United States v. Payton ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-10567
Plaintiff-Appellee,
v.  D.C. No.
CR-05-00333-OWW
MICHAEL CLAY PAYTON,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Argued and Submitted
November 19, 2008—San Francisco, California
Filed July 21, 2009
Before: William C. Canby, Jr. and Kim McLane Wardlaw,
Circuit Judges, and Richard Mills,* District Judge.
Opinion by Judge Canby
*The Honorable Richard Mills, United States District Judge for the
Central District of Illinois, sitting by designation.
9367
9370 UNITED STATES v. PAYTON
COUNSEL
Eric V. Kersten, Assistant Federal Public Defender, Fresno,
California, for the plaintiff-appellee.
Sherrill A. Carvalho, Assistant United States Attorney,
Fresno, California, for the defendant-appellant.
OPINION
CANBY, Circuit Judge:
Michael Payton appeals the district court’s denial of his
motion to suppress evidence of child pornography found on
his personal computer. Payton pled guilty to knowingly pos-
sessing images of child pornography in violation of 18 U.S.C.
§ 2252(a)(4), conditioned on his right to make this appeal. We
have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse
the judgment of the district court and remand with instruc-
tions.
BACKGROUND
In 2004, a California Superior Court judge issued a search
warrant for a house in Merced County where Payton resided.
UNITED STATES v. PAYTON 9371
Police believed that the occupants were selling drugs. The
warrant directed officers to search for any item listed in “At-
tachment A,” which included methamphetamine and materials
used to cut and package it. Attachment A also included,
among other things, “[s]ales ledgers showing narcotics trans-
actions such as pay/owe sheets” and “[f]inancial records of
the person(s) in control of the residence or premises, bank
accounts, loan applications, [and] income and expense
records.” The warrant did not explicitly authorize the search
of computers.
During the execution of the search, the officers found no
evidence of drug sales. Officer Horn found a computer in
Payton’s bedroom with the screen saver activated. He moved
the mouse, which removed the screen saver, and clicked open
a file. It disclosed an image that he thought was child pornog-
raphy. This and images like it eventually led to Payton’s
charge for possession of child pornography. Payton moved to
suppress the evidence, challenging the search on the two
grounds he raises on appeal. First, he argued that the warrant
lacked probable cause because it relied on a misrepresentation
of a neighbor’s complaint. Second, he argued that the search
of the computer exceeded the scope of the warrant. After the
district court rejected these challenges and denied the motion
to suppress, Payton entered a conditional guilty plea and was
sentenced.
To establish probable cause, the warrant incorporated by
reference Officer Horn’s affidavit, which included Officer
Horn’s statement of probable cause. This statement requested
permission to search any computer within the residence,
although Officer Horn did not have any particular reason to
believe that a computer would be found in the house. The
Superior Court judge testified at the suppression hearing that
he had intended to authorize the search of any computer found
in the residence, but the warrant as issued did not explicitly
direct a search for, or search of, any computers.
9372 UNITED STATES v. PAYTON
Officer Horn declared in his probable cause statement that
neighbors had complained of drug sales. It is uncontested,
however, that only one neighbor complained, and of drug use,
not drug sales. To determine the consequence of the misrepre-
sentation, the district court held a Franks hearing. See Franks
v. Delaware, 438 U.S. 154, 171-72 (1978) (requiring evidenti-
ary hearing when defendant preliminarily shows that false
statement was knowingly and intentionally, or with reckless
disregard for the truth, included by affiant in search warrant
affidavit). Officer Horn testified at that hearing that he sus-
pected drug sales for a few reasons. First, the contents of a
video that the neighbor had taken showed people not thought
to be residents using drugs outside of the house. Second, the
police had previously arrested one of the residents in the
house and had found 2.7 grams of methamphetamine on her
person; to Officer Horn, this quantity, and the fact that it was
divided into two separate packages, evidenced an intent to
sell. Officer Horn had included all of this information in his
affidavit stating probable cause, as well as a statement that
“based upon [his] training and experience,” drug dealers
maintain records of sale on their computers.
The district court held that probable cause supported the
issuance of the warrant. The district court stated that “even if
[it] excised and consider[ed] the entire warrant without a
complaint of neighbors of drug sales,” the warrant was still
sufficient in light of the other evidence presented. The district
court also held that the search of the computer was valid
because the failure to include the word “computers” in
Attachment A was an oversight cured by the issuing judge’s
testimony of his intent. Accordingly, it dismissed the motion
to suppress the evidence of child pornography obtained as a
result of the search. We agree with the district court that the
search warrant was supported by probable cause despite Offi-
cer Horn’s misrepresentation of a neighbor’s report. We con-
clude, however, that the search of the computer violated
Payton’s Fourth Amendment rights. Accordingly, we reverse
UNITED STATES v. PAYTON 9373
the denial of the motion to suppress, and remand with instruc-
tions to permit Payton to withdraw his conditional guilty plea.
DISCUSSION
I. Probable Cause Supporting the Search Warrant
Payton contends that Officer Horn’s affidavit contains a
materially false statement that invalidates the warrant by
destroying probable cause. We review de novo the district
court’s conclusion that probable cause existed, examining
whether there was a “fair probability” of drug sales. See
United States v. Bishop, 264 F.3d 919, 924 (9th Cir. 2001).
We must “give due weight to inferences drawn from [the]
facts by resident judges and local law enforcement officers.”
Ornelas v. United States, 517 U.S. 690, 699 (1996).
[1] Officer Horn’s statement that neighbors had complained
of drug sales was materially false. See United States v. Sta-
nert, 762 F.2d 775, 780-82 (9th Cir. 1985) (affiant’s statement
that someone had reported the manufacturing of drugs was
materially false, when report had only been of suspected drug
use). There had been no complaint of drug sales, only of drug
use. That fact does not end the inquiry whether there was
probable cause to believe that drug sales had been occurring,
however, because suppression is required only if the remain-
ing evidence is insufficient to establish probable cause. See
Franks, 438 U.S. at 155-56. There is no such insufficiency
here. Officer Horn stated in the probable cause statement and
at the suppression hearing that the quantity and packaging of
the drugs recently discovered on a resident of the house indi-
cated to him drug sale activity. This was a reasonable inter-
pretation of the facts, and the issuing judge was entitled to
rely on the training and experience of Officer Horn. See
United States v. Chavez-Miranda, 306 F.3d 973, 978 (9th Cir.
2002). Accordingly, the district court did not err in denying
Payton’s challenge to the validity of the warrant.
9374 UNITED STATES v. PAYTON
II. Scope of the Search Warrant
[2] We conclude that the search of Payton’s computer
exceeded the scope of the warrant and did not meet the Fourth
Amendment standard of reasonableness. There is no question
that computers are capable of storing immense amounts of
information and often contain a great deal of private informa-
tion. Searches of computers therefore often involve a degree
of intrusiveness much greater in quantity, if not different in
kind, from searches of other containers. Such considerations
commonly support the need specifically to authorize the
search of computers in a search warrant, as Officer Horn
requested in the present case. Despite his request, the warrant
did not explicitly authorize the search of Payton’s computer,
and it incorporated Officer Horn’s affidavit only to support
probable cause, not to describe the objects to be searched or
searched for. The after-the-fact testimony of the issuing judge
that he intended expressly to authorize the search of comput-
ers could not cure the failure of the warrant to authorize the
search of computers, because one purpose of a warrant is to
inform the person subject to the search just what may be
searched. United States v. Hayes, 794 F.2d 1348, 1355 (9th
Cir. 1986).
The search warrant did explicitly authorize a search of Pay-
ton’s premises to find and seize, among other things, “[s]ales
ledgers showing narcotics transactions such as pay/owe
sheets,” and “[f]inancial records of the person(s) in control of
the premises.” The crucial question is whether these provi-
sions authorized the officers to look for such records on Pay-
ton’s computer. We conclude that, under our recent and
controlling precedent of United States v. Giberson, 527 F.3d
882 (9th Cir. 2008), as applied to the circumstances of this
case, they did not.
In Giberson, officers discovered that Giberson had used
false identification and was delinquent in his child support
payments. They obtained a search warrant authorizing a
UNITED STATES v. PAYTON 9375
search of his residence for, among other things, “ ‘records,
documents or correspondence . . . related to the use or
attempted use’ of other individual’s identities.” Id. at 884.
During the search, the officers discovered a computer on a
desk in Giberson’s bedroom; the computer was connected to
a printer on a dresser. Next to the printer, the officers found
a sheet of what appeared to be fake identification cards that
were not of high quality and looked as if they could have been
printed on the adjacent printer. In and on the desk, the officers
found other documents evidencing the production of false
identification, including fake Social Security cards and birth
certificates. Acting on the advice of an Assistant U.S. Attor-
ney who had been contacted, one of the officers secured the
computer until the agents could obtain a second search war-
rant authorizing search of the computers for such documents.
The computer was sent to a forensic laboratory, and a now-
authorized search for false identification documents revealed
images of child pornography, for receipt and possession of
which Giberson was later charged. He challenged the seizure
of his computer in the initial search of his residence.1
[3] We stated the question that Giberson presented and our
answer to it as follows:
We have not yet had occasion to determine, in an
opinion, whether computers are an exception to the
general principle that a warrant authorizing the sei-
zure of particular documents also authorizes the
search of a container likely to contain those docu-
1
Giberson also challenged the first search in the forensic laboratory on
the ground that it was not properly confined to the second search warrant’s
authorization of a search of the computer for false identification docu-
ments. We rejected that challenge and held that under available technol-
ogy a search for false identification documents could not have been
conducted in a manner that would avoid possible discovery of child por-
nography because both types of files were “innocuously labeled.” Giber-
son, 527 F.3d at 889-90. The inadvertent discovery of child pornography
led to a third search warrant directed toward those images.
9376 UNITED STATES v. PAYTON
ments. We hold that, in this case, where there was
ample evidence that the documents in the warrant
could be found on Giberson’s computer, the officers
did not exceed the scope of the warrant when they
seized the computer.
Id. at 887 (emphasis added). As we read this passage, it holds
that under certain circumstances, computers are not an excep-
tion to the rule permitting searches of containers to find
objects specified in a warrant. A reasonable negative infer-
ence is that, absent those circumstances, a search of a com-
puter not expressly authorized by a warrant is not a reasonable
search. Those circumstances are absent in the present case.
The search of Payton’s residence for evidence of drug sales
produced none. There was nothing in the neighborhood of
Payton’s computer, or indeed in the entire residence, that sug-
gested that evidence of drug sales or anything else specified
in the warrant would be found on the computer in his bed-
room. It is true, of course, that pay/owe sheets indicating drug
sales were physically capable of being kept on Payton’s com-
puter. But a similar bare capability was present in Giberson;
a computer is physically capable of containing false identifi-
cation documents. In Giberson, we did not simply recite that
fact and uphold the seizure; we relied quite specifically on the
documents found next to the printer and the computer, in cir-
cumstances indicating a likelihood that they were created on
and printed from the computer. It was the presence of those
documents that rendered the search reasonable.
[4] There was an additional factor that led us to conclude
that the officers acted reasonably in Giberson. We stated:
In the circumstances underlying this appeal, it was
reasonable for the officers to believe that seizable
items were stored on Giberson’s computer, and to
secure the computer and obtain a specific warrant
and search it . . . . Their actions were particularly
appropriate because the agents merely secured the
UNITED STATES v. PAYTON 9377
computer while they waited to get a second warrant
that would specifically authorize searching the com-
puter’s files. The seizure of the computer was there-
fore reasonable.
Id. at 889 (citation omitted). A seizure of a computer to await
a second warrant is nevertheless a Fourth Amendment sei-
zure, but it is far less intrusive than a search. In Payton’s case,
however, Officer Horn searched first and seized afterwards.
When he first encountered the computer, he moved the
mouse, inactivating the screen saver, and opened a file. In the
absence of any circumstances supporting a reasonable belief
that items specified in the warrant would be found on the
computer, the search did not meet the Fourth Amendment
standard of reasonableness.
We recognize that there are several statements in Giberson
to the effect that no heightened Fourth Amendment standard
should be applied to computers as opposed to other contain-
ers. For example, we stated that “[w]hile it is true that com-
puters can store a large amount of material, there is no reason
why officers should be permitted to search a room full of fil-
ing cabinets or even a person’s library for documents listed in
a warrant but should not be able to search a computer.” Id. at
888. We pointed out that, in United States v. Gomez-Soto, 723
F.2d 649 (9th Cir. 1984), we upheld a search of a cassette tape
pursuant to a warrant that authorized a search for items that
might be contained in it. Giberson, 527 F.3d at 888. If we per-
mit such searches, “[t]here is no reason why material stored
digitally on a computer should not also be searchable.” Id.
These and similar statements must be placed in context,
however. They were made in response to Giberson’s argu-
ment that computers could never be searched unless that
authority was specifically granted in the search warrant.
Indeed, Giberson conceded that it was reasonable for the offi-
cers to conclude that false identification documents might be
found on his computer. Id. at 887. He contended, however,
9378 UNITED STATES v. PAYTON
that computers were sufficiently different from other contain-
ers that they were entitled to a bright-line categorical rule of
heightened Fourth Amendment protection: no search is per-
missible without specific authorization in the warrant. Our
opinion in Giberson rejected this contention, stating that the
support for such an argument could not be “technology-
specific” to computers alone. Id.
Thus Giberson held that computers were not entitled to a
special categorical protection of the Fourth Amendment.
Instead, they remained subject to the Fourth Amendment’s
overall requirement that searches be constitutionally “reason-
able.” Id. at 889. And, for the second time, Giberson stated its
rule of reasonableness for the case before it:
If it is reasonable to believe that a computer contains
items enumerated in the warrant, officers may search
it. Here, numerous documents related to the produc-
tion of fake I.D.s were found in and around Giber-
son’s computer and were arguably created on and
printed from it. It was therefore reasonable for offi-
cers to believe that the items they were authorized to
seize would be found in the computer, and they acted
within the scope of the warrant when they secured
the computer.
Id. at 888.
[5] In Payton’s case, however, the legitimating facts were
absent. There was no comparable evidence pointing to the
computer as a repository for the evidence sought in the
search. The search of the computer preceded any attempt to
secure the computer and seek a second warrant. We conclude
that the search in those circumstances did not meet the Fourth
Amendment requirement of reasonableness.
Our confidence in our conclusion is buttressed by contem-
plating the effect of a contrary decision. In order to uphold the
UNITED STATES v. PAYTON 9379
search in this case, we would have to rule that, whenever a
computer is found in a search for other items, if any of those
items were capable of being stored in a computer, a search of
the computer would be permissible. Such a ruling would elim-
inate any incentive for officers to seek explicit judicial autho-
rization for searches of computers. But the nature of
computers makes such searches so intrusive that affidavits
seeking warrants for the search of computers often include a
limiting search protocol, and judges issuing warrants may
place conditions on the manner and extent of such searches,
to protect privacy and other important constitutional interests.
See, e.g., United States v. Adjani, 452 F.3d 1140, 1149 n.7
(9th Cir. 2006). We believe that it is important to preserve the
option of imposing such conditions when they are deemed
warranted by judicial officers authorizing the search of com-
puters. If unwarranted searches of computers are automati-
cally authorized by upholding the search in Payton’s case, that
option will be lost. Indeed, the special considerations of rea-
sonableness involved in the search of computers are reflected
by the practice, exemplified in Giberson, of searching officers
to stop and seek an explicit warrant when they encounter a
computer that they have reason to believe should be searched.
[6] For all of these reasons, we conclude that the search of
Payton’s computer without explicit authorization in the war-
rant exceeded the scope of that warrant and did not meet the
Fourth Amendment standard of reasonableness illustrated by
Giberson. We accordingly reverse the district court’s denial
of Payton’s motion to suppress the evidence resulting from
the search, and remand the matter to the district court with
instructions to permit Payton to withdraw his conditional
guilty plea.
REVERSED and REMANDED with instructions.