USA v. Eric Bradley

Filing

OPINION filed : we AFFIRM the district court's judgment, decision not for publication pursuant to local rule 206. Eugene E. Siler , Jr., Circuit Judge; Martha Craig Daughtrey, Circuit Judge, authoring and Helene N. White, Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0720n.06
No. 11-5198
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ERIC J. BRADLEY,
Defendant-Appellant.

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Jul 05, 2012
LEONARD GREEN, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF KENTUCKY

Before: SILER, DAUGHTREY, and WHITE, Circuit Judges.

MARTHA CRAIG DAUGHTREY, Circuit Judge. Defendant Eric J. Bradley pleaded
guilty to a charge of receiving visual depictions of minors engaged in sexually explicit
conduct, in violation of 18 U.S.C. § 2252(a)(2), while reserving the right to appeal the
district court’s denial of his motion to suppress evidence obtained from his personal laptop
computer. Specifically, Bradley contends that the police violated the Fourth Amendment
when they seized the laptop without a warrant, without his consent, and in the absence of
exigent circumstances. Because the district court did not clearly err when it determined
that exigent circumstances existed, and because the manner and duration of the execution
of the warrantless seizure was reasonable, we affirm the district court’s denial of Bradley’s
motion to suppress.

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FACTUAL AND PROCEDURAL BACKGROUND

The evidence supporting the decision to deny Bradley’s motion to suppress was
summarized by the district court as follows:

This case arises from an investigation of the trading of child pornography
online through Gnutella, a free, internet-based file sharing network. In
October 2008, Attorney General Investigator Bell conducted an undercover
investigation that targeted internet protocol (“IP”) addresses that displayed
hash values, commonly described as digital fingerprints, of known or
suspected child pornography.
During the course of his investigation, Investigator Bell determined that a
specific IP address in Fayette County had been observed displaying file
names and hash values consistent with known or suspected child
pornography, and that this IP address was assigned to a fire station located
at 1098 South Cleveland Road in Lexington, Kentucky. After several
unsuccessful attempts to connect to the publicly shared LimeWire folder of
that computer, Bell filed an open records request with the Lexington Fire
Department in an effort to match the dates he observed the computer
running in LimeWire and displaying child pornography to the dates and shifts
of any employees assigned to the fire station. He determined that all dates
coincided with one specific crew assigned to the fire station.
Based on information from the Fire Department's Division of Internal Affairs,
Investigator Bell and Attorney General Investigator Kathryn Reed traveled to
the fire station on June 30, 2009. Following their arrival, Bell obtained a
consent form from the defendant, Eric J. Bradley, to load an image scan onto
his computer in order to access any child pornography that might have been
present. For reasons unknown, the program was unable to load, and
Investigator Bell was not able to view any images of child pornography.
Investigator Bell then asked for Bradley's permission to examine his
LimeWire.props file. Bradley verbally consented to that request and provided
Investigator Bell with his password to access the data. After reviewing that
section, Investigator Bell found the Globally Unique Identifier (“GUID”), which
had been previously associated with downloading suspected child
pornography files. Investigator Bell then asked to speak to Bradley privately.
They went to another room at the station, and during their subsequent
conversation, which occurred at approximately 2:30 p.m., Investigator Bell
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advised Bradley that he was seizing Bradley's computer and applying for a
search warrant. Investigator Bell explained that the matching GUID indicated
that the computer had displayed known child pornography images over the
internet. Bradley denied any knowledge of child pornography on the
computer and stated that he was the sole user of the computer with the
exception of his fourteen-year old son, and that he did not have internet
service at his home.

United States v. Bradley, No. 09-136-JBC, 2010 WL 2471885, at *1-*2 (E.D. Ky. June 16,
2010) (footnote omitted). Bell made no attempt to obtain a search warrant for the seized
computer that afternoon. Instead, he applied for and received a state search warrant for
the computer the next day. The forensic examination of the laptop “revealed approximately
50 videos and over 100 photographs containing suspected child pornography.” Bradley,
2010 WL 2471885, at *2.

Bradley moved the district court to suppress all evidence obtained from the laptop
computer, arguing that Bell had seized his computer without obtaining a search warrant
and without Bradley’s consent and that no exception to the warrant requirement applied.
The district court made three findings. First, the district judge concluded that Bell had
probable cause to believe that Bradley’s computer held child pornography, based on the
matching GUID numbers and Bradley’s statement that only he and his 14-year-old son had
access to the computer. Id. Second, the district court found that “Bell’s concern that
Bradley would destroy the computer and/or any evidence it contained constituted exigent
circumstances.” Id. at *3. Finally, the district court determined that the warrantless seizure
of the laptop was “sufficiently limited in scope and timing” that the approximately 26-hour
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delay was not unreasonable. Id. at *4. Based on these findings, the district court found
the warrantless seizure reasonable and denied Bradley’s motion to suppress. Id.

DISCUSSION

The Fourth Amendment to the United States Constitution protects the people
"against unreasonable searches and seizures.” U.S. CONST . amend. IV. A seizure of
personal property is “per se unreasonable . . . unless it is accomplished pursuant to a
judicial warrant issued upon probable cause and particularly describing the items to be
seized.” United States v. Place, 462 U.S. 696, 701 (1983). If law enforcement authorities
have probable cause to believe a container holds evidence of a crime and the “exigencies
of the circumstances demand it,” seizure of the container pending issuance of a warrant
to examine the contents is permitted. Id. (citing cases). However, "a seizure lawful at its
inception can nevertheless violate the Fourth Amendment because its manner of execution
unreasonably infringes possessory interests protected by the Fourth Amendment's
prohibition on unreasonable seizures.” United States v. Jacobsen, 466 U.S. 109, 124
(1984) (internal quotations omitted). The government has the burden of proving the legality
of a warrantless search. United States v. Beal, 810 F.2d 574, 577 (6th Cir. 1987) (citing
United States v. Matlock, 415 U.S. 164, 177 (1974)).

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Bradley has never challenged the district court’s finding that there was probable
cause to believe that his laptop contained evidence of child pornography.1 Thus, the only
issues before us are whether exigent circumstances justified the warrantless seizure of
Bradley’s laptop and whether the manner and duration of the execution of the warrantless
seizure were reasonable.

Exigent Circumstances

We review a district court’s legal conclusion as to exigency de novo, but will disturb
a district court’s factual findings on the existence of exigent circumstances only if they are
clearly erroneous. United States v. Gaitan-Acevedo, 148 F.3d 577, 585 (6th Cir. 1998).
A finding is clearly erroneous if we are left with the “definite and firm conviction that a
mistake has been committed” after viewing the entirety of the evidence. United States v.
Wheaton, 517 F.3d 350, 367 (6th Cir. 2008) (quoting United States v. Darwich, 337 F.3d.
645, 663 (6th Cir. 2003)).

In reviewing the district court’s findings that sufficient exigent circumstances existed
to justify a warrantless seizure, we consider the “totality of the circumstances and the
inherent necessities of the situation.” Brooks v. Rothe, 577 F.3d 701, 708 (6th Cir. 2009)
(citing United States v. Rohrig, 98 F.3d 1506, 1511 (6th Cir. 1996)). “The inquiry focuses
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In addition, we note that “because the officer[] obtained no new investigatory inform ation between
the tim e of the seizure and the tim e [he] applied for the search warrant, if there was probable cause to search
the [laptop], there was ipso facto probable cause to seize the [laptop].” United States v. Respress, 9 F.3d 483,
486 (6th Cir. 1993). Bell testified that he obtained no relevant inform ation in between the seizure of the
com puter and his subm ission of the application for a search warrant the next day.

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not on an officer’s subjective intentions, but on whether an objectively reasonable officer
could have believed that exigent circumstances existed.” Brooks, 577 F.3d at 708 (citing
O’Brien v. City of Grand Rapids, 23 F.3d 990, 999 (6th Cir. 1994)).

One of the recognized situations that may justify acting without a warrant is an
“urgent need to prevent evidence from being lost or destroyed.”
Sangineto-Miranda, 859 F.2d 1501, 1511 (6th Cir. 1988).

United States v.

To establish exigent

circumstances under this exception, the government must first show “an objectively
reasonable basis for concluding that the loss or destruction of evidence is imminent.” Id. at
1512. Second, we must “balance the interests by weighing the governmental interest
being served by the intrusion against the individual interest that would be protected if a
warrant were required.” United States v. Plavcak, 411 F.3d 655, 664 (6th Cir. 2005).

Thus, we first evaluate whether Bell had an objectively reasonable basis for
concluding that the evidence of child pornography on the laptop would be destroyed if the
computer was not seized immediately, pending application for a search warrant. The
district court relied on the fact that Bell informed Bradley of the substance of his
investigation and that Bradley’s laptop contained the identifying marker the police were
tracking. Bradley, 2010 WL 2471885, at *3. At the suppression hearing, Bell testified:

Mr. Bradley and I discussed why I was there; that the software IP had
matched what I had already had in my possession, that the investigation
concerned child pornography. If I left the computer there, there was a good
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chance or a probable chance that the hard drive could have been destroyed,
tampered with, erased, and any evidence on it could have been destroyed.
Bradley now argues that Bell’s fears were “completely speculative” and encourages
us to adopt a rule requiring “independent objective evidence” that a defendant has an
“imminent intent” to destroy evidence. However, we have already established that the
appropriate inquiry when evaluating exigent circumstances is to consider the totality of the
circumstances, Plavcak, 411 F.3d at 663, an inquiry that is at odds with a bright-line
evidentiary requirement. Cf. United States v. Canipe, 569 F.3d 597, 601 (6th Cir. 2009)
(noting that reasonableness of length of detention during traffic stop is not subject to a
bright-line rule but focuses on the totality of the circumstances); United States v. Luqman,
522 F.3d 613, 616 (6th Cir. 2008) (observing that reasonable suspicion is judged by totality
of the circumstances, not by bright-line rules).

We cannot say that the district court’s determination that Bell reasonably feared
Bradley would attempt to destroy the laptop or evidence on the laptop was clearly
erroneous. Courts have doubted the wisdom of leaving the owner of easily-destructible
contraband in possession of that contraband once the owner is aware that lawenforcement agents are seeking a search warrant. See Illinois v. McArthur, 531 U.S. 326,
332 (2001) (finding it reasonable for law enforcement to conclude that defendant
suspecting an imminent search “would, if given the chance,” get rid of contraband quickly).
Had Bell left the laptop in Bradley’s possession, Bradley could have attempted to destroy
any computer files or the laptop itself. We agree with the district court below that it is
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objectively reasonable to seize a container an officer has probable cause to believe
contains evidence of a crime, rather than leave it unguarded in the hands of a suspect who
knows that it will be searched.

Having determined that Bell’s imminent fear that evidence would be destroyed was
objectively reasonable, we next weigh the governmental interest being served by the
intrusion against the individual’s interest protected by requiring a warrant. Plavcak, 411
F.3d at 664. First, we recognize that courts are still struggling to conceptualize Fourth
Amendment jurisprudence as applied to computers and the variety of interests implicated
by seizures and searches of personal electronics. Some have analogized computers to
closed containers. See, e.g., United States v. Al-Marri, 230 F.Supp.2d 535, 541 (S.D.N.Y.
2002). However, owners often have more interest in their computers than they have in
traditional closed containers like suitcases or trunks. A laptop is “likely to contain . . . noncontraband information of exceptional value to its owner.” United States v. Mitchell, 565
F.3d 1347, 1351 (11th Cir. 2009); see also id. at 1352 (describing hard drive as the “digital
equivalent of its owner’s home, capable of holding a universe of private information”)
(citation omitted). But see United States v. Arnold, 533 F.3d 1003, 1010 (9th Cir. 2008)
(“[C]ase law does not support a finding that a search which occurs in an otherwise ordinary
manner, is ‘particularly offensive’ simply due to the storage capacity of the object being
searched.”) (citation omitted). In addition, we consider the fact that the governmental
interest in protecting evidence from destruction is particularly high where digital evidence

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is involved, because such evidence is inherently ephemeral and easily destructible. See
United States v. Abbell, 963 F.Supp. 1178, 1199 (S.D. Fla. 1997) (noting that “computer
evidence is particularly vulnerable . . . to tampering or destruction through error”). Thus,
we note that, although there are strong personal interests that demand caution by police
in seizing personal computers, the government’s interest in preventing the destruction of
evidence is equally strong when electronic evidence is at issue.

Second, we note that the government’s interest in deterring the production and
dissemination of child pornography is significant. See United States v. Moore, 916 F.2d
1131, 1139 (6th Cir. 1990) (“The Government maintains an extremely important interest
in preventing the spread of child pornography and child sexual abuse.”).

Finally, because Bell seized Bradley’s computer but did not search it until he had
acquired a search warrant, the initial seizure affected only Bradley’s possessory interest
in the laptop and did not implicate a privacy interest. See Segura v. United States, 468
U.S. 796, 810 (1984). Courts have considered this lesser interference as a factor when
upholding warrantless seizures. See Mitchell, 565 F.3d at 1350 (finding that seizure of
computer “to ensure that the hard drive was not tampered with before a warrant was
obtained” was an interference with defendant’s possessory interest); United States v.
Licata, 761 F.2d 537, 541 (9th Cir. 1985) (“A seizure of a closed container affects only the
owner’s possessory interests and not the privacy interests vested in the contents.”) (citation
omitted). In addition, the district court correctly noted that, unlike luggage-seizure cases,
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no liberty interest was impinged by the seizure of Bradley’s laptop. See United States v.
Martin, 157 F.3d 46, 54 (2d Cir. 1998) (noting that seizure was more reasonable when “not
a case where seizure of property would effectively restrain the liberty interests of the
person from whom the property was seized, as is the case where officers seize a traveler’s
luggage and thereby cause disruption of his travel plans”) (internal quotations and citation
omitted); United States v. LaFrance, 879 F.2d 1, 8 (1st Cir. 1989) (in discussing Place
factors, noting that “common sense insists that they be used more circumspectly, and
weighed somewhat differently, where no liberty interest looms”). Thus, although the Fourth
Amendment protects individuals from unreasonable interference with their possessory
interests, in deciding what is reasonable, interference with possessory interests may well
be less significant that interference with other rights.

In sum, considering the brief nature of the intrusion into Bradley’s possessory
interest and the fragility of electronic evidence, as well as the government’s significant
interest in curbing the spread of child pornography, we conclude that the government has
established that its interests outweighed the individual interest at issue. Because the
district court did not err when it found objectively reasonable Bell’s conclusion that leaving
the laptop with Bradley risked the imminent destruction of evidence, the balance of the
interests justified the government’s need to seize the laptop without a warrant. Hence, we
agree with the district court’s determination that exigent circumstances – together with

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probable cause to believe that the laptop contained evidence of a crime – justified a
warrantless seizure.

Reasonable Execution of Seizure

Though the government met its burden by establishing that exigent circumstances
existed to justify a warrantless seizure, "a seizure lawful at its inception can nevertheless
violate the Fourth Amendment because its manner of execution unreasonably infringes
possessory interests protected by the Fourth Amendment's prohibition on unreasonable
seizures.” Jacobsen, 466 U.S. at 124 (internal quotations omitted). Thus, we look at the
totality of the circumstances to determine whether it was reasonable for Bell to seize the
laptop immediately, rather than leave Agent Reed at the scene to observe Bradley’s
actions while he sought a search warrant, and then wait until the next day to apply for a
search warrant, thereby depriving Bradley of his laptop overnight.

See Georgia v.

Randolph, 547 U.S. 103, 125 (2006) (“[T]his Court has continuously emphasized that
‘reasonableness . . . is measured . . . by examining the totality of the circumstances.”)
(Breyer, J., concurring) (citing Ohio v. Robinette, 519 U.S. 33, 39 (1996)).

Bradley insists that the seizure was unreasonable in scope because another law
enforcement officer, Agent Reed, was present and could have stayed at the firehouse “to
secure the premises and/or the computer while the search warrant was obtained” in order
to prevent any tampering with the computer or destruction of evidence. But, if Agent Reed
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had remained on the premises to prevent Bradley from interfering with the computer, that,
too, would have implicated Fourth Amendment concerns. Segura, 468 U.S. at 809
(upholding the “temporary securing of a dwelling to prevent the removal or destruction of
evidence”).

Moreover, the practicability of procuring a warrant, although not determinative, is still
“a circumstance to be considered.” Niro v. United States, 388 F.2d 535, 539 (1st Cir.
1968). Bradley cites to various cases that found a warrantless search or seizure unjustified
because there was time for law enforcement officials to obtain a warrant. However, these
cases address the inverse relationship between the availability of a warrant and the very
existence of exigent circumstances. See, e.g., United States v. Johnson, 22 F.3d 674, 680
(6th Cir. 1994) (finding that exigent circumstances did not justify seizure of firearms
because police had ample time to secure premises and obtain search warrant once victim
was freed); United States v. Lynch, 934 F.2d 1226, 1233 (11th Cir. 1991) (rejecting as an
exigent circumstance the assumption by police that suspects would grow suspicious and
destroy evidence if they didn’t hear from co-conspirators, when the police had “ample time
and opportunity” to obtain warrant).

In this case, exigent circumstances justified a

warrantless seizure, but the cases on which Bradley relies do not help us determine
whether the method of seizure chosen by Bell was reasonable.

The record does not include an explanation for Bell’s failure to seek a warrant
immediately. He indicated that he “probably” could have gotten access to a prosecutor the
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same afternoon, but admitted that he had made no effort to contact anyone regarding an
application for a warrant until the next day. Obviously, the better practice would have been
to seek review sooner rather than later. See United States v. McEachin, 670 F.2d 1139,
1146 (D.C. Cir. 1981) (“We are . . . troubled, however, by Officer Oldham's apparent
ignorance of the procedure for obtaining a telephonic warrant and by the Government's
failure to introduce any evidence on the availability of such a warrant in this case.”).
Nevertheless, the Fourth Amendment does not require officers to engage in the least
intrusive search or seizure. As the Supreme Court observed in United States v. Sharpe,
470 U.S. 675 (1985):

A creative judge engaged in post hoc evaluation of police conduct can
almost always imagine some alternative means by which the objectives of
the police might have been accomplished. But the fact that the protection of
the public might, in the abstract, have been accomplished by less intrusive
means does not, itself, render the search unreasonable. The question is not
simply whether some other alternative was available, but whether the police
acted unreasonably in failing to recognize or to pursue it.

Id. at 686-87 (internal quotations and citations omitted). Although in hindsight we could
recognize that the better path was to seek a warrant immediately, leaving an officer behind
to prevent damage to the laptop or the evidence it contained, we cannot say that Bell was
unreasonable in choosing to seize the laptop.

Our second inquiry into the reasonableness of the seizure is the length of time an
object is seized. LaFrance, 879 F.2d at 6 (“[T]hough the duration of a detention is an

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important consideration in evaluating the intrusiveness of a package's determent, it is
neither the mirror image of unreasonableness nor the yardstick against which the suitability
of police procedures must inevitably be measured.”). The duration of the warrantless
seizure in this case was approximately 26 hours. Seizures of this length have been
upheld, particularly when the interest in question is possessory, as compared to a privacy
or liberty interest. United States v. Van Leeuwen, 397 U.S. 249, 253 (1970) (upholding 29hour detention of mailed package given unavoidable delay in obtaining warrant and
minimal nature of intrusion); United States v. Mayomi, 873 F.2d 1049, 1054 (7th Cir. 1989)
(upholding 48-hour detention of mailed packages, noting that privacy interest was not
prematurely disturbed); Martin, 157 F.3d at 54 (upholding 11-day seizure given delays in
ability to acquire warrant, the relinquishing of the container to the third-party United Parcel
Service, and the interests at issue). As the Second Circuit observed in Martin, “[W]hile we
would normally expect police officers to secure a search warrant in considerably less time
than was taken here, under the particular circumstances present here, we can not say that
the delay in securing the . . . warrant was so ‘unreasonable’ as to violate the Fourth
Amendment.” Id.

In addition, given the totality of the circumstances, it does not appear that Bell
lacked diligence in applying for the search warrant within a reasonable time. See Sharpe,
470 U.S. at 687 (“Respondents presented no evidence that the officers were dilatory in
their investigation.”). There was no possibility of securing a warrant in advance. Before
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going to the firehouse, the investigating officers suspected that someone who was
assigned to the particular shift was involved in downloading child pornography, but they did
not know which individual would be implicated, and they could not have known that Bradley
would be present or that he would have his laptop with him. Nor could Bell have predicted
that the standard image-scan program would not function and that Bradley would then
consent to let Bell check the GUID, or that the GUID would match the one he was seeking.
Moreover, the application for a warrant that Bell secured is over ten pages long and
extensively detailed.

Given these circumstances, we cannot say that Bell acted

unreasonably in applying for the search warrant the next day.

Our decision in Respress supports this conclusion. There, we noted that the
practice of seizing an item based on probable cause in order to obtain a search warrant
had long been approved. 9 F.3d at 486 (citing cases). We then turned to the issue of
whether the duration of the seizure pending the issuance of a search warrant was
reasonable. We noted that “the time between the seizure of the suitcase and the issuance
of the warrant was approximately ten hours, and, given the time of day, this was not an
unreasonable length of time for preparing an affidavit, submitting it to a magistrate, having
it reviewed, and getting the warrant issued.” Id. at 488. Although the seizure here was
longer, the intricacies of the warrant application, as well as the fact that Bell could not have
known in advance that the laptop he was seeking would be present at the firehouse that
afternoon, justified his decision not to pursue a search warrant so late in the day. As a

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result, we uphold the district court’s determination that the 26-hour delay was not
unreasonable.

CONCLUSION

For the reasons set out above, we AFFIRM the district court’s judgment.

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