United States v. Brandon Carter

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 12-3430
___________

UNITED STATES OF AMERICA

v.

BRANDON CARTER,
Appellant
_______________________

On Appeal from the District Court
for the Western District of Pennsylvania
D.C. Criminal No. 2-09-cr-00161-001
(Honorable Joy Flowers Conti)
______________

Submitted Pursuant to Third Circuit LAR 34.1(a)
June 10, 2013

Before: SCIRICA, HARDIMAN, VAN ANTWERPEN, Circuit Judges

(Filed: July 16, 2013)

_________________

OPINION OF THE COURT
_________________

SCIRICA, Circuit Judge.

Brandon Carter was indicted for possession of child pornography and receipt of

child pornography, in violation of 18 U.S.C. § 2252(a)(2), (a)(4)(B). The District Court

denied his motion to suppress evidence obtained from a search of his computers, finding
the evidence admissible under the independent source doctrine. Carter entered a

conditional plea of guilty to possession of child pornography, and now appeals from the

denial of his motion to suppress. He was sentenced to 36 months in prison.

I.

Carter was arrested on May 13, 2008 for counterfeiting gift certificates and

Federal Reserve Bank Notes. His car was impounded, and during an inventory search of

the car, police officers found counterfeit banknotes and counterfeit gift certificates made

on VersaCheck paper stock. VersaCheck is a software program that allows a person to

print his or her own checks.

The police contacted the Secret Service to investigate the counterfeit banknotes.

Secret Service Agent Michael Radens began investigating the location of Carter‟s

computer(s), because counterfeiters often used computers and the VersaCheck software

was run on a computer. At the time of his arrest, Carter lived with his ex-girlfriend,

Stephanie Kennedy, who was evicted from the home on June 1, 2008, while Carter was

incarcerated. On June 11, Radens interviewed Kennedy and learned that Carter had two

computers that were kept in a spare bedroom, which served as a home office. Kennedy

told Radens she had seen a $500 gift certificate on the floor of the office, but had thrown

it in the trash.1 Kennedy told Radens she left all of Carter‟s property on the back porch

of his parents‟ house when she was evicted, including the two computers. Radens took

notes on this interview and began to prepare an affidavit to apply for a warrant to search

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When Radens showed Kennedy a picture of a counterfeit gift certificate Carter had used
at a local retailer, Kennedy told Radens it looked like the gift certificate she had found on
the floor of Carter‟s home office.
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the Carter home for the computers. Prior to the interview with Kennedy, Radens

instructed Agent Brian Morris to report directly to the Carter home, because he was

concerned Kennedy might have warned the Carters the Secret Service was looking for

defendant‟s computers.

Immediately following the interview with Kennedy, Radens rendezvoused with

Kernan and Morris at the Carters‟ residence. They knocked on the door and the rear

window, but no one answered. Radens then called defendant‟s mother, Rochelle Carter,

who initially denied the computers were in the house. When Radens told Rochelle Carter

that he could get a warrant to search the house for the computers, she said that she would

give the agents the computers when she returned home after work. Radens then left to

obtain a search warrant, and instructed Morris and Kernan to watch the house in case

someone tried to remove the computers. After Radens left, defendant‟s father, Laverne

Carter, came out of the house, and explained to Morris and Kernan that he did not hear

the knocking since he was sleeping after working the midnight shift. Laverne Carter told

the agents that the computers were in the basement, and signed a consent form permitting

a search of the basement.2 The agents recovered two computers, a Gateway and an HP,

from the Carters‟ basement, and took them to the Pittsburgh field office. Kernan called

Radens to tell him they had obtained the computers. Radens did not complete the warrant

application.

On June 23, 2008, a magistrate judge signed a warrant authorizing the search of

both computers for evidence of counterfeiting. The warrant was based on Radens‟

2
There is a factual dispute whether Laverne Carter was told the agents already had a
search warrant.
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affidavit reciting the facts described above, including the search of the Carter home and

the seizure of the computers from the basement. After obtaining the warrant, the agents

discovered the hard drive was missing from the HP computer. Radens contacted

Kennedy, who was deployed in the Air Force at the time. Kennedy said she did not know

if she had the hard drive, but said she would ask her boyfriend to search her belongings

for it. Kennedy later contacted Radens and told him that her boyfriend had found the

hard drive, and that she had sent it to the Secret Service. The Secret Service received a

Western Digital hard drive from Kennedy on July 23, 2008.

On June 25, the Gateway hard drive was imaged. During a search of the Gateway

hard drive for evidence of counterfeiting, agents discovered evidence of child

pornography. They stopped the search, and obtained a second warrant to search the

Gateway computer for child pornography on August 7, 2008. Agents obtained a third

warrant to search the Western Digital hard drive on August 21, 2008.

As noted, Carter moved to suppress evidence obtained under all three search

warrants, contending the initial search of the Carter home violated his Fourth

Amendment rights and the warrants were obtained as a result of that illegal search. The

District Court found that even if the initial search of the Carter home was invalid, the

evidence was admissible under the independent source doctrine.

II.3

“Typically, the exclusionary rule requires that we suppress evidence obtained as a

3
We have jurisdiction under 28 U.S.C. § 1291. “We review the District Court‟s denial of
a motion to suppress for clear error as to the underlying factual determinations but
exercise plenary review over the District Court‟s application of law to those facts.”
United States v. Stabile, 633 F.3d 219, 230 (3d Cir. 2011).
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result of an illegal search.” United States v. Stabile, 633 F.3d 219, 243 (3d Cir. 2011)

(citing Wong Sun v. United States, 371 U.S. 471, 485 (1963)). But, “[t]he independent

source doctrine serves as an exception to the exclusionary rule and permits the

introduction of „evidence initially discovered during, or as a consequence of, an unlawful

search, but later obtained independently from activities untainted by the initial

illegality.‟” United States v. Price, 558 F.3d 270, 281 (3d Cir. 2009) (quoting Murray v.

United States, 487 U.S. 533, 537 (1988)).

Since we agree with the District Court that the independent source exception is

dispositive, we do not consider whether the search of the Carter home and seizure of the

two computers was unconstitutional. We find the independent source doctrine applies to

the initial search of defendant‟s two computers. Accordingly, the second and third search

warrants, based on information obtained in execution of the first search warrant, were

also valid.

Evidence that is obtained during an illegal search may be admissible under the

independent source doctrine. See Murray, 487 U.S. at 537 (quoting Nix v. Williams, 467

U.S. 431, 443 (1984) (“When the challenged evidence has an independent source,

exclusion of such evidence would put the police in a worse position than they would have

been in absent any error or violation.”) (internal quotation marks omitted). The evidence

is from an independent source if “(1) . . . a neutral justice would have issued the search

warrant even if not presented with information that had been obtained during an unlawful

search and (2) . . . the first search [had not] prompted the officers to obtain the

[subsequent] search warrant.” United States v. Herrold, 962 F.2d 1131, 1144 (3d Cir.

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1992).

A.

We review whether the Magistrate Judge had a substantial basis to find the

affidavit supported probable cause. Illinois v. Gates, 462 U.S. 213, 236-37 (1983). A

warrant must “particularly describ[e] the place to be searched, and the persons or things

to be seized.” U.S. Const. amend. IV.

1.

“„A reviewing court should excise the tainted evidence and determine whether the

remaining, untainted evidence would provide a neutral magistrate with probable cause to

issue a warrant.‟” Herrold, 962 F.2d at 1138 (quoting United States v. Vasey, 834 F.2d

782, 788 (9th Cir. 1987)). Probable cause exists if “the issuing magistrate [makes the]

practical, common-sense decision [that], given all the circumstances set forth in the

affidavit before him . . . there is a fair probability that contraband or evidence of a crime

will be found in a particular place.” Gates, 462 U.S. at 238. “While ideally every

affidavit would contain direct evidence linking the place to be searched to the crime, it is

well established that direct evidence is not required for the issuance of a search warrant.”

United States v. Jones, 994 F.2d 1051, 1056 (3d Cir. 1993) (“[P]robable cause can be,

and often is, inferred by „considering the type of crime, the nature of the items sought, the

suspect‟s opportunity for concealment and normal inferences about where a criminal

might hide stolen property.‟” (quoting United States v. Jackson, 756 F.2d 703, 705 (9th

Cir. 1985)).

We explained in Jones that an affidavit that supports the inference that contraband

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will be found in the place described provides probable cause to issue a search warrant.

Id. at 1056. The defendants in Jones stole a large amount of cash, and had ample time to

hide the money. Id. The affidavit supported a sufficient nexus between the crime and

defendants‟ homes, because it stated a cellphone stolen in the robbery would be found in

one of the homes, and another defendant parked a motorcycle likely purchased with the

stolen money outside of his home. Id. at 1056-57. We found it was reasonable to infer

that the money was likely hidden in the defendants‟ homes, so the affidavit describing the

crime and the time frame provided probable cause to issue the warrants to search

defendants‟ homes for evidence of the theft. Id.

The only new information discovered through the search of the Carter basement

was the brand name and serial number of defendant‟s computers. Excising this

information from the affidavit, there was, as the District Court found, “a surplus of

evidence” to support probable cause. The affidavit said the counterfeit gift certificates

officers found in defendant‟s car were likely produced by a computer program, and a

witness told Agent Radens she saw a similar gift certificate on the floor of defendant‟s

home office where he kept his computers, and told Radens where the computers were

located. The facts in this affidavit requires less of an inference than did the affidavit in

Jones. We agree that there was a substantial basis for the Magistrate Judge to find the

affidavit supported probable cause to search defendant‟s computers even without the

computer brand name and serial numbers. Accordingly, when excising the information

obtained from the initial search, the affidavit still supported probable cause to issue the

search warrant.

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 2.

“The Fourth Amendment provides that warrants must „particularly describ[e] the

place to be searched and the persons or things to be seized.‟” United States v. Yusuf, 461

F.3d 374, 393 (3d Cir. 2006) (quoting U.S. Const. amend. IV). General warrants are

invalid because they essentially authorize “a general, exploratory rummaging in a

person‟s belongings.” Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). A

warrant is not an invalid general warrant when “it does not vest the executing officers

with unbridled discretion to conduct an exploratory rummaging through appellees‟ papers

in search of criminal evidence.” United States v. Christine, 687 F.2d 749, 753 (3d Cir.

1982). In Christine we found a warrant authorizing seizure of all defendant‟s folders,

checks, general ledgers, correspondence, and “all other documents, papers,

instrumentalities and fruits of the crime” was sufficiently particular, because it limited the

search to certain items, so “the magistrate, rather than the officer, determined what was to

be seized.” Id. (internal quotation marks omitted).

Carter contends the warrant was not sufficiently particular without the serial

number and brand name of the computers obtained in the allegedly illegal search.

Excising the brand name and serial number, the warrant did not authorize a general

search of all of defendant‟s belongings, or even the entire contents of the computers.

Instead, it authorized the search of two computers known to belong to defendant, in a

location specified in the affidavit, and was limited to evidence of counterfeiting. The

warrant described the computers with more particularity than the documents and papers

described in Christine. Since the warrant did not authorize “a general exploratory

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rummaging,” the warrant had sufficient particularity to comply with the Fourth

Amendment.

B.

The government must show the unlawful search did not prompt the officers to

obtain the search warrant. Murray, 487 U.S. at 542. In Price a defendant was arrested

after selling methamphetamine to an undercover officer. 558 F.3d at 273. The police

found incriminating paraphernalia on Price and in a valid search of his home. Id. at 273-

274, 279. Evidence found during the invalid search of a locked basement was not

excluded because, under the independent source doctrine, it seemed “impossible that the

police would not have applied for a warrant to search the basement of the house . . . .” Id.

at 282.

The police had similar evidence in this case. When defendant was arrested, police

found counterfeit banknotes and gift certificates in his car made from a computer

program. Kennedy told the police she had seen a counterfeit gift certificate in

defendant‟s home office, and told the police she brought defendant‟s two computers to

his parents‟ home. Under these circumstances, it is inconceivable the police would not

have applied for a warrant to search the Carter home for the computers. Moreover, the

District Court found Agent Radens decided to apply for the warrant before the search.

He began to draft the affidavit the day before the search, and left to apply for the warrant

before the search occurred. Accordingly, the decision to apply for the search warrant was

not prompted by the allegedly illegal search.

III.

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For the foregoing reasons we will affirm the District Court‟s order.

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