United States v. Stabile

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______

Nos. 09-3500 and 09-3501
______

UNITED STATES OF AMERICA

v.

SALVATORE STABILE
Appellant
______

On Appeal from the United States District Court
for the District of New Jersey
(Criminal Nos. 08-cr-00145 & 09-cr-00241-001)
District Judge: Honorable Stanley R. Chesler
______

Argued on December 16, 2010

Before: JORDAN, HARDIMAN and VAN ANTWERPEN,
Circuit Judges.

(Filed February 1, 2011)

Robert W. Ray, Esq. [ARGUED]
Ross M. Bagley, Esq.
Pryor Cashman LLP

1
7 Times Square
New York, NY 10036-6569
Counsel for Appellant

Paul J. Fishman
George S. Leone
John F. Romano [ARGUED]
Office of United States Attorney
970 Broad Street, Suite 700
Newark, NJ 07102-2535
Counsel for Appellee
______

OPINION OF THE COURT
______

VAN ANTWERPEN, Circuit Judge.

Defendant-Appellant Salvatore Stabile (―Stabile‖)
pleaded guilty to one count of bank fraud in violation of 18
U.S.C. § 1344, waived a jury trial and stipulated to facts for a
bench trial with regard to three counts of receipt of child
pornography and one count of possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The
District Court found Stabile guilty of these child pornography
charges. Stabile retained the right to appeal the District
Court‘s ruling on his suppression motions. All charges were
consolidated for sentencing, and the District Court sentenced
Stabile to concurrent sentences of 78 months‘ imprisonment
on each count. Stabile appeals the District Court‘s denial of
his motion to suppress as well as the sentence the District
Court imposed.

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 The facts in this case are complex and they relate to a
number of issues. In particular we face issues regarding the
scope of the plain view doctrine in the context of computer
searches. We will affirm the District Court‘s suppression
order. Stabile also appeals his sentence, however we decline
to exercise our jurisdiction over the sentencing appeal
because Stabile waived his right to appeal his sentence.

I. Facts

A. Background

Prior to the beginning of the investigation, Stabile
resided in Mahwah, New Jersey, with Debbie Deetz. Deetz
believed that she was married to Stabile. However, Stabile
was already married and had not divorced his first wife.
Appx. at A-453. The house shared by Stabile and Deetz was
secured by a mortgage and home equity credit line in the
name of Stabile‘s brother. Stabile defaulted on these loans
and tried to mask his default by passing more than $156,000
in counterfeit checks. These counterfeit checks initially
formed the basis for investigating Stabile.

B. Search of Stabile’s House

At 1:00 p.m. on July 24, 2006, Secret Service Special
Agents Christopher Albanese and John Croes, and Detective
Joseph Nieciecki of the Bergen County Sheriff‘s Department,
arrived at Stabile‘s house to question Stabile about
counterfeiting checks. Stabile was not at home, but Deetz
answered the door, invited the agents inside, asked the
officers to sit at a table near the living room, and offered them
something to drink. The officers informed Deetz of the

3
purpose of their visit and explained that they suspected that
Stabile had engaged in financial crimes. Albanese then asked
Deetz for consent to search the house. Albanese provided
Deetz with a consent form and informed Deetz that she could
refuse consent. Deetz reviewed the consent form for
approximately thirty minutes and then signed it. Deetz
testified that one of the reasons she voluntarily signed the
form was so she herself could find out about Stabile‘s
deceptive financial practices.

Deetz granted consent orally and in writing by signing
a consent form.1 Without a search warrant but with Deetz‘s

1
The ―Consent To Search‖ form states, in its entirety:

―I, Debbie Deetz, have been informed of my
constitutional right not to have a search made of
the premises and/or automobile mentioned
without a search warrant. I have also been
informed of my right to refuse to consent to
such a search. However, I hereby authorize
Christopher Albanese and John Croes, Special
Agents, United States Secret Service to conduct
a complete search of the premises and/or
automobile at 181 Miller Road, Mahwah, NJ.
These (officers or agents) are authorized by me
to take from the premises and/or automobile
any letters, papers, materials or other property
which is contraband or evidence in the nature of
financial crimes. I understand that this
contraband or evidence may be used against me
in a court of law. This written permission is
being given by me to the above named persons

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consent, the agents began a search of the house. During the
course of the search, Deetz led the agents around the house,
provided the agents with documents related to Stabile‘s
finances, and showed the agents the locations of several
computers. Next to one computer, the agents found check
stock, check writing software, photocopies of checks, copies
of previously-passed fraudulent checks, two printers, and
checks with an alias. Deetz also showed the agents two
computers and several hard drives in the basement of the
house. At the suppression hearing, Deetz testified:

Q. And who pointed out those hard drives to the law
enforcement officers?
A. I [Deetz] did.
Q. Did you provide consent for the officers to search
those computers?
A. Yes, I did.

Appx. at A-467. The agents then called the Bergen County
Prosecutor‘s Office, which sent two members from its
Computer Crimes Unit to disconnect the hard drives. Deetz
showed the recently-arrived Bergen County officers the
locations of the computers and the hard drives. Deetz
watched the officers remove the hard drives. When one
officer had difficulty removing a hard drive, Deetz asked the
officer if he needed a screwdriver. The officer replied that he

voluntarily and without threats, duress, or
promises of any kind. I understand that I may
ask for and receive a receipt of all things taken.‖

The form was then signed by Albanese, Croes, and Deetz.
Appx. at A-195.

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did, so Deetz got a screwdriver from Stabile‘s toolbox and
gave it to the officer. At approximately 6:00 p.m., the Bergen
County officers Justified the house, taking with them six hard
drives. Stabile was not present in his house at any point
during this search. In fact, the search had been completed
when Stabile arrived home, at approximately 7:15 p.m.

During their search of Stabile‘s house, the agents also
found several DVDs in a desk bearing labels which led the
agents to believe the DVDs contained child pornography.2
The officers seized the DVDs but, upon a later viewing of
their contents, determined that they did not contain child
pornography.

When Stabile arrived home, Deetz waited outside the
house while the agents interviewed Stabile. Although the
agents attempted to question Stabile, Stabile refused to
answer questions without an attorney present. When
informed that Deetz had already consented to the search,
Stabile attempted to revoke Deetz‘s consent by stating ―I take
it back.‖ The agents then departed. It is undisputed that
Stabile did not request the return of his property at this time.
In fact, Stabile did not request return of his seized property
until February 15, 2008, when he filed a motion to return
property.

2
One such DVD was labeled ―Japanese Mature Women VS.
Ripe Boy Movies.‖ Agent Albanese also opined in his
affidavit attached to the warrant application that the ―images
of males depicted on the labels are . . . images of minors.‖
Appx. at A-127-28.

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 C. Issuance of the State Search Warrant

Although the agents obtained the six hard drives on
July 24, 2006, Agent Albanese did not apply for a state search
warrant until October 19, 2006 because he was assigned to a
Secret Service security detail for the President and other high
officials. Finally, Albanese applied for a state search warrant
on October 19, 2006 in New Jersey Superior Court in Morris
County.3 The state search warrant was issued and authorized
search of the computer hard drives4 for evidence of ―both
financial crimes and the possession of child pornography.‖
Probable cause to search the hard drives for evidence of
financial crimes was based on the check stock, printed
checks, and check printing software found in Stabile‘s house.

3
Stabile‘s home was in Bergen County, New Jersey, but the
investigation was centered in Morris County, New Jersey,
where Stabile allegedly delivered three counterfeit checks to
an attorney.
4
The Morris County Inventory Receipt identified six hard
drives:

(1) Western Digital 40 GB 3.5 inch HDD, Ser #
WMAAT1253959
(1) Western Digital 120 GB 3.5 inch HDD, Ser #
WMAAT2323593
(1) Western Digital 2559.8 MB 3.5 inch HDD, Ser #
WM3491805359
(1) Seagate 3.5 inch HDD, Ser # LAA62086
(1) Quantum 3.5 inch HDD, Ser # 824909331341
(1) Samsung 6.8 GB 3.5 inch HDD, Ser #
0149J1FKB07213

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Probable cause to search for evidence of child pornography
was based on the DVDs found in a desk in Stabile‘s house.
The affidavit submitted by Albanese stated that ―This Affiant
believes these DVDs contain labels with language that refers
to mature women and young boys and contains images of
minors.‖ Unbeknownst to Albanese, between the July 24,
2006 seizure of the DVDs and the October 19, 2006 state
search warrant application, state law enforcement officers had
already viewed the DVDs and determined that they did not
contain child pornography. Albanese was not aware that the
DVDs had been viewed and determined not to contain child
pornography when he applied for the state search warrant on
October 19, 2006. Accordingly, the state search warrant
obtained on October 19, 2006 stated that it authorized search
of the hard drives for evidence of both financial crimes and
child pornography.

On November 16, 2006, after the issuance of the state
search warrant, Agent Albanese traveled to the Bergen
County Prosecutor‘s Office where the evidence was stored.
Albanese picked up the evidence and transported it to the
Morris County Prosecutor‘s Office. During this process, but
before Albanese brought the hard drives to the Morris County
Prosecutor‘s Office, Albanese learned that the DVDs from the
desk had been viewed and were found not to contain child
pornography. Appx. at A-726. Upon arrival, Albanese
―informed everybody,‖ including the detective who would
perform the forensic search, that there was a ―problem‖ with
the state search warrant as it related to child pornography.
Appx. at A-726.

D. Execution of State Search Warrant

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 In mid-November, 2006, Detective Vanadia, a forensic
specialist at the Computer Crimes Unit of the Morris County
Prosecutor‘s Office, received the hard drives. Vanadia had
been instructed to search only for evidence of financial crimes
and told that if he came across child pornography, he was to
stop his review and contact the Secret Service. Appx. at A-
528, A-562, A-580-81, A-727-28.

With these instructions, Detective Vanadia
commenced his forensic hard drive search. He began with the
120 GB hard drive (Western Digital 120 GB 3.5 inch HDD,
Ser # WMAAT2323593). During this search, Vanadia noted
numerous suspicious folders. One such folder was entitled
―Kazvid.‖ Vanadia understood this folder to reference
―Kazaa,‖ a peer-to-peer file sharing program used to share
music, movies, pictures, and programs. Appx. at A-532.
Vanadia also testified that, in his experience, Kazaa has been
used to share and distribute child pornography.

Detective Vanadia then ―highlighted‖ the Kazvid
folder, a procedure that allowed him to view a list of file
names contained in the folder. Vanadia later testified that he
highlighted the Kazvid folder not because it necessarily
contained child pornography but because – as a suspicious
folder – it could harbor evidence of any sort of crime,
including a financial crime. Appx. at A-536-37, A-581-82.
Vanadia also testified that, in his experience, people hoping to
conceal the contents of a folder or file would often mislabel
or otherwise disguise those folders or files. Appx. at A-537,
A-582. However, Vanadia did acknowledge that when he
viewed the file names in the ―Kazvid‖ folder, the thought that
it may contain child pornography did cross his mind. Appx. at
A-588.

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 After highlighting the ―Kazvid‖ folder, Detective
Vanadia observed a list of file names with file extensions
indicating video files and file names suggestive of child
pornography.5 At this point, although Vanadia admitted that
he suspected child pornography and did not believe these
video files contained evidence of financial crimes, Vanadia
proceeded to open twelve different video files within the
Kazvid folder. Appx. at A-534-35, A-591-92. Vanadia
testified that he opened these twelve files to ―confirm‖ that
they contained child pornography rather than something else
(such as adult pornography). Appx. at A-534-35, A-591-92.
After ―confirming‖ that these files did contain child
pornography, Vanadia contacted the prosecutor, who
instructed Vanadia to cease his review of the hard drive.
Agent Albanese was notified of Vanadia‘s findings.

E. The Federal Search Warrants

After learning of Detective Vanadia‘s discovery of
child pornography, Agent Albanese applied for a federal
search warrant on April 23, 2007, which was issued on April
24, 2007. This was the first federal search warrant issued in
this case. The affidavit for the first federal search warrant
was based on probable cause gleaned from the names of the
files in the Kazvid folder, not the contents of the files

5
These files had names such as ―PTHC‖ (pre-teen hardcore),
―PEDO‖ (pedophile-related), ―6YO‖ (six-year-old), and
―8YO‖ (eight-year-old). Some file names identified a sex act
and the gender of the participant following the ―YO‖ age
designation.

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themselves.6 At no point in the first federal search warrant
application did the affidavit state that Vanadia had opened the
files in the Kazvid folder.

On April 24, 2007, based on the file names found in
the Kazvid folder on the 120 GB drive, a magistrate issued
the first federal search warrant authorizing further
investigation. However, by mistake the first federal search
warrant only authorized the search of a different hard drive
owned by Stabile, the 40 GB hard drive (Western Digital 40
GB 3.5 inch HDD, Ser # WMAAT1253959), rather than the
120 GB hard drive Detective Vanadia had examined.

Around April 25, 2007, Agent Joseph Tokash executed
the first federal search warrant and searched the 40 GB hard

6
The affidavit stated:

26. While running a search for the counterfeit check
numbers, Detective Vanadia began reviewing the file
folders on the DRIVE to locate a commercially
available check processing program which, based upon
his training and expertise, he knew was commonly
used in the production of counterfeit checks. While
conducting this review, Detective Vanadia observed a
file folder labeled ―Kazaa Vid‖ that contained
approximately 410 saved files. Detective Vanadia
further observed that several of these files contained
titles with the abbreviation ―PTHC‖ as well as file
names including ―6yopedo‖ and ―9yofuck.‖

Appx. at A-164.

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drive. This search resulted in the discovery of two videos and
86 thumbnail images of child pornography. Appx. at A-189.

Based on the discovery of child pornography on the 40
GB hard drive, Agent Albanese sought a second federal
search warrant on September 20, 2007 to search the other five
hard drives (including the 120 GB hard drive originally
searched by Detective Vanadia in November, 2006 pursuant
to the state search warrant for financial information). The
second federal search warrant was issued authorizing the
search of the remaining five hard drives (excluding the
previously-searched 40 GB hard drive). Agent Tokash
executed the second federal search warrant and discovered
more than 200 videos and 100 thumbnail images depicting
child pornography.

F. Arrest and Prosecution

On October 10, 2007, Stabile was arrested and charged
with receipt of child pornography in violation of 18 U.S.C. §
2252A(a)(2)(B) and indicted on February 21, 2008. On
February 2, 2009, a superseding indictment was filed
charging Stabile with three counts of receipt of child
pornography in violation of 18 U.S.C. § 2252A(a)(2)(B) and
one count of possession of child pornography in violation of
18 U.S.C. § 2252A(a)(5)(B). In a separate prosecution, on
May 9, 2008, Stabile was charged with bank fraud under 18
U.S.C. § 1344.

G. Stabile’s Motion to Suppress and the District Court’s
Decision

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 On July 1, 2008, Stabile moved to suppress evidence
seized from his house on July 24, 2006, arguing (1) that the
Government‘s warrantless seizure of the hard drives for three
months without a search warrant was unreasonable, and (2)
that pursuant to Franks v. Delaware, 438 U.S. 154 (1978), the
state search warrant authorizing search for child pornography
was invalid because the DVDs from the desk which formed
the alleged ―probable cause‖ did not actually contain child
pornography.

In September, 2008, the District Court held a two-day
evidentiary hearing. On November 3, 2008, the parties
submitted post-hearing briefs. Stabile argued that: (1)
Detective Vanadia‘s search exceeded the scope of the search
for financial information authorized by Deetz‘s consent and
the state search warrant; (2) Stabile withdrew Deetz‘s consent
when he got home and therefore, pursuant to Georgia v.
Randolph, 547 U.S. 103 (2006), the Government waited an
unreasonable period of time to secure the state search
warrant; and (3) suppression of evidence was required as a
result of this unreasonable search. On December 4, 2008, the
District Court again heard oral argument.

On January 21, 2009, the District Court denied
Stabile‘s motion to suppress. United States v. Stabile, Crim.
No. 08-145 (SRC), 2009 U.S. Dist. LEXIS 4263 (D.N.J. Jan.
21, 2009). The District Court concluded that the search of
Stabile‘s house was a valid consent search, that Stabile could
not ―revoke‖ Deetz‘s prior consent under Georgia v.
Randolph, that the Government‘s delay in obtaining a state
search warrant was not unreasonably long, and that, under the
inevitable discovery doctrine, the evidence obtained from the
search of the 120 GB hard drive need not be suppressed.

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 On February 3, 2009, Stabile filed a motion for
reconsideration in which he argued that, inter alia, the
District Court committed legal error by applying the
inevitable discovery doctrine rather than the independent
source doctrine, and that this error required correction. On
March 13, 2009, the District Court denied the motion for
reconsideration, reaffirming its application of the inevitable
discovery doctrine and holding that the evidence would also
be admissible under the independent source doctrine. United
States v. Stabile, Crim. No. 08-145 (SRC), 2009 U.S. Dist.
LEXIS 20275 (D.N.J. Mar. 13, 2009).

H. Stipulated Facts Trial and Guilty Verdict (Child
Pornography Counts)

Following denial of his motion to reconsider, Stabile
executed stipulations with the Government, including an
admission that he knowingly received and possessed child
pornography. Stabile also executed a stipulation preserving
his right to appeal the denial of the motion to suppress. The
parties also stipulated that the applicable Guidelines offense
level was 26. Finally, Stabile stipulated that he ―voluntarily
waives the right to file any appeal . . . including but not
limited to an appeal under 18 U.S.C. § 3742 . . . which
challenges the sentence imposed by the sentencing court in
this case if that sentence falls within or below the Guidelines
range that results from the agreed total Guidelines offense
level of 26.‖

On April 3, 2009, Stabile was advised in court about
the impact of the stipulations, including the appellate waiver.
Stabile knowingly and voluntarily agreed to the stipulations.

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After a bench trial, the District Court found Stabile guilty of
all four counts in the Superseding Indictment pertaining to
child pornography.

I. Guilty Plea (Bank Fraud Count)

On April 3, 2009, Stabile was charged in a one-count
information with bank fraud in violation of 18 U.S.C. § 1344,
executed a written Plea Agreement, and entered a guilty plea
to the information.

J. Consolidated Sentencing Proceeding

All of Stabile‘s convictions were consolidated for
sentencing. A sentencing hearing was held on August 12,
2009. The District Court calculated the applicable Guidelines
range using offense level 26 – the level to which Stabile had
agreed. Stabile‘s criminal history category was level III.
The District Court determined that Stabile‘s Guidelines range
was 78 to 97 months. The District Court also heard
arguments from Stabile that the child pornography guideline,
specifically U.S.S.G. § 2G2.2, should be afforded little
deference. After considering these arguments and the 18
U.S.C. § 3553(a) factors, the District Court imposed
concurrent 78-month sentences on each count.

K. Appeal

On August 21, 2009, Stabile filed an appeal
challenging the District Court‘s denial of his motion to
suppress and his sentence.

II. Jurisdiction

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 The District Court had jurisdiction under 18 U.S.C. §
3231. We have jurisdiction over Stabile‘s appeal of the
District Court‘s denial of his motion to suppress under 28
U.S.C. § 1291 and over his challenge to his sentence under 18
U.S.C. § 3742(a).

III. Issues and Analysis

On appeal, Stabile challenges the District Court‘s
denial of his motion to suppress as well as the sentence the
District Court imposed.

III.A. Motion to Suppress

Stabile first appeals the District Court‘s denial of his
motion to suppress evidence of child pornography obtained
from Stabile‘s six computer hard drives. Stabile alleges
myriad violations of his Fourth Amendment rights and
concludes that the fruits of these allegedly illegal searches
must be suppressed. We consider Stabile‘s arguments in
chronological order of the investigation: (1) search of
Stabile‘s house; (2) seizure of Stabile‘s six computer hard
drives; (3) delay in obtaining the state search warrant; and (4)
search of the hard drives. Finding no Fourth Amendment
violations requiring suppression, we will affirm.

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. See United States v.
Bond, 581 F.3d 128, 133 (3d Cir. 2009); United States v.
Perez, 280 F.3d 318, 336 (3d Cir. 2002).

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 III.A.1. Search of Stabile’s House

Stabile first argues that the Government‘s July 24,
2006 warrantless search of his house violated the Fourth
Amendment. This argument fails because Deetz consented to
the search.

The Fourth Amendment prohibits unreasonable
searches and seizures. See Illinois v. Rodriguez, 497 U.S.
177, 183 (1990); United States v. Price, 558 F.3d 270, 277
(3d Cir. 2009); Payton v. New York, 445 U.S. 573, 586
(1980). In general, a ―warrantless entry into a person‘s house
is unreasonable per se.‖ See Payton, 445 U.S. at 586.
However, there are exceptions to this rule. See Jones v.
United States, 357 U.S. 493, 499 (1958).

Consent is an exception to the ―requirements of both a
warrant and probable cause.‖ Schneckloth v. Bustamonte, 412
U.S. 218, 219 (1973); see Florida v. Jimeno, 500 U.S. 248,
250-51 (1991) (approving consent searches because a search
permitted by consent is reasonable). Consent must be given
voluntarily, Bumper v. North Carolina, 391 U.S. 543, 548
(1968), and voluntariness may be gleaned from considering a
range of factors. See Price, 558 F.3d at 279; United States v.
Kim, 27 F.3d 947, 955 (3d Cir. 1994). The individual giving
consent must also possess the authority to do so, see
Rodriguez, 497 U.S. at 181, and ―the consent of one who
possesses common authority over premises or effects is valid
as against the absent, nonconsenting person with whom that
authority is shared,‖ United States v. Matlock, 415 U.S. 164,
170 (1974). Common authority rests not on property rights
but ―rather on mutual use of the property by persons generally
having joint access or control . . . so that it is reasonable to

17
recognize that any of the cohabitants has the right to permit
the inspection in his own right and that the others have
assumed the risk that one of their number might permit the
common area to be searched.‖ Id. at 172 n.7. Finally, ―a
warrantless search of a shared dwelling for evidence over the
express refusal of consent by a physically present resident
cannot be justified as reasonable as to him on the basis of
consent given to the police by another resident.‖ Georgia v.
Randolph, 547 U.S. 103, 120 (2006).

Here, Deetz had authority to consent and voluntarily
consented. Deetz had common authority to consent to a
search of the house because, as a cohabitant, she mutually
used the property along with Stabile and exercised joint
access and control over the house. See Matlock, 415 U.S. at
172 n.7. Deetz‘s mistaken belief that she was married to
Stabile does not alter the analysis because an unmarried
cohabitant has authority to consent to a search of shared
premises. See id. at 176. Finally, we note that at the time
Deetz granted consent, Stabile was not present. Stabile‘s
absence distinguishes this case from Georgia v. Randolph,
which applies only when a ―physically present resident‖
refuses consent. 547 U.S. at 120. Therefore, because Deetz
exercised her access and control over the premises absent any
contemporaneous refusal by a co-resident, she had authority
to consent at the time of the search.

We also conclude that Deetz‘s consent was voluntary.
―[W]e determine the voluntariness of a consent by examining
the totality of the circumstances.‖ Price, 558 F.3d at 278;
Schneckloth, 412 U.S. at 227. We consider such factors as
―age, education, and intelligence of the subject; whether the
subject was advised of his or her constitutional rights; the

18
length of the encounter, the repetition or duration of the
questioning; and the use of physical punishment.‖ Price, 558
F.3d at 278; see Schneckloth, 412 U.S. at 226. The ―‗setting
in which the consent was obtained [and] the parties‘ verbal
and non-verbal actions‘‖ are also relevant. Price, 558 F.3d at
278 (quoting United States v. Givan, 320 F.3d 452, 459 (3d
Cir. 2003)). Finally, even though Deetz was told she could
refuse, the Government need not inform the subject of his
right to refuse consent. Schneckloth, 412 U.S. at 227 (not
essential for prosecution to show that the consenter knew of
the right to refuse consent in order to establish that the
consent was voluntary); Kim, 27 F.3d at 955.

Here, Deetz, an educated person, invited the officers
into her house. She asked the officers to sit and offered them
drinks. The officers asked Deetz to sign a written consent
form, and Deetz thought about whether to sign it for thirty
minutes before she did, in fact, sign it. Deetz also orally
consented to the search. After signing the form, Deetz
assisted the officers in their search of the house by leading
them to several computers and, later, providing one officer
with a screwdriver to help remove a hard drive. Considering
the totality of the circumstances, there is no indication that
Deetz‘s consent was involuntary.

Therefore, because Deetz had the authority to consent
to a search of the house and because Deetz voluntarily
consented to the search, the initial warrantless search of the
house did not violate the Fourth Amendment.

III.A.2. Seizure of Stabile’s Six Hard Drives

19
 Although Stabile concedes in his brief that the
warrantless seizure of the six computer hard drives is
controlled by the case law7 of this circuit, he nevertheless
contests the seizure and makes two arguments in his brief.
First, Stabile contends that the Government lacked authority
to seize the six hard drives because Deetz could not consent
to a seizure of the drives. Second, Stabile argues that even if
Deetz did validly consent to the seizure of the hard drives, the
Government‘s seizure was still unreasonably overbroad.
Both of these arguments lack merit.

III.A.2.a. Consent to Seize Hard Drives

We first consider whether Deetz consented to the
seizure of the hard drives. This analysis parallels the analysis
of whether Deetz could consent to the search of the house:
Deetz must have had authority to consent to the seizure of the
hard drives, and she must have consented voluntarily.

We believe Deetz had authority to consent to the
seizure of the six hard drives. The ―authority to consent‖
determination is complicated because computers often
contain segregated blocks of information. We begin with the
same proposition that authority to consent derives from
―mutual use of the property by persons generally having joint
access or control for most purposes.‖ Matlock, 415 U.S. at
171 n.7; see Frazier v. Cupp, 394 U.S. 731, 740 (1969) (joint
use of duffel bag gave third party authority to consent to
search of bag). However, a third party lacks authority to
consent to a search of an area in which the target of the search

7
Stabile cites United States v. King, 604 F.3d 125 (3d Cir.
2010).

20
has not ―relinquished his privacy.‖ United States v. King, 604
F.3d 125, 137 (3d Cir. 2010); see United States v. Block, 590
F.2d 535 (4th Cir. 1978) (holding that mother had authority to
consent to search of son‘s bedroom but not to son‘s locked
footlocker kept under his bed); Randolph, 547 U.S. at 135
(Roberts, C.J., dissenting) (―To the extent a person wants to
ensure that his possessions will be subject to a consent search
only due to his own consent, he is free to place these items in
an area over which others do not share access and control, be
it in a private room or a locked suitcase under a bed.‖). Thus
if a person has not ―relinquished his privacy‖ in some files on
a computer or in a subset of information contained on the
computer, a third party would have no authority to consent to
the search or seizure of those segregated materials.

Additionally, multiple people may use the same
computer and store information on the same hard drive. It is
more difficult to determine whether joint access and control
exists over information stored on a computer than the
contents of a duffel bag. See Frazier, 394 U.S. at 740.
Indeed, attempting to make these determinations would force
courts to engage in the very ―metaphysical subtleties‖ the
Supreme Court expressly rejected in Frazier when the
defendant unsuccessfully argued that a third party had ―actual
consent‖ only to use one compartment of a duffel bag. Id.
Thus we are faced at the outset with a conceptual question: is
a computer more like a shared duffel bag, see Frazier, 394
U.S. 731, or more like a locked footlocker under the bed? See
Block, 590 F.2d 535. We believe the answer depends on
factors such as the identity of the user(s), whether password
protection is used, and the location of the computer in the
house. See United States v. Andrus, 483 F.3d 711,718-20

21
(10th Cir. 2007) (listing factors to consider when evaluating
validity of third party consent to search computer).

Recently, in United States v. King, where the
defendant ―placed his hard drive inside the computer‖ owned
by another person but which the two of them shared, and did
not use password protection, the defendant ―assumed the risk‖
that the other person would ―consent to its seizure.‖ 604 F.3d
at 137. Conversely, in Trulock v. Freeh, the defendant
utilized password protection to protect his private computer
files, and, therefore, the Fourth Circuit determined that the
defendant had not assumed the risk that his co-user ―would
permit others to search his files.‖ 275 F.3d 391, 403 (4th Cir.
2001). Moreover, in King, we considered whether the
holding of Georgia v. Randolph that a ―present and objecting
resident can override another resident‘s consent to search a
home‖ applied to the seizure of a computer. 604 F.3d at 130.
The King court determined that Randolph was meant to apply
only to dwellings and, therefore, that a ―present and objecting
resident‖ could not override another resident‘s consent to
seize a shared computer which contained a personal hard
drive but lacked user-specific password protection. Id. at
137; see Andrus, 483 F.3d at 721 (objectively reasonable to
perceive third party consent where consenter was a ―user‖ of
the computer).

Here, the facts weigh in favor of a determination that
Deetz had the authority to consent to a search and seizure of
the shared hard drives. First, the computer was not password-
protected. The failure to use password protection indicates
that Stabile relinquished his privacy in the contents of the
computer. Cf. Trulock, 275 F.3d at 403 (third party did not
have authority to consent to search of joint computer user‘s

22
password-protected files). In distinction to King, here Stabile
was not present and objecting to the search of the computer.
Moreover, all of the computers and seized hard drives were
located in common areas of the home, such as on the main
floor and in the basement, rather than in a private bedroom.
See Andrus, 483 F.3d at 719 (third party authority to consent
generally upheld when computer located in common area
accessible to family members). These factors indicate that,
under the totality of the circumstances, Deetz had unfettered
access to the hard drives and had authority to consent to the
seizure of all of them.

Deetz‘s consent to the seizure of the six hard drives
was voluntary. As previously discussed, Deetz signed the
consent form and told the investigator to ―go ahead and take
them [the hard drives].‖ Moreover, Deetz‘s consent may also
be inferred from the assistance she provided to the officers.
Specifically, when one officer had difficulty extracting a hard
drive from the computer terminal, Deetz obtained a
screwdriver from Stabile‘s toolbox and gave it to the officer.
See United States v. Al-Marri, 230 F. Supp. 2d 535, 539
(S.D.N.Y. 2002) (defendant objectively consented to search
of his computer by, inter alia, assisting the investigation by
helping FBI agents pack his computer in a carrying case).

Thus we conclude that Deetz had authority to consent
to the seizure of the six hard drives and did so voluntarily.

III.A.2.b. Scope of Seizure of Hard Drives

Pursuant to Deetz‘s consent, the officers searched the
house and seized six computer hard drives. Stabile argues
that even assuming Deetz validly consented to this search and

23
seizure, the seizure of six entire hard drives was unreasonable
because it was unconstitutionally overbroad. Stabile notes
that by seizing six entire hard drives, the Government also
seized personal emails and other information not related to
financial crimes. Therefore, according to Stabile, the
Government‘s failure to ―segregate‖ data on-site (at Stabile‘s
house) renders this seizure unconstitutionally overbroad. The
Government defends the seizure on the grounds that Deetz
did not limit the scope of her consent, that evidence of
financial crimes could be found anywhere on any computer
hard drive, and that the practical considerations of
investigating and seizing electronic evidence counsel against
on-site data collection. We agree with the Government and
reject Stabile‘s argument.

The seizure of the six entire hard drives was
reasonable. First, except for the restriction as to financial
crimes, Deetz did not limit the scope of her consent in any
way. See Jimeno, 500 U.S. at 251-52 (requiring explicit
limitation on consent). Second, a broad seizure was required
because evidence of financial crimes could have been found
in any location on any of the six hard drives, and this
evidence very likely would have been disguised or concealed
somewhere on the hard drive. See United States v. Adjani,
452 F.3d 1140, 1150 (9th Cir. 2006). Third, as a practical
matter, ―[w]hen a search requires review of a large collection
of items, such as papers, ‗it is certain that some innocuous
documents will be examined, at least cursorily, in order to
determine whether they are, in fact, among those papers
authorized to be seized.‘‖ United States v. Williams, 592 F.3d
511, 519-20 (4th Cir. 2010) (quoting Andresen v. Maryland,
427 U.S. 463, 482 n.11 (1976)). Finally, Stabile argues for an
―on-site‖ search requirement, but the practical realities of

24
computer investigations preclude on-site searches. For
example, a hard drive search requires a ―controlled
environment.‖ United States v. Hay, 231 F.3d 630, 637 (9th
Cir. 2000). Computer searches are also time consuming and
require trained forensic investigators. See United States v.
Upham, 168 F.3d 532, 535 (1st Cir. 1999). In short, such on-
site searches would be ―fraught with difficulty and risk,‖
United States v. Hill, 459 F.3d 966, 974 (9th Cir. 2006), and
cannot be rushed by a cursory on-site search.8 All these
reasons suggest that the seizure of the six entire hard drives
was reasonable.

Lastly, although Stabile attempted to revoke Deetz‘s
consent when he returned home later on the day of the search

8
Stabile heavily relies on United States v. Tamura, 694 F.2d
591 (9th Cir. 1982). His reliance is faulty. Tamura, a case
dealing with the overbroad seizure of paper records,
―preceded the dawn of the information age.‖ Comprehensive
Drug Testing, 621 F.3d 1162, 1169 (9th Cir. 2010)
(discussing Tamura). And even the Ninth Circuit recognized
that Tamura needed to be ―updated . . . to apply to the
daunting realities of electronic searches.‖ Id. at 1177. Thus
while the concerns of Tamura may remain valid, we hesitate
to apply the procedures Tamura outlined for proper searches
of physical evidence to the procedures required to searches of
electronic evidence. See generally, id., at 1175-78. Finally,
we note that although the Tamura court found the overbroad
seizure of documents ―unreasonable,‖ the court concluded
that suppression was not required. Tamura, 694 F.2d at 696-
97. Thus, even if Tamura were to apply, it would not require
suppression here either.

25
by stating ―I take it [Deetz‘s consent] back‖ to the
investigating agents, this revocation is ineffective. Stabile
could not revoke Deetz‘s consent to search the house because
Stabile was not ―physically present‖ at the time Deetz
consented. Randolph, 547 U.S. at 120. Nor can Stabile
revoke Deetz‘s consent to the seizure of the shared hard
drives because Stabile had ―relinquished his privacy‖ in the
hard drives, King, 604 F.3d at 137, and thus ―assumed the
risk‖ that a third party could consent to their search or
seizure, Matlock, 415 U.S. at 171.

III.A.3. Delay in Obtaining the State Search Warrant

Stabile also argues that the Government unreasonably
delayed by waiting almost three months9 before obtaining the
state search warrant and searching the seized hard drives.
This argument raises some difficult issues.

Initially, we note that Stabile‘s reliance on United
States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009), and United
States v. Dass, 849 F.2d 414 (9th Cir. 1988), is misplaced.
Mitchell and Dass held, respectively, that a 21-day delay and
a 7- to 23-day delay between seizure and search were
unreasonable when the warrantless seizures were based on
probable cause, not consent. Mitchell, 565 F.3d at 1349-51;
Dass, 849 F.2d at 414-15. This distinction matters. The
Mitchell court carefully policed the temporal delay in
obtaining a search warrant because each passing day
―infringes possessory interests protected by the Fourth

9
The officers seized the hard drives on July 24, 2006, but the
state search warrant was not issued until October 19, 2006.

26
Amendment‘s prohibition on ‗unreasonable searches.‘‖
Mitchell, 565 F.3d at 1350 (quoting United States v.
Jacobsen, 466 U.S. 109, 124 (1984)). But where a person
consents to search and seizure, no possessory interest has
been infringed because valid consent, by definition, requires
voluntary tender of property.10

Of course, ―a seizure lawful at its inception can
nevertheless violate the Fourth Amendment if its manner of
execution unreasonably infringes possessory interests
protected by the Fourth Amendment‘s prohibition on
‗unreasonable seizures.‘‖ Jacobsen, 466 U.S. at 125. To
determine whether the seizure became unreasonable, this
Court ―must balance the nature and quality of the intrusion on
the individual‘s Fourth Amendment interests against the
importance of the governmental interests alleged to justify the
intrusion.‖ United States v. Place, 462 U.S. 696, 703 (1983);
see United States v. Martin, 157 F.3d 46, 54 (2d Cir. 1998)
(―even a seizure based on probable cause is unconstitutional if
police act with unreasonable delay in securing a warrant‖).

Here, we balance the interests at stake to determine
whether the three month delay was reasonable. Stabile relies
on Mitchell‘s focus on the property interest at stake in one‘s
computer:

Computers are relied upon heavily for personal
and business use. Individuals may store
personal letters, e-mails, financial information,

10
As noted, there was no request for return of the hard drives
until February 15, 2008, which was well after the state search
warrant had been obtained.

27
 passwords, family photos, and countless other
items of a personal nature in electronic form on
their computer hard drives. . . . If anything, this
consideration applies with even greater force to
the hard drive of a computer, which is the
digital equivalent of its owner‘s home, capable
of holding a universe of private information.

Mitchell, 565 F.3d at 1351-52. Stabile also argues that ―his
job required him to have constant access to a computer.‖
Appx. at A-202; Appellant‘s Br. 23.

Stabile‘s actions undermine his argument. First, it is
undisputed that Stabile did not ask for the return of his hard
drives until February 15, 2008 – eighteen months after the
initial seizure of the hard drives.11 See United States v. Johns,
469 U.S. 478, 487 (1985) (defendants who ―never sought
return of the property‖ cannot argue that delay adversely
affected Fourth Amendment rights). And when asked why he
never requested the return of the hard drives, Stabile testified,
―I just assumed that perhaps that they didn‘t find anything
and it was going to go away.‖ Appx. at A-780. Second,

11
Stabile argues that his attempted revocation of Deetz‘s
consent must be construed as a ―request for re-possession of
his seized property. Appellant‘s Br. 26. We disagree. In
response to the officers‘ statement to Stabile that Deetz had
already given consent to a search of the house, Stabile
replied, ―I take it back.‖ This bare statement cannot be
transformed into a request for return of the hard drives.
Moreover, Stabile concedes, as he must, that our opinion in
United States v. King forecloses his attempt to revoke consent
pursuant to Georgia v. Randolph. Appellant‘s Br. 35 n.16.

28
although Stabile claims he needed a computer for work,
Deetz brought a replacement computer to the house one day
after Stabile‘s computers had been seized. Appx. at A-473-
75.

We also consider the Government‘s rationale for the
delay. Agent Albanese testified that the three-month delay in
securing a state search warrant was due to his assignment to a
Secret Service Detail protecting the President and other high
officials. Moreover, because Albanese was the lead case
agent, he was responsible for seeking the state search warrant.
Stabile notes that the Eleventh Circuit in Mitchell rejected the
argument that a 21-day delay was not unreasonable because
the officer was attending a training seminar. Mitchell, 565
F.3d at 1352. However, the Mitchell court explicitly stated
that ―we emphasize that we are applying a rule of
reasonableness that is dependent on all of the circumstances.‖
Id. Moreover, the Mitchell court stated that it would be
―sympathetic‖ if ―some overriding circumstances arose,
necessitating the diversion of law enforcement personnel to
another case.‖ Id. at 1353. Here, such overriding
circumstances were present because Agent Albanese was
assigned to what was obviously important security work.
Agent Albanese was also the lead investigator on a multiple-
county investigation requiring coordination. Considering this
explanation along with the other factors, we believe the
Government‘s three-month delay in obtaining a state search
warrant was reasonable under the circumstances.
Nevertheless, the delay was not unavoidable, and we are
troubled by it. In the absence of the same circumstances
present here, we might very well reach a different result.

III.A.4. Execution of State Search Warrant

29
 As previously discussed, Agent Albanese obtained the
state search warrant on October 19, 2006. In mid-November,
Detective Vanadia commenced a warranted search of the 120
GB hard drive solely for evidence of financial crimes.12
During this search, Vanadia noticed a folder named ―Kazvid.‖
The folder contained files bearing names indicative of child
pornography. Vanadia then opened these files and
―confirmed‖ that they did contain child pornography. Stabile
argued that this search violated the Fourth Amendment and
that the fruits of the search had to be suppressed.

The District Court first determined that Detective
Vanadia lawfully opened the Kazvid folder. The District
Court then found that the file names of the files in the Kazvid
folder were in ―plain view,‖ but that the plain view doctrine
did not encompass the contents of those files. However, the
District Court determined that Vanadia‘s decision to view the
contents of the files, although violative of the Fourth
Amendment, did not require suppression because of the
inevitable discovery doctrine.

On appeal, Stabile challenges each step of this search,
arguing that: (1) Detective Vanadia improperly opened the

12
The warrant initially authorized a search for evidence of
both financial crimes and child pornography. However,
because probable cause was based on DVDs found in
Stabile‘s desk that did not actually contain child pornography,
the District Court determined that the child pornography
section of the warrant had to be excised in violation of Franks
v. Delaware, 438 U.S. 154 (1978). United States v. Stabile,
2009 U.S. Dist. LEXIS 4263, at *20-*21 (D.N.J. Jan. 21,
2009). The parties do not dispute this decision.

30
―Kazvid‖ folder; (2) that the plain view doctrine should not
apply to the file names found in the Kazvid folder; and (3)
that the inevitable discovery and independent source doctrines
do not apply and therefore this evidence must be suppressed.
The Government contends that the plain view doctrine applies
not only to the names of the files in the Kazvid folder but also
to all the contents of those files. For the reasons that follow,
we determine that Detective Vanadia properly opened that
Kazvid folder; that the names of the files in that folder were
in plain view; and that although under the facts of this case
the plain view doctrine may not apply to the contents of those
files, the independent source and inevitable discovery
doctrines apply to the contents of the files, thereby removing
any need for suppression. Therefore, we will affirm the
District Court‘s decision.

III.A.4.a. View of Files in “Kazvid” Folder

The first issue is whether, pursuant to the state search
warrant to search for evidence of financial crimes, Detective
Vanadia properly viewed the files in the Kazvid folder. The
District Court found that Vanadia properly opened this file
because he reasonably believed that it could contain evidence
of financial crimes.

Stabile contends that Detective Vanadia ―stumbled‖
upon the videos in the Kazvid folder by failing to limit the
scope of his search to evidence of financial crimes.
Appellant‘s Br. 29. According to Stabile, Vanadia‘s decision
to open Kazvid was an unreasonably overbroad search, not
limited to evidence of financial crimes, and a pretext for
searching for child pornography. See Appellant‘s Br. 29-30,
37 n.19. We disagree.

31
 Resolution of this issue forces us to reconcile two
competing principles. On one hand, it is clear that because
criminals can – and often do – hide, mislabel, or manipulate
files to conceal criminal activity, a broad, expansive search of
the hard drive may be required. See United States v. Burgess,
576 F.3d 1078, 1092-94 (10th Cir. 2009) (―[T]here may be no
practical substitute for actually looking in many (perhaps all)
folders and sometimes at the documents contained within
those folders, and that is true whether the search is of
computer files or physical files.‖); United States v. Mann, 592
F.3d 779, 782 (7th Cir. 2010) (relevant files are often hidden
and can be mislabeled and ―manipulated to hide their true
contents‖); Adjani, 452 F.3d 1140, 1150 (9th Cir. 2006). On
the other hand, as Stabile argues, granting the Government a
carte blanche to search every file on the hard drive
impermissibly transforms a ―limited search into a general
one.‖ Marron v. United States, 275 U.S. 192, 196 (1927)
(―The requirement that warrants shall particularly describe
things to be seized makes general searches under them
impossible and prevents the seizure of one thing under a
warrant describing another.‖); see United States v. Tracey,
597 F.3d 140, 146 (3d Cir. 2010). To reconcile these
competing aims, many courts have suggested various
strategies and search methodologies to limit the scope of the
search.

In United States v. Comprehensive Drug Testing, Inc.,
the federal government investigated the Bay Area Lab
Cooperative (―Balco‖), suspected of providing steroids to
professional baseball players. 621 F.3d 1162, 1166 (9th Cir.
2010). In 2002, the Major League Baseball Players
Association entered into a collective bargaining agreement

32
that provided for drug testing of all players (performed by
Comprehensive Drug Testing) for the purpose of determining
only whether more than five percent of players tested
positive. Id. The players were assured that the results would
remain anonymous and confidential. Id. During the Balco
investigation, the government learned of ten players who had
tested positive, and it sought and obtained a warrant limited to
the records of ten players as to whom there was probable
cause to search. Id. However, when the government
executed the warrant, the government seized and reviewed the
drug testing record for hundreds of players. Id. On appeal to
the Ninth Circuit en banc, the en banc court discussed proper
procedures for handling seized data premised on its earlier
opinion in Tamura. Id. At 1167. For example, the initial
review and segregation of the data was to be performed not
by the case agents but by ―law enforcement personnel trained
in search and seizing computer data.‖ Id. At 1168. The
government was to return any data that did not fall within the
scope of the warrant. Id. At 1168-69. As the Ninth Circuit
stated:

We recognize the reality that over-seizing is an
inherent part of the electronic search process
and proceed on the assumption that, when it
comes to the seizure of electronic records, this
will be far more common than in the days of
paper records. This calls for greater vigilance
on the part of judicial officers in 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. The process of segregating electronic
data that is seizable from that which is not must

33
 not become a vehicle for the government to gain
access to data which it has no probable cause to
collect.

Id. At 1177.

In United States v. Carey, the Tenth Circuit suggested
methods to avoid searching files of the type not identified in
the warrant, such as ―observing files types and titles listed on
the directory, doing a key word search for relevant terms, or
reading portions of each file stored in the memory.‖ 172 F.3d
1268, 1276 (10th Cir. 1999). The Tenth Circuit has refined
its approach since Carey. In Burgess, the Tenth Circuit
considered the appropriate standards for searching a hard
drive, offering the following guidance: ―while officers must
be clear as what it is they are seeking on the computer and
conduct the search in a way that avoids searching files of
types not identified in the warrant,‖ United States v. Walser,
275 F.3d 981, 986 (10th Cir. 2001), ―a computer search may
be as extensive as reasonably required to locate the items
described in the warrant‖ based on probable cause. United
States v. Grimmett, 439 F.3d 1263, 1270 (10th Cir. 2006)
(quotations omitted). But the search warrant itself need not
―contain a particularized computer search strategy.‖ United
States v. Brooks, 427 F.3d 1246, 1251 (10th Cir. 2005).
Given that it would be ―folly for a search warrant to structure
the mechanics of the search‖ because ―imposing such limits
would unduly restrict legitimate search objectives,‖ Burgess,
576 F.3d at 1094, the scope of the search must be
―constrained by content.‖ Id. at 1093. In Burgess, that
content was computer files containing evidence of drug use or
trafficking. Id. To avoid transforming a limited search into a
general one, the court cautioned that ―[a]s the description of

34
such places and things becomes more general, the method by
which the search is executed become[s] more important – the
search method must be tailored to meet allowed ends.‖ Id. at
1094. Speaking directly to search methodology, Burgess
recommended that computer searches begin by using search
protocol to structure the search with an analysis of the file
structure, followed by a search for suspicious file folders, and
then looking for files and types of files most likely to contain
the objects of the search by doing keyword searches. Id. In
the end, however, the Burgess court noted that ―there may be
no practical substitute for actually looking in many (perhaps
all) folders and sometimes at the documents contained within
those folders . . . .‖ Id.

Finally, in United States v. Mann, the defendant argued
that the government‘s search of his computer for evidence of
voyeurism exceeded the scope of the search warrant where
the search produced evidence of child pornography. 592 F.3d
at 781. The Seventh Circuit held that the search was lawful,
and noted the particular difficulties in attempting to locate
image files on a computer because the files may be
―manipulated to hide their true contents.‖ Id. at 782; see Hill,
459 F.3d at 978 (―Images can be hidden in all manner of files,
even word processing documents and spreadsheets.
Criminals will do all they can to conceal contraband,
including the simple expedient of changing the names and
extensions of files to disguise their content from the casual
observer.‖).

Turning to the instant case, the scope of the consent
and state search warrant were limited to evidence of financial
crimes. For a number of reasons, we believe that Detective
Vanadia‘s decision to highlight and view the contents of the

35
Kazvid folder was reasonable and permissible under the
Fourth Amendment.

First, Detective Vanadia‘s decision to highlight and
view the contents of the Kazvid folder was objectively
reasonable because criminals can easily alter file names and
file extensions to conceal contraband. See Williams, 592 F.3d
at 522; Hill, 459 F.3d at 978. Second, Detective Vanadia‘s
search procedures complied with the search procedures
outlined in Carey – a case which advocates more restrictive
search procedures than the broader search procedures
approved in Williams and Burgess. For example, Carey
suggested search methods such as focusing on the file type
identified in the warrant, file names, key word search, and
directory structure. 172 F.3d at 1276. Conversely, Williams
stated that a computer search authorized at least a ―cursory
review of each file on the computer.‖ 592 F.3d at 522.
Likewise, Burgess suggested that ―there may be no practical
substitute for actually looking in many (perhaps all) folders
and sometimes at the documents contained within those
folders‖ while conducting an electronic search. 576 F.3d at
1094. Here, Vanadia took steps to ensure that his
investigation complied with the state search warrant. Vanadia
began by physically inspecting the hard drive and creating a
copy of the drive to ensure that the original drive was not
damaged or corrupted during the search. Next, Vanadia
examined the file signatures to see if any files had been
corrupted. He then conducted a ―hash value analysis‖ to see
if any files had been copied. Finally, he examined suspicious
and out-of-place folders, such as the Kazvid folder. Appx. at
A-521-27, A-531-32, A-536-37. These procedures

36
demonstrate that Vanadia engaged in a focused search of the
hard drives rather than a general search.13

Finally, Stabile argues that Detective Vanadia
exceeded the scope of the state search warrant because
Vanadia testified that he knew that there may have been child
pornography contained in the Kazvid folder.14 This argument

13
We note that although Stabile argues that Detective
Vanadia‘s search methodology was overbroad, Stabile offers
no practical alternative methodology that would have
protected his interests yet still permitted a thorough search for
evidence of financial crimes. See Burgess, 576 F.3d at 1095;
Brooks, 427 F.3d at 1251. Indeed, Stabile‘s only suggestion
was for Vanadia to use EnCase software to conduct a ―green
home plate highlighting of the entire hard drive,‖ which
would have permitted Vanadia to isolate file types.
Appellant‘s Br. 28. But because evidence of check fraud is
often contained on image files, if Vanadia had employed
Stabile‘s suggested method, he still would have isolated
image files and, eventually, Vanadia would have discovered
images of child pornography. Therefore, Stabile fails to
propose a legitimate alternative methodology.
14
Stabile quoted the following testimony in support of his
argument:

Q. At the moment that you were making the decision
to open up Kazvid, didn‘t you say to yourself, you
know, there may well be child pornography here?
A. Sure.
Q. Okay. So it‘s not true that you opened the folder
only for the purpose of trying to see whether or not

37
fails because an investigator‘s subjective intent is not relevant
to whether a search falls within the scope of a search warrant.
See Maryland v. Garrison, 480 U.S. 79, 84 (1987) (―the scope
of a lawful search is defined by the object of the search and
the places in which there is probable cause to believe it may
be found‖) (internal citation omitted); Williams, 592 F.3d at
524 (where investigators executed search warrant for
evidence of computer harassment on defendant‘s hard drive,
plain view seizure of child pornography discovered during
search was permissible ―even if finding child pornography
was their hope from the outset‖).15 Here, the state search
warrant objectively authorized Vanadia to search for evidence
of financial crimes, and Vanadia‘s testimony that he
subjectively believed the Kazvid folder could harbor evidence
of child pornography does not render the search of the Kazvid
folder invalid. Moreover, as Vanadia made clear in his
testimony, the Kazvid folder required further investigation
because evidence of financial crimes could be hidden within.
Appx. at A-536-37.

there were financial crimes or evidence of financial
crimes lurking in the Kazvid directory. Isn‘t that fair
to say?
A. Yes.

Appx. at A-42.
15
See also Horton v. California, 496 U.S. 128, 138 (1990)
(―The fact that an officer is interested in an item of evidence
and fully expects to find it in the course of a search should not
invalidate its seizure if the search is confined in an area and
duration by the terms of a warrant or a valid exception to the
warrant requirement.‖).

38
 For the foregoing reasons, we conclude that
highlighting the Kazvid folder was reasonable and did not
exceed the scope of the state search warrant.

III.A.4.b. Plain View Examination of File Names

After highlighting the Kazvid folder, Detective
Vanadia observed in the folder a list of files with lurid names.
The Government argues that these file names may be
examined pursuant to the plain view doctrine. Stabile
disagrees. This brings us to the question of whether evidence
of other crimes in a computer can be examined under the
plain view doctrine. We hold that the plain view doctrine
applies to seizures of evidence during searches of computer
files, but the exact confines of the doctrine will vary from
case to case in a common-sense, fact-intensive manner.16

16
We decline to follow the Ninth Circuit‘s suggestion to
―forswear reliance on the plain view doctrine‖ whenever the
government seeks a warrant to examine a computer hard
drive. United States v. Comprehensive Drug Testing, 621
F.3d 1162, 1178 (9th Cir. 2010) (Kozinski, C.J., concurring).
Instead, we agree with the Seventh Circuit‘s view that rather
than jettisoning the plain view doctrine entirely in electronic
searches, ―the more considered approach ‗would be to allow
the contours of the plain view doctrine to develop
incrementally through the normal course of fact-based
adjudication.‘‖ Mann, 592 F.3d at 785 (quoting
Comprehensive Drug Testing, 621 F.3d at 1184 (Callahan, J.,
concurring in part and dissenting in part from the en banc
panel‘s per curiam opinion)). In short, we agree that ―[a]
measured approach based on the facts of a particular case is

39
What is permissible in one situation may not always be
permissible in another.

There are three requirements for valid seizures of
evidence in plain view. ―First, the officer must not have
violated the Fourth Amendment in ‗arriving at the place from
which the evidence could be plainly viewed.‘ Second, the
incriminating character of the evidence must be ‗immediately
apparent.‘ Third, the officer must have ‗a lawful right of
access to the object itself.‘‖ United States v. Menon, 24 F.3d
550, 559-60 (3d Cir. 1994) (quoting Horton, 496 U.S. at 141)
(internal citations omitted). Detective Vanadia‘s examination
of the file names in the Kazvid folder, to the extent that he
may arguably be said to have ―seized‖ the names by, for
example, making a screen print, satisfies all three plain view
requirements.17

especially warranted in the case of computer-related
technology, which is constantly and quickly evolving.‖
Comprehensive Drug Testing, 621 F.3d at 1184 (Callahan, J.,
concurring in part and dissenting in part from the en banc
panel‘s per curiam opinion). We engage in just such a fact-
intensive inquiry here.
17
Mere observation must be distinguished from seizure, a
distinction that may become hazy in the digital environment.
We do not believe that simply seeing the file names
constitutes a seizure. See Texas v. Brown, 460 U.S. 730, 739
n.4 (1983) (plurality opinion) (―It is important to distinguish
‗plain view,‘ . . . to justify seizure of an object, from an
officer‘s mere observation of an item left in plain view.
Whereas the latter generally involves no Fourth Amendment
search . . . , the former generally does implicate the

40
 First, Detective Vanadia did not violate the Fourth
Amendment in arriving at the place from which the evidence
could be viewed. Deetz consented to the seizure of all six
hard drives and a magistrate issued a state search warrant to
search all six hard drives for evidence of financial crimes.
Vanadia began executing the state search warrant by
searching the 120 GB hard drive. Within the 120 GB hard
drive, Vanadia noticed the Kazvid folder. He lawfully
highlighted the Kazvid folder to view its contents because a
thorough computer search requires a broad examination of
files on the computer to ensure that file names have not been
manipulated to conceal their contents. See Williams, 592
F.3d at 522; Hill, 459 F.3d at 978. Nor did Vanadia
unreasonably expand the scope of his search by highlighting
the Kazvid folder and viewing its contents. See Mann, 592
F.3d at 784 (search was lawful where investigator conducted
search within scope of warrant and did not knowingly expand
the scope of the search to discover child pornography).
Therefore, the first plain view requirement is satisfied
because Vanadia ―lawfully arrived at the point from which
the evidence could be viewed.‖

Amendment‘s limitations upon seizures of personal property.
The information obtained as a result of observation of an
object in plain sight may be the basis for probable cause or
reasonable suspicion of illegal activity. In turn, these levels
of suspicion may, in some cases, . . . justify police conduct
affording them access to a particular item.‖) (internal citations
omitted). Whether recording the names in some fashion
implicates the Fourth Amendment is not something we need
to decide in this case. We will assume that it does, solely for
the sake of analyzing why Stabile‘s arguments fail.

41
 Second, there is no doubt that the incriminating
character of the evidence—in this instance the names
themselves—was ―immediately apparent.‖18 The Kazvid
folder contained files with lurid names. These file names
suggested that Stabile illegally possessed contraband (child
pornography). See Williams, 592 F.3d at 522 (―[W]hen the
officer then comes upon child pornography, it becomes
‗immediately apparent‘ that its possession by the computer‘s
owner is illegal and incriminating.‖).

Third, Detective Vanadia had a ―lawful right of
access‖ to the object of the search because he was authorized
by a state search warrant to search the 120 GB hard drive for
evidence of Stabile‘s financial crimes. See id.

Therefore, we conclude that the Government properly
examined the file names listed in the Kazvid folder pursuant
to the plain view doctrine.

III.A.4.c. Plain View Examination of File Contents

After highlighting the Kazvid folder, Detective
Vanadia viewed a list of file names with file extensions
suggesting child pornography videos. Vanadia testified that

18
Again, it is only because the file names themselves have
evidentiary significance and may at least arguably be ―seized‖
via, for example, a screen print, and then tendered in
evidence, that the plain view doctrine could be implicated at
all. See Brown, 460 U.S. at 739 n.4 (distinguishing ―plain
view‖ as a doctrine that justifies the seizure of evidence from
the mere observation of things in plain sight).

42
he opened these video files to ―confirm‖ they contained child
pornography. Appx. at A-534-35, A-591-92. The
Government claims in their brief that under the plain view
doctrine, once Detective Vanadia saw the lurid file names he
was then empowered to seize and examine the contents of
those files. Gov‘t‘s Br. 38. Stabile argues, and the District
Court concluded, that opening the video files to view their
contents exceeded the scope of the state search warrant and
that plain view did not apply, resulting in an illegal search.19
The state search warrant issued on October 19, 2006
authorized Vanadia to search all six hard drives only for
evidence of financial crimes.20

We need not resolve whether the plain view doctrine
applies to examination of contents of the video files because
the independent source and inevitable discovery doctrines
apply to the contents of all the video files. Therefore, we
ultimately conclude that suppression is not required.

III.A.4.d. Independent Source

19
The District Court concluded, however, that this violation
did not require suppression because the inevitable discovery
doctrine applied.
20
The warrant also authorized a search for child pornography
in the DVDs found in a desk in Stabile‘s home. These DVDs
did not contain child pornography, and the District Court
ultimately excised this portion of the warrant because it ran
afoul of Franks v. Delaware. Appx. at A-101.

43
 Even assuming Detective Vanadia illegally opened and
examined the contents of the video files in the Kazvid folder,
the independent source doctrine applies and removes any taint
from this search.21 Typically, the exclusionary rule requires
that we suppress evidence obtained as a result of an illegal
search. Wong Sun v. United States, 371 U.S. 471, 485 (1963).
However, ―[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)). Here, the District Court concluded that
suppression was not required because the inevitable discovery
exception to the exclusionary rule applied.22 For the reasons

21
For purposes of applying the independent source doctrine,
we assume, without deciding, that Vanadia illegally viewed
the contents of the video files in the Kazvid folder.
22
Following the District Court‘s January 21, 2009 order
denying his motion to suppress, Stabile filed a motion to
reconsider, arguing that the District Court erred by applying
the inevitable discovery doctrine rather than the independent
source doctrine. On March 13, 2009, the District Court
denied Stabile‘s motion to reconsider and reaffirmed its
reliance on the inevitable discovery doctrine. The District
Court concluded that suppression was unnecessary under the
independent source doctrine as well.
Here, we think the independent source doctrine more
appropriately applies to the contents of the video files. We
also think that the inevitable discovery doctrine applies to the

44
evidence obtained while executing the invalid first and
second federal warrants, which were obtained subsequently.
The Third Circuit contrasted these doctrines in United
States v. Herrold:

[U]nder the independent source doctrine,
evidence that was in fact discovered lawfully,
and not as a direct or indirect result of illegal
activity, is admissible. In contrast, the
inevitable discovery doctrine, applied in Nix,
permits the introduction of evidence that
inevitably would have been discovered through
lawful means, although the search that actually
led to the discovery of the evidence was
unlawful. The independent source and
inevitable discovery doctrines thus differ in that
the former focuses on what actually happened
and the latter considers what would have
happened in the absence of the initial search.

962 F.2d 1131, 1140 (3d Cir. 1992). Here, pursuant to the
state search warrant, Vanadia lawfully discovered evidence of
child pornography (lurid file names and the first video file)
while searching for evidence of financial crimes. Although
Vanadia may have exceeded the scope of the state search
warrant by expanding the search and opening the contents of
the video files, the initial inspection and resulting discovery
were lawful. Accordingly, the independent source doctrine
applies. In contrast, and for reasons we will discuss, the
inevitable discovery doctrine applies to the ensuing unlawful
searches made pursuant to the two federal search warrants.

45
that follow, we conclude that the independent source doctrine
applies to the results of the search executed pursuant to the
state search warrant and vitiates any need to suppress
evidence of child pornography.

Assuming that Detective Vanadia illegally viewed the
contents of the videos in the Kazvid folder, we ask whether
this illegal search is so intertwined with the eventual
acquisition of child pornography from Stabile‘s hard drives
that this evidence must be suppressed. We ask: ―(1) whether
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) whether the first search [the search
of the contents of the eleven video files] prompted the
officers to obtain the [subsequent] search warrant.‖ Herrold,
962 F.2d 1131, 1144 (3d Cir. 1992); see Price, 558 F.3d at
282. ―If the answers to these questions are yes and no
respectively . . . then the evidence seized during the warranted
search, even if already discovered in the original entry, is
admissible.‖ Herrold, 962 F.2d at 1144.

The answer to the first question is ―yes.‖ After
Detective Vanadia executed the state search warrant, Agent
Albanese applied for the first federal search warrant. The
application for the first federal search warrant cited, as
probable cause, the lurid file names Vanadia observed in
plain view during his search of the 120 GB hard drive. The
application also cited Vanadia‘s experience that files bearing
such names may contain child pornography. Importantly, the
warrant application did not mention that Vanadia had viewed

These subsequent searches were unlawful for lack of probable
cause.

46
the contents of any of the video files.23 Even assuming that
Vanadia illegally viewed the video files‘ contents, the results
of that search did not taint the warrant application Albanese
presented to the magistrate. See Price, 558 F.3d at 282
(applying independent source doctrine where warrant was still
supported by probable cause even after excising illegally-
obtained information). After considering the warrant
application, the magistrate issued the first federal search
warrant. Therefore, the answer to the first inquiry under the
independent source doctrine is clearly yes because a neutral
magistrate did, in fact, issue the first federal search warrant.

The answer to the second question is ―no.‖ The
contents of the video files, which we presume Detective
Vanadia viewed illegally, did not prompt Agent Albanese to
apply for the first federal search warrant. In Price, police
arrested the defendant after he sold methamphetamine to an
undercover police officer. 558 F.3d at 273. A search incident
to the arrest ―revealed items indicative of methamphetamine
trafficking.‖ Id. The police then went to the defendant‘s
home, where they asked for, and received, consent to search
the home from the defendant‘s wife. Id. at 274. After
searching the home, the police attempted to obtain consent to
search the locked basement, but the defendant‘s wife said she
did not have a key. Id. at 275. The officer picked the lock on
the basement door, entered the basement, and observed items
used to manufacture methamphetamine. Id. Later that day,
police applied for and obtained a search warrant, returned to
the home, and seized the chemicals related to
methamphetamine manufacture from the basement. Id. The
defendant moved to suppress the items seized from the

23
The full text of the affidavit is contained in footnote 6.

47
basement on the grounds that the police lacked valid consent
to enter the basement, and the district court denied the
relevant portion of the motion. Id. at 276. On appeal, we
held that regardless of the validity of the wife‘s consent, the
items seized from the basement were admissible under the
independent source doctrine. Id. at 280. First, the illegally
observed evidence did not prompt the officers to apply for the
search warrant. Id. at 282. Second, the search warrant
contained sufficient probable cause from independent sources
even though the affidavit in support of the warrant application
referenced the items illegally discovered in the basement. Id.
Even without this evidence, given the history of the
investigation, such as the facts that the defendant had
incriminating paraphernalia on his person at the time of arrest
and that paraphernalia was found in his home, it seemed
―impossible that the police would not have applied for a
warrant to search the basement of the house . . . .‖ Id. at 282;
see also Herrold, 962 F.2d at 1140-41 (―It is inconceivable
that the police would have Justified the premises without
searching the trailer and without arresting [the defendant]
since they had information that Herrold, who was known to
them as a drug dealer with a record of convictions for violent
crimes, had obtained a large quantity of cocaine some of
which he sold to the informant.‖). Therefore, the Price court
invoked the independent source doctrine and affirmed the
district court‘s suppression order.

Here, there are even more compelling reasons to vitiate
the taint of the presumed illegal search than existed in Price.
In Price, the search warrant application referenced the
illegally observed evidence, but here, as previously
mentioned, the warrant application made no mention of the
contents of the Kazvid video files. This distinction supports

48
our determination that if the contents of the remaining video
files were illegally viewed, they did not prompt Agent
Albanese to seek the first federal search warrant. Moreover,
as in Price, here the police legally discovered ample
additional evidence. While executing the state search
warrant, Detective Vanadia lawfully viewed lurid file names
indicative of child pornography. In light of this evidence, it
would be ―impossible‖ or ―inconceivable‖ that Albanese
would not have applied for the first federal warrant. See
Price, 558 F.3d at 282; Herrold, 962 F.2d at 1140. The
answer to the second question in the independent source
inquiry – i.e., whether the results of the illegal search
prompted officers to obtain a subsequent search warrant – is
―no‖ because the lurid file names prompted Albanese to seek
the first federal search warrant. Therefore, the independent
source doctrine applies, and there would be no reason to
suppress the contents of the videos.

III.A.4.e. Inevitable Discovery

The independent source doctrine removes the taint of
any illegality from the initial search of the contents of the
Kazvid folder in the 120 GB hard drive. However, the
subsequent searches of the 120 GB hard drive and ultimately
all the hard drives were illegal because these searches were
not supported by valid warrants. As previously discussed, the
first federal search warrant was invalid because it mistakenly
authorized a search of the 40 GB hard drive rather than the
120 GB hard drive. The second federal search warrant was
invalid because it relied on evidence obtained from the
unlawful search of the 40 GB hard drive. Despite this
illegality, the inevitable discovery doctrine applies, rendering

49
suppression of the evidence gathered as a result of these
illegal searches unnecessary.

Under the inevitable discovery doctrine, ―if the
prosecution can establish by a preponderance of the evidence
that the information ultimately or inevitably would have been
discovered by lawful means . . . then the deterrence rationale
has so little basis that the evidence should be received.‖
United States v. Vasquez De Reyes, 149 F.3d 192, 195 (3d
Cir. 1998) (quoting Nix v. Williams, 467 U.S. 431 (1984)).
The Government can meet its burden by establishing ―that the
police, following routine procedures, would inevitably have
uncovered the evidence.‖ Vasquez De Reyes, 149 F.3d at
195. The inevitable discovery analysis focuses on ―historical
facts capable of ready verification, not speculation.‖ Id.; see
Nix, 467 U.S. at 444 n.5.

As the District Court concluded, the Government has
shown by a preponderance of the evidence that routine police
procedures inevitably would have led to the discovered child
pornography. Although the first federal search warrant
mistakenly called for searching the 40 GB hard drive rather
than the 120 GB hard drive, the file names in the Kazvid
folder Detective Vanadia opened still continued to provide
probable cause to obtain a valid warrant to search the 120 GB
hard drive. A lawful search of the 120 GB hard drive would
have led to the videos of child pornography in the Kazvid
folder. These videos, in turn, would have provided probable
cause to obtain federal search warrants to search Stabile‘s five
remaining hard drives for evidence of child pornography,
including the illegally searched 40 GB hard drive.

50
 This conclusion is supported by ―historical facts
capable of ready verification, and not speculation.‖ Vasquez
De Reyes, 149 F.3d at 195. As previously discussed, the
Government lawfully obtained the state search warrant, and
execution of the state search warrant exposed lurid file names
and at least one video of child pornography. Thus, ―viewing
affairs as they existed at the instant before the unlawful
search,‖ Vasquez de Reyes, 149 F.3d at 195, the Government
had probable cause to obtain a warrant to conduct a full
search of the 120 GB hard drive. In accordance with routine
police procedures, the Government attempted to obtain the
first federal search warrant before fully searching the 120 GB
hard drive. Moreover, the Government sought the second
federal search warrant before embarking on a search of
Stabile‘s five remaining hard drives. As the District Court
found, ―Albanese‘s application for the second federal search
warrant [was] based on Agent Tokash‘s search of the 40 GB
hard drive and the second federal search warrant issued based
on probable cause supplied by the evidence discovered in
Agent Tokash‘s search.‖ Appx. at A-107-08. Although
mistakes were made, proper execution of these routine
procedures would have yielded evidence of child
pornography. Moreover, the very fact that the Government
attempted to secure state and federal search warrants at every
step of the search indicates that there would be little
deterrence benefit in punishing the Government. See Vasquez
De Reyes, 149 F.3d at 195 (inevitable discovery doctrine
―permits the court to balance the public interest in providing a
jury with all relevant and probative evidence in a criminal
proceeding against society‘s interest in deterring unlawful
police conduct‖). We conclude that the evidence obtained as
a result of these illegal searches need not be suppressed
because it inevitably would have been discovered.

51
 III.B. Sentencing

Stabile also claims that his sentence is unreasonable.
Because Stabile knowingly and voluntarily waived his right
to appeal, and because nothing compels us to disregard this
waiver, we decline to exercise our jurisdiction to review the
merits of this claim.24

Prior to sentencing, Stabile agreed to a set of ―non-jury
trial stipulations,‖ which included a waiver of the right to
―challenge [on appeal] the sentence imposed . . . if that
sentence falls within or below the Guidelines range that
results from the agreed total Guidelines offense level of 26.‖25
Appx. at A-74. Stabile was sentenced to 78 months‘
imprisonment, the bottom of the applicable Guidelines range.
Moreover, our review of the record provides no indication
that Stabile‘s waiver was anything less than knowing and
voluntary. Waivers of appellate rights, if entered into
knowingly and voluntarily, are valid. See United States v.
Khattak, 273 F.3d 557, 562 (3d Cir. 2001).

Nonetheless, Stabile urges us to reach his claims by
arguing that a constitutional concern and a procedural defect
allegedly committed by the District Court amount to a

24
We review de novo whether Stabile waived his right to
appeal his sentence. Price, 558 F.3d at 277.
25
Stabile did not waive his right to appeal determination of
his criminal history category, but he does not dispute this
calculation.

52
miscarriage of justice. In rare circumstances, we will exercise
our jurisdiction irrespective of a waiver ―where an error
amount[s] to a miscarriage of justice.‖ Khattak, 237 F.3d at
562; see United States v. Gwinnett, 483 F.3d 200, 203 (3d
Cir. 2007). This exception ―will be applied sparingly and
without undue generosity.‖ United States v. Wilson, 429 F.3d
455, 458 (3d Cir. 2005) (quoting United States v. Teeter, 257
F.3d 14, 26 (1st Cir. 2001)).

Stabile first argues that his sentence raises a
―constitutional concern‖ because U.S.S.G. § 2G2.2, as
amended, imposes increased punishment on individuals who
merely possess child pornography based on congressional
concerns relating solely to offenders who actually engage in
pedophilia. Appx. at A-945-46. As acknowledged by the
District Court, no evidence indicated that Stabile ever
engaged in pedophilia. He thus argues that his sentence,
imposed pursuant to U.S.S.G. § 2G2.2, punishes him for acts
for which he has never been convicted, contrary to the tenets
of Apprendi v. New Jersey, 530 U.S. 466 (2000). Stabile
additionally argues that the District Court should have
departed from the child pornography Guidelines because they
are neither the product of empirical research nor consistent
with the Sentencing Commission‘s characteristic institutional
role, as recently acknowledged by the Third Circuit in United
States v. Grober, Nos. 09-1318 & 09-2120, 2010 U.S. App.
LEXIS 21980, at *41-42 (3d Cir. Oct. 26, 2010).

Neither of these claims compel us to set aside Stabile‘s
waiver. Even if preceding amendments to U.S.S.G. § 2G2.2
were motivated by concerns pertaining specifically to acts of
pedophilia rather than possession of child pornography alone,
we do not believe this to be a sufficient reason to justify

53
disregarding Stabile‘s waiver. See United States v. Lockett,
406 F.3d 207, 212-14 (3d Cir. 2005) (upholding a valid
waiver of appellate rights even in light of a subsequent
holding by the Supreme Court that the pre-Booker regime
under which appellant was sentenced was unconstitutional);
United States v. Rubbo, 396 F.3d 1330, 1335 (11th Cir. 2005)
(―[T]he right to appeal a sentence based on Apprendi/Booker
grounds can be waived in a plea agreement.‖). Moreover,
while the District Court was entitled to depart from the child
pornography Guidelines for the reasons cited by Stabile,
neither Kimbrough v. United States, 552 U.S. 85 (2007) nor
our recent decision in Grober, 2010 U.S. App. LEXIS 21980,
required the District Court to take this course when
sentencing Stabile. Similarly, Stabile‘s reliance on United
States v. Olhovsky, 562 F.3d 530 (3d Cir. 2009) is misplaced.
In Olhovsky, the District Court made critical procedural errors
and ignored expert testimony pertaining to the youthful
offender‘s unique potential for rehabilitation – factors that are
absent from the case before us. Id. at 551.

We similarly conclude that the procedural defects
alleged by Stabile are insufficient to merit setting aside his
appellate waiver. Stabile argues that the District Court
committed a procedural error by failing to sentence him at the
higher end of the recommended Guidelines range in
accordance with the Guidelines provision applicable to
combined offenses. U.S.S.G. § 3D1.4. Stabile also contends
that the District Court erred by failing to adequately explain
its rejection of his arguments in favor of a non-Guidelines
sentence. Neither of these purported errors justify
disregarding Stabile‘s waiver as we do not believe that they
amount to a miscarriage of justice. See United States v.
Jackson, 523 F.3d 234, 244 (3d Cir. 2008) (―[I]t will be a rare

54
and unusual situation when claims of an unreasonable
sentence, standing alone, will be sufficient to invalidate a
waiver because of a miscarriage of justice.‖).

Because we conclude that the sentence imposed by the
District Court does not amount to a miscarriage of justice, we
will not set aside Stabile‘s waiver and reach the sentencing
challenges he presents on appeal.

IV.

We affirm the defendant‘s conviction and the District
Court‘s denial of the motion to suppress. Because we will
enforce the appellate waiver, we dismiss this sentencing
appeal and thereby affirm the defendant‘s sentence.

55