Case: 11-60277 Document: 00511886501 Page: 1 Date Filed: 06/13/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 13, 2012
No. 11-60277 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROBERT WARREN TRIPLETT, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
Before SMITH, GARZA and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
Robert Triplett, Jr. pled guilty under a plea agreement to possession of
child pornography. His plea was conditioned on retaining the right to challenge
the denial of his motion to suppress on appeal. Triplett claims the search
warrant that led officers to the pornography violated the Fourth Amendment’s
particularity and probable cause requirements. We AFFIRM.
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No. 11-60277
FACTUAL AND PROCEDURAL HISTORY
On August 27, 2010, the United States District Court for the Northern
District of Mississippi sentenced Triplett to 120 months in prison on a single
count of knowing possession of a computer containing images of child
pornography that had been shipped in interstate commerce. 18 U.S.C. §§
2252A(a)(5)(B), 2256(8)(A). Before his plea, Triplett filed a motion to suppress.
The district court granted that motion in part and denied it in part. Under the
terms of his plea bargain, Triplett retained the right to appeal that denial to this
court. He has timely exercised that right.
The evidence supporting Triplett’s conviction resulted from what began as
a state missing-person’s investigation. Triplett reported to the Lowndes County
Sheriff’s Department that his stepdaughter Kaila Morris was missing. The
report was made on September 18, 2009, after his wife Bonnie (who is Kaila
Morris’s mother) asked him to call. Morris was a student at Mississippi State
University. The night before the sheriff was contacted, she had been visiting her
parents’ home in Columbus, Mississippi. At 3:44 p.m., Morris last used her
cellular phone and Triplett reports that she left home at 8 p.m. in a dark colored
vehicle he did not recognize. Supposedly she left to visit a friend in Alabama.
Morris has not been heard from since.
Authorities obtained a search warrant from a Lowndes County Justice
Court judge on September 23, 2009. It authorized the seizure at Triplett’s house
of “[a]ny and all articles of clothing of Kaila Morris, bed sheets, electronic
devices, electronic memory devices, cell phones, DNA, hand digging and cutting
tools, vehicles, and utility vehicles.” The warrant declared the “public interest
to locate Kaila Morris” as its purpose, and incorporated an affidavit setting forth
a factual basis titled “Underlying Facts and Circumstances.”
In addition to the information already discussed, this factual basis
included other important information. Triplett was thought to have been
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convicted of rape in Louisiana and to be serving non-adjudicated probation in
Mississippi for attempted sexual battery. He reported inappropriately touching
Morris.2 Recently he had washed her bed sheets. Also included were details of
a trip by Triplett to property in Pickens County, Alabama. He told the FBI that
the day before her disappearance, Morris had asked him “to check some of her
property” in Pickens County. Triplett said he traveled there with an ax and
shovel, and that for two hours his four-wheel vehicle had been stuck. Because
the property in Pickens County was on the route to Morris’s friend’s home,
Triplett suggested that authorities might check there for her.
An additional fact was a statement from Triplett’s wife that her husband
“had recently changed the hard drive in his computer.” The affiant, Lowndes
County Sheriff Investigator Ryan Rickert, also orally swore to the Justice Court
judge that during the earlier investigation of the attempted sexual battery, a
search of Triplett’s computer had uncovered pornography that, while lawful to
possess, depicted scenes of bondage.
The day after obtaining the warrant, on September 24, Rickert and other
law enforcement officers executed it at the Triplett residence in Columbus.
Among the items seized from the home were pill bottles, external computer
storage drives, three laptops, a desktop computer, a Magellan GPS device, a
Sony camcorder, a digital camera, three hard drives, a cellular phone, pieces of
mattress, blankets and pillows, two shoes retrieved from vehicles, and axes. A
forensic investigator at Triplett’s residence copied the hard drive of one of the
laptops, a Hewlett-Packard Pavilion DV 9000. During a preliminary
examination on scene, several images thought to be child pornography were
discovered. The computer search was discontinued at that point.
2
Testimony at the suppression hearing revealed the touching to include two kisses that
made Morris uncomfortable, and a history of giving her thigh massages, at times while she
was shirtless.
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On October 2, a Lowndes County detective obtained a second warrant
which authorized “the continuation of the search for information of Morris’
whereabouts, other illegal images, and any other contraband” on the Pavilion
computer. The warrant stated that the Pavilion was believed to “contain images
of Child Pornography.” A search that day uncovered 403 suspected image files.
Based on this evidence, a third warrant was obtained on November 9
authorizing that the cellular phone, the desktop, and two other laptops be fully
searched. Approximately 375 additional such images were found. Between the
second and third warrants, on October 3, Mississippi authorities arrested
Triplett on the state charge of child exploitation, which criminalizes possession
of child pornography. See Miss. Code Ann. § 97-5-33.
A federal grand jury indicted Triplett on November 5, 2009, on the child
pornography offense. On February 2, 2010, Triplett filed a motion challenging
the validity of the first warrant, the search and seizure of the Pavilion laptop,
and the seizure of the other computers. He moved to suppress all the images
recovered as the fruit of an unconstitutional search, on the ground that the first
warrant lacked the probable cause and particularity the Fourth Amendment
demands. The district court conducted a suppression hearing and heard from
six witnesses.
The district court denied suppression as to the images. The only issue in
this appeal is whether that determination was correct.3
DISCUSSION
In an appeal from the denial of a motion to suppress, we review fact-
finding for clear error and conclusions of law de novo. United States v. Gray, 669
F.3d 556, 562 (5th Cir. 2012). Whether the facts establish probable cause is a
3
Triplett does not argue that the district court erred in declining to suppress
statements he made to his son, nor has the Government appealed the court’s decision to
suppress audio recordings that state law enforcement surreptitiously obtained during
Triplett’s detention in Lowndes County on the state offense.
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legal question. United States v. Hearn, 563 F.3d 95, 103 (5th Cir. 2009). When,
as here, officers rely on a duly authorized search warrant, we review “the district
court’s evaluation of officers’ objective reasonableness de novo.” United States
v. Payne, 341 F.3d 393, 399 (5th Cir. 2003).
The issuance of a warrant by a non-biased magistrate is the “clearest
indication” that officers proceeded “in an objectively reasonable manner, or as
[courts] have sometimes put it, in ‘objective good faith,’” but the existence of such
a warrant “does not end the inquiry into objective reasonableness.”
Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012); id. at 1245 n.1. “If
subjective good faith alone were the test, the protections of the Fourth
Amendment would evaporate, and the people would be ‘secure in their persons,
houses, papers, and effects,’ only in the discretion of the police.” United States
v. Leon, 468 U.S. 897, 915 n.13 (1984) (quotation marks and citation omitted).
The good-faith exception requires answering the question of “whether a
reasonably well-trained officer would have known that the search was illegal
despite the magistrate’s authorization.” Id. at 922 n.23. We have held there is
no good faith if one of four circumstances exists:
(1) If the issuing magistrate/judge was misled by information in an
affidavit that the affiant knew was false or would have known
except for reckless disregard of the truth; (2) where the issuing
magistrate/judge wholly abandoned his or her judicial role; (3)
where the warrant is based on an affidavit so lacking in indicia of
probable cause as to render official belief in its existence entirely
unreasonable; and (4) where the warrant is so facially deficient in
failing to particularize the place to be searched or the things to be
seized that the executing officers cannot reasonably presume it to be
valid.
Payne, 341 F.3d at 399-400. Triplett initially challenged the search warrant on
the basis that Investigator Rickert had made false statements in his sworn
affidavit. The district court agreed there were inaccuracies but found none of
those statements were made “with reckless disregard or intentional falsity.”
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Such a finding will not be set aside unless clearly erroneous. United States v.
Looney, 532 F.3d 392, 395 (5th Cir. 2008). Triplett has offered nothing in that
respect. Because there were no intentionally or recklessly false statements by
law enforcement, we “consider the entire affidavit – without any excision – under
the good-faith exception to the exclusionary rule.” Id. at 394.
I. Particularity
The Fourth Amendment requires that warrants “particularly describ[e]
the place to be searched, and the persons or things to be seized.” U.S. Const.
amend. IV. Some interpretation is unavoidable. Officers are “not obliged to
interpret [the warrant] narrowly.” United States v. Hill, 19 F.3d 984, 987 (5th
Cir. 1994). Reasonable specificity is required, not “elaborate detail.” Id.
Triplett’s challenge is that the terms “electronic devices,” and “electronic
memory devices” in the warrant were too open-ended to limit officers’ discretion
to only those objects lawfully seized. See Williams v. Kaufman Cnty., 352 F.3d
994, 1005 (5th Cir. 2003). To avoid fatal generality, the place and items to be
seized must “be described with sufficient particularity so as to leave nothing to
the discretion of the officer executing the warrant.” United States v. Allen, 625
F.3d 830, 835 (5th Cir. 2010) (quotation marks and citation omitted).
Triplett lists some of the wide variety of devices with electronic memories.
He argues that the warrant description was overbroad. We find limiting
guidance for the officers in the warrant. It stated that the objects were relevant
“to locate Kaila Morris,” informing the officers that the proper electronic memory
devices were those on which information on her location could be preserved. The
arguably vague terms were among a list of other items to be seized described in
greater detail. The warrant called for the seizure of “all articles of clothing of
Kaila Morris, bed sheets, electronic devices, electronic memory devices, cell
phone, DNA, hand digging and cutting tools, vehicles, and utility vehicles.” See
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2 LaFave, Search and Seizure § 4.6(d), at 628 (4th ed. 2004) (noting that a
general reference “at the end of a list of specific items may be upheld on the
theory that the language of a warrant is to be construed in light of an illustrative
list of seizable items” (quotation marks and citation omitted)). The list was of
evidence likely in Triplett’s possession and relevant to his interactions with
Kaila Morris, who had just been reported missing. See United States v. Hibbard,
963 F.2d 1100, 1102 (8th Cir. 1992) (finding enough particularity when warrant
“limited the search to locating Shelly Ramsey or any evidence relating to her”).
The law permits an affidavit incorporated by reference to amplify
particularity, notwithstanding that, by its terms, the Fourth Amendment
“requires particularity in the warrant, not in the supporting documents.” Groh
v. Ramirez, 540 U.S. 551, 557-58 (2004); United States v. Aguirre, 664 F.3d 606,
614 (5th Cir. 2011). When viewed alongside the affidavit, the warrant’s list of
items to be seized is reasonably focused. The underlying facts discuss how
Triplett changed “bed sheets”; the words hard drive and computer connect with
the warrant’s reference to “electronic memory device”; “cell phone” is reasonably
related to knowledge about Kaila’s last use of her phone; “digging tools” pertains
to Triplett’s travel to Alabama with an ax and shovel; and “utility vehicles” aligns
with knowledge that Triplett reported using a four-wheel vehicle in Alabama.
Based on this nexus between the facts and circumstances and the items to be
seized, we conclude that a reasonably well-trained officer could have concluded
that the warrant satisfied Fourth Amendment particularity. See Payne, 341 F.3d
at 400.
As noted, this case involved three warrants. Triplett also argues that the
forensic investigator’s search of the computer was too comprehensive before a
second warrant for the Pavilion computer was obtained. Fourth Amendment
reasonableness is the bedrock principle that guides computer as well as physical
searches. United States v. Richards, 659 F.3d 527, 538 (6th Cir. 2011). We agree
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with our sister circuits to have addressed the issue that “a computer search may
be as extensive as reasonably required to locate the items described in the
warrant based on probable cause.” Id. (quotation marks and citation omitted).
Here, the object of the first warrant was to locate evidence concerning Morris’s
disappearance. The forensic investigator followed a reasonable protocol toward
that end; first a mirror image of the hard drive was made so original files would
not be disturbed. He then testified to starting with documents and other text
files, before proceeding on to images.
During a systematic review of the images, he discovered suspected child
pornography. The investigation changed. As the investigator explained at the
suppression hearing:
I immediately shut the case down. I flagged the images that I’d
already seen to show to investigators. I shut the case down; I picked
up the phone; and I called the sheriff’s department and advised them
per our policies and procedures, they are to get another search
warrant before I continued.
Although officers should limit exposure to innocent files, for a computer search,
“in the end, 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 539 (quotation marks and citation omitted). Without expressing
a view on the need for the second warrant, that protocol illustrates a desirable
form of minimization. Compare Richards, 659 F.3d at 539 n.10, with United
States v. Payton, 573 F.3d 859, 862-63 (9th Cir. 2009). Nothing about this process
violated the Fourth Amendment in a way requiring suppression. See Richards,
659 F.3d at 539-40.
II. Probable Cause
As an alternative argument, Triplett claims the officers could not in good
faith believe there was probable cause for a warrant to issue. The hurdle for
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obtaining suppression on that basis is “a high one.” Messerschmidt, 132 S. Ct. at
1245. Officers are not ordinarily expected to question a magistrate’s judgment
as to probable cause. This is so because magistrates are considered more
qualified than law enforcement in making that assessment. Id.
Courts will not suppress evidence even when the affidavit fails to establish
probable cause, unless “‘it is obvious that no reasonably competent officer would
have concluded that the warrant should issue.’” Id. (quoting Malley v. Briggs,
475 U.S. 335, 341 (1986)). This will occur when a magistrate has not only acted
mistakenly in authorizing the warrant, but has fallen outside “‘the range of
professional competence.’” Id.
Probable cause is a practical assessment that all the circumstances
generate a “fair probability that contraband or evidence of a crime will be found
in a particular place.” United States v. Thomas, 627 F.3d 146, 159 (5th Cir. 2010)
(quotation marks and citation omitted). Triplett was the last person to see
Morris. His alleged trip to inspect property in Alabama with an ax and shovel
raised suspicion as to his guilt. An officer might have also assigned weight to
Triplett’s past possession of bondage pornography.4 The wife’s statement that he
had recently changed a computer hard drive raised other bases justifying a
search. Viewed from the perspective of law enforcement, we hold that these and
other stated facts could have reasonably been seen as sufficient.
We note one difficulty. In its order denying suppression, the district court
concluded that Investigator Rickert’s suppression testimony that “Morris had
used at least one computer in the Morris-Triplett home on the night before her
disappearance” created the nexus for probable cause between the Pavilion
computer that was searched and the case being investigated. Though proffered
4
As the issuing authority was a state judge in Mississippi, the federal “four corners
rule” requiring that either the affidavit or recorded oral testimony alone establish probable
cause does not apply. United States v. Chew, 1 F.3d 1238, at *2 (5th Cir. 1993); 5TH CIR. R.
47.5.3 (unpublished opinions before January 1, 1996 are precedent).
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at the suppression hearing on the child pornography charge, this information was
not included in Rickert’s affidavit, nor was the state magistrate orally advised of
it. Therefore, Triplett is correct that this particular piece of evidence is irrelevant
to probable cause. See Aguirre, 664 F.3d at 613. For the reasons already set
forth, though, the warrant was not “‘so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable.’” Messerschmidt, 132
S. Ct. at 1245 (quoting Leon, 468 U.S. at 923).
Because of these conclusions, we need not reach whether the inevitable
discovery exception the Government offers as an alternative reason not to exclude
the evidence would also apply.
AFFIRMED.
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