F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 29 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 02-4172
v. (District of Utah)
(D.C. No. 99-CR-627-C)
ROBERT WAYNE FISCUS,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before MURPHY, McWILLIAMS, and HARTZ, Circuit Judges.
I. INTRODUCTION
Defendant Robert Fiscus appeals the district court’s denial of his motion to
suppress evidence obtained from the search of his home and the seizure of his
computer hard drive and diskettes on July 20, 1999, and his statements made to
law enforcement agents on October 13, 1999. This court has jurisdiction under 28
U.S.C. § 1291 and affirms.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
II. BACKGROUND
Fiscus was paroled from South Carolina state prison while serving a
sentence for committing a lewd act with a minor and for criminal sexual conduct
with a minor. Pursuant to his parole agreement, Fiscus agreed to “refrain from
the violation of any Federal, State, or Local penal law.”
While still on parole, Fiscus moved to Utah, and the Utah Board of Pardons
agreed to supervise his parole. Fiscus signed an additional Parole Agreement
which authorized “a Parole Agent to search [Fiscus’] person, residence, vehicle,
or any other property under [Fiscus’] control, without a warrant, any time day or
night, upon reasonable suspicion as ascertained by a Parole Agent, to insure
compliance with the conditions of [his] parole.”
On June 9, 1999, Herbert, a relative of Fiscus, telephoned the Orem Police
to report his observation of child pornography on Fiscus’ computer. Herbert
informed Officer Todd Moake that he had observed the child pornography while
repairing Fiscus’ computer and that he had erased it from the computer’s hard
drive. Herbert told Moake that Fiscus had asked him not to look at the files
which contained the images. Herbert also told Moake that he believed Fiscus had
downloaded the child pornography from the Internet and that Fiscus continued to
have access to the Internet. Finally, Herbert told Moake that he believed Fiscus
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was on parole for a sex crime. Moake contacted Fiscus’ parole officer, Jim
Mower.
On July 20, 1999, Moake, Mower and Steve Bulkley, a computer forensics
specialist, went to Fiscus’ home to conduct a search. Mower told Fiscus that he
was doing a parole check and, specifically, that he was going to check Fiscus’
computer for inappropriate photographs. Fiscus told the officers that there were
embarrassing photographs on the computer. Mower asked Fiscus if he could also
search the rest of Fiscus’ home. Fiscus told Mower, “You’re not going to find
anything – anything there because everything is on the computer.”
When the officers began to search Fiscus’ computer, they observed that
Fiscus’ computer wallpaper was a nude adult male. Bulkley attempted to view the
hard drive on Fiscus’ computer, but was unable to do so in Fiscus’ home without
destroying or corrupting the stored files. The officers also discovered an open
box of diskettes next to the computer. The first disk visible to the officers was
labeled in handwriting “Bob’s Pics.” Mower testified that he told Fiscus that he
was going to take his computer hard drive and diskettes so that they could be
searched.
On July 21, 1999, Moake, Mower, and Bulkley reviewed the hard drive and
diskettes seized from Fiscus’ home. While no child pornography was found on
the hard drive, the officers discovered what they believed to be child pornography
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on the diskettes labeled “Bob’s Pics.” Moake contacted United States Customs
Agent Donald Daufenbach regarding the images found on Fiscus’ diskettes. On
July 22, 1999, Daufenbach viewed the images and determined that they contained
child pornography. Daufenbach again viewed the diskettes on September 2, 1999
to ensure that the images on the diskettes were consistent with the CD-ROM copy
made of the diskettes by Bulkley.
On July 22, 1999, Mower asked Fiscus to agree to an extension of his
parole pending the investigation. Fiscus agreed and signed a document to that
effect. Fiscus’ parole, however, was not extended. His parole ended on July 26,
1999 without being revoked. In August 1999, Mower informed Fiscus that his
parole was terminated.
On October 13, 1999, Moake, Daufenbach, and Mower went to Fiscus’
place of employment. Daufenbach asked Fiscus if the officers could meet with
him. Fiscus took the officers to a back room. Daufenbach questioned Fiscus for
about thirty minutes concerning the images found on the seized diskettes. During
the interview, Fiscus made incriminating statements.
On November 19, 1999, Fiscus was charged with “knowing[] possess[ion]
[of] material . . . containing an image of child pornography, that was mailed,
shipped, and transported in interstate [or] foreign commerce, and which was
produced using materials that have been mailed, shipped, and transported in
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interstate and foreign commerce,” in violation of 18 U.S.C. § 2252A(a)(5)(B).
Fiscus moved to suppress the evidence obtained from the July 20, 1999 search of
his home and the seizure of his computer hard drive and diskettes and his October
13, 1999 statements to law enforcement agents. After an evidentiary hearing, the
district court determined that Fiscus consented to the search of his home and the
officers properly seized the computer hard drive and diskettes because they were
in plain view. Further, the district court determined that the subsequent search of
the computer diskettes was permissible because the initial “seizure was justified
by a reasonable belief that child pornography would be found” on the diskettes.
Finally, the district court concluded that Fiscus’ statements to Moake, Mower, and
Daufenbach were voluntarily made. Accordingly, the district court denied the
motion to suppress.
III. DISCUSSION
Fiscus appeals the denial of his motion to suppress. This court views the
evidence in a light most favorable to the government and reviews the district
court’s findings of fact for clear error. United States v. Lewis, 71 F.3d 358, 360
(10th Cir. 1995). The district court’s determination that the search and seizure
was reasonable under the Fourth Amendment, however, is reviewed de novo. Id.
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A. Search of Fiscus’ Home 1
The Fourth Amendment generally requires law enforcement officers to
obtain a search warrant supported by probable cause prior to conducting a search
of a residence. United States v. Tucker, 305 F.3d 1193, 1199 (10th Cir. 2002).
Parolees who have assented to the search of their residence under a parole
agreement, however, have a diminished expectation of privacy. United States v.
Knights, 534 U.S. 112, 119-20 (2001). Further, the state’s interest in monitoring
the behavior of a parolee is heightened because of the increased likelihood that a
parolee will violate the law. Tucker, 305 F.3d at 1199. Therefore, an officer may
conduct a warrantless parole search pursuant to a search condition in a valid
parole agreement when they have a reasonable suspicion that the parolee is in
violation of the parole agreement. Id.
Fiscus argues that all evidence taken from his home should be suppressed
because the July 20, 1999 search of his home was an invalid parole search.
Specifically, Fiscus argues that (1) the search was not based upon reasonable
1
The district court concluded that because Fiscus consented to the search of
his home, the search was lawful under the Fourth Amendment. This court,
however, may “affirm [the] district court decision on any grounds for which there
is a record sufficient to permit conclusions of law, even grounds not relied upon
by the district court.” Medina v. City & County of Denver, 960 F.2d 1493, 1495
n.1 (10th Cir. 1992) (quotation omitted).
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suspicion, and (2) the purpose of the search was not reasonably related to
Mower’s duties as a parole officer.
1. Reasonable Suspicion
“Reasonable suspicion is a less demanding standard than probable cause”
because “reasonable suspicion can arise from information that is less reliable than
that required to show probable cause.” United States v. Tuter, 240 F.3d 1292,
1296 n.2 (10th Cir. 2001). Unlike probable cause, “reasonable suspicion is
merely a particularized and objective basis for suspecting criminal activity.”
Tucker, 305 F.3d at 1200. “To determine whether the investigating officers had
reasonable suspicion, we consider both the quantity of information possessed by
law enforcement and its reliability.” Id. (footnote omitted).
Fiscus contends that the officers lacked reasonable suspicion to search his
home because the tip they relied on was unreliable and stale. The reliability of
information received from an informant is assessed by considering “the credibility
or veracity of the informant, the basis of the informant’s knowledge, and the
extent to which police are able independently to verify the reliability of the tip.”
United States v. Leos-Quijada, 107 F.3d 786, 792 (10th Cir. 1997). Herbert, a
citizen informant, told the Orem Police that he saw what he believed was child
pornography on Fiscus’ home computer. Because Herbert disclosed his identity to
the police, he was a credible informant. See J.B. v. Wash. County, 127 F.3d 919,
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929-30 (10th Cir. 1997) (noting that citizen-informants are presumed to be
reliable). Herbert viewed the images while repairing Fiscus’ computer. His
personal knowledge, therefore, was the basis of his tip. Moreover, Herbert
provided detailed information to the Orem Police regarding the images he
observed on Fiscus’ computer, Fiscus’ Internet capabilities, and Fiscus’ criminal
history. Accordingly, Herbert’s tip to the Orem Police was reliable.
Fiscus argues, however, that the tip was stale when Fiscus’ home was
searched because: (1) the tip was made over two months before the search was
conducted, and (2) Herbert had informed the Orem Police that he had erased the
images from Fiscus’ hard drive. To determine whether information relied upon as
the basis for a search is stale, this court considers “the nature of the crime and the
length of criminal activity.” See United States v. Myers, 106 F.3d 936, 939 (10th
Cir. 1997) (considering whether information relied upon to obtain a search
warrant was stale). Herbert informed the Orem Police that he believed Fiscus
obtained the images from the Internet and that Fiscus continued to have Internet
access. Herbert also informed the Orem Police that Fiscus asked him not to look
at the files which contained the images and that he, rather than Fiscus, deleted the
images on Fiscus’ computer. Given this information and the knowledge that
Fiscus was on parole for criminal sexual conduct with a minor, Herbert’s tip was
not stale at the time of the search and was sufficient to establish a reasonable
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suspicion that Fiscus violated the terms of his parole agreement. Tucker, 305
F.3d at 1201 (reasoning that reasonable suspicion may be established on
information less reliable than that required to establish probable cause).
This court concludes, therefore, the parole search conducted of Fiscus’
residence was supported by reasonable suspicion.
2. Purpose of the Search
Fiscus also contends that the July 20, 1999 search of his residence was an
invalid parole search because the purpose of the search was not reasonably related
to Mower’s duties as a parole officer. Fiscus argues that Mower was used as a
“stalking horse” of the police to conduct an investigatory search of his home.
In Tucker, this court concluded that a parole search is valid under the
Fourth Amendment if it is conducted pursuant to a search provision of a parole
agreement and is supported by reasonable suspicion even if the “search was a
subterfuge for a law enforcement investigation.” 305 F.3d at 1200. Fiscus’
parole agreement authorized the search of his residence to “insure compliance
with the conditions of [his] parole.” Moreover, Fiscus’ parole was conditioned on
his compliance with all federal, state, and local penal laws. Therefore, because
we conclude that the officers had reasonable suspicion that Fiscus possessed child
pornography on his home computer in violation of his parole agreement, the July
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20, 1999 search of his residence was a valid parole search under the Fourth
Amendment regardless of the officers’ motivation in conducting the search.
B. Seizure of the Diskettes 2
Fiscus argues that the officers’ lacked justification to seize his diskettes,
and, therefore, the evidence obtained from the diskettes must be suppressed under
the Fourth Amendment.
Typically, an object may not be seized unless it is identified and
particularly described in a valid warrant. See United States v. Guidry, 199 F.3d
1150, 1154 (10th Cir. 1999). Law enforcement officers, however, may seize an
object without a warrant if the object is in plain view. Tucker, 305 F.3d at 1202.
The following conditions must be satisfied to justify a warrantless search under
the plain view doctrine: (1) the officer must “arriv[e] at the place from which the
evidence could be plainly viewed” without violating the Fourth Amendment; (2)
the incriminating character of the item must be immediately apparent such that the
officer has “probable cause to believe the object to be contraband or evidence of
illegal activity” upon seeing the object; and (3) the officer must “have a lawful
2
Fiscus argues that the seizure of the computer also violated the Fourth
Amendment. The only evidence of child pornography, however, was found on his
diskettes labeled “Bob’s Pics.” Therefore, the court will confine its discussion to
the validity of the seizure and subsequent search of the diskettes.
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right of access to the object.” 3 United States v. Naugle, 997 F.2d 819, 822 (10th
Cir. 1993) (quotations omitted); Tucker, 305 F.3d at 1202 (footnote omitted).
Because the seizure of Fiscus’ diskettes meets these conditions, it is
justified under the plain view doctrine. The seizing officers had a reasonable
suspicion that Fiscus was in violation of his parole agreement by possessing child
pornography on his computer; they were, thus, entitled to search his residence.
Therefore, the officers arrived in the place where Fiscus’ diskettes were plainly
apparent without violating the Fourth Amendment.
Fiscus, however, argues that the incriminating character of the diskettes
was not immediately apparent to the officers. Fiscus was on parole for
committing a lewd act with a minor and for criminal sexual conduct with a minor.
Prior to searching his home, the officers were informed by Herbert that Fiscus
stored child pornography on his computer. When the officers arrived at Fiscus’
residence and informed him that they were going to conduct a search, Fiscus told
the officers that there were embarrassing photographs on the computer. Fiscus
also told the officers that they need not search the rest of his residence stating,
3
As discussed in United States v. Tucker, because the “[o]fficers were
entitled to enter [Fiscus’] home and conduct a search merely upon reasonable
suspicion[,] [a]rguably . . . they only needed reasonable suspicion that any item
viewed was contraband or evidence of illegal activity or parole violations in order
to seize it under the plain-view doctrine.” 305 F.3d 1193, 1203 n.13 (10th Cir.
2002). Because we conclude infra that the officers had probable cause, we need
not decide this issue.
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“You’re not going to find anything – anything there because everything is on the
computer.” Further, the diskettes seized were labeled “Bob’s Pics.” From this
information, the officers had probable cause to believe that Fiscus’ computer and
diskettes contained child pornography. While Fiscus argues that his statement
regarding the existence of embarrassing photographs on the computer could have
referred to the wallpaper depicting a nude adult male and the label “Bob’s Pics” is
innocuous, “probable cause merely requires that the facts available to the officer
would warrant a man of reasonable caution in the belief that certain items may be
. . . useful as evidence of a crime; it does not demand any showing that such a
belief be correct or more likely true than false.” Naugle, 997 F.3d at 823
(quotation omitted) (concluding that while “no officer can tell upon first sight
whether a weapon is properly registered” and, therefore, illegally possessed, the
officer had probable cause to seize the weapon). Accordingly, the incriminating
character of the computer and diskettes was immediately apparent to the officers
searching Fiscus’ residence.
Finally, because the parole agreement authorized the officers to search all
of Fiscus’ property, the officers had a lawful right of access to Fiscus’ diskettes.
See Tucker, 305 F.3d at 1203.
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C. The Search of Fiscus’ Diskettes
Fiscus argues that the subsequent search of his diskettes violated the Fourth
Amendment because the officers were required to obtain a search warrant prior to
conducting the search. To support his argument, Fiscus cites this court’s
decisions in United States v. Carey, 172 F.3d 1268 (10th Cir. 1999), and United
States v. Campos, 221 F.3d 1143 (10th Cir. 2000). Fiscus argues that, under
Carey and Campos, computer searches require a “special approach” in that law
enforcement officers may not search computer files without a warrant, absent
exigent circumstances. Fiscus’ argument that Carey and Campos require the
suppression of the evidence found on his diskettes is unavailing.
In Carey, law enforcement officers suspected the defendant was involved in
illegal drug sales. 172 F.3d at 1270. The officers obtained the defendant’s
consent to search his apartment and, as a result, seized the defendant’s computer.
Id. The officers then obtained a search warrant to search the computer files for
“names, telephone numbers, ledger receipts, addresses, and other documentary
evidence pertaining to the sale and distribution of controlled substances.” Id.
While searching his computer, the officers discovered several files which
contained child pornography. Id. at 1271. The defendant moved to suppress the
evidence of child pornography obtained from the computer files. Id. The Carey
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court held that because the search went beyond the justification and basis for the
warrant, the search violated the Fourth Amendment. Id. at 1273-74.
While Fiscus argues that Carey stands for the broad proposition that, absent
exigent circumstances, law enforcement may not search a computer without a
warrant, our decision in Carey merely stands for the proposition that law
enforcement may not expand the scope of their search beyond its original
justification. See Campos, 221 F.3d at 1148. In this case, unlike the search in
Carey, the original justification for seizing Fiscus’ diskettes was the officers’
probable cause to believe that the diskettes contained images of child
pornography. Because the evidence actually obtained in the search of Fiscus’
diskettes was consistent with the original justification for the seizure, the search
was permissible under Carey.
Fiscus also argues that our decision in Campos mandates that law
enforcement obtain a warrant prior to conducting a search of a computer. The
Campos court distinguished the search in Carey and affirmed the district court’s
denial of the defendant’s motion to suppress, reasoning that “the officers . . . did
not expand the scope of their search in a manner not authorized by the warrant.”
Id. The Campos court did note, however, that Carey “require[s] law enforcement
officers to take a special approach” when they discover files in a computer search
that contain information that is both relevant and irrelevant to the scope of the
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search. Id. In this case, however, the officers did not discover the images of
child pornography in files intermingled with other information not relevant to the
scope of their search. Therefore, Fiscus’ argument regarding Campos is similarly
unavailing.
Accordingly, Fiscus’ narrow arguments do not present a sufficient basis on
which to suppress the evidence obtained during the search of his diskettes.
D. Fiscus’ Statements on October 13, 1999
Fiscus contends that the statements he made to the officers at his place of
employment on October 13, 1999 were not voluntarily made and, thus, were made
in contravention of the Fifth Amendment. The district court determined that the
totality of the circumstances demonstrated that Fiscus’ statements were voluntary.
This court reviews de novo the district court’s determination that the statements
were voluntarily made. United States v. Lugo, 170 F.3d 996, 1003 (10th Cir.
1999). The district court’s underlying factual findings, however, are accepted
absent clear error. Id.
To determine whether a statement was voluntary, we consider:
(1) the defendant’s age, intelligence, and education; (2) the length of
the detention and interrogation; (3) the length and nature of the
questioning; (4) whether the defendant was advised of his
constitutional rights; and (5) whether the defendant was subjected to
or threatened with any physical punishment.
Id. at 1004.
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No single factor is considered determinative. Id. Rather, this court determines
“voluntariness on the totality of the circumstances.” Id.
Fiscus had prior experience with the criminal justice system. He was
questioned at his place of employment. Moreover, Fiscus directed the officers to
the room in which the questioning was conducted. Fiscus was only questioned for
approximately thirty minutes and was neither threatened with any physical
punishment nor arrested. Fiscus, however, argues that he was led to believe that
he was still bound by the terms of his parole agreement. Consequently, Fiscus
argues, he believed he was obligated to answer the officers’ questions. While
Mower was present when Daufenbach questioned Fiscus, Mower did not
participate in the questioning. Moreover, Mower informed Fiscus in August 1999
that he was no longer on parole. Finally, the officers never informed Fiscus that
he was obligated to answer their questions. Accordingly, considering the totality
of the circumstances, Fiscus’ statements were voluntarily made.
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IV. CONCLUSION
For the foregoing reasons, the district court’s denial of Fiscus’ motion to
suppress is AFFIRMED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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