United States v. Brobst ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-30284
Plaintiff-Appellee,
v.  D.C. No.
CR-06-00055-DWM
JERALD ELMO BROBST,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, Chief District Judge, Presiding
Argued and Submitted
July 9, 2008—Seattle, Washington
Filed March 9, 2009
Before: Richard R. Clifton and N. Randy Smith,
Circuit Judges, and Brian E. Sandoval,* District Judge.
Opinion by Judge N.R. Smith
*The Honorable Brian E. Sandoval, United States District Judge for the
District of Nevada, sitting by designation.
2835
UNITED STATES v. BROBST 2839
COUNSEL
Thomas J. Phalen (argued), Phoenix, Arizona, for the
defendant-appellant.
Eric B. Wolff (argued), Assistant United States Attorney, for
the plaintiff-appellee.
2840 UNITED STATES v. BROBST
OPINION
N.R. SMITH, Circuit Judge:
Whether or not a search and seizure or a warrantless arrest
is reasonable, within the meaning of the Fourth Amendment,
depends on the traditional standards of reasonableness and not
the law of a particular state. Therefore, we conclude Brobst’s
constitutional rights were not violated, because (1) the search
warrant described the place and things to be searched and
seized with sufficient particularity; (2) probable cause existed
for Brobst’s arrest; (3) Brobst’s post arrest statements were
admissible; (4) the document the prosecutor failed to produce
was not material to Brobst’s conviction; and (5) the district
court did not improperly shift the burden of proof to Brobst
during trial.
Brobst also appeals his sentence, arguing that his simulta-
neous conviction and concurrent sentences for both receipt
and possession of child pornography violated the Double
Jeopardy Clause.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
affirm his conviction, vacate his sentence, and remand.
I. Factual and Procedural Background
On July 11, 2006, Jerald Brobst hired Ken Gerg to perform
some cabinet work at Brobst’s residence, located at 31 Drift-
wood Lane, in Woods Bay, Montana. While Brobst was
away, Gerg performed the work. While performing the work,
Gerg found child pornography in Brobst’s home.
Finding the pornography, Gerg reported it to Lake County
Sheriff’s Deputy Kim Leibenguth. Gerg told Deputy Lei-
benguth that Brobst had a photograph of a naked girl, six to
seven years old, in a sexual position. Gerg said that the photo-
graph had been printed from the internet, because it had
UNITED STATES v. BROBST 2841
internet-type markings on it. Upon seeing the photograph,
Gerg became nervous and put it back under the filing cabinet
(where he found it). However, Gerg also saw other papers
(which he suspected contained additional photographs), but he
did not inspect them. Gerg provided Deputy Leibenguth with
the address of Brobst’s home, but did not provide her with a
map or directions.
Based upon this information, Detective Daniel Yonkin
drafted an affidavit for a search warrant. The warrant
described the residence as a “single story, single family, ranch
style dwelling with shingle roof, located at 31 Driftwood
Lane, Woods Bay, Montana.” The warrant provided for the
search and seizure of “photographs depicting children
engaged in actual or simulated sexual conduct, computers,
compact disks, floppy disks, hard drives, memory cards, print-
ers, and other portable digital devices, DVDs, and video
tapes.” A magistrate judge approved the warrant based upon
the information set forth in the application.
After obtaining the warrant, Detective Yonkin and Detec-
tive Leibenguth drove to Brobst’s residence. Both detectives
dressed in plain clothes. Detective Yonkin carried a concealed
weapon. An armed and uniformed officer, Deputy Lance
Ewers, followed the officers in a patrol vehicle. Upon arrival,
Detective Yonkin remarked a new address, 32877 Driftwood
Lane, posted on the property. However, they also saw Brob-
st’s name on a tree and on the mailbox in front of the resi-
dence. (Detective Yonkin additionally testified that Brobst’s
name also appeared on a wishing well in front of the resi-
dence.) The property had two separate residences and a
garage, all of which were single story, ranch style dwellings
with shingle roofs. Two other ranch style houses were also
located on Driftwood Lane.
Because of the posting 32877 Driftwood Lane, the detec-
tives spoke to “neighbors” to confirm that Brobst lived there.
The neighbors confirmed the residence was Brobst’s resi-
2842 UNITED STATES v. BROBST
dence. Detective Yonkin also obtained a tax/property map
that showed the piece of property belonged to Brobst. During
the trial, Detective Yonkin disclosed that he (1) called Lake
County sheriff dispatch, without success, to “cross-check” the
31 Driftwood Lane address and (2) tried to verify the owner-
ship of a vehicle parked next to the residence, but again
received no information.
Brobst was not at his residence when the officers arrived,
so the officers entered through an open window. The officers
found the cabinet identified by Gerg and located 28 pages of
printed material, including photographs of children engaged
in sexual conduct.
Brobst and a friend arrived at Brobst’s residence while the
officers were searching. Upon their arrival, Deputy Ewers
approached Brobst outside of the house and stated, “you need
to come with me” to speak with Detective Yonkin. Brobst
then went with Deputy Ewers inside the residence. When
Brobst started talking with Detective Yonkin, Deputy Ewers
returned to the front door to watch Brobst’s friend, who
remained in the vehicle. Detective Yonkin explained to
Brobst that the officers had a search warrant for the residence
and provided Brobst with a copy of it. Detective Yonkin also
told Brobst the officers found child pornography in his bed-
room and asked Brobst if it were his. Brobst, without the ben-
efit of Miranda warnings, stated that he owned the house, thus
the materials must also be his. The entire conversation lasted
approximately two minutes.
After Brobst admitted ownership of the materials, Detective
Yonkin placed him under arrest. Officer Ewers took Brobst
into custody and transported him to the Detention Center.
Approximately two hours later, Detective Yonkin read Brobst
his Miranda rights. Brobst also signed a Miranda waiver and
agreed to speak to Detective Yonkin. Detective Yonkin then
conducted a recorded interview. During the interview, Brobst
admitted purchasing child pornography for approximately
UNITED STATES v. BROBST 2843
three years. Brobst also admitted that, some years ago, he
printed the photographs that the officers found. While Brobst
was being interviewed, his attorney called and requested that
the interview cease. At that time, Brobst (after being advised
of his attorney’s advice) ended the interview.
On October 20, 2006, a federal grand jury indicted Brobst
on three counts: (1) receipt of child pornography in interstate
commerce, 18 U.S.C. § 2252A(a)(2); (2) possession of child
pornography, 18 U.S.C. § 2252A(a)(5)(B); and (3) forfeiture
of property used to commit the offenses, 18 U.S.C. § 2253(a).
Relevant to this appeal, Brobst filed four motions to suppress
in the federal district court. The motions to suppress alleged:
(1) the lack of particularity of the warrant; (2) the insufficient
probable cause for seizure of various items of evidence,
including his computer; (3) the suppression of Brobst’s pre-
arrest statements made while he was “in custody;” and (4) the
admissibility of Brobst’s Mirandized statements made after a
warrantless arrest. On February 6, 2007, the district court
denied three of the motions to suppress, finding: (1) the war-
rant was sufficient notwithstanding the use of the former
address for Brobst’s residence; (2) the officers had probable
cause to believe that Brobst was engaged in child pornogra-
phy offenses involving his computer; and (3) the admissibility
of Brobst’s Mirandized statements were “predicated on a find-
ing that the search warrant was invalid.” The district court,
however, set a hearing on the “in custody” issue.
A magistrate judge heard the remaining motion to suppress
and recommended that the district court deny the motion. The
district court adopted the recommendation and held that
“Brobst’s freedom of movement was not restrained to the
degree associated with a formal arrest and a reasonable person
in his situation would have understood that he was free to
leave.”
Following a bench trial, the district court found Brobst
guilty of all three counts. After his convictions for the child
2844 UNITED STATES v. BROBST
pornography offenses, Brobst appealed (1) the denial of his
four suppression motions (asserting in part that Montana law
applies to the search, seizure and arrest) and (2) the denial of
his motion to dismiss the indictment or motion to reconsider
(made during trial) based upon the late disclosure of material
information. Brobst also asserts the district court improperly
shifted the burden of proof during the bench trial.
II. Application of State or Federal Law
[1] Brobst argues that we must look to Montana law, not
federal law, to determine whether these seizures violate the
Fourth Amendment to the Constitution. Specifically, Brobst
argues that we should apply the language in Ker v. California,
374 U.S. 23 (1963) (plurality opinion), which states that
courts should determine the lawfulness of arrests by reference
to state law. 374 U.S. at 37. Thus, Brobst argues that, because
Montana law provides more protections from search and sei-
zure than federal law, his search, seizure and subsequent
arrest is constitutional only if it complied with applicable
Montana law. The Supreme Court’s recent decision in Vir-
ginia v. Moore, ___ U.S. ___, 128 S. Ct. 1598 (2008), how-
ever, precludes this argument.
[2] In Moore, the Supreme Court held that “warrantless
arrests for crimes committed in the presence of an arresting
officer are reasonable under the Constitution, and that while
States are free to regulate such arrests however they desire,
state restrictions do not alter the Fourth Amendment’s protec-
tions.” Moore, 128 S. Ct. at 1607. The Supreme Court has
long analyzed “search and seizure” using the traditional stan-
dards of reasonableness. See Atwater v. City of Lago Vista,
532 U.S. 318, 345-47 (2001); Devenpeck v. Alford, 543 U.S.
146, 152-53 (2004); Gerstein v. Pugh, 420 U.S. 103, 111-13
(1975); Brinegar v. United States, 338 U.S. 160, 164 (1949).
The law of a particular state has never changed that reason-
ableness standard. See California v. Greenwood, 486 U.S. 35,
43-45 (1988). In Greenwood, the Supreme Court held:
UNITED STATES v. BROBST 2845
Individual States may surely construe their own con-
stitutions as imposing more stringent constraints on
police conduct than does the Federal Constitution.
We have never intimated, however, that whether or
not a search is reasonable within the meaning of the
Fourth Amendment depends on the law of the partic-
ular State in which the search occurs.
Id. at 43.
Despite this precedent, Brobst argues that, because the
Supreme Court failed to discuss or overrule Ker in its Moore
decision, we should follow language in Ker in making this
decision. Again, we do not agree.
First, in Moore, the Supreme Court sought to clarify the
application of state law to Fourth Amendment violations. The
Court began by examining the history of the Fourth Amend-
ment, and found that it was “aware of no historical indication
that those who ratified the Fourth Amendment understood it
as a redundant guarantee of whatever limits on search and sei-
zure legislatures might have enacted.” Moore, 128 S. Ct. at
1602. The Supreme Court further opined that, “[o]ur decisions
counsel against changing this calculus when a State chooses
to protect privacy beyond the level that the Fourth Amend-
ment requires. We have treated additional protections exclu-
sively as matters of state law.” Id. at 1604.
When examining its prior jurisprudence in Moore, the
Supreme Court did not mention Ker. The Court, however,
specifically mentioned and distinguished United States v. Di
Re, 332 U.S. 581 (1948) and Johnson v. United States, 333
U.S. 10 (1948), cases on which the Ker opinion relies. It said:
We need not pick and choose among the dicta: Nei-
ther Di Re nor the cases following it held that viola-
tions of state arrest law are also violations of the
Fourth Amendment, and our more recent decisions,
2846 UNITED STATES v. BROBST
discussed above, have indicated that when States go
above the Fourth Amendment minimum, the Consti-
tution’s protections concerning search and seizure
remain the same.
Moore, 128 S. Ct. at 1605. Thus, a “warrantless arrest satis-
fies the Constitution so long as the officer has probable cause
to believe that the suspect has committed or is committing a
crime.” Id. (citation and internal quotation marks omitted).
Second, Ker did not deal with an arrest for a federal crime
as does this case. Instead, the Ker plurality opinion dealt with
the lawfulness of an arrest by state officers for state offenses.
The Court there determined that an arrest (allowed under Cal-
ifornia law for a California crime) was not unreasonable
under the standards of the Fourth Amendment as applied to
the States through the Fourth Amendment. See Ker, 374 U.S.
at 41. Therefore, any reference in Ker, applying state law to
determine the lawfulness of this arrest for federal crimes, is
not applicable here.
Ker was also decided by a plurality of the Supreme Court.
Therefore, “[a]s the plurality opinion . . . did not represent the
views of a majority of the Court, we are not bound by its rea-
soning.” CTS Corp. v. Dynamics Corp. of America, 481 U.S.
69, 81 (1987); see also Altria Group, Inc. v. Good, ___ U.S.
___, 129 S. Ct. 538, 554-55 (2008) (Thomas, J., dissenting)
(“The majority does not assert that the Cipollone plurality
opinion is binding precedent, and rightly so. Because the ‘plu-
rality opinion . . . did not represent the views of a majority of
the Court, we are not bound by its reasoning.’ . . . At most,
Cipollone is a ‘point of reference for further discussion.’ . . .
But even if the plurality opinion had some force beyond its
mere persuasive value, it nevertheless should be abandoned.”
(internal citations omitted)).
[3] Lastly, Brobst argues that Moore applies only to state
not federal prosecutions and, therefore, we should apply the
UNITED STATES v. BROBST 2847
language in Ker. However, Brobst’s reasoning is faulty. Ker
was also a decision regarding a state prosecution rather than
a federal prosecution. Therefore, based on the logic of Brob-
st’s argument, Moore would specifically overrule Ker. We
instead find that Moore distinguished the precedent, on which
the Ker decision relies. Moore, therefore, distinguishes Ker.
Further, Brobst’s argument contradicts the holding in Moore.
The Court noted “linking Fourth Amendment protections to
state law would cause them to vary from place to place and
from time to time . . . . Even at the same place and time, the
Fourth Amendment’s protections might vary if federal offi-
cers were not subject to the same statutory constraints as state
officers. . . . It would be strange to construe a constitutional
provision that did not apply to the States at all when it was
adopted to now restrict state officers more than federal offi-
cers, solely because the States have passed search-and-seizure
laws that are the prerogative of independent sovereigns.”
Moore, 128 S. Ct. at 1607 (internal citation and quotation
marks omitted).
III. Motion to Suppress Search Warrant
A. Brobst’s Residence
Brobst argues that the search warrant violated his rights
under the Fourth Amendment, because it failed to (1) describe
the appearance of the structure and (2) identify the “new
address.” Specifically, Brobst argues that the description of
the residence, as a “single story, single family, ranch style
dwelling with shingle roof,” described several residences on
Driftwood Lane, including two on his own property. Thus, the
warrant lacked particularity. We review de novo the district
court’s denial of Brobst’s motion to suppress, and the factual
findings underlying the denial for clear error. See United
States v. Peterson, 353 F.3d 1045, 1048 (9th Cir. 2003). We
also review de novo a district court’s determination regarding
the specificity of a warrant, including whether it is overbroad
2848 UNITED STATES v. BROBST
or not sufficiently particular. See United States v. Wong, 334
F.3d 831, 836-37 (9th Cir. 2003).
[4] The Fourth Amendment states that “no Warrants shall
issue, but upon probable cause, . . . and particularly describing
the place to be searched. . . .” U.S. Const. amend. IV. As to
a warrant’s description of the place to be searched, the United
States Supreme Court held, “It is enough if the description is
such that the officer with a search warrant can, with reason-
able effort ascertain and identify the place intended.” Steele
v. United States, 267 U.S. 498, 503 (1925). We have held that
“[t]he test for determining the validity of a warrant is [(1)]
whether the warrant describes the place to be searched with
‘sufficient particularity to enable law enforcement officers to
locate and identify the premises with reasonable effort,’ and
[(2)] whether any reasonable probability exists that the offi-
cers may mistakenly search another premise.” United States
v. Mann, 389 F.3d 869, 876 (9th Cir. 2004) (citation omitted).
In evaluating the effect of a misstated address on the suffi-
ciency of a warrant, we have also recognized that “[t]he nec-
essary specificity of the description will differ as between
urban and rural areas and depends heavily upon the factual
circumstances of each case.” Id. (citation and internal quota-
tion marks omitted). Additionally, we have also taken into
account the knowledge of the officer executing the warrant.
See id. at 876-77 (holding the warrant was sufficiently partic-
ular, regardless of the misstated address, because (1) two of
the agents executing the warrant personally knew which
premises were intended to be searched; (2) the misaddress of
“Lower Deer Creek” rather than “Upper Deer Creek” could
not have caused any confusion because the road referenced in
the warrant only traveled to Upper Deer Creek; (3) the
address was reasonable for the rural location; and (4) the
premises that were intended to be searched were those actu-
ally searched); United States v. Turner, 770 F.2d 1508, 1511
(9th Cir. 1985) (holding the warrant was sufficiently particu-
lar in that: (1) it described the house to be searched with great
particularity and no nearby houses met the warrant’s detailed
UNITED STATES v. BROBST 2849
description; (2) the address was reasonable for the location
intended; (3) the house had been under surveillance; (4) the
warrant was executed by an officer who knew which premises
were intended to be searched; and (5) the premises that were
intended to be searched were those actually searched).
[5] Applying this law to these circumstances, we hold that,
notwithstanding (1) the address change from 31 Driftwood
Lane, Woods Bay, Montana to 32877 Driftwood Lane, Big-
fork, Montana and (2) the proximity of similarly described
homes, law enforcement officers were able to locate and iden-
tify Brobst’s residence (the premises to be searched) with rea-
sonable effort. The officers drove directly to the property
based upon the information in the warrant. The misstated
address and similar ranch style homes did not cause any con-
fusion to the officers. Both the mailbox and the sign on the
tree in front of the searched residence bore his name, indicat-
ing Brobst’s ownership of that residence. The address was
reasonable for the rural location of the property, the address
change only occurring to accommodate the 9-1-1 system. The
officers actually searched the residence which was intended to
be searched. Furthermore, in an abundance of caution, the
officers verified it was Brobst’s property based upon a tax/
property map, which Detective Yonkin obtained. The officers
contacted “neighbors,” who stated the house was Brobst’s.
The officers attempted (without success) to cross-reference
the address through dispatch. All of these facts support a find-
ing that these officers located and identified Brobst’s resi-
dence with reasonable effort. There is no evidence in the
record that indicated that the officers were unsure of their
location. There was virtually no chance that the officers had
any trouble locating and identifying Brobst’s residence or that
they would have searched another house by mistake. In apply-
ing the two-part test, we conclude that the warrant was suffi-
ciently particular for officers to locate the premises with
reasonable effort. No reasonable probability existed, under
these circumstances, that the officers would have mistakenly
2850 UNITED STATES v. BROBST
searched the wrong premises. Thus, the district court did not
err in denying Brobst’s motion to suppress.
The district court alternatively held that, even if the search
warrant was not sufficiently particularized, the good faith
exception applied to the search of Brobst’s residence. See
Massachusetts v. Sheppard, 468 U.S. 981, 987-88 (1984);
United States v. Clark, 31 F.3d 831, 835 (9th Cir. 1994).
Brobst did not challenge this alternative finding. Because we
conclude that the warrant was valid, we need not address this
alternative finding.
B. Computer-Related Items
Brobst argues that the seizure of computer-related items,
compact disks, floppy disks, hard drives, memory cards,
DVDs, videotapes, and other portable digital devices lacked
probable cause. We review the district court’s denial of a
motion to suppress evidence de novo. United States v. Meek,
366 F.3d 705, 711 (9th Cir. 2004). We also review a magis-
trate’s finding of probable cause to issue a search warrant for
clear error, and we give “great deference” to such a finding.
United States v. Hay, 231 F.3d 630, 634 n.4 (9th Cir. 2000).
The Fourth Amendment requires that a warrant describe
with particularity the “things to be seized.” U.S. Const.
amend. IV. Search warrants must be specific in both particu-
larity and breadth. See United States v. Towne, 997 F.2d 537,
544 (9th Cir. 1993). “Particularity is the requirement that the
warrant must clearly state what is sought. Breadth deals with
the requirement that the scope of the warrant be limited by the
probable cause on which the warrant is based.” Id. (citation
and internal quotation marks omitted). We have held that
probable cause must exist to seize all the items of a particular
type described in the warrant. United States v. Spilotro, 800
F.2d 959, 963 (9th Cir. 1986).
The description of the things to be seized must be specific
enough to enable the officers conducting the search reason-
UNITED STATES v. BROBST 2851
ably to identify the things authorized to be seized. See Mann,
389 F.3d at 877. This prevents “general, exploratory rummag-
ing in a person’s belongings.” United States v. Rude, 88 F.3d
1538, 1551 (9th Cir. 1996) (internal quotation marks and cita-
tion omitted). However, the search warrant “need only be rea-
sonably specific, rather than elaborately detailed.” Id.
(internal quotation marks and citation omitted). “The specific-
ity required varies depending on the circumstances of the case
and the type of items involved.” Id. (internal quotation marks
and citation omitted). This particularity “also ensures that the
magistrate issuing the warrant is fully apprised of the scope
of the search and can thus accurately determine whether the
entire search is supported by probable cause.” Mann, 389 F.3d
at 877.
[6] Brobst argues probable cause did not exist, because a
single photograph, which one witness believed was from the
internet, is not sufficient evidence to seize computer-related
items. Brobst argues that the affidavit provided probable
cause only for the seizure of the photographs that were printed
off the internet, the tower computer, and the HP color printer.
We disagree. As a practical matter, the seizure of the
computer-related equipment was described in the narrowest
terms reasonably likely to contain the images. See United
States v. Giberson, 527 F.3d 882, 886-87 (9th Cir. 2008)
(holding that a warrant describing particular documents
authorizes the seizure of a computer, where the searching
agents reasonably believe that documents specified in the
warrant would be found stored in the computer); United
States v. Lacy, 119 F.3d 742, 746 (9th Cir. 1997) (holding
“when a more precise description is not possible” a blanket
seizure is allowed); United States v. Hay, 231 F.3d 630, 637
(9th Cir. 2000) (holding a “generic classification” authorizing
the seizure of an “entire computer system and virtually every
document in [the defendant’s] possession without referencing
child pornography or any other particular offense conduct”
was permissible).
2852 UNITED STATES v. BROBST
[7] At the time Detective Yonkin applied for the warrant,
he could not have known what storage media Brobst used. See
Lacy, 119 F.3d at 746. Here, as with Lacy, we conclude that
the seizure of the computer-related equipment was reasonable.
The magistrate did not commit clear error in finding probable
cause, as evidence of child pornography obtained from the
internet existed. We therefore affirm the district court.
IV. Motion to Dismiss the Indictment/Motion to
Reconsider
Brobst argues that the district court erred in not dismissing
the indictment or reconsidering the motion to suppress the
search warrant for lack of particularity, because the prosecu-
tor failed (prior to the suppression hearing) to provide Brobst
information that would have produced a different outcome
had it been disclosed. “The decision to reconsider a suppres-
sion order at trial is reviewed for abuse of discretion.” United
States v. Buffington, 815 F.2d 1292, 1298 (9th Cir. 1987).
“Dismissal of an indictment on due process grounds is
reviewed de novo; dismissal based on the court’s supervisory
powers is reviewed for abuse of discretion.” United States v.
Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991). We
review possible violations of a defendant’s due process rights
under Brady v. Maryland, 373 U.S. 83 (1963), de novo.
United States v. Lehman, 792 F.2d 899, 901 (9th Cir. 1986).
[8] In Brady, the Supreme Court held that withholding evi-
dence that is material to the defendant’s guilt violates due pro-
cess. Brady, 373 U.S. at 87. Evidence is material under the
Brady rule only if “there is a reasonable probability that, had
[it] been disclosed to the defense, the result of the proceeding
would have been different.” United States v. Bagley, 473 U.S.
667, 682 (1985). Here, the prosecutor failed to turn over an
email message received from Detective Yonkin, discussing
Yonkin’s opinion of Brobst’s numerous pretrial motions. The
message, however, included additional information about the
officers’ actions at Brobst’s residence. Specifically, Detective
UNITED STATES v. BROBST 2853
Yonkin called dispatch to cross-check the present 9-1-1
address with the former address, and he ran the license on a
vehicle parked nearby. Brobst argues that these facts demon-
strate that Detective Yonkin’s uncertainty as to what premise
was to be searched. The district court did not agree. We
affirm its decision.
[9] The fact that Detective Yonkin attempted to cross-
reference Brobst’s address is relevant only to the issue of the
sufficiency of the search warrant, discussed above. As we
concluded, the officers were able to drive to the premises
based on the address in the search warrant and confirm it with
little effort. Additionally the “neighbors” verified that Brobst
owned the property. Detective Yonkin believed that they were
at the correct residence, and his additional attempts to verify
the location does not indicate that Detective Yonkin was
unsure of the residence or unable to reasonably locate the
premises to be searched. The district court found that Detec-
tive Yonkin’s reasonable efforts satisfied the test of whether
the officer with a search warrant could, with reasonable effort,
ascertain and identify the place to be searched. There is no
reasonable probability that the undisclosed evidence would
have changed the district court’s determination as to the war-
rant’s particularity. Thus, the undisclosed evidence was not
material. See Bagley, 473 U.S. at 682.
V. Motion to Suppress Statements — Pre-Arrest
Brobst claims that he was “in custody” when he made his
initial statements to the officers at his home, and that the dis-
trict court therefore erred in denying his motion to suppress.
We review de novo the district court’s decision to admit or
suppress statements that may have been obtained in violation
of Miranda v. Arizona, 384 U.S. 436 (1966). See United
States v. Rodriguez-Rodriguez, 393 F.3d 849, 855 (9th Cir.
2005). Whether a person is in custody for purposes of
Miranda is reviewed de novo. See United States v. Hayden,
260 F.3d 1062, 1066 (9th Cir. 2001). The factual findings
2854 UNITED STATES v. BROBST
underlying the district court’s decision, however, are
reviewed for clear error. See United States v. Andaverde, 64
F.3d 1305, 1313 (9th Cir. 1995).
[10] “[I]n-custody determinations must be based on the
totality of the circumstances and are reviewed according to
whether a reasonable person in such circumstances would
conclude after brief questioning that he or she would not be
free to leave.” Hayden, 260 F.3d at 1066 (alteration and inter-
nal quotation marks omitted). “Factors relevant to whether an
accused is ‘in custody’ include the following: (1) the language
used to summon the individual; (2) the extent to which the
defendant is confronted with evidence of guilt; (3) the physi-
cal surroundings of the interrogation; (4) the duration of the
detention; and (5) the degree of pressure applied to detain the
individual.” Id.
[11] The nature of the language used to summon Brobst
weighs in favor of a conclusion that Brobst was in custody.
Uniformed and armed Deputy Ewers approached Brobst when
Brobst first came to his own home. Deputy Ewers then stated,
“you need to come with me” or words to that effect. This
statement is a command or a show of force.
[12] When Brobst entered the kitchen, Detective Yonkin
provided Brobst with a copy of the search warrant. Detective
Yonkin then told Brobst that they had located child pornogra-
phy in the house. Detective Yonkin questioned Brobst about
the pornography. Because (1) Brobst was immediately con-
fronted with evidence of the child pornography against him
and (2) the manner in which he was confronted, these facts
weigh in favor of finding Brobst was in custody.
[13] The physical surroundings of the interrogation weigh
in favor of finding Brobst was in custody. We have held that
detention in one’s residence (not isolated, unfamiliar sur-
roundings) may militate against a determination of custody.
See generally United States v. Gregory, 891 F.2d 732, 735
UNITED STATES v. BROBST 2855
(9th Cir. 1989); United States v. Eide, 875 F.2d 1429, 1437
(9th Cir. 1989) (all indicating that interrogations occurring at
a defendant’s residence are a factor in finding a defendant is
not in custody). All of these cases, however, are distinguish-
able, because the officers were not in the residence when the
defendant arrived. Other circuits rely upon the degree to
which law enforcement officers dominated the scene. See
United States v. Ritchie, 35 F.3d 1477, 1485 (10th Cir. 1994)
(“[C]ourts are much less likely to find the circumstances cus-
todial when the interrogation occurs in familiar or at least
neutral surroundings, such as the suspect’s home.”) (internal
quotation marks and citation omitted); United States v. Mittel-
Carey, 493 F.3d 36, 40 (1st Cir. 2007) ( “While an interroga-
tion in a defendant’s residence, without more, certainly
weighs against a finding of custody, . . . the level of physical
control the agents exercised . . . weighs heavily in the oppo-
site direction . . . .”); Sprosty v. Buchler, 79 F.3d 635, 641
(7th Cir. 1996) ( “More important than the familiarity of the
surroundings where [the defendant] was being held is the
degree to which the police dominated the scene.”); United
States v. Griffin, 922 F.2d 1343, 1354-55 (8th Cir. 1990)
(“Questioning which occurs in the suspect’s own home may
provide a margin of comfort, but . . . the setting of the interro-
gation is not so important to the inquiry as the question of
police domination of that setting.”); but see Orozco v. Texas,
394 U.S. 324, 326-27 (1969) (holding that a suspect within
his own residence was in custody for Miranda purposes).
Here, the officers entered Brobst’s residence, in Brobst’s
absence, through an open window. When Brobst arrived at his
residence, three officers were already there. Two of the offi-
cers were searching the inside of the residence, and Deputy
Ewers was outside the residence, waiting, in part, for Brobst’s
return. Immediately upon Brobst’s arrival, Deputy Ewers
approached Brobst and told Brobst to follow him.
The short duration of the interrogation weighs against find-
ing Brobst was in custody. See Gregory, 891 F.2d at 735
(finding defendant was not in custody, in part, because the
2856 UNITED STATES v. BROBST
entire interview lasted only a few minutes). The district court
found that Brobst was questioned for “two minutes or so.”
Only ten to fifteen minutes elapsed from the time Brobst
arrived at his home to the time when he was placed under
arrest.
Lastly, the degree of pressure applied to detain Brobst
weighs against finding that Brobst was in custody. Brobst was
neither handcuffed nor told that he was under arrest. Brobst
argues that “the three armed officers positioned themselves as
to prevent Brobst from leaving.” The district court found that
the officers did not position themselves to prevent Brobst
from leaving, but rather found that two officers were a normal
conversational distance from Brobst, and Deputy Ewers was
some feet away during the interrogation. There is no clear
error in the district court’s factual findings. Even if the offi-
cers did position themselves to prevent Brobst from leaving,
it was reasonable under these circumstances to take steps to
insure their safety. See United States v. Booth, 669 F.2d 1231,
1236 (9th Cir. 1981) (“Strong but reasonable measures to
insure the safety of the officers or the public can be taken
without necessarily compelling a finding that the suspect was
in custody.”); United States v. Kim, 292 F.3d 969, 976-77 (9th
Cir. 2002) (noting locking doors and restricting the occu-
pants’ movement are often reasonable police procedures to
control access to a scene during the execution of a search war-
rant).
[14] Based upon the totality of the circumstances, and after
applying the five relevant factors, we find that a reasonable
person in such circumstances would conclude that he would
not be free to leave. Thus, we hold that the district court erred
in holding that Brobst was not in custody.
[15] Even though the district court erred in denying the
motion to suppress, we will sustain the denial if the error was
harmless. See United States v. Khan, 993 F.2d 1368, 1376
(9th Cir. 1993) (holding that admission of evidence obtained
UNITED STATES v. BROBST 2857
in violation of Miranda is subject to a harmless error analy-
sis). Although Brobst’s statement made at his residence
should have been suppressed, the child pornographic materi-
als produced as a result of the search and Brobst’s separate
post-Miranda statements admitting to possession of the mate-
rials were not “tainted” and were properly admitted by the
district court. See Oregon v. Elstad, 470 U.S. 298, 309 (1985).
Because Brobst’s convictions were based upon more than his
“in custody” statement, we hold that it was harmless error for
the district court to admit Brobst’s statement made in viola-
tion of his Miranda rights.
VI. Motion to Suppress — Warrantless Arrest
Brobst argues that the warrantless arrest was illegal on two
theories: (1) the search warrant did not cure the need for an
arrest warrant and (2) there was no probable cause and exi-
gent circumstances to arrest based upon Montana law. We
review whether officers had probable cause for a warrantless
arrest de novo. United States v. Juvenile (RRA-A), 229 F.3d
737, 742 (9th Cir. 2000).
In general, police officers may not enter a person’s home
to arrest him without obtaining an arrest warrant. See Payton
v. New York, 445 U.S. 573, 589-90 (1980). The Fourth
Amendment provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, sup-
ported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
U.S. Const. amend. IV. “[T]he Fourth Amendment has drawn
a firm line at the entrance to the house. Absent exigent cir-
cumstances, that threshold may not be crossed without a war-
2858 UNITED STATES v. BROBST
rant.” Payton, 445 U.S. at 590. The warrant requirement,
however, has exceptions. In order for an officer to effect a
warrantless arrest, the officer needs probable cause as defined
by federal Fourth Amendment jurisprudence to make a war-
rantless arrest. See United States v. Bueno-Vargas, 383 F.3d
1104, 1107 (9th Cir. 2004); Moore, 128 S. Ct. at 1607. Proba-
ble cause requires more than bare suspicion but need not be
based on evidence sufficient to support a conviction, nor even
a showing that the officer’s belief is more likely true than
false. Brinegar v. United States, 338 U.S. 160, 175 (1949). In
United States v. Moreno, 891 F.2d 247 (9th Cir. 1989), we
held that once incriminating evidence is discovered by offi-
cers serving a valid search warrant, that evidence can provide
probable cause for a warrantless arrest. See id. at 249 (officers
were justified in making an investigatory stop when defendant
approached own house, then drove away, while officers were
executing search warrant).
[16] Here, a valid search warrant existed allowing the offi-
cer to enter Brobst’s home. While the warrant did not autho-
rize Brobst’s arrest, incriminating evidence was found by the
officers prior to Brobst’s arrest. That incriminating evidence
provided Detective Yonkin the necessary probable cause to
arrest him.
Because we hold that Montana law does not apply to the
lawfulness of Brobst’s arrest, see Section II, we need not
address Brobst’s arguments regarding the application of Mon-
tana law.
VII. Motion to Suppress Statements — Post-Arrest
Because the officers failed to provide Brobst with Miranda
warnings while he was in custody at his residence, we must
next determine whether the statements Brobst made at the
police station, after receiving his Miranda warnings and sign-
ing the Miranda waiver, were admissible. See United States
v. Orso, 234 F.3d 436, 440-41 (9th Cir. 2000). An initial fail-
UNITED STATES v. BROBST 2859
ure of law enforcement officers to administer Miranda warn-
ings, “unaccompanied by any actual coercion or other
circumstances calculated to undermine the suspect’s ability to
exercise his free will,” does not, without more, taint subse-
quent Mirandized statements. See Elstad, 470 U.S. at 309; see
also Colorado v. Connelly, 479 U.S. 157, 167, 169-70 (1986)
(holding that “coercive police activity is a necessary predicate
to the finding that a confession is not ‘voluntary’ ”). “A sub-
sequent administration of Miranda warnings to a suspect who
has given a voluntary but unwarned statement ordinarily
should suffice to remove the conditions that precluded admis-
sion of the earlier statement.” Elstad. 470 U.S. at 314.
[17] Here, Brobst’s initial statements were not coerced. The
officers’ initial questions — whether the pornographic mate-
rial was Brobst’s, whether someone else lived in the resi-
dence, and whether the papers might belong to someone else
— though improper, were not deliberately coercive or
improper tactics. See United States v. Toral, 536 F.2d 893,
896-87 (9th Cir. 1976) (finding that because “[a]ll of the
questioning took place in the security of appellant’s own
home . . . and the initial questioning, though improper, was in
the form of preliminary questions that may have been asked
of anyone in order to narrow the field of suspects[,] . . . no
coercive atmosphere . . . was carried over after the Miranda
warnings were given”). Brobst was not subject to coercive or
improper tactics, such as being “confronted with the descrip-
tion of unpleasantness of prison for the obvious purpose of
getting (appellant) to abandon (his) self-imposed silence . . .
in flagrant violation of . . . Miranda.” United States v. Olof,
527 F.2d 752, 753-54 (9th Cir. 1975) (internal quotation
marks omitted). Brobst stated no one else lived in the resi-
dence and that the house was his, so the materials must also
be his. There is no evidence in the record that Brobst’s “in
custody” statements were the result of any coercion. Thus, we
conclude the statements made after Brobst was advised of his
rights under Miranda, which he voluntary waived, were
appropriately admitted and the district court did not err.
2860 UNITED STATES v. BROBST
VIII. Improper Burden Shifting
Brobst argues that the district court improperly shifted the
burden of proof to him during the bench trial on three topics:
(1) there were actually two houses and a garage on the lot
rather than one house; (2) the filing cabinet containing the
printed child pornography images was locked; and (3) it was
possible that images of child pornography on Brobst’s com-
puter were either not viewed or were there without his knowl-
edge. Brobst argues that the foregoing contain reasonable
inferences that would give rise to reasonable doubt. “Whether
the [court] improperly shifted the burden of proof to the
defendant is reviewed de novo.” United States v. Coutchavlis,
260 F.3d 1149, 1156 (9th Cir. 2001). We review for clear
error the district court’s factual findings in connection with a
bench trial. Saltarelli v. Bob Baker Group Med. Trust, 35 F.3d
382, 384 (9th Cir. 1994).
In In re Winship, 397 U.S. 358 (1970), the Supreme Court
held that the “Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he is
charged.” 397 U.S. at 364. Here, Brobst was charged with
receipt and possession of child pornography materials. The
government therefore had the burden to prove beyond a rea-
sonable doubt that the defendant knowingly received and/or
knowingly possessed materials that contained images of child
pornography that were transported in interstate or foreign
commerce or were produced using material that had been
transported in interstate or foreign commerce by computer or
other means. See 18 U.S.C. §§ 2252A(a)(2); 2252A(a)(5)(B).
Brobst’s first two assertions — the existence of multiple
dwellings on the property and the locked filing cabinet — are
not relevant or material to the elements of receipt or posses-
sion of child pornography. These assertions are relevant, if at
all, to Brobst’s suppression motions related to the sufficiency
of the search warrant and the scope of the search warrant. We
UNITED STATES v. BROBST 2861
found the warrant was sufficiently particular to locate Brob-
st’s residence, and Brobst did not assert that the opening of a
locked filing cabinet was beyond the warrant’s scope.
Brobst’s remaining assertion — whether images of child
pornography on Brobst’s computer were either not viewed or
were there without his knowledge — relates to the elements
the government must prove. The district court took testimony
on this issue from Jimmy Weg, the government’s witness,
about the images found on Brobst’s computer. Brobst’s coun-
sel was able to competently cross examine Weg, which
included questions of whether Brobst would have necessarily
known that child pornographic images were stored in his
computer’s cache. Based upon Weg’s testimony, Brobst
moved for a judgment of acquittal. The district court denied
the motion, finding that, based upon Weg’s testimony and
Brobst’s Mirandized statements, Brobst knew the photographs
were stored on his computer.
The statements upon which Brobst relies to show that the
district court shifted the burden of proof were made by the
district court during Brobst’s closing remarks. The district
court stated in part:
THE COURT: Well, but is there any question that
he’s the one that had access to the computer and he’s
the one that was using? I mean, that doesn’t even
seem to be in dispute to me. There’s no proof.
I mean, his now wife said that she transferred
everything that was on the old computer to the new
computer. But that doesn’t mean getting on the inter-
net, that means taking the entirety of what was on
the old computer and putting it on the new computer
with a new operating system.
MR. LEANDER: That’s correct. And we don’t
know whether these images may have existed from
a prior hard drive from the Radioactive folks.
2862 UNITED STATES v. BROBST
THE COURT: I know, but there isn’t any evidence
to support that.
MR. LEANDER: Well, I think there’s a sugges-
tion, and I think the government -
THE COURT: But evidence is what you need. Not
suggestion, evidence. Because I can sit here and
speculate a million things, somebody coming into
his house at night when he was sleeping and he
didn’t know they were there and they got on his
computer and they used his credit card. You can
speculate about a lot of things, but that doesn’t mean
it’s evidence. You have to have evidence.
What evidence is there to support that position?
That it came from . . . Radioactive computer. That
they used an old one that somebody else had used for
child pornography.
MR. LEANDER: Your Honor, it’s my position
that it’s the government’s burden to prove otherwise.
There are suggestions — we know that there was a
Jerry, Jr., there. We know the testimony from their
own expert has stated that this can take place. And
I think the government — the defense can make sug-
gestions that raise doubt.
THE COURT: They don’t, in my mind. The sug-
gestions you’re making don’t raise doubt in my
mind. They don’t. They sound like just rank specula-
tion.
[18] The district court, in its oral decision, found that the
government had proved the elements of the charges of posses-
sion and receipt beyond a reasonable doubt. It is clear that the
district court knew the standard and applied it. The district
court’s comments during Brobst’s closing arguments were
UNITED STATES v. BROBST 2863
nothing more than the district court (in its capacity as trier of
fact) reflecting to counsel that it did not believe that Brobst
was unaware of the materials or that someone else had placed
the materials on his computer. Under these circumstances, we
conclude the district court did not shift the burden of proof
and its findings were not clearly erroneous. See United States
v. Atkinson, 990 F.2d 501, 503 (9th Cir. 1993) (en banc) (“In
a bench trial, the judge acting as the trier of both fact and law
implicitly rules on the sufficiency of the evidence by render-
ing a verdict of guilty.”).
IX. Double Jeopardy
[19] In light of this court’s decisions in United States v.
Davenport, 519 F.3d 940 (9th Cir. 2008) and United States v.
Giberson, 527 F.3d 882 (9th Cir. 2008), Brobst’s convictions
for both receipt and possession of child pornography violated
the Double Jeopardy Clause of the Fifth Amendment to the
Constitution. See Davenport, 519 F.3d at 947. “Where we
conclude that a defendant has suffered a double jeopardy vio-
lation because he was erroneously convicted for the same
offense under two separate counts . . . ‘the only remedy con-
sistent with the congressional intent is for the [d]istrict
[c]ourt, where the sentencing responsibility resides, to exer-
cise its discretion to vacate one of the underlying convic-
tions.’ ” United States v. Schales, 546 F.3d 965, 980 (9th Cir.
2008) (quoting United States v. Ball, 470 U.S. 856, 864
(1985)). Accordingly, we vacate the judgment and remand
with instructions that the district court vacate one of Brobst’s
convictions for either receipt or possession of child pornogra-
phy, allowing for it to be reinstated without prejudice if his
other conviction should be overturned on direct or collateral
review.
X. Conclusion
We affirm the district court’s denial of (1) Brobst’s motions
to suppress and (2) Brobst’s motion to dismiss the indictment
2864 UNITED STATES v. BROBST
or reconsider the motion to suppress re: sufficiency of search
warrant. We also find the district court did not shift the bur-
den of proof to Brobst during the bench trial. Lastly, we find
that Brobst’s convictions for receipt and possession of child
pornography were in violation of the Double Jeopardy Clause
and vacate Brobst’s sentence and remand to the district court.
CONVICTION AFFIRMED; SENTENCE VACATED
and REMANDED.