United States v. Alfred Botta

FILED
NOT FOR PUBLICATION DEC 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50616
Plaintiff - Appellee, D.C. No. CR 08-515-GW
v.
MEMORANDUM *
ALFRED BOTTA,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted November 2, 2010
Pasadena, California
Before: SCHROEDER and TALLMAN, Circuit Judges, and JARVEY, District
Judge.**
Defendant Alfred Botta conditionally pled guilty to one count of possession of
child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), while preserving his
ability to appeal from the denial of his motion to suppress evidence. Botta contends
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable John A. Jarvey, United States District Judge for the
Southern District of Iowa, sitting by designation.
that the police failed to comply with search warrant protocol that required an initial
on-site review of his computer equipment and storage devices to determine whether
they contained material depicting child pornography.
The district court did not err in denying the motion to suppress as it relates to
the search of the computer. The search warrant protocol required an initial on-site
review of computer equipment only if the review could be conducted in a reasonable
amount of time and without jeopardizing the ability to preserve data as a condition to
the seizure of the equipment. United States v. Adjani, 452 F.3d 1140, 1149–50 (9th
Cir.), cert. denied, 549 U.S. 1025 (2006) (an on-site review is not always required).
The computer forensic officer brought the equipment necessary for a typical on-site
search but determined that an on-site search at Botta’s residence would take an
unreasonable amount of time. United States v. Hill, 459 F.3d 966, 975 (9th Cir.
2006), cert. denied, 549 U.S. 1299 (2007) (on-site searches of personal computers are
not always possible). Because the computer was unusually sophisticated and required
additional “write block” equipment, the officer’s decision to seize Botta’s computer
and conduct an off-site search was reasonable and complied with the warrant protocol.
See, e.g., United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1171–72
(9th Cir. 2010) (en banc) (per curiam) (finding no error in agent’s determination that
computer directory could not be searched and segregated on-site).
2
The seizure of the CDs was also proper, and the district court did not err in
denying the motion to suppress on that ground. Botta returned to his home during the
search and told the officer that the CDs contained child pornography. An initial
review was no longer necessary following that admission. Also, the seizure did not
violate the search warrant protocol because an on-site search of more than seventy
CDs would have taken an unreasonable amount of time. Adjani, 452 F.3d at 1149–50.
AFFIRMED.
3