United States v. Grosenheider

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 98-50888

UNITED STATES OF AMERICA,

Plaintiff-Appellant-Cross-Appellee,

versus

JOHN STEPHEN GROSENHEIDER,

Defendant-Appellee-Cross-Appellant.

Appeals from the United States District Court
for the Western District of Texas, Austin Division

January 11, 2000

Before GARWOOD, SMITH and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-cross-appellant John Stephen Grosenheider

(Grosenheider) was indicted for the receipt and possession of

computer images of child pornography under 18 U.S.C. §

2252A(a)(5)(B). After the district court denied his motion to

suppress the evidence taken from his computer, Grosenheider entered

a conditional guilty plea to one count of possession. The court

sentenced him to twelve months’ incarceration. Grosenheider

appeals the denial of his suppression motion, and the government

appeals the sentence. We affirm the district court’s denial of the

suppression motion, but vacate the sentence and remand for

resentencing.
 Facts and Proceedings Below

On October 24, 1997, Grosenheider dropped off his personal

computer for repair work at Upgraders, a computer repair shop in

Austin, Texas. While conducting a final quality assurance check of

the computer on Thursday, October 30, 1997, Upgraders employee

Patrick Rowan (Rowan) discovered an unusually large number of image

files, known as “JPG’s”, on the computer’s hard drive. Knowing

that JPG’s in large numbers often depict pornographic images, Rowan

opened some of these files and found between two and five images of

child pornography. Rowan showed the images to his employer,

Nathaniel Monks (Monks), the owner of Upgraders, as well as to two

other employees, all of whom agreed that the images depicted child

pornography. The repairs now complete, the Upgraders staff

returned the computer to the retail store for pick up.

Grosenheider retrieved the computer some time later that day.1

At approximately 9:00 a.m. the next morning, Friday, October

31, 1997, Monks contacted the Austin Police Department about the

images Rowan had discovered. He spoke with Steven Meaux (Meaux),

a vice officer, and informed Meaux about the images he had seen and

the fact that the computer was now back in Grosenheider’s

possession. Meaux arrived at Upgraders thirty to forty-five

minutes later. His primary purpose was to identify and interview

1
Upgraders occupies two suites at either end of a strip shopping
mall in south Austin. The front suite contains the retail store, where
customers interact with store personnel and pick up their repaired
computers. The back suite is the “tech shop” where the actual repairs
take place. Rowan, Monks, and the others all viewed the images on
Grosenheider’s computer in the tech shop suite. Grosenheider picked up
his computer from the retail store suite.

2
the staff members who had seen the images. Meaux first entered the

retail store, but an employee directed him to the tech shop, where

Monks, Rowan, and the other employees who had seen the images were

waiting. When Meaux got there, Monks told him that Grosenheider

had brought the computer back that morning because the hard drive

was still not operating properly, and that Rowan had begun working

on it in the tech shop. As Meaux began to interview the assembled

employees, another employee entered the tech shop and said that

Grosenheider had again returned to the retail store, asking about

his computer. Meaux told Monks to “stall” Grosenheider by telling

him the store needed to order additional parts. Monks complied,

and from the tech shop Meaux watched Grosenheider leave the retail

store and drive away.

After Grosenheider left, Meaux completed his interview of

Rowan, Monks, and the other employees about the images they had

seen on the computer. They told him that the images depicted young

girls approximately ten years old engaged in sexual conduct of

various kinds. During this time, Rowan had been working on his

repair of Grosenheider’s computer, a process which took

approximately fifteen minutes to complete. There is some dispute

–which the district court expressly declined to resolve-whether

Meaux then asked to see or Rowan offered to show him the pictures.

In any event, Rowan attempted to access the images on the computer,

only to find them “locked”, that is, inaccessible without a

password. The password lock had not appeared the day before.

Unable to override the lock, Rowan asked another, more experienced

3
Upgraders employee, Cary Richardson (Richardson), for help. By

using another image viewing program, Richardson by-passed the lock.

Rowan then showed Meaux the images he had seen the day before, as

well as additional ones. After viewing between six and ten images,

Meaux “had seen enough” to determine that the computer contained

depictions of child pornography.

At approximately 11:00 a.m., Meaux took the computer from

Upgraders to his office at the Austin Police Department, and

contacted Theodore Siggins (Siggins), a special agent with the

United States Customs Service. Meaux advised Siggins of his

discovery and asked if Siggins was interested in pursuing a federal

investigation. Siggins agreed to take over the case, and

immediately began preparing a search warrant affidavit. In his

affidavit, Siggins recounted the discovery by the Upgraders staff

of the pornographic images, Grosenheider’s bringing the computer

back to Upgraders, and the call from Monks to Meaux. He did not

mention Meaux’s viewing of the images or his seizure of the

computer. At approximately 4:30 p.m. that afternoon, Siggins

applied for and received a warrant to search the computer from a

United States Magistrate Judge.

After obtaining the warrant, Siggins secured the computer

from Meaux and took it to Upgraders, where he informed Monks that

he had a warrant for the computer and would return it to Upgraders

once he had finished searching it. Siggins then took the computer

back to his office and made a backup image of the computer’s entire

hard drive. He analyzed the image on one of the government’s

4
computers, and found that Grosenheider had subscribed to Forte

Agent, an on-line service that enables subscribers to access

various “newsgroups” on the Internet.2 Grosenheider had subscribed

to fifteen newsgroups, thirteen of which featured images and

messages concerning child pornography.3 Siggins found that from

these newsgroups Grosenheider had downloaded over 500 images of

young females, ages ten to fourteen, engaged in various sexually

explicit acts. Grosenheider had also established over 250 files,

each of which contained at least one image of child pornography and

sometimes included textual commentary with the image. Siggins

determined further that Grosenheider had viewed many of these

images more than once because the “creation date” on the files

sometimes differed from the “last access date”, meaning that the

file had been modified or viewed after being downloaded. Based on

these findings, Siggins applied for and received another warrant to

search Grosenheider’s home in Austin.

On the following Monday, November 3, 1997, Siggins returned

the computer to Upgraders in anticipation of a “controlled

delivery.” Grosenheider’s wife picked up the computer from

Upgraders that same day and took it back to their home. Federal

agents followed Mrs. Grosenheider to the residence; upon her

arrival, they executed the search warrant. The agents seized the

2
A “newsgroup” is an Internet site organized around a single
topic. Like a bulletin board, a newsgroup enables individuals to post
files, such as text messages or images, which other viewers may then
read or download onto their own computers.
3
Eleven of the newsgroups had titles that clearly indicated that
they dealt with child pornography.

5
computer, but did not find any additional child pornography at the

residence.

Grosenheider was indicted and charged with (1) Receipt of

Visual Depictions of Minors engaged in Sexually Explicit Conduct in

violation of 18 U.S.C. § 2252(a)(2), and (2) Possession of Visual

Depictions of Sexual Activities by Minors in violation of 18 U.S.C.

§ 2252A(a)(5)(B). On February 26, 1998, Grosenheider filed a

motion to suppress the evidence seized from his computer and

residence. While conceding that the first search of his computer

by Rowan was a private search, and therefore not subject to the

Fourth Amendment, Grosenheider challenged the second search by

Meaux. Specifically, he alleged that Meaux’s breaking (with the

help of Upgraders employees) the password lock, viewing more images

than Rowan had seen, and subsequently seizing the computer violated

Grosenheider’s rights under the Fourth Amendment. The district

court conducted two evidentiary hearings, on March 13 and May 1,

1998, and denied the motion in a May 11, 1998 memorandum order.

The following day, May 12, Grosenheider entered a conditional

guilty plea to the possession charge (Count II), pursuant to which

he reserved the right to appeal the denial of his suppression

motion. The remaining count was dismissed.

The district court conducted a sentencing hearing on July 31,

1998, and found that Grosenheider’s total offense level was

eighteen, with an applicable incarceration range of twenty-seven to

6
thirty-three months.4 Apparently reasoning that Grosenheider’s

case bore little resemblance to the “pornography” cases the court

had previously sentenced, which (with one exception) had all

involved “perverted people with a long track record of harm to

others,” the district court departed downward and sentenced

Grosenheider to twelve months incarceration, followed by a three-

year term of supervised release.5 In the court’s opinion, this

sentence was amply sufficient,6 though the court plainly doubted

its legality.7

4
Under U.S.S.G. § 2G2.4, Grosenheider’s initial total offense
level was twenty-one: fifteen for violating 18 U.S.C. § 2252A(a)(5)(B);
two for the specific offense characteristic of material involving a
prepubescent minor; two for the characteristic of possessing ten or more
images depicting the sexual exploitation of a minor; and two for the
characteristic of obtaining the material by using a computer. Because
it found that Grosenheider accepted responsibility for his actions,
however, the district court reduced his offense level by three, pursuant
to section 3E1.1. Grosenheider had no prior convictions.
5
Before pronouncing sentence on Grosenheider, the district court
made preliminary remarks, including the following: “So that everybody
knows where we stand, I am concerned with the guidelines in this case.
I think they’re wrong. I’m not–not that I have one second of doubt that
what you did was not only illegal but just terrible. But the guidelines
in this particular case, it seems to me, are just too high. I don’t see
that it does anybody any good to put you away for three years in prison
. . . . I don’t believe that the sentencing commission had a case in
mind where we have a person who’s 38 or 39 years old, never been in
trouble really, have zero points on criminal history, whether it be
curiosity or just absolute perversion to utilize his computer in this
way . . . . So I’m just giving everybody fair warning, I don’t like this
case, I don’t like the defendant very much, don’t like the guidelines
very much, don’t like the law very much.”
6
“Twelve months in the penitentiary is not easy for anybody. I
think you’ve been more than sufficiently punished for an intelligent
person, and I don’t think you’re going to do this again.”
7
“I state in the record that as far as I’m concerned . . . ,
[this] is an illegal sentence and I do not have the authority to do it
under the express provisions of the guidelines. But this case and the
United States will not be any better off by putting Mr. Grosenheider in

7
 Grosenheider now appeals the district court’s denial of his

motion to suppress. The United States appeals Grosenheider’s

sentence. We affirm the denial of the suppression motion, but

vacate the sentence and remand for resentencing.

Discussion

I. Grosenheider’s Motion to Suppress

Grosenheider contends that the district court erred in denying

his motion to suppress the evidence obtained from his computer.

Specifically, he argues that Meaux’s search of the computer, during

which Meaux viewed images of child pornography with help from and

in the presence of Upgraders employees, was illegal, as was Meaux’s

subsequent warrantless seizure of the computer. We conclude,

however, that because Siggins obtained the evidence by lawful means

independent of Meaux’s search or seizure, the evidence used against

Grosenheider was not the “tainted fruit” of any illegality. Under

the “independent source” doctrine, we conclude that this evidence

should not be suppressed. We therefore affirm the denial of

Grosenheider’s motion.

This Court will accept a district court’s factual findings on

a motion to suppress based on live testimony at a suppression

hearing “unless clearly erroneous or influenced by an incorrect

view of the law.” United States v. Wilson, 36 F.3d 1298, 1303 (5th

Cir. 1994). When reviewing the district court’s ruling, we will

“view the facts in the light most favorable to the prevailing

party.” United States v. Howard, 106 F.3d 70, 73 (5th Cir. 1997).

jail for three years and I’m not going to do it.”

8
Our review of the district court’s interpretation and application

of law is de novo. See United States v. Blocker, 104 F.3d 720, 725

(5th Cir. 1997).

A. Meaux’s Search of the Computer

Grosenheider first argues that Meaux’s search of the computer,

during which Upgraders staff helped by-pass the password lock, was

illegal. At the outset, he rightly concedes that the initial

search by Rowan did not violate the Fourth Amendment, which only

implicates searches and seizures by governmental agents or those

working for them. See United States v. Jacobsen, 104 S.Ct. 1652,

1656 (1984); Blocker, 104 F.3d at 725. He contends, however, that

by breaking the password lock, the second search exceeded the scope

of the initial private search, and, lacking a warrant, was

therefore illegal. We do not reach the merits of this argument,

but instead affirm the district court’s determination that the

evidence from Grosenheider’s computer is admissible under the

“independent source” doctrine. See United States v. Register, 931

F.2d 308, 311 (5th Cir. 1991) (refusing to consider whether exigent

circumstances justified a warrantless entry because the independent

source doctrine applied).

The exclusionary rule of the Fourth Amendment generally

prohibits the introduction at trial of not only primary evidence

obtained as a direct result of an illegal search or seizure, but

also evidence discovered later that is derivative of an illegality,

or constitutes “fruit of a poisonous tree.” Segura v. United

States, 104 S.Ct. 2280, 2284 (1984) (citing Weeks v. United States,

9
34 S.Ct. 341 (1914) and Nardone v. United States, 60 S.Ct. 266, 268

(1939)). The primary limit on this rule is that otherwise

suppressible evidence will still be admitted if the connection

between the alleged illegality and the acquisition of the evidence

is “so attenuated as to dissipate the taint.” Nardone, 60 S.Ct. at

268; see also Segura, 104 S.Ct. at 3391 (rejecting the notion “that

evidence is ‘fruit of the poisonous tree’ simply because ‘it would

not have come to light but for the illegal actions of the police’”)

(citations omitted). One example of this “attenuation” limit is

known as the “independent source” doctrine, which permits the

introduction of unlawfully discovered evidence when the police have

acquired that evidence through a distinct, untainted source. See

Silverthorne Lumber Co. v. United States, 40 S.Ct. 182, 183 (1920);

Segura, 104 S.Ct. at 3391. Animating this doctrine is the

recognition that the goal of the exclusionary rule is to put the

police “in the same, not a worse, position that they would have

been in if no police error or misconduct had occurred.” Nix v.

Williams, 104 S.Ct. 2501, 2509 (1984). “When the challenged

evidence has an independent source, exclusion of such evidence

would put the police in a worse position than they would have been

in absent any error or violation.” Id.

In Murray v. United States, 487 U.S. 533, 537 (1988), the

Supreme Court held that the independent source doctrine extends to

evidence “initially discovered during, or as a consequence of, an

unlawful search, but later obtained independently from activities

untainted by the initial illegality.” Whether Meaux’s assisted

10
breaking of the password lock and subsequent viewing of the JPG

images on the computer’s hard drive were illegal, there is no

causal link between those activities and Siggins’s later search and

seizure of the computer pursuant to his valid warrant. Indeed, it

is undisputed that Siggins obtained his search warrant by relying

solely on the statements by the Upgraders employees to Meaux. He

never mentioned to the Magistrate Judge the fact that Meaux had

viewed the images, or that he still possessed the computer.

Consequently, the search did not taint the Magistrate Judge’s

decision to issue the warrant, which the district court found “the

government obtained exclusively on the basis of Rowan’s initial

private search of the [computer] files.” See id. at 541 (applying

independent source doctrine to later search in which affidavit made

no mention of earlier unlawful search).

In addition to requiring that the decision making process of

the judicial officer issusing the warrant be shielded from the

earlier alleged illegality, Murray also mandates that the district

court find that the agents would have sought the warrant even if

that illegality had never taken place. See id. at 542-43 & n.3

(“[W]hat counts is whether the actual illegal search had any effect

in producing the warrant.”).8 The district court satisfied this

8
Despite being framed as part of the independent source analysis,
this requirement bleeds into the “inevitable discovery” doctrine, which
renders the exclusionary rule inapplicable to otherwise suppressible
evidence if that evidence would inevitably have been discovered by
lawful means. See 5 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE
FOURTH AMENDMENT § 11.4(a) (3d ed. 1996). The reason for this slippage
between the two doctrines is that they are actually two sides of the
same coin. As the Murray Court recognized, inevitable discovery is no
more than “an extrapolation” of the independent source doctrine: “Since

11
requirement by finding “credible” Siggins’s testimony that the

witness statements by the four Upgraders employees, all of whom

agreed that the images depicted child pornography, were sufficient

to prompt his decision to seek the warrant. The district court

also found “[i]f Meaux had not viewed the images, the Court is

certain that Siggins would nevertheless have sought and obtained a

search warrant for the defendant’s computer.” These findings are

supported by the record and are not clearly erroneous.

B. Meaux’s Seizure of the Computer

Grosenheider next argues that Meaux’s seizure of the

computer–his taking it from Upgraders and holding it for the four

or five hour period until Siggins secured it with the search

warrant–was illegal. According to Grosenheider, even if Meaux’s

search was reasonable, the seizure was not, and in any event the

independent source doctrine does not apply to illegal seizures. We

reject Grosenheider’s latter argument as unsupported by precedent,

and consistent with our discussion of Meaux’s search, do not

address the question of the seizure’s reasonableness because

Siggins’s “re-seizure” of the computer eliminated any taint from

Meaux’s initial seizure.

Citing a passage in part IV of the opinion in Segura v. United

the tainted evidence would be admissible if discovered through an
independent source, it should be admissible if it inevitably would have
been discovered.” Murray, 487 U.S. at 539; see also LAFAVE at § 11.4(a)
(referring to inevitable discovery as “a variation” on the independent
source doctrine). We observe that the decision not to suppress the
evidence in this case–with regard to both the search and seizure by
Meaux–could be upheld under either doctrine.

12
States, 104 S.Ct. 3380, 3386-90 (1984), Grosenheider contends that

the independent source doctrine is inapplicable to illegal

seizures, and would have us announce a rule that the occurrence of

all such seizures automatically mandates the suppression of any

evidence seized. This we decline to do. In Segura, the Supreme

Court held that two officers’ illegal entry into an apartment did

not require suppression of evidence later discovered at the

apartment pursuant to a valid, independent search warrant. The

defendants argued that during the first illegal entry the officers

had “seized” all the contents of the apartment and therefore the

evidence should be suppressed. In part IV of Chief Justice

Burger’s opinion for the Court–a portion of the opinion joined in

only by Justice O’Connor–the following somewhat cryptic passage

appears:

“Plainly, this argument is advanced to avoid the
Silverthorne