United States v. Damien Morgan ( 2016 )

  •                  United States Court of Appeals
                                For the Eighth Circuit
                                    No. 16-1525
                                 United States of America
                            lllllllllllllllllllll Plaintiff - Appellee
                                      Damien Morgan
                          lllllllllllllllllllll Defendant - Appellant
                        Appeal from United States District Court
                      for the Eastern District of Missouri - St. Louis
                              Submitted: September 23, 2016
                                 Filed: December 1, 2016
    Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
    BENTON, Circuit Judge.
           Damien Morgan pled guilty to one count of production of child pornography
    in violation of 18 U.S.C. § 2251(a) and one count of attempted production in
    violation of 18 U.S.C. § 2251(a) and (e). He reserved the right to appeal the denial
    of a motion to suppress. Morgan now appeals the motion and two base-offense-level
    enhancements to his guidelines range. Having jurisdiction under 28 U.S.C. § 1291,
    this court affirms.
           On August 4, 2013, an officer discovered that a computer offered child
    pornography by peer-to-peer file sharing. That day, police identified the computer’s
    IP address. Twenty-four days later, police determined that the IP address was
    assigned to Morgan. Over seven weeks later, a state judge issued a search warrant
    for his home—75 days after the IP address was identified and 51 days after
    investigators associated the IP address with Morgan.
           Five days later, police executed the warrant at Morgan’s home. They also
    arrested him on a warrant for an unrelated no-fare-transit violation.
           The arresting officer seized a cell phone from Morgan and, while handcuffing
    him, noticed a tattoo on his wrist. At the station, Morgan requested his cell phone to
    tell his employer and sister where he was. Police gave him the cell phone, under
    police supervision. As Morgan scrolled through his contacts, he did not object as a
    detective watched his screen. According to the detective, Morgan spontaneously
    shared facts about the contacts. The detective wrote down some names and numbers.
           While Morgan was in custody, a different detective found original images of
    child pornography on a computer from his home. One image showed a man with a
    tattooed arm touching a female child’s genitalia. The detective who found the images
    asked Morgan to lift the sleeve of his shirt so that he could photograph his tattoo.
    Morgan agreed, lifting his sleeve and allowing photographs without objection.
    Morgan’s tattoos matched the tattoos in the photographs from his computer.
           Police later identified the child in the computer images. Morgan’s public
    Facebook profile led to the profile of a woman who a detective recalled was one of
    Morgan’s cell-phone contacts. Her public profile showed a daughter resembling the
    child pictured.
           The district court1 denied Morgan’s motion to suppress all evidence seized
    from his home as well as physical evidence seized from his person or possession.
    Following a conditional guilty plea, the court sentenced him to 360 months, based on
    a guidelines range including enhancements of: (1) four levels for images depicting
    sadistic conduct and (2) five levels for a pattern of activity.
           This court reviews a district court’s factual findings for clear error and its legal
    conclusions de novo. United States v. Burston, 
    806 F.3d 1123
    , 1126 (8th Cir. 2015).
    The denial of a motion to suppress is affirmed unless this court “find[s] that the
    decision is unsupported by the evidence, based on an erroneous view of the law, or
    the Court is left with a firm conviction that a mistake has been made.” United States
    v. Riley, 
    684 F.3d 758
    , 762 (8th Cir. 2012) (internal quotation marks omitted).
            A search warrant requires probable cause, “a practical, common-sense decision
    whether, given all the circumstances set forth in the affidavit before” the judge, “there
    is a fair probability that . . . evidence of a crime will be found in a particular place.”
    Illinois v. Gates, 
    462 U.S. 213
    , 238 (1983). This court determines only whether the
           The Honorable Carol E. Jackson, United States District Judge for the Eastern
    District of Missouri.
    issuing judge “had a substantial basis [to conclude] that probable cause existed.” Id.
    at 238-39 (internal quotation marks omitted).
          Morgan argues that the information in the search warrant was stale, and thus
    the warrant lacked probable cause, because police did not apply for the warrant until
    75 days after identifying his IP address and 51 days after associating it with him.
           Periods much longer than 75 or 51 days have not rendered information stale in
    computer-based child-pornography cases. See, e.g., United States v. Estey, 
    595 F.3d 836
    , 840 (8th Cir. 2010) (holding that a five-month delay did not render information
    stale). The affidavit in support of the search warrant attested that collectors of child
    pornography tend to retain images and that computer programs that download these
    images “often leave[ ] files, logs or file remnants which would tend to show the
    exchange, transfer, distribution, possession or origin of the files.” See United States
    v. Horn, 
    187 F.3d 781
    , 786 (8th Cir. 1999) (“The timeliness of the information
    supplied in an affidavit depends on the circumstances of the case, including the nature
    of the crime under investigation; the lapse of time is least important when the
    suspected criminal activity is continuing in nature and when the property is not likely
    to be destroyed or dissipated.”). The affidavit established a fair probability of finding
    evidence on Morgan’s computers.
          A Fourth Amendment search occurs “when the government violates a
    subjective expectation of privacy that society recognizes as reasonable.” Kyllo v.
    United States, 
    533 U.S. 27
    , 33 (2001). In contrast, whatever “a person knowingly
    exposes to the public . . . is not a subject of Fourth Amendment protection.” Katz v.
    United States, 
    389 U.S. 347
    , 351 (1967).
           Morgan had no reasonable expectation of privacy when he voluntarily
    displayed his cell-phone screen in the presence of the detectives. Morgan had his
    phone because he asked for it. He did not object when the detective observed his
    activities. And—according to the detective’s uncontested testimony—Morgan
    spontaneously shared information about his contacts with the detective. This is
    unlike officers looking on their own through the contents of a cell phone. See Riley
    v. California, 
    134 S. Ct. 2473
    , 2480-82 (2014). Instead, it is “an officer’s mere
    observation of an item left in plain view,” which “generally involves no Fourth
    Amendment search.” Texas v. Brown, 
    460 U.S. 730
    , 738 n.4 (1983). See Kyllo, 533
    U.S. at 32 (recognizing the Court’s continued holding that “visual observation is no
    ‘search’ at all”).
           Morgan believes that the plain-view doctrine applies only if: (1) the officer is
    in a lawful position to view the evidence, (2) the officer discovers the incriminating
    evidence inadvertently, and (3) the incriminating nature of the evidence is
    immediately apparent. Morgan contends the last two conditions are not satisfied.
    This contention conflates the plain-view doctrine for seizures with the plain-view
    doctrine for searches. An officer does not violate the Fourth Amendment by viewing
    evidence from a position he lawfully occupies, remembering it, and using it later.
    Observing what is in plain sight does not implicate the additional requirements for a
    seizure; being in a lawful position to observe evidence is sufficient. Brown, 460 U.S.
    at 738 n.4.
         Morgan had no reasonable expectation of privacy in his cell-phone screen once
    he made it visible to the public by displaying it in the presence of a detective.
           A warrantless search, generally unreasonable, is “valid if conducted pursuant
    to the knowing and voluntary consent of the person subject to a search.” United
    States v. Sanders, 
    424 F.3d 768
    , 773 (8th Cir. 2005). Whether consent is voluntary
    is a factual question, reviewed for clear error. Id.; Pace v. City of Des Moines, 
    201 F.3d 1050
    , 1053 (8th Cir. 2000).
          The magistrate judge found that a detective “asked [Morgan] to move his shirt
    sleeve so that [the detective] could take a photograph of [his] tattooed arm. [Morgan]
    agreed to do so.” To agree is “to indicate willingness : consent.” Agree, Webster’s
    Third New International Dictionary 43 (2002). The magistrate judge found that
    Morgan consented to the photographs of his tattoo. The district court adopted that
    finding and found “no evidence that [he] was coerced.” Nothing indicates these
    findings are clearly erroneous. The district court correctly denied the motion to
    suppress the photographs of Morgan’s tattoos.
           Findings of fact about sentencing enhancements are reviewed for clear error;
    interpretations of the guidelines are reviewed de novo. United States v. Ault, 
    598 F.3d 1039
    , 1040 (8th Cir. 2010).
            Guideline § 2G2.1(b)(4) authorizes a four-level increase to the base offense
    “[i]f the offense involved material that portrays . . . sadistic or masochistic conduct
    or other depictions of violence.” The term “sadistic” is not defined in the guidelines,
    but has been addressed by this court several times.
          If an image depicts actual or attempted penetration, it is per se sadistic. United
    States v. Belflower, 
    390 F.3d 560
    , 562 (8th Cir. 2004). An image need not show
    actual or attempted penetration to portray sadistic material. See United States v.
    267 F.3d 839
    , 847 (8th Cir. 2001). Conduct that is “sufficiently painful,
    coercive, abusive, and degrading” may also be sadistic. Id.
           The images at issue show Morgan’s fingers placed on the inside of the child’s
    labia, spreading them to expose her genitalia. At sentencing, the district court found
    that these images depicted “a form of penetration” because “[t]his was not a situation
    where the Defendant was touching her externally.” This factual determination is not
    clearly erroneous. The district properly applied the four-level enhancement.
           Guideline § 4B1.5(b) authorizes a five-level enhancement if (1) “the
    defendant’s instant offense of conviction is a covered sex crime” and, as relevant
    here, (2) “the defendant engaged in a pattern of activity involving prohibited sexual
           Morgan objects to this enhancement, claiming his attempted production of
    child pornography is not “prohibited sexual conduct,” thus precluding a pattern of
    activity. He reaches this view by comparing the definitions of “covered sex crime”
    and “prohibited sexual conduct.” According to Morgan, “prohibited sexual conduct”
    includes production of child pornography but not attempted production, which thus
    cannot be a second offense required for a pattern of activity.
          Application Note 2 defines “covered sex crime” as:
          (A) an offense, perpetrated against a minor, under (i) chapter 109A of
          title 18, United States Code; (ii) chapter 110 of such title, not including
          trafficking in, receipt of, or possession of, child pornography, or a
          recordkeeping offense; (iii) chapter 117 of such title, not including
          transmitting information about a minor or filing a factual statement
          about an alien individual; or (iv) 18 U.S.C. § 1591; or
          (B) an attempt or a conspiracy to commit any offense described in
          subdivisions (A)(i) through (iv) of this note.
    Application Note 4(A) defines “prohibited sexual conduct” as:
          (i) any offense described in 18 U.S.C. § 2426(b)(1)(A) or (B); (ii) the
          production of child pornography; or (iii) trafficking in child
          pornography only if, prior to the commission of the instant offense of
          conviction, the defendant sustained a felony conviction for that
          trafficking in child pornography. It does not include receipt or
          possession of child pornography.
           Morgan argues that subsection (B) of Note 2, by explicitly including attempt,
    means that the statutes in subsection (A) do not include attempted production of child
    pornography. By his logic, because “prohibited sexual conduct” does not mention
    “attempted” production, attempt is not included in prohibited sexual conduct.
    Morgan argues that, at least, the definitions are ambiguous whether attempted
    production of child pornography is prohibited sexual conduct. He invokes the rule
    of lenity to void the enhancement.
           The rule of lenity will “resolve ambiguity in favor of the defendant only at the
    end of the process of construing what Congress has expressed when the ordinary
    canons of statutory construction have revealed no satisfactory construction.”
    Lockhart v. United States, 
    136 S. Ct. 958
    , 968 (2016) (internal quotation marks
    omitted). An arguable alternative construction “cannot automatically trigger the rule
    of lenity.” Id.
          Here, there is a satisfactory construction: Both definitions—explicitly in the
    first definition and in the second by referencing 18 U.S.C.
    § 2426(b)(1)(A)—incorporate chapter 110 of title 18, which includes attempted
    production of child pornography. This plain reading of the text is the more natural
    interpretation. See United States v. Broxmeyer, 
    699 F.3d 265
    , 285 (2d Cir. 2012).
    No ambiguity triggers the rule of lenity. The district court correctly ruled that
    “attempted production of child pornography is a crime under chapter 110 of title 18,”
    and thus properly applied the five-level enhancement.
          The judgment is affirmed.