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:
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.
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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