PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-5000
CURTIS ROBERT WILLIAMS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(1:08-cr-00059-LMB-1)
Argued: September 22, 2009
Decided: January 21, 2010
Before NIEMEYER and DUNCAN, Circuit Judges, and
James P. JONES, Chief United States District Judge for the
Western District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Duncan and Judge Jones joined.
COUNSEL
ARGUED: Todd M. Richman, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.
Andrew McCormack, OFFICE OF THE UNITED STATES
2 UNITED STATES v. WILLIAMS
ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: Michael S. Nachmanoff, Federal Public Defender,
Alexandria, Virginia; Ian Conner, HUNTON & WILLIAMS,
LLP, Washington, D.C., for Appellant. Dana J. Boente, Act-
ing United States Attorney, Alexandria, Virginia, for Appel-
lee.
OPINION
NIEMEYER, Circuit Judge:
Based on evidence seized from his home during execution
of a search warrant, Curtis Williams was convicted of posses-
sion of an unregistered machine gun and an unregistered
silencer, in violation of 26 U.S.C. §§ 5861(d) and 5871, and
possession of child pornography, in violation of 18 U.S.C.
§§ 2252A(a)(5)(B) and 2256(8)(A). The district court sen-
tenced him to 41 months’ imprisonment.
Before trial, Williams filed a motion to suppress the
machine gun, the silencer, and a DVD containing the pornog-
raphy, arguing that the search for and seizure of them
exceeded the scope of the search warrant and that their seizure
was not justified by the "plain-view" exception to the warrant
requirement. The district court denied the motion, and Wil-
liams now appeals this ruling.
For the reasons that follow, we conclude that the search for
and seizure of the child pornography fell within the scope of
the warrant or, alternatively, that its seizure was justified
under the plain-view exception to the warrant requirement.
We conclude that the seizure of the machine gun and silencer
was justified by the plain-view exception. Accordingly, we
affirm.
I
In September 2007, the Fairfax Baptist Temple in Fairfax
Station, Virginia, began receiving threatening e-mail mes-
UNITED STATES v. WILLIAMS 3
sages from an individual identifying himself as "Franklin
Pugh." Similar and related e-mails were later received from
several other e-mail accounts, registered in the names of chil-
dren attending the Fairfax Baptist Temple School, who had
been referred to in the earlier e-mails.
In an e-mail dated October 16, 2007, Pugh named several
young boys who attended the Fairfax Baptist Temple School,
describing their physical characteristics. He stated that he was
a pedophile, that he could not face life without having sex
with the boys, and that he could not attend the Fairfax Baptist
Temple again unless he could give oral sex to a boy at the
church whom he identified by name. At the end of the e-mail,
he stated, "I know your boy’s names. I know where they go
for lunch after church. I know where they live. I know when
they come and leave school. There’s boys I’d love to sleep
with right now. There is an endless supply. Boy dick is every-
where."
In an e-mail dated October 22, 2007, the sender, now iden-
tifying himself as one of the boys named in an earlier e-mail,
wrote in the same vein as earlier e-mails. After sending sev-
eral more e-mails, the sender announced that he would be get-
ting a new account to send further messages. Nonetheless,
several more e-mails were sent under this name, continuing to
discuss molesting the boys at the Fairfax Baptist Temple
School, sacrificing them to God like Abraham and Isaac, and
having sex with one of the boys post-sacrifice, unless "God
makes me burn him."
Beginning on October 24, 2007, similar e-mails were
received from an account registered under the name of the
father of the pastor of Fairfax Baptist Temple. Again the mes-
sages discussed molesting the boys there. One of these e-
mails included the following passage:
I think I might be close to getting saved. Jesus
allowed me to see [Boy 1’s] erection last night. I
4 UNITED STATES v. WILLIAMS
prayed all day and all night and Jesus showed it to
me. Just like Isaac’s and Ishmael’s penis[es] in the
bible book. [Boy 1] is the most beautiful boy I have
ever seen. Why did God make boys so beautiful if
we aren’t allowed to enjoy them? I know it will be
a sin to have sex with [Boy 1] or [Boy 2] or espe-
cially the younger boys, but I can’t see any way not
to do it. Now that Jesus showed me his erection I
know it is alright to love [Boy 1].
Upon investigation, the Fairfax County Police determined
that at least one of the e-mail accounts from which e-mails
had been received had been accessed repeatedly by an Inter-
net account registered to Karol Williams, in Clifton, Virginia,
who is the wife of the defendant, Curtis Williams. Both Karol
and Curtis were active members of the Fairfax Baptist Tem-
ple. Upon learning this, the police applied for a warrant to
search Karol and Curtis Williams’ home.
In the affidavit supporting the warrant application, Fairfax
County Detective Craig Paul summarized the e-mails, detailed
the police investigation to date, and stated that the evidence
supported his belief that violations of state law had occurred,
particularly § 18.2-60 of the Virginia Code, prohibiting any
person from communicating threats to kill or do bodily harm
to persons at elementary, middle, or secondary schools, and
§ 18.2-152.7:1, prohibiting harassment by computer by com-
municating "obscene, vulgar, profane, lewd, lascivious, or
indecent language, or mak[ing] any suggestion or proposal of
an obscene nature." To support his concern for the safety of
the boys at the school, Detective Paul highlighted the e-mail
statements, "I know your boy’s names. I know where they go
for lunch after church. I know where they live. I know when
they come and leave school."
In addition to providing the factual basis for the violations,
Detective Paul explained, "It has been your Affiant’s training
and experience that adults who are engaged in the sexual
UNITED STATES v. WILLIAMS 5
exploitation of children keep images and related documents
with them. They also collect images and texts describing sex-
ual interaction with minors and child erotica."1 The detective
described the child pornography market, the use of computers
and other recording devices, and the need to seize and search
various types of electronic media to locate evidence of the
threat crimes, including evidence properly characterized as
child pornography.
Based on Detective Paul’s affidavit, a Fairfax County mag-
istrate issued a search warrant on October 25, 2007, that
"commanded" officers to search for and seize from the home
of Karol and Curtis Williams:
Any and all computer systems and digital storage
media, videotapes, videotape recorders, documents,
photographs, and Instrumentalities indicat[ive] of the
offense of § 18.2-152.7:1 Harassment by Computer
and § 18.2-60 Threats of death or bodily injury to a
person or member of his family; threats to commit
serious bodily harm to persons on school property,
Code of Virginia (as amended).
Police, along with the FBI, executed the warrant the next
day and seized several computers, CDs, DVDs, and other
electronic media devices.
The police also seized a machine gun and a silencer, both
without serial numbers, which they discovered during their
search in a small lockbox in Williams’ garage. Detective Peter
Charles found the lockbox while searching the garage, and,
believing that it might contain evidence authorized by the
warrant, he opened it. Inside, Detective Charles observed a
machine gun and silencer, although it was not immediately
clear that these firearms were illegally owned. Detective
1
"Child erotica" is understood to refer to non-pornographic images of
children, apparently used for sexual gratification.
6 UNITED STATES v. WILLIAMS
Charles picked up the gun to determine whether it was loaded
and, during the course of this inspection, noticed that neither
the gun nor the silencer had a serial number on it. As Detec-
tive Charles later explained, "Based on the examination,
which is primarily for my own safety, to make sure [the gun]
wasn’t loaded, I noticed that neither the silencer nor the
weapon itself had any serial numbers. In my experience and
training, there is no reason for any weapon to have—not have
any serial numbers and still be legally owned." Having identi-
fied the guns and silencer as contraband, Detective Charles
seized them and continued his search.
The FBI agents who had participated in the search of the
Williams’ house took the computers and electronic media and
later searched their contents. During the course of that search,
FBI Agent Michael French reported in an e-mail sent to the
U.S. Attorney’s Office in the Eastern District of Virginia that
"we found many deleted images of young male erotica from
September-October 2007. We also found [that] the anony-
mizer software TOR had been installed." He concluded by
saying that he hoped to find Williams’ "collection" on the lap-
top and USB thumbdrives the following week.
Sometime later during his search, Agent French opened a
DVD that had been seized from the Williams’ home, labeled
with the words, "Virus Shield, Quaranteed Files, Destroy."
Upon opening the DVD, he observed over a thousand images
in "thumbnail view" of minor boys, some of which were sexu-
ally suggestive and some of which were sexually explicit. Of
the total number of images, approximately 39 constituted
child pornography.2
2
After observing these images, Agent French obtained a second search
warrant from federal authorities specifically to authorize a search for child
pornography on Williams’ computers and electronic media. Williams’
challenge to the search and seizure, however, is directed to the authority
of the officers to search the computers and electronic media under the state
warrant.
UNITED STATES v. WILLIAMS 7
Williams was indicted on two counts of possession of an
unregistered firearm (the machine gun and the silencer), in
violation of 26 U.S.C. §§ 5861(d) and 5871, and one count of
possession of child pornography, in violation of 18 U.S.C.
§§ 2252A(a)(5)(B) and 2256(8)(A). After he was indicted,
Williams filed a motion to suppress the child pornography,
the machine gun, and the silencer, contending that their sei-
zure exceeded the scope of the warrant and was not justified
by the plain-view exception to the warrant requirement.
The district court denied Williams’ motion. The court
explained, with respect to the child pornography, "The fact
that a person who’s already under suspicion for threatening to
do bodily harm to minors would have imagery within his
computer or within his home showing significant mistreat-
ment of minors in my view is sufficiently within the ambit of
those concerns to permit the agents to search for that [under
the warrant]." The court concluded that the child pornography
was "evidence and instrumentalities of criminal activity" and
therefore that its seizure was authorized by the warrant. With
respect to the machine gun and the silencer, the court con-
cluded that their seizure was justified under the plain-view
exception to the warrant requirement:
The officer was legitimately in the location where he
saw the item, because the lockbox was large enough
to hold the specific items that were involved in the
warrant. . . .
The detective in my view was -– legitimately had the
right to handle the weapon to make sure it was not
armed. In doing so he notices no serial number on
either the silencer or the machine gun.
That in my view was more than sufficient probable
cause for the officer to believe that he had contra-
band per se in his possession. He was therefore obli-
8 UNITED STATES v. WILLIAMS
gated in my view to seize it at that point. That’s not
a violation of the Fourth Amendment.
Williams agreed to be tried by the court on stipulated facts,
and the court found him guilty of all three charges. Williams
now appeals the district court’s ruling on his motion to sup-
press the DVD containing images of child pornography, the
machine gun, and the silencer.
II
Williams contends first that the government’s seizure of a
DVD containing 39 images of child pornography, which
formed the basis for his conviction under 18 U.S.C.
§§ 2252A(a)(5)(B) and 2256(8)(A), violated his Fourth
Amendment right against unreasonable searches and seizures.
He asserts that the search warrant did not authorize a search
of his computer and related digital media for child pornogra-
phy. Rather, it only authorized a search for and seizure of evi-
dence relating to two designated Virginia crimes involving
threats of bodily harm and harassment by computer.
Indeed, his argument is more nuanced. Reasoning that
"[s]ince computers can hold so much information, touching
on virtually every aspect of a person’s life, the potential for
invasion of privacy in a search of electronic evidence is sig-
nificantly greater than in the context of a non-computer
search," Williams argues that traditional Fourth Amendment
rules cannot be successfully applied in this context. He specif-
ically relies on an article by Professor Orin Kerr, in which
Professor Kerr maintained that a new approach is needed for
applying the Fourth Amendment to searches of computers and
digital media. See Orin S. Kerr, Searches and Seizures in a
Digital World, 119 Harv. L. Rev. 531 (2005). Professor Kerr
explained:
The new dynamics of computer searches and sei-
zures teach important lessons about the Fourth
UNITED STATES v. WILLIAMS 9
Amendment. For most of its first two centuries, the
Fourth Amendment was used almost exclusively to
regulate government searches of homes and contain-
ers. The mechanisms of home and container searches
directed Fourth Amendment doctrine to focus pri-
marily on the entrance to the home or container. In
a world of physical barriers, actions that broke down
those physical barriers became the focus of judicial
attention. The world of digital search and seizure
shows that this focus is contingent on the architec-
ture of physical searches. As computer searches and
seizures become more common in the future, we will
begin to see twentieth-century Fourth Amendment
doctrine as a contingent set of rules that achieves the
foundational goals of the Fourth Amendment law
given the dynamics of searching physical property.
Those physical rules will be matched by a set of
rules for digital searches and seizures that attempts
to achieve the same purpose in a very different fac-
tual context.
Id. at 584-85; see also Raphael Winick, Searches and Sei-
zures of Computers and Computer Data, 8 Harv. J.L. & Tech.
75, 105 (1994) ("Since electronic storage is likely to contain
a greater quantity and variety of information than any previ-
ous storage method, computers make tempting targets in
searches for incriminating information."). But see David J.S.
Ziff, Note, Fourth Amendment Limitations on the Execution
of Computer Searches Conducted Pursuant to a Warrant, 105
Colum. L. Rev. 841, 861-72 (2005) (arguing that traditional
Fourth Amendment rules can successfully be applied to digi-
tal searches).
Emphasizing the basic principle that a search warrant must
not authorize general searches but must particularize the place
and items to be searched, Williams argues that the warrant in
this case must not be read to have authorized officers to view
each file on the computer, but rather to have authorized a
10 UNITED STATES v. WILLIAMS
search of only those files in his computer that related to the
designated state offenses. Applying this limitation to the
search in this case, Williams argues that the authorization for
the search of his computers and digital media was limited to
files relating to the two Virginia crimes of threatening bodily
harm and harassment by computer, and that the files relating
to child pornography fell outside the scope of the warrant and
therefore were seized without a warrant.
In addition, Williams argues that the search for and seizure
of child pornography in this case did not fall within any rec-
ognized exception to the Fourth Amendment’s warrant
requirement. To apply the plain-view exception in the context
of computer searches would, Williams argues, "effectively
read[ ] the warrant requirement out of the Fourth Amend-
ment." Relying heavily on United States v. Carey, 172 F.3d
1268, 1273 (10th Cir. 1999), which held that child pornogra-
phy discovered on a computer during the course of a search
for evidence of drug transactions must be suppressed because
it was not "inadvertently discovered," Williams argues that
the plain-view exception cannot be applied in the context of
computer searches unless the files sought to be seized pursu-
ant to the exception are discovered "inadvertently." In this
case, Williams observes that the officers suspected him of
possessing child pornography from the outset of their investi-
gation and that they used the warrant’s authorization to search
for such materials, which, he maintains, fell outside the scope
of the warrant. Such a scenario, he concludes, can hardly be
thought of as "inadvertent," and thus the plain-view exception
cannot justify the seizure of the images.
The government contends that the child pornography
images fell within the scope of the search warrant as "instru-
mentalities" of the designated Virginia crime involving threats
to persons on school property. The government notes that
Williams had been involved in "extensive e-mail communica-
tions with church officials regarding the sexual exploitation of
children. These e-mails involved both overt and thinly dis-
UNITED STATES v. WILLIAMS 11
guised threats to molest and kill real children attending the
church. Further, at least one of these e-mails made express
reference to the fact that defendant had knowledge of when
the children ‘come and leave school.’" The government
argues that in response to this threat, police officers obtained
a search warrant authorizing the seizure of computer-based
evidence of the designated crimes and instrumentalities for
the commission of those crimes, which, because of the nature
of the offenses, included an authorization to search for and
seize child pornography.
The government also notes that, while it does not need to
rely on the affidavit supporting the search warrant, the affida-
vit explained that individuals involved in the criminal conduct
identified often collect images of the sexual exploitation of
children and tend to collect these images through the Internet.
Thus, it reasons, the district court was correct in finding that
child pornography constituted an "instrumentality" of the des-
ignated crimes. It concludes, "Simply stated, the child pornog-
raphy constituted, among other things, computer-based
evidence and/or an instrumentality indicative of the offense of
Section 18.2-60 threats to commit serious bodily harm to per-
sons on school property." (Internal quotation marks and alter-
ations omitted).
Alternatively, the government contends that if the child
pornography was seized without the warrant’s authorization,
its seizure was nonetheless justified under the plain-view
exception to the warrant requirement. It observes that the war-
rant authorized officers to search Williams’ computer and
computer storage devices and that, during the search of those
items, the officers came upon the DVD containing thumbnail
images of child pornography, whose nature as contraband was
clear.
The parties’ contentions thus present two questions: (1)
whether the government’s search for and seizure of child por-
nography fell within the scope of the warrant’s authorization;
12 UNITED STATES v. WILLIAMS
and (2) whether the evidence of child pornography was in any
event properly seized under the plain-view exception to the
warrant requirement. We address these in order.
A
The Fourth Amendment guarantees "[t]he right of the peo-
ple to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures" and provides that
"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." At its
core, the Fourth Amendment protects against general warrants
that authorize "exploratory rummaging in a person’s belong-
ings . . . by requiring a particular description of the things to
be seized." Andresen v. Maryland, 427 U.S. 463, 480 (1976)
(internal quotation marks omitted). The particularity require-
ment is fulfilled when the warrant identifies the items to be
seized by their relation to designated crimes and when the
description of the items leaves nothing to the discretion of the
officer executing the warrant. See Andresen, 427 U.S. at 480-
82; Stanford v. Texas, 379 U.S. 476, 485 (1965).
When a search is conducted pursuant to a warrant, it "is
limited in scope by the terms of the warrant’s authorization."
United States v. Phillips, No. 07-4230, ___ F.3d ___, 2009
WL 4061558, at *4 (4th Cir. Nov. 24, 2009); see also Walter
v. United States, 447 U.S. 649, 656 (1980) (plurality opinion);
United States v. Squillacote, 221 F.3d 542, 555 (4th Cir.
2000). But the terms of the warrant are not to be interpreted
in a "hypertechnical" manner. United States v. Robinson, 275
F.3d 371, 380 (4th Cir. 2001). Rather, they should be read
with a "commonsense and realistic" approach, to avoid turn-
ing a search warrant into a "constitutional straight jacket."
Phillips, ___ F.3d at ___, 2009 WL 4061558, at *4 (quoting
United States v. Ventresca, 380 U.S. 102, 108 (1965), and
United States v. Dornhofer, 859 F.2d 1195, 1198 (4th Cir.
1988)).
UNITED STATES v. WILLIAMS 13
When a search requires review of a large collection of
items, such as papers, "it is certain that some innocuous docu-
ments will be examined, at least cursorily, in order to deter-
mine whether they are, in fact, among those papers authorized
to be seized." Andresen, 427 U.S. at 482 n.11; see also United
States v. Crouch, 648 F.2d 932, 933-34 (4th Cir. 1981) (hold-
ing that officers may conduct "some cursory reading" of doc-
uments discovered during the course of a search to determine
their relevance to the crime providing the basis for the
search). If, in those circumstances, documents not covered by
the warrant are improperly seized, the government should
promptly return the documents or the trial judge should sup-
press them. See Andresen, 427 U.S. at 482 n.11. While the
constitutional protection cannot demand perfection, any toler-
ance of imperfection does not give officers "free rein to ran-
sack and take what they like[ ]." Phillips, ___ F.3d at ___,
2009 WL 4061558, at *9.
In this case, the warrant authorized a search for and seizure
of "[a]ny and all computer systems and digital storage media,
. . . documents, photographs, and Instrumentalities" indicative
of the Virginia state law offenses stated in Va. Code Ann.
§§ 18.2-152.7:1 (harassment by computer) and 18.2-60
(threats of death or bodily injury to a person or member of his
family; threats to commit serious bodily harm to persons on
school property). A violation of the referenced harassment by
computer offense includes using a computer or computer net-
work "to communicate obscene, vulgar, profane, lewd, lasciv-
ious, or indecent language, or to make any suggestion or
proposal of an obscene nature, or threaten any illegal or
immoral act." Va. Code Ann. § 18.2-152.7:1. The district
court held that within the scope of that offense was the nar-
rower conduct of making violent and sexual threats against
children from the Williams’ residence. The court concluded
that it was relevant to any prosecution of the designated
offense that the defendant possessed images in which children
were sexually exploited. It thus found that the images of child
14 UNITED STATES v. WILLIAMS
pornography on the DVD were "instrumentalities" of the
computer harassment charge.
We agree with the court’s reasoning. While the warrant did
not explicitly authorize a search for child pornography, it did
authorize a search for instrumentalities of computer harass-
ment and "photographs . . . indicati[ve] of" this offense, which
involves communicating "obscene, vulgar, profane, lewd, las-
civious, or indecent language," or making a "suggestion or
proposal of an obscene nature," or threatening an "illegal or
immoral act." Va. Code Ann. § 18.2-152.7:1. Particularly in
the context of the threats made in this case, which indicated
that the person sending the e-mails to the church was a
pedophile, pornographic images involving children were rele-
vant to demonstrating the authorship and purpose of the e-
mails. The e-mails stated that the sender could not face life
without having sex with the boys and that he could not attend
the church again unless he could give oral sex to a specific
boy at the church, whom he identified by the child’s actual
name. In addition, the sender of the e-mail stated, "I know
your boy’s names. I know where they go for lunch after
church. I know where they live. I know when they come and
leave school. There’s boys I’d love to sleep with right now.
There is an endless supply. Boy dick is everywhere."
The fact that the DVD containing child pornography might
also have indicated crimes other than those described in the
warrant does not preclude its seizure. "Courts have never held
that a search is overbroad merely because it results in addi-
tional criminal charges." Phillips, ___ F.3d at ___, 2009 WL
4061558, at *5. Thus, the fact that possession of child pornog-
raphy is itself a crime does not render the seizure outside the
scope of an investigation into the computer harassment crime.
Whether seized evidence falls within the scope of a warrant’s
authorization must be assessed solely in light of the relation
between the evidence and the terms of the warrant’s authori-
zation. See id.; United States v. Srivastava, 540 F.3d 277, 290
(4th Cir. 2008).
UNITED STATES v. WILLIAMS 15
In this case, we believe that the district court did not err in
concluding that the images of child pornography contained on
the DVD were sufficiently relevant to the crimes designated
in the warrant to justify their seizure under the warrant.
B
Even if we were to conclude that the warrant did not autho-
rize a search for child pornography, we conclude alternatively
that the seizure of the images portraying child pornography
was, in any event, justified by the plain-view exception to the
warrant requirement.
As a general rule, warrantless searches or seizures are per
se unreasonable. But there are "a few specifically established
and well-delineated exceptions." Mincey v. Arizona, 437 U.S.
385, 390 (1978) (quoting Katz v. United States, 389 U.S. 347,
357 (1967)); see also United States v. Ross, 456 U.S. 798,
824-25 (1982). One such exception is that "under certain cir-
cumstances the police may seize evidence in plain view with-
out a warrant." Coolidge v. New Hampshire, 403 U.S. 443,
465 (1971) (plurality opinion). Under this exception, police
may seize evidence in plain view during a lawful search if (1)
the seizing officer is "lawfully present at the place from which
the evidence can be plainly viewed"; (2) the seizing officer
has "‘a lawful right of access to the object itself’"; and (3)
"the object’s ‘incriminating character [is] . . . immediately
apparent,’" United States v. Legg, 18 F.3d 240, 242 (4th Cir.
1994) (quoting Horton v. California, 496 U.S. 128, 136-37
(1990)); see also United States v. Uzenski, 434 F.3d 690, 707
(4th Cir. 2006). "The plain-view doctrine is grounded on the
proposition that once police are lawfully in a position to
observe an item first-hand, its owner’s privacy interest in that
item is lost; the owner may retain the incidents of title and
possession but not privacy." Illinois v. Andreas, 463 U.S. 765,
771 (1983) (emphasis added).
The justification for the plain-view exception becomes evi-
dent when considering the difference between searches and
16 UNITED STATES v. WILLIAMS
seizures. "A search compromises the individual interest in pri-
vacy; a seizure deprives the individual of dominion over his
or her person or property." Horton, 496 U.S. at 133. "If an
article is already in plain view, neither its observation nor its
seizure would involve any invasion of privacy. A seizure of
the article, however, would obviously invade the owner’s pos-
sessory interest." Id. at 133-34 (emphasis added) (internal
citations omitted). Thus, the mere observation of an item in
plain view during the course of a lawful search does not
implicate any Fourth Amendment concerns and therefore does
not need to be justified by any exception to the warrant
requirement. And its seizure is justified by the fact that any
ownership or possessory interest in the item is defeated by its
illegality.
In this case, the warrant authorized a search of Williams’
computers and digital media for evidence relating to the des-
ignated Virginia crimes of making threats and computer
harassment. To conduct that search, the warrant impliedly
authorized officers to open each file on the computer and
view its contents, at least cursorily, to determine whether the
file fell within the scope of the warrant’s authorization—i.e.,
whether it related to the designated Virginia crimes of making
threats or computer harassment. See Andresen, 427 U.S. at
482 n.11; Crouch, 648 F.2d at 933-34. To be effective, such
a search could not be limited to reviewing only the files’ des-
ignation or labeling, because the designation or labeling of
files on a computer can easily be manipulated to hide their
substance. Surely, the owner of a computer, who is engaged
in criminal conduct on that computer, will not label his files
to indicate their criminality. See United States v. Hill, 459
F.3d 966, 978 (9th Cir. 2006) ("‘Criminals will do all they can
to conceal contraband, including the simple expedient of
changing the names and extensions of files to disguise their
content from the casual observer’" (quoting with approval the
district court’s opinion)); United States v. Gray, 78 F. Supp.
2d 524, 527 n.5 (E.D. Va. 1999) ("[C]omputer files can be
misleadingly labeled, particularly if the owner of those files
UNITED STATES v. WILLIAMS 17
is trying to conceal illegal materials"); see also United States
v. Riley, 906 F.2d 841, 845 (2d Cir. 1990) ("[F]ew people
keep documents of their criminal transactions in a folder
marked ‘drug records’").
Once it is accepted that a computer search must, by impli-
cation, authorize at least a cursory review of each file on the
computer, then the criteria for applying the plain-view excep-
tion are readily satisfied. See Ziff, supra, at 861-66. First, an
officer who has legal possession of the computer and elec-
tronic media and a legal right to conduct a search of it is "law-
fully present at the place from which evidence can be
viewed," thus satisfying the first element of the plain-view
exception. See Legg, 18 F.3d at 242 (quoting Horton, 496
U.S. at 136). Second, the officer, who is authorized to search
the computer and electronic media for evidence of a crime
and who is therefore legally authorized to open and view all
its files, at least cursorily, to determine whether any one falls
within the terms of the warrant, has "a lawful right of access"
to all files, albeit only momentarily. Horton, 496 at 136; see
also Andresen, 427 U.S. at 482 n.11; Crouch, 648 F.2d at
933-34. And third, when the officer then comes upon child
pornography, it becomes "immediately apparent" that its pos-
session by the computer’s owner is illegal and incriminating.
See Horton, 496 U.S. at 136. And so, in this case, any child
pornography viewed on the computer or electronic media may
be seized under the plain-view exception.
Williams, relying on the Tenth Circuit’s opinion in United
States v. Carey, advances an argument that the plain-view
exception cannot apply to searches of computers and elec-
tronic media when the evidence indicates that it is the offi-
cer’s purpose from the outset to use the authority of the
warrant to search for unauthorized evidence because the unau-
thorized evidence would not then be uncovered "inadver-
tently." See Carey, 172 F.3d at 1273.
This argument, however, cannot stand against the principle,
well-established in Supreme Court jurisprudence, that the
18 UNITED STATES v. WILLIAMS
scope of a search conducted pursuant to a warrant is defined
objectively by the terms of the warrant and the evidence
sought, not by the subjective motivations of an officer. See
Maryland v. Garrison, 480 U.S. 79, 84 (1987) ("Thus, the
scope of a lawful search is ‘defined by the object of the search
and the places in which there is probable cause to believe it
may be found’" (quoting Ross, 456 U.S. at 824)); see also
Whren v. United States, 517 U.S. 806, 813 (1996)
("Subjective intentions play no role in ordinary, probable-
cause Fourth Amendment analysis"). As the Court stated in
Horton, "[t]he fact that an officer is interested in an [unautho-
rized] item of evidence and fully expects to find it in the
course of a search should not invalidate its seizure if the
search is confined in area and duration by the terms of a war-
rant or a valid exception to the warrant requirement." 496
U.S. at 138. In that case, the Court explicitly rejected the very
argument that Williams makes in this case, that unauthorized
evidence must be suppressed because its discovery was not
"inadvertent." As the Horton Court explained, "[E]ven though
inadvertence is a characteristic of most legitimate ‘plain view’
seizures, it is not a necessary condition." Id. at 130.
While Williams relies accurately on Carey, which effec-
tively imposes an "inadvertence" requirement, such a conclu-
sion is inconsistent with Horton. Inadvertence focuses
incorrectly on the subjective motivations of the officer in con-
ducting the search and not on the objective determination of
whether the search is authorized by the warrant or a valid
exception to the warrant requirement.3
3
We note that several of our cases decided prior to Horton required that
evidence discovered during the course of a search be discovered "inadver-
tently" in order to be seized pursuant to the plain-view exception. See, e.g.,
United States v. Talbot, 902 F.2d 1129, 1132 (4th Cir. 1990) ("Under the
plain-view doctrine, the warrantless seizure of property is permissible if
the following criteria are satisfied: (1) the police officer must first be
engaged in a lawful intrusion or must otherwise legitimately occupy the
position affording a plain view of the evidence seized; (2) the discovery
UNITED STATES v. WILLIAMS 19
In this case, because the scope of the search authorized by
the warrant included the authority to open and cursorily view
each file, the observation of child pornography within several
of these files did not involve an intrusion on Williams’ pro-
tected privacy interests beyond that already authorized by the
warrant, regardless of the officer’s subjective motivations. See
Horton, 496 U.S. at 133-34 & n.5. And neither did the seizure
of these photographs interfere with Williams’ possessory
interests, for once their nature as contraband became apparent,
Williams’ possessory interests were forfeited.
At bottom, we conclude that the sheer amount of informa-
tion contained on a computer does not distinguish the autho-
rized search of the computer from an analogous search of a
file cabinet containing a large number of documents. As the
Supreme Court recognized in Andresen, "[T]here are grave
dangers inherent in executing a warrant authorizing a search
and seizure of a person’s papers that are not necessarily pres-
ent in executing a warrant to search for physical objects
whose relevance is more easily ascertainable." 427 U.S. at
482 n.11. While that danger certainly counsels care and
of the evidence must be inadvertent; and (3) it must be immediately appar-
ent that the evidence may be either contraband or evidence of a crime");
United States v. Fawole, 785 F.2d 1141, 1145 (4th Cir. 1986) ("The war-
rantless seizure of private possessions is permissible under the ‘plain
view’ doctrine if the seizure meets three conditions. . . . Second, the
police officer must discover the incriminating evidence ‘inadvertently’").
These cases relied on a statement to this effect in the Supreme Court’s plu-
rality opinion in Coolidge, 403 U.S. at 469-70, which the Supreme Court
specifically repudiated in Horton. See Horton, 496 U.S. at 130 ("In this
case we revisit an issue that was considered, but not conclusively resolved,
in Coolidge v. New Hampshire, 403 U.S. 443 (1971): Whether the war-
rantless seizure of evidence of crime in plain view is prohibited by the
Fourth Amendment if the discovery of the evidence was not inadvertent.
We conclude that even though inadvertence is a characteristic of most
legitimate ‘plain-view’ seizures, it is not a necessary condition"). To the
extent that these cases suggested that inadvertence is a requirement of a
warrantless plain-view seizure, they are now overruled by Horton.
20 UNITED STATES v. WILLIAMS
respect for privacy when executing a warrant, it does not pre-
vent officers from lawfully searching the documents, nor
should it undermine their authority to search a computer’s
files. See United States v. Giberson, 527 F.3d 882, 888 (9th
Cir. 2008) (holding that "neither the quantity of information,
nor the form in which it is stored, is legally relevant in the
Fourth Amendment context"). We have applied these rules
successfully in the context of warrants authorizing the search
and seizure of non-electronic files, see Crouch, 648 F.2d at
933-34, and we see no reason to depart from them in the con-
text of electronic files.
Thus, the warrant in this case, grounded on probable cause
to believe that evidence relating to the Virginia crimes of
threatening bodily harm and computer harassment would be
found on Williams’ computers and digital media, authorized
the officers to search these computers and digital media for
files satisfying that description, regardless of the officers’
motivations in conducting the search. If, in the course of con-
ducting such a search, the officers came upon child pornogra-
phy, even if finding child pornography was their hope from
the outset, they were permitted to seize it as direct evidence
of criminal conduct and, indeed, bring additional charges
based on that evidence. See Phillips, ___ F.3d at ___, 2009
WL 4061558, at *5.
III
Williams also contends that the district court erred in deny-
ing his motion to suppress the machine gun and silencer found
by police during the search of his home. He argues that
because the gun and silencer were lying in a lockbox, they did
not pose a risk to the searching officers, and therefore the offi-
cers did not have any justification to pick them up to discover
that they lacked serial numbers.
To support his argument, Williams relies most heavily on
the Supreme Court’s decision in Arizona v. Hicks, 480 U.S.
UNITED STATES v. WILLIAMS 21
321 (1987), where the Court held that an officer violated the
defendant’s Fourth Amendment rights when the officer, even
though legally in the defendant’s apartment in response to a
shooting that had just taken place, picked up some stereo
components without a warrant to see their serial numbers and
determine whether they had been stolen. Id. at 323-26. Wil-
liams maintains that because the officers searching his home
did not have probable cause to believe that the machine gun
and silencer were illegal before one of the officers handled the
items to make a safety inspection, the inspection of the
machine gun and silencer was, like in Hicks, an unreasonable
warrantless search.
The government responds by arguing that this case is dis-
tinguishable from Hicks because of "the fundamentally differ-
ent character of an officer moving an innocuous piece of
stereo equipment that is completely unrelated to the reason
the officer is lawfully present in an apartment and an officer
temporarily handling a firearm in order to ensure officer
safety in a home where the potential for violence existed."
The government relies on our opinion in United States v.
Legg, 18 F.3d 240 (4th Cir. 1994), in which we held that offi-
cer safety gave police executing a warrant in a defendant’s
home the right to handle a gun that had accidentally fallen on
the floor when members of the defendant’s family refused to
cooperate and insisted on walking around the house. Based on
this, the government argues that concerns for officer safety
gave Detective Charles the right to inspect the gun to ensure
that it was not loaded and that its incriminating nature became
"immediately apparent" during the course of this lawful
inspection.
While we agree with Williams that the mere fact that the
item involved was a gun rather than a stereo does not serve
to distinguish this case from Hicks, we believe Detective
Charles’ decision to inspect the gun was justified here
because he had the authority under the warrant to conduct a
thorough search of the lockbox. The warrant authorized the
22 UNITED STATES v. WILLIAMS
police to search for things like disks and "thumbnail drives,"
which, the evidence showed, could be as small as a dime, and
which could very easily have been stored in the lockbox with
the gun and silencer. A thorough search of the lockbox would
therefore have required Detective Charles to move the gun
and silencer, even if only within the confines of the lockbox.
And before moving the gun, Detective Charles was entitled to
pick it up and determine whether it was loaded, for his own
safety. It was during that legitimate operation of determining
whether the gun was loaded that detective Charles discovered
the missing serial number, manifesting the gun’s illegality.
Thus, because it was during the course of a legitimate
safety inspection that the incriminating character of the
machine gun and silencer became "immediately apparent,"
Detective Charles’ warrantless seizure of them was justified
by the plain-view exception. See Horton, 496 U.S. 136-37.
For the reasons given, we affirm the judgment of the dis-
trict court.
AFFIRMED