United States Court of Appeals For the First Circuit
No. 21-1326
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT CORLETO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Kayatta, Lipez, and Howard, Circuit Judges.
Mark G. Miliotis, with whom Elliot M. Weinstein was on brief, for appellant. Seth R. Aframe, Assistant United States Attorney, with whom John J. Farley, United States Attorney, was on brief, for appellee.
December 28, 2022 KAYATTA, Circuit Judge. After the district court denied
Robert Corleto's motion to suppress evidence collected during the
investigation that led to his arrest, he pled guilty to one count
of sexual exploitation of a minor. In so doing, he preserved his
right to appeal the denial of his motion to suppress. For the
following reasons, we affirm the judgment of the district court.
I.
For the purposes of this appeal, "[w]e recount the facts
in the light most favorable to the district court's ruling on the
motion to suppress, but only to the extent that they have support
in the record and are not clearly erroneous." United States v.
Dubose, 579 F.3d 117, 120 (1st Cir. 2009) (quoting United States
v. Holloway, 499 F.3d 114, 115 (1st Cir. 2007)). Although Corleto
takes issue with some of the district court's factual findings, he
develops no argument that these findings were clearly erroneous.
Any such argument is thus waived. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990).
A.
FBI Special Agent Timothy DeMann applied for a warrant
to search Corleto's residence and any vehicles registered to that
residence. In his supporting affidavit, DeMann explained that on
March 18, 2019, an undercover FBI task force officer used the KIK
Messenger app to chat with a person ("the target") who claimed to
use KIK to communicate with a "12 year-old slave" who did whatever
- 2 - the target asked. The target ultimately connected the undercover
agent and the purported minor in a live group chat, and the target
directed the minor to send photos of herself in her underwear and,
ultimately, proof of her masturbating. Asked by the undercover
agent if he had past photos of the purported minor, the target
sent an image showing nail polish that seemed to match that seen
in the live chat images.
That same day, the FBI sent an emergency request to KIK
seeking the subscriber identification and IP access information
associated with the target's KIK username. KIK's responsive
disclosures included IP addresses from March 16, 2019, through
March 18, 2019, and indicated that the target was using an iPhone.
The FBI focused on one frequently used IP address, which was
assigned to Comcast. The FBI sent an emergency request to Comcast
seeking subscriber information for that IP address. Comcast
identified the subscriber as Nicole Corleto and provided the
physical service address as a location on Elmwood Drive in Hudson,
New Hampshire. Public records indicated that Robert Corleto
resided there, and that a 2016 blue Chevy Equinox and a 2001 white
Ford F150 were registered at that address to Nicole and Robert
Corleto, respectively.
After relating this information, DeMann's affidavit
described the likelihood that a "computer or storage medium" found
at the Elmwood Drive address would contain contraband and/or
- 3 - evidence of crimes, "[b]ased on [his] knowledge, training, and
experience." Again invoking his "training and experience," DeMann
asserted that the evidence he sought "is by its very nature
portable" and may be stored on "extremely compact storage devices,"
including "smart phones," and that "it is not uncommon for
individuals to keep such media in multiple locations within their
premises, including in outbuildings and motor vehicles."
A magistrate judge issued a search and seizure warrant
on March 19, 2019. As requested, the warrant authorized the search
of the Elmwood Drive residence and "any vehicles registered to
that address," including the F150 and the Equinox registered to
Robert and Nicole Corleto, for, among other things, "records and
visual depictions of minors engaged in sexually explicit conduct."
The warrant also authorized the seizure of "[a]ny computer . . .
that [was] or may have been used as a means to commit the offenses
described on the warrant," employing a broad definition of
"computer" that included smartphones.
B.
That same day, DeMann and other FBI agents executed the
search warrant for the Elmwood Drive address. When the agents
arrived, Robert Corleto and his wife Nicole were in the process of
leaving the residence's parking lot in the Equinox. Without
drawing his gun, DeMann stopped the Equinox and identified himself.
- 4 - DeMann approached the SUV's passenger side -- where Robert Corleto
was seated -- and asked him to exit the vehicle.
At the suppression hearing, DeMann expressed some
uncertainty as to whether Corleto had the phone in his hand or in
a pocket as he exited the car, ultimately concluding that it was
in Corleto's hand. Corleto agreed, and the district court so
found. After DeMann asked if Corleto could unlock the phone for
him, Corleto opened his iPhone by pressing the "home" button and
handed it to DeMann.1
After DeMann and Corleto moved away from the car, DeMann
explained that they had a warrant to search for evidence of child
pornography. DeMann then stepped away for a few moments, back to
the vehicle, until Corleto motioned him over. Unprompted, Corleto
informed DeMann that everything the officer sought was on his
phone.
Agents nevertheless proceeded to execute the warrant by
searching Corleto's residence. At no point was Corleto handcuffed
nor were any weapons drawn. As the agents searched the home,
Corleto reiterated to DeMann several times that his phone contained
what the agents sought. DeMann eventually suggested that they
discuss things at the Hudson Police Department. DeMann testified
that he made that suggestion because the residence contained around
1 The phone did not have a passcode or biometric fingerprint lock.
- 5 - ten agents plus the Corletos, "and everybody [was] walking around,"
there was "really no place to sit down," and DeMann "figured that
the interview was going to have some sensitive . . . questions
that I was going to be asking him." DeMann testified that, at the
station, he "could sit down," "take notes," and "record the
interview."
Corleto asked if he could take his truck, but it had yet
to be searched. Instead, DeMann drove Corleto to the station with
Corleto seated in the front seat of DeMann's car. Corleto was not
handcuffed, and another agent sat in the backseat.
Corleto was interviewed in a room at the station. The
interview was recorded in its entirety. The door was open during
parts of the interview, and Corleto was told multiple times that
he was free to leave.2 Four different law enforcement officers,
including DeMann, participated in various portions of the
interview. Corleto admitted, among other things, that he solicited
sexual photographs from a twelve-year-old girl and had similar
interactions with a "handful" of others. In response to DeMann
2 Near the start of the interview, DeMann told Corleto, "You are not under arrest. You are not in custody. At any point, if you want to leave, you're more than welcome. I'll drive you back to your house. No problem." About fifteen minutes later, during a round of questioning, DeMann again stated, "You're not in custody and you're free to go at any point, as we have explained." DeMann subsequently informed Corleto of this right once more during the interview.
- 6 - asking whether there was "anything else you need to let us know,"
Corleto stated, "It's all right there on the phone."
When the interview ended, DeMann asked Corleto where he
would like DeMann to drive him, and Corleto indicated that he
wanted to go home. DeMann drove him there, with Corleto again in
the front seat.
In due course, a grand jury returned an indictment
charging Corleto with one count of sexual exploitation of a minor,
18 U.S.C. § 2251(a), (e), and one count of transportation of child
pornography, 18 U.S.C. § 2252A(a)(1), (b)(1). Corleto moved to
suppress the evidence obtained from the March 19 search, as well
as the statements he made during the search and later at the
station. After holding an evidentiary hearing, the district court
denied the motion. Corleto then agreed with the government to
plead guilty to sexual exploitation of a minor in exchange for the
government dismissing the second count, though Corleto retained
the right to appeal the denial of his suppression motion. Corleto
timely appealed on that basis.
II.
"In reviewing the denial of a motion to suppress, we
review the district court's . . . conclusions of law, including
its ultimate constitutional determinations, de novo." United
States v. Merritt, 945 F.3d 578, 583 (1st Cir. 2019). We will
uphold the denial "as long as 'any reasonable view of the evidence
- 7 - supports the decision.'" Id. (quoting United States v. Clark, 685
F.3d 72, 75 (1st Cir. 2012)).
Corleto advances an array of arguments on appeal.
Invoking the Fourth Amendment, he argues that the warrant lacked
sufficient nexus and particularity and that it was executed as an
unlawful general warrant. He also insists that his iPhone's
seizure exceeded the scope of the warrant; that he did not
consensually surrender the phone; that the phone's seizure was not
within the plain-view exception to the warrant requirement; and
that the search of the iPhone was improper. Finally, he argues
that the use of statements made by him violated his Fifth Amendment
right against self-incrimination.
We begin with Corleto's challenges to the warrant
itself, then examine his claims about its execution, and conclude
with his Fifth Amendment argument.
Corleto faults DeMann for obtaining the warrant by
providing testimony about the general practices of those who
possess child pornography, rather than specific information about
Corleto's suspected activities. Corleto further insists that
"there was insufficient guidance applied for and obtained to limit
the scope of the potential seizures of smart phones." He broadly
frames these challenges in terms of the warrant's failure to
establish a nexus between the place to be searched and the alleged
- 8 - criminal activity, and the warrant's lack of sufficient
particularity. We consider those challenges in turn.
1.
When evaluating a challenge to a warrant, "[w]e review
a determination of probable cause de novo and look only to the
'"facts and supported opinions" set out within the four corners of
the affidavit.'" United States v. Lindsey, 3 F.4th 32, 39 (1st
Cir. 2021) (quoting United States v. Austin, 991 F.3d 51, 55 (1st
Cir. 2021)). A warrant application must show probable cause to
believe both that "a crime has been committed" and that "enumerated
evidence of the offense will be found at the place searched." Id.
(quoting United States v. Dixon, 787 F.3d 55, 59 (1st Cir. 2015)).
The latter condition, known as the "nexus" requirement, demands a
"'fair probability' -- not certainty -- that evidence of a crime
will be found in a particular location." Id. (quoting Dixon, 787
F.3d at 60). Nexus can be "inferred from the type of crime, the
nature of the items sought, . . . and normal inferences as to where
a criminal would hide [evidence of a crime]." Id. (alterations in
original) (quoting United States v. Rodrigue, 560 F.3d 29, 33 (1st
Cir. 2009)).
Corleto's appellate brief invokes the nexus requirement
in an argument heading, but then declines to mention it again in
the substantive argument. Any argument about this requirement is
therefore likely waived. See Zannino, 895 F.2d at 17. But even
- 9 - if we considered his claim that there was insufficient evidence
linking the Elmwood Drive residence and associated vehicles to the
commission of a crime, we would find it unavailing.
DeMann's affidavit described evidence that a KIK user
had solicited and sent child pornography from an iPhone using an
IP address affiliated with the Corleto residence. This amply
supports the inference that one of the residents of the Elmwood
Drive address used a portable smartphone to commit the stated crime
and that there may have been evidence of this crime on such a phone
at the specified address, which DeMann included in the definition
of the premises to be searched.
DeMann then relied on his training and experience in
child-pornography investigations to express the hardly surprising
opinion that "it is not uncommon" for individuals with such
contraband to store it on portable devices "in multiple locations
within their premises, including . . . motor vehicles." Robert
and Nicole Corleto had between them two personal vehicles
registered to the Elmwood Drive residence, and the affidavit
specifically included both vehicles in its definition of the
premises to be searched. We have established beyond any doubt
"the concept that a law enforcement officer's training and
experience may yield insights that support a probable cause
determination." United States v. Floyd, 740 F.3d 22, 35 (1st Cir.
2014) (collecting cases); see, e.g., United States v. Larson, 952
- 10 - F.3d 20, 24 (1st Cir. 2020) (citing with approval a warrant
affidavit's statement that based on "[the agent's] experience as
an investigator concerned with [child pornography], those who seek
the forbidden pornography tend to keep the examples they obtain").
Moreover, such an inference about the portable storage of
contraband was particularly apt in this case, where law enforcement
knew the target had already used a portable device to transmit
saved images.
In light of the foregoing facts and inferences, there
can be no serious question that the warrant's affidavit established
a sufficient nexus between the criminal activity and the places to
be searched.3 See United States v. Corleto, No. 19-cr-76-1, 2020
WL 406357, at *8 (D.N.H. Jan. 23, 2020) ("The chain connecting the
KIK account to a Comcast IP address and the IP address to Corleto's
residence could hardly be clearer.").
2.
Corleto devotes comparatively more ink to the warrant's
purported failure to "particularly describ[e] the place to be
3 Corleto also cites several cases concerning warrantless searches of cell phones and warrantless collection of location data for the proposition that a search of his phone occurred. See Carpenter v. United States, 138 S. Ct. 2206 (2018); Riley v. California, 573 U.S. 373 (2014). But these opinions themselves have little in common with a case like this in which the government acknowledges that there was a search and obtained a warrant to seize the smartphone and search for, among other things, "records and visual depictions of minors engaged in sexually explicit conduct" and "information pertaining to KIK."
- 11 - searched, and the persons or things to be seized." U.S. Const.
amend. IV. This particularity requirement exists "to prevent
wide-ranging general searches by the police." United States v.
Moss, 936 F.3d 52, 58 (1st Cir. 2019) (quoting United States v.
Bonner, 808 F.2d 864, 866 (1st Cir. 1986)). We have previously
construed particularity as implicating two distinct demands. See
United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999). "[A]
valid warrant: (1) must supply enough information to guide and
control the executing agent's judgment in selecting where to search
and what to seize, and (2) cannot be too broad in the sense that
it includes items that should not be seized." Lindsey, 3 F.4th at
40 (quoting United States v. Kuc, 737 F.3d 129, 133 (1st Cir.
2013)).
The warrant here included two attachments, corresponding
to the "premises to be searched" and the "items to be seized."
Attachment A listed the Elmwood Drive address and its two
affiliated vehicles as the "subject premises." Attachment B
described several categories of records sought that relate to child
pornography, the use of KIK, and the occupancy of the Elmwood Drive
address. Attachment B included as search targets any computers
that may have been used to commit the offense, listing several
- 12 - further types of computer-specific evidence sought, and it defined
"computer" to include "mobile 'smart' telephones."
Corleto argues generally that this warrant was
defective, invoking the specter of colonial-era general warrants.
But he fails to explain how the warrant obtained here failed to
constrain the agents' discretion or was overly broad. At his most
specific, he claims that the warrant failed the first prong of
particularity in that it "did not provide enough guidance to the
agents executing the [search]" because the iPhone ultimately
seized "may have been either in his pocket or hand, or dropped on
the ground." But Corleto invokes no authority for the implied
proposition that a warrant affidavit need predict with omniscient
precision exactly where on the premises the evidence to be seized
may be located. And for good reason: The authority is to the
contrary. See United States v. Banks, 556 F.3d 967, 973 (9th Cir.
2009) ("The prohibition of general searches is not . . . a demand
for precise ex ante knowledge of the location and content of
evidence." (quoting United States v. Meek, 366 F.3d 705, 716 (9th
Cir. 2004))); United States v. Ross, 456 U.S. 798, 820–21 (1982)
("[A] warrant that authorizes an officer to search a home for
illegal weapons also provides authority to open closets, chests,
drawers, and containers in which the weapon might be found.").
To the extent Corleto intended his particularity
argument to encompass the requirement's demand disfavoring
- 13 - overbreadth, by contending that the warrant permitted the seizure
of too wide a range of electronic devices (including his iPhone),
we disagree. In light of the evidence reported in the affidavit
concerning the nature of the offense, the seizure and subsequent
search of all such devices in the Corletos' residence and vehicles
"was about the narrowest definable search and seizure reasonably
likely to obtain the images." Upham, 168 F.3d at 535 (upholding
a warrant seeking "[a]ny and all computer software and hardware"
in a child-pornography investigation); see also United States v.
McLellan, 792 F.3d 200, 213–14 (1st Cir. 2015) (upholding a warrant
to search the electronic devices of three roommates living in a
single-family dwelling where evidence of child pornography was
linked to an IP address shared by all residents).
Finally, Corleto also appears to argue that warrants
targeting smartphones categorically require some greater standard
of particularity than might otherwise be required. But even were
that so -- a matter we need not consider here -- this warrant was
sufficiently particular to satisfy whatever heightened standard
might reasonably apply to warrants targeting smartphones.
Attachment B to the warrant affidavit specifically listed as an
"item[] to be seized" "[a]ny computer or electronic media that
were or may have been used as a means to commit the offenses
- 14 - described on the warrant, including the production, receipt,
possession, distribution, or transportation of child pornography."
Corleto next insists that his iPhone's seizure exceeded
the scope of the warrant for two separate reasons. He first
contends that the warrant did not actually authorize agents to
search the Corleto vehicles unless they were stationary and
"located on the subject property." This contention simply
mischaracterizes the warrant's parameters. As Corleto recognizes
elsewhere in his brief, the warrant's Attachment A specifically
stated that the "subject premises" to be searched "include the
residential property" at the Elmwood Drive address, "as well as
any vehicles registered to that address." It clarified that the
"subject premises includes the following registered motor
vehicles," listing the F150 and the Equinox with their registration
numbers. The attachment thus contained no constraint on the
location of the vehicles.4
4 For the same reason, Corleto's corollary argument that Attachment A is ambiguous because the warrant affidavit's definitions section fails to define the words "subject," "premises," or "property" is unavailing. The entire function of the attachment is to define the term "subject premises," as that term is then used throughout the affidavit and warrant (to which the same attachment was appended). Relatedly, his assertion that "[t]he agents could not be certain as to the identities of the persons in the Equinox" is irrelevant, as the warrant permitted the search of the Equinox regardless of who was driving it.
- 15 - Second, Corleto argues that the seizure of his phone
necessarily required a search of his person that was not permitted
by the warrant. He invokes Supreme Court case law holding that a
warrant to search a place does not automatically authorize the
search of all persons found within. See United States v. Di Re,
332 U.S. 581, 587 (1948); Ybarra v. Illinois, 444 U.S. 85, 91
(1979). But regardless of whether the warrant here would have
permitted a search of Corleto's person, the district court
reasonably found that no such search occurred. Rather, adopting
Corleto's own testimony on the encounter, it found that Corleto
was already holding the phone in his hand as he exited the Equinox.
Corleto further testified that the phone was within DeMann's view
as Corleto got out of the car.5
5 Corleto separately asserts that he did not consensually surrender the phone. But given the warrant authorizing the seizure of any smartphones "used as a means to commit the offenses," there was no need for Corleto's consent. Additionally, Corleto arguably hints at an argument to the effect that the warrant did not authorize a search of the iPhone, even assuming that the iPhone's seizure was permissible. Corleto did not raise this argument to the district court below, and he does not come close to properly developing it on appeal. Even if we deemed it forfeited, rather than waived, and thus subject to plain error review, United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002), the argument still fails. The warrant here authorized officers to search for records "in any form wherever they may be stored" relating to the relevant offenses, in addition to listing certain records -- such as "information pertaining to KIK" -- that were especially likely to exist on a smartphone. See Upham, 168 F.3d at 535–36.
- 16 - C.
Finally, we turn to Corleto's argument that his
statements to the agents should have been suppressed because he
never received a Miranda warning. The only statement Corleto
addresses with any specificity on appeal is his "commentary
concerning the production of the iPhone." Accordingly, our review
is limited to his interactions with agents prior to his offering
that commentary.6
"It is well established that Miranda warnings must be
communicated to a suspect before he is subjected to 'custodial
interrogation.'" United States v. Li, 206 F.3d 78, 83 (1st Cir.
2000). "Both 'custody' and 'interrogation' must be present to
require Miranda warnings." United States v. Molina-Gomez, 781
F.3d 13, 22 (1st Cir. 2015). "Interrogation" consists of "either
express questioning or its functional equivalent." Rhode Island
v. Innis, 446 U.S. 291 (1980), 300–01. "The 'functional
equivalent' of questioning is 'any words or action on the part of
the police . . . that the police should know are reasonably likely
to elicit an incriminating response from the suspect.'" United
6 Corleto's Fifth Amendment discussion fails to mention relevant aspects of his interview at the police station, including any other statements made at the station that he might have claimed should have been suppressed. We therefore deem any arguments regarding the statements at the station waived. See Zannino, 895 F.2d at 17.
- 17 - States v. Davis, 773 F.3d 334, 339 (1st Cir. 2014) (omission in
original) (quoting Innis, 446 U.S. at 301).
Here, Corleto volunteered at his residence without
interrogation the very statements he now seeks to suppress. Even
in the absence of a Miranda warning, "[v]olunteered statements of
any kind are not barred." Miranda v. Arizona, 384 U.S. 436, 478
(1966). The district court properly found that Corleto's
"commentary concerning the production of the iPhone" was
admissible.7
III.
For the foregoing reasons, the judgment of the district
court is affirmed.
7 Not surprisingly, Corleto makes no argument that his repetition of these same statements at the station should be suppressed even if his statements at his residence are not suppressed.
- 18 -