his claim that the Arizona search was illegal. He argues the illegality of the
Arizona search tainted the Omaha search warrant affidavit because the affidavit
included information from the Arizona search. Having concluded the Arizona child
pornography search did not violate the Fourth Amendment, Suing's arguments in this
respect fail.
Suing also contends the Omaha searches violated his Fourth Amendment rights
because the two subpoenas issued by the Douglas County Attorney in May 2010 and
January 2011 were invalid. He argues the subpoenas were not issued in accordance
with Nebraska law because they were signed by the Chief Deputy County Attorney
instead of the County Attorney. See Neb. Rev. Stat. § 86-2,112 (stating in relevant
part "[t]he Attorney General or any county attorney may . . . subpoena witnesses . . .
and require the production of records . . . which constitute or contain evidence
relevant or material to the investigation or enforcement of the laws of this state when
it reasonably appears that such action is necessary and proper"). Suing contends the
statute's reference to "any county attorney" only refers to elected officials, not their
appointed deputies or assistants, but does not cite any case law interpreting
§ 86-2,112 in such a manner.
Suing's argument fails for several reasons. First and foremost, Suing chose to
share pornographic files via a peer-to-peer network. As a result, he "had no
expectation of privacy in [the] government's acquisition of his subscriber information,
including his IP address and name from third-party service providers." United States
v. Stults, 575 F.3d 834, 842 (8th Cir. 2009) (citing United States v. Perrine, 518 F.3d
1196, 1205 (10th Cir. 2008)). Suing therefore cannot meet his burden of proving a
Fourth Amendment violation because he has failed to demonstrate an expectation of
privacy that society is prepared to accept as reasonable. Id. at 843; see also United
States v. James, 534 F.3d 868, 872 (8th Cir. 2008) (setting forth the two-part test a
-7-
defendant must satisfy to show a legitimate expectation of privacy in an area searched
by the government in order to invoke the protections of the Fourth Amendment).
In addition, even if we accepted Suing's unsupported interpretation of Neb.
Rev. Stat. § 86-2,112, his argument is still based on the flawed premise that a
violation of state law necessarily equates to a violation of the federal constitution, a
premise we have repeatedly rejected. See, e.g., United States v. McIntyre, 646 F.3d
1107, 1113 (8th Cir. 2011); United States v. Burtton, 599 F.3d 823, 828 (8th Cir.
2010); United States v. Bell, 54 F.3d 502, 504 (8th Cir. 1995). To determine whether
the Fourth Amendment was violated, we focus instead on whether the searches of
Suing's Omaha apartment and computer hard drives were "based on probable cause."
Bell, 54 F.3d at 504. The only argument Suing makes regarding a lack of probable
cause for the Omaha search warrants is his claim the warrants were tainted by
information from the allegedly illegal Arizona search. We have already rejected that
argument. We therefore conclude Suing has failed to demonstrate the Omaha
searches violated his Fourth Amendment rights.
III
Accordingly, we affirm the judgment of the district court.
______________________________
-8-