United States v. Grimmett

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
March 10, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 05-3030

STEPHEN GRIMMETT,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Kansas
(D.C. No. CR 04-40005-01-RDR)

Christopher M. Joseph (with M. Kristine Savage and Stephen M. Joseph on the
briefs), Joseph & Hollander, P.A., Topeka, Kansas, for Defendant-Appellant.

Tanya J. Treadway, Assistant United States Attorney (with Eric F. Melgren,
United States Attorney on the brief), Topeka Kansas, for Plaintiff-Appellee.

Before HENRY, Circuit Judge, McKAY, and HARTZ, Circuit Judges.

HENRY, Circuit Judge.

Stephen Grimmett appeals the district court’s denial of his motion to

suppress evidence retrieved pursuant to a warrant to search his home based on
information that he possessed and produced child pornography. Mr. Grimmett

also challenges the constitutionality of one statute under which he was convicted,

18 U.S.C. § 2251, which criminalized that production of child pornography. We

affirm Mr. Grimmett’s conviction and hold that § 2251 is a valid exercise of

Congress’s power, and is also constitutional as applied to Mr. Grimmett.

I. FACTUAL BACKGROUND

On June 29, 2002, Mr. Grimmett invited a six-year old boy to his house

after giving him a Mountain Dew drink. Mr. Grimmett undressed, lay down on a

bed, then instructed the child how to masturbate him and how to perform fellatio

on him. Mr. Grimmett instructed the child by telling him what to do, showing

him what to do, and by having the child emulate what was occurring on a video

playing in the bedroom.

Mr. Grimmett taped the sodomy with an 8mm video camera, copied the

8mm tape onto a VHS tape, and loaded eight still pictures from the videotape onto

his computer. Mr. Grimmett has admitted that he showed the tape to at least one

other person. The forensic analysis of the defendant’s computer indicated that he

received over 1,500 images and 142 movies of child pornography over the

Internet.

On September 25, 2002, Detective Scott Askew, a detective with the

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Shawnee County, Kansas, Sheriff’s Office, presented an affidavit in support of a

search and seizure warrant to Shawnee County District Court Judge Thomas

Conklin. The affidavit stated in its third paragraph:

This affidavit is made in support of an application for a
warrant to search the entire premises located at 920 SE 33rd
Street, Topeka, Shawnee County, Kansas. Additionally,
this application is to search any computer media found
therein.

Aplt’s App. at 488 (Aff. in Support of a Warrant, Det. Scott B. Askew, dated

Sept. 25, 2002) (emphasis added). The affidavit further stated: “It is only with

careful laboratory examination of electronic storage devices that it is possible to

recreate the evidence trail.” Id. at 491.

The affidavit indicated that

• A woman who, unbeknownst to the defendant, served as a confidential

informant for the Shawnee County Sheriff’s Office on drug cases was at

the defendant’s residence on September 21, 2002, performing oral sex

for money.

• During this sexual encounter, the defendant was playing an adult

pornographic video on his television.

• The defendant could not get sexual gratification from the adult

pornography.

• Therefore, the defendant switched to playing a video on his computer,

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which depicted child pornography.

• The child pornography involved a female child, approximately nine or ten

years old, performing oral sex on an adult male.

• Following the sexual encounter, the defendant asked the woman whether

she would be interested in having sex with him and a ten-year-old girl.

• The defendant offered to pay the woman hundreds of dollars if she could

provide him with young girls.

• The defendant also asked the woman whether she would be interested in

bringing her minor children, a male and a female, to the defendant’s

house for sex.

• The defendant offered to pay the woman well if she would agree to bring

her own children to him for sex.

• On September 24, 2002, the woman reported what had occurred at the

defendant’s house to Sheriff’s Deputy Phil Higdon.

The state court judge signed the warrant, indicating his conclusion that

probable cause existed that evidence of the sexual exploitation of a child, in

violation of Kan. Stat. Ann. § 21-3516, would be found in defendant’s residence.

The warrant authorized, among other things, the search and seizure of

“[a]ny and all computer hardware,” and “[a]ny and all computer software.”

Aplt’s App. at 494 (Search Warrant, dated Sept. 25, 2002). The warrant further

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directed law enforcement officers to seize computer equipment, computer storage

devices, and various items related to the use of the computer equipment, as well

as a variety of other media that contained depictions of minors engaged in

sexually explicit conduct, i.e., child pornography, including books, magazines,

originals, copies and negatives, motion picture films, and videocassettes.

Detective Askew removed the hard disk drive from a computer in Mr.

Grimmett’s home and viewed it on a laptop computer he had brought with him.

After Detective Askew viewed various items, he returned the search warrant to

the judge and requested the assistance of Immigration and Customs Enforcement

in the investigation and examination of the computer’s contents.

The Shawnee County Kansas Sheriff’s Department delivered to Agent

James Kanatzar the computer hard drive seized from the defendant’s residence.

Agent Kanatzar had over four years of experience investigating child pornography

and has been trained in computer forensics since 1998.

On October 1, 2002, Agent Kanatzar made a bit-by-bit copy of the hard

drive to perform his forensic analysis. Thereafter, Agent Kanatzar examined the

directories and subdirectories for images of child pornography. Although Agent

Kanatzar opened every folder, he did not open every file, instead concentrating on

those files most likely to contain child pornography images – files containing

extensions indicating pictures (.jpg, .gif) and movies (.avi, .mpg).

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Agent Kanatzar’s examination of the defendant’s computer revealed over

1,500 images containing child pornography, and 142 movies of child

pornography, with creation dates ranging from February 2001 through September

2002. Agent Kanatzar found no evidence of distribution.

II. PROCEDURAL HISTORY

On January 28, 2004, a grand jury returned an indictment against the

defendant, charging him with Count 1, producing child pornography, in violation

of 18 U.S.C. § 2251(a); and Count 2, possession of child pornography, in

violation of 18 U.S.C. § 2252A(a)(5)(B); and Count 3, forfeiture, 18 U.S.C. §

2253. Mr. Grimmett entered a conditional plea of guilty to all counts, reserving

the right to appeal the district court’s denials of his (1) motion to suppress

evidence and (2) motion to dismiss Count 1. The district court sentenced the

defendant on Counts 1 and 2 to concurrent ten-year terms of imprisonment and

concurrent three-year terms of supervised release.

III. DISCUSSION

A. Motion to suppress

1. 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.

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Kimoana, 383 F.3d 1215, 1220 (10th Cir. 2004). The ultimate question of

reasonableness under the Fourth Amendment is a legal conclusion that we review

de novo. Id.

If the search and seizure was done pursuant to a warrant, we review the

issuing judge’s finding of probable cause with great deference: we look to ensure

that the judge “had a ‘substantial basis’ for concluding” that the affidavit in

support of the warrant established probable cause. United States v. Cusumano, 83

F.3d 1247, 1250 (10th Cir. 1996). The issuing judge’s task “is simply to make a

practical, common sense decision whether, given all the circumstances set forth in

the affidavit . . . there is a fair probability that contraband or evidence of a crime

will be found in a particular place.” Id.

2. Analysis

Mr. Grimmett asked the district court to suppress both the child

pornography found on his computer and in the video tapes. The district court

denied defendant’s motions to suppress, reasoning that (1) no second warrant was

required to search the computer because the state search warrant authorized the

search of the computer equipment and computer storage devices seized from

defendant’s home; (2) Agent Kanatzar did not perform an impermissible general

search of the computer equipment and computer storage devices; and (3) probable

cause existed to search for child pornography present in the defendant’s

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residence, regardless of the type of media in which it was contained. For the

reasons stated below, we agree with the reasoning of the district court.

a. No additional warrant was required.

Mr. Grimmett argues that the warrant authorized only the seizure, but not

the subsequent search, of his computer and computer storage devices

(collectively, “the computer”). Although not couched in “particularity”

terms, Mr. Grimmett appears to argue that the warrant was not sufficiently

particular to authorize a search of the computer.

Mr. Grimmett relies on United States v. Carey, 172 F.3d 1268, 1270

(10th Cir. 1999) for his argument that a second warrant is required to search a

properly seized computer. In Carey, the original warrant authorized a search of

the computer for evidence related to illegal drug sales. But, when the officers

found evidence of another crime – possession of child pornography – another

warrant was needed to search for this evidence, which was beyond the scope of

the original warrant. Id. at 1271, 1273-74 (“[I]t is plainly evident each time [the

officer] opened a subsequent JPG file, he expected to find child pornography and

not material related to drugs. . . . Under these circumstances, we cannot say the

contents of each of those files were inadvertently discovered.”).

Carey does not support Mr. Grimmett’s argument, but simply stands for the

proposition that law enforcement may not expand the scope of a search beyond its

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original justification. In this case, unlike the search in Carey, where the probable

cause that permitted the search related to drugs, the original justification for the

search and seizure of the computer was the probable cause to believe the

defendant possessed child pornography. We hold that the evidence obtained in

the search of the defendant’s computer was consistent with the probable cause

originally articulated by the state court judge; hence, the search was permissible

under Carey.

Moreover, the affidavit underlying the application for a search warrant

clearly states that Detective Askew sought the authority to search both the

premises and the computers:

Aplt’s App. at 488.

The affidavit also made clear that the search of the computer would be

off-site in a laboratory setting: “It is only with careful laboratory examination of

electronic storage devices that it is possible to recreate the evidence trail.” Id. at

491. In turn, the warrant expressly refers to the “evidence under oath before me,”

which is, of course, a direct and explicit reference to the affidavit. See id. at 494.

Accordingly, we hold that the warrant authorized both the seizure and search of

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the computer. See United States v. Campos, 221 F.3d 1143, 1147 (10th Cir. 2000)

(upholding seizure of “computer equipment which may be, or is used to visually

depict child pornography”) (internal quotation marks omitted); see, e.g., United

States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999) (holding that second warrant

for search of computer not required, stating that “[a] sufficient chance of finding

some needles in the computer haystack was established by the probable-cause

showing in the warrant application; and a search of a computer and co-located

disks is not inherently more intrusive than the physical search of an entire house

for a weapon or drugs” and upholding seizure of “[a]ny and all computer software

and hardware, . . . computer disks, disk drives” in a child pornography case);

United States v. Lacy, 119 F.3d 742, 746 (9th Cir. 1997) (warrant permitting

“blanket seizure” of computer equipment from defendant’s apartment was not

insufficiently particular when there was probable cause to believe that computer

would contain evidence of child pornography offenses); United States v. Henson,

848 F.2d 1374, 1382-83 (6th Cir. 1988) (permitting seizure of “computer[s],

computer terminals, . . . cables, printers, discs, floppy discs, [and] tapes” that

could hold evidence of the defendants’ odometer tampering scheme); United

States v. Albert, 195 F. Supp. 2d 267, 275-76 (D. Mass. 2002) (upholding warrant

for seizure of computer and all related software and storage devices where such

an expansive search was “the only practical way” to obtain images of child

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pornography).

Additionally, we note we have adopted a somewhat forgiving stance when

faced with a “particularity” challenge to a warrant authorizing the seizure of

computers. In United States v. Simpson, 152 F.3d 1241, 1248 (10th Cir. 1998),

the defendant claimed that the computer disks and hard drive were the equivalent

of closed containers, requiring a second warrant to search them. In Simpson, we

rejected this argument, stating there is “no authority finding that computer disks

and hard drives are closed containers somehow separate from the computers

themselves.” Id.

b. The search was not an impermissible general search of the

computer.

Mr. Grimmett’s second attack on the search of his computer is that Agent

Kanatzar conducted an impermissible general search of the computer. Mr.

Grimmett suggests that Agent Kanatzar made no “special approach” to address

“intermingled documents” (i.e. documents containing both relevant and irrelevant

information). See Campos, 221 F.3d at 1148.

We agree with Mr. Grimmett that “[o]fficers must be clear as to what it is

they are seeking on the computer and conduct the search in a way that avoids

searching files of types not identified in the warrant.” United States v. Walser,

275 F.3d 981, 986 (10th Cir. 2001). However, we also recognize that a computer

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search “may be as extensive as reasonably required to locate the items described

in the warrant.” United States v. Wuagneux, 683 F.2d 1343, 1352 (11th Cir.

1982).

The search warrant authorized the search of “any [computer] equipment”

that can create or display computer data. In addition, the warrant encompassed

“any and all computer software.” Aplt’s App. at 494. Despite these broad terms,

Agent Kanatzar testified that he specially searched for files with images, with

files extensions such as “jpg,” “mpg,” “bmp,” and “gif.” Aplt’s App. at 348-49.

There is no evidence of exploratory rummaging through files, or inadvertent

discoveries. See Campos, 221 F.3d at 1147. No wholesale searching occurred

here, despite the broad authority the warrant may have granted. See Walser, 275

F.3d at 987 (upholding a search and noting “[t]he fact of the matter, however, is

that no such wholesale searching occurred here”). The district court correctly

denied defendant’s motion to suppress the evidence obtained as a result of the

search of his computer.

c. Probable cause existed to search for child pornography in Mr.

Grimmett’s residence.

Mr. Grimmett’s third contention is that the issuing judge did not have

probable cause to issue a warrant for more than the child pornography contained

on his computer. In other words, the defendant contends that the search should

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have been restricted to the image described by the confidential informant and like

images on the computer. According to Mr. Grimmett, there was no probable

cause to support a warrant for the seizure of videotapes and other non-computer

related property.

In determining whether probable cause exists to issue a warrant, the issuing

judge must decide whether, given the totality of the circumstances, “there is a fair

probability that contraband or evidence of a crime will be found in a particular

place.” United States v. Simpson, 152 F.3d 1241, 1246 (10th Cir. 1998) (internal

quotation marks omitted). A reviewing court is to interpret search warrant

affidavits in a common sense and realistic fashion. United States v. Ventresa, 380

U.S. 102, 108 (1965). The issuing judge is entitled to go beyond the averred facts

and draw upon common sense in making reasonable inferences from those facts.

United States v. Rowland, 145 F.3d 1194, 1205 (10th Cir. 1998). A reviewing

court should uphold the warrant as long as the issuing judge had a “substantial

basis for . . . conclud[ing] that a search would uncover evidence of wrongdoing.”

Illinois v. Gates, 462 U.S. 213, 236 (1983) (internal quotation marks omitted).

“Upon review of the record, we are not convinced that the warrant was

overly broad,” and we agree that the warrant was directed at items related to child

pornography. Campos, 221 F.3d at 1147. The warrant authorized the agents to

seize any and all computer equipment, which “serve[s] four functions in

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connection with child pornography . . . . [p]roduction, communication,

distribution and storage.” Aplt’s App. at 490. The warrant also authorized the

seizure of books, magazines, films, correspondence, and videos containing any

visual depiction of minors engaged in sexually explicit conduct. Because the

warrant, as it applied to non-computer related equipment, contained sufficiently

particularized language requiring a nexus with child pornography, it was not

overly broad. See Campos, 221 F.3d at 1147 (citing United States v. Hall, 142

F.3d 988, 996-97 (7th Cir. 1998) (holding “that the search warrants were written

with sufficient particularity because the items listed on the warrants were

qualified by phrases that emphasized that the items sought were those related to

child pornography”).

B. Challenges to 18 U.S.C. § 2251

We understand Mr. Grimmett as having made two separate, though

overlapping arguments for overturning his conviction under 18 U.S.C. § 2251.

Section 2251 was enacted as a part of the Protection of Children Against Sexual

Exploitation Act of 1977. It prohibits, in pertinent part, the production of child

pornography if the child pornography “was produced using materials that have

been mailed, shipped, or transported in interstate or foreign commerce by any

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means, including by computer . . . .” 18 U.S.C. § 2251(a). 1

First, Mr. Grimmett maintains that § 2251 is facially unconstitutional:

under no circumstances does Congress have the power under the Commerce

Clause power to proscribe the local intrastate production of child pornography.

Second, Mr. Grimmett contends that § 2251 is unconstitutional as applied to his

conduct, i.e., even if Congress has the power to reach some offenses, it is not

empowered to reach conduct like his. Recent caselaw from the Supreme Court

and in our circuit enables us to easily resolve both questions.

1. Facial challenge

We review the constitutionality of a statute de novo. United States v.

Dorris, 236 F.3d 582, 584 (10th Cir. 2000). To determine whether § 2251 is a

valid exercise of Congress’ commerce power, we begin with an overview of the

nature of that power. Article I, § 8 of the United States Constitution provides that

“The Congress shall have the Power . . . To regulate Commerce with foreign

Nations, and among the several States, and with the Indian Tribes.” U.S. C ONST .

art. I, § 8, cls. 1 & 3.

1
We do not read Mr. Grimmett’s motions or appellate briefs to raise challenges as
to the sufficiency of the evidence demonstrating the use of materials that had been
transported in interstate commerce. As such, we have no need to reach whether the
prosecution must prove the use of instrumentalities which have moved in interstate
commerce to sustain a conviction under this § 2251(a) as it is worded. It seems unlikely
that any case would arise in which such evidence could not be produced.

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Mr. Grimmett suggests that § 2251(a) contains, at best, an attenuated link

to the child pornography trade. Such a challenge is a difficult one to mount

successfully, and Mr. Grimmett is unable to make the necessary showing here.

See United States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a

legislative Act is, of course, the most difficult challenge to mount successfully,

since the challenger must establish that no set of circumstances exists under

which the Act would be valid.”).

Pending this appeal, the Supreme Court decided Gonzales v. Raich, 125 S.

Ct. 2195 (2005), in which it rejected an as-applied challenge to the Controlled

Substances Act, 21 U.S.C. § 801 et seq. In addition, our court has recently

rejected an as-applied challenge to § 2251(a), applying the Court’s reasoning in

Raich, coupled with the standard four-factor analysis applied to such challenges.

See United States v. Jeronimo-Bautista, 425 F.3d 1266 (10th Cir. 2005) (rejecting

as-applied challenge to § 2251(a)). Borrowing largely from our analysis in

Jeronimo-Bautista, we hold that § 2251(a) reaches intrastate activity that

substantially affects the interstate child pornography market, and, as such, it is a

facially valid exercise of Congress’s Commerce Clause power.

To consider whether or not Congress was empowered to enact § 2251, we

consider the four factors delineated by the Supreme Court in United States v.

Morrison, 529 U.S. 598 (2000), and in United States v. Lopez, 514 U.S. 549

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(1995): whether (1) the activity at which the statute is directed is commercial or

economic in nature; (2) the statute contains an express jurisdictional element

involving interstate activity that might limit its reach; (3) Congress has made

specific findings regarding the effects of the prohibited activity on interstate

commerce; and (4) the link between the prohibited conduct and a substantial

effect on interstate commerce is attenuated. See Jeronimo-Bautista, 425 F.3d at

1269.

This court has already determined that § 2251 is directed at an activity that

is economic in nature. See id. at 1271. Relying on Raich, the Jeronimo-Bautista

panel concluded that the defendant’s production of images was “economic in

nature” reasoning that “[p]rohibiting the intrastate possession or manufacture of

an article of commerce is a rational (and commonly utilized) means of regulating

commerce in that product.” Id. (quoting Raich, 125 S. Ct. at 2211). “The same

reasoning is applicable to the intrastate production of child pornography.” Id.;

United States v. Holston, 343 F.3d 83, 88 (2d Cir. 2003) (“Producing child

pornography, like manufacturing controlled substances–and unlike the activities

targeted in Lopez or Morrison–concerns obviously economic activity.”) (internal

quotation marks omitted).

As to the jurisdictional element, as in Jeronimo-Bautista, “we need not

linger on this issue.” 425 F.3d at 1273 n.4. Because we conclude below that Mr.

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Grimmett’s production of intrastate pornography “has a substantial impact on

interstate commerce, any ‘failure of the jurisdictional element effectively to limit

the reach of the statute is not determinative.’” Id. (quoting United States v.

Holston, 343 F.3d at 89); Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1068

(D.C. Cir. 2003) (“[T]he absence of such a jurisdictional element simply means

that courts must determine independently whether the statute regulates activities

that arise out of or are connected with a commercial transaction, which viewed in

the aggregate, substantially affect[ ] interstate commerce.”) (internal quotation

marks omitted).

We have also concluded that Congress’ fact finding regarding how the

intrastate production of child pornography and its impact upon the larger

interstate pornography market was sufficient under Raich. See Jeronimo-

Bautista, 425 F.3d at 1271 (noting that the Supreme Court has “‘never required

Congress to make particularized findings in order to legislate’”) (quoting Raich,

125 S Ct. at 2208). Congress made explicit findings regarding “the need to

diminish [the] national market” for child pornography and such findings “support

the contention that ‘prohibiting the production of child pornography at the local

level’ helps to further the Congressional goal.” Id. (quoting United States v.

Morales-de Jesus, 372 F.3d 6, 12 (1st Cir. 2004).

Finally, in Jeronimo-Bautista, in considering the final Morrison factor,

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whether the relationship between the regulated activity and a substantial effect on

interstate commerce is attenuated, we determined that the relationship is not

attenuated. We reasoned that, under the aggregation theory relied upon in Raich

and espoused in Wickard v. Filburn, 317 U.S. 111 (1942):

the intrastate production of child pornography could, in the
aggregate, have a substantial effect on the interstate market for such
materials. In Raich, the respondents were “cultivating, for home
consumption, a fungible commodity for which there [was] an
established, albeit illegal, interstate market.” Child pornography is
equally fungible and there is no question an established market exists
for its sale and exchange. The Court in Raich reasoned that where
there is a high demand in the interstate market for a product, the
exemption from regulation of materials produced intrastate “tends to
frustrate the federal interest in eliminating commercial transactions
in the interstate market in their entirety.” For the same reasons, §
2251(a) “is squarely within Congress’ commerce power because
production of the commodity meant for home consumption, be it
wheat . . . , marijuana [or child pornography], has a substantial effect
on supply and demand in the national market for the commodity.”

Jeronimo-Bautista, 425 F.3d at 1272-73 (internal citations omitted). Accordingly,

we concluded that notwithstanding the de minimis character that an individual

instance of home production of child pornography might have under the statute,

even the purely local production of child pornography can curb the nationwide

supply for such materials. See id. at 1273. Because a set of circumstances exist

under which § 2251 would be valid, we hold that Mr. Grimmett’s facial challenge

must fail.

2. As-applied challenge

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Finally, we consider Mr. Grimmett’s challenge that § 2251 is

unconstitutional as applied to him. Mr. Grimmett notes that “the district court

found that there was no evidence that Mr. Grimmett distributed or intended to

distribute the pornography.” Aplt’s Br. at 36. “That remote possibility that the

pornography may one day, by someone, be distributed on the interstate market is

the essence of attenuation,” especially when coupled with a lack of intent. Id.

This argument is foreclosed by our conclusion above. “The fact that [Mr.

Grimmett] neither shipped the materials interstate nor intended to benefit

commercially from his conduct is of no moment.” Holston, 343 F.3d at 91.

“Congress’ decision to deem illegal [Mr. Grimmett’s] local production of child

pornography represents a rational determination that such local activities

constitute an essential part of the interstate market for child pornography that is

well within Congress’ power to regulate.” Jeronimo-Bautista, 425 F.3d at 1273.

Because § 2251(a) is a legitimate exercise of Congress’ power as applied to Mr.

Grimmett’s conduct, his challenge fails.

III. CONCLUSION

According, we AFFIRM (1) the district court’s denial of Mr. Grimmett’s

motion to suppress, and (2) its rejection of Mr. Grimmett’s facial and as-applied

challenges to § 2251.

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