United States v. Crespo-Rios

United States Court of Appeals
For the First Circuit
No. 09-2252
UNITED STATES OF AMERICA,
Appellant,
v.
FERNANDO CRESPO-RÍOS,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Stahl, Circuit Judges.
J. Campbell Barker, Attorney, Appellate Section, Criminal
Division, U.S. Department of Justice, with whom Lanny A. Breuer,
Assistant Attorney General, Greg D. Andres, Acting Deputy Assistant
Attorney General, Rosa Emilia Rodríguez-Vélez, United States
Attorney, Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, and Richard M. Re, Attorney, Criminal
Division, U.S. Department of Justice, were on brief for appellant.
Rachel Brill, for appellee.
June 8, 2011
TORRUELLA, Circuit Judge. Fernando Crespo-Ríos
("Crespo") was charged with (1) transferring obscene material to a
minor under the age of sixteen in violation of 18 U.S.C. § 1470 and
(2) possession of child pornography in violation of 18 U.S.C.
§ 2252(a)(4)(B). The district court granted his motion to suppress
the child pornography that agents discovered on various digital
media while they were executing a warrant to search for evidence of
(1) transferring obscene material to a minor in violation of
18 U.S.C. § 1470 and (2) enticing or coercing a minor in violation
of 18 U.S.C. § 2422(b). The government now appeals the grant of
the motion to suppress and the denial of its motion for
reconsideration. We reverse and remand with instructions to deny
the motion to suppress.
I. Background
In August 2007, Special Agent Odette D. Tavares of the
Federal Bureau of Investigation entered a Spanish-language chat
room posing as a twelve-year-old Puerto Rican girl. She was part
of a covert online investigation aimed at identifying individuals
attempting to engage in sexual relations with minors. An
individual later identified as Crespo approached Tavares in the
chat room and asked if Tavares had "MSN," referring to an instant
messaging program. Tavares replied affirmatively, and they
continued to chat through MSN's "instant messenger."
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During this first conversation and others that followed
over the course of approximately the next eight months, Crespo
repeatedly communicated with Tavares about matters of a sexual
nature despite being informed that she was only twelve years old
and in seventh grade. During the majority of Crespo's chat
sessions with Tavares, he displayed his bare erect penis to Tavares
at some point. Crespo also repeatedly asked Tavares to meet with
him and discussed the sexual activities that would take place if
they met. He said, among other things, that (1) he would perform
oral sex on Tavares, (2) he and Tavares could watch pornographic
films before having sex, (3) the pair would have sex, (4) he would
teach Tavares how to kiss and how to bathe him, and (5) she could
model a g-string for him. Crespo also displayed two photos of
himself to Tavares and repeatedly asked her to send him photos of
herself.
In addition, Crespo mentioned or suggested at various
points that he had engaged in sexual activities with minors before.
During one chat, he noted that he had had sex with a fourteen-year-
old girl. During another conversation, in the context of
encouraging Tavares to shave her genital area, he told her that he
knew of an individual who shaved her genital area as of the age of
eleven.
Based on information learned as a result of the chats
with Crespo, information received from the Puerto Rico Telephone
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Company, and information gleaned from motor vehicle checks, Tavares
submitted an affidavit in support of a search warrant. A
magistrate judge issued a search warrant for a residence in
Mayagüez, Puerto Rico. The warrant authorized agents to search the
residence for evidence, fruits, and instrumentalities of a
violation of 18 U.S.C. § 1470 (transfer of obscene material to a
minor) and 18 U.S.C. § 2422(b) (coercion or enticement of a minor).
The warrant incorporated "Attachment B" of Tavares's affidavit,
which listed, among other items that could be seized, the
following:
2. Records, documents, correspondence
(limited to electronic communications), notes
and/or any other materials relating to
correspondence or contact between [Crespo] and
[Tavares], including but not limited to
electronic mail, chat logs, and electronic
messages.
3. Records, documents, correspondence
(including but not limited to electronic
communications), notes, and/or any other
materials relating to correspondence or
contact between [Crespo] and individuals
purporting to be minors, or any attempt by
[Crespo] to induce any minor to engage in
illegal sexual[] activity, including but not
limited to electronic mail, chat logs, and
electronic messages.
. . . .
10. Any magnetic, electronic or optical
storage device capable of storing data, such
as floppy disks, hard disks, tapes, CD-ROMs,
CD-R[s], CD-RWs, DVDs, optical disks, printer
or memory buffers, smart cards, PC cards,
memory calculators, electronic dialers,
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electronic notebooks, cellular telephones, and
personal digital assistants[.]
. . . .
12. Any computer equipment used to encode
or store data . . . .
The main text of Tavares's affidavit referred to child pornography
when it described the parameters of the potential search as
including, among other things, "any and all chat logs, child
pornography, child erotica, information pertaining to the sexual
interest in children, [and] images depicting sexual contact between
adults and minors." "Attachment B" authorized agents to search for
"[c]orrespondence . . . which refers to . . . child pornography"
and "sex toys to include but not limited to pornographic videos."
When Tavares executed the search warrant, she seized,
among other things, a computer system, an external hard drive, and
a number of CDs. The government forensically analyzed the seized
items and discovered child pornography. The record is not clear as
to exactly where and how each item of child pornography was
discovered, or which items were photographs as opposed to videos.1
According to Crespo's appellate brief, however, some of the child
pornography was found on the external digital media. At oral
argument, Crespo's counsel explained that child pornography images
were found on both the computer Crespo used for his chats and on
1
The magistrate judge did not conduct an evidentiary hearing
because she concluded that the defendant's motion to suppress did
not require one.
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the external hard drive. Crespo's counsel also mentioned, in
responding to a question about the location of the child
pornography, that there was a video that was found on the external
hard drive and also on a CD.
Crespo was ultimately charged with (1) knowingly
possessing both still images and movie files of actual minors
engaging in sexually explicit conduct, in violation of 18 U.S.C.
§ 2252, and (2) attempting to transfer obscene matters to someone
who was apparently under the age of sixteen, in violation of
18 U.S.C. § 1470. Following his indictment, Crespo filed a motion
to suppress the child pornography evidence on the ground that the
search warrant was impermissibly general and authorized government
agents to search for items without probable cause to believe those
items would be present.2
A magistrate judge recommended that the court deny
Crespo's motion to suppress, concluding that there was probable
cause to search for child pornography. The magistrate judge also
noted that the good faith exception to the exclusionary rule, see
United States v. Leon, 468 U.S. 897 (1984), applied, and that the
doctrine of inevitable discovery, see Nix v. Williams, 467 U.S. 431(1984), might apply.
2
As the government noted in its response in opposition to the
motion to suppress, Crespo failed to state specifically which items
he sought to suppress.
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The district court rejected the magistrate's
recommendation, concluding that Tavares's affidavit did not provide
probable cause to believe that Crespo's digital media would contain
child pornography. The district court also concluded that the good
faith exception to the exclusionary rule did not apply. Addressing
the magistrate's inevitable discovery argument, the district court
noted that it believed that the plain view doctrine would be a more
appropriate framework than the inevitable discovery doctrine, and
concluded that the government ultimately could not prevail under
the plain view doctrine. In a later order denying the government's
motion for reconsideration, the district court clarified its
reasoning on this point. According to the second order, because
there was no probable cause to search for child pornography, the
law enforcement officers who conducted a forensic examination of
Crespo's digital media were not conducting a lawful search, and
thus were not entitled to avail themselves of the plain view
exception to the warrant requirement. The government now appeals.
II. Standard of Review
In assessing a district court's decision to grant a
motion to suppress, "[w]e review 'the court's findings of fact for
clear error and the application of the law to those facts de
novo.'" United States v. Siciliano, 578 F.3d 61, 67 (1st Cir.
2009) (quoting United States v. Vilches-Navarrete, 523 F.3d 1, 12
(1st Cir. 2008)).
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III. Discussion
The government makes three alternative arguments: (1)
probable cause supported the warrant's authorization to search
Crespo's computer for child pornography, (2) suppression was
inappropriate given the good faith doctrine because the agents
acted in objectively reasonable reliance on the warrant, and (3)
the child pornography evidence should not be suppressed because it
was discovered in plain view during a lawful search. Crespo
responds, first, that there was no probable cause to seize and
search all of Crespo's digital media in order to look for child
pornography because Tavares's affidavit did not allege any nexus
between Crespo's behavior and possession of child pornography and
because the warrant application was overly broad. In addition,
Crespo contends that the good faith exception is inapplicable
because Tavares, who executed the warrant, could not have
reasonably believed that there was probable cause to search for
child pornography. Finally, Crespo argues that the plain view
exception does not apply because the government had no probable
cause to search the external hard drive or CDs at all.
We need not decide whether there was probable cause to
search any of Crespo's digital media for child pornography because
we resolve this appeal based on the inevitable discovery doctrine.3
3
The government did not expressly advance an argument under the
inevitable discovery doctrine on appeal, and it is unclear whether
it did so below. However, the magistrate judge addressed the
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Under the inevitable discovery doctrine, "evidence that 'would
inevitably have been discovered without reference to the police
error or misconduct' may be admitted at trial." United States v.
Hughes, No. 09-1646, 2011 WL 1332061, at *11 (1st Cir. Apr. 8,
2011) (quoting Williams, 467 U.S. at 448). "Such evidence is
admissible 'so long as (i) the lawful means of its discovery are
independent and would necessarily have been employed, (ii)
discovery by that means is in fact inevitable, and (iii)
application of the doctrine in a particular case will not sully the
prophylaxis of the Fourth Amendment.'" Id. (quoting United States
v. Zapata, 18 F.3d 971, 978 (1st Cir. 1994)).
In addressing the first prong of the inevitable discovery
standard, we divide our analysis in order to explain why agents
could have lawfully searched (1) Crespo's computer, (2) the
external hard drive, and (3) the CDs, provided they were searching
those digital media for certain categories of evidence. As
explained below, these searches would have been lawful because
inevitable discovery doctrine, and Crespo therefore had the
opportunity to argue that it was inapplicable. The inevitable
discovery doctrine we employ here is similar in reasoning to the
government's plain view argument, and it is clear that whether or
not computer files fall under the plain view doctrine, "the
independent source and inevitable discovery doctrines apply to the
contents of the files." United States v. Stabile, 633 F.3d 219,
237 (3d Cir. 2011). We may exercise some latitude as to our
grounds of decision where related doctrines are at issue. See,
e.g., United States v. Sánchez, 612 F.3d 1 (1st Cir. 2010)
(utilizing plain view doctrine rather than community caretaker
doctrine).
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there was probable cause to believe that at least some of the
evidence listed in the warrant application's "Attachment B" would
have been found on these digital media. Probable cause exists
when, "given all the circumstances set forth in the affidavit[,]
. . . there is a fair probability that contraband or evidence of a
crime will be found in a particular place." United States v.
Hicks, 575 F.3d 130, 136 (1st Cir. 2009) (quoting United States v.
Feliz, 182 F.3d 82, 86 (1st Cir. 1999) (quoting Illinois v. Gates,
462 U.S. 213, 238 (1983))) (internal quotation marks omitted).
There was certainly probable cause to believe that
"records, documents, [and electronic] correspondence . . . relating
to correspondence or contact between" Crespo and Tavares -- the
second category of evidence in "Attachment B" -- would be found on
Crespo's computer, because the affidavit included extensive
documentation of online chats between Crespo and Tavares. This
conclusion is not disputed. Thus, agents' search of Crespo's
computer for this evidence would have been lawful.
The matter of the external hard drive is slightly more
complicated because, according to Crespo's counsel's statements at
oral argument, the hard drive had not been accessed in four years
at the time of the search. Even crediting this statement as true,
however, there was still probable cause to believe that evidence of
similar interactions with other minors or purported minors -- the
third category of evidence listed in "Attachment B" -- would be on
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the external hard drive. This is so because Crespo had told
Tavares that he had had sex with a fourteen-year-old girl and
mentioned knowing someone who had shaved her genital area as of the
age of eleven. Furthermore, Crespo cannot argue that records of
these conversations would not constitute evidence of the crime
charged because such records, if found, could be used to prove
Crespo's intent. See United States v. Wolford, 386 F. App'x 479,
484 (5th Cir. 2010) (chat transcripts with anonymous parties found
on defendant's computer admissible during trial for enticement of
a minor to show motive and intent); United States v. Chase, 367 F.
App'x 979, 982 (11th Cir. 2010) (transcript of chat in which
defendant described molestation of a child admissible to show
intent to entice a minor); United States v. McDarrah, 351 F. App'x
558, 563 (2d Cir. 2009) ("other act" evidence admissible during
trial for attempted enticement because it was relevant to knowledge
and intent and could be used to show that conduct was not a mistake
or accident). Thus, the warrant here also properly authorized
agents to search the external hard drive for, at the very least,
evidence related to Crespo's contacts with other minors or
purported minors. Similarly, even assuming that the searched CDs
had also not been accessed for a number of years, there was
probable cause to believe that, at the very least, evidence of
these older communications would be on the CDs.
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Regarding the second prong, we conclude that in the
course of searching Crespo's computer for evidence of his
interactions with Tavares and searching the external hard drive and
CDs for evidence of similar interactions with other individuals,
government agents would have inevitably discovered the child
pornography. When searching digital media for "chats" and other
evidence of enticement, government agents cannot simply search
certain folders or types of files for keywords.4 First, like paper
files, digital files may be mislabeled. See, e.g., United States
v. Highbarger, 380 F. App'x 127, 130 (3d Cir. 2010) ("Suspects can
easily hide information by mislabeling files, and, therefore, law
enforcement officials are not required to accept a suspect's
designation of what is contained in a particular file."); United
States v. Williams, 592 F.3d 511, 522 (4th Cir. 2010) ("Surely, the
owner of a computer, who is engaged in criminal conduct on that
computer, will not label his files to indicate their
criminality."); United States v. Hill, 459 F.3d 966, 978 (9th Cir.
2006) ("Forcing police to limit their searches to files that the
suspect has labeled in a particular way would be much like saying
police may not seize a plastic bag containing a powdery white
substance if it is labeled 'flour' or 'talcum powder.'" (quoting
United States v. Hill, 322 F. Supp. 2d 1081, 1090 (C.D. Cal.
4
Although there may be limitations on how government agents may
search digital media in a case like this one, we need not address
those limitations here.
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2004))). The suffixes or extensions of file names, which generally
indicate file types, may be manipulated to disguise the true file
types. See Hill, 322 F. Supp. 2d at 1090 ("Criminals will do all
they can to conceal contraband, including the simple expedient of
changing the names and extensions of files to disguise their
content from the casual observer."); United States v. Harding, 273
F. Supp. 2d 411, 424 (S.D.N.Y. 2003) ("Files containing graphical
images may be assigned file extensions, including 'TXT', that
typically are assigned to text files. Files containing text may be
assigned file extensions, including 'JPG' or 'GIF', that typically
are given to graphical image files."); United States v. Gray, 78 F.
Supp. 2d 524, 529 (E.D. Va. 1999) ("While the '.jpg' suffix
generally denotes a picture file, there is no requirement that it
do so, and, as a result[,] [the agent] could not be certain that
files with the '.jpg' suffix did not contain the materials for
which he was authorized to search."). Furthermore, a chat
transcript, which begins as text, could be converted into an image
and saved as an image file. See Harding, 273 F. Supp. 2d at 424("Text files . . . are readily scanned and converted into graphical
image files."). Thus, in searching for evidence of Crespo's
interactions with Tavares and other purported minors, forensic
experts would have thoroughly combed through files and would have
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inevitably discovered the child pornography that Crespo now seeks
to suppress.5
Finally, "bear[ing] . . . in mind the social costs of the
exclusionary rule," United States v. Scott, 270 F.3d 30, 45 (1st
Cir. 2001), we consider the final prong of the inevitable discovery
test. We conclude that the application of the doctrine here will
not "provide an incentive for police misconduct or significantly
weaken fourth amendment protection." United States v. Silvestri,
787 F.2d 736, 744 (1st Cir. 1986).6
5
The district court acknowledged as much in its opinion and order
responding to the government's motion for reconsideration when, in
its discussion of the plain view exception to the warrant
requirement, it noted that if agents had not been searching for
child pornography, "the alleged child pornography found in
Defendant's digital media would have been seized pursuant to a
search for evidence of enticement and transfer of obscene material
to a minor."
6
Crespo also argues that we should dismiss this appeal because
the United States Attorney did not personally certify, pursuant to
18 U.S.C. § 3731, that the appeal was not taken for the purpose of
delay and that the evidence suppressed is substantial proof of a
material fact. Instead, an Assistant United States Attorney
("AUSA") electronically signed the required notice of appeal after
consulting with the United States Attorney, who verified that the
requirements of § 3731 were met.
We reject Crespo's argument. Given the process here -- which
included review by the United States Attorney and then by the
Solicitor General -- and the fact that the statute itself notes
that its "provisions shall be liberally construed to effectuate its
purposes," 18 U.S.C. § 3731, we conclude that the AUSA's submission
of the notice of appeal satisfies the statute. See United States
v. Lazar, 604 F.3d 230, 242 n.11 (6th Cir. 2010) ("As to
defendant's contention that certification signed by an AUSA . . .
-- as opposed to the United States Attorney -- cannot satisfy
§ 3731, we reject such a requirement, especially in light of the
review process outlined above [i.e., the process in which the
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IV. Conclusion
For the reasons stated, we reverse the district court's
order and remand with instructions to deny the motion to suppress.
Reversed and Remanded.
Solicitor General makes a final decision about whether to
appeal]."); United States v. Wolk, 466 F.2d 1143, 1146 n.2 (8th
Cir. 1972) ("While [18 U.S.C. § 3731] refers to the 'United States
attorney[,]' the appellee cites no cases nor suggests any
compelling reasons which justify a decision that would so
needlessly circumscribe the ability of the United States Attorney
to delegate responsibility. We recognize that the statute is to be
'liberally construed to effectuate its purposes', 18 U.S.C. § 3731,
and[] we can unearth no reason to disregard that direction in this
case.").
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