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ELEVENTH CIRCUIT UPHOLDS WARRANTLESS SEIZURE OF COMPUTER

December 2015

by Brian S. Batterton, Attorney



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©2015 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)

On September 16, 2015, the Eleventh Circuit Court of Appeals decided the United States v. Oates [i], which serves as excellent review regarding the requirements of the plain view doctrine as it relates to warrantless seizures.  The relevant facts of Oates, taken directly from the case, are as follows:

Special Agent Jeffrey White, Department of Homeland Security Investigations, downloaded child pornography on the Ares peer-to-peer file sharing program ("Ares") from an IP address that was traced back to Exie Oates in an apartment in Columbus, Georgia. Agent White determined that, as an approximately 60 year old woman with no criminal history, Ms. Oates was an unlikely offender. Approximately six months later, Agent White, along with another agent and two local police officers, traveled to Ms. Oates's apartment to conduct a "knock and talk." When Agent White knocked on the door, an adult male, Mr. Oates, answered the door. The law enforcement agents and officers asked to speak with Ms. Oates, whom he identified as his mother. Law enforcement entered the apartment, although the parties disagree about the circumstances under which they did so. Once inside the apartment, which was occupied by Ms. Oates, Mr. Oates, and Mr. Oates's sister, Agent White observed a computer to the left of the front door that was actively running the Ares software. The officers asked Mr. Oates to step outside so that he would not have to discuss child pornography in front of his mother. The government claims that in this conversation Mr. Oates admitted he had downloaded child pornography on the computer. Mr. Oates agreed to go down to the police station to answer questions in private. He was not taken into custody. When law enforcement left the apartment to take Mr. Oates to the police station, they seized the computer. Agent White later obtained a search warrant for the hard drive's contents.

Mr. Oates filed a motion to suppress the child pornography files retrieved from the computer, which he argued was seized illegally. The district court denied the motion to suppress at a pretrial evidentiary hearing. The court made a factual finding that the law enforcement agents "at some point stepped into the home and were not prohibited from doing so by Mr. Oates; and upon entering the home saw a computer which they had probable cause to believe had illegal contraband on it." Pretrial Conference Tr. 57, Doc. No. 30. The district court also found that "exigent circumstances existed for them to seize the computer" because "there was a legitimate concern that . . . evidence on the computer or the computer itself could be damaged or removed in some way" if left at the home. Id. [ii]

Oates filed a motion to suppress and argued that the warrantless seizure of his computer violated the Fourth Amendment.  The district court found the agents testimony that Oates consented to entry credible and held the entry was with consent.  Further, the district court held that the seizure of the computer was valid under the plain view doctrine and based on exigent circumstance.  Oates was convicted and appealed the denial of his motion to suppress to the Eleventh Circuit Court of Appeals.

The Eleventh Circuit first noted that unless clearly wrong, they had to follow the factual determinations of the district court, as that court heard testimony and was in a better position to judge witness credibility.

The issue before the court was whether the warrantless seizure of Oates computer violated the Fourth Amendment.  The court first noted the legal rules relevant to this issue.  The court stated:

Under the Fourth Amendment, searches and seizures "inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586 (1980). An object in "plain view" may be subject to warrantless seizure if (1) the law enforcement officer "did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed," (2) the officer has "a lawful right of access to the object itself," and (3) the object's "incriminating character [is] immediately apparent." Horton v. California, 496 U.S. 128, 136-3 (1990) (internal quotation omitted). Where officers lawfully enter a house, which may be through valid consent, and "they come across some item in plain view and seize it, no invasion of personal privacy has occurred." Soldal v. Cook Cnty., 506 U.S. 56, 65-66 (1992). In the context of a consensual search, "[t]he government bears the burden of proving both the existence of consent and that the consent was not a function of acquiescence to a claim of lawful authority but rather was given freely and voluntarily." United States v. Yeary, 740 F.3d 569, 582 (11th Cir. 2014). [iii] [emphasis added]

In order for the “plain view” exception to apply, the court first had to examine whether the agents were lawfully in the place where they observed the evidence.  Clearly it was permissible for the officers to approach the residence, knock on the door and request to speak to the residents.  Further, the agent testified that Oates consented to his entry into the residence.  Consent must be free and voluntary to be valid; further, consent is not free and voluntary if a person merely acquiesces or submits to an officer’s command to allow entry.

On the issue of consent, Oates alleged that he did not consent and the agent testified that Oates did consent.  Since the district court, the finder of fact, credited the agent’s testimony, the court of appeals is bound to follow that decision unless there is clear evidence to contradict that decision.  There was no evidence to contradict it so the court of appeals held that the agents entered with valid consent.  As such, the first and second prong of the plain view exception was satisfied, particularly the agent (1) did not violate the Fourth Amendment arriving at the place the evidence was located, and (2) the agent had lawful access to the computer itself, since he was in the residence by consent.

The next issue the court had to decide was whether the computer’s incriminating character was immediately apparent to the agent.  The court then examined the facts of case that were relevant to this issue.  The court stated:

Upon entering, Agent White looked to the left of the door and saw a computer screen displaying an Ares peer-to-peer downloading file. Moreover, given Agent White's prior investigation and resulting evidence that a computer at that address was downloading child pornography from an IP address belonging to Ms. Oates at the apartment's location, the computer's incriminating character was "immediately apparent." See Horton, 496 U.S. at 136. Because while standing in the apartment to which he had lawful access Agent White easily recognized the Ares program that previously had been used to download child pornography at the same IP address, under Horton he was permitted to seize the computer. [iv]

Thus, the warrantless seizure of the computer was lawful under the plain view doctrine.  It is important to note that the agent correctly obtained a search warrant to search the contents of the computer.

The court also considered an alternative justification for the warrantless seizure of the computer, particularly, the “exigent circumstance” exception to the warrant requirement.  The court stated:

Under the Fourth Amendment, law enforcement authorities with "probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant . . . [may] seiz[e] the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present." United States v. Place, 462 U.S. 696, 701 (1983).

Although the "presence of contraband without more does not give rise to exigent circumstances," exigent circumstances may arise "when there is danger that the evidence will be destroyed or removed." United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991) (en banc) (internal quotation marks omitted). "The appropriate inquiry is whether the facts would lead a reasonable, experienced agent to believe that evidence might be destroyed before a warrant could be secured." Id. [v] [emphasis added]

Oates argued that, if there was an exigency, it was impermissibly created by the agents.  However, the court noted that it was reasonable for officers to conduct an investigatory knock and talk before seeking a search warrant in this case.  First, the court stated that officers did not engage or threaten to engage in conduct that violated the Fourth Amendment.  Second, the court noted that officers are not required to seek a search warrant the moment probable cause may be present.  Third, the court credited the officer’s skepticism that the person to whom the IP was registered, a 60 year old woman, was the suspect involved in child pornography.  Thus, it was reasonable for the officers to conduct further investigation prior to obtaining a search warrant.

As to the exigent circumstance present, the agent testified that it was possible for Ms. Oates or her daughter to destroy or delete evidence off of the computer before the agents could obtain a warrant to seize the computer.  The district court credited the agent’s testimony on this matter, and there was no evidence to clearly contradict that holding.  Therefore, the court of appeals upheld the finding of exigent circumstance being present to additionally justify the warrantless seizure of the computer. 

Therefore, the court affirmed the denial of the motion to suppress.

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Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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CITATIONS:

[i] No. 14-15397 (11th Cir. Decided September 16, 2015 Unpublished)

[ii] Id. at 2-3

[iii] Id. at 4

[iv] Id. at 5

[v] Id. at 7-8

 

 
       
 


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