United States v. Daniel Brown , 701 F.3d 120 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 11-5048
DANIEL J. BROWN,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
Norman K. Moon, Senior District Judge.
(3:10-cr-00016-NKM-1)
Argued: October 26, 2012
Decided: December 6, 2012
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opin-
ion, in which Judge Wilkinson and Judge Shedd joined.
2 UNITED STATES v. BROWN
COUNSEL
ARGUED: Frederick Theodore Heblich, Jr., OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Charlottesville, Vir-
ginia, for Appellant. Nancy Spodick Healey, OFFICE OF
THE UNITED STATES ATTORNEY, Charlottesville, Vir-
ginia, for Appellee. ON BRIEF: Larry W. Shelton, Federal
Public Defender, Christine Madeleine Lee, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, Lauren
Smith, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charlottesville, Virginia, for Appellant. Timothy J. Heaphy,
United States Attorney, Roanoke, Virginia, for Appellee.
OPINION
KING, Circuit Judge:
Daniel J. Brown appeals from his conviction and sentence
in the Western District of Virginia for a child pornography
offense. The grand jury returned a two-count indictment
against Brown, charging him with receiving visual depictions
involving the use of minors engaging in sexually explicit con-
duct ("child pornography"), in violation of 18 U.S.C.
§§ 2252(a)(2) and 2252(b)(1) (Count One), and with possess-
ing child pornography, in contravention of 18 U.S.C.
§§ 2252(a)(4)(B) and 2252(b)(2) (Count Two). Brown sought
to suppress evidence that had been recovered from his per-
sonal laptop computer (the "laptop"). The district court
rejected his suppression motion, however, and Brown was
found guilty by a jury on both charges. After vacating
Brown’s conviction on Count Two, the court sentenced him
on Count One to 144 months in prison and ten years of super-
vised release. Brown maintains that the court’s denial of his
motion to suppress was erroneous, and he also contends that
the court erred in vacating and dismissing Count Two (the
lesser-included offense) rather than Count One. As explained
below, we reject each of Brown’s contentions and affirm.
UNITED STATES v. BROWN 3
I.
In May 2009, Detective Nicholas Rudman of the Char-
lottesville (Virginia) Police Department, who was assigned to
investigate internet crimes against children, began an investi-
gation of an internet protocol ("IP") address associated with
a computer that had downloaded files containing child pornogra-
phy.1 Those files were identified to Rudman by what is known
as "hash value," rather than by a proper name.2 Rudman rec-
ognized the hash values of the files as corresponding to those
which, he knew from prior experience, contained child por-
nography. The pornographic files had been transmitted over
the internet through peer-to-peer (file sharing) networks,
where users are able to download each others’ digital files.
Detective Rudman’s investigation revealed that the sub-
scriber of the IP address was Medical Transport, LLC, a pri-
vate ambulance business located in Charlottesville. Based on
information obtained from the company’s manager, Rudman
and Detective Todd Lucas were able to narrow the focus of
their investigation to defendant Brown and Justin Yarboro,
who worked together and were always on duty at Medical
Transport when the files were downloaded. Using the infor-
mation they had discovered, the detectives secured a search
warrant on June 17, 2009, for Medical Transport’s headquar-
ters. Rudman and Lucas, joined by Detectives Lisa Reeves
and Michael Flaherty, executed the search warrant that day
while Brown and Yarboro were on duty. Their search of Med-
ical Transport’s building did not, however, reveal any com-
puters or electronic equipment relevant to their investigation.
1
Our recitation is drawn from the facts adduced at trial, as well as those
set forth in Brown’s motion to suppress, which the district court accepted
as true.
2
A "hash value" is a code that identifies an individual digital file as a
kind of "digital fingerprint." See United States v. Wellman, 663 F.3d 224,
226 n.2 (4th Cir. 2011).
4 UNITED STATES v. BROWN
When the police officers arrived at Medical Transport, and
while they were executing the search warrant, Brown and
Yarboro were out on a call in an ambulance. Upon the duo’s
return to Medical Transport, they pulled the ambulance to the
front of the building and exited the vehicle. The detectives
promptly approached the ambulance, introducing themselves
as officers of the Charlottesville Police Department investi-
gating internet crimes against children. Detective Rudman
then inquired of Brown and Yarboro, "Do you guys have any
laptops in your vehicle?" J.A. 825.3 When Brown responded
in the affirmative, Rudman asked, "Can you get those for us?"
Id. Brown complied, retrieving his laptop, which Rudman
took out of Brown’s hands and handed to Detective Flaherty
for inspection. Brown and Yarboro were then brought into the
Medical Transport building and interviewed separately. Rud-
man conducted the interview of Yarboro, who was the initial
focus of the investigation because he was younger than
Brown and was presumably more computer savvy. Detective
Lucas simultaneously interviewed Brown, and quickly real-
ized that Brown was the more likely suspect of the two.
Detective Reeves, who was present at the outset of Brown’s
interview, also deduced that Brown was more likely to have
downloaded the files. She promptly left the interview room to
interrupt Detective Rudman’s interview of Yarboro and lead
Rudman to where Lucas was interviewing Brown. Detective
Rudman explained that he was present to ask about child por-
nography. During the interview, Rudman showed Brown doc-
uments from the investigation indicating that files containing
child pornography had been downloaded at Medical Trans-
port’s IP address. Brown soon admitted that his laptop was
the computer that had been involved, and he acknowledged
searching for child pornography by computer on and off for
a couple of years, using search terms like "daughter," "incest,"
and "PTHC" (pre-teen hard core). The detectives thereafter
3
Citations herein to "J.A. ____" refer to the contents of the Joint Appen-
dix filed by the parties in this appeal.
UNITED STATES v. BROWN 5
concluded the interview. Having seized Brown’s laptop, the
detectives procured a second search warrant, authorizing them
to search the laptop itself. The laptop was found to contain
videos and images of child pornography.
Brown was indicted by the grand jury in June 2010. A
superseding indictment, returned on February 9, 2011, con-
tains the two charges underlying this appeal.4 After prelimi-
nary proceedings in the case, Brown’s jury trial was
scheduled for Monday, February 28, 2011. Brown did not file
his motion to suppress, however, until late on Saturday, Feb-
ruary 26, 2011.
By his suppression motion, Brown suggested that the
search warrant for Medical Transport did not authorize a sei-
zure of Brown’s laptop because the laptop was not found in
the Medical Transport building. The motion contended that
the warrant only authorized the search of "the business of
Medical Transport," and specifically identified and described
the building, which was located on Harris Street in Charlottes-
ville. The motion maintained that the warrant allowed the
detectives to search for computers, electronic storage devices,
and employee records relating to scheduling, but did not
authorize a search of either Brown or the ambulance outside
the building. More specifically, the motion asserted that
[n]either Brown nor the computer was at the location
4
In Count One, Brown is charged with having "knowingly received . . .
one or more visual depictions . . . , and the production of such visual
depiction(s) involved the use of a minor engaging in sexually explicit con-
duct and such visual depiction(s) were of such conduct . . . in violation of
Title 18 United States Code, Sections 2252(a)(2) and 2252(b)(1)." J.A. 15
(emphasis added). Count Two alleges that Brown "knowingly possessed
. . . at least one matter which contained a visual depiction . . . , and the
production of such visual depiction involved the use of a minor engaging
in sexually explicit conduct, and such visual depiction was of such con-
duct . . . in violation of Title 18, United States Code, Sections
2252(a)(4)(B) and 2252(b)(2)." Id. (emphasis added).
6 UNITED STATES v. BROWN
the warrant authorized for search. Officer Rudman’s
statements reveal that the CPD officers’ zeal to
obtain the subject of the warrant led them to disre-
gard their authority to search for it. . . . Here, the
warrant clearly allows for search inside a specific
building but officers chose to search a person and
vehicle outside of the building. Thus, the officers
found what they were looking for but they did not
find it in an area where they were constitutionally
permitted to look.
J.A. 22.5
When the parties convened on the Monday morning of trial,
the district court advised Brown’s lawyer that "I’m not going
to listen to a lot of argument on motions that are filed late, but
you can tell me what it is you want to argue and I’ll consider
it as quickly as I can." J.A. 25. Brown’s lawyer briefly
explained his position that the police officers had exceeded
the scope of the search warrant in their seizure of Brown’s
laptop, to which the court responded, "I’m going to deny your
motion based on what you filed. I’m not sure there was such
a search." J.A. 26 (emphasis added). The court continued,
"Disregarding whether [the motion is] late or not, I think it is
late, but on the merits, I don’t think there’s substance to the
motion and I’m going to deny the motion to suppress." J.A.
29.
5
The suppression motion also portrayed Brown’s initial encounter with
the detectives as a coercive scenario. According to the motion, after
Detective Rudman asked Brown to retrieve his laptop, "Brown turned
around and walked back to the passenger door of the ambulance. Rudman
followed inches behind Brown. Following the directives of the officers,
Brown stepped into the vehicle and retrieved a laptop computer. As Brown
disembarked from the ambulance, Detective Rudman pulled the laptop out
of Brown’s hands." J.A. 20. For purposes of this appeal, we accept the fac-
tual allegations of the motion to suppress as true, as did the district court
when it advised Brown’s lawyer just before trial that it would deny sup-
pression "based on what you filed." Id. at 26.
UNITED STATES v. BROWN 7
Brown’s jury trial lasted for three days and involved the
testimony of several witnesses, including Brown himself.
When Brown renewed his motion to suppress at the conclu-
sion of the prosecution’s evidence, the district court again
rejected it, explaining:
As far as the original motion to suppress, I think
you’ve heard all the evidence. You’ve questioned the
witnesses. The Court knows all of the evidence you
would put on regarding that. On the merits of it, I
think — I don’t think it’s a meritorious argument.
. . . I also think no justification for not filing it timely
has been shown.
J.A. 532.
On March 2, 2011, after being instructed by the district
court, the jury returned a guilty verdict on both counts. In a
post-trial motion filed on September 21, 2011, Brown argued
that the possession offense of Count Two is a lesser-included
offense of the receiving offense in Count One, and that his
convictions on both offenses therefore violated the Double
Jeopardy Clause of the Fifth Amendment. Brown moved to
dismiss Count One, which charged him with knowingly
receiving child pornography, as opposed to Count Two, which
charged him with knowingly possessing such files. See supra
note 4. The United States Attorney did not dispute that pos-
session is a lesser-included offense of receipt, but moved to
dismiss Count Two, asserting that Brown should be sentenced
on Count One only.6
Prior to imposing sentence on Brown, the district court
granted the government’s dismissal motion as to Count Two,
6
Though we have not confronted the question, our sister circuits are in
agreement that the knowing possession of child pornography is generally
a lesser-included offense of the knowing receipt thereof. See United States
v. Dudeck, 657 F.3d 424 (6th Cir. 2011) (collecting cases).
8 UNITED STATES v. BROWN
the lesser offense. Consequently, Brown was sentenced solely
on Count One to 144 months in prison and ten years of super-
vised release. Brown has timely noticed this appeal, and we
possess jurisdiction pursuant to 28 U.S.C. § 1291.
II.
A.
Brown’s initial contention is that the district court improp-
erly rejected his motion to suppress as untimely. Because the
court ruled on the substance of the motion notwithstanding its
purported tardiness, we shall confine our review to the merits
and bypass the timeliness issue. In that vein, Brown asserts
that the court erred when it failed to conduct an evidentiary
hearing prior to denying the motion. Rather than arguing for
outright reversal, Brown seeks remand for the desired hearing,
asserting that the court acted prematurely. More specifically,
Brown contends that the court should have assessed whether
the seizure of his laptop by the officers was reasonable, and
he opposes our consideration of any alternative bases for
denial of his suppression motion. In its response brief, the
government asserts that exigent circumstances existed to jus-
tify the officers’ seizure of the laptop.
On a motion to suppress, we assess the district court’s legal
determinations de novo. See United States v. Davis, 690 F.3d
226, 233 (4th Cir. 2012). We are not obliged to remand for
an evidentiary hearing if "any reasonable view of the evi-
dence, looked at in the light most favorable to the govern-
ment, will sustain the denial." United States v. Bethea, 598
F.2d 331, 333-34 (4th Cir. 1979). Nevertheless, our inquiry is
not limited to the district court’s reasoning, and we are enti-
tled to reject a remand request and affirm on "any ground sup-
ported by the record." United States v. Patterson, 278 F.3d
315, 317 (4th Cir. 2002). In this case, the government does
not contest Brown’s assertion that the search warrant for the
Medical Transport building failed to authorize a search or sei-
UNITED STATES v. BROWN 9
zure of Brown’s person or the ambulance. Thus, rather than
engaging in an analysis of the scope of the warrant (which is
not in the record), we will proceed on the proposition that the
seizure of Brown’s laptop was warrantless.7
The Fourth Amendment protects citizens against unreason-
able searches and seizures. Although warrantless searches and
seizures are considered to be "per se unreasonable," there are
"a few specifically established and well-delineated excep-
tions" to the search warrant requirement. Katz v. United
States, 389 U.S. 347, 357 (1967). The underlying command
of each such exception is reasonableness — "the ultimate
touchstone of the Fourth Amendment." Kentucky v. King, 131
S. Ct. 1849, 1856 (2011) (internal quotation marks and alter-
ation omitted). In this case, as the government suggests, the
applicable exception to the warrant requirement is "exigent cir-
cumstances."8
When "the exigencies of the situation make the needs of
law enforcement so compelling that [a] warrantless search [or
seizure] is objectively reasonable under the Fourth Amend-
ment," police officers are entitled to bypass the warrant
requirement. King, 131 S. Ct. at 1856 (internal quotation
marks omitted). The types of exigent circumstances that may
justify a warrantless seizure include, inter alia, the imminent
destruction of evidence. See United States v. Grissett, 925
F.2d 776, 778 (4th Cir. 1991) (recognizing that "[e]xigent cir-
cumstances can arise when the evidence might be destroyed
before a search warrant could be obtained"). Even if exigent
circumstances have been created by actions of the police —
7
"A ‘seizure’ of property occurs when there is some meaningful inter-
ference with an individual’s possessory interests in that property." United
States v. Jacobsen, 466 U.S. 109, 113 (1984). It is clear that a seizure of
Brown’s laptop occurred here.
8
Although Brown contends that the government waived its exigent cir-
cumstances theory, we are, as explained above, entitled to affirm on any
grounds supported by the record in our de novo review.
10 UNITED STATES v. BROWN
e.g., when the announced presence of officers creates an
immediate fear of detection — the authorities are entitled to
act reasonably and seize evidence in order to prevent its
destruction. See King at 1857 (explaining that "in the vast
majority of cases in which evidence is destroyed by persons
who are engaged in illegal conduct, the reason for the destruc-
tion is fear that the evidence will fall into the hands of law
enforcement").
The Supreme Court recognized that, with respect to war-
rantless seizures, "the Fourth Amendment requires only that
the steps preceding the seizure be lawful." King, 131 S. Ct. at
1858. In other words, "the exigent circumstances rule applies
when the police do not gain entry to premises by means of an
actual or threatened violation of the Fourth Amendment." Id.
at 1862. Here, the Charlottesville detectives had probable
cause to believe that child pornography was being down-
loaded at the Medical Transport building, and they could rea-
sonably believe that it was being downloaded at that location
by either Brown or Yarboro. The detectives’ showing of prob-
able cause — accepted and endorsed by the magistrate judge
in issuing the search warrant for the building — came from
tracing the illegal files to the Medical Transport IP address
and learning from Medical Transport’s manager that Brown
and Yarboro were the only employees working at the time
that the files were downloaded. The detectives’ entry onto the
company’s property was authorized by the search warrant,
and their subsequent inquiries regarding laptop computers
possessed by Brown and Yarboro, were therefore lawful and
proper.
Based on their investigation, the detectives had probable
cause to believe that any computer used by either Brown or
Yarboro during their work shifts at Medical Transport har-
bored evidence of child pornography. Accordingly, when the
Charlottesville detectives informed Brown that they were
investigating internet crimes against children, they had proba-
ble cause to believe that Brown’s laptop, which he possessed
UNITED STATES v. BROWN 11
during his work shift, contained evidence of child pornogra-
phy. See United States v. Place, 462 U.S. 696, 701 (1983)
(recognizing that the Fourth Amendment permits a warrant-
less seizure of property "[w]here law enforcement authorities
have probable cause to believe that [the property] holds con-
traband or evidence of a crime . . . , if the exigencies of the
circumstances demand it."). Following up on Brown’s
response, it was entirely reasonable for the officers to seize
Brown’s laptop — as they did — to prevent either it or its
contents from being damaged or destroyed. See King at 1862.
The Eleventh Circuit recently addressed a similar issue in
United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009).
Mitchell was convicted of receiving images of child pornogra-
phy, after an investigation into a known trafficking website
led police officers to several of the website’s subscribers. One
of the subscribers was Mitchell, whom two agents visited in
his home. Mitchell admitted to the agents that there was
"probably" illegal contraband on his home computers, and he
authorized them to search one of his computers and seize its
hard drive. The court concluded that, while the agents’ con-
duct constituted a warrantless seizure — in that it interfered
with Mitchell’s possessory interests — the seizure of the com-
puter "to ensure that the hard drive was not tampered with
before a warrant was obtained," did not contravene the Fourth
Amendment’s warrant requirement. Id. at 1350.
Another decision arising from a similar factual setting sup-
ports our ruling. In United States v. Respress, where officers
had conducted a warrantless seizure of the suitcase of an air-
line passenger who was a drug courier suspect, the court of
appeals explained that "[t]his was a plain old-fashioned sei-
zure of a person’s effects, based on probable cause, in order
to prevent the disappearance of evidence and so that a warrant
could be obtained and a search conducted." 9 F.3d 483, 486
(6th Cir. 1993). The actions of the Charlottesville detectives
in seizing Brown’s laptop were likewise reasonable, in order
to prevent the destruction of relevant evidence. Those actions
12 UNITED STATES v. BROWN
thus fall well within the exigent circumstances exception to
the Fourth Amendment’s warrant requirement. See United
States v. Clutter, 674 F.3d 980, 985 (8th Cir. 2012) (uphold-
ing warrantless seizure of computer where officers had proba-
ble cause to believe it contained evidence of child
pornography because, in part, such seizure "prevent[ed] the
disappearance of evidence" (internal quotation marks omit-
ted)). In these circumstances, we must reject Brown’s conten-
tion of a Fourth Amendment violation.
B.
Finally, Brown suggests that the district court erred when
it denied his motion to dismiss and sentenced him solely on
the basis of his Count One receipt offense, rather than on the
lesser-included Count Two possession offense. We review for
abuse of discretion the district court’s denial of Brown’s
motion to dismiss. See United States v. Smith, 55 F.3d 157,
158 (4th Cir. 1995). "Of course, a district court by definition
abuses its discretion when it makes an error of law." Rice v.
Rivera, 617 F.3d 802, 811 (4th Cir. 2010) (internal quotation
marks omitted). When a defendant has been convicted of mul-
tiplicitous offenses — in this case, a greater and a lesser-
included offense — the trial court shall "enter judgment on
only one of the statutory offenses." See Ball v. United States,
470 U.S. 856, 865 (1985).
Put simply, the court did not abuse its discretion by deny-
ing Brown’s motion and striking the lesser-included offense
of possession of child pornography; on the contrary, the court
properly adhered to a long line of authorities directing vaca-
tion of the conviction that carries the more lenient penalty
when a defendant is convicted of both a greater and a lesser-
included offense. See United States v. Luskin, 926 F.3d 372,
378 (4th Cir. 1991) ("The better practice [when a defendant
is convicted of a greater and a lesser-included offense] would
be for the trial judge to strike the conviction on the lesser
included offense[.]"); United States v. Snyder, 766 F.2d 167,
UNITED STATES v. BROWN 13
171 (4th Cir. 1985) (recognizing that, where a defendant is
convicted of both a greater and a lesser-included offense, "the
proper remedy is to vacate both the conviction and the sen-
tence on the included offense, leaving the conviction and the
sentence on the greater offense intact" (internal quotation
marks omitted)); see also United States v. Martorano, 697
F.3d 216, 220 (3d Cir. 2012) (explaining that, when faced
with convictions on both greater and lesser-included offenses,
to vacate the greater offense "would be inconsistent with the
very concept of a lesser included offense" (internal quotation
marks omitted)); United States v. Dudeck, 657 F.3d 424, 431
(6th Cir. 2011) ("If it cannot be determined that separate and
distinct conduct occurred for each offense . . . the district
court shall vacate [the lesser offense]"). We therefore reject
Brown’s contention that the court erred in vacating his con-
viction and dismissing Count Two rather than Count One.9
III.
Pursuant to the foregoing, we affirm the judgment of the
district court.
AFFIRMED
9
In his challenge to the dismissal of Count Two, Brown also maintains
that the jury was not properly instructed on the distinction between know-
ing possession and knowing receipt of child pornography. Although he
interposed no objections at trial, he argues that, as a result of the faulty
instructions, "there is serious reason to doubt that the jury concluded Mr.
Brown actually ‘knowingly received’ the images found on his computer
equipment." Br. of Appellant 23. Inasmuch as the instructions did not per-
mit the jury to convict Brown without concluding that he knew the content
of the pornography depictions at the time he received them, the court did
not plainly err in its instructions. See United States v. Rahman, 83 F.3d 89,
92 (4th Cir. 1996) (requiring that instructions be reviewed as whole);
United States v. Wilson, 484 F.3d 267, 279 (4th Cir. 2007) (applying plain
error review to instructions if no objection made at trial).