United States v. Joseph Schesso

Filing

FILED OPINION (RONALD LEE GILMAN, M. MARGARET MCKEOWN and SANDRA S. IKUTA) REVERSED. Judge: MMM Authoring, FILED AND ENTERED JUDGMENT. [8787247]

Case: 11-30311

09/18/2013

ID: 8787247

DktEntry: 33-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

No. 11-30311

v.

D.C. No.
3:11-cr-05285-RJB-1

JOSEPH T. SCHESSO,
Defendant-Appellee.

OPINION

Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, Senior District Judge, Presiding
Argued and Submitted
June 6, 2013—Seattle, Washington
Filed September 18, 2013
Before: Ronald Lee Gilman,* M. Margaret McKeown,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge McKeown

*

The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.

Page: 1 of 21

Case: 11-30311

2

09/18/2013

ID: 8787247

DktEntry: 33-1

UNITED STATES V. SCHESSO
SUMMARY**

Criminal Law
The panel reversed the district court’s grant of a
suppression motion in a case in which officers found 3,400
electronic images and 632 electronic videos of commercial
child pornography pursuant to a warrant authorizing an
electronic search of all of the defendant’s computer
equipment and digital storage devices.
The panel held that because there was a fair probability
that evidence of child pornography would be found on the
defendant’s computer system, the underlying facts supported
a finding of probable cause; that the warrant was not
overbroad and did not raise the risks inherent in over-seizing
that this court considered in United States v. Comprehensive
Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010) (en banc)
(per curiam); and that the absence of precautionary search
protocols was not fatal here.

COUNSEL
Helen J. Brunner (argued), Assistant United States Attorney,
Jenny A. Durkan, United States Attorney, Office of the
United States Attorney, Seattle, Washington, for PlaintiffAppellant.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

Page: 2 of 21

Case: 11-30311

09/18/2013

ID: 8787247

DktEntry: 33-1

UNITED STATES V. SCHESSO

Page: 3 of 21

3

Colin A. Feiman (argued), Assistant Federal Public Defender,
Alan Zarky, Research & Writing Attorney, Federal Public
Defender, Tacoma, Washington, for Defendant-Appellee.

OPINION
McKEOWN, Circuit Judge:
Searches of electronic records pose unique challenges for
“striking the right balance between the government’s interest
in law enforcement and the right of individuals to be free
from unreasonable searches and seizures.” United States v.
Comprehensive Drug Testing, Inc. (“CDT III”), 621 F.3d
1162, 1177 (9th Cir. 2010) (en banc) (per curiam). This is a
recurring theme in our decisions. See, e.g., United States v.
Cotterman, 709 F.3d 952, 957 (9th Cir. 2013) (en banc)
(highlighting “individual privacy interests in data on portable
digital devices” as one basis for requiring the government to
have reasonable suspicion for the forensic examination of a
laptop). Because electronic devices could contain vast
quantities of intermingled information, raising the risks
inherent in over-seizing data, CDT III, 621 F.3d at 1177, law
enforcement and judicial officers must be especially
cognizant of privacy risks when drafting and executing search
warrants for electronic evidence. We addressed this issue in
CDT III, where we considered “the reality that over-seizing
is an inherent part of the electronic search process,” and held
that this “reality” called for judicial officers to exercise
“greater vigilance” in protecting against the danger that the
process of identifying seizable electronic evidence could
become a vehicle for the government to gain access to a
larger pool of data that it has no probable cause to collect. Id.
CDT III amended an earlier pending en banc decision that

Case: 11-30311

4

09/18/2013

ID: 8787247

DktEntry: 33-1

UNITED STATES V. SCHESSO

was issued a year before in 2009. United States v.
Comprehensive Drug Testing, Inc. (“CDT II”), 579 F.3d 989
(9th Cir. 2009) (en banc) (revised and superseded by CDT
III). Our case, involving a search conducted in June 2010,
falls in the twilight zone between those two decisions.
We now consider the implications of CDT III for Joseph
Schesso, at whose residence law enforcement officers found
3,400 electronic images and 632 electronic videos of
commercial child pornography pursuant to a warrant
authorizing an electronic search of all of Schesso’s computer
equipment and digital storage devices. Because there was a
fair probability that evidence of child pornography would be
found on Schesso’s computer system, the underlying facts
supported a finding of probable cause. The warrant was not
overbroad and did not raise the risks inherent in over-seizing
that we considered in CDT III. The absence of precautionary
search protocols, suggested as guidance in the plurality’s
concurring opinion in CDT III, was not fatal here. We
therefore reverse the district court’s grant of the motion to
suppress.
BACKGROUND
In the fall of 2008, German authorities conducted an
investigation into the online distribution of child pornography
over a decentralized peer-to-peer file-sharing network known
as “eDonkey.” The network allows users to share files over
the Internet by connecting directly to each other’s computers.
The investigation revealed, and later examination confirmed,
that during a four-hour period in October 2008, an 18-minute
child pornography video was made available for download
over eDonkey by someone using an Internet Protocol (“IP”)
address—a unique, electronic numeric label linked to a

Page: 4 of 21

Case: 11-30311

09/18/2013

ID: 8787247

DktEntry: 33-1

UNITED STATES V. SCHESSO

Page: 5 of 21

5

specific device—located in the United States. German
authorities advised Immigration and Customs Enforcement
(“ICE”) of this evidence and ICE Special Agent Julie Peay
determined that the IP address was assigned to Schesso at his
Vancouver, Washington, residence.
Detective Patrick Kennedy and Senior Digital Forensics
Investigator Maggi Holbrook of the Vancouver Police
Department assumed leadership of the investigation because
the state had an independent interest in the crimes under
investigation. Detective Kennedy, the case agent, prepared
an affidavit supporting a warrant application to search
Schesso’s residence and seize evidence of violations of
Washington statutes prohibiting possession of and dealing in
child pornography. The application described the storage
capacity of computers, the use of the Internet to distribute
child pornography, the operation of peer-to-peer networks,
and the known characteristics of child pornography
collectors, such as their tendency to conceal sexually explicit
images of children from discovery and to retain them
indefinitely. The application further explained that due to the
volume of evidence, the vulnerability of digital data, and the
technical equipment and expertise needed to search digital
devices, it would be necessary to remove the devices from the
residence and conduct analysis and recovery of data off-site
in a controlled laboratory environment.
A Washington state court judge approved the warrant in
June 2010. The warrant noted that there was probable cause
to search for evidence of dealing in and possession of child
pornography, and authorized a search of Schesso’s residence
for “[a]ny computer or electronic equipment or digital data
storage devices that are capable of being used” for those
violations. The warrant permitted seized items to be

Case: 11-30311

6

09/18/2013

ID: 8787247

DktEntry: 33-1

UNITED STATES V. SCHESSO

transferred to the Vancouver Police Department Digital
Evidence Cybercrime Unit or to any qualified law
enforcement digital evidence processing lab for examination,
analysis, and recovery of data. The warrant did not contain
any protocols for sifting through the data or any provision for
the return of non-evidentiary property.
Officers from the Vancouver Police Department and ICE
Agent Peay executed the warrant on the same day. The
officers entered the residence when no one was home.
Schesso and his wife arrived within an hour. Though not
under arrest, Schesso consented to an interview after waiving
his rights under Miranda v. Arizona, 384 U.S. 486 (1966),
and admitted to viewing child pornography on and off for
several years as well as to using eDonkey and other peer-topeer software to download child pornography. Schesso
estimated he had between 100 and 500 videos and between
500 and 1,000 images of child pornography, an estimate that
he raised to 10,000 images at a follow-up interview the next
day. Schesso’s wife also called Detective Kennedy on the
evening of the search to inform him that she had learned that
her niece had been touched sexually by Schesso about five
years earlier.
The first search of Schesso’s home resulted in the seizure
of multiple pieces of electronic media and data storage
devices pursuant to the terms of the warrant, including a
custom-built computer tower and external storage devices
such as camera memory cards. The forensic examination of
these devices, conducted by Investigator Holbrook, revealed
3,400 images and 632 videos of commercial child
pornography, including the video that German authorities
determined had been shared over eDonkey. Analysis of a
camera memory card also uncovered six deleted sexually

Page: 6 of 21

Case: 11-30311

09/18/2013

ID: 8787247

DktEntry: 33-1

UNITED STATES V. SCHESSO

Page: 7 of 21

7

explicit images of a young girl, later identified as Schesso’s
niece. Schesso’s wife identified the couch and blanket
depicted in those images as items in her home, and a second
state search warrant was obtained to seize the blanket and a
fabric sample from the couch. Investigator Holbrook halted
her computer examination before completion because
sufficient evidence had been found for prosecution and other
cases required her attention.
The case was accepted for federal prosecution and
Schesso was charged with production, distribution, receipt,
and possession of child pornography in violation of 18 U.S.C.
§§ 2251 and 2252A.1 Schesso moved to suppress all
evidence seized from his residence, as well as his inculpatory
statements and the items seized during the execution of the
second warrant, as fruits of the allegedly illegal first search.
Schesso’s motion focused on the procedural safeguards under
CDT III and the staleness of the warrant. Except as to the
camera memory cards, he did not challenge probable cause.
His motion acknowledged that “[t]he information in the
application, if it had been timely, would have provided a basis
for seizing Mr. Schesso’s personal computers and related
storage devices.”
The district court initially granted the suppression motion
as to all evidence seized pursuant to the two searches, but not
as to Schesso’s inculpatory statements. Schesso was
unsuccessful in his arguments that the warrant was invalid
due to staleness and that the government had acted in bad
faith by seeking the warrant from a state judge rather than a
federal judge. Nevertheless, the district court concluded that
1

Later, Schesso was also charged with child molestation in violation of
Revised Code of Washington § 9A.33.083.

Case: 11-30311

8

09/18/2013

ID: 8787247

DktEntry: 33-1

UNITED STATES V. SCHESSO

the affidavit failed to connect generalized statements about
child pornography collectors to Schesso, thus rendering the
warrant facially deficient and the good faith exception
inapplicable.
The district court later issued a supplemental
memorandum opinion that granted the suppression motion as
to all evidence seized during both searches and as to
Schesso’s inculpatory statements. Although the oral ruling
and earlier order expressed that the government did not
engage in the type of “deliberate overreaching” that United
States v. Tamura, 694 F.2d 591 (9th Cir. 1982), and CDT III
intended to prevent, the opinion emphasized that the warrant
application failed to include any of the protocols for
searching electronic records suggested by the concurring
opinion in CDT III. The court rejected the good faith
exception to the exclusionary rule on the ground that “the
overturned warrant is so facially deficient that reliance on it
is not reasonable.”
The government now appeals the district court’s
suppression ruling. Schesso’s trial is stayed pending this
interlocutory appeal. We review de novo the district court’s
grant of a motion to suppress and its application of the good
faith exception to the exclusionary rule. United States v.
Maddox, 614 F.3d 1046, 1048 (9th Cir. 2010); United States
v. Crews, 502 F.3d 1130, 1135 (9th Cir. 2007). We review
for clear error whether the state court judge issuing the
warrant had a substantial basis for concluding that probable
cause existed and give “great deference” to such a finding.
United States v. Hay, 231 F.3d 630, 634 n.4 (9th Cir. 2000)
(citation omitted).

Page: 8 of 21

Case: 11-30311

09/18/2013

ID: 8787247

DktEntry: 33-1

UNITED STATES V. SCHESSO

Page: 9 of 21

9

ANALYSIS
I. VALIDITY OF THE SEARCH WARRANT
A. PROBABLE CAUSE
We disagree with the district court’s conclusion that the
warrant was facially overbroad and thus not supported by
probable cause. In a somewhat unusual posture, the defense
essentially conceded probable cause for the seizure, arguing
that “the overriding problem was not the initial seizure of Mr.
Schesso’s devices, but the lack of any guidance or limits in
the warrant for subsequently searching the intermingled data
that was on them.” Our review of the record reveals that the
facts cited in the affidavit, combined with reasonable
inferences drawn from those facts, provided probable cause
to search Schesso’s entire computer system and his digital
storage devices for any evidence of possession of or dealing
in child pornography.
There is no question that there was probable cause to
believe that Schesso possessed the particular child
pornography video uploaded to eDonkey in October 2008.
Given the circumstances of that upload and the information
supplied in the warrant application, the state court judge
permissibly drew the “reasonable inference” that there was
probable cause to believe Schesso had other child
pornography materials as well. Illinois v. Gates, 462 U.S.
213, 240 (1983).
Schesso did not merely possess a commercial child
pornography video, which might have resulted from a onetime accidental download or inadvertent receipt. Key to the
probable cause analysis is the evidence that Schesso took the

Case: 11-30311

09/18/2013

10

ID: 8787247

DktEntry: 33-1

UNITED STATES V. SCHESSO

affirmative step of uploading and distributing the video on a
network designed for sharing and trading.2 As the affidavit
explained, peer-to-peer file sharing networks are “frequently
used to trade digital files of child pornography,” “often
provide enhanced capabilities to reward those who share files
by providing reduced wait periods, higher user ratings, or
other benefits,” and sometimes do not allow users to
download files at all unless they also share files. It is hardly
a leap to infer that Schesso either had other files to share or
that he used the network to download files.
The judge issuing the warrant thus made the “practical,
common-sense decision” that “given all the circumstances set
forth in the affidavit before him . . . there [was] a fair
probability that contraband or evidence” of child pornography
would be found on Schesso’s computer and other digital
storage equipment. Id. at 238. This determination is in line
with our precedent. See, e.g., United States v. Gourde,
440 F.3d 1065, 1069–71 (9th Cir. 2006) (en banc)
(emphasizing that probable cause means “fair probability,”
not certainty or even a preponderance of the evidence, and
concluding that it was reasonable to infer that there was a fair
probability that defendant “received or downloaded” child
pornography images based on defendant’s paid subscription
to a child pornography website); United States v. Kelley,
482 F.3d 1047, 1053 (9th Cir. 2007) (concluding that it was
reasonable to infer that defendant “was part of a network of

2

The district court confused the act of downloading a file with the act
of uploading a file. In his oral ruling, he inaccurately stated that “[t]he
only crimes described . . . in the affidavit are the possession and
downloading of [one] particular file.” Not so. In fact, the scope of the
warrant is specifically premised on Schesso’s uploading of the file, an act
that connects him to the profile of a child pornography collector.

Page: 10 of 21

Case: 11-30311

09/18/2013

ID: 8787247

DktEntry: 33-1

UNITED STATES V. SCHESSO

Page: 11 of 21

11

persons interested in child pornography” and permissible to
search defendant’s computer based on evidence that
defendant had received nine emails with attachments
“containing the same type of illicit child pornography” that
was found on the computers of two individuals who collected
or distributed child pornography); United States v. Lacy,
119 F.3d 742, 745 (9th Cir. 1997) (implying that it was
reasonable to infer that defendant had the characteristics of a
“collector[] of child pornography” based on evidence in the
affidavit that defendant had downloaded at least two
computerized visual depictions of child pornography).
Because there was a fair probability that the eDonkey
video as well as other evidence of possession of and dealing
in child pornography would be found on Schesso’s digital
equipment, the warrant was not overbroad. The government
was faced with the challenge of searching for digital data that
was not limited to a specific, known file or set of files. The
government had no way of knowing which or how many
illicit files there might be or where they might be stored, or of
describing the items to be seized in a more precise manner.
United States v. Adjani, 452 F.3d 1140, 1447–48 (9th Cir.
2006) (“Warrants which describe generic categories of items
are not necessarily invalid if a more precise description of the
items subject to seizure is not possible.”) (citation omitted).
These factors, along with the detailed explanation of the need
for off-site analysis and recovery, justify the seizure and
subsequent off-premises search of Schesso’s entire computer
system and associated digital storage devices.3

3

This process is not out of the ordinary. Federal Rule of Criminal
Procedure 41(e)(2)(B) explicitly permits the seizure or copying of
electronically stored information for later off-site review.

Case: 11-30311

12

09/18/2013

ID: 8787247

DktEntry: 33-1

UNITED STATES V. SCHESSO

We have repeatedly found equally broad searches
constitutional on similar or less evidence. See, e.g., United
States v. Krupa, 658 F.3d 1174, 1178 (9th Cir. 2011) (holding
valid a search of fifteen computers at a residence based on
evidence of one contraband image and a report of child
neglect); United States v. Brobst, 558 F.3d 982, 993–94 (9th
Cir. 2009) (holding valid a warrant authorizing the search and
seizure of photographs, computers, compact disks, floppy
disks, hard drives, memory cards, printers, other portable
digital devices, DVDs, and video tapes based on a witness’s
observation of one illicit photograph in defendant’s home);
Lacy, 119 F.3d at 746 (9th Cir. 1997) (holding valid a warrant
authorizing the “blanket seizure” of Lacy’s “entire computer
system” because the government did not know where at least
two illicit child pornography images were stored and “no
more specific description of the computer equipment sought
was possible”).
We are not convinced by Schesso’s additional argument
that there was no probable cause to seize the camera memory
cards simply because Schesso was not suspected of producing
child pornography. Camera memory cards have data storage
functionality like any external digital storage device, and
Schesso’s custom-built computer tower had a port connecting
directly to camera memory cards, allowing him to read, write,
or import data between devices. At the time of the search, a
camera was connected to one of the computers. The officers
reasonably concluded that the camera memory cards were
covered by the warrant as “digital data storage devices . . .
capable of being used to commit or further” the crimes of
possession of and dealing in child pornography.
Nor are we persuaded that the information supporting the
warrant application was stale. Information underlying a

Page: 12 of 21

Case: 11-30311

09/18/2013

ID: 8787247

DktEntry: 33-1

UNITED STATES V. SCHESSO

Page: 13 of 21

13

warrant is not stale “if there is sufficient basis to believe,
based on a continuing pattern or other good reasons, that the
items to be seized are still on the premises.” Lacy, 119 F.3d
at 745–46 (internal quotation marks and citation omitted).
Such good reasons existed here: Detective Kennedy’s
affidavit explained that individuals who possess, distribute,
or trade in child pornography “rarely, if ever, dispose of
sexually explicit images of children” because these images
are treated as “prized possessions.” In light of the “nature of
the criminal activity and property sought” and the reasonable
inference that Schesso fit the profile of a collector, the state
court judge had ample reason to believe that the eDonkey
video or other digital child pornography files would be
present at Schesso’s residence a mere 20 months after the
eDonkey incident. Id. at 745 (citation omitted); see also
United States v. Allen, 625 F.3d 830, 842–43 (5th Cir. 2010)
(holding that an 18-month delay between when defendant
sent child pornography images through a peer-to-peer
networking site and issuance of a search warrant did not
render the information stale); United States v. MoralesAldahondo, 524 F.3d 115, 117–19 (1st Cir. 2008) (concluding
that the passage of over three years since the acquisition of
information that defendant’s brother, who shared defendant’s
residence, had purchased access to various child pornography
websites, did not render that information stale).
Given these circumstances and the details contained in the
affidavit, the state court judge had a substantial basis for and
did not commit clear error in determining that there was
probable cause for the warrant. We defer to that judgment.

Case: 11-30311

14

09/18/2013

ID: 8787247

DktEntry: 33-1

UNITED STATES V. SCHESSO
B. ABSENCE OF SEARCH PROTOCOL

The question we consider next is whether the electronic
data search guidelines laid out in the CDT cases affect the
outcome here. After considering constitutional requirements,
the temporal sequence of the cases, and the advisory nature
of the guidelines, we conclude that the absence of these
protocols in Schesso’s warrant neither violates the Fourth
Amendment nor is inconsistent with CDT III or its
predecessor case, Tamura. Schesso’s scenario did not
implicate the real concern animating the court in CDT III and
Tamura: preventing the government from overseizing data
and then using the process of identifying and segregating
seizable electronic data “to bring constitutionally protected
data into . . . plain view.” CDT III, 621 F.3d at 1171 (per
curiam opinion).
In Tamura, the government had probable cause to seize
three categories of paper records. To avoid the timeconsuming task of identifying those specific records on site,
the government seized substantially more records for off-site
examination, thus gaining access to materials it had no
probable cause to collect. Tamura, 694 F.2d at 594–95.
Significantly, the seizure far exceeded the documents detailed
in the warrant. Our analysis was blunt: “It is highly doubtful
whether the wholesale seizure by the Government of
documents not mentioned in the warrant comported with the
requirements of the fourth amendment.” Id. at 595 (emphasis
added). Although we declined to suppress the evidence at
trial, we suggested procedural safeguards and monitoring by
a magistrate when over-seizure is justified because
documents subject to seizure “are so intermingled” that they
cannot feasibly be identified and segregated on-site. Id. at
595–96.

Page: 14 of 21

Case: 11-30311

09/18/2013

ID: 8787247

DktEntry: 33-1

UNITED STATES V. SCHESSO

Page: 15 of 21

15

In CDT III, we reiterated the concerns expressed in
Tamura in the context of electronic data. A short procedural
history of CDT III is in order. During the time government
agents were investigating Schesso, our court issued its
original en banc decision, now known as CDT II, in a case
involving steroid use by professional baseball players. The
government had probable cause to seize the electronic drug
testing records of ten baseball players from an independent
company administering the drug testing program. CDT III,
621 F.3d at 1166.
But the government requested
authorization to seize considerably more data beyond that of
the ten players for off-site segregation and examination. Id.
at 1168. The magistrate judge granted the request subject to
the government’s following certain procedural safeguards
“designed to ensure that data beyond the scope of the warrant
would not fall into the hands of the investigating
agents”—including that “law enforcement personnel trained
in searching and seizing computer data,” rather than
investigating case agents, conduct the initial review and
segregation of data. Id. at 1168–69.
Once the electronic data was seized, however, the
government ignored the required protocols. Alongside the
computer specialist, the investigating case agent reviewed the
drug testing results of hundreds of professional athletes for
whom probable cause had not been shown, and used what he
learned to obtain subsequent search warrants based on the
government’s contention that the evidence was in “plain
view.” Id. at 1170–72. Referencing the district court’s
binding order that the government intentionally disregarded
the warrant’s procedural safeguards, we affirmed the district
court’s grant of the motion to return the records of all but the
ten identified baseball players who had been suspected of

Case: 11-30311

09/18/2013

16

ID: 8787247

DktEntry: 33-1

UNITED STATES V. SCHESSO

criminal activity.4 Id. at 1174. To avoid a reprise, CDT II
laid out a number of procedural safeguards for future
warrants as part of the majority opinion.5
After CDT II, magistrate judges in the Western District of
Washington took steps to implement the protocol, requiring
the protocol for all warrants authorizing searches of
electronically stored information. Because the government
disagreed with this approach, ICE directed its agents not to
agree to a waiver of plain view, for example, and adopted a
practice of submitting its warrant applications to state judges
rather than through the federal system.
Approximately a year later, the en banc court issued a
new, amended opinion. The search protocol was no longer
part of the majority opinion, but instead was moved to a
concurring opinion and thus was no longer binding circuit
precedent. By its own terms, the concurring opinion proposes
the protocols not as constitutional requirements but as
“guidance,” which, when followed, “offers the government a
safe harbor.” CDT III, 621 F.3d at 1178 (Kozinski, C.J.,
concurring). Notably, there is no clear-cut rule: “District and
magistrate judges must exercise their independent judgment
in every case, but heeding this guidance will significantly
increase the likelihood that the searches and seizures of

4

We laid out three alternative reasons for affirming the district court’s
grant of the motion to return. The other two reasons were preclusive
effect and equitable considerations.
5

These prophylactic guidelines include waiver of reliance on the plain
view doctrine, segregation and redaction of electronic data by specialized
personnel or an independent third party, and disclosure of the actual risks
of destruction of information. CDT II, 579 F.3d at 1006.

Page: 16 of 21

Case: 11-30311

09/18/2013

ID: 8787247

DktEntry: 33-1

UNITED STATES V. SCHESSO

Page: 17 of 21

17

electronic storage that they authorize will be deemed
reasonable and lawful.” Id.
Schesso’s situation is unlike CDT III and Tamura in that
the government properly executed the warrant, seizing only
the devices covered by the warrant and for which it had
shown probable cause. Based on the evidence that Schesso
possessed and distributed a child pornography video on a
peer-to-peer file-sharing network, law enforcement agents
had probable cause to believe that Schesso was a child
pornography collector and thus to search Schesso’s computer
system for any evidence of possession of or dealing in child
pornography. In other words, Schesso’s entire computer
system and all his digital storage devices were suspect.
Tellingly, the search did not involve an over-seizure of
data that could expose sensitive information about other
individuals not implicated in any criminal activity—a key
concern in both the per curiam and concurring opinions of
CDT III6—nor did it expose sensitive information about

6

“Electronic storage and transmission of data is no longer a peculiarity
or a luxury of the very rich; it’s a way of life. Government intrusions into
large private databases thus have the potential to expose exceedingly
sensitive information about countless individuals not implicated in any
criminal activity, who might not even know that the information about
them has been seized and thus can do nothing to protect their privacy.”
CDT III, 621 F.3d at 1177 (per curiam opinion) (rejecting the argument
that people can avoid the potential that government over-seizure of
electronic data could expose their private information simply by not
storing their data electronically). The CDT III concurrence recommended
that “where the party subject to the warrant is not suspected of any crime,
and where the privacy interests of numerous other parties who are not

Case: 11-30311

09/18/2013

18

ID: 8787247

DktEntry: 33-1

UNITED STATES V. SCHESSO

Schesso other than his possession of and dealing in child
pornography. Indeed, inclusion of the search protocols
recommended in the CDT III concurrence would have made
little difference for Schesso. For example, the concurrence
recommends that the government forswear reliance on the
plain view doctrine, or have an independent third party
segregate seizable from non-seizable data. Id. at 1178. Here,
officers never relied on the plain view doctrine; they had
probable cause to search for child pornography, and that is
precisely what they found. The seized electronic data was
reviewed by Investigator Holbrook, a specialized computer
expert, rather than Detective Kennedy, the case agent, and
Schesso does not assert that Holbrook disclosed to Kennedy
“any information other than that which [was] the target of the
warrant.” Id. at 1180. Additionally, unlike the concern
articulated in the concurrence in CDT III, which stated that
the affidavit created the false impression that the data would
be lost if not seized at once,7 here the affidavit explained that
individuals who possess, distribute, or trade in child
pornography “go to great lengths to conceal and protect from
discovery their collection of sexually explicit images of
minors.”

under suspicion of criminal wrongdoing are implicated by the search, the
presumption should be that the segregation of the data will be conducted
by an independent third party selected by the court.” Id. at 1179
(Kozinski, C.J., concurring).
7

According to the concurrence, the independent business that owned the
data was not a criminal suspect and had agreed to keep the data intact, a
representation the United States Attorney’s Office had accepted. Id. at
1178 (quoting the dissent in United States v. Comprehensive Drug
Testing, 513 F.3d 1085, 1132 (9th Cir. 2008) (Thomas, J., dissenting),
opinion revised and superseded by CDT III).

Page: 18 of 21

Case: 11-30311

09/18/2013

ID: 8787247

DktEntry: 33-1

UNITED STATES V. SCHESSO

Page: 19 of 21

19

Although we conclude that the exercise of “greater
vigilance” did not require invoking the CDT III search
protocols in Schesso’s case, judges may consider such
protocols or a variation on those protocols as appropriate in
electronic searches. We also note that Rule 41 of the Federal
Rules of Criminal Procedure sets forth guidance for officers
seeking electronically stored information.8 Ultimately, the
proper balance between the government’s interest in law
enforcement and the right of individuals to be free from
unreasonable searches and seizures of electronic data must be
determined on a case-by-case basis. The more scrupulous
law enforcement agents and judicial officers are in applying
for and issuing warrants, the less likely it is that those
warrants will end up being scrutinized by the court of
appeals.
II. SUPPRESSION OF EVIDENCE
Even if the warrant were deficient, the officers’ reliance
on it was objectively reasonable and the “good faith”
exception to the exclusionary rule applies. United States v.
Leon, 468 U.S. 897, 922 (1984) (“[T]he marginal or
nonexistent benefits produced by suppressing evidence

8

As amended, Rule 41 provides, among other procedures, that a warrant
seeking electronically stored information “may authorize the seizure of
electronic storage media or the seizure or copying of electronically stored
information. Unless otherwise specified, the warrant authorizes a later
review of the media or information consistent with the warrant.” Fed. R.
Crim. P. 41(e)(2)(B). Upon executing the warrant, “[i]n a case involving
the seizure of electronic storage media or the seizure or copying of
electronically stored information, the inventory may be limited to
describing the physical storage media that were seized or copied. The
officer may retain a copy of the electronically stored information that was
seized or copied.” Fed. R. Crim. P. 41(f)(1)(B).

Case: 11-30311

20

09/18/2013

ID: 8787247

DktEntry: 33-1

UNITED STATES V. SCHESSO

obtained in objectively reasonable reliance on a subsequently
invalidated search warrant cannot justify the substantial costs
of exclusion.”). The state court judge was not misled by
information in the affidavit, he did not wholly abandon his
judicial role, and the affidavit certainly was not “so lacking
in indicia of probable cause as to render official belief in its
existence entirely unreasonable.” Id. at 923 (quoting Brown
v. Illinois, 422 U.S. 590, 611 (1975) (Powell, J., concurring
in part)).
The rationale leading us to defer to the state court judge’s
determination of probable cause applies with even greater
force to the question whether the officers’ reliance on the
warrant was objectively reasonable. The affidavit included
sufficient evidence connecting Schesso to the profile of a
child pornography collector to justify the officers’ reliance on
the warrant. We have previously upheld comparably broad
warrants based on similar evidence. See, e.g., Krupa,
658 F.3d at 1178; Brobst, 558 F.3d at 993–94.
Our analysis is not affected by the officers’ decision to
seek a warrant from a Washington state court rather than the
Western District of Washington. We recognize that the
choice of forum was influenced by the Western District of
Washington’s policy at the time of requiring the search
protocols outlined in CDT II. But evidence should be
suppressed “only if it can be said that the law enforcement
officer had knowledge, or may properly be charged with
knowledge, that the search was unconstitutional under the
Fourth Amendment.” Herring v. United States, 555 U.S. 135,
143 (2009) (quoting Illinois v. Krull, 480 U.S. 340, 348–49
(1987)). Because neither CDT II nor CDT III cast the search
protocols in constitutional terms, state judicial officers cannot
be faulted for not following protocols that were not binding

Page: 20 of 21

Case: 11-30311

09/18/2013

ID: 8787247

DktEntry: 33-1

UNITED STATES V. SCHESSO

Page: 21 of 21

21

on them, and law enforcement officers cannot be faulted for
relying on a warrant that did not contain the non-binding
protocols.9 Nothing prohibits the government from seeking
a warrant from one forum over another where the government
has the option to prosecute the case in state or federal court.
The Fourth Amendment applies equally to state courts as to
federal courts. The constitutionality of a warrant is not forum
dependent.
REVERSED.

9

It bears noting that neither Tamura nor CDT III resulted in the
suppression of evidence despite the absence of precautionary procedures.
We declined to suppress evidence in Tamura because although the search
exceeded the scope of the warrant, the specific documents introduced at
trial were within its scope. Tamura, 694 F.2d at 597 (“Generally, the
exclusionary rule does not require the suppression of evidence within the
scope of a warrant simply because other items outside the scope of the
warrant were unlawfully taken as well.”). CDT III did not concern a
motion to suppress at all. Rather, compliance with Tamura was discussed
in the context of a motion to return property under Federal Rule of
Criminal Procedure 41(g), which is “broader than the exclusionary rule.”
CDT III, 621 F.3d at 1173 (per curiam opinion).