United States v. Alexander Rousseau

Case: 14-14506 Date Filed: 10/19/2015 Page: 1 of 12
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14506
Non-Argument Calendar
________________________
D.C. Docket No. 1:14-cr-20243-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEXANDER ROUSSEAU,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 19, 2015)
Before HULL, JORDAN and JILL PRYOR, Circuit Judges.
PER CURIAM:
After a jury trial, Alexander Rousseau appeals his convictions on five counts
of receiving materials depicting a minor engaged in sexually explicit conduct, in
Case: 14-14506 Date Filed: 10/19/2015 Page: 2 of 12
violation of 18 U.S.C. § 2252(a)(2). On appeal, Rousseau challenges the district
court’s denial of his motion to suppress evidence found during the execution of a
search warrant at the fire station where Rousseau worked. During the search,
federal agents found Rousseau’s laptop, which contained over 100 videos of child
pornography and, at the time of the search, was actively downloading child
pornography using an unsecured wireless network. Rousseau argues that the
district court: (1) should have held a Franks 1 hearing to determine whether the
search warrant application contained material misrepresentations about who could
access the wireless network; and (2) should have suppressed the evidence found
during the search because the search warrant was unconstitutionally broad. After
review, we affirm.
I. FRANKS CLAIM
A. General Principles
A defendant seeking a Franks hearing must make a “substantial preliminary
showing” that (1) an affiant applying for a search warrant made intentionally false
or recklessly misleading statements, and (2) those statements were necessary to the
finding of probable cause. United States v. Barsoum, 763 F.3d 1321, 1328 (11th
Cir. 2014), cert. denied, 135 S. Ct. 1883 (2015). The defendant’s substantiality
requirement “is not lightly met.” United States v. Arbolaez, 450 F.3d 1283, 1294
1
Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676 (1978).
2
Case: 14-14506 Date Filed: 10/19/2015 Page: 3 of 12
(11th Cir. 2006). Allegations of deliberate falsehood or reckless disregard for the
truth “must be accompanied by an offer of proof.” Id.
In addition, the defendant must show that, if the misrepresentations were
removed from, or the omitted facts were included in, the warrant affidavit, then
probable cause would be lacking. United States v. Mathis, 767 F.3d 1264, 1275
(11th Cir. 2014) (involving omissions), cert. denied, 135 S. Ct. 1448 (2015);
Barsoum, 763 F.3d at 1329 (involving misstatements). If the warrant would still
support probable cause, then no Franks hearing is necessary. United States v.
Capers, 708 F.3d 1286, 1296 (11th Cir. 2013). In the search warrant context,
probable cause exists when, under the totality of the circumstances, “there is a fair
probability of finding . . . evidence [of a crime] at a particular location.” United
States v. Brundidge, 170 F.3d 1350, 1352 (11th Cir. 1999). 2
B. Warrant Affidavit
FBI Special Agent Alexis Carpinteri’s warrant affidavit stated, inter alia,
that her investigation had identified a computer with the user name
“anon_ae3d4aee@Ares” and an IP address assigned to “Miami Fire Station 6” that
2
We review for an abuse of discretion a district court’s denial of a Franks hearing.
Barsoum, 763 F.3d at 1328. Because the district court’s denial of the motion to suppress is a
mixed question of law and fact, we review the district court’s factual findings for clear error, and
its application of the law to the facts de novo. Id. We review de novo whether a search warrant
affidavit established probable cause, taking care “both to review findings of historical fact only
for clear error and to give due weight to the inferences drawn from those facts by resident judges
and local law enforcement officers.” United States v. Jiminez, 224 F.3d 1243, 1248 (11th Cir.
2000) (quotation marks omitted).
3
Case: 14-14506 Date Filed: 10/19/2015 Page: 4 of 12
was using the ARES peer-to-peer (“P2P”) file sharing network to share files
containing child pornography. Surveillance of the Station revealed one open (i.e.,
not secured by a password) wireless Internet network with limited geographic
scope.
Specifically, Agent Carpinteri’s affidavit stated that “[a] check for open
wireless networks was conducted,” which revealed “one open wireless network
labeled ‘WiFi-Repeater1.’” That wireless network “could only be detected while
pulled up directly to the front of the building,” and “[t]he only area for a vehicle to
pull up to the building was directly in front of the four (4) bay garage doors where
the emergency vehicles for the station were housed.” There was no visitor parking,
and the employee parking behind the building was secured by a gated entrance.
Further, “[i]t did not appear that any area along the perimeter of the [Station] was
viable to access and utilize the unsecured network that was observed at the
[Station].”
The investigation further revealed that the IP address had shared files
containing child pornography on the P2P network “on a consistent basis, starting
on June 1, 2013,” with the majority of the time on the P2P network observed “after
8:00 p.m., often after 10:00 p.m., and ending before 4:00 a.m.” Agents also
learned that individual firefighters assigned to the Station worked in 24-hour shifts
4
Case: 14-14506 Date Filed: 10/19/2015 Page: 5 of 12
beginning at 7:30 a.m., and that each firefighter worked one day on-duty, followed
by two days off-duty, with some flexibility for contractual days off.
C. Rousseau’s Claim of Misrepresentation in Affidavit
Rousseau identifies as false or misleading Agent Carpinteri’s statements that
the wireless network could only be accessed directly in front of the Station and did
not appear to be accessible around the Station’s perimeter. Rousseau argues that
Agent Carpinteri did not accurately describe the area around the Station, which
included a sidewalk on the east side of the Station and a public park on the west
side of the Station, and that, in fact, the unsecured wireless network “can be easily
accessed by any member of the public” from these omitted areas.
Even assuming arguendo that Agent Carpinteri’s affidavit misrepresented
the accessibility of the wireless network to people outside the Station, the district
court did not abuse its discretion in declining to hold a Franks hearing. This is so
because, even if the wireless network could conceivably be accessed from either
the sidewalk or the park, the other information in Agent Carpinteri’s affidavit
showed a fair probability that it was someone inside the Station who was using the
wireless network to download and share the child pornography. 3 In particular, as
3
Because we, like the district court, conclude that the unchallenged portions of the
warrant affidavit provide probable cause to believe someone inside the Station was downloading
the child pornography, we do not address the government’s other arguments that Rousseau failed
to submit affidavits or other evidence in support of his factual assertions and thus failed to offer
5
Case: 14-14506 Date Filed: 10/19/2015 Page: 6 of 12
the district court explained, Agent Carpinteri’s affidavit stated that the illegal
downloads from the IP address under that username were done “on a consistent
basis” for over six months and mostly at night between 10:00 p.m. and 4:00 a.m.,
making it more likely the user was someone inside the Station than someone
outside on the sidewalk or in the public park.
For the first time on appeal, Rousseau contends that Agent Carpinteri’s
affidavit also omitted that Rousseau was the sole target of the investigation. To the
contrary, the trial record shows that Rousseau was not the sole target. Specifically,
Agent Carpinteri testified that, from comparing the records of employees’ shifts,
she identified Rousseau as the only employee on duty at all the relevant times.
But, Carpinteri also explained that this fact did not necessarily tell her that
Rousseau was the individual downloading and sharing files, because she still did
not know who was on the computer and “who [was] doing what at any given
time.” Therefore, Rousseau was “not the only one” targeted by the FBI
investigation. See United States v. Smith, 459 F.3d 1276, 1294 n.16 (11th Cir.
2006) (explaining this Court may consider evidence subsequently introduced at
trial in reviewing a motion to suppress). Accordingly, Rousseau has not shown
error, much less plain error.
proof that Agent Carpinteri made any misrepresentations, much less ones that were intentional or
reckless.
6
Case: 14-14506 Date Filed: 10/19/2015 Page: 7 of 12
In sum, because Rousseau failed to make a substantial preliminary showing
of a material misrepresentation in Agent Carpinteri’s affidavit, the district court
was not required to hold a Franks hearing.
II. PARTICULARITY OF THE SEARCH WARRANT
A. General Principles
The Fourth Amendment requires that a search warrant particularly describe
the place to be searched and the things to be seized. U.S. Const. amend. IV. “A
warrant which fails to sufficiently particularize the place to be searched or the
things to be seized is unconstitutionally over broad.” United States v. Travers, 233
F.3d 1327, 1329 (11th Cir. 2000). The particularity requirement, however, does
not require “elaborate specificity.” United States v. Betancourt, 734 F.2d 750, 754
(11th Cir. 1984). “The standard is one of practical accuracy rather than technical
nicety.” Id. at 755 (quotation marks omitted).
With regard to the place to be searched, the warrant’s description need only
have “sufficient particularity to direct the searcher, to confine his examination to
the place described, and to advise those being searched of his authority.” United
States v. Burke, 784 F.2d 1090, 1092 (11th Cir. 1986). As to the materials to be
seized, “a description is sufficiently particular when it enables the searcher
reasonably to ascertain and identify the things to be seized.” United States v.
Santarelli, 778 F.2d 609, 614 (11th Cir. 1985). If the applicant for the warrant
7
Case: 14-14506 Date Filed: 10/19/2015 Page: 8 of 12
cannot give an exact description, but has probable cause to believe that such
materials exist, the warrant is sufficiently particular if it is as specific as the
circumstances and nature of the activity under investigation permit. Id. Further,
where it is not feasible at the time the warrant is issued to give an exact description
of the materials to be seized, the warrant satisfies the Fourth Amendment’s
particularity requirement if it limits the seizure of items to only those items that
constitute evidence of criminal activity. Id. at 615.4
B. Search Warrant
The search warrant described the property to be searched as any computers,
including, among other things, data storage devices, cellular telephones, tablets,
and external hard drivers, found in the Station. The search warrant described the
items to be seized as, among other things, any visual depictions of child
pornography, any records of communication relating to sharing child pornography,
communications with an Internet service provider, communications relating to
ownership or use of computers at the Station, computer software, computer
passwords, and any computers and cameras that may be used to view or store child
pornography.
4
We review de novo a district court’s determination that a search warrant satisfied the
Fourth Amendment’s particularity requirement. United States v. Bradley, 644 F.3d 1213, 1258-
59 (11th Cir. 2011).
8
Case: 14-14506 Date Filed: 10/19/2015 Page: 9 of 12
Agent Carpinteri’s affidavit provided general information about the typical
behavior of persons involved in child pornography, including how they use
computers and other electronic devices to store and transmit images. Among other
things, the affidavit explained that “[v]irtually any type of computer,” including
“cellular telephones, smartphones, tablets, and other such electronic mobile
devices” can access the Internet and P2P networks using certain “apps” and
wireless networks and that “[a]ny of these computers, if connected to the internet
through a home network, would be associated with the IP address assigned to that
home network . . . , just the same as would a laptop or desktop computer.”
Agent Carpinteri’s affidavit also provided information about how computers
are seized and searched by forensic analysts for child pornography in a laboratory.
The affidavit explained that ordinarily agents must “seize most or all computer
items . . . to be processed later” in the laboratory. In this case, however, “[i]n order
to narrow down which computers need to be seized [from the Station] for further
examination,” agents would conduct “on-site evidentiary previews” that would
“identify which computers contain evidence of criminal activity and require
seizure and which computers are unrelated to the possession, receipt, and
distribution of child pornography.”
C. Rousseau’s Claim That Warrant Was Overbroad
9
Case: 14-14506 Date Filed: 10/19/2015 Page: 10 of 12
The district court properly denied Rousseau’s motion to suppress on
particularity or overbreadth grounds. The warrant sufficiently described the places
to be searched as the Station—including the address and a description of the
building—and any “computers” and “data storage devices” found in the Station.
The warrant further contained a very detailed list of the items to be seized,
including visual depictions of child pornography; digital and paper documents
pertaining to, inter alia, the possession, receipt, or transmission of child
pornography, Internet service provider accounts, or online or remote electronic
storage; computer software, including P2P file sharing software; and photographic
equipment containing child pornography. These descriptions were sufficient to
enable a searcher to confine the search to the places described and to reasonably
ascertain and identify the things to be seized.
To the extent the descriptions did not identify a specific location within the
Station or specific item (such as a particular computer or cell phone), they were as
specific as the circumstances and nature of the activity being investigated would
permit. 5 The agents were investigating the downloading and sharing of child
pornography using an IP address registered to the Station and an open wireless
5
We find no merit to Rousseau’s argument that the warrant application failed to show a
nexus between the places to be searched and the items to be seized and the criminal activity
being investigated. See United States v. Kapordelis, 569 F.3d 1291, 1310 (11th Cir. 2009)
(explaining that the warrant affidavit should establish a connection between the place searched
and the criminal activity). Based on the information in the warrant application, there existed a
fair probability that evidence of the possession, receipt or distribution of child pornography
would be found on one or more computers and storage devices inside the Station.
10
Case: 14-14506 Date Filed: 10/19/2015 Page: 11 of 12
network accessible inside the Station. The investigators did not know which or
how many Station employees might be involved in the activity, much less which
computers or electronic storage devices in the Station were being used. The
warrant made clear that a search of the computers required the seizure of “most or
all computer items” to perform the search thoroughly, and that “on-site evidentiary
previews” would be conducted to minimize the burden on individuals and devices
that were not involved in the illegal activity. The warrant also only authorized the
seizure of items that were “[e]vidence of possession, receipt, and distribution of
child pornography.”
Contrary to Rousseau’s assertion, agents did not conclude that a desktop
computer was the only device associated with the anon_ae3d4aee@Ares username.
The warrant application stated that any type of computer, including mobile devices
such as cell phones, smartphones, and tablets, could use a home wireless network,
access P2P networks using certain apps, and store large amounts of electronic data.
Dr. Sam Malek’s trial testimony—that a P2P network is essentially “just
computers,” such as personal laptops and desktops, communicating with each
other—does not contradict the warrant application on this point. Dr. Malek did not
testify that a P2P network can be accessed using only a desktop or laptop
computer.
11
Case: 14-14506 Date Filed: 10/19/2015 Page: 12 of 12
Again, and also contrary to Rousseau’s contention, the record does not show
that agents identified Rousseau as the only suspect. Agent Carpinteri testified that,
although Rousseau was the only Station employee on duty every time child
pornography was shared via the P2P network, this did not necessarily mean that he
was the only one using a computer to do so. Moreover, even if Rousseau had been
confirmed as the only target, the record does not show that the search could have
been limited to his quarters or computers. Firefighters at the Station did not have
individual quarters, and it was not known that Rousseau had his own laptop at the
Station until the warrant was executed.
Under the circumstances, the warrant was as specific as it could be and it
was not feasible for the agents to identify ahead of time a particular computer or
storage device inside the Station to be seized and searched. For all these reasons,
the district court did not err in denying Rousseau’s motion to suppress.
AFFIRMED.
12