United States v. Richard Parmer, Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 19, 2023
• Docket: 22-10061
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 19 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10061

Plaintiff-Appellee, D.C. No. 3:18-CR-00267-RS v.

RICHARD PARMER, JR., MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Richard Seeborg, Chief District Judge, Presiding

Argued & Submitted March 28, 2023 San Francisco, California

Before: GOULD and IKUTA, Circuit Judges, and KORMAN,** District Judge.

Richard Parmer, Jr. appeals his conviction for possession of child

pornography following a bench trial. Parmer challenges (1) the district court’s

denial of his motion to suppress evidence, and (2) the sufficiency of the evidence

for his possession of child pornography conviction. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. We review a district court’s denial of a motion to suppress de novo and any

underlying factual findings for clear error. United States v. Zapien, 861 F.3d 971,

974 (9th Cir. 2017). We also review the sufficiency of the evidence underlying a

conviction de novo. United States v. Johnson, 874 F.3d 1078, 1080 (9th Cir.

2017). We must determine “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 319 (1979); United States v. Nevils, 598 F.3d 1158, 1163–64 (9th

Cir. 2010). The same standard of review applies when reviewing a challenge to

the sufficiency of the evidence following a bench trial. United States v. Laney, 881

F.3d 1100, 1106 (9th Cir. 2018).

1. The district court did not err in denying Parmer’s motion to suppress

evidence discovered during a search of his residence. Law enforcement officers

must “confine their search to the residence of the suspect.” United States v. Kyles,

40 F.3d 519, 524 (2d Cir. 1994); Mena v. City of Simi Valley, 226 F.3d 1031, 1038

(9th Cir. 2000). Where a warrant authorizes a search of a suspect’s residence, and

officers become aware that the place identified in the warrant is actually multiple

residences, then the validity of the search depends on “whether the officers’ failure

to realize the overbreadth of the warrant was objectively understandable and

reasonable.” Maryland v. Garrison, 480 U.S. 79, 88 (1987).

2 The evidence at the suppression hearing established that following an

investigation, the details of which are not relevant, San Francisco Police

Department (“SFPD”) Sergeant Alicia Castillo applied for and obtained a search

warrant to search “[t]he residence of 1432 [] Unit D, San Francisco, CA 94130,

which is described as a single family residence situated in a multi-unit building,”

and the person of “Melvin Crowder … [and] [a]ny resident present at the execution

of the search warrant” for “[a]ll evidence of possession of and/or distribution of

child pornography.” The warrant specifically authorized “an on-scene preliminary

forensic computer examination” of “any computer devices, electronic devices, or

any other device capable of storing data.”

On April 26, 2018, SFPD officers arrived at Unit D. Parmer was home

when SFPD officers arrived, but Crowder was not. Upon entering Unit D, SFPD

officers encountered a two-bedroom apartment with a living room, a common

kitchen, a common laundry room, one bathroom, and two bedrooms. The living

room contained a couch, chair, and television, and the kitchen had cooking

instruments and dishes on the counter.

In denying Parmer’s motion to suppress, the district court focused on

Sergeant Castillo’s knowledge when applying for the warrant in determining that it

was reasonable for her to conclude that Unit D was a single residence within an

apartment building. And as to the execution of the warrant, while the district court

3 found that there were “indicia of separateness found throughout Unit D” which

should have alerted SFPD officers to the presence of separate residences, the

district court noted that the key inquiry was whether “a reasonable officer [would]

have called off the search of Parmer’s bedroom before the illegal files were found

on his laptop.” Because Sergeant Castillo testified that child pornography was

found on Parmer’s devices prior to the start of the interview of Parmer, and

because “a reasonable officer would have concluded these were truly separate

residences only after hearing Parmer describe his living arrangement during his

interview,” the district court denied the motion to suppress.1 Relying on Maryland

v. Garrison, the district court emphasized that “room must be allowed for some

mistakes” on the part of law enforcement officers executing warrants, and found

that the SFPD “officers here behaved reasonably up through the discovery of the

illegal files on Parmer’s laptop.” See 480 U.S. at 87 n.11 (“Because many

situations which confront officers in the course of executing their duties are more

or less ambiguous, room must be allowed for some [reasonable] mistakes on their

part.”) (citation omitted).

We agree with the district court that SFPD officers encountered some indicia

of separateness upon entering Unit D. Other facts—such as the couch and

1 The district court credited Castillo’s testimony that the child pornography files were found on Parmer’s devices before the interview began. Parmer does not challenge this factual finding. 4 television in the living room and the cooking utensils, cleaning supplies, and

appliances in the kitchen—pointed to a typical shared two-bedroom apartment.

Moreover, unlike Mena, SFPD had no pre-search knowledge that “a large number

of persons lived in” Unit D when they arrived to conduct the search. 226 F.3d at

1038. The crucial evidence that would have put any reasonable officer on notice

that Unit D potentially held two separate residences only came once SFPD

interviewed Parmer, and by the time that interview had occurred, police officers

had already discovered child pornography on Parmer’s devices via a reasonable

execution of a legal search warrant. The motion to suppress was thus properly

denied.

2. Sufficient evidence supported the district court’s conviction of Parmer

for possession of child pornography under 18 U.S.C. § 2252(a)(4)(B). The parties

stipulated at trial that Parmer owned the two external hard drives where SFPD

officers found child pornography, and that several of the files discovered depicted

child pornography with children under the age of twelve. Parmer’s hard drive

contained over 2,500 files depicting child pornography, and the names of those

files made the graphic content of the files obvious. The files were carefully

organized into specific folders that exclusively held child pornography, and were

not found in the “Downloads” folder where they would be if Parmer had

unknowingly downloaded the files and never opened them. The “number, timing,

5 and location of the child pornography videos” on Parmer’s hard drives “were

inconsistent with [his] defenses that he accidentally downloaded the child

pornography videos . . . to his computer without [his] knowledge.” United States

v. Hardrick, 766 F.3d 1051, 1057 (9th Cir. 2014).

AFFIRMED.