[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-10791 ELEVENTH CIRCUIT
________________________ APRIL 22, 2009
THOMAS K. KAHN
D. C. Docket No. 07-00126-CR-4 CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PETER J. MITCHELL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(April 22, 2009)
Before BIRCH and BARKETT, Circuit Judges, and KORMAN,* District Judge.
PER CURIAM:
*
The Honorable Edward R. Korman, Senior United States District Judge for the Eastern
District of New York, sitting by designation.
This is an appeal from a judgment entered after a plea of guilty convicting
Peter Mitchell of one count of receipt of electronic images of child pornography,
in violation of 18 U.S.C. § 2252A(a)(2) (2006). The plea of guilty preserved
Mitchell’s right to appeal from the denial of his motion to suppress the evidence
obtained from the hard drive of his computer after it was seized from his home.
See Fed. R. Crim. P. 11(a)(2). The principle issue raised on appeal turns on the
reasonableness of a delay of twenty-one days in obtaining a search warrant after
the seizure of the hard drive.
BACKGROUND
Sometime in 2005, Immigration and Customs Enforcement (ICE) agents in
New Jersey, under the direction of the United States Attorney, began an
investigation of individuals engaged in distributing and receiving child
pornography via the internet. In October 2005, an ICE agent located a commercial
website whose banner page proclaimed “NOW YOU ARE [A] FEW MINUTES
AWAY FROM THE BEST CHILDREN PORN SITE ON THE NET!” and which
displayed more than a dozen images of minors engaged in sexual acts. After using
his credit card on October 26, 2005 to purchase access to the website in an
undercover capacity, the ICE agent’s credit card statement displayed a $79.99
charge to “AdSoft,” a bill payment service. Upon entry to the website, the ICE
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agent discovered it contained thousands of images of child pornography. Through
the use of search warrants and wiretaps, agents were able to identify hundreds of
individuals who had visited the website between October 2005 and February 2006.
The defendant, Peter Mitchell, was identified as a possible target of this
investigation because information obtained from the issuer of his credit card
reflected two charges of $79.99 to AdSoft on October 14, 2005 and June 14, 2006.
On February 22, 2007, ICE Special Agent Thomas West and FBI Special
Agent Josh Hayes went to Mitchell’s residence to conduct a “knock and talk.”
When Mitchell answered the front door, Agents West and Hayes asked if they
could come inside and speak with him about an ongoing investigation, to which
Mitchell gave his consent. Agents West and Hayes explained that they were
conducting a child pornography investigation, and asked Mitchell whether he had
purchased subscriptions to any pornography websites. Mitchell told them that he
had purchased subscriptions to two pornography websites. After Mitchell told the
agents that there were two personal computers in his residence—a laptop upstairs
used primarily by his wife, and a desktop computer downstairs used primarily by
Mitchell—the agents asked Mitchell whether either of the computers contained
“illegal contraband.” Mitchell responded “yes, probably.” Agent West then asked
Mitchell whether either of the computers contained any child pornography, to
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which Mitchell again responded “yes, probably.”
Mitchell consented to a search of the upstairs laptop computer, and executed
a “Consent to Search” form, but refused to allow the agents to search the
downstairs desktop computer. After Agent West performed a brief forensic
examination of the laptop, he asked Mitchell if he could see the desktop computer.
Mitchell assented, and brought the agents to the downstairs office where the
computer was located. Upon viewing the desktop computer, Agent West asked
Mitchell if that was the computer that contained the child pornography, and
Mitchell stated that it was. Agent West then opened the computer’s central
processing unit (“CPU”), the casing which contains all the internal parts of the
computer, and removed the computer’s hard drive from the CPU. The agents
departed from Mitchell’s residence at approximately 12:00 p.m. with only the hard
drive.
The following Sunday, February 25, 2007, West traveled to Virginia to
attend a two-week ICE training course. On March 15, 2007, three days after his
return to Savannah and twenty-one days after the initial seizure of Mitchell’s hard
drive, an application for a search warrant was presented to a United States
magistrate judge, who issued it the same day. The affidavit in support of the
search warrant was twenty-three pages long, but of those twenty-three pages only
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the cover page, paragraph two, and paragraphs twenty-five through twenty-
nine—a total of less than three double-spaced pages—was composed of original
content. The remainder was boilerplate taken from another affidavit. Acting
pursuant to the warrant, Agent West accessed the materials stored on Mitchell’s
hard drive for the first time, and discovered electronic images of child
pornography.
After he was indicted for receipt and possession of electronic images of
child pornography, Mitchell moved to suppress the foregoing evidence. The
motion was referred to a United States magistrate judge, who conducted a
suppression hearing and who recommended that the motion to suppress be denied.
United States v. Mitchell, No. CR407-126, 2007 WL 2915889, at *12 (S.D.Ga.
2007). The recommendation was subsequently adopted by the district judge.
United States v. Mitchell, No. CR407-126, 2007 WL 3102167, at *1 (S.D.Ga.
2007). Mitchell then pled guilty while preserving his right to appeal from the
denial of his motion to suppress.
DISCUSSION
On this appeal, Mitchell argues that the Warrant Clause of the Fourth
Amendment was violated when the law enforcement officers opened the CPU and
removed the hard drive. Conceding the issue of probable cause, he argues that the
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entire container should have been seized pending the application for a search
warrant. Moreover, even if the seizure of the hard drive was proper, he argues that
the twenty-one-day delay in obtaining a search warrant was unreasonable.
Mitchell’s argument regarding the removal of the hard drive from the CPU
without a warrant does not require any extended discussion. The CPU is a single
purpose container designed to house the internal components of the computer.
Mitchell does not allege that he used the CPU to store personal property, or that
the CPU was opened to search for such property. While the disassembling of the
CPU did not constitute a search of a container in which Mitchell had a reasonable
expectation of privacy, it did constitute an interference with his possessory
interest. So too would the seizure of the entire computer to ensure that the hard
drive was not tampered with before a warrant was obtained. Yet Mitchell
correctly concedes that such a seizure would not have violated the Warrant Clause.
Texas v. Brown, 460 U.S. 730, 749-50 (1983) (Stevens, J., concurring); United
States v. Jacobsen, 466 U.S. 109, 121 (1984); United States v. Martin, 157 F.3d
46, 53 (2d Cir. 1998); see also United States v. Hernandez-Cano, 808 F.2d 779,
782 (11th Cir. 1987). Under these circumstances, to borrow a phrase from the
Supreme Court in an analogous case, which would have been “the ‘greater’ and
which the ‘lesser’ intrusion is itself a debatable question.” Chambers v. Maroney,
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399 U.S. 42, 51 (1970).
But while the initial seizure of the hard drive was permissible, even “a
seizure lawful at its inception can nevertheless violate the Fourth Amendment
because its manner of execution unreasonably infringes possessory interests
protected by the Fourth Amendment’s prohibition on ‘unreasonable searches.’”
Jacobsen, 466 U.S. at 124. Thus, “even a seizure based on probable cause is
unconstitutional if the police act with unreasonable delay in securing a warrant.”
Martin, 157 F.3d at 54; see also United States v. Respress, 9 F.3d 483, 488 (6th
Cir. 1993) (“even with the existence of probable cause to effect a seizure, the
duration of the seizure pending the issuance of a search warrant must still be
reasonable.”). The reasonableness of the delay is determined “in light of all the
facts and circumstances,” and “on a case-by-case basis.” Mayomi v. United States,
873 F.2d 1049, 1054 n.6 (7th Cir. 1989). “[T]he reasonableness determination
will reflect a ‘careful balancing of governmental and private interests.’” Soldal v.
Cook County, 506 U.S. 56, 71 (1992); see also United States v. Prevo, 435 F.3d
1343, 1345 (11th Cir. 2006).
Computers are relied upon heavily for personal and business use.
Individuals may store personal letters, e-mails, financial information, passwords,
family photos, and countless other items of a personal nature in electronic form on
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their computer hard drives. Thus, the detention of the hard drive for over three
weeks before a warrant was sought constitutes a significant interference with
Mitchell’s possessory interest. Nor was that interference eliminated by admissions
Mitchell made that provided probable cause for the seizure. As the United States
magistrate judge observed: “A defendant’s possessory interest in his computer is
diminished but not altogether eliminated by such an admission for two reasons: (1)
a home computer’s hard drive is likely to contain other, non-contraband
information of exceptional value to its owner, and (2) until an agent examines the
hard drive’s contents, he cannot be certain that it actually contains child
pornography, for a defendant who admits that his computer contains such images
could be lying, factually mistaken, or wrong as a matter of law (by assuming that
some image on the computer is unlawful when in fact it is not).” United States v.
Mitchell, CR407-126, 2007 WL 2915889, at *7 (S.D.Ga. 2007).
While the possessory interest at stake here was substantial, there was no
compelling justification for the delay. The hard drive was seized at noon on
Thursday, February 25, 2007. Although Agent West testified that he was
scheduled to depart for a two-week training program in West Virginia on February
28, 2007, this still left two and one-half days after seizing the hard drive before his
scheduled departure. Indeed, the twenty-three-page supporting affidavit was
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largely composed of boiler plate language, and contained less than three double-
spaced pages of original content. Moreover, although Agent West departed
Savannah on February 28, 2007, the FBI agent who accompanied Agent West to
Mitchell’s residence could have secured a warrant during Agent West’s absence.
As the United States magistrate judge observed, “[t]he government has never
contended that Special Agent Hayes was unfamiliar with the background of the
child pornography investigation or, if he was, that he could not have acquired
sufficient knowledge to prepare a search warrant affidavit.” Mitchell, 2007 WL
2915889, at *10.
The only reason Agent West gave for the twenty-one-day delay in applying
for a search warrant was that he “didn’t see any urgency of the fact that there
needed to be a search warrant during the two weeks that [he] was gone,” and that
he “felt there was no need to get a search warrant for the content of the hard drive
until [he] returned back from training.” (Suppression Hr’g Tr. 18, July 11, 2007.)
Subsequently, he explained that any sense of urgency was eliminated by
Mitchell’s admission that the hard drive contained child pornography.
While the United States Attorney does not offer this justification for the
delay, and the United States magistrate judge properly rejected it, he argues that
Agent “West was the only agent in the Southern District of Georgia, and Savannah
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specifically, trained to conduct a forensic examination of the computer for child
pornography.” (Resp.’s Br. 5.) Because he was away until March 12, 2007, the
search of the computer could not have been undertaken before then, even if a
warrant had been obtained earlier. Thus, the argument continues, the delay “had
no practical effect upon Mitchell’s rights, for his possessory interest would not
have been restored prior to” the issuance of the search warrant. (Resp.’s Br. 17-
18.) Moreover, the United States magistrate judge suggested that “even if Agent
West had secured a warrant on the day of the hard drive’s seizure, his evaluation
of that hard drive would not have been completed prior to his departure for the
two-week training program, for given the thousands upon thousands of images and
the numerous video files stored on Mitchell’s hard drive, it took Agent West two
weeks to complete his evaluation of only some of the images.” Mitchell, 2007 WL
2915889, at *11.
We find these arguments unpersuasive because they are predicated on the
premise that Agent West’s attendance at the training session would have provided
an excuse for the delay in applying for the warrant and, if a warrant had been
obtained, it would have justified a delay in commencing the search of the hard
drive until three weeks after its seizure. We reject this premise.
The United States magistrate judge correctly observed that “[t]he purpose of
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securing a search warrant soon after a suspect is dispossessed of a closed container
reasonably believed to contain contraband is to ensure its prompt return should the
search reveal no such incriminating evidence, for in that event the government
would be obligated to return the container (unless it had some other evidentiary
value). In the ordinary case, the sooner the warrant issues, the sooner the property
owner’s possessory rights can be restored if the search reveals nothing
incriminating.” Mitchell, 2007 WL 2915889, at *7. If anything, this consideration
applies with even greater force to the hard drive of a computer, which “is the
digital equivalent of its owner’s home, capable of holding a universe of private
information.” Kansas v. Rupnick, 125 P.3d 541, 552 (Kan. 2005).
Under these circumstances, the excuse offered for the three-week delay in
applying for a warrant is insufficient. If Agent West’s attendance at the training
seminar could not have been postponed to a later date, an issue as to which no
evidence was offered, there is no reason why another agent involved in this
nationwide investigation, who possessed qualifications similar to that of Agent
West, could not have been assigned the task of conducting the forensic search of
the hard drive. The fact that Agent West did all of the forensic examinations in
Savannah does not provide a basis for undermining the significant Fourth
Amendment interests at stake here.
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While we conclude that the delay in obtaining a warrant here was not
justified, we emphasize again that we are applying a rule of reasonableness that is
dependent on all of the circumstances. See Martin, 157 F.3d at 54. So for
example, if the assistance of another law enforcement officer had been sought, we
would have been sympathetic to an argument that some delay in obtaining that
assistance was reasonable. The same would be true if some overriding
circumstances arose, necessitating the diversion of law enforcement personnel to
another case. We also recognize that there may be occasions where the resources
of law enforcement are simply overwhelmed by the nature of a particular
investigation, so that a delay that might otherwise be unduly long would be
regarded as reasonable. The circumstances in United States v. Dass, 849 F.2d 414
(9th Cir. 1988), are illustrative. There the government seized over 1000 packages
from ten selected post offices in Hawaii as part of a joint state/federal task force
assembled to slow the flow of drugs mailed from Hawaii. Id. at 416 (Alcaron,
C.J., dissenting). Within two days of their seizure, the packages were transported
to a police station and exposed to drug-sniffing dogs. Officials proceeded to seek
search warrants for “441 packages—an unanticipated flood of packages which
were alerted by the dog.” Id. at 417. After mobilizing available resources, they
began preparing warrant applications at the rate of seventy-five per week, id., a
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rate of one warrant every seventy-five minutes, id. at 418. Nevertheless, despite
this effort, there were delays of between seven and twenty-three days between the
seizures and issuance of warrants. Id. at 416. While a split panel of the Ninth
Circuit concluded that the delays were unreasonable, we agree with the dissenting
judge that the evidence in the case demonstrated “legitimate and practical reasons
for the delay in processing the flood of warrants to search the suspicious packages
seized.” Id. at 418.
By contrast, the present case involved the seizure of a single hard drive. No
effort was made to obtain a warrant within a reasonable time because law
enforcement officers simply believed that there was no rush. Under these
circumstances, the twenty-one-day delay was unreasonable. Because we conclude
that the motion to suppress should have been granted, we reverse the judgment of
conviction and remand the case to the district court for further proceedings
consistent with this opinion. This disposition makes it unnecessary for us to reach
the procedural and substantive challenges to the seventy-eight-month sentence
imposed by the district judge.
VACATED and REMANDED.
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