United States v. Herndon

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0353p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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v.
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No. 06-5522
,
JEFFREY SCOTT HERNDON, >
Defendant-Appellant. -
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Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 04-00199—Robert L. Echols, District Judge.
Argued: May 31, 2007
Decided and Filed: August 31, 2007
Before: GIBBONS and COOK, Circuit Judges; CLELAND, District Judge.*
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COUNSEL
ARGUED: Robert D. Baker, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee,
for Appellant. Eli J. Richardson, ASSISTANT UNITED STATES ATTORNEY, Nashville,
Tennessee, for Appellee. ON BRIEF: Robert D. Baker, Michael C. Holley, FEDERAL PUBLIC
DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant. S. Carran Daughtrey, ASSISTANT
UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee.
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OPINION
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JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Jeffrey Scott Herndon was
convicted in Tennessee state court of multiple counts of sexual exploitation of a minor and, after
serving a brief term of imprisonment, placed on probation subject to certain terms and conditions,
including a series of Sex Offender Directives issued by the Tennessee Board of Probation and
Parole. During the course of an inspection of Herndon’s home computer to check Herndon’s
compliance with the Directives’ prohibition on home Internet access, Herndon’s probation officer
discovered child pornography on an external hard drive located in Herndon’s bedroom. The
probation officer contacted local police officers who seized the materials. The United States charged
Herndon with receipt and possession of child pornography. After the district court denied Herndon’s
motion to suppress the evidence against him, Herndon pled guilty to one of the counts against him,
*
The Honorable Robert H. Cleland, United States District Judge for the Eastern District of Michigan, sitting
by designation.
1
No. 06-5522 United States v. Herndon Page 2
and the district court sentenced him to 72 months imprisonment. On appeal, Herndon challenges
the district court’s denial of his motion to suppress the evidence against him.
For the reasons that follow, we affirm.
I.
The underlying facts in this case – as set forth in large part at Herndon’s suppression hearing
before the district court – are as follows. In November 2001, Herndon was convicted in Davidson
County, Tennessee of three counts of sexual exploitation of a minor. In May 2002, after serving
nine months in prison, Herndon was released and placed on probation. As a condition of his
probation, Herndon was subject to a set of Sex Offender Directives produced by the Tennessee
Board of Probation and Parole. The Directive relevant to this appeal provides:
5. You will not have Internet access on your computer unless permission for Internet
capability has been approved in writing by your Officer. You consent to your
Officer checking your computer and any software at any time for Internet capability
or activity.
Herndon indicated his understanding of the terms of his probation by signing a copy of the
Tennessee probation board’s standard probation order, as well as a copy of the Directives.
As required, Herndon enrolled in a sex offender treatment program administered by the
Associates of Sexual Assault Prevention, an organization run by John Brogden. During the course
of his treatment, Herndon produced two written assignments, per the requirements of his program.
The first was a letter of apology written to the victim of his crime and intended solely for use as an
evaluative tool. Herndon’s apology letter began with an expression of remorse but proceeded to
level a series of thinly veiled accusations against the victim. Brogden informed Herndon that his
letter was unsatisfactory and directed him to make another attempt, leaving out the “cognitive
distortions and victim blaming.” In response, Herndon produced a lengthy missive expressing his
disdain for societal proscriptions on child sex, noting that “every child has the right and should be
free to learn about sex from an adult who can show them the right way to do things and how good
sex can and should be,” and deriding the “myth of childhood innocense [sic].” Because Herndon
had no respect for the philosophical underpinninings of Brogden’s therapeutic approach, he was
“proud” of his score of zero on his initial apology letter. Brogden terminated Herndon from his
program prior to Herndon’s completion, citing his “chronic poor performance in treatment,
generally; financial irresponsibility; extreme distorted thinking about sex with children; and [his]
failure to complete assignments.”
On the morning of February 4, 2003, Herndon met with George Harrien, the probation
officer then assigned to his case. Herndon informed Harrien that Brogden had terminated him from
his sex offender treatment program. When Harrien inquired into Herndon’s employment status,
Herndon assured him that he was looking for a job “and that he had actually been on the Internet
seeking employment . . . .” Because the terms of Herndon’s probation prohibited certain Internet
access, Herndon’s reference to seeking employment online alarmed Harrien.
Following his meeting with Herndon on February 4, Harrien received copies of the materials
Herndon produced in therapy as well as court records relating to Herndon’s original offense. That
same day, Brogden communicated to the probation office his concerns regarding Herndon’s
potential danger to the community, specifically advising the office that he believed that Herndon
represented a “high risk” and required greater supervision than was provided in his program.
Based upon his conversation with Herndon, which revealed Internet activity and a lack of
employment, the information from Brogden concerning Herndon’s conduct in treatment, and the
No. 06-5522 United States v. Herndon Page 3
information on the nature of Herndon’s offenses, Harrien sought and received approval for an
inspection of Herndon’s computer pursuant to the authority of Directive 5.
At approximately 3 o’clock on February 4, Harrien, along with another probation officer,
Calvin Burden, arrived at the residence Herndon shared with his mother. Herndon answered the
door and, upon Harrien’s request to check his computer, led the officers into a converted garage that
served as his bedroom. Herndon retrieved a laptop computer from under a pillow on his bed, and
Harrien proceeded to examine the computer’s Internet history. There, he discovered a number of
files with female names in the filenames but was unable to access any of the files because the
necessary drive was missing.
Harrien then loaded and ran prescan software, also referred to as presearch software, on
Herndon’s laptop. Prescan software provides information on the source of images contained on a
computer, by, for instance, including a web address in the file name, or indicating that a file is stored
in a temporary Internet cache file. It also allows a user to inspect the contents of a computer’s drives
for different types of images. In this case, it permitted Harrien to discover a number of thumbnail
images stored on Herndon’s computer. Although Harrien was certain that the images were
pornographic, he could not conclusively establish whether the images involved adults or children.
During the scan of the C-drive on Herndon’s laptop, Burden alerted Harrien to the presence of an
external hard drive placed at the foot of the bed, plugged into the wall, but unconnected to the laptop
computer. Harrien connected the hard drive to the laptop computer, and a scan of the material on
that drive revealed multiple thumbnail images that Harrien identified as child pornography.
Realizing the implications of his discovery, Harrien contacted his supervisor and Assistant
District Attorney Bernie McAvoy, who dispatched uniformed police officers and detectives to the
residence. The uniformed officers arrived first and placed Herndon under arrest. Approximately
an hour later, Detective Kevin Cooley of the Nashville Police Department arrived. Cooley testified
at Herndon’s suppression hearing that, upon his arrival, he observed on Herndon’s computer twelve
images of a prepubescent female in different sexual positions. The officers seized Herndon’s laptop
in addition to two or three hard drives. Cooley successfully applied for a search warrant to examine
the computer and its external drives. An examination of the computer and its attendant drives
revealed approximately 58,000 images and 3000 videos of child pornography involving
prepubescent children.
Herndon remained in state custody from the time of his arrest in February 2003 until
December 2004. On December 20, 2004, he was taken into federal custody. On November 17,
2004, a grand jury empaneled in the Middle District of Tennessee issued a two-count indictment
charging Herndon with knowing receipt and possession of child pornography in violation of 18
U.S.C. §§ 2252A(a)(2)(A) and 2252A(a)(5)(B). Herndon moved to suppress the evidence against
him on the ground that the government secured it in violation of his rights under the Fourth
Amendment. The district court granted Herndon’s motion as to written materials relating to the
subject of pedophilia discovered on Herndon’s computer but denied the motion as to the
pornographic images and videos discovered on the computer.1 Herndon filed a second motion
asserting that the scope of the consent provided in his probation order extended no further than
activities on the part of his probation officer and that the police’s seizure of his computer was
therefore unlawful. The district court issued a second written order denying that motion, citing the
plain view exception to the Fourth Amendment’s warrant requirement.
1
The district court also denied Herndon’s motion as to a collection of written materials taken by members of
the United States Marshal’s office upon Herndon’s transfer to federal custody. On appeal, Herndon does not challenge
that portion of the district court’s ruling.
No. 06-5522 United States v. Herndon Page 4
After the denial of his suppression motions, Herndon entered into a plea agreement with the
government, agreeing to plead guilty to the first count of the indictment, charging him with
knowingly receiving and attempting to receive child pornography in violation of 18 U.S.C.
§ 2252(a)(2)(A). The district court sentenced Herndon to 72 months imprisonment. Herndon filed
a timely notice of appeal.
II.
Herndon’s challenge on appeal arises out of the district court’s denial of his motions to
suppress. He contends that the district court incorrectly concluded that Harrien lawfully conducted
an examination of the contents of Herndon’s computer and external drives and that the government
failed to meet its burden of proof establishing the applicability of the plain view exception. We take
each argument in turn, reviewing the trial court’s factual determinations for clear error and its legal
conclusions de novo. United States v. Ostrander, 411 F.3d 684, 694 (6th Cir. 2005).
A.
Herndon argues, first, that the district court should have suppressed the evidence against him
because Harrien exceeded the scope of his authority under the terms of Herndon’s probation. The
Fourth Amendment bars unreasonable searches and seizures by the government. U.S. Const. amend.
IV. “A probationer’s home, like anyone else’s, is protected by the Fourth Amendment's requirement
that searches be ‘reasonable.’” Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). However, the
Supreme Court has made clear that the nature of the relationship between state actors and individuals
subject to state supervision in lieu of or following release from prison alters the relevant analysis
under the Fourth Amendment. The Court’s jurisprudence on the subject has yielded two distinct
doctrinal frameworks, set forth most notably in its opinions in Griffin and United States v. Knights,
534 U.S. 112 (2001).
In Griffin, the Supreme Court assessed the validity of a search conducted pursuant to a state
regulation permitting a warrantless search of a probationer’s home where a probation officer had
“reasonable grounds” to believe that the probationer was in possession of contraband. 483 U.S. at
870-71. The Court concluded that supervision of probationers constituted a “special need” justifying
a comparatively greater intrusion on the privacy of individuals subject to the terms and conditions
of probation. Id. at 875. It deemed the search of the petitioner’s residence reasonable under the
Fourth Amendment “because it was conducted pursuant to a valid regulation governing
probationers,” id. at 880, that is, a regulation that independently satisfied the Fourth Amendment’s
reasonableness requirement, id. at 873.
In Knights, the Court considered the broader question it expressly declined to address in
Griffin: that is, whether a warrantless search of a probationer could be reasonable under the Fourth
Amendment. 534 U.S. at 117-18. Knights involved the propriety of a search taken under the
authority of a probation order allowing the search of a probationer’s “person, property, place of
residence, vehicle, or personal effects” in the absence of a search warrant, arrest warrant, or
reasonable cause. Id. at 114. The Court held that the search of the probationer’s home conducted
by a law enforcement official aware of the condition was reasonable, not under the special needs
doctrine, but in light of the Court’s “general Fourth Amendment approach of examining the ‘totality
of the circumstances’ with the probation search condition being a salient circumstance.” Id. at 118
(internal citation omitted). The Court ruled that the balance of the factors relevant in the totality of
the circumstances analysis – the probationer’s reduced expectation of privacy and the competing
governmental interest in monitoring probationers – led to the conclusion that reasonable suspicion
was sufficient to conduct a search of a probationer’s home. Id. at 121. Thus, under Knights,
“[w]hen an officer has reasonable suspicion that a probationer subject to a search condition is
No. 06-5522 United States v. Herndon Page 5
engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an2
intrusion on the probationer’s significantly diminished privacy interests is reasonable.” Id. at 121.
Griffin and Knights represent two distinct analytical approaches under which a warrantless
probationer search may be excused. See United States v. Freeman, 479 F.3d 743, 746 (10th Cir.
2007) (observing that Griffin and Knights are “two exceptions to the Fourth Amendment’s warrant
requirement in the context of [probationer] searches”). Although Griffin remains a legitimate basis
for justifying such a search, we conclude that it is ill-fitted to the present case. In applying Griffin,
the Sixth Circuit has formulated a two-pronged inquiry that calls for (1) an examination of the
validity of the relevant provision authorizing a search and (2) a determination of whether the search
complied with the applicable provision. United States v. Henry, 429 F.3d 603, 608 (6th Cir. 2005).
Our court has generally tested a search condition’s validity by confirming the presence of a
reasonable suspicion requirement and its consistency with the federal reasonable suspicion standard.
See, e.g., id. at 609 (“Because Kentucky’s probationary search policy incorporates both the quantum
of evidence (i.e., reasonable suspicion) approved in [United States v.] Payne[, 181 F.3d 781 (6th Cir.
1999)] and the breadth (i.e., not just contraband but any probation violation) approved in [United
States v.] Loney[, 331 F.3d 516 (6th Cir. 2003)], we hold that the policy is reasonable under the
Fourth Amendment.”). Here, the Directive authorizing a check of Herndon’s computer and software
included no reasonable suspicion requirement that cabined the authority vested in his probation
officer. Thus, Harrien’s check of Herndon’s computer may not be justified as a special needs search
under Griffin. We nevertheless must consider whether Harrien’s inspection may be validated under
the more general Fourth Amendment totality of the circumstances approach outlined in Knights.
Before proceeding, we pause to note that the object of Harrien’s suspicion – Herndon’s
potential violation of the terms of his probation as opposed to a generally applicable criminal statute
– does not impact the availability of the Knights framework. For the purposes of our Fourth
Amendment inquiry here, a probationer’s violation of the terms of probation is comparable to his
violation of a criminal statute. See Tenn. Code Ann. § 40-35-306 (authorizing a court, in the event
of a probation violation following confinement, to impose a sentence in the local jail or workhouse
or department of correction); Tenn. Code Ann. § 40-35-311(a) (“Whenever it comes to the attention
of the trial judge that any defendant, who has been released upon suspension of sentence, has been
guilty of any breach of the laws of this state or has violated the conditions of probation, the trial
judge shall have the power to cause to be issued under the trial judge’s hand a warrant for the arrest
of the defendant as in any other criminal case.”); see also United States v. McCarty, 82 F.3d 943,
948 (10th Cir. 1996) (“Violation of probation constitutes indirect contempt of court under Wyoming
law and constitutes a crime punishable by imprisonment.”). Moreover, our sister circuits have
consistently applied the Knights regime to searches undertaken to investigate potential violations
of probation or parole. See, e.g., Freeman, 479 F.3d at 748-49 (“To determine whether reasonable
suspicion for suspecting a parole violation exists, we consider the quantity and reliability of the
information possessed by law enforcement and consider this information in light of the totality of
the circumstances.”); United States v. Williams, 417 F.3d 373, 377 (3d Cir. 2005) (ruling that police
officer “reasonably suspected that [defendant] was violating his parole . . . when [third party] told
her that Williams was suspected of having a gun”); United States v. Lifshiftz, 369 F.3d 173, 181 (2d
2
The Court recently extended its Knights holding as it relates to parolees. In Samson v. California, 126 S. Ct.
2193 (2006), the Court considered the constitutionality of a California statute requiring parolees to agree “to be subject
to search or seizure by a parole officer or other peace office at any time of the day or night, with or without a search
warrant and with or without cause.” Id. at 2196 (quoting Cal. Penal Code § 3067(a)). Invoking the “totality of the
circumstances” approach utilized in Knights, the Supreme Court ruled the statute valid, id. at 2196, and concluded that
“the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee,” id. at
2202. It is not yet clear whether courts will apply Samson’s sanction of warrantless and suspicionless searches to
probationers as well as parolees, as the Court in Samson recognized that parolees have a lesser expectation of privacy
than probationers, because parole is more akin to imprisonment. Id. at 2198. The Sixth Circuit has not considered the
question, and its resolution is not necessary to our decision in this case.
No. 06-5522 United States v. Herndon Page 6
Cir. 2004) (“Probationary searches – whether for law enforcement or probationary purposes – are
acceptable under Knights if based upon reasonable suspicion.”).3 Thus, it is irrelevant that Harrien
sought evidence of a probation violation rather than proof that Herndon had engaged in universally
proscribed activity.
Under Knights, a search of a probationer’s property must be tested for reasonableness in light
of the totality of the circumstances “by assessing, on the one hand, the degree to which it intrudes
upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion
of legitimate governmental interests.” Knights, 534 U.S. at 119 (internal quotation marks omitted).
As to the first issue—the reasonableness of Herndon’s expectation and the extent of the privacy
intrusion occasioned by the investigation in the instant case—two facts underscore Herndon’s
significantly reduced privacy interest in the contents of his computer. First, Herndon was subject
to state-ordered probation and cannot reasonably assert the same measure of privacy protection
afforded individuals not subject to state supervision. “To a greater or lesser degree, it is always true
of probationers . . . that they do not enjoy the absolute liberty to which every citizen is entitled, but
only . . . conditional liberty properly dependent on observance of special [probation] restrictions.”
Griffin, 483 U.S. at 874 (internal quotation marks omitted) (brackets in original). In addition, the
specific terms of Herndon’s probation, to which he assented, alerted him to his reduced privacy
expectation. Directive 5 makes clear that Herndon was surrendering to checks of his “computer and
any software at any time for Internet capacity or activity.” This provision authorized Harrien to
check Herndon’s computer for Internet connectivity and activity at any time without restriction,
creating a significant limit on any privacy interest Herndon may have held in the computer. See
Knights, 534 U.S. at 119-20 (“The probation order clearly expressed the search condition and
Knights was unambiguously informed of it. The probation condition thus significantly diminished
Knights’ reasonable expectation of privacy.”). These factors taken together confirm that Herndon
enjoyed a dramatically reduced privacy interest and that Harrien’s intrusion was, thus, relatively less
serious.
Herndon responds that although he consented to certain computer checks, he never agreed
to the degree of intrusion occasioned by Harrien’s check on February 4. He contends that while
Directive 5 allowed the examination of what he describes as “public” spaces on his computer, it did
not permit the inspection of “private” areas, that is, the storage spaces on his computer, including
any external drives. This argument is without merit. The public/private distinction Herndon urges
us to adopt was not present in Directive 5, which provided for checks of Herndon’s “computer and
any software,” without limitation on the inspection of storage spaces to the extent such an inspection
would yield information regarding Herndon’s Internet capabilities and activities. Moreover, the
language of Directive 5 can reasonably be construed to encompass the storage areas on Herndon’s
computer, including any peripheral drives, as the term “computer” is commonly understood to
include the collection of components involved in a computer’s operation. Herndon’s reliance on
United States v. Roark, 36 F.3d 14 (6th Cir. 1994), for support of his position to the contrary is
misplaced. In Roark, the Sixth Circuit held that police officers exceeded the scope of a woman’s
consent to search “her residence” when they proceeded to search a second house located on her
property. Id. at 17. As the government correctly observes, the analogy between a primary residence
and an outbuilding—which are largely independent save their presence on the same plot of land—
and a computer and its external hard drive—one of which is dependent upon the other for its
function—is strained at best. It also bears emphasis that Directive 5 permitted not only checks for
Internet capacity, but also Internet activity. Harrien testified that upon his initial check of the
3
We recognize that in Henry, a panel of this court elected to apply Griffin to a probationer search on the theory
that “the search of [defendant’s] residence was conducted for a probationary purpose – to verify that he was not violating
the residency condition of his probation.” 429 F.3d at 608 n.5. However, Henry recognizes a distinction between
probationary and investigatory searches that is absent from Knights. While we ultimately find no fault in Henry’s
reliance on Griffin, we believe ourselves free to rely on Knights as a ground for justifying Harrien’s inspection.
No. 06-5522 United States v. Herndon Page 7
Internet history, he could not confirm Internet activity on Herndon’s computer and proceeded to
utilize the prescan software. It was not improper for Harrien to check the drives of Herndon’s
computer for materials that one might download via the Internet as a means of ascertaining whether
Herndon had engaged in Internet “activities.”4 Thus, Herndon is incorrect about the meaning of
Directive 5 and the extent to which it affected his privacy interest. At least as to the contents of his
computer, Directive 5 substantially reduced Herndon’s expectation of privacy, making Harrien’s
inspection comparatively less intrusive.
As to the government’s competing interest, the Supreme Court has “repeatedly
acknowledged that a State’s interests in reducing recidivism and thereby promoting reintegration
and positive citizenship among probationers and parolees warrant privacy intrusions that would not
otherwise be tolerated under the Fourth Amendment.” Samson, 126 S. Ct. at 2200. In articulating
the nature of the interest at stake for the government, the Court has placed special emphasis on
probationers’ greater likelihood of committing crimes and the state’s need, as a consequence, to take
special pains to monitor their conduct and prevent any return to criminality. Knights, 534 U.S. at
120 (“The recidivism rate of probationers is significantly higher than the general crime rate.”);
Griffin, 483 U.S. at 875 (observing that goals of rehabilitation and protection of the community both
“require and justify the exercise of supervision to assure that the restrictions are in fact observed”).
The requisite weighing of Herndon’s diminished privacy interest in his computer activities
and the government’s comparatively substantial interest in monitoring probationers’ activities leads
us to the conclusion that Harrien required no more than reasonable suspicion to conduct a check of
Herndon’s computer. Knights, 543 U.S. at 119-21. On this issue, Herndon contends that the
information possessed by Harrien did not provide him with the necessary reasonable suspicion to
conduct a check under Directive 5. The Supreme Court has directed reviewing courts making
reasonable suspicion determinations to consider “the totality of the circumstances of each case to
see whether the detaining officer has a particularized and objective basis for suspecting legal
wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotation marks omitted);
see also Payne, 181 F.3d at 788. “[T]he likelihood of [wrongdoing] need not rise to the level
required for probable cause, and it falls considerably short of satisfying a preponderance of the
evidence standard.” Arvizu, 534 U.S. at 274.
At Herndon’s suppression hearing, Harrien testified that Herndon had informed him that he
was seeking employment using the Internet. According to Harrien, this alerted him to the possibility
that Herndon was violating the terms of his probation by engaging in unauthorized Internet use. As
an initial matter, although Herndon represented at his suppression hearing that he never mentioned
the Internet to Harrien, the district court expressly adopted Harrien’s account of the exchange
between the two men. On appeal, Herndon does not directly challenge this finding as clearly
erroneous, and there is nothing in the record that would warrant such a conclusion. Therefore, we
leave this factual finding undisturbed.
Herndon’s mention of Internet usage in the pursuit of employment provided Harrien with
reasonable suspicion to believe that Herndon was violating his probation. Harrien received the
information concerning Herndon’s computer use from Herndon himself during an in-person meeting,
and Herndon said nothing further that would relieve Harrien’s concerns regarding Herndon’s
possible unauthorized Internet usage. Although Harrien could have elicited further clarifying
information from Herndon concerning his use of the Internet, his failure to do so does not affect the
4
The cases to which Herndon directs our attention, United States v. Balon, 384 F.3d 38 (2d Cir. 2004), and
United States v. Henderson, 416 F.3d 686 (8th Cir. 2005), are factually distinct and offer no assistance in resolving the
matter before us. Balon involved a challenge to the terms of supervised release. 384 F.3d at 41. Henderson considered
whether a search was conducted consistent with the limits of a search warrant. 416 F.3d at 695.
No. 06-5522 United States v. Herndon Page 8
conclusion that his conversation with Herndon on February 4, 2003, provided him with reasonable
suspicion that Herndon had violated Directive 5’s prohibition on home Internet use.
We conclude, therefore, that Harrien engaged in a lawful inspection of Herndon’s computer,
pursuant to his authority under Directive 5.
B.
Herndon argues, alternatively, that even if Harrien did not exceed the boundaries of his
authority under the Sex Offender Directives, the district court should have nevertheless suppressed
the images because they were unlawfully seized by members of the Nashville Police Department.
The government responds that the images were in plain view of the police officers who arrived at
Herndon’s home and that they were therefore free to seize them without a warrant or probable cause.
Under the plain view doctrine, “if police are lawfully in a position from which they view an
object, if its incriminating character is immediately apparent, and if the officers have a lawful right
of access to the object, they may seize it without a warrant.” Minnesota v. Dickerson, 508 U.S. 366,
375 (1993). The government has the burden of proving the legality of a warrantless search. United
States v. Haynes, 301 F.3d 669, 677 (6th Cir. 2002). On appeal, Herndon does not contend that the
police unlawfully entered his home and bedroom but challenges the adequacy of the proof the
government offered at his suppression hearing to demonstrate the applicability of the plain view
exception.
At the suppression hearing, Herndon testified that after Harrien conducted a check of his
computer, Harrien contacted his supervisor and Bernie McAvoy, an assistant district attorney.
McAvoy sent two uniformed police officers to “secure the scene.” Approximately one hour later,
Detectives Kevin Cooley and Grant Carroll arrived. Cooley, who seized the computer and hard
drive, testified as follows concerning his arrival at the Herndon home:
I then went back into the room, which happened to be the residence, and witnessed
the computer. His computer had a screen shot of 12 photos of a prepubescent female
in different sexual positions . . . . And I took a picture of this. I took a picture of the
room, the series of computers and hard drives that were all connected to one another.
He later testified:
Q: When you arrived at the scene and saw the child pornography on Mr. Herndon’s
computer, did you have to manipulate the computer in order to see those? Or were
they visible to you without your having to touch the computer?
A: No. I believe they were visible when I got there. There was [sic] 12 images on
the program that they – George Harrien had used when I got there. I could see all
12 at once. I just took a picture of it with my digital camera, which I used to go
before the – to get his bond set on him later that night, from a commissioner.
Q: So you did not manipulate the computer at all, except to seize it?
A: Correct. After I seized it, all I did was turn it off.
Herndon finds this testimony unsatisfactory on the theory that it fails to account for the activities of
the two unnamed officers who first arrived at the scene and placed him under arrest. Without saying
as much, Herndon implies that the first two officers at the scene may have engaged in unlawful
activities following their arrival.
No. 06-5522 United States v. Herndon Page 9
Although the testimony of the two officers might have been helpful, one can reasonably infer
upon review of the entirety of the record that Cooley discovered the images in plain view. Harrien
testified at the suppression hearing that after completing a scan of Herndon’s external hard drive,
he discovered multiple thumbnail images of child pornography, which were displayed on the screen
of Herndon’s laptop. His account is uncontested. Coupled with Cooley’s testimony concerning
what he observed upon arriving in Herndon’s bedroom, Harrien’s testimony explains how the
images appeared on Herndon’s computer screen and how they became plainly visible to Cooley
who, as he testified, did not take any additional steps to see the pictures.
Herndon’s attempt to rebut this legitimate inference is unavailing. At no point during the
suppression hearing did he suggest that the first two officers to arrive at the scene engaged in
inappropriate handling of his computer prior to Cooley’s arrival. Thus, the only evidence before the
district court and before this court on appeal establishes that the images appeared on Herndon’s
computer screen following Harrien’s lawful inspection, and Cooley observed those images when he
walked into the room. In his attempt to raise suspicion about intervening events, Herndon
misrepresents both the testimony before the district court and its factual findings. Although Herndon
claims that the two unnamed officers took pictures and did “investigative work” while waiting for
Detective Cooley, the transcript of Harrien’s testimony, from which this statement is drawn, makes
reasonably clear that these activities occurred after Cooley’s arrival and that it was likely Cooley
who conducted the relevant investigative work.
Q: And what happened when the officers and detectives arrived?
A: The two officers arrived first. . . . After speaking with me and Officer Burden,
they spoke with Mr. Herndon. They basically were waiting on the detectives to
come in. And from that point, the detectives took over. . . . And I wasn’t much
involved after that. I noticed that they were taking pictures and doing investigative
work.
Indeed, Cooley testified to taking pictures after his arrival, confirming his role in the investigation.
Nor, as Herndon contends, did the district court find that the probation and police officers were
responsible for placing the images in plain view for Detective Cooley. Rather, the district court
concluded that the probation officers and the police officials had witnessed child pornography on
the computer. The district court’s finding is neither clearly erroneous nor suggestive of improper
behavior on the part of the initial officers on the scene.
Herndon cites the Second Circuit’s opinion in United States v. Kiyuyung, 171 F.3d 78 (2d
Cir. 1999), to bolster his challenge to the government’s evidence in his case. In Kiyuyung, two New
York City policemen, Officers Abousamra and Quiles, agreed to allow a woman whom they had
placed under arrest to re-enter her home to use the restroom. Id. at 80. Prior to allowing her to
enter, Abousamra conducted a brief inspection of the home, including a long hallway leading to the
bathroom and the bathroom itself. Id. Abousamra testified at a later suppression hearing that he
observed no contraband during his initial inspection. Id. He further claimed that while the two
officers stood outside the bathroom waiting on the woman, Quiles pointed out a firearm located on
a shelf inside a closet immediately outside the bathroom. Id. The officers later discovered two other
firearms in the same closet. Id. When the officers confronted the woman concerning the guns, she
informed them that they belonged to her boyfriend, who later arrived and confessed to owning the
guns. Id. at 82. The boyfriend, Kiyuyung, was charged with being a felon in possession of a firearm
and subsequently moved to suppress the guns. Id. The district court denied that motion, citing the
plain view doctrine. Id. Kiyuyung was convicted following a bench trial and later appealed. Id. at
82-83. In a unanimous decision, the Second Circuit ruled that the government had failed to carry its
burden of showing the applicability of the plain view doctrine, id. at 83, noting that Quiles, who had
No. 06-5522 United States v. Herndon Page 10
originally discovered the guns, did not testify at the suppression hearing and, thus, had not
confirmed that he actually saw the guns in plain view. Id. at 84.
Kiyuyung is distinguishable from the present case. The record before us is uncluttered by
the inconsistencies that likely undermined the government’s position in Kiyuyung. There, the court
noted that Abousamra had offered conflicting testimony concerning when he first saw the guns, first
asserting during his grand jury testimony that he had seen the guns during his initial inspection, and
later stating that Quiles saw the guns first. Id. at 81. No such discrepancies are present here.
Further, in Kikuyung, there were serious questions about how the guns became apparent to the two
officers. Abousamra was unable to recall whether the closet in which the guns were found had
doors, how those doors opened, or whether the doors were open or shut when the officers discovered
the guns. Id. at 84. The court expressed surprise over Abousamra’s inability to relate such pertinent
details, and this failure was relevant to its conclusion regarding the government’s failure to satisfy
its burden of proof. Id. (noting that Abousamra “did not testify that the closet doors were open
before Branch entered the bathroom, did not testify that Quiles said the closet doors were open, and
did not even venture to ascribe to Quiles a conclusory statement that the first gun had been in plain
view”). Here, however, Harrien offered unequivocal and uncontested testimony describing how the
pornographic images appeared on Herndon’s computer screen. Although Herndon implies that
something untoward may have occurred after Harrien’s inspection, this speculation alone is
insufficient to undermine the government’s proof that Cooley discovered the images in plain view
when he entered Herndon’s room.
III.
We accordingly affirm the district court’s denial of Herndon’s motion to suppress.