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United States of America v. David Scott Zimmerman

Date: Jan. 4, 2002
Location: Court of Appeals, Third Circuit
Issues: Judicial Branch




D.C. Crim. No. 99-cr-00110
District Judge: The Honorable Gary L. Lancaster

Argued October 17, 2001

Before: ALITO, BARRY and ROSENN, Circuit Judge s

(Filed: January 4, 2002)

ALITO, Circuit Judge, dissenting:
I must respectfully dissent. Even if the search warrant's authorization to seize the critical evidentiary items was not supported by fresh probable cause, suppression of the evidence obtained in the search is not proper due to the "good faith" exception to the exclusionary rule recognized by the Supreme Court in United States v. Leon , 468 U.S. 897 (1984).

The defendant, a high school coach, pled guilty in federal court to the offense of possession of child pornography, in violation of 18 U.S.C. S 2252A(a)(5)(B), but his plea was conditioned on his right to appeal the denial of his motion to suppress evidence taken in a search of his home pursuant to a warrant issued by the Allegheny County Court of Common Pleas. Critical evidence obtained in that search included "computer-generated images depicting minor boys engaged in sexually explicit acts, several catalogs offering for sale video tapes and other materials depicting teenaged boys and young adults engaged in sexual activity, and several hundred images of child erotica." App. 244.

When the search warrant was issued, the only charges pending against the defendant were state charges for corruption of minors, in violation of 18 Pa. Cons. Stat. Ann. S 6301 (A) (1), and simple assault, in violation of 18 Pa. Cons. Stat. Ann. S 2701 (A) (1). An affidavit of Sergeant Donald O'Connor of the McCandless Township Police Department was submitted in support of the search warrant application, and it set out ample evidence supporting these charges. According to the information in the affidavit, the defendant, among other things, had engaged in the unwelcome touching of minor male students; had rubbed his clothed genitals against them; had forced a student to engage in simulated oral sex and had told this student that the student would perform oral sex on the entire basketball team; had pressured a minor student to perform masturbation in the defendant's presence; had coerced a student to submit to being struck on the buttocks with a two-by-four piece of wood and had then tried forcibly to lower the student's pants; had whipped a student with belts and punched another student; and had continually engaged in verbal sexual harassment of minor students, for example, repeatedly calling one student the "team slut." Some of these incidents had allegedly taken place at the defendant's home. In addition, Sergeant O'Connor's affidavit recited evidence that on several occasions the defendant had shown sexually explicit materials to the minor students. On one occasion during a basketball trip, the defendant had allegedly forced several minors to watch a pornographic movie with him in a hotel room and had complained that the movie did not contain enough graphic sex. On another occasion, according to the affidavit, the defendant had repeatedly shown four minors a video clip of a woman performing oral sex on a horse. The defendant had allegedly displayed this video clip to the minors in his home on his computer screen.

The warrant authorized a search for evidence of the offenses with which the defendant was charged and related crimes involving the victimization of minors. The warrant listed as items to be seized computer equipment and "sexual materials." It is apparent that the warrant authorized a search for this latter, broad category of materials, not because their possession was necessarily illegal (i.e., not because they were legally obscene or constituted child pornography), but because the defendant had allegedly used such materials as part of the course of conduct of sexual abuse recounted in the affidavit.

In order to obtain reversal of his conviction, the defendant must show that the critical items of evidence previously noted should have been suppressed. He cannot make such a showing if the critical items were within the scope of the warrant and there was probable cause to search for them in his home. See United States v. Le, 173 F.3d 1258 (10th Cir. 1999) (if officers seize items not within the scope of the warrant, only those items should be suppressed); United States v. Christine, 687 F.2d 749, 754 (3d Cir. 1982) (if probable cause is lacking for certain items covered by a warrant, the warrant may generally be redacted to remove invalid portions). Nor can he make such a showing if these items were in plain view of the executing officers when they conducted valid aspects of the search. See, e.g., Horton v. California, 496 U.S. 128, 134-37 (1990).

Beginning with what I view as the easiest point, I believe that the evidence in the affidavit was clearly sufficient to provide probable cause to believe that, in March 1999, when the warrant was issued, the defendant's home computer still contained the video clip or traces of the clip of the woman and the horse, and that this video clip, whether or not it met the constitutional test for obscenity, was evidence of corruption of minors. Furthermore, it is not important whether the minors had last viewed this clip as recently as five months before the search or as much as 12 months before the search. Since the clip had been shown repeatedly on the computer, it is probable-not certain, but probable-that it had been downloaded to the computer's hard drive. In that event, it was probable- again, not certain, but probable-that either the clip or traces of it remained, even if the defendant had attempted to delete it. See Adobe Systems, Inc. v. South Sun Products, 187 F.R.D. 636, 642-43 (S.D. Cal. 1999) (deleting a file on most computers does not actually result in deletion) (citing authorities). Whether a search of the computer's hard drive for this clip would have necessarily resulted in the discovery of any of the computer-related items of evidence that the government intended to introduce at the defendant's trial is not disclosed by the record, as far as I am aware.

It is also not entirely clear whether there was fresh probable cause to believe that the defendant's computer contained other similar items or that his home contained similar materials in other media. However, the defendant's allegedly extended course of conduct, with the students and his use of sexual materials in carrying out that course of conduct both away from and in his home, provide support for the proposition that as of the date of the search he possessed similar materials in his home. In addition, Sergeant O'Connor's affidavit stated that he had been informed by a postal inspector with lengthy experience investigating crimes involving the sexual victimization of minors that persons with a sexual interest in children often collect and keep sexually related images of minors for lengthy periods and often use pornography depicting adults to assist in victimizing minors. See App. 64. The previously noted incidents alleged in the affidavit showed that the defendant had a sexual interest in minors and that he had used sexual materials on several occasions as part of his course of conduct. All of this information tends to support a finding of probable cause.

We need not decide, however, whether we would find that Sergeant O'Connor's affidavit provided fresh probable cause for the items that the government intended to introduce at the defendant's federal trial because the search in this case was supported by a warrant issued by a detached and neutral magistrate. Under Leon, we may not suppress evidence seized pursuant to that warrant for lack of fresh probable cause unless the supporting affidavit was" `so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.' " 468 U.S. at 923 (quoting Brown v. Illinois, 422 U.S. 590, 610-11 (1975) (Powell, J., concurring in part)). This exception to the "good faith" exception applies in only those rare circumstances in which, although a neutral magistrate has found that there is probable cause, a lay officer executing the warrant could not reasonably believe that the magistrate was correct.

This exception to the "good faith" exception is inapplicable here. The majority finds that the probable cause set out in the affidavit was stale, but there is no bright line between fresh and stale probable cause. See, e.g., United States v. LaMorie, 100 F.3d 547, 554 (8th Cir. 1996). The line varies depending on the nature of the case and the circumstances, and the passage of time is less significant " `when an activity is of a protracted and continuous nature.' " United States v. Williams, 124 F.3d 411, 420 (3d Cir. 1997) (citation omitted). Here, a judge of the Allegheny County Court of Common Pleas found that there was probable cause. So did a United States District Court Judge. I cannot agree with the majority that this conclusion was so obviously wrong that a lay officer could not reasonably have thought that probable cause was present. In my view, the majority's holding is not consistent with Leon, and I must therefore dissent.