United States v. David Scott Zimmerman

277 F.3d 426, 187 A.L.R. Fed. 761, 2002 U.S. App. LEXIS 73, 2002 WL 13167
CourtCourt of Appeals for the Third Circuit
DecidedJanuary 4, 2002
Docket01-1251
StatusPublished
Cited by159 cases

This text of 277 F.3d 426 (United States v. David Scott Zimmerman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. David Scott Zimmerman, 277 F.3d 426, 187 A.L.R. Fed. 761, 2002 U.S. App. LEXIS 73, 2002 WL 13167 (3d Cir. 2002).

Opinions

OPINION OF THE COURT

BARRY, Circuit Judge.

On March 19, 1999, the Police Department in McCandless Township, Pennsylvania obtained a warrant to search the residence of appellant David Zimmerman for adult and child pornography. Several images of the latter were found, and Zimmerman was indicted for possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). His suppression motion was denied, and he entered a conditional plea of guilty to the one-count indictment, preserving his right to appeal the issue of whether the search warrant that produced the damning evidence was supported by probable cause.

The warrant application did not contain any information indicating that Zimmerman ever possessed child pornography, much less that child pornography would be found in his home on March 19, 1999. While it did contain information that many months earlier, one video clip of adult pornography was in Zimmerman’s home (or at least that Zimmerman had accessed it via the Internet from his home), that information was stale. Thus, we agree with Zimmerman that there was no probable cause to search for pornography — child or adult — in his home. We agree as well that, under the circumstances evident here, the good faith exception does not apply. We, therefore, will reverse the denial of the suppression motion and vacate the judgment of conviction and sentence.1

[430]*430I.

David Zimmerman was a high school teacher and basketball coach in McCandless Township, Pennsylvania. Sergeant Donald O’Connor and Detective David DiSanti of the McCandless Police Department initiated an investigation after a number of Zimmerman’s male students alleged that Zimmerman had sexually accosted them. Several boys stated that Zimmerman had forced them to simulate oral sex on his person, touched their genitalia, and talked to them about graphic sexual matters. A boy identified as John Doe # 1 made particularly serious allegations and seemed to be the focus of much of Zimmerman’s conduct. The mother of John Doe # 1 played a very active role in the investigation of Zimmerman, sending detailed letters to school officials discussing the accusations against Zimmerman and recommending courses of action the school should take. She also communicated with the police to keep them informed of the school’s investigation of Zimmerman. On March 4, 1999, Zimmerman was charged in the Court of Common Pleas of Allegheny County, Pennsylvania with two crimes: corruption of minors, in violation of 18 Pa. Cons.Stat. § 6301(a)(1), and simple assault, in violation of 18 Pa. Cons.Stat. § 2701(a)(1).

The investigation continued after Zimmerman was charged. On March 13, 1999, the police interviewed a college student identified as John Doe # 12, the brother of John Doe # 1. John Doe # 12 stated that Zimmerman, on apparently one occasion, had shown him “Internet pornography” at Zimmerman’s home when John Doe # 12 was a senior in high school.2 The pornography consisted of a video clip that depicted a woman performing oral sex on a horse. John Doe # 12 stated that another student, John Doe # 13, was at Zimmerman’s home when he showed the video clip. On March 18, 1999, the police questioned John Doe # 13 and were told by him that he did not recall being shown pornography at Zimmerman’s home.

When John Doe # 13 did not corroborate John Doe # 12’s story about having been with him when the video of the woman with the horse was supposedly shown by Zimmerman, the officers called John Doe # 12 to confirm what he had previously stated and to get additional details about the video. John Doe # 12 was away at college and could not be reached, however, so the officers contacted his mother and told her why they wanted to speak with him. In a subsequent phone call, she stated that she had “confirmed” with John Does # 1, 4 and 8 that they had seen the video at Zimmerman’s home one day in either September or October of 1998 although, as it turned out, she had confirmed no such thing.3 At no time did Sergeant [431]*431O’Connor confirm the mother’s information with any of the three boys and nothing in Detective DiSanti’s reports indicate that he asked the boys about the video or that the boys mentioned it to him. Nonetheless, Sergeant O’Connor included the mother’s statement in his affidavit in support of the search warrant.

Virtually the entirety of the lengthy affidavit recounted various incidents in which Zimmerman allegedly sexually accosted students at the high school or on athletic road trips, with only brief mention made of pornography. The affidavit refers to the video clip shown to John Doe # 12; the mother’s statement that it had been shown to John Does # 1, 4 and 8; and an opinion by Postal Inspector Thomas Clinton stating, among other things, that persons with a sexual interest in children may possess child pornography and keep it in their homes for extended periods of time. Inspector Clinton’s statements did not refer to Zimmerman or the facts of this case, and there was no indication that he knew anything about either.

The warrant application sought authorization to search for evidence of violations of 18 Pa. Cons.Stat. §§ 2701 (simple assault), 2709 (harassment and stalking), 6301 (corruption of minors) and 6312 (sexual abuse of children, which includes the possession of child pornography), and identified the following items to be searched for and seized:

Computer and any computer related or attached equipment, including but not limited to hard drives, keyboard, mouse(s), printers, terminals, display screens, modems and connectors, cables, magnetic and optical media storage devices, any sexual materials including photos, printed materials or likenesses such as images of humans in sexual contact with animals or other prohibited sexual acts defined by Title 18 Sections 3101 and 6312.

App. at 57. The Hon. Lawrence O’Toole of the Court of Common Pleas of Allegheny County, Pennsylvania issued the warrant and the police, including Inspector Clinton, searched Zimmerman’s home on March 19, 1999. The police seized, among other things, several images of child pornography. In July 1999, a federal grand jury empaneled in western Pennsylvania returned a one-count indictment charging Zimmerman with possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).

II.

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizure, shall not be violated, and 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.

U.S. Const, amend. IV. One’s home is sacrosanct, and unreasonable government intrusion into the home is “the chief evil against which the wording of the Fourth Amendment is directed.” Payton v. New York,

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Bluebook (online)
277 F.3d 426, 187 A.L.R. Fed. 761, 2002 U.S. App. LEXIS 73, 2002 WL 13167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-david-scott-zimmerman-ca3-2002.