State v. Fuller , 2014 Utah LEXIS 93 ( 2014 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2014 UT 29
IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Plaintiff and Appellee,
v.
BRADLEY FULLER,
Defendant and Appellant.
No. 20110512
Filed July 11, 2014
Fourth District, Provo Dep‘t
The Honorable Fred D. Howard
No. 091402347
Attorneys:
Sean D. Reyes, Att‘y Gen., Jeffrey S. Gray, Asst. Att‘y Gen.,
Salt Lake City, for appellee
Randall K. Spencer, Stephanie L. O‘Brien, Provo, for appellant
CHIEF JUSTICE DURRANT authored the opinion of the Court,
in which ASSOCIATE CHIEF JUSTICE NEHRING, JUSTICE DURHAM,
JUSTICE PARRISH, and JUSTICE LEE joined.
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶1 After police discovered child pornography on Defendant
Bradley Fuller‘s computer, he was charged with ten counts of
sexual exploitation of a minor, all second-degree felonies. Pursuant
to a plea agreement, Mr. Fuller pled guilty to five counts of
voyeurism but reserved the right to appeal the trial court‘s order
denying his Motion to Suppress. On appeal, he challenges the
warrant under the Fourth Amendment to the United States
Constitution—arguing that it was not sufficiently particular and
that it lacked probable cause. He also seeks to suppress statements
he made while officers questioned him, claiming that the
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Opinion of the Court
questioning violated his Fifth Amendment right against self-
incrimination. Finally, he argues that he is entitled to greater
protection under the Utah Constitution than under the United
States Constitution.
¶2 We conclude that the warrant was supported by probable
cause and was sufficiently particular. As to probable cause,
Mr. Fuller properly raised a staleness argument in his Motion to
Suppress, but he raises his additional argument—that under Franks
v. Delaware the affiant misled the magistrate into issuing the
warrant by omitting critical information—for the first time on
appeal. We thus reject his Franks claim and also conclude that the
information in the warrant was not stale, since a mere two months
had passed since the initial search and the warrant application.
And the warrant that was issued was not overly broad, given that
the warrant application established a wide scope of probable
cause, supported by multiple pieces of evidence, including the
discovery of an advertisement for a child pornography convention.
¶3 We also conclude that Mr. Fuller was not in custody, so
the officers‘ failure to read him his Miranda rights did not violate
his Fifth Amendment right against self-incrimination. Finally, we
decline to review Mr. Fuller‘s state constitutional claim because it
was not adequately briefed.
Background
¶4 On September 29, 2008, Special Officer Amanda
Jatkowski conducted a child pornography investigation over the
Internet using a peer-to-peer (P2P) file-sharing program known as
LimeWire. LimeWire uses a file-sharing protocol known as
Gnutella, which allows users to connect directly to each other‘s
computers to download files rather than through a central file
server.1 This connection is established through a user‘s Internet
Protocol (IP) address, which is a set of four numbers separated by
decimal points, such as 155.97.137.55. This IP address is assigned
by the internet service provider (ISP) to either a router or a
particular computer, depending on whether a router or computer
is connected to the modem. The IP address can either be static
1 Encyclopedia: “Gnutella,” PCMAG.COM,
http://www.pcmag.com/encyclopedia/term/43835/gnutella
(lasted visited Nov. 22, 2013).
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Opinion of the Court
(meaning that it remains the same) or dynamic (meaning that it can
change between sessions of internet usage).
¶5 Using LimeWire, Officer Jatkowski searched for the string
of terms ―kids teen women,‖ which are each known to be
associated with child pornography. The search uncovered that
someone using the IP address 67.186.233.246 was sharing
numerous files with pornographic file descriptions. After
reviewing several files shared by this user, Officer Jatkowski
confirmed that they contained child pornography, including
several videos, pictures, and an advertisement for a child
pornography convention.
¶6 Using the IP address associated with the child
pornography, Officer Jatkowski referenced the American Registry
for Internet Numbers website to confirm that the IP address was
assigned by Comcast Cable Communications. A week later, she
served an administrative subpoena on Comcast, seeking account
information associated with the user‘s IP address. Comcast
revealed that the IP address had been dynamically assigned, but
that on the date of Officer Jatkowski‘s search, the address had been
assigned to Robert Fuller, the account holder, whose service
address was 224 Woodland Drive in Orem, Utah.
¶7 In November 2008, Special Agent Sonja Nordstrom
learned through an informant that a number of individuals lived at
the home. This included Robert Fuller, the Comcast account
holder, who is also the Defendant Bradley Fuller‘s older brother.
Erin Branch, a male cousin, also lived in the home. Concerning to
Agent Nordstrom was the fact that both Erin Branch and Robert
Fuller had child sexual abuse charges brought against them. There
were pending charges against Robert Fuller for sodomy on a child
and aggravated sexual abuse of a child. Branch was a registered
sex offender who had been convicted of sexual abuse of a child in
2000.
¶8 Because of the search results and the individuals likely
involved, Agent Nordstrom applied for a federal search warrant
on December 2, 2008. The application for the warrant requested
permission to search the entire premises, which was described in
―Attachment A,‖ and it also asked permission to seize multiple
items therein as described in ―Attachment B,‖ including computer
hardware, software, documentation, and other electronic devices
or records that may be used to store or access child pornography.
The accompanying affidavit also discussed the details of the
investigation and common habits of users and distributors of child
pornography. The magistrate issued the warrant the same day,
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Opinion of the Court
adopting attachments A and B verbatim into the warrant that was
issued.
¶9 Three days later, officers from the FBI, the Utah County
Sheriff‘s Office, and the Orem City Police Department executed the
warrant. Two related families were living at the home, and the
officers secured a total of eight occupants in their sweep of the
home, including the Defendant, Mr. Fuller. When the officers
entered the basement room where Mr. Fuller and two other men
were sleeping in separate beds, Mr. Fuller sat up and tried to
manipulate the computer that was at the foot of his bed. An officer
instructed Mr. Fuller not to touch the computer, then grabbed
Mr. Fuller‘s arm and escorted him outside.
¶10 Robert Fuller, the Defendant‘s brother, was interviewed
at the scene. He disclosed that he uses a router in his home and
that he established separate static IP addresses for each of the
computers in the home that connect to that router. He admitted to
downloading pornography but expressly denied accessing or
storing child pornography. He also told officers that he did not use
LimeWire but that his brother, the Defendant, did, and that he had
counseled his brother months ago not to access child pornography.
¶11 Mr. Fuller was also interviewed at the scene. When he
learned that the officers were searching for child pornography, he
admitted that ―inappropriate‖ material would be found on his
computer. An officer asked Mr. Fuller if he was willing to speak
with him in his car, and Mr. Fuller agreed. The officer specifically
told Mr. Fuller that he was not under arrest, that he could leave at
any time, and that he did not have to speak with him or answer his
questions. Mr. Fuller agreed to speak with the officer. They spoke
in the officer‘s car, with the doors unlocked. He admitted to using
LimeWire and to downloading pornography, including ―small kid
type stuff.‖ He also admitted to having ―thousands‖ of images on
his computer. Mr. Fuller was not arrested, and he was allowed to
leave.
¶12 In their search, the officers located a total of eight
computers in the home. Based in part on the information that
officers learned at the scene, they limited their search to Robert
Fuller‘s two computers and Mr. Fuller‘s computer and thumb
drive. Using ImageScan search software, officers conducted a
search of Mr. Fuller‘s computer and discovered a host of images
and videos whose titles were indicative of child pornography. An
officer reviewed the files and confirmed the presence of child
pornography. Accordingly, they seized Mr. Fuller‘s computer,
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Opinion of the Court
along with Robert‘s two computers, for additional analysis. Agent
Nordstrom searched the computers further and discovered
fourteen video files containing child pornography on Mr. Fuller‘s
computer.
¶13 The United States District Attorney‘s Office declined to
prosecute the case, but the State of Utah filed a criminal
information in state district court, charging Mr. Fuller with ten
counts of sexual exploitation of a minor, all second-degree felonies.
Mr. Fuller thereafter filed a Motion to Suppress the evidence seized
and statements he had made during the officers‘ search of the
home. The central argument in his motion was that the warrant
lacked particularity because it identified only the offending IP
address, rather than the specific LimeWire user or computer. He
also claimed that the officers failed to read him his Miranda rights.
There was no evidentiary hearing, but instead the parties and the
trial court relied on the search warrant application and affidavits in
support of their arguments for and against the motion. The
warrant itself was never made part of the record.
¶14 In support of Mr. Fuller‘s particularity argument, he
included an affidavit from Todd Gabler, a computer forensic
examiner. The affidavit describes how unauthorized users can
access someone else‘s router. It also states that LimeWire assigns
users a UsernameID, and that a user wanting to download a file
can identify the host computer‘s MAC address, which is an
identifier assigned to the host computer‘s network card. Finally,
the affidavit explained that officers could insert a USB stick into
the suspected host computer to determine whether the
UsernameID was present on the hard drive. The affidavit failed to
explain, however, what a MAC address was or how police could
identify such an address remotely.
¶15 Following oral argument, the trial court denied
Mr. Fuller‘s Motion to Suppress. In its Order, the trial court
concluded that the warrant was sufficiently particular and
supported by probable cause. The court also concluded that
Mr. Fuller was not in custody at the time officers questioned him.
Mr. Fuller then filed an interlocutory appeal with the Utah Court
of Appeals, which was also denied. Pursuant to a subsequent plea
agreement, Mr. Fuller pled guilty to five counts of voyeurism, but
he reserved the right to appeal the order denying his Motion to
Suppress. He was sentenced to concurrent prison terms of one to
fifteen years on all five counts. The sentence was suspended, and
he was placed on probation for thirty-six months and ordered to
serve 180 days in jail.
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¶16 Mr. Fuller timely appealed. He then filed a motion to stay
imposition of the sentence pending the appeal, which was denied.
As the State revealed in its briefing before us, and as was
confirmed during oral arguments, Mr. Fuller failed to include a
copy of the warrant in the record on appeal. Following oral
arguments, the State filed a stipulated request to supplement the
record with the warrant, which was identical to the warrant
application presumed to constitute the warrant in the proceedings
below. Because of this stipulation, we reset the case for oral
argument on the merits. We have jurisdiction pursuant to Utah
Code section 78A-3-102(3)(b).
Standard of Review
¶17 We review a trial court‘s decision to grant or deny a
motion to suppress for an alleged Fourth Amendment violation as
a mixed question of law and fact. While the court‘s factual findings
are reviewed for clear error, its legal conclusions are reviewed for
correctness, including its application of law to the facts of the case.2
Analysis
¶18 Mr. Fuller initially challenges the trial court‘s Order
denying his Motion to Suppress on two separate grounds: first,
that the warrant lacked probable cause because the affiant
misrepresented facts to the magistrate and because the information
in the supporting affidavit was stale; and second, that the warrant
was not sufficiently particular.
¶19 We first conclude that the warrant was supported by
probable cause, since Mr. Fuller forfeited his challenge under
Franks v. Delaware.3 We also reject his argument that the
information in the warrant application was stale, because a mere
two months had passed between the initial search and the warrant
application. Furthermore, we conclude that the warrant was
sufficiently particular because the IP address and other
corroborating information gave probable cause to search
Mr. Fuller‘s residence for evidence of child pornography, and
because the warrant properly limited the scope of the search to
items that violate federal law banning the possession of child
pornography. Accordingly, we affirm the trial court‘s order
denying Mr. Fuller‘s Motion to Suppress.
2 State v. Tripp, 2010 UT 9, ¶ 23, 227 P.3d 1251.
3 438 U.S. 154 (1978).
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¶20 Mr. Fuller‘s second argument invokes the exclusionary
rule. He argues that officers questioned him in violation of his Fifth
Amendment right against self-incrimination and that the
exclusionary rule should therefore bar use of any attendant
evidence, including Mr. Fuller‘s computer, as ―fruit of the
poisonous tree.‖ We conclude that Mr. Fuller was not in custody at
the time of questioning, so law enforcement was not required to
read him his Miranda rights. Finally, we decline to review
Mr. Fuller‘s state constitutional claim because it is inadequately
briefed.
I. We Affirm the Trial Court‘s Order Denying Mr. Fuller‘s Motion
to Suppress Because the Warrant Was Supported by Probable
Cause and Was Sufficiently Particular
¶21 The Fourth Amendment provides that ―no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the
persons or things to be seized.‖ Of these three requirements,
Mr. Fuller challenges the first and the third—(1) that the warrant
was not supported by probable cause, and (2) that it did not
describe with sufficient particularity the devices that the
government planned to search and seize. We address each
argument in turn.
A. The Warrant Was Supported by Probable Cause
¶22 The Fourth Amendment requires that a warrant be issued
only ―upon probable cause.‖ ―The information necessary to show
probable cause must be contained within a written affidavit given
under oath,‖ but it does not require proof beyond a reasonable
doubt; ―a magistrate need only have a substantial basis for
concluding that a search would uncover evidence of
wrongdoing.‖4 This can include evidence of a crime, contraband,
fruits of a crime, or instrumentalities of a crime. And in reviewing
the magistrate‘s determination, ―we must afford the magistrate
great deference.‖5
¶23 Mr. Fuller argues that the warrant lacked probable cause
due to the affiant‘s material omissions and because the information
in the warrant was stale. We reject both of these arguments
because Mr. Fuller forfeited his challenge in the trial court and
4 United States v. Perez, 484 F.3d 735, 740 (5th Cir. 2007).
State v. Saddler, 2004 UT 105, ¶ 7, 104 P.3d 1265 (internal
5
quotation marks omitted).
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Opinion of the Court
because the information in the application was fresh—a mere two
months had passed since the initial search.
1. The Warrant Was Facially Valid
¶24 In considering a challenge to a warrant for lack of
probable cause, we normally limit our review to the facts in the
supporting affidavit since it is assumed that ―the information put
forth is believed or appropriately accepted by the affiant as true.‖6
But the United States Supreme Court in Franks v. Delaware created
a narrow exception to this general rule by permitting a defendant
to challenge a search warrant using extrinsic evidence where it is
alleged that the affidavit contains false statements or omissions.7
¶25 Where a defendant has challenged a warrant for lack of
probable cause based on an alleged omission, as is the case here,
the court may grant a defendant a hearing to support his claims,
but only if the defendant, by a ―detailed offer of proof,‖8 (1) makes
a ―substantial showing that the affiant intentionally or recklessly
omitted facts required to prevent technically true statements in the
affidavit from being misleading‖9 and (2) demonstrates ―that the
6Franks, 438 U.S. at 164–65; see State v. Walker, 2011 UT 53, ¶ 13,
267 P.3d 210 (concluding that review of a magistrate‘s probable
cause determination requires the court to ―consider the affidavit
relied upon by the magistrate in its entirety and in a common
sense fashion‖ (internal quotation marks omitted)).
7 438 U.S. at 155–56 (―[W]here the defendant makes a
substantial preliminary showing that a false statement knowingly
and intentionally, or with reckless disregard for the truth,
was included by the affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the finding of probable
cause, the Fourth Amendment requires that a hearing be held at
the defendant‘s request.‖); see State v. Nielsen, 727 P.2d 188, 191
(Utah 1986) (extending Franks to the case of omissions); accord
United States v. McKissick, 204 F.3d 1282, 1297 (10th Cir. 2000);
United States v. Colkley, 899 F.2d 297, 300–01 (4th Cir. 1990).
8 United States v. Craighead, 539 F.3d 1073, 1080 (9th Cir. 2008).
9Lombardi v. City of El Cajon, 117 F.3d 1117, 1123 (9th Cir. 1997)
(internal quotation marks omitted); see Colkley, 899 F.2d at 300
(―The Franks test also applies when affiants omit material facts
with the intent to make, or in reckless disregard of whether they
thereby made, the affidavit misleading.‖ (internal quotation
(continued)
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Opinion of the Court
affidavit if supplemented by the omitted information would not
have been sufficient to support a finding of probable cause.‖ 10 The
burden on the defendant here is high—he must specifically point
to portions of the affidavit he claims to be misleading, though he
can also introduce extrinsic evidence to substantiate his claim.11
For example, he can include ―[a]ffidavits or sworn or otherwise
reliable statements‖ to support his claim.12 If the defendant fails to
properly substantiate his claim, he is not entitled to an evidentiary
hearing.13
¶26 If, on the other hand, a defendant meets this burden and
overcomes the presumptive validity of the warrant,14 the
defendant is entitled to a hearing but must prove by a
preponderance of the evidence both that the omission in the
affidavit was material and that the critical information was
intentionally or recklessly excluded.15 To show that the affiant
deliberately or recklessly misled the magistrate, the defendant
must offer either ―direct evidence of the affiant‘s state of mind or
inferential evidence that the affiant had obvious reasons for
omitting facts.‖16 Such evidence can be presented through direct
testimony or by affidavit.
marks omitted)); State v. Missouri, 524 S.E.2d 394, 397 (S.C. 1999)
(same).
10 United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986).
11 United States v. McMurtrey, 704 F.3d 502, 509 (7th Cir. 2013)
(―It is relatively difficult for a defendant to make the ‗substantial
preliminary showing‘ required under Franks. Allegations of
negligent or innocent mistakes do not entitle a defendant to a
hearing, nor do conclusory allegations of deliberately or recklessly
false information.‖); United States v. Garcia-Zambrano, 530 F.3d
1249, 1256 (10th Cir. 2008) (discussing the standard of review for a
trial court‘s interpretation of an affidavit where the trial court
used extrinsic evidence to aid in interpreting the affidavit).
12 Franks, 438 U.S. at 171.
13 See United States v. Souffront, 338 F.3d 809, 822 (7th Cir. 2003).
14 Id.
15Franks, 438 U.S. at 156 (discussing the defendant‘s burden of
proof); Nielsen, 727 P.2d at 191 (clarifying the Franks requirements
in the context of an omission).
16 Souffront, 338 F.3d at 822 (internal quotation marks omitted).
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¶27 Critical here, and for all allegations of an intentional
omission, is proof that the affiant intended to mislead the
magistrate or recklessly omitted material information. Though
such intent or reckless disregard for the truth ―may be inferred
from the omission of information from an affidavit,‖ such an
inference cannot be made unless ―the material omitted would have
been clearly critical to the finding of probable cause.‖ 17 We also
note that ―the Franks threshold is even higher for defendants
making claims of omissions rather [than] affirmative false
statements‖18 because of the myriad inferences that can be drawn
from an omission. Indeed, ―[t]he mere fact that the affiant did not
list every conceivable conclusion does not taint the validity of the
affidavit.‖19 Requiring any lower threshold of proof would ―open[]
officers to endless conjecture about investigative leads, fragments
of information, or other matter[s] that might, if included, have
redounded to defendant‘s benefit.‖20
¶28 And a defendant forfeits his Franks challenge if he does
not raise it in the trial court.21 A Franks challenge must ―be
17United States v. Carnahan, 684 F.3d 732, 735 (8th Cir. 2012)
(internal quotation marks omitted).
18 United States v. Clenney, 631 F.3d 658, 664 (4th Cir. 2011).
19 Colkley, 899 F.2d at 301 (internal quotation marks omitted).
20 Id.
21We acknowledge that the terms ―waiver‖ and ―forfeiture‖
―are often used interchangeably,‖ In re Adoption of Baby E.Z., 2011
UT 38, ¶ 51 n.1, 266 P.3d 702 (Lee, J., concurring), even though the
two concepts are fundamentally different; ―[w]hereas forfeiture is
the failure to make the timely assertion of a right, waiver is the
intentional relinquishment or abandonment of a known right,‖
United States v. Olano, 507 U.S. 725, 733 (1993) (internal quotation
marks omitted). See, e.g., UTAH R. CRIM. P. 12(f) (―Failure of the
defendant to timely raise defenses or objections or to make
requests which must be made prior to trial or at the time set by
the court shall constitute waiver thereof . . . .‖); United States v.
Lopez-Merida, 466 F. App‘x 731, 735–36 (10th Cir. 2012) (treating
defendant‘s suppression argument as ―waived‖ where the
defendant ―failed to make this argument during the suppression
hearing or in the posthearing briefing‖). This distinction is
important because a defendant is generally precluded from
(continued)
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presented to the trial court in such a way that the trial court has an
opportunity to rule on that issue.‖22 In other words, a defendant
must specifically challenge the warrant for lack of probable cause
and put the trial court on notice of his request for a Franks
hearing.23 On appeal, a defendant can challenge a trial court‘s
ruling denying his Franks hearing or in rejecting his claim of falsity
or omission, but these challenges are forfeited if not raised in the
trial court, and on appeal they will be reviewed only for plain
error.24
¶29 As an initial matter, Mr. Fuller forfeited his Franks
challenge because he failed to request an evidentiary hearing or in
any manner bring his challenge to the attention of the trial court.
Indeed, Mr. Fuller‘s central argument in his Motion to Suppress is
that the warrant lacked particularity and that the probable cause
was stale. In his Motion to Suppress, Mr. Fuller never argues that
the warrant lacks probable cause due to an intentional omission; in
fact, he raises such an issue only once, and it is in the context of his
request to have the warrant struck as insufficiently particular
under the Utah Constitution. Therein, he cited to our decision in
State v. Krukowski,25 and stated that
obtaining appellate review when he waives a right, but he may still
obtain review for plain error when the right has only been
forfeited. Olano, 507 U.S. at 733 (discussing forfeiture and plain
error review under Federal Rule of Criminal Procedure 52(b)).
22438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801
(internal quotation marks omitted).
23United States v. Naiken, 874 F.2d 817, *3 (9th Cir. 1989)
(declining to reach defendant‘s argument that trial court failed to
grant a Franks hearing where the argument was never raised
before the district court).
24United States v. Snow, 228 F. App‘x 203, 205–06 (3d Cir. 2007)
(unpublished) (―We review for plain error a defendant‘s claim
that the district court erred by not holding a Franks hearing or
suppressing evidence on the basis of a fraudulent omission in the
warrant affidavit, when the defendant failed to request
a Franks hearing or raise a challenge to the truthfulness of the
affidavit securing the warrant before the district court.‖).
2004 UT 94, ¶ 15, 100 P.3d 1222 (internal quotation marks
25
omitted).
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[j]ust as police officers may not include materially
false statements in a search warrant affidavit, they
similarly cannot omit information that materially
affects the finding of probable cause, and the scope
of the person(s) and property to be searched and
seized.
And in the single paragraph of analysis that follows, Mr. Fuller
argues overbreadth—not that the warrant lacked probable cause.
¶30 In responding to the forfeiture concern during oral
argument before us, Mr. Fuller‘s counsel cited to a portion of the
transcript of the hearing on the Motion to Suppress. In that
portion, the prosecutor suggests that, in the context of the Leon
good faith exception, there was no basis to conclude that the
―officers intentionally misled the Federal magistrate.‖ This
responsive argument by the prosecution was also insufficient,
however, to put the court on notice of a Franks challenge. Given the
above, we consider Mr. Fuller‘s Franks challenge forfeited below.
¶31 Because Mr. Fuller forfeited his Franks challenge, our
review is limited to whether the trial court committed plain error
in failing to grant Mr. Fuller an evidentiary hearing.26 And we
cannot conclude that is the case here. To obtain an evidentiary
hearing when an omission is alleged, as described above, the
burden was on Mr. Fuller to establish that the affiant here
recklessly or intentionally omitted the MAC address or LimeWire
UsernameID from the affidavit, and that the warrant would have
lacked probable cause had these more specific identifiers been
included. In his Motion to Suppress, Mr. Fuller brought two
separate claims: one under the United States Constitution, and the
second under the Utah Constitution. Although he makes
references throughout both claims to the MAC address and
LimeWire UsernameID, he claims only that the affiant ―could
have‖ included such identifiers. He in no way supports his Motion
with any evidence that the affiant intentionally or recklessly omitted
them.27 We also cannot infer such intent since Mr. Fuller has failed
26See United States v. Iiland, 254 F.3d 1264, 1267 n.1 (10th Cir.
2001).
27See McKissick, 204 F.3d at 1297 (―The standards of deliberate
falsehood and reckless disregard set forth in Franks apply to
material omissions, as well as affirmative falsehoods.‖).
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to establish that these identifiers were ―critical‖ to the probable
cause determination or even that ―the omitted facts are so striking
that the inference is compelling.‖28
¶32 Mr. Fuller also failed to demonstrate that these specific
identifiers were ―necessary‖ for a probable cause determination.
Quite the opposite, Mr. Fuller concedes at several points in his
Motion to Suppress that probable cause would still exist with the
identifiers included, but that particularity was the issue.29 It is here
that the flaw in Mr. Fuller‘s argument becomes clear. If the warrant
application had included the more specific identifiers, at most this
would have potentially narrowed the scope of probable cause,
which is really a concern over the particularity of the warrant.
Including these identifiers, however, would not have altogether
prevented a finding of probable cause, as is required by Franks.
Because of these failures, and because ―the Franks threshold is even
higher for defendants making claims of omissions rather [than]
affirmative false statements,‖30 we cannot conclude that the trial
court committed plain error in failing to grant Mr. Fuller a Franks
evidentiary hearing.
2. The Information Contained in the Warrant Was Not Stale
¶33 Mr. Fuller also challenges the warrant for lack of probable
cause by claiming that the information in the warrant affidavit was
stale because approximately two months had passed between the
initial internet search and the warrant application. Because the
lapse of time here was relatively brief, and given the facts of this
WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE
28
FOURTH AMENDMENT § 4.4(b) (5th ed. 2012).
29In his Motion to Suppress, Mr. Fuller contends that ―[i]n
addition to the searches regarding the MacID and/or Limewire
UsernameID, the initial search could have been limited to
determining whether or not the specific images which were
downloaded on September 29, 2008, and which gave rise to probable
cause supporting the warrant, were present on a particular
computer.‖ (emphasis added). He further states that ―the agents
conducting the investigation made no effort to utilize the
Limewire UsernameID or the MacID of the actual computer
suspected to be utilized in criminal activity, even though it could
have easily been used to limit the scope of the search to that for
which they had probable cause.‖ (emphasis added).
30 Clenney, 631 F.3d at 664.
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Opinion of the Court
case, we reject Mr. Fuller‘s staleness claim. ―Staleness issues arise
where so much time has passed that there is no longer probable
cause to believe that the evidence is still at the targeted locale.‖31
But staleness is not determined merely by the passage of time32—
the court must make an individual determination based on the
facts of the case and a variety of factors, including ―the length of
time, . . . the nature of the suspected crime (discrete crimes or
ongoing conspiracy), habits of the accused, character of the items
sought, and nature and function of the premises to be searched.‖33
¶34 Further, ―[w]hen a defendant is suspected of possessing
child pornography, the staleness determination is unique because
it is well known that images of child pornography are likely to be
hoarded by persons interested in those materials in the privacy of
their homes.‖34 And ―because the crime is generally carried out in
the secrecy of the home and over a long period, the same time
limitations that have been applied to more fleeting crimes do not
control the staleness inquiry for child pornography.‖35 For
example, information that is over a year old is not necessarily
stale,36 and in the digital age where deleted files can easily be
recovered, staleness is unlikely to be as great of a concern until
much more time has passed.37
¶35 Here, only two months had passed between the initial
search and the warrant application, and federal courts have
State v. Norris, 2001 UT 104, ¶ 16 n.4, 48 P.3d 872 (internal
31
quotation marks omitted).
32 United States v. Trinh, 665 F.3d 1, 13 (1st Cir. 2011).
33United States v. Bervaldi, 226 F.3d 1256, 1265 (11th Cir. 2000)
(internal quotation marks omitted).
34United States v. Irving, 452 F.3d 110, 125 (2d Cir. 2006)
(internal quotation marks omitted).
35 United States v. Paull, 551 F.3d 516, 522 (6th Cir. 2009).
36United States v. Newsom, 402 F.3d 780, 783 (7th Cir. 2005)
(―Information a year old is not necessarily stale as a matter of law,
especially where child pornography is concerned.‖).
37 United States v. Hay, 231 F.3d 630, 636 (9th Cir. 2000)
(rejecting a staleness claim where the probable cause affidavit
stated that ―even if [the defendant] had deleted the files, they
could nevertheless be retrieved by a computer expert‖).
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Opinion of the Court
rejected staleness claims for much longer periods of time.38 Also,
given that the crime here involved possession of child
pornography, and given the affidavit explaining how collectors of
child pornography habitually ―retain pictures [and other forms of
child pornography] for many years,‖ the probable cause was
demonstrably still fresh. This conclusion is reinforced by the fact
that the initial search uncovered an advertisement for a child
pornography convention, which indicated that this behavior was
likely ongoing. Finally, Agent Nordstrom‘s affidavit explained that
child pornography can be recovered from digital storage devices
even ―after they have been deleted.‖ Given the above, we reject
Mr. Fuller‘s staleness claim and conclude that the warrant was
supported by probable cause.
B. The Warrant Was Sufficiently Particular
¶36 In addition to his probable cause argument, Mr. Fuller
asks us to invalidate the warrant because it violates the
particularity requirement of the Fourth Amendment. He contends
that the warrant was overbroad and allowed for an exploratory
search because it did not identify the specific computer(s) that
were used to store and share child pornography. Specifically, he
claims that federal agents could have ascertained more than just
the IP address for their search—that they could have discovered
the specific computer involved in downloading child pornography
using a MAC address or LimeWire UsernameID. But as discussed
below, including these more specific identifiers in the warrant
application would not necessarily have narrowed the scope of
probable cause to the specific computer, as Mr. Fuller argues.
Rather, including these identifiers very well may have
strengthened the State‘s case for probable cause, thereby
permitting the magistrate to issue a warrant that was broader in
scope.
¶37 In addition to the probable cause requirement, the Fourth
Amendment requires warrants to describe with particularity both
the ―place to be searched, and the persons or things to be seized.‖39
In order to accurately describe the ―things to be seized,‖ a warrant
38See, e.g., United States v. Frechette, 583 F.3d 374, 377–79 (6th
Cir. 2009) (sixteen months); Hay, 231 F.3d at 636 (six months);
United States v. Lacy, 119 F.3d 742, 745–46 (9th Cir. 1997) (ten
months).
39 U.S. CONST. amend. IV.
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STATE v. FULLER
Opinion of the Court
must achieve two objectives: first, it must ―suppl[y] adequate
information to guide officers in selecting what items to seize‖; and
second, ―the category of items specified in the warrant [cannot be]
too broad [so that] it includes articles that should not be seized.‖40
In other words, the description must be limited to the scope of
probable cause established in the warrant application. That said,
how particular the warrant must be necessarily depends on ―the
circumstances and the nature of the activity under investigation.‖41
¶38 As computers, smartphones, and other devices can now
be used to store millions of files and other data—both personal and
business-related—law enforcement must be increasingly cautious
with respect to the particularity requirement because access to ―a
huge array of one‘s personal papers in a single place increases law
enforcement‘s ability to conduct a wide-ranging search into a
person‘s private affairs.‖42 Judges must be careful in drafting the
scope of the warrant, especially in determining whether the device
is considered contraband, and thus subject to seizure,43 or whether
only particular information on the device is properly subject to
seizure.44
¶39 In ―cases involving contraband, such as drugs,‖ more
generic descriptions are allowed.45 This is especially true where a
more particular description cannot be given or where the evidence
establishes that the contraband sought is ―likely to be part of a
40United States v. Evers, 669 F.3d 645, 651–52 (6th Cir. 2012);
accord State v. Gallegos, 712 P.2d 207, 209 (Utah 1985).
41 Evers, 669 F.3d at 652 (internal quotation marks omitted).
42 United States v. Otero, 563 F.3d 1127, 1132 (10th Cir. 2009).
43United States v. Campos, 221 F.3d 1143, 1147 (10th Cir. 2000)
(warrant sufficiently particular where ―[i]t authorized the agents
to seize computer equipment which may be, or [is] used to
visually depict child pornography, [or] child erotica‖ (second
alteration in original) (internal quotation marks omitted)).
44United States v. Carey, 172 F.3d 1268, 1275–76 (10th Cir. 1999)
(requiring a more specific designation of the files sought on
defendant‘s computer related to child pornography, where
original warrant granted access to search for evidence of an
unrelated crime).
45 Gallegos, 712 P.2d at 209 (internal quotation marks omitted).
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Opinion of the Court
larger collection of similar contraband located at the premises to be
searched.‖46 Where the warrant authorizes officers to search for
child pornography, the computers or other devices used to store
child pornography may be considered contraband47 or an
instrumentality of the crime.48 Additionally, thorough searches of
multiple devices may be required in these cases since ―criminals
can—and often do—hide, mislabel, or manipulate files to conceal
criminal activity.‖49 Because of the competing concerns here—
between individual data privacy and the concern over concealed
information—federal courts have required that ―warrants for
computer searches . . . affirmatively limit the search to evidence of
specific federal crimes or specific types of material.‖50
¶40 The warrant in this case permitted law enforcement to
search and seize a wide range of items, including computer
hardware, software, passwords, documentation, and multiple
types of digital storage devices. But the warrant also included two
important limitations. First, these items could only be searched and
seized if they ―contain[ed] evidence related to‖ the alleged
criminal activity—the enticement of a minor and/or distribution
and possession of child pornography. Second, the warrant set forth
a specific ―search procedure‖ to prevent the officers from searching
unrelated files and other information on Mr. Fuller‘s digital
devices. Taken together, the warrant here was sufficiently
particular, especially since the affidavit supporting the warrant
described how child pornographers keep collections of illegal
images and videos, which are often concealed, and that they do so
often for prolonged periods of time.
46 Id. (internal quotation marks omitted).
47Hay, 231 F.3dat 637 (permitting seizure of computer as
contraband).
48United States v. Lamb, 945 F. Supp. 441, 462 (N.D.N.Y. 1996)
(―[T]he computer may very well be an instrumentality of the
crime, if it were the one being utilized to send and receive the
image files of child pornography over AOL.‖).
49United States v. Richards, 659 F.3d 527, 538 (6th Cir. 2011)
(internal quotation marks omitted).
50Unites States v. Riccardi, 405 F.3d 852, 862 (10th Cir. 2005); see
also United States v. Hall, 142 F.3d 988, 996–97 (7th Cir. 1998).
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STATE v. FULLER
Opinion of the Court
¶41 Despite the above, Mr. Fuller argues that the officers
could have done more by including the MAC address or
UsernameID in the warrant application. If they had, he argues, the
resulting warrant ―would have allowed a more limited search.‖ In
other words, Mr. Fuller argues that these identifiers would have
narrowed the scope of probable cause and thus restricted the
magistrate to issuing a warrant that permitted a search of only the
offending computer, rather than other computers or electronic
devices in the home. But this is simply not the case. Speaking
generally, where an officer discovers that child pornography is
being transmitted over a resident‘s IP address, it is likely to give
rise to probable cause to search the residence, particularly where
the officer supports the affidavit with additional information
indicating that child pornography is likely to be discovered in the
home. If the officer also includes information about the offending
MAC address and UsernameID in the affidavit, it would confirm
in greater detail to the magistrate that child pornography was
likely present in the home, thereby strengthening the probable
cause determination, rather than weakening it.
¶42 If these identifiers had been included here, as Mr. Fuller
contends they should have been, it would have more concretely
confirmed the presence of child pornography in the Fullers‘ home
and thus strengthened the probable cause determination. As a
result, the magistrate could still have issued a warrant identical to
the warrant in this case that authorized the search of a wide range
of devices and records that were likely to contain child
pornography. Given the above, we affirm the trial court‘s Order
denying Mr. Fuller‘s Motion to Suppress.
II. Mr. Fuller Was Not Denied His Miranda Rights,
Because He Was Never in Custody
¶43 Mr. Fuller‘s final argument to suppress the evidence
recovered from his computer is that Officer Brower‘s questioning
violated his rights under both the United States Constitution and
the Utah Constitution. Specifically, Mr. Fuller appeals the trial
court‘s ruling that he was not in custody at the time of questioning.
We affirm.
¶44 The Fifth Amendment of the United States Constitution,
as well as Article 1, Section 12 of the Utah Constitution, safeguard
an individual‘s right against self-incrimination. To protect this
right, suspects who are in ―custodial interrogation‖ must be read
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Opinion of the Court
their Miranda rights before questioning.51 Whether an individual is
in ―custody‖ is an objective analysis that is informed by a
reasonableness inquiry52—namely, whether or not a reasonable
person in the suspect‘s position would have felt ―free to leave.‖53
We have previously identified four factors (the Carner factors) that
inform this analysis: ―(1) the site of interrogation; (2) whether the
investigation focused on the accused; (3) whether the objective
indicia of arrest were present; and (4) the length and form of
interrogation.‖54
¶45 In applying the Carner factors, the site of the interrogation
is more likely to indicate that the suspect was in custody when the
location is ―confined or isolated,‖55 or is ―intimidating or
coercive.‖56 Although ―questioning in a patrol car may suggest a
lack of freedom on the part of the defendant,‖ the fact that the
interrogation took place in a police car is not dispositive of the
custody issue and must be weighed against the defendant‘s
voluntary choice to enter the car.57 Under the second factor, we
ask whether the ―police investigation has concentrated upon the
individual being questioned‖58 and whether the officers have
―indicated that they had identified the defendant as a likely
criminal culprit.‖59 Under the third factor, the ―objective indicia of
arrest,‖ we look to ―whether handcuffs, drawn guns, locked doors,
threats, or coercion are present.‖60 Finally, under the fourth factor,
the ―length and form‖ of the interrogation, we examine the ―words
51 Miranda v. Arizona, 384 U.S. 436, 467 (1966).
52 State v. Levin, 2006 UT 50, ¶ 35, 144 P.3d 1096.
Florida v. Royer, 460 U.S. 491, 502 (1983) (internal quotation
53
marks omitted).
54 Levin, 2006 UT 50, ¶ 36 (internal quotation marks omitted).
55 Id. ¶ 39.
56 State v. Wood, 868 P.2d 70, 83 (Utah 1993).
57Id. (holding that the site of the questioning, a patrol car, does
not compel a finding that the defendant was in custody, especially
since he ―apparently entered the patrol car willingly‖).
58 State v. Benson, 712 P.2d 256, 259 (Utah 1985).
59 Levin, 2006 UT 50, ¶ 39.
60 Id.
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STATE v. FULLER
Opinion of the Court
or actions‖ of the officers, ―their meaning, and their likely
impact‖61 and ask if the form of the interrogation evidenced a
―clear coercive intent‖ on the part of the officer.62 These factors
should be reviewed under the totality of the circumstances,63 with
a view to ―how a reasonable man in the suspect‘s position would
have understood his situation.‖64
¶46 The facts in this case are not in dispute: after entering
Mr. Fuller‘s room, officers commanded Mr. Fuller to stop using his
computer, and they escorted Mr. Fuller out of the house. As they
left the residence, Mr. Fuller was told that the officers were
searching for the presence of child pornography. In response,
Mr. Fuller openly admitted that they would find ―inappropriate‖
material on his computer. Officer Brower then asked if Mr. Fuller
would be willing to speak with him, to which Mr. Fuller agreed.
¶47 Officer Brower then led Mr. Fuller into his unmarked,
unlocked police cruiser, which was parked in front of the
residence. He specifically advised Mr. Fuller that he was not under
arrest, that he was free to leave at any time, and that he did not
have to speak if he did not want to. Mr. Fuller was not read his
Miranda rights, but he was questioned about the suspected
existence of child pornography on his computer. Although Officer
Brower was armed, there is no record of the use of handcuffs or of
Officer Brower ever drawing his firearm.
¶48 Given the facts above, we conclude that Mr. Fuller was
not in custody and affirm the ruling of the trial court. Although the
site of the interrogation was a police cruiser, the situation was not
coercive. The vehicle was unlocked and Mr. Fuller was specifically
told that he was free to leave at any time. Second, Mr. Fuller was
not the initial focus of the investigation, as officers learned that
Mr. Fuller may have been involved only after he openly admitted
to possessing ―inappropriate‖ material. Third, there were no
―objective indicia of arrest‖ here. Though Officer Brower did have
a weapon, our Levin decision refers to ―handcuffs, drawn guns,
61 Id.
62 State v. Mirquet, 914 P.2d 1144, 1148 (Utah 1996).
63 Wood, 868 P.2d at 83.
64 Levin, 2006 UT 50, ¶ 35 (internal quotation marks omitted).
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Opinion of the Court
locked doors, threats, or coercion.‖65 No handcuffs were used, no
guns were drawn, the doors to the car were unlocked, and
Mr. Fuller voluntarily spoke with officers.
¶49 Fourth, as to the words and actions of the officers, there is
little evidence of any restraint, and Mr. Fuller was specifically told
that he could leave at any time. In fact, even after divulging
incriminating information, he was not placed under arrest. Finally,
we note that this analysis is an objective one—though Mr. Fuller
testified later that he did not feel free to leave, the question is
whether a reasonable person would have felt free to leave under
the circumstances. Under the circumstances at issue here, we
conclude that a reasonable person would have felt free to leave and
affirm the trial court‘s ruling that Mr. Fuller was not in custody.
III. We Decline to Review Mr. Fuller‘s State Constitutional Claim
Because It Is Inadequately Briefed
¶50 Mr. Fuller‘s final claim is that he should be afforded
greater constitutional protections under the Utah Constitution than
under the United States Constitution, but his claim is inadequately
briefed. ―[A] brief is inadequate if it merely contains bald citations
to authority [without] development of that authority and reasoned
analysis based on that authority.‖66 In support of his claim,
Mr. Fuller cites only general statements regarding the Fourth
Amendment and Article I, Section 14 of the Utah Constitution. He
fails to adequately brief how the protections afforded under the
Utah Constitution impact his specific Fourth and Fifth
Amendment claims and includes only bare analysis of how our
state constitution affords, in certain instances, greater protections
than the federal constitution. Accordingly, we decline to review
this claim.
Conclusion
¶51 We affirm the trial court‘s Order denying Mr. Fuller‘s
Motion to Suppress, since the warrant was supported by probable
cause and sufficiently particular. We also affirm on the basis that
Mr. Fuller was not in custody at the time of questioning and his
Miranda rights were therefore not violated. Finally, we decline to
65 Id. ¶ 39 (emphasis added).
Hill v. Superior Prop. Mgmt. Servs., Inc., 2013 UT 60, ¶ 46, 321
66
P.3d 1054 (second alteration in original) (internal quotation marks
omitted).
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Opinion of the Court
review Mr. Fuller‘s state constitutional claims because they were
inadequately briefed.
22