United States v. Turner

• Court: Court of Appeals for the First Circuit
• Decided: February 26, 1999
• Docket: 98-1258
• Status: Published

Opinion

USCA1 Opinion

                    UNITED STATES COURT OF APPEALS

                         FOR THE FIRST CIRCUIT


No. 98-1258



                       UNITED STATES OF AMERICA,



                         Plaintiff, Appellant,



                                  v.



                            DANIEL TURNER,



                         Defendant, Appellee.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                       FOR THE DISTRICT OF MAINE



              [Hon. Morton A. Brody, U.S. District Judge]


Before



                         Selya, Circuit Judge,



                      Cyr, Senior Circuit Judge,



                       and Stahl, Circuit Judge.


F. Mark Terison, Assistant United States Attorney, with whom Jay P.

McCloskey, United States Attorney, and Gail Fisk Malone, Assistant

United States Attorney, were on brief for appellant.

     James C. Munch III, with whom Terence M. Harrigan and Vafiades,

Brountas & Kominsky were on brief for appellee.


February 26, 1999

                                                       CYR, Senior Circuit Judge.  After police detectives

discovered several nude photographs in his personal computer files, 

defendant Daniel Turner was indicted for possessing child

pornography in violation of 18 U.S.C.  2252.  Thereafter, the

district court suppressed the photographs and the government

brought this interlocutory appeal.  See id.  3731.  We affirm the

district court ruling, albeit on different grounds.

                                I

BACKGROUND

          At 2:00 a.m. on July 28, 1997, 26-year-old Megan Thomas

was awakened in her bedroom by a masked intruder wielding a knife. 

During the ensuing struggle Thomas cut her hands when she grabbed

the knife.  The intruder fled.  Turner, who lived in the apartment

next door to Thomas, notified the Bangor police.  When police

detectives arrived at the scene, Turner told them that while seated

upstairs at his computer he had observed the intruder fleeing the

Thomas apartment, then telephoned the police.

          The next morning, Bangor Police Detectives Reagan and

Gould returned to the crime scene for further investigation, and

noticed that window screens on both the Thomas and Turner

apartments were ajar and the sill on the Turner apartment was

smeared with blood.  The detectives awakened Turner, told him about

these discoveries, and expressed their concern that the intruder

might have entered Turner's apartment as well.  Turner responded by

handing the detectives a knife which he claimed to have found near

his kitchen sink, but did not remember having placed there.  The

knife fit the description Thomas had given the police earlier.

          The detectives then obtained verbal consent to "look

around" Turner's apartment.  At that point Turner was not

considered a suspect in the Thomas assault.  Turner accompanied the

detectives on their initial tour of his apartment, during which

they found additional blood stains on the stairway walls leading to

the second floor, and on a trash can lid in the computer room on

the second floor.  When asked about these discoveries, Turner could

provide no explanation.

          The detectives then began to suspect that Turner was the

assailant.  At their request, Turner signed a written consent to

search "the premises," "his vehicle," and "personal property." 

Before doing so, he was expressly told that the officers would

search for "any signs the suspect had been inside [the apartment],"

"any signs a suspect had left behind, or anything of that sort,"

and "evidence of the assault itself."

          While a detective remained on the first floor with

Turner, other officers began their 90-minute search of the second

floor.  In the closet of the second-floor computer room, Detective

Gould found several videotapes which apparently contained sexually

explicit material.  Then, while removing boxes from the closet and

stacking them on or near the computer station, Gould noticed that

Turner's computer monitor screen suddenly turned on, and the

Windows "desktop" disclosed a photograph of a nude woman with

"light-colored hair," which Gould concluded was "similar" to Ms.

Thomas' hair color based on descriptions Gould had been given.

          At that point Gould seated himself at the computer and

engaged the "mouse" to access the "Documents" index from the

Windows 95 task bar, which itemized titles of files most recently

accessed by Turner.  Gould noticed several indexed files with the

suffix ".jpg," denoting a file containing a photograph.  After

clicking on these file names, he located photographs of nude blonde

women in bondage.  Further into the "Documents" listing, he noted

several text files bearing titles which suggested rape and/or

bondage.  After calling the district attorney's office for

guidance, Gould copied the adult-pornography files onto a floppy

disk.

          Gould then searched the computer hard drive for other

incriminating files.  Opening the "My Computer" icon and a folder

labeled "G-Images," he noted several files with names such as

"young" and "young with breasts."  Upon opening one such file, he

viewed what he believed to be child pornography, then closed down

and seized the computer.  It was at this point that Turner first

came upstairs and discovered that his computer files had been

subjected to search.

          After Turner was charged in a single count with

possessing child pornography, see id.  2252, he moved to suppress

the computer files.  The district court granted the motion

following a suppression hearing, on the ground that it was not

objectively reasonable for Detective Gould to have concluded that

evidence of the Thomas assault   the stated object of the consent

search   would be found in files with such labels as "young" or

"young with breasts."

                                II

                            DISCUSSION

          The district court ruled that even if the Turner consent

authorized the opening of nondescript files containing photographs,

it did not permit the opening of files labeled "young" or "young

with breasts," which were unlikely to contain evidence pertinent to

the Thomas assault.  The government vigorously responds that the

consent was so broad   authorizing search of all Turner's "personal

property"   that it necessarily encompassed a comprehensive search

of his computer files.  As we conclude that the consent did not

authorize the search of the computer, we affirm the district court

judgment.  See United States v. Doe, 61 F.3d 107, 111-12 (1st Cir.

1995) (appellate court may affirm suppression ruling on any ground

apparent in the record).

          Since it comes within an established exception to the

Fourth Amendment warrant requirement, "[a] consensual search may

not exceed the scope of the consent given."  United States v.

Rudolph, 970 F.2d 467, 468 (8th Cir. 1992).  "The standard for

measuring the scope of a suspect's consent under the Fourth

Amendment is that of 'objective' reasonableness   what would the

typical reasonable person have understood by the exchange between

the officer and the suspect?"  Florida v. Jimeno, 500 U.S. 248, 251

(1991); United States v. Donlin, 982 F.2d 31, 33 (1st Cir. 1992). 

We therefore look beyond the language of the consent itself, to the

overall context, which necessarily encompasses contemporaneous

police statements and actions.

          "The scope of a [consensual] search is generally defined

by its expressed object."  Jimeno, 500 U.S. at 251 (emphasis

added); Doe, 61 F.3d at 112 n.7; see United States v. Pena, 143

F.3d 1363, 1368 (10th Cir.), cert. denied, 119 S. Ct. 236 (1998);

United States v. Saadeh, 61 F.3d 510, 518 (7th Cir. 1995).  For

example, in United States v. Dichiarinte, 445 F.2d 126 (7th Cir.

1971), police officers who sought consent to search the defendant's

premises had made "repeated reference to [their] interest in

narcotics [] and there was no indication that they desired to look

for anything other than narcotics themselves."  Id. at 129.  After

the defendant consented, however, the officers inspected personal

papers.  The Seventh Circuit held that the search exceeded the

scope of the consent:  "Government agents may not obtain consent to

search on the representation that they intend to look only for

certain specified items and subsequently use that consent as a

license to conduct a general exploratory search."  Id. at 129-30 &

n.3 ("Thus if government agents obtain consent or a warrant to

search for a stolen television set, they must limit their activity

to that which is necessary to search for such an item; they may not

rummage through private documents and personal papers.").

          In the present case the detectives preliminarily

restricted the scope of the consent in several respects.  Upon

their arrival at the Turner apartment early in the morning on July

28, the detectives, by their own admission, did not consider Turner

a suspect in the Thomas assault.  See supra Section I,  2. 

Rather, after finding a window screen ajar in the Turner apartment,

they suspected that Thomas's assailant might have broken into the

Turner apartment while fleeing the crime scene next door, something

which Turner presumably need not have done to gain access to his

own apartment.

          Later, after finding a knife and scattered blood stains

for which Turner could provide no explanation, and before Turner

signed the written consent form, the detectives told Turner that he

was a suspect.  The detectives nevertheless couched their search

request in terms normally understood to refer only to an intruder,

rather than a permanent resident, by announcing their intention to

look for "any signs the suspect had been inside [the apartment],"

and "any signs a suspect had left behind."  See, e.g., United

States v. Elliott, 107 F.3d 810, 815 (10th Cir. 1997) (where

officer "explained to [the person whose consent was being sought]

that he just wanted to see how things were 'packed' or

'packaged[,]' [w]e conclude that a typical reasonable person would

have construed these additional statements as expressly limiting

the scope of [the officer's] request"); 3 Wayne R. LaFave, Search

and Seizure  8.1(c), at 620 (3d ed. 1996) ("When a purpose is

included in the [officer's] request, then the consent should be

construed as authorizing only that intensity of police activity

necessary to accomplish the stated purpose.").

          We think that an objectively reasonable person assessing

in context the exchange between Turner and these detectives would

have understood that the police intended to search only in places

where an intruder hastily might have disposed of any physicalevidence of the Thomas assault immediately after it occurred; for

example, in places where a fleeing suspect might have tossed a

knife or bloody clothing.  Whereas, in sharp contrast, it obviously

would have been impossible to abandon physical evidence of this

sort in a personal computer hard drive, and bizarre to suppose  

nor has the government suggested   that the suspected intruder

stopped to enter incriminating evidence into the Turner computer.

Cf. United States v. Kim, 27 F.3d 947, 956 (3d Cir. 1994) ("[W]hen

one gives general permission to search for drugs in a confined

area, that permission extends to any items within that area that a

reasonable person would believe to contain drugs.").

          Similarly, we cannot accept the government's contention

that the sexually suggestive image which suddenly came into "plain

view" on the computer screen rendered Turner's computer files "fair

game" under a consensual search simply because the Thomas assault

had a sexual component (e.g., the attempt to tie her hands).  The

critical consideration in this regard is that the detectives never

announced, before Turner gave his consent, that they were

investigating a sexual assault or attempted rape.  Nor is it

material to the present inquiry that Turner, as the alleged

assailant, would have been familiar with the details of the assault

based on his first-hand knowledge, since the test is not subjective

reasonableness, but objective reasonableness.  See Jimeno, 500 U.S.

at 251.

          Thus, assuming arguendo that such computer images could

be considered circumstantial evidence of a planned sexual assault,

an objectively reasonable person assessing the actual exchange

between the detectives and Turner would not have understood that

such images were within the "expressed object" of the intended

search for evidence of an aggravated assault.  See Elliott, 107

F.3d at 815 (finding that officer's contemporaneous statements

limited scope of consent); cf. United States v. Infante-Ruiz, 13

F.3d 498, 505 (1st Cir. 1994) (finding consent invalid where, interalia, police officer "did not notify [the consenter] that he was

looking for drugs, making it somewhat more difficult to impute to

[the consenter] consent to search every container within the car

that might contain drugs").  The objective reasonableness of this

understanding becomes even more clear when one considers the fruitsof the consensual search which had taken place just before Turner

signed the written consent; that is, the concrete physical evidence

associated with the assault itself, including scattered blood

stains and a knife which fit the description given by the victim. 

Moreover, when the detectives later announced their intention to

search for "evidence of the assault itself," an objectively

reasonable person likely would infer that they intended to search

for evidence of the same ilk; that is, for incriminating objects

directly linked to the nearby crime scene, not for documentary or

photographic evidence.  See United States v. Gutierrez-Hermosillo,

142 F.3d 1225, 1231 (10th Cir.), cert. denied, 119 S.Ct. 230 (1998)

(courts must examine totality of circumstances in determining scope

of consent); United States v. Torres, 32 F.3d 225, 231 (7th Cir.

1994) (same); United States v. Huffhines, 967 F.2d 314, 319 (9th

Cir. 1992) (same).

          Furthermore, aggravated assault is neither akin to so-

called "paper trail" crimes like bank or mail fraud, nor to

possession of child pornography, wherein the suspect might be

expected to retain evidence of the offense itself among personal

papers or in a computer hard drive.  See United States v. Hall, 142

F.3d 988, 995-97 (7th Cir. 1998) (noting that child pornographers

often download photographic images from the Internet, and store

them on hard drives).  Thus, we believe that an objective

observer, witnessing in context the pre-consent exchange between

Turner and the investigating detectives, reasonably would construe

"evidence of the assault itself" to mean physical evidence linked

to the crime scene, rather than documentary or photographic

evidence.

          Finally, the government argues, even if Turner's original

consent was circumscribed, he expanded the authorization by failing

to object to the computer-file search.  See, e.g., United States v.

McRae, 81 F.3d 1528, 1538 (10th Cir. 1996)("[Defendant's] [f]ailure

to object to the continuation of the search . . . may be considered

an indication that the search was within the scope of the

consent.") (citations omitted).  We find this argument lacking as

well, since the detectives testified that Turner was downstairs

with Detective Reagan throughout Detective Gould's search of the

computer located upstairs.  Thus, Turner had no meaningful

opportunity to object before the computer search was completed. 

Cf. United States v. Stribling, 94 F.3d 321, 324 (7th Cir. 1996)

("[Defendant] was present during the search;  she could (and

should) have protested at the time if she believed [the police]

exceeded the scope of her consent, as it was her burden to limit

that scope.") (emphasis added).  We emphasize, nonetheless, that

our decision is predicated upon the particular facts of this case,

and in no sense represents a per se rule on computer searches.

          Affirmed.