United States v. Loera, 2019 (10th Cir. 2019)
Jason Loera came to the attention of investigators when he began illegally intercepting e-mails intended for the New Mexico governor and her staff. Investigators obtained a search warrant for Loera’s residence to search for any evidence of computer fraud residing on electronic devices or storage media at the residence. When the investigators served the warrant, they found a large volume of electronic media, including CDs, DVDs, laptop computers, external hard drives, a USB flash drive, an iPhone and an iPad.
During the course of previewing the electronic media at Loera’s residence, in an effort to determine whether the media contained material listed in the warrant, two investigators independently stumbled onto thumbnails of child pornography. They noted the presence of the child pornography but continued the search for material identified in the warrant. Investigators seized a number of items of electronic media, including the four CDs on which child pornography was located.
A week after the search warrant execution, the lead investigator decided to seek a second search warrant to examine the seized media for child pornography. To prepare the affidavit for the second search warrant, the investigator opened the files containing child pornography so he could describe the images in detail. A judge issued a second warrant. In the course of executing that warrant, investigators found over 1,000 illegal images and movies on various electronic media.
Loera asked the court to suppress the illegal images. He first claimed the initial warrant was nothing more than a pretext to search for child pornography. However, there was absolutely no evidence that the investigators had any idea Loera possessed illegal images until the first search.
Loera argued the second search, the re-examination of the disks containing child pornography, was illegal because it exceeded the scope of the first search warrant. Therefore, according to Loera, the subsequent warrant and search that revealed the massive cache of child pornography was premised on illegally obtained evidence. The court agreed the second search, and all that followed after, violated the Fourth Amendment. But if you’re groaning at what seems to be a victory for Loera, hang on and read carefully.
The good faith doctrine fits when officers reasonably rely on what they believe to be a valid warrant issued by a court. In other words, the good faith doctrine may apply when the legal error is attributable to the judge and not the police.
Loera’s conviction ultimately stands. Understanding how the court reached that decision is helpful. Even more helpful is what the court said about the illegal searches—and the lessons in avoiding similar challenges in future cases.
A number of cases have addressed the situation of investigators coming across child pornography or other electronic contraband while searching for some entirely different evidence. A few general similarities suggest why some searches end in suppression of the evidence and others don’t. Courts are far less likely to suppress inadvertently discovered electronic contraband when officers continue the initial search in a fashion entirely consistent with the initial search parameters. For example, when investigators find child pornography, but spend very little time examining it and move on to search for the intended evidence, suppression is less likely (see United States v. Walser, 275 F.3d 981 (10th Cir. 2001)). When the suspect has not segregated and set aside the child pornography from other files, but has intermingled it with the files to be searched under the warrant, suppression is unlikely (see United States v. Burgess, 576 F.3d 1078 (10th Cir. 2009)). When discovery of the child pornography is truly inadvertent during the authorized search, and when the investigators don’t take detours from the warrant execution to search for other contraband, it is much more likely that the evidence will be admissible.
Loera argued the investigators should have stopped the first search warrant execution when they found alleged contraband not named in the warrant. The court quickly rejected this argument: “Although officers do not have to stop executing a search warrant when they run across evidence outside the warrant’s scope, they must nevertheless reasonably direct their search toward evidence specified in the warrant.” The investigators could and did continue in the orderly search as prescribed by the warrant. They also seized what they believed to be contraband and held it for a later search warrant.
However, when the investigator re-searched the CDs a week later, that search was beyond the scope of the first warrant because the investigator was specifically searching for child pornography. The plain view doctrine could not apply because there was no evidence before the court that the investigators looked at the same photos during the second search that they viewed on the first search.
Nor did the “foregone conclusion” doctrine apply. The foregone conclusion doctrine is a variant of the plain view doctrine. This doctrine may allow the warrantless search of containers in plain view whose contents “are a foregone conclusion” because the container is “not closed” or “transparent” or, if it is closed, its “distinctive configuration proclaims its contents.” Though the investigator knew the CDs contained some child pornography, he had no idea what else they contained.
The good faith exception of United States v. Leon (468 U.S. 897 (1984)) also could not apply. The good faith doctrine fits when officers reasonably rely on what they believe to be a valid warrant issued by a court. In other words, the good faith doctrine may apply when the legal error is attributable to the judge and not the police. In this case, Loera was complaining of police error.
Nonetheless, at the end of the day, the court refused to suppress the child pornography evidence, relying on the inevitable discovery rule. When officers violate the Fourth Amendment, the resulting evidence may be admissible if the evidence inevitably would have been discovered through lawful means independent from the invalid search. The investigators testified they would have continued to search the seized electronic media for evidence of computer fraud. The court cited one specific example of a file named “Allmyfiles.txt,” which would have been lawfully opened pursuant to the first warrant. That file contained files named “Spycam 9yr Undress.” The investigator testified he would have sought a search warrant upon locating that file, leading to the inevitable discovery of illegal images.
Loera’s convictions stand. The lessons learned:
- When searching electronic media pursuant to a search warrant, stick to the pre-search plan and actively and intentionally search only for the material identified in the search warrant.
- If you find evidence of another crime, or obvious contraband, there is no need to stop the search for the material named in the warrant.
- If contraband or other evidence is found, the best practice is to set it aside and consider consulting with a prosecutor about a separate warrant.
Don’t re-search the electronic media, relying on the authority of the initial warrant. Remember, the initial warrant authorized a search for some other material, not what you inadvertently located. And, though Loera ultimately lost, don’t rely on doctrines such as good faith, inevitable discovery or plain view. Get sound advice on how to proceed.