United States v. James Morgan

NOT PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No: 13-3405
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UNITED STATES OF AMERICA

v.

JAMES A. MORGAN,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-12-cr-00023-001)
District Judge: Hon. Joel H. Slomsky
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Submitted Under Third Circuit LAR 34.1(a)
March 28, 2014

Before: FUENTES and SHWARTZ, Circuit Judges, and ROSENTHAL, District Judge.*

(Filed: April 1, 2014)
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OPINION OF THE COURT
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ROSENTHAL, District Judge.

*
The Honorable Lee H. Rosenthal, United States District Judge for the Southern
District of Texas, sitting by designation.
 The defendant, James Morgan, appeals his conviction for using a computer to

possess and send child pornography and to send sexually explicit communications to a

person he thought was a 13-year-old girl, but who in fact was an undercover law-

enforcement agent. The only issue on appeal is the District Court’s denial of Morgan’s

motion to suppress evidence seized pursuant to a search warrant and motion to suppress

inculpatory statements he made to FBI agents. Morgan entered a conditional guilty plea,

preserving his right to appeal the District Court’s judgment. Finding no error, we will

affirm.1

I. Background

On September 14, 2011, an undercover agent working for the Somervell County

Sheriff’s Office in Glen Rose, Texas entered a Yahoo!™ (“Yahoo”) internet chat room

and pretended to be a 13-year-old girl. The agent engaged in an internet chat with a

person using the name “Wook_Inky 101.” This person described himself as a father

living in Pennsylvania. Wook_Inky 101 sent the person he believed to be a 13-year-old

girl multiple explicit sexual messages, 15 images showing children in sexual acts, and,

using the computer’s webcam, video images of himself masturbating during the chat.

Between September 14 and December 2, 2011, Wook_Inky 101 and the

undercover agent had at least eight more internet chats. Wook_Inky 101 continued to

send images and videos of child pornography, webcam transmissions showing himself

1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and this court has jurisdiction
pursuant to 28 U.S.C. § 1291. In reviewing the denial of a motion to suppress, this court reviews the
factual findings of the District Court for clear error and exercises plenary review of the District Court’s
application of the law to those facts. United States v. Price, 622 F.3d 209, 210 (3d Cir. 2010).

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masturbating, and explicit sexual messages. One webcam transmission the agent viewed

showed Wook_Inky 101 inserting a small baseball bat with lettering into his anus.

Wook_Inky 101 was wearing a shirt with a clearly visible design. In one chat,

Wook_Inky 101 told the “girl” that he wanted to come to Texas, where he believed she

lived, and that he and the “girl” would “have to make plans to have sex in person.” App.

at 53A.

On September 20, 2011, a federal grand jury issued Yahoo a subpoena ordering it

to provide information about the Wook_Inky 101 user. Yahoo’s information showed that

communications from Wook_Inky 101 originated from an internet protocol address

assigned to Verizon. Those records were subpoenaed and showed that the address was

assigned to James A. Morgan, 474 Edgewood Drive, Hatfield Boro, Pennsylvania. The

FBI verified with the Postal Service that someone named James Morgan and others with

the same last name received mail at that address.

On December 16, 2011, the FBI applied for and obtained a warrant to search the

474 Edgewood Drive residence. FBI Agent James Zajac submitted a lengthy affidavit

supporting the application. The warrant authorized searching the residence’s computers,

including hard drives, for depictions of child pornography, communications with

potential minors that were sexual in nature, and related materials. The warrant also

authorized agents to search for a baseball bat and a shirt, both specifically described to

match what the undercover agent saw on the webcam transmissions from Wook_Inky

101.

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 The FBI executed the search warrant on December 20, 2011. FBI agents,

including Agent Zajac, entered the residence and were met by Emma Morgan, the

appellant’s mother. The upstairs bedroom, which Emma Morgan said belonged to her

son, looked like the room the Wook_Inky 101 user was in when he sent the video of

himself masturbating. Agents found and seized the computer in that bedroom, as well as

a small baseball bat and shirt matching those described in the warrant.

Emma Morgan told the agents that Morgan was working at his job at a nearby

Costco. Agents Zajac, Michael Ruibal, and Michael Dzielak drove to the Costco and

asked to speak with Morgan. The agents were dressed in street clothes. They were

armed, but they did not draw or display their weapons. The agents did not tell the Costco

employees why they wanted to talk to Morgan.

An assistant manager took the agents to a room near the auto shop. The assistant

manager then found Morgan and took him to the room where the FBI agents were

waiting. Agent Ruibal stood outside the room while Agents Zajac and Dzielak

questioned Morgan. The questioning lasted about two hours. Before the agents had an

opportunity to introduce themselves, Morgan said, “I didn’t travel anywhere. I didn’t —

I didn’t travel to meet anybody.” App. at 103A. Morgan later admitted having the

internet chats and sending the sexual images, messages, and webcam videos, and that he

thought he was communicating with a 13-year-old girl in Texas. The agents arrested

Morgan when the questioning ended. No Miranda warnings were given. At no point did

Morgan ask to leave or stop the interview, or talk to an attorney.

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 On January 19, 2012, Morgan was charged with one count of using interstate

communications to attempt to seduce a minor, in violation of 18 U.S.C. § 2422(b); four

counts of transferring obscene material to a minor, in violation of 18 U.S.C. § 1470; four

counts of transporting and shipping images of child pornography, in violation of 18

U.S.C. § 2252(a)(1); and one count of possession of child pornography, in violation of 18

U.S.C. § 2252(a)(4). On March 31, 2012, Morgan moved to suppress the evidence seized

from his residence under the search warrant, on the basis that it was an invalid “general”

warrant and that the information in the warrant application was stale. On June 1, 2012,

he moved to suppress the statements he had made to Agents Zajac and Dzielak on the

basis that no Miranda warnings were given.

The District Court held an evidentiary hearing on the motion to suppress the

statements. Agent Zajac and Morgan testified. Agent Zajac testified that as soon as

Morgan came in, he said—in a joking tone—“It’s the FBI. It must be important if the

FBI is here.” App. at 102A. Agent Zajac also testified that even before the agents

introduced themselves and explained why they wanted to talk to him, Morgan blurted: “I

didn’t travel anywhere. I didn’t – I didn’t travel to meet anybody.” App. at 103A. Agent

Zajac testified that he then introduced himself and Agent Dzielak and said:

We just want to sit down and talk to you a little bit today to
see if you can help us figure out what’s going on. You don’t
have to talk to us if you don’t want to. You can leave if you
want. But we just want to ask you a few questions if that’s all
right with you.

App. at 104A (emphasis added). Morgan agreed to talk. Agent Zajac showed

Morgan the chat logs between Wook_Inky 101 and the undercover agent. Morgan

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admitted using the Wook_Inky 101 username to communicate through Yahoo Instant

Messenger. Morgan admitted that he received materials showing child pornography and

that he had child pornography images on his computer’s hard drive; admitted that he sent

the sexually explicit communications and images to the person he thought was a 13-year-

old girl; and admitted that he transmitted images of his genitals using his computer’s

webcam.

Morgan provided the FBI with written consent to search his Wook_Inky 101

account with Yahoo. The consent form he signed stated that he had given his consent

voluntarily and had been advised of his right to refuse consent. Agent Zajac testified that

neither he nor the other agents displayed a firearm, raised a voice, used an intimidating

gesture, or applied handcuffs during the interview.

Morgan disputed that Agent Zajac told him that he was free to leave. Morgan

testified that when the interview started, Agent Zajac showed his identification, said that

he wanted to talk to Morgan, and told him “to have a seat.” App. at 146A. Morgan

explained that he then talked freely because “well, with the FBI, I just kind of figured

I’m—I’m in trouble, I’m under arrest. And I started— whatever—whatever he was

asking, I was answering.” App. 147A. Morgan testified that he was aware the agents

were armed but admitted that they did not display their weapons; that the agents’ voices

would fluctuate between “soft” and “a little louder,” but that they did not yell; and that no

handcuffs were used. App. at 148A, 159A. Morgan acknowledged that he was allowed

to make a telephone call when he asked to do so.

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 The District Court issued a detailed opinion on November 13, 2012, denying the

motions to suppress. The court concluded that the search warrant “was thoroughly

supported by the general characteristics of those involved in child pornography, and by

the actual facts in this case.” App. at 24A. The District Court ruled that the evidence

was not stale, “especially considering the nature and duration of the interaction between

[Wook_Inky 101] and a thirteen-year-old girl,” and the fact that evidence of child

pornography “can be found on a computer that was stored for months, if not years.” App.

26A.

The District Court held that Miranda warnings were not required because Morgan

was not “in custody” when the questioning took place. The District Court credited Agent

Zajac’s testimony that he told Morgan that he was not required to speak and was free to

leave. App. at 13A n.3. The court found that the evidence clearly showed that no

intimidation, force, or other indicia of custody was present.

After the District Court denied the motions to suppress, Morgan entered a

conditional guilty plea to all ten counts in the indictment. The judgment was entered

August 1, 2013. Morgan timely appealed.

II. Analysis

A. The Motion to Suppress Evidence Seized Pursuant to the Search
Warrant

We first address Morgan’s contention that the District Court should have

suppressed the evidence found on his computer hard drives and other electronic storage

media because the warrant authorizing the search: (1) failed to state with sufficient

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particularity the things to be searched and seized, making it an invalid “general warrant”;

and (2) relied on “stale” information. We reject both arguments.

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

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

F.3d 374, 393 (3d Cir. 2006) (alteration in original) (quoting U.S. CONST. AMEND. IV). A

warrant is “general” if it is so vague and overbroad that it authorizes “‘a general

exploratory rummaging in a person’s belongings.’” Id. (quoting Coolidge v. New

Hampshire, 403 U.S. 443, 467 (1971)). Morgan argues that the search warrant was an

invalid “general warrant” that gave the FBI agents “unbridled discretion in searching all

computers in the Morgan home because the warrant offered no information, guidance, or

limitations in that regard.” Appellant’s Br. at 16. Morgan’s argument fails to take into

account the detailed information in the warrant and the distinctive concerns that apply to

searching computers, hard drives, and other electronic storage media for evidence of

child pornography and related crimes against minors.

The search warrant described the items to be searched on the computers in the

Morgan residence in detail. The affidavit submitted in support of the application

described the online chats, the video transmissions, and the images sent, establishing

probable cause to believe that sexual offenses against a child were being committed using

a computer in Morgan’s home. An attached list specified the items to be seized. The

8
listed items were limited to evidence of sexually explicit images and communications

involving minors and the electronic media on which the evidence was likely to be found.2

Morgan’s contention that the warrant was “general” because it authorized a search

for the specified items on all computers in the Morgan home, including their hardware,

software, and storage media, is without merit. To determine whether Morgan’s computers

contained evidence of child pornography and related criminal sexual exploitation of

children, law enforcement needed the authority to search the computers it found in the

home, including the hard drives.

The storage of information on hard drives and other digital storage devices

presents distinctive difficulties for law enforcement. A user may name, rename, and store

files in ways that allow the “files containing evidence of a crime [to] be intermingled

with millions of innocuous files.” United States v. Galpin, 720 F.3d 436, 447 (2d Cir.

2013). Child pornography images and communications can be saved under file names

and in formats that conceal the contents and make the file appear innocent. The contents

cannot be identified until the file is opened. “By necessity, government efforts to locate

particular files will require examining a great many other files to exclude the possibility

that the sought-after data are concealed there.” United States v. Comprehensive Drug

Testing, Inc., 621 F.3d 1162, 1176 (9th Cir. 2010) (en banc) (per curiam); see also United

2
The warrant authorized the seizure of “any and all computer equipment,” including “[a]ll storage media
capable of collecting, storing, maintaining, retrieving, concealing, transmitting, and backing up electronic
data.” App. at 66–67A. This storage media included hard drives. The warrant stated that the “seizure of
computer and computer related hardware relates to such computer-related items as being the
instrumentalities of crime and also to allow for analysis/search for evidence of crime in an appropriate
forensic setting.” Id. at 67A. The warrant also authorized seizure of a “brown or black baseball bat with
red or orange letters” and a “brown or black shirt with the wording ‘American Athletics 1776.’” Id.

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States v. Stabile, 633 F.3d 219, 237 (3d Cir. 2011) (“[I]t 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.”).

We addressed these difficulties in United States v. Stabile. The defendant in that

case argued that the search of his computer hard drives was overbroad because the drives

contained “personal emails and other information not related to [the] financial crimes”

the defendant was suspected of committing. 633 F.3d at 233. We upheld the search and

seizure, reasoning that the breadth “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.” Id. at

234.

We agree that computers can store a vast amount of information, including private

information unrelated to the targets or purposes of the search. See United States v.

Payton, 573 F.3d 859, 861–62 (9th Cir. 2009) (“There is no question that computers are

capable of storing immense amounts of information and often contain a great deal of

private information. Searches of computers therefore often involve a degree of

intrusiveness much greater in quantity, if not different in kind, from searches of other

containers.”); United States v. Otero, 563 F.3d 1127, 1132 (10th Cir. 2009) (“The modern

development of the personal computer . . . increases law enforcement’s ability to conduct

a wide-ranging search into a person’s private affairs, and accordingly makes the

particularity requirement that much more important.”). But the warrant in this case

specified that the search was limited to particular items that could provide evidence of the

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crimes for which probable cause was established: child pornography images; sexual

communications with and about a child; and materials related to sexual offenses against

and involving children. The warrant gave the agents the ability they needed to identify

which computer and hard drive might contain the specified information. The warrant was

not overbroad and was not a general warrant.

We also reject Morgan’s argument that the information Agent Zajac submitted in

the warrant application was stale. The FBI applied for the search warrant on December

16, 2011. Morgan’s initial communications with the undercover agent occurred on

September 14, 2011. The last criminal conduct occurred on December 2, 2011, when

Wook_Inky 101 sent sexual messages to the undercover agent. There was at most a two-

week gap between Morgan’s last criminal conduct and the information in the search-

warrant application. We have found longer gaps permissible in the context of search

warrants for child pornography located on computer hard drives, recognizing that child

pornography “has a relatively long shelf life,” especially when the crime “is

accomplished through the use of a computer.” United States v. Vosburgh, 602 F.3d 512,

529 (3d Cir. 2010). In Vosburgh, a four-month gap did not make the information

supporting the search warrant application stale because “persons with an interest in child

pornography tend to hoard their materials and retain them for a long a time.” Id. at 528;

see also United States v. Lemon, 590 F.3d 612, 615–16 (8th Cir. 2010) (holding that an

18-month gap did not render evidence of child pornography stale). The two-week gap

between Morgan’s last alleged act and the date of the search-warrant application did not

make the evidence used in that application stale.

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 The District Court did not err in denying Morgan’s motion to suppress evidence

obtained pursuant to the search warrant.

B. The Motion to Suppress the Statements

Morgan contends that the District Court erred in denying his motion to suppress

the statements he made to the FBI before his arrest. Law-enforcement officers “are not

required to administer Miranda warnings to everyone whom they question.” Oregon v.

Mathiason, 429 U.S. 492, 495 (1977). Miranda warnings are needed when a suspect is

“(1) ‘in custody’ and (2) subject to ‘interrogation’ by the government.” United States v.

Dupree, 617 F.3d 724, 731 n.7 (3d Cir. 2010). The issue is whether Morgan was “in

custody” when he made the statements to Agent Zajac.

A suspect is “in custody” when “there is a ‘formal arrest or restraint on freedom of

movement’ of the degree associated with a formal arrest.” United States v. Leese, 176

F.3d 740, 743 (3d Cir. 1999) (quoting California v. Beheler, 463 U.S. 1121, 1125

(1983)). When the suspect is not under formal arrest, the question is whether a

reasonable person in the suspect’s situation would feel free to end the questioning and

leave. See Yarborough v. Alvarado, 541 U.S. 652, 662–63 (2004); United States v.

Jacobs, 431 F.3d 99, 105 (3d Cir. 2005). To answer this question, the Third Circuit uses

the following factors:

(1) whether the officers told the suspect he was under arrest
or free to leave; (2) the location or physical surroundings of
the interrogation; (3) the length of the interrogation; (4)
whether the officers used coercive tactics such as hostile
tones of voice, the display of weapons, or physical restraint of
the suspect’s movement; and (5) whether the suspect
voluntarily submitted to questioning.

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United States v. Willaman, 437 F.3d 354, 359–60 (3d Cir. 2006).

The District Court carefully analyzed the record in light of these factors and found

that Morgan was not in custody when he made his statements to the FBI. Our review of

the record leads to the same conclusion.

The court credited Agent Zajac’s testimony that he told Morgan that he was free to

leave if he did not want to talk to the agents. The court declined to credit Morgan’s

testimony that he was not given this warning and would have refused to talk if he had.

This credibility choice is supported by Morgan’s statement, made before the FBI agents

introduced themselves, that he “didn’t travel anywhere” and “didn’t travel to meet

anybody.” App. at 103A. The court’s credibility determination is also supported by the

evidence that as soon as Morgan asked to make a call, the agents allowed him to do so.

Morgan called a woman he was dating, not a lawyer, and he did not ask the woman to

contact a lawyer for him. The record discloses no basis to reject the District Court’s

credibility choice. See Vento v. Dir. of V.I. Bureau of Internal Revenue, 715 F.3d 455,

468 (3d Cir. 2013) (“[W]e may overturn the District Court’s findings only if we are left

with a definite and firm conviction that a mistake has been committed.”) (internal

quotations omitted).

The District Court’s finding is also consistent with the other Willaman factors

except the length of the questioning. The agents questioned Morgan in a room at his

workplace, not a police station. The room had two exits that were unlocked and

unblocked. The agents used no coercive tactics. They did not use hostile voices or yell,

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did not display their weapons, and did not handcuff Morgan or restrain his movement.

Despite the two-hour length of the interview, a reasonable person in Morgan’s position

would have felt able to end the questioning and leave.

Morgan was not in custody and Miranda warnings were not required. The District

Court did not err in denying Morgan’s motion to suppress the statements.

III. Conclusion

We affirm.

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