United States v. Michael Karrer

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-2642
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UNITED STATES OF AMERICA
v.
MICHAEL L. KARRER,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-08-cr-00236-001)
District Judge: Honorable D. Michael Fisher *
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Submitted Under Third Circuit LAR 34.1(a)
January 27, 2012
Before: AMBRO, CHAGARES and HARDIMAN, Circuit Judges.
(Filed: February 1, 2012)
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OPINION OF THE COURT
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*
The Honorable D. Michael Fisher, Judge of the United States Court of Appeals
for the Third Circuit, sitting by designation.
HARDIMAN, Circuit Judge.
Michael Karrer appeals his judgment of conviction for possession of child
pornography under 18 U.S.C. § 2252(a)(4)(B) after the District Court refused to suppress
evidence found pursuant to a search warrant he claims was general, overbroad, and
lacking in probable cause. We will affirm.
I
Because we write solely for the parties, who are well acquainted with the case, we
recount only the essential facts and procedural history.
Pennsylvania State Trooper Glenn Bard began investigating Karrer after monitors
at Neopets, a children’s website with virtual pets and online chat functionality, noticed
“inappropriate communication” from a 37-year-old male registered user. 1 Working with
a Neopets security consultant, Bard discovered that Karrer’s various Neopets accounts
originated from one computer and that Karrer had a MySpace page. Upon viewing
Karrer’s MySpace profile photograph, Bard recognized him from a 2003 investigation for
unlawful contact with a minor. Using Karrer’s internet protocol (IP) address and the
1
Karrer asked one thirteen-year-old girl, “would it bother you if i said that i was
trying to hit on you? . . . just curious as to if i asked you to be my gf, would you accept?”
In another chat with a fourteen-year-old girl, Karrer represented himself as a teenager and
wrote “i am 15 female from new jerse[y], united states. my family and i are in a n-u-d-i-
s-t camp and love it. what about you?” Karrer also asked questions regarding what types
of underwear the girls wore and whether he could send them flowers.
2
Pennsylvania driver’s license database, Bard determined that Karrer lived at the
Pittsburgh address from which the Neopets communications originated.
On May 13, 2008, Bard applied for a warrant to search Karrer’s residence for
evidence of unlawful contact with a minor in violation of 18 Pa. Cons. Stat. § 6318. 2 In
his application, Bard requested authorization to search and seize
2
Under § 6318,
(a) . . . A person commits an offense if he is intentionally in contact with a
minor, or a law enforcement officer acting in the performance of his duties
who has assumed the identity of a minor, for the purpose of engaging in
activity prohibited under any of the following, and either the person initiating
the contact or the person being contacted is within this Commonwealth:
(1) Any of the offenses enumerated in Chapter 31. [By way of
example, Chapter 31 enumerates ten offenses, including rape, sexual
assault, and indecent exposure. See 18 Pa. Cons. Stat. §§ 3121–3130.].
(2) Open lewdness as defined in section 5901.
(3) Prostitution as defined in section 5902.
(4) Obscene and other sexual materials and performances as defined in
section 5903.
(5) Sexual abuse of children as defined in section 6312.
(6) Sexual exploitation of children as defined in section 6320.
Contact with a minor is defined as
[d]irect or indirect contact or communication by any means, method or device,
including contact or communication in person or through an agent or agency,
through any print medium, the mails, a common carrier or communication
common carrier, any electronic communication system and any
telecommunication, wire, computer or radio communications device or system.
3
[a]ll computer internal and peripheral storage devices, (such as fixed disks,
external hard disks, floppy disk drives, and diskettes, tape drives, tapes, and
optical storage devices), peripheral input / output devices (such as keyboards,
printers, hardware, including, but not limited to, any equipment which can
collect, analyze, create, display, convert, store, conceal, or transmit electronic,
magnetic, optical or similar computer impulses or data . . . [and] [a]ny
computer processing units, scanners, plotters, video display monitors, and
optical readers), and related communication devices such as modems, cables,
and connections, recording equipment, as well as any devices, mechanisms, or
parts that can be used to restrict access to computer hardware.
In addition to the broad array of computer-related items, Bard sought authorization to
search for and seize “[a]ny cellular phones, smart phones, (IE blackberry, iPhone, and so
on) and personal data assistants which can be used for the purpose of accessing the
internet, chat programs, or e-mail applications.” Bard attached a seven-page affidavit
detailing his experience in computer forensics and his investigation of Karrer’s Neopets
communications. He explained that in light of the numerous ways in which evidence on
computers can be masked, hidden, or deleted, “it is very often necessary to take all
computer hardware and software found at the suspected location.” Bard also expressed
the intent to transport the computer-related items from Karrer’s residence to an off-site
location for a thorough forensic search.
The Magistrate Judge issued a warrant granting Bard permission to search for and
seize all computer-related items and cell phones listed in his affidavit. The warrant listed
the “date(s) of violation” as November 2007 through May 2008 and expressly
18 Pa. Cons. Stat. § 6318(c) (emphasis added).
4
incorporated the affidavit by reference. It also erroneously indicated that the seized items
would be “searched for evidence relating to the possession and/or distribution of child
pornography.”
Later that day, Bard and Trooper Scott Lucas executed the warrant at Karrer’s
address. In Karrer’s bedroom, Lucas identified a computer and a Motorola KLM cellular
phone. According to Lucas, he searched the phone because it was capable of transmitting
“text-type communications” and e-mails and accessing the Internet. Lucas decided to
view the phone’s photos folder because cell phones often store remnants of Internet-based
communications as image files in that type of folder. When Lucas accessed the photos
folder, he immediately saw what he believed to be a male hand touching a young girl’s
genitals. Lucas showed the photo to Bard and stopped searching the cell phone. Lucas
also seized Karrer’s computer but did not search it at Karrer’s residence.
Bard and Pennsylvania State Police Supervisor Corporal Robert Erderly
approached Karrer to discuss the image found on his cell phone. They told Karrer they
wished to record a conversation with him but that he was under no obligation to speak
with them and could stop the discussion at any time. They also read Karrer the Miranda
warnings. During the conversation, Karrer admitted that he had taken three photographs
of his four-year-old niece, that he had touched her genitals, and that he had chatted with
minor girls on the Internet. He further confessed that his computer and a separate CD
5
contained sexually explicit photographs of a girl he met on MySpace. Karrer then gave
the officers his signed consent to view the CD images. Based on the information they had
gathered, the officers obtained a second search warrant for child pornography3 and
notified local police of Karrer’s potential offenses against his four-year-old niece.
Upon searching Karrer’s computer, cell phone, and CD, police located sexually
explicit conversations with minors and photographs of minors “in various states of
undress,” which were eventually used to indict him on three criminal counts. Count One
charged Karrer with violating 18 U.S.C. § 2251(a), which criminalizes sexual exploitation
of a minor “for the purpose of producing [a] visual depiction of such conduct.” Counts
Two and Three alleged receipt and possession of child pornography in violation of 18
U.S.C. § 2252(a)(2) and (4)(B), respectively. After Karrer’s motion to suppress was
denied by the District Court, he entered a conditional guilty plea to Count Three,
reserving his right to challenge “whether the search warrant was invalid because it was
not supported by probable cause, because it violated the particularity requirement, or
because it was overly broad.” Thereafter, Karrer was sentenced to 120 months’
imprisonment and a life term of supervised release pursuant to his plea agreement. He
timely appealed.
3
Karrer’s arguments concern only the first warrant for evidence of unlawful
communications with a minor, not this second warrant for child pornography. Thus, our
references herein to “the warrant” concern the first warrant.
6
II
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have
jurisdiction under 28 U.S.C. § 1291. When reviewing a district court’s suppression
ruling, we review its factual findings for clear error and exercise plenary review over its
legal conclusions. E.g., United States v. Tracey, 597 F.3d 140, 146 (3d Cir. 2010). In
reviewing a magistrate’s finding of probable cause, we inquire only whether there was a
“substantial basis” to conclude that the affidavit established probable cause, and we are
necessarily deferential. E.g., United States v. Ritter, 416 F.3d 256, 264 (3d Cir. 2005).
A
Karrer first argues that his motion to suppress should have been granted because
the warrant was an illegal general warrant. We disagree.
It is axiomatic that a “warrant[] must ‘particularly describ[e] the place to be
searched and the persons or things to be seized,’” United States v. Yusuf, 461 F.3d 374,
393 (3d Cir. 2006) (second alteration in original) (quoting U.S. Const. amend. IV), and
that when it does not, “all evidence seized pursuant to [the] general warrant must be
suppressed,” United States v. Christine, 687 F.2d 749, 758 (3d Cir. 1982). A warrant is
not unconstitutionally general “unless it can be said to ‘vest the executing officer with
unbridled discretion to conduct an exploratory rummaging . . . in search of criminal
evidence.’” United States v. Leveto, 540 F.3d 200, 211 (3d Cir. 2008) (quoting Christine,
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687 F.2d at 753).
Karrer argues that the warrant failed to impose meaningful limits on what and
where the officers could search. In fact, the warrant identified particular devices and file
types to be searched for evidence of a specific statutory offense. See Yusuf, 641 F.3d at
395. It also sufficiently identified a time period during which the suspected offenses
occurred. See id. And the warrant’s authorization to search and seize virtually all
computer-related items in Karrer’s home does not invalidate the warrant. See, e.g.,
United States v. Stabile, 633 F.3d 219, 234 (3d Cir. 2011); United States v. Ninety-Two
Thousand Four Hundred Twenty-Two Dollars and Fifty-Seven Cents ($92,422.57), 307
F.3d 137, 149–50 (3d Cir. 2002) (upholding a similar warrant as “indubitably broad,” but
not unconstitutionally general). Nor does the language in the incorporated affidavit
authorizing officers to search for “such evidence of a criminal offense” render the warrant
general. A warrant must be read as a whole, see, e.g., Tracey, 597 F.3d at 154, and a
supporting affidavit likewise “is to be read in its entirety and in a common sense,
nontechnical manner,” United States v. Miknevich, 638 F.3d 178, 182 (3d Cir. 2011); see
also United States v. Johnson, 690 F.2d 60, 64 (3d Cir. 1982) (“When a warrant is
accompanied by an affidavit that is incorporated by reference, the affidavit may be used
in construing the scope of the warrant.”). Accordingly, “such evidence of a criminal
offense” refers not to any criminal offense, but to the criminal offense of unlawful contact
8
with a minor defined throughout the remainder of the warrant and affidavit. See
Andresen v. Maryland, 427 U.S. 463, 480–81 (1976) (holding that the phrase “together
with other fruits, instrumentalities and evidence of crime at this (time) unknown” did not
render a warrant general where context made clear that the reference was to false
pretenses crime).
Karrer contends that the warrant failed to particularly describe the offenses for
which evidence could be searched. He argues that the warrant’s reference to § 6318 of
the Pennsylvania Crimes Code was inadequate to limit the warrant’s scope because that
statute is extraordinarily broad, defining what he calculates to be fifty-two possible
communications offenses. Indeed, the Supreme Court has held that reference to a very
broad statutory offense may not cure an otherwise general warrant. See Stanford v. Texas,
379 U.S. 476 (1965); Marcus v. Search Warrants of Prop. at 104 E. Tenth St., Kan. City,
Mo., 367 U.S. 717 (1961). But the statutes in those cases are easily distinguished from
§ 6318. In Stanford, the Texas statute was a “sweeping and many-faceted law, which,
among other things, outlaw[ed] the Communist Party” and “authoriz[ed] the issuance of a
warrant ‘for the purpose of searching for and seizing any books, records, pamphlets,
cards, receipts, lists, memoranda, pictures, recordings, or any written instruments showing
that a person or organization [was] violating or ha[d] violated any provision of [the]
Act.’” 379 U.S. at 477 (citation omitted). Moreover, the Stanford Court based its
9
invalidation of the warrant substantially on the statute’s criminalization of “literary
material.” Id. at 486. In Marcus, the Missouri statute criminalized similarly ill-defined,
speech-related materials, including “obscene, lewd, licentious, indecent or lascivious
[items] . . . or other articles or publications of an indecent, immoral or scandalous
character.” 367 U.S. at 719 n.2, 731–32. Unlike the statutes in Stanford and Marcus,
§ 6318 does not invite the value judgments of officers. Although it is broad in scope and
prohibits communicating with minors on an array of topics, it specifically defines those
topics. Accordingly, we hold that the officers’ discretion was sufficiently limited.
B
Karrer next argues that the warrant was overbroad. An overly broad warrant
“‘describe[s] in both specific and inclusive generic terms what is to be seized,’ but . . .
authorizes the seizure of items as to which there is no probable cause.” Ninety-Two
Thousand, 307 F.3d at 149 (quoting Christine, 687 F.3d at 753–54). Probable cause
exists where the totality of the circumstances suggests “there is a fair probability that
contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates,
462 U.S. 213, 238 (1983).
We find no lack of probable cause to search and seize Karrer’s computer-related
and cell phone technologies for evidence of unlawful communications with minors.
Bard’s affidavit presented the magistrate with a substantial basis to believe such evidence
10
existed in Karrer’s home, where the computer used to interact with teens on the Neopets
website was located. Nor was the warrant overbroad simply because the devices and files
it authorized to be searched and seized were likely to include materials unrelated to any
§ 6318 offense. “[A]s a practical matter, when a search requires review of a large
collection of items, . . . ‘it is certain that some innocuous [items] will be examined, at
least cursorily, in order to determine whether they are, in fact, among those [items]
authorized to be seized.’” Stabile, 633 F.3d at 234 (quoting Andresen, 427 U.S. at 482
n.11) (citation and internal quotation marks omitted). As Bard explained in his affidavit,
given the nature of computer files and the tendency of criminal offenders to mislabel,
hide, and attempt to delete evidence of their crimes, it would be impossible to identify ex
ante the precise files, file types, programs and devices that would house the suspected
evidence. See id. at 237 (“[I]t is clear that because criminals can—and often do—hide,
mislabel, or manipulate files to conceal criminal activity, a broad, expansive search of the
hard drive may be required.”); see also Yusuf, 461 F.3d at 395 (“[T]he breadth of items to
be searched depends upon the particular factual context of each case and also the
information available to the investigating agent that could limit the search at the time the
warrant application is given to the magistrate.”); Christine, 687 F.2d at 760 (“[T]he use of
generic classifications in a warrant is acceptable when a more precise description is not
feasible.”). Moreover, as the Supreme Court has explained, “[t]echnical requirements of
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elaborate specificity . . . have no proper place in this area.” United States v. Ventresca,
380 U.S. 102, 108 (1965).
Finally, there is no merit in Karrer’s argument that the warrant was overbroad for
failing to specify a protocol for browsing Karrer’s computer files. Although we held in
Stabile that such a protocol was sufficient to demonstrate a valid computer search in that
case, 633 F.3d at 239–40, and that search methods must be “‘tailored to meet allowed
ends,’” id. at 239 (quoting United States v. Burgess, 576 F.3d 1078, 1094 (10th Cir.
2009)), we also held that “the search warrant itself need not ‘contain a particularized
computer search strategy,’” id. at 238 (quoting United States v. Brooks, 427 F.3d 1246,
1251 (10th Cir. 2005)).
C
Finally, we consider the warrant’s authorization to search for and seize evidence of
child pornography. It is undisputed that at the time the warrant was issued there was no
probable cause to believe that evidence of child pornography offenses would be found on
Karrer’s technological devices. At the suppression hearing in the District Court, Bard
testified that the reference to child pornography was template language that he
inadvertently failed to delete. Crediting Bard’s explanation and looking to the context of
the entire affidavit, the District Court agreed that the reference to child pornography was
simply “misplaced.” We are skeptical that an erroneous reference to a wholly separate
12
crime, effectively authorizing a search for which no probable cause exists, can be
analogized to harmless ministerial errors, see, e.g., Johnson, 690 F.2d at 65 n.3 (attaching
“no significance” to a typographical error in which the word “Section” in the statutory
designation was mistakenly substituted with the word “Chapter”), or mistakes of fact not
discoverable until the execution of the warrant, see, e.g., Maryland v. Garrison, 480 U.S.
79, 85–86, 87 & n.11 (1987) (upholding a warrant that failed to specify which of two
apartments on a single floor was to be searched where the police believed there was only
one apartment on that floor and explaining the “need to allow some latitude for honest
mistakes that are made by officers in the dangerous and difficult process of making
arrests and executing search warrants”). But we need not resolve whether the child
pornography reference was a forgivable ministerial error. Even redacting the unsupported
child pornography reference from the warrant, 4 the images Lucas discovered on Karrer’s
cell phone fall within the “plain view” exception to the exclusionary rule.
Under the “plain view” exception, evidence obtained in violation of the Fourth
Amendment need not be suppressed so long as three requirements are met. “First, the
officer must not have violated the Fourth Amendment in ‘arriving at the place from which
4
“[A]n overly broad warrant can be redacted to strike out those portions of the
warrant that are invalid for lack of probable cause, maintaining the remainder of the
warrant that satisfies the Fourth Amendment.” Yusuf, 461 F.3d at 393 n.19. “[T]he court
need not suppress materials seized pursuant to the valid portions of the warrant,”
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the evidence could be plainly viewed.’ Second, the incriminating character of the
evidence must be ‘immediately apparent.’ Third, the officer must have ‘a lawful right of
access to the object itself.’” United States v. Menon, 24 F.3d 550, 559 (3d Cir. 1994)
(quoting Horton v. California, 496 U.S. 128, 141 (1990)). We recently held that “the
plain view doctrine applies to seizures of evidence during searches of computer files,”
noting that “the exact confines of the doctrine will vary from case to case in a common-
sense, fact-intensive manner.” Stabile, 633 F.3d at 240–41. In Stabile, we held that
evidence of child pornography discovered during an officer’s examination of file names
in a suspiciously titled folder did not require suppression because: (1) the officer was
authorized by a warrant to search the hard drive at issue and to access the suspicious
folder to search for financial crimes; and (2) the lurid file names immediately suggested
that they contained contraband. Id. at 241–42.
In this case, the warrant authorized Lucas to access Karrer’s cellular phone to
search for evidence of unlawful communications with minors, and he did not violate the
Fourth Amendment in arriving in the phone’s photos folder. See Menon, 24 F.3d at 560
(explaining that a search is within the scope of the warrant “if [it] fits within the literal
terms of the warrant and is a reasonable means of obtaining the objects described in the
warrant”). We reach this conclusion because we find no clear error in the District Court’s
Christine, 687 F.2d at 754,—in this case, anything seized based on those provisions
14
implicit factual finding that cell phones often archive communications as image files,
which may be saved in photos folders. 5 Once Lucas had entered the photos folder, it was
readily apparent that one image likely depicted a sexual offense against a child, and thus
constituted child pornography, based on the sizes and characteristics of the hand and
genitalia in the photo. The image located on Karrer’s cell phone was therefore admissible
under the “plain view” exception, and the subsequently discovered evidence of child
pornography did not require suppression. 6
regarding evidence of unlawful contact with a minor.
5
Based on Lucas’s testimony at the suppression hearing, the District Court
concluded that “[t]he alleged internet communications described in the warrant and
affidavit could have been conducted through Karrer’s cellular telephone, and evidence
could logically be stored there.” Lucas testified that it is “[v]ery common[,] [s]pecifically
with cell phones,” for “documents and files related to conversations to have an image
component or picture component,” and that remnants of those and other Internet-based
communications are “often preserved as image files.” Moreover, according to the
officers, not only images of text or Internet conversations, but also photographs
themselves could provide evidence of unlawful communications. Lucas testified that an
“image [can be] saved out of [a] message into the images and then the message [can be]
deleted.”
6
Because the “plain view” doctrine allowed for the introduction of all of the child
pornography evidence discovered after and as a result of Lucas’s identification of an
image depicting child molestation on Karrer’s cell phone, we need not resolve whether
the child pornography evidence was otherwise admissible under the “good faith” or
“inevitable discovery” exceptions to the exclusionary rule. See, e.g., Ninety-Two
Thousand, 307 F.3d at 145–46 (describing the “good faith” exception established in
United States v. Leon, 468 U.S. 897 (1984)); United States v. Vasquez De Reyes, 149 F.3d
15
 III
For the foregoing reasons, we will affirm Karrer’s judgment of conviction.
192, 195 (3d Cir. 1998) (outlining the “inevitable discovery” exception set forth in Nix v.
Williams, 467 U.S. 431 (1984)).
16