United States v. Loera

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS May 13, 2019

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

UNITED STATES OF AMERICA

Plaintiff - Appellee,

v. No. 17-2180

JASON LOERA,

Defendant - Appellant.
_________________________________

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:13-CR-01876-JB-1)
_________________________________

Jerry A. Walz, Walz and Associates, P.C., Albuquerque, New Mexico for Defendant-
Appellant.

Kristopher N. Houghton, Assistant United States Attorney (John C. Anderson, United
States Attorney, with him on the brief), Albuquerque, New Mexico for Plaintiff-
Appellee.
_________________________________

Before LUCERO, EBEL, and PHILLIPS, Circuit Judges.
_________________________________

EBEL, Circuit Judge.
_________________________________

This appeal requires us to apply Fourth Amendment principles to a situation

where a police officer executing a warrant to search an electronic storage device for

evidence of one crime discovers evidence of other criminal activity. Here, while
executing a warrant to search Jason Loera’s home for evidence of computer fraud,

FBI agents discovered child pornography on four of Loera’s CDs. Despite

discovering the pornography, the agents continued their search for evidence of

computer fraud—one agent continued to search the CDs that were found to contain

some child pornography and a second agent searched other electronic devices

belonging to Loera, not including those particular CDs (Search 1). After the agents

finished their on-site search, they seized a number of electronic devices that appeared

to contain evidence of computer fraud, plus the four CDs that were found to contain

child pornography, and then brought the seized items back to their office. One week

later, one of the agents reopened the CDs that he knew contained some child

pornography so that he could describe a few pornographic images in an affidavit

requesting a (second) warrant to search all of the seized electronic devices for child

pornography (Search 2). A magistrate judge issued the warrant, and, upon executing

it through two searches, the agents found more child pornography.

In the subsequent prosecution against him for possessing child pornography,

Loera filed a motion to suppress the evidence seized pursuant to each search, arguing

that the searches violated the Fourth Amendment. On denial of his motion, Loera

pled guilty to receipt of child pornography but preserved his right to appeal that

denial. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the denial of

Loera’s motion to suppress. We hold, among other things, that the Fourth

Amendment does not require police officers to stop executing an electronic search

warrant when they discover evidence of an ongoing crime outside the scope of the

2
warrant, so long as their search remains directed at uncovering evidence specified in

that warrant.

I. BACKGROUND

This case involves several police searches governed by the Fourth

Amendment. The Fourth Amendment protects “the right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. Const. amend. IV. Generally, for a search to be reasonable, it must

be authorized by a warrant that “particularly” describes “the place to be searched, and

the persons or things to be seized.” U.S. Const. amend. IV. Once officers obtain a

sufficiently particular warrant, they must execute it according to the warrant’s terms.

Horton v. California, 496 U.S. 128, 140 (1990). The following undisputed facts

explain how the warrant-based searches in this case arose.

In 2012, the FBI began investigating Jason Loera for illegally intercepting e-

mails intended for then-sitting New Mexico Governor Susana Martinez and her staff

in violation of 18 U.S.C. § 2511 (illegal interception) and 18 U.S.C. § 1030

(computer fraud) [collectively, “computer fraud”]. As part of that investigation

(more details of which can be found in the district court’s opinion United States v.

Loera, 59 F. Supp. 3d 1089, 1095–1108 (D.N.M. 2014)), FBI agents applied for and

received a warrant to search Loera’s residence for computer fraud, including any

such evidence residing on electronic devices or storage media (“the first warrant”).

The first warrant authorized FBI agents to search and seize, in relevant part,

“All records, in any form, relating to violations of [computer fraud], involving Jason

3
Loera.” ROA Vol. I at 37. The warrant defined the terms “records” and “information”

as including: “all of the foregoing items of evidence in whatever forms and by whatever

means they may have been created or stored, including any form of computer or

electronic storage (such as hard disks or other media that can store data).” Id. at 39. In a

separate provision, the warrant sought “Any computers, cell phones, and/or electronic

media that could have been used as a means to commit the offenses described on the

warrant.” Id. at 87. Finally, for any electronic device, whether it was used to commit the

offenses or simply had relevant records stored on it, the warrant permitted the agents to

search and seize evidence of who used, owned, or controlled the device, such as

“configuration files . . . documents, browsing history . . . photographs, and

correspondence . . . .” Id. at 38.

A. The First Search

On November 20, 2012, FBI agents including Agent Aaron Cravens and

Special Agent Brian Nishida executed the first search warrant. They discovered a

large volume of electronic media in Loera’s residence, including CDs, DVDs, laptop

computers, external hard drives, a USB flash drive, an iPhone, and an iPad. Cravens

and Nishida were responsible for “previewing” the CDs at Loera’s residence to

ensure that the FBI seized only those CDs that contained information relevant to the

authorized investigation. ROA Vol. II at 53, 58. The two agents split up the CDs

between themselves and searched them separately.

Cravens tried to view the files of the first CD using a program called FTK

Imager, which would have allowed Cravens to limit his search to a particular type of

4
file, for example, only image, text, or audio files. However, the program did not

work. Consequently, Cravens opened the CD on a computer and used the “thumbnail

view” to preview the files stored on it, meaning, he saw small images of the files, the

file names, and the file types in a vertical list that he had to scroll through to see in

its entirety. Although Cravens believed he had authority under the first warrant to view

the entire contents of the CD, Cravens used the thumbnail-image view to fast-track his

search. He would scroll past irrelevant files but “click[] on anything that didn’t appear

correct, or any documents” to open them. Id. at 92. While Cravens was “scrolling

down through the images or files . . . on the CDs, [he] found what looked like a nude

child.” Id. at 60. He opened the file to confirm that it was an image of child

pornography. After determining that it was, Cravens ejected the CD from his

computer, set it aside, and alerted Agent Nishida and the FBI agent in charge of

Loera’s case. Then, Cravens searched the rest of the CDs assigned to him for

evidence of computer fraud. Cravens later found a child pornography image on a

second CD. Just as he did with the first, Cravens set the CD aside after discovering the

illegal images and did not open any other files on that CD.

Agent Nishida took a different approach to his search. He previewed the files

on his assigned CDs using the “details view” of Windows Explorer, meaning that he

saw a list of files, file names, and last-modified dates of those files, but not pictures

associated with the files. Id. at 157. For his search of the CDs, or “triage,” as he called

it, Nishida would open two or three files on each CD and then determine from that

sample whether the CD should be seized pursuant to the warrant. Id. at 160. If Nishida

5
found something he believed might be responsive to the warrant in the files that he

sampled, he would set the CD aside to be reviewed off-site. As he was sampling files,

Nishida found child pornography on two CDs. Unlike Cravens, Nishida did not cease his

search of those CDs after discovering child pornography; he continued sampling files on

the CDs to determine if they contained information that was responsive to the warrant.

The FBI seized thirteen CDs in total from Loera’s residence: four contained child

pornography images and nine contained evidence of computer fraud.1 In addition to the

thirteen CDs, the FBI seized computers, external hard drives, an iPhone, and an iPad.

B. The Second Search

One week later, on November 27, 2012, Cravens decided to apply for a search

warrant to search the items seized from Loera’s residence for child pornography.

Cravens wanted to include in his warrant affidavit a detailed description of one child

pornography image from each of the four CDs on which he and Nishida had found child

pornography during their on-site preview. Consequently, Cravens opened each of the

four CDs, viewing several images on each, to find child pornography images that he

could accurately describe. Viewing the photos and drafting the affidavit took a total of

two-and-a-half hours. However, Cravens testified before the district court that he did not

spend “anywhere near the two-and-a-half hours” actually looking at photos on the CDs.

Id. at 74-75.

1
There is no indication in the record whether the four CDs that contained child
pornography also contained evidence responsive to the warrant. However, Loera does
not challenge the FBI’s seizure of those CDs pursuant to the first warrant.
6
 Cravens’ affidavit included two sections. In Section I, Cravens described his

training and experience with computers and child pornography. In Section II, Cravens

explained the details of the FBI’s investigation of Loera that led to the agent’s discovery

of child pornography on the CDs in Loera’s residence. In particular, paragraph 21

described in general terms how Cravens discovered the child pornography:

21. In the process of executing this warrant, an FBI certified computer
forensic examiner and a computer analysis response team (CART)
technician previewed the loose media located during the search (e.g.,
thumb drives, CD-Rs, DVD-Rs, memory cards, etc.) for evidence
relevant to the original unrelated investigation. During the preview, the
examiners identified four writable CDs which appeared to contain
images of child pornography. The CDs were seized and placed in the
evidence control room at the local FBI office.

ROA Vol. I at 120. In paragraph 23, Cravens explained that on November 27, 2012,

he “reviewed the four CDs . . . that were believed to contain child pornography,” id.

at 121, and that “[d]uring the review of the CDs, [he] observed multiple pictures of

children many of which are in various states of dress,” id. Then, in paragraphs

24-27, Cravens provided a detailed description of one image from each CD that

depicted a minor engaged in sexually explicit conduct. Cravens’ descriptions

included the apparent age of the minor and the conduct depicted. On November 29,

2012, based on Cravens’ affidavit, a federal magistrate judge approved a warrant to

search the thirteen CDs and six other electronic devices that were seized from Loera’s

residence for child pornography (“the second warrant”).

7
 C. Searches Pursuant to the Second Warrant

Agent Nishida executed the second warrant on two separate dates. In December

2012, Nishida searched Loera’s laptop pursuant to both the first and second warrants,

looking for evidence of computer fraud and child pornography. He discovered more than

730 child pornography images on Loera’s laptop. In April 2013, Nishida searched the

four CDs seized from Loera’s residence for child pornography pursuant to the second

warrant. He discovered approximately 330 images and two movies of child pornography

on those CDs.

D. Proceedings Below

A federal grand jury indicted Loera on several counts of possessing child

pornography that implicated the images found on both his laptop and his CDs. Loera

filed a motion to suppress that child pornography evidence, and the district court

denied the motion. Loera filed a motion for reconsideration, which the district court

also denied. Following that denial, Loera pled guilty to one count of knowingly

receiving child pornography in violation of 18 U.S.C. §§ 2252(a)(2), 2252(b)(1), and

2256, pursuant to a plea agreement, but he reserved the right to appeal the denial of

his motions.

On appeal, Loera argues that the district court should have suppressed the

child pornography evidence discovered during the first search, the second search, and

the searches conducted pursuant to the second warrant because, according to Loera,

each search was unlawful. Loera argues that the first search exceeded the scope of

the first warrant, the second search exceeded the scope of the first warrant, and the

8
last two searches, while authorized by the second warrant, were unlawful because

that warrant was invalid. Additionally, Loera maintains that none of the exceptions

to the warrant requirement apply to the searches in this case. We conclude that the

first search was lawful, but we agree with Loera that the remaining searches were

unlawful. Nevertheless, we AFFIRM the district court’s denial of Loera’s motion to

suppress and motion to reconsider under the inevitable discovery doctrine.

II. DISCUSSION

A. Standard of Review

“When reviewing the district court’s denial of a motion to suppress, we view

the evidence in the light most favorable to the government and accept the district

court’s factual findings unless they are clearly erroneous,” United States v. Grimmett,

439 F.3d 1263, 1268 (10th Cir. 2006), but “[t]he ultimate question of reasonableness

under the Fourth Amendment is a legal conclusion that we review de novo.” Id.

Accordingly, de novo review applies to the issues we address in this opinion,

including, the scope of a search warrant, United States v. Angelos, 433 F.3d 738, 745

(10th Cir. 2006), the sufficiency of a search warrant, United States v. Danhauer, 229

F.3d 1002, 1005 (10th Cir. 2000), the applicability of the good-faith exception, id.,

and the applicability of the inevitable discovery doctrine, United States v. Christy, 739

F.3d 534, 540 (10th Cir. 2014).

B. Validity of the Government’s Application for the First Warrant

First, Loera argues that the FBI agents obtained the initial warrant to search

his residence for evidence of computer fraud as a pretext to search instead for

9
evidence of child pornography. The district court disagreed, finding that the sole

purpose of the first search was to uncover evidence of computer fraud. We affirm

that conclusion.

Loera’s pretext argument is based on a statement that Agent Nishida made in a

report dated February 28, 2013, three months after the first and second searches were

conducted. In that report, Nishida wrote:

On November 14, 2012, SA Michael Boady requested that the above
listed specimen or specimens be examined for evidence of intercepting a
communication. For example, e-mail messages to or from the domain
Susanna2010.com. In addition, SA Boady requested that the evidence
also be examined for evidence of child pornography possession and
receipt.

ROA Vol. II at 191–92. Loera argues that this report proves that on November 14,

2012, six days before the first search, Agent Nishida received instructions to search

Loera’s home and effects for evidence of child pornography.

The district court made explicit factual findings to the contrary, which are

supported by the record. First, the district court found that, had the FBI agents had

suspicions that Loera possessed child pornography, agents would have included that

information in their application for the first warrant. Second, Agent Nishida testified

at the suppression hearing that the February 2013 report summarized two separate

instructions from SA Boady: on November 14, 2012, Boady instructed Nishida to

search for evidence of interception, and, later, Boady instructed Nishida to search for

evidence of child pornography. Finally, both Cravens and Nishida testified at the

suppression hearing that the purpose of the November 20 search was only to uncover

10
evidence of computer fraud, and the district court credited that testimony. Each of

these facts supports the district court’s determination that the agents conducted the

first search solely to look for evidence of computer fraud. And we are unpersuaded

by Loera’s only evidence of pretext, the report written three months after the

allegedly pretextual search.2

Thus, we conclude the FBI agents had no pretextual motivations for obtaining

the first warrant, and we affirm the district on this issue.

C. Reasonableness of the First and Second Searches

Next, we determine that the first search of Loera’s residence was reasonable

because it was directed solely at uncovering the items specified in the first warrant

both before and after the officers discovered the child pornography evidence.

However, we conclude that the second search was unreasonable because it was

directed at uncovering evidence of child pornography.

1. Relevant legal principles

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.

2
Alternatively, even if the agents had an additional motive for conducting the first
search, that argument would fail as a matter of law under Whren v. United States,
517 U.S. 806, 813 (1996).
11
U.S. Const. amend. IV. It is now well-recognized that “the ultimate touchstone of

the Fourth Amendment is ‘reasonableness.’” Brigham City v. Stuart, 547 U.S. 398,

403 (2006). “[R]easonableness generally requires the obtaining of a judicial

warrant,” Riley v. California, 134 S.Ct. 2473, 2482 (2014), subject to only a few

exceptions. The warrant must “particularly” describe “the place to be searched, and

the persons or things to be seized,” U.S. Const. amend. IV.

However, obtaining a sufficiently particular warrant is just the first step to

conducting a reasonable search. The officers tasked with executing a sufficiently

particular warrant must conduct their search “strictly within the bounds set by the

warrant.” Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403

U.S. 388, 395 n.7 (1971) (quoting Marron, 275 U.S. at 196). The Supreme Court has

held that, “[i]f the scope of [a] search exceeds that permitted by the terms of a validly

issued warrant . . . the subsequent seizure [of evidence] is unconstitutional without

more.” Horton v. California, 496 U.S. 128, 140 (1990).

Determining whether a search exceeds the scope of its authorizing warrant is,

like most inquiries under the Fourth Amendment, an exercise in reasonableness

assessed on a case-by-case basis. Dalia v. United States, 441 U.S. 238, 258 (1979)

(holding that the manner of a search is subject to “later judicial review as to its

reasonableness”). The general Fourth Amendment rule is that investigators executing

a warrant can look anywhere where evidence described in the warrant might

conceivably be located. United States v. Ross, 456 U.S. 798, 824 (1982). For

example:

12
 Just as probable cause to believe that a stolen lawnmower may be found in
a garage will not support a warrant to search an upstairs bedroom, probable
cause to believe that undocumented aliens are being transported in a van
will not justify a warrantless search of a suitcase. Probable cause to believe
that a container placed in the trunk of a taxi contains contraband or
evidence does not justify a search of the entire cab.

Id. This limitation works well in the physical-search context to ensure that searches

pursuant to warrants remain narrowly tailored, but it is less effective in the electronic-

search context where searches confront what one commentator has called the “needle-in-

a-haystack” problem. Orin S. Kerr, Digital Evidence and the New Criminal

Procedure, 105 Colum. L. Rev. 279, 301 (2005). Given the enormous amount of data

that computers can store and the infinite places within a computer that electronic

evidence might conceivably be located, the traditional rule risks allowing unlimited

electronic searches.

To deal with this problem, rather than focusing our analysis of the

reasonableness of an electronic search on “what” a particular warrant permitted the

government agents to search (i.e., “a computer” or “a hard drive”), we have focused

on “how” the agents carried out the search, that is, the reasonableness of the search

method the government employed. See United States v. Burgess, 576 F.3d 1078

(10th Cir. 2009); United States v. Walser, 275 F.3d 981 (10th Cir. 2001); United

States v. Carey, 172 F.3d 1268 (10th Cir. 1999). Our electronic search precedents

demonstrate a shift away from considering what digital location was searched and

toward considering whether the forensic steps of the search process were reasonably

directed at uncovering the evidence specified in the search warrant. Shifting our

13
focus in this way is necessary in the electronic search context because search

warrants typically contain few—if any—restrictions on where within a computer or

other electronic storage device the government is permitted to search. See United

States v. Christie, 717 F.3d 1156, 1165 (10th Cir. 2013) (holding that, so long as an

electronic search warrant requires the government to “direct all of its search efforts”

toward evidence relating to a specific crime, the warrant is sufficiently particular,

even where it permits the government to search a “computer” for “all records”

relating to the crimes of “murder, neglect, and abuse”). Because it is “unrealistic to

expect a warrant prospectively [to] restrict the scope of a search by directory,

filename or extension or to attempt to structure search methods,” Burgess, 576 F.3d

at 1093 (alteration added), our ex post assessment of the propriety of a government

search is essential to ensuring that the Fourth Amendment’s protections are realized

in this context. Our precedent of Carey, Burgess, and Walser, to which we turn next,

are instructive as to what constitutes a reasonable electronic search pursuant to a

valid warrant.

Carey is the only case in which we invalidated an electronic search for

exceeding the scope of its authorizing warrant. See 172 F.3d at 1276. There, a

police officer obtained a warrant to search files on the defendant’s computer for

evidence “pertaining to the sale and distribution of controlled substances.” Id. at

1270. Prior to searching the computer, the officer first viewed the computer’s file

directory, which showed numerous “JPG” files with sexually suggestive titles. Id.

During his search, the officer came across a number of files that he did not recognize

14
and that he was unable to view on the computer that he was using. Id. at 1271. To

view the files, the officer downloaded them onto a separate disk, inserted that disk

into another computer, and then was immediately able to view a “JPG file” that

depicted child pornography. Id. Rather than navigating away from the

nonresponsive material, the officer “downloaded approximately two hundred forty-

four” more JPG files and then transferred them to nineteen disks, viewing five to

seven images on each disk to determine that they all contained child pornography.

Id. The whole process took about five hours. Id. at 1273. After he had catalogued

the child pornography images in this manner, he then “returned” to his “original task

of looking for evidence of drug transactions.” Id. at 1271.

The Carey court held that this was an unlawful, general exploratory search

because, although it was permissible for the officer to open the first JPG file to see if

it was responsive to the warrant, id. at 1273 n.4, his opening of the remaining files

exceeded the bounds of the authorizing warrant, id. at 1276. The Carey court’s

holding turned on four facts: (1) the officer spent five hours, a significant amount of

time, specifically perusing the trove of nonresponsive material, id. at 1273; (2) the

nonresponsive files were characteristically distinct and set apart from the other files

on the computer (such that they could have been avoided) because each file was

labeled “JPG,” many had sexually suggestive titles, and the officer had to download

them to open them, id. at 1274; (3) the officer did not discover the files inadvertently

(at least after his first look), id. at 1273; and (4) a more narrowly tailored search was

possible—the officer could have gone back to searching for drug-related documents

15
much sooner than he did, id. at 1273. Importantly, we did not condemn the officer’s

decision to return to searching for drug-related documents after discovering the child

pornography, but, instead, we condemned his “temporar[y] abandon[ment]” of the

original search to conduct a “five hour search of the child pornography files.” Id. at

1273.

Next, we turn to Walser and Burgess, both of which upheld electronic searches

in which the investigator discovered incriminating, nonresponsive material while

executing a search warrant but then navigated away from it. In United States v.

Walser, the police obtained a warrant to search the defendant’s hotel room for

electronically stored records of “evidence of the possession of controlled

substances.” 275 F.3d 981, 983–84 (10th Cir. 2001). A police officer searched the

room pursuant to the warrant and found a laptop and a digital camera. Id. at 984.

The agent seized the laptop, removed it from the hotel room, and then conducted a

drug-specific search of the laptop, looking for “ledgers of drug transactions or images

of drug use.” Id. In order to find those things, the agent employed a particularized

search method that “selectively proceeded to the ‘Microsoft Works’ sub-folder on the

premise that[,] because Works is a spreadsheet program, that folder would be most

likely to contain records relating to the business of drug trafficking.” Id. at 986. It

was while searching the contents of the Works folder that the officer came across a

file labeled “bstfit.avi” and opened it. Id. at 984. When he viewed the contents, he

discovered that the file contained child pornography images. Id. at 986–87. He then

immediately ceased his search. Id.

16
 We upheld the officer’s search as reasonable because we determined that, by

using a particularized search method, the officer avoided conducting the kind of

“sweeping, comprehensive search of a computer’s hard drive” that Carey prohibited.

Id. at 986. The defendant in Walser argued that the agent exceeded the scope of the

warrant by opening the “AVI file,” a video file, because “it could not possibly have

contained the type of evidence the [a]gent was authorized to search for, namely,

records of drug transactions or still images of drug use.” Id. at 987. We rejected that

argument by interpreting Carey to excuse an officer’s discovery of child pornography

during a search for “relevant records in places where such records might logically be

found” so long as the officer does not conduct a supervening search specifically

directed at finding pornography evidence. Id. at 986. Applying that rule, we held in

Walser that the officer’s opening the “bstfit.avi” file was permissible because (1) he

was looking in a folder that was “most likely to contain records relating to the

business of drug trafficking” when he opened it, and (2) he did not conduct an

intervening search directly focused on child pornography like the agent in Carey. Id.

Based on those facts, we concluded that the “search was reasonable and within the

parameters of the search warrant” and that the evidence found as a result of it did not

need to be suppressed. Id. at 987.

Finally, in United States v. Burgess, 576 F.3d 1078 (10th Cir. 2009), we again

upheld an electronic search that uncovered evidence of child pornography as

reasonable and within the scope of its authorizing warrant. There, police obtained a

warrant to search a motorhome for, among other things, “computer records” that

17
would tend to show “conspiracy to sell drugs.” Id. at 1083. The warrant

incorporated the affidavit on which it was based, which stated that the affiant “knows

that persons involved in trafficking or the use of narcotics often keep photographs of

coconspirators or photographs of illegal narcotics in their vehicle.” Id.

Based on the warrant, officers searched two hard drives and a laptop found in

the motorhome. Id. An agent searched one of the hard drives by using a program

called EnCase, which copies the contents of a hard drive over to a computer to

prevent file corruption. Id. at 1083–84. EnCase allows an investigator to “preview”

reduced-sized photos of each image file as they are being copied. Id. at 1084, 1094.

The agent took advantage of this feature and viewed each image file on the hard drive

as it was being copied. Id. at 1084. After viewing 200-300 digital images, mostly

personal photos, the agent saw an image that looked like child sexual exploitation.

Id. He then closed the preview program and sought a warrant to search all of the

defendant’s electronic storage devices for evidence of child pornography. Id. Upon

conducting that search, the agent found more than one hundred thousand illegal

images. Id.

The defendant asked the district court to suppress the child pornography

evidence because, he argued, the agent’s use of the “preview” program exceeded the

scope of the warrant because he did not employ a particularized search method like

the agent in Walser but instead looked through each image file contained on the hard

drive. We determined that the agent’s use of the “preview” program was reasonable

and did not exceed the scope of the warrant for two reasons. First, we noted that,

18
because the warrant did not expressly limit the file types that the agent was allowed

to search, for example, by limiting the search to text files (.doc, .wpd, .txt, etc.), the

agent was well within the scope of the warrant when he decided to view all of the

image files on the hard drive using the preview program. Id. at 1092. Second, we

determined that there was no reasonable way for the agent to conduct a more

narrowly tailored search because, when the object of a search is likely to be an image

file, as it was in Burgess, “there may be no practical substitute for actually looking in

many (perhaps all) folders and sometimes at the documents contained within those

folders.” Id. at 1094.

Reading these cases together, we determine that four features of the

unconstitutional search in Carey demonstrate that it was unreasonably directed at

uncovering evidence of child pornography, rather than directed at the evidence

specified in the warrant, and distinguish it from the reasonable searches in Walser

and Burgess: (1) the length of time the searching officer spent looking at the

incriminating, nonresponsive evidence (five hours in Carey versus less than one

minute in Walser and Burgess); (2) the fact that the nonresponsive files were set apart

from the responsive files saved on the storage device (JPG files downloaded onto

separate disks in Carey versus generic files intermingled all in one place in Burgess);

(3) the manner in which the evidence was discovered (purposefully in Carey versus

inadvertently in Walser and Burgess);3 and (4) the breadth of the search method

3
We acknowledge that in Horton v. California, 496 U.S. 128, 130 (1990), the
Supreme Court held that, in physical searches, “even though inadvertence is a
19
employed (the wide detour in Carey versus the narrowly tailored search in Walser).

Contrary to Loera’s assertion, these cases do not require that officers stop searching

upon discovering evidence of a crime outside the scope of the warrant. Such a rule

would prohibit what the Fourth Amendment expressly permits—reasonable searches

based upon a warrant supported by probable cause. We have never required that.

This conclusion brings us in line with every circuit that has confronted this

issue. See United States v. Stabile, 633 F.3d 219, 240 (3d Cir. 2011) (upholding

denial of motion to suppress where officers continued warrant-authorized search of

the defendant’s computer for financial crimes after discovering child pornography);

United States v. Williams, 592 F.3d 511, 521–24 (4th Cir. 2010) (upholding search

where the officer continued his warrant-authorized search of the defendant’s

computer for evidence of “making threats and computer harassment” after

discovering child pornography); United States v. Miranda, 325 F.App’x 858, 859–60

(11th Cir. 2009) (per curiam) (unpublished) (upholding search where officer

continued his warrant-authorized search for evidence of counterfeit software after

discovering child pornography); United States v. Wong, 334 F.3d 831, 834 (9th Cir.

characteristic of most legitimate ‘plain view’ seizures, it is not a necessary
condition.” However, because Carey, Walser, and Burgess, each of which succeeded
Horton in time, considered the subjective intentions of the searching officers where
that information was available, we continue to include inadvertence as a factor to
consider when deciding whether an electronic search fell within the scope of its
authorizing warrant or outside of it. The fundamental differences between electronic
searches and physical searches, including the fact that electronic search warrants are
less likely prospectively to restrict the scope of the search, justify our inclusion of
that factor. See Horton, 496 U.S. at 139 (abandoning inadvertence as a necessary
condition for a legitimate plain view seizure).
20
2003) (upholding denial of motion to suppress where the officer continued his

warrant-authorized search of the defendant’s computer for, among other things,

“[a]ny maps, receipts, or writings, depicting Churchill County Nevada” after

discovering child pornography).

Although officers do not have to stop executing a search warrant when they

run across evidence outside the warrant’s scope, they must nevertheless reasonably

direct their search toward evidence specified in the warrant. What that looks like

depends on the particular facts of a given case. Narrowly tailored search methods

that begin looking “in the most obvious places and [then] progressively move from the

obvious to the obscure,” Burgess, 576 F.3d at 1094, should be used where possible but

are not necessary in every case. In cases like this one, where the electronic storage

device is not well-organized and the most practical way to search it is through an item-

by-item review, “there may be no practical substitute for actually looking in many

(perhaps all) folders and sometimes at the documents contained within those folders.”

Id. In such a case, however, the searching officer must respond appropriately to what

he or she sees. The reasonableness of a search evolves as the search progresses and

as the searching officer learns more about the files on the device that he or she is

searching.

An analogy to the physical realm is helpful here. Imagine a warrant authorizes

police officers to search a “residence” for evidence of “firearms and ammunition.”

Under that warrant, it would be reasonable for a police officer to search the medicine

cabinet in the bathroom for a minute or two to see if a small gun or ammunition is

21
hidden there, however, it would be unreasonable for the officer to spend two hours

reading the labels on each bottle of medicine in the cabinet. On the other hand, if the

warrant had authorized the officer to search the residence for evidence of “illegal

drug trafficking and manufacture,” an intensive search of the medicine cabinet would

be reasonable. In both cases, the medicine cabinet is fair game to search, but the

intensity level of the permitted search differs depending on the evidence to be seized.

The same is true for electronic searches. While in some cases many (perhaps all)

electronic areas of a computer will be fair game to search, the level of intensity that

officers are permitted to spend searching those areas will differ depending on

whether the area appears to contain responsive material. This is true even when

officers come across evidence of incriminating, nonresponsive material. In all cases,

the ultimate test is the one mandated by the Fourth Amendment: whether the search

was “reasonable” under the circumstances. In the case of a computer search,

“reasonableness” requires officers to take into account the flexibility of computers

and the multiple configurations to which they may be adapted. As the computer

search continues and as the executing officer obtains more information about how a

suspect used his computer, that too may inform the reasonableness of the continuing

search.

We now apply these principles to the November 20 and 27 searches conducted

in this case.

22
 2. November 20 search was reasonable

Loera argues that, although the first warrant permitted the FBI agents to search his

CDs for evidence of computer fraud, the officers’ search exceeded the scope of the first

warrant when they continued searching after discovering evidence of child pornography.

We disagree. The searches that Agent Cravens and Agent Nishida each conducted of

Loera’s CDs on November 20 were reasonable and conducted within the scope of the

first warrant because at all times each was reasonably directed at discovering evidence of

computer fraud. Therefore, the first search did not violate the Fourth Amendment and

thus did not warrant suppression of the evidence discovered during that search.

The agents’ searches on November 20 resemble the searches in Walser and

Burgess more than they resemble the search in Carey, both before and after they

discovered the child pornography evidence. First, both agents here spent very little

time looking at the child pornography images they discovered. They noticed them,

alerted a supervisor, and then moved on to the rest of the images on the same CD (in

Nishida’s case), or the other CDs (in Cravens’ case), looking for evidence of

computer fraud. Both responses were reasonable because, as mentioned above, the

agents were not required to stop searching altogether. And both responses

demonstrate an effort to navigate away from the nonresponsive material and toward

files that they believed were more likely to contain material responsive to the

warrant. Second, the files on the CDs that the agents previewed were not

characteristically distinct or set apart from the other files, in contrast to Carey. Agent

Cravens testified that, when he put a CD into his computer to see the files that it

23
contained, the computer pulled up a generic list of those files. The record does not

indicate that there were any folders or distinctive titles setting clearly apart the

nonresponsive child pornography files from the other files on the disk. Loera bears

the burden of proof on his suppression motion, and he has offered no evidence on this

point. Third, the agents discovered the child pornography files inadvertently on

November 20. Fourth, both agents’ search methods were reasonably narrow under

the circumstances, considering the fact that the CDs did not seem particularly

organized. Given that the warrant permitted the agents to search the CDs for

“photographs,” “documents,” and “configuration files,” it was reasonable for Nishida and

Cravens to search all file types on the CDs (image, video, and text) for evidence of

computer fraud rather than to narrow that search to one particular file type. The agents’

searches on November 20 were reasonable because they fell within the scope of the

first warrant both before and after they discovered the child pornography evidence. We

reverse the district court’s ruling to the contrary.

3. November 27 search was unreasonable

Loera also argues that Agent Cravens’ subsequent search on November 27,

2012, of the four seized CDs that contained child pornography violated the Fourth

Amendment because Cravens was “[i]ntentionally searching for evidence of a crime

outside the scope of the [f]irst [w]arrant prior to obtaining a new warrant.” Aplt. Br. 29.

In making this argument, Loera accepts that the first warrant permitted the government to

seize the four CDs that were found to contain some child pornography and to search them

for evidence of computer fraud. Therefore, Loera challenges Cravens’ November 27

24
search only for exceeding that permission. Accordingly, we confine our analysis to

whether the second search exceeded the scope of the first warrant. The district court

concluded that it did and that neither exigent circumstances nor any other exception to

the warrant requirement justified that search. We agree and conclude that the district

court correctly excised the evidence obtained during the November 27th search from

Cravens’ affidavit for the second warrant. Several of the district court’s factual findings

support that result.

The district court found that “Cravens was not searching for evidence of

electronic fraud” on November 27 but instead was searching for child pornography.

Dist. Ct. Op. at 144. The district court based this finding on Cravens’ testimony at the

suppression hearing that he reopened Loera’s CDs on November 27 specifically “[t]o

write a description of an image on the disc” so that he could “obtain a second warrant

for child pornography.” ROA Vol. II at 72. That admission is the most probative

fact in the record that Cravens’ search was directed at finding child pornography.

The district court also found that Cravens had the four CDs for a total of two-and-a-

half hours that day, during which time he searched the CDs and drafted the second

affidavit. Although the record does not indicate how long Cravens searched the CDs,

he testified at the suppression hearing that he looked at several images on each CD—

“more than just a couple” but “[m]ost likely less than a dozen.” ROA Vol. II at 143.

Whatever the amount of time, Cravens’ devoted it exclusively to nonresponsive

material. Rather than navigate away from the child pornography images when he found

them, Cravens explicitly navigated toward such images. Based on these findings, we

25
agree with the district court that, in contrast with the agents’ searches on November

20, Agent Cravens’ search on November 27 was unreasonable because it was directed

at uncovering evidence of child pornography.

The government argues that two exceptions save Cravens’ search from

violating the Fourth Amendment: the plain view doctrine and the foregone-

conclusion exception. We disagree. For its plain view argument, the government

asserts that the law permitted Agent Cravens to take a “second look” at the child

pornography images on Loera’s CDs because members of the FBI had already seen

the images in plain view during a lawful search, and, therefore, his “second look”

was no further invasion of Loera’s privacy than the initial, lawful viewing. The

government points to a Fourth Circuit case, United States v. Jackson, 131 F.3d 1105

(4th Cir. 1997), where a law enforcement officer had consent to search a residence for a

fugitive. Id. at 1107. While looking for the fugitive in the basement, the officer observed

some suspicious metal items on the floor. Id. He did not pause to examine those items at

that time, but he instead proceeded to finish his sweep for the fugitive. Id. Once

finished, he went back to take a closer look at the objects on the floor, this time

recognizing them as drug paraphernalia. Id. More officers arrived and took a look at the

paraphernalia, eventually using the presence of those items to obtain a search warrant for

the house, which uncovered a gun and large quantities of drugs. Id. at 1108. That further

search was held to have been constitutional under the plain-view doctrine. Id.

There are too many factual distinctions between Jackson and this case to permit

Cravens’ second look under the plain view doctrine. First, as government counsel

26
admitted at oral argument, there is no evidence in the record that Cravens looked at the

same photos on November 27 that the officers viewed on November 20. Second, seven

days elapsed between the first and second searches in this case, not a matter of minutes.

Third, Cravens’ “second look” led him to peruse more than just the child pornography

images, so we cannot say that the November 27 search did not cause a further invasion

of Loera’s privacy. The plain view doctrine permits the warrantless seizure of

evidence of criminal activity when police officers observe the evidence during a

lawful search. United States v. Naugle, 997 F.2d 819, 822 (10th Cir. 1993). That

doctrine cannot be used to justify Cravens’ November 27 search.

The government also argues that Cravens’ “second look” was justified under

what it has termed the “foregone-conclusion exception” to the warrant requirement.

This doctrine comes from several of our plain view cases where we have permitted

the warrantless search of containers in plain view whose contents “are a foregone

conclusion” because the container is “not closed,” “transparent,” or, if it is closed,

“its ‘distinctive configuration . . . proclaims its contents’” nonetheless. United States

v. Corral, 970 F.2d 719, 725 (10th Cir. 1992). We have also held that the doctrine

applies “where the police have already seen the contents of a seized container prior to

conducting the search, [because] there is no significant additional invasion of privacy

involved in searching the container.” Id. at 725. We reject this argument for the

same reasons as the government’s plain view argument. Here, Cravens knew to a

near certainty that the seized and re-searched CDs contained some child pornography,

but he had no idea what else they contained. And, again, there is no evidence that

27
Cravens had previously seen the child pornography images that he viewed on

November 27.

Thus, Cravens’ November 27 search was unlawful because it exceeded the scope

of the first warrant and none of the exceptions to the warrant requirement apply.

D. Reasonableness of the Searches Conducted Under the Second Warrant

Additionally, Loera argues that the child pornography evidence that Agent

Nishida discovered when he executed the second warrant should have been

suppressed because the second warrant was not supported by probable cause and no

exceptions to the warrant requirement apply. We agree that the second warrant was

not supported by probable cause and that the good faith exception is inapplicable

here. However, the inevitable discovery doctrine supports the district court’s denial

of Loera’s motion to suppress, and we affirm on that basis.

1. Second warrant was not supported by probable cause

We review whether a magistrate properly issued a search warrant by determining

whether there was a “substantial basis” for probable cause in the affidavit submitted in

support of the warrant. Illinois v. Gates, 462 U.S. 213, 236 (1983). Because we find

that the November 27 search was unlawful, we must excise from the affidavit that

Cravens filed in support of the second warrant all of the descriptions of child

pornography that he unlawfully obtained during the second search and then

determine whether “there was probable cause absent that information.” United States

v. Sims, 428 F.3d 945, 954 (10th Cir. 2005). The district court determined that the

28
second warrant remained supported by probable cause without the tainted

descriptions. We disagree.

While “probable cause does not demand the certainty we associate with formal

trials,” Gates, 462 U.S. at 246, “[s]ufficient information must be presented to the

magistrate to allow that official to determine probable cause; his action cannot be a mere

ratification of the bare conclusions of others,” id. at 239 (emphasis added). For example,

“[a] sworn statement of an affiant that ‘he has cause to suspect and does believe that’

liquor illegally brought into the United States is located on certain premises” is not

sufficient to support a finding that probable cause exists to search the premises. Id.

The child pornography descriptions that Agent Cravens obtained during the

unlawful second search appear in paragraphs 24-27 of Cravens’ affidavit. Once we

excise those descriptions, all that remains substantively is Cravens statement that,

“During the preview, the examiners identified four writable CDs which appeared to

contain images of child pornography.” ROA Vol. I at 120. This sentence does not

support a finding of probable cause.

In United States v. Pavulak, the Third Circuit reviewed an affidavit to support

a warrant to search for child pornography that contained language very similar to the

bare-bones description left in the affidavit in our case, 700 F.3d 651, 661 (3d Cir.

2012). The warrant affidavit in Pavulak stated that an informant had seen the

defendant “viewing child pornography” of females “between 16 and 18 years old,”

without providing any further details about what the images depicted. Id. at 657.

The Third Circuit held that the affidavit lacked probable cause because it did not

29
allow the magistrate judge “to independently evaluate whether the contents of the

alleged images [met] the legal definition of child pornography.” Id. at 661. We find

that analysis persuasive here. Agent Cravens’ remaining statement that the CDs

“appeared to contain images of child pornography” provides no detailed description

of what the images depicted such that a magistrate could independently assess

whether the images meet the legal definition of child pornography. ROA Vol. I at

120.

Therefore, the affidavit supporting the second warrant lacked probable cause

absent the tainted information. We reverse the district court’s contrary conclusion.

2. Good-faith exception inapplicable to these facts

Next, we consider whether the good faith exception to the exclusionary rule

from United States v. Leon, 468 U.S. 897, 918 (1984), applies when police execute a

search warrant that is based on information obtained through an unlawful predicate

search. Disagreeing with the district court, we conclude that it does not. The

Supreme Court’s opinion in Leon and our opinion in United States v. Scales, 903

F.2d 765, 768 (10th Cir. 1990), dictate that the good faith exception does not apply in

a case like the one before us because the illegality at issue stems from unlawful

police conduct, rather than magistrate error, and therefore the deterrence purposes of

the Fourth Amendment are best served by applying the exclusionary rule.

In United States v. Leon, the Supreme Court modified the exclusionary rule

“so as not to bar the use in the prosecution’s case in chief of evidence obtained by

officers acting in reasonable reliance on a search warrant issued by a detached and

30
neutral magistrate but ultimately found to be unsupported by probable cause,” 468

U.S. at 900. The Court reasoned that the purpose of the exclusionary rule is to deter

police misconduct and in such a case “there is no police illegality and thus nothing to

deter.” Id. at 920. In this circuit, “Leon’s good faith exception applies only narrowly,

and ordinarily only when an officer relies, in an objectively reasonable manner, on a

mistake made by someone other than the officer.” United States v. Cos, 498 F.3d 1115,

1132 (10th Cir. 2007) (declining to apply good faith exception to warrantless search of

apartment where officers mistakenly believed the person that consented to the search had

the authority to do so); United States v. Herrera, 444 F.3d 1238, 1251 (10th Cir. 2006)

(declining to apply good faith exception to state trooper who conducted a warrantless

inspection of a truck based on the officer’s mistaken belief the truck was a commercial

vehicle subject to such inspection). Thus, Leon is inapplicable here where the

mistake—the unconstitutional second search—was the fault of the officer, not the

magistrate.

We considered whether Leon applied to a warrant affidavit based on tainted

evidence in Scales, 903 F.2d at 768. There, we held that Leon did not apply to

excuse a law enforcement officer’s reliance on a search warrant where the facts in the

warrant affidavit were obtained through an unlawful predicate seizure. In that case,

DEA agents seized a suitcase that they believed contained drugs. Id. at 767. Then,

they took the suitcase to a drug-sniffing canine team that signaled the suitcase did

contain drugs. Id. Finally, after having had the suitcase in their possession for

twenty-four hours, the agents applied for and obtained a warrant to search the

31
suitcase based on the probable cause provided by the canine alert. Id. Upon

conducting the search, the agents discovered more than 2,000 grams of cocaine in the

suitcase. Id. The defendant moved to suppress the cocaine evidence, arguing that the

agents’ initial seizure of the suitcase was unlawful because it was unsupported by

probable cause. Id. at 767.

The district court in Scales denied the motion, finding that, even if the seizure

of the suitcase was unlawful, the good faith exception ratified the agents’ behavior.

Id. We reversed, holding that Leon was inapplicable “[b]ecause the DEA agents

were not acting in reliance on a search warrant when they seized the luggage and held

it for more than twenty-four hours.” Id. at 768. Our holding was informed by the

reasoning in Leon that “Penalizing the officer for the magistrate’s error, rather than

his [or her] own, cannot logically contribute to the deterrence of Fourth Amendment

violations.” Id. at 768 (quoting Leon, 468 U.S. at 921) (alteration in original).

Because the contraposition is also true—that penalizing an officer for his or her own

error does contribute to deterrence—we determined that the exclusionary rule must

apply to the agents’ unlawful pre-warrant seizure of the suitcase. Id.

Scales and Leon control our outcome here. Cravens conducted an unlawful

search of Loera’s CDs on November 27 in the absence of a warrant. He included the

tainted fruit that he uncovered during that search in the affidavit that he submitted in

support of the second warrant. Cravens’ warrant affidavit was facially valid, and

therefore the magistrate did not error by issuing a warrant based upon it. Instead, the

constitutional error came from Agent Cravens.

32
 The government argues that Cravens acted in good faith because he

“transparently informed the magistrate judge of the steps he had taken to obtain the

descriptions he included in his affidavit.” Aple. Br. at 40. Cravens’ affidavit

provided some information about the first search. It explained that, while executing

the first search warrant, the FBI agents identified four CDs that contained child

pornography and seized them. Then, Cravens wrote:

On November 27, 2012, the writer, an FBI certified CART Technician,
reviewed the four CDs, each of which are designated in attachment A,
that were believed to contain child pornography. During the review of
the CDs, the writer observed multiple pictures of children many of
which are in various state of dress including the following images . . . .

ROA Vol. I at 50. However, that information was not sufficient to allow the

magistrate to determine the constitutionality of the second search such that the

magistrate can be said to have endorsed Cravens’ pre-warrant conduct. Furthermore,

even if it was, that would not affect our outcome. Tenth Circuit precedent dictates

that the good faith exception does not apply at all when a warrant affidavit is based

on tainted evidence from a prior, unlawful search.

Four other circuits have likewise concluded that Leon is inapplicable when an

officer executes in good faith a search warrant that is based on unlawfully-obtained

evidence. United States v. Scott, 731 F.3d 659, 664 (7th Cir. 2013) (holding that

evidence discovered pursuant to a warrant based on illegally-obtained evidence will

be inadmissible unless other, untainted information in the affidavit establishes

probable cause); United States v. Mowatt, 513 F.3d 395, 405 (4th Cir. 2008) (holding

that “Leon only prohibits penalizing officers for their good-faith reliance on

33
magistrates’ probable cause determinations” and that the exclusionary rule operates

to penalize officers for any unconstitutional conduct preceding a magistrate’s

involvement); United States v. McGough, 412 F.3d 1232 (11th Cir. 2005) (refusing

to apply good faith exception where an unlawful entry into the defendant’s apartment

led to the officer’s request for a search warrant); United States v. Vasey, 834 F.2d

782, 789 (9th Cir. 1987) (holding that good faith exception did not apply to a warrant

that was based on information obtained in an illegal warrantless search because “[t]he

constitutional error was made by the officer . . ., not by the magistrate”). At least two

commentators support this analysis as well. See Wayne R. LaFave, Search &

Seizure: A Treatise on the Fourth Amendment § 1.3(f) (5th ed. 2016) (explaining

that, because courts rarely require affiants to prove that they obtained the evidence

listed in an affidavit lawfully, “there is no reason why that process should, via Leon,

shield that activity from full scrutiny at the suppression hearing”); Craig M.

Bradley, The “Good Faith Exception” Cases: Reasonable Exercise in Futility, 60 Ind.

L.J. 287, 302 (1985) (quoting Leon, 468 U.S. at 914) (“When the magistrate issued

the warrant, he did not endorse past activity; he only authorized future activity. . . .

[T]he function of the magistrate is to determine ‘whether a particular affidavit

establishes probable cause,’ not whether the methods used to obtain the information

in that affidavit were legal.”).

However, five other circuits have concluded that the good faith exception can

apply where an affidavit supporting a search warrant is tainted by illegally-obtained

evidence in at least some limited circumstances. Three of those circuits apply the

34
good faith exception if the predicate search, although ultimately determined to be

unlawful, was arguably lawful under the binding precedent in effect at the time of the

search. United States v Bain, 874 F.3d 1, 22–23 (1st Cir. 2017) (applying good faith

exception because binding precedent did not “clearly classify” as unlawful the

conduct that invalidated the predicate search); United States v. Hopkins, 824 F.3d

726 (8th Cir. 2016) (applying good faith exception because the reasonableness of the

illegal predicate search was “close enough to the line of validity” to make an

officer’s belief in the validity of the warrant objectively reasonable); United States v.

Holley, 831 F.3d 322, 326–27 (5th Cir. 2016) (also applying “close enough to the

line of validity” test). Two other circuits apply the good faith exception in these

types of cases when (1) the predicate search was arguably reasonable and (2) the

warrant affidavit truthfully conveyed the circumstances of the illegal predicate search

to the magistrate judge. United States v. McClain, 444 F.3d 556, 566 (6th Cir. 2005)

(applying Leon because the reasonableness of the predicate search was a close call

and the warrant affidavit “fully disclosed” the circumstances surrounding the initial

warrantless search); United States v. Thomas, 757 F.2d 1359 (2d Cir. 1985) (applying

good faith exception because officer’s affidavit fully described the unlawful, pre-

warrant canine sniff that supplied probable cause for the warrant and there was

“nothing more the officer could have or should have done” to be sure his search was

legal). We cannot read Leon or Scales to support the rules adopted by these courts.

When a magistrate issues a warrant based on illegally obtained evidence, typically the

manner in which the affidavit evidence is obtained is not before the magistrate, and the

35
magistrate is not asked explicitly to endorse the evidence-gathering procedure. Even

though some disclosure of the evidence-gathering technique may have occurred, that is

not ordinarily the focus of an application for a warrant. Thus, we are unwilling to read a

warrant as ratifying the information-gathering process of a search that preceded it. In any

event, we are bound by Scales, which appears to us to have been correctly decided.

Therefore, the district court erred by finding that the good faith doctrine applied to

the searches Agent Nishida conducted in execution of the second warrant.

3. Inevitable discovery doctrine supports denial of Loera’s motion

Finally, we consider whether the government would have inevitably discovered

the child pornography evidence on Loera’s electronic devices. Loera argues that, because

there was no probable cause to support the second warrant, all evidence discovered as a

result of the execution of the second warrant should have been suppressed. The issue

before us, then, is whether the FBI agents would have inevitably discovered the roughly

330 child pornography images on Loera’s CDs and 730 child pornography images on

Loera’s laptop that Nishida found when he executed the second warrant. We conclude

that they would have. Accordingly, we affirm the district court’s denial of Loera’s

motion to suppress.

When evidence is obtained in violation of the Fourth Amendment, that

evidence need not be suppressed if agents inevitably would have discovered it

through lawful means independent from the unconstitutional search. United States v.

Christy, 739 F.3d 534, 540 (10th Cir. 2014). The government is required to prove by a

preponderance of the evidence that the unlawfully-obtained evidence would have been

36
discovered through lawful means. Id. The “lawful means” need not be a second,

independent investigation. Id. Rather, the inevitable discovery doctrine will apply if

there was “one line of investigation that would have led inevitably to the obtaining of a

search warrant by independent lawful means but was halted prematurely by a search

subsequently contended to be illegal.” Id. (citations omitted). The key to applying this

doctrine is to place the government officers in the “same positions they would have

been in had the impermissible conduct not taken place,” and, from that vantage point,

to ask whether the government would have inevitably discovered the evidence

lawfully. Nix v. Williams, 467 U.S. 431, 447 (1984).

Here, the district court’s supportable findings demonstrate by a preponderance of

the evidence that the FBI would have inevitably discovered the child pornography

evidence on Loera’s electronic devices through lawful means independent from Agent

Cravens’ unlawful second search. On November 26 (the day before the second search),

the government lawfully had in its possession Loera’s computers, external hard drives,

iPhone, iPad, and thirteen CDs (nine without child pornography and four with child

pornography).4 The government had the authority under the first warrant to search

Loera’s electronic devices—most importantly his laptop and CDs—for evidence of

computer fraud. The district court issued an explicit factual finding that, had the

second warrant never been obtained, Agent Nishida would “have searched [Loera’s

4
As mentioned above, although Loera challenges the first search of these four CDs,
he does not separately challenge their seizure were we to determine, as we have, that
the first search was constitutional.
37
laptop] for evidence of electronic mail hijacking and computer fraud pursuant to the

[f]irst [w]arrant.” Dist. Ct. Op. at 24. The district court further found that, as part of

that search, lawfully conducted pursuant to the parameters of the first warrant, Agent

Nishida would have searched the electronic folders where he discovered child

pornography when he executed the second warrant, including, the “My Documents”

folder, the “Bookmarks” tab of Loera’s internet browser, and a folder saved on the

Desktop titled “Allmyfiles.txt.” Id. at 24–25. The district court also accepted

Nishida’s statement that, had he found child pornography images on the laptop

during a search conducted solely pursuant to the first warrant, he would have “alerted

the case agent so that [he] could get a search warrant for child pornography.” Id. at

25.

The laptop, including the specific files referenced above, contained over 730

images and 40 movies involving child pornography. Id. at 24. To take one specific

example, the “Allmyfiles.txt” file, which the district court found Nishida would have

lawfully opened pursuant to the first warrant, contained files called “Spycam 9yr

Undress.” Id. Such information would have been sufficient to establish probable

cause to support a warrant to search all of the electronic devices belonging to Loera

that the government had in its possession, including the four CDs that Agent Cravens

searched unlawfully on November 27. That fact, combined with Agent Nishida’s

indication that he would have sought a warrant, allows us to conclude that the

inevitable discovery doctrine applies in this case such that the evidence discovered

pursuant to the second warrant did not need to be suppressed.

38
 III. CONCLUSION

For the foregoing reasons, we AFFIRM the orders of the district court denying

the defendant’s motion to suppress and motion for reconsideration.

39