United States Court of Appeals

For the First Circuit

No. 21-1326

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT CORLETO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Kayatta, Lipez, and Howard,

Circuit Judges.

Mark G. Miliotis, with whom Elliot M. Weinstein was on brief, 

for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom 

John J. Farley, United States Attorney, was on brief, for appellee.

December 28, 2022
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KAYATTA, Circuit Judge. After the district court denied 

Robert Corleto's motion to suppress evidence collected during the 

investigation that led to his arrest, he pled guilty to one count 

of sexual exploitation of a minor. In so doing, he preserved his 

right to appeal the denial of his motion to suppress. For the 

following reasons, we affirm the judgment of the district court.

I.

For the purposes of this appeal, "[w]e recount the facts 

in the light most favorable to the district court's ruling on the 

motion to suppress, but only to the extent that they have support 

in the record and are not clearly erroneous." United States v. 

Dubose, 579 F.3d 117, 120 (1st Cir. 2009) (quoting United States

v. Holloway, 499 F.3d 114, 115 (1st Cir. 2007)). Although Corleto 

takes issue with some of the district court's factual findings, he 

develops no argument that these findings were clearly erroneous. 

Any such argument is thus waived. See United States v. Zannino, 

895 F.2d 1, 17 (1st Cir. 1990). 

A.

FBI Special Agent Timothy DeMann applied for a warrant 

to search Corleto's residence and any vehicles registered to that 

residence. In his supporting affidavit, DeMann explained that on 

March 18, 2019, an undercover FBI task force officer used the KIK 

Messenger app to chat with a person ("the target") who claimed to 

use KIK to communicate with a "12 year-old slave" who did whatever 
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the target asked. The target ultimately connected the undercover 

agent and the purported minor in a live group chat, and the target 

directed the minor to send photos of herself in her underwear and, 

ultimately, proof of her masturbating. Asked by the undercover 

agent if he had past photos of the purported minor, the target 

sent an image showing nail polish that seemed to match that seen 

in the live chat images. 

That same day, the FBI sent an emergency request to KIK 

seeking the subscriber identification and IP access information 

associated with the target's KIK username. KIK's responsive 

disclosures included IP addresses from March 16, 2019, through

March 18, 2019, and indicated that the target was using an iPhone. 

The FBI focused on one frequently used IP address, which was 

assigned to Comcast. The FBI sent an emergency request to Comcast 

seeking subscriber information for that IP address. Comcast 

identified the subscriber as Nicole Corleto and provided the 

physical service address as a location on Elmwood Drive in Hudson, 

New Hampshire. Public records indicated that Robert Corleto 

resided there, and that a 2016 blue Chevy Equinox and a 2001 white 

Ford F150 were registered at that address to Nicole and Robert 

Corleto, respectively. 

After relating this information, DeMann's affidavit

described the likelihood that a "computer or storage medium" found 

at the Elmwood Drive address would contain contraband and/or 
- 4 -

evidence of crimes, "[b]ased on [his] knowledge, training, and 

experience." Again invoking his "training and experience," DeMann 

asserted that the evidence he sought "is by its very nature 

portable" and may be stored on "extremely compact storage devices," 

including "smart phones," and that "it is not uncommon for 

individuals to keep such media in multiple locations within their 

premises, including in outbuildings and motor vehicles." 

A magistrate judge issued a search and seizure warrant 

on March 19, 2019. As requested, the warrant authorized the search 

of the Elmwood Drive residence and "any vehicles registered to

that address," including the F150 and the Equinox registered to 

Robert and Nicole Corleto, for, among other things, "records and 

visual depictions of minors engaged in sexually explicit conduct." 

The warrant also authorized the seizure of "[a]ny computer . . . 

that [was] or may have been used as a means to commit the offenses 

described on the warrant," employing a broad definition of 

"computer" that included smartphones.

B.

That same day, DeMann and other FBI agents executed the 

search warrant for the Elmwood Drive address. When the agents 

arrived, Robert Corleto and his wife Nicole were in the process of 

leaving the residence's parking lot in the Equinox. Without 

drawing his gun, DeMann stopped the Equinox and identified himself. 
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DeMann approached the SUV's passenger side -- where Robert Corleto 

was seated -- and asked him to exit the vehicle.

At the suppression hearing, DeMann expressed some 

uncertainty as to whether Corleto had the phone in his hand or in 

a pocket as he exited the car, ultimately concluding that it was 

in Corleto's hand. Corleto agreed, and the district court so

found. After DeMann asked if Corleto could unlock the phone for 

him, Corleto opened his iPhone by pressing the "home" button and 

handed it to DeMann.1 

After DeMann and Corleto moved away from the car, DeMann 

explained that they had a warrant to search for evidence of child 

pornography. DeMann then stepped away for a few moments, back to 

the vehicle, until Corleto motioned him over. Unprompted, Corleto 

informed DeMann that everything the officer sought was on his 

phone.

Agents nevertheless proceeded to execute the warrant by 

searching Corleto's residence. At no point was Corleto handcuffed 

nor were any weapons drawn. As the agents searched the home, 

Corleto reiterated to DeMann several times that his phone contained 

what the agents sought. DeMann eventually suggested that they 

discuss things at the Hudson Police Department. DeMann testified 

that he made that suggestion because the residence contained around 

1 The phone did not have a passcode or biometric fingerprint 

lock. 
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ten agents plus the Corletos, "and everybody [was] walking around," 

there was "really no place to sit down," and DeMann "figured that 

the interview was going to have some sensitive . . . questions 

that I was going to be asking him." DeMann testified that, at the 

station, he "could sit down," "take notes," and "record the 

interview." 

Corleto asked if he could take his truck, but it had yet 

to be searched. Instead, DeMann drove Corleto to the station with 

Corleto seated in the front seat of DeMann's car. Corleto was not 

handcuffed, and another agent sat in the backseat. 

Corleto was interviewed in a room at the station. The 

interview was recorded in its entirety. The door was open during 

parts of the interview, and Corleto was told multiple times that 

he was free to leave.2 Four different law enforcement officers, 

including DeMann, participated in various portions of the 

interview. Corleto admitted, among other things, that he solicited 

sexual photographs from a twelve-year-old girl and had similar 

interactions with a "handful" of others. In response to DeMann 

2 Near the start of the interview, DeMann told Corleto, "You 

are not under arrest. You are not in custody. At any point, if 

you want to leave, you're more than welcome. I'll drive you back 

to your house. No problem." About fifteen minutes later, during 

a round of questioning, DeMann again stated, "You're not in custody 

and you're free to go at any point, as we have explained." DeMann 

subsequently informed Corleto of this right once more during the 

interview. 
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asking whether there was "anything else you need to let us know," 

Corleto stated, "It's all right there on the phone." 

When the interview ended, DeMann asked Corleto where he 

would like DeMann to drive him, and Corleto indicated that he 

wanted to go home. DeMann drove him there, with Corleto again in 

the front seat. 

In due course, a grand jury returned an indictment 

charging Corleto with one count of sexual exploitation of a minor, 

18 U.S.C. § 2251(a), (e), and one count of transportation of child 

pornography, 18 U.S.C. § 2252A(a)(1), (b)(1). Corleto moved to 

suppress the evidence obtained from the March 19 search, as well 

as the statements he made during the search and later at the 

station. After holding an evidentiary hearing, the district court 

denied the motion. Corleto then agreed with the government to 

plead guilty to sexual exploitation of a minor in exchange for the 

government dismissing the second count, though Corleto retained 

the right to appeal the denial of his suppression motion. Corleto 

timely appealed on that basis. 

II.

"In reviewing the denial of a motion to suppress, we 

review the district court's . . . conclusions of law, including 

its ultimate constitutional determinations, de novo." United 

States v. Merritt, 945 F.3d 578, 583 (1st Cir. 2019). We will 

uphold the denial "as long as 'any reasonable view of the evidence 
- 8 -

supports the decision.'" Id. (quoting United States v. Clark, 685 

F.3d 72, 75 (1st Cir. 2012)).

Corleto advances an array of arguments on appeal. 

Invoking the Fourth Amendment, he argues that the warrant lacked 

sufficient nexus and particularity and that it was executed as an 

unlawful general warrant. He also insists that his iPhone's 

seizure exceeded the scope of the warrant; that he did not 

consensually surrender the phone; that the phone's seizure was not 

within the plain-view exception to the warrant requirement; and 

that the search of the iPhone was improper. Finally, he argues 

that the use of statements made by him violated his Fifth Amendment 

right against self-incrimination. 

We begin with Corleto's challenges to the warrant 

itself, then examine his claims about its execution, and conclude 

with his Fifth Amendment argument.

A.

Corleto faults DeMann for obtaining the warrant by 

providing testimony about the general practices of those who 

possess child pornography, rather than specific information about 

Corleto's suspected activities. Corleto further insists that 

"there was insufficient guidance applied for and obtained to limit 

the scope of the potential seizures of smart phones." He broadly 

frames these challenges in terms of the warrant's failure to 

establish a nexus between the place to be searched and the alleged 
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criminal activity, and the warrant's lack of sufficient 

particularity. We consider those challenges in turn. 

1.

When evaluating a challenge to a warrant, "[w]e review 

a determination of probable cause de novo and look only to the 

'"facts and supported opinions" set out within the four corners of 

the affidavit.'" United States v. Lindsey, 3 F.4th 32, 39 (1st 

Cir. 2021) (quoting United States v. Austin, 991 F.3d 51, 55 (1st 

Cir. 2021)). A warrant application must show probable cause to 

believe both that "a crime has been committed" and that "enumerated 

evidence of the offense will be found at the place searched." Id.

(quoting United States v. Dixon, 787 F.3d 55, 59 (1st Cir. 2015)). 

The latter condition, known as the "nexus" requirement, demands a 

"'fair probability' -- not certainty -- that evidence of a crime 

will be found in a particular location." Id. (quoting Dixon, 787 

F.3d at 60). Nexus can be "inferred from the type of crime, the 

nature of the items sought, . . . and normal inferences as to where 

a criminal would hide [evidence of a crime]." Id. (alterations in 

original) (quoting United States v. Rodrigue, 560 F.3d 29, 33 (1st 

Cir. 2009)).

Corleto's appellate brief invokes the nexus requirement 

in an argument heading, but then declines to mention it again in 

the substantive argument. Any argument about this requirement is 

therefore likely waived. See Zannino, 895 F.2d at 17. But even 
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if we considered his claim that there was insufficient evidence 

linking the Elmwood Drive residence and associated vehicles to the 

commission of a crime, we would find it unavailing.

DeMann's affidavit described evidence that a KIK user 

had solicited and sent child pornography from an iPhone using an 

IP address affiliated with the Corleto residence. This amply 

supports the inference that one of the residents of the Elmwood 

Drive address used a portable smartphone to commit the stated crime 

and that there may have been evidence of this crime on such a phone

at the specified address, which DeMann included in the definition 

of the premises to be searched. 

DeMann then relied on his training and experience in 

child-pornography investigations to express the hardly surprising 

opinion that "it is not uncommon" for individuals with such 

contraband to store it on portable devices "in multiple locations 

within their premises, including . . . motor vehicles." Robert 

and Nicole Corleto had between them two personal vehicles

registered to the Elmwood Drive residence, and the affidavit 

specifically included both vehicles in its definition of the 

premises to be searched. We have established beyond any doubt 

"the concept that a law enforcement officer's training and 

experience may yield insights that support a probable cause 

determination." United States v. Floyd, 740 F.3d 22, 35 (1st Cir. 

2014) (collecting cases); see, e.g., United States v. Larson, 952 
- 11 -

F.3d 20, 24 (1st Cir. 2020) (citing with approval a warrant 

affidavit's statement that based on "[the agent's] experience as 

an investigator concerned with [child pornography], those who seek 

the forbidden pornography tend to keep the examples they obtain"). 

Moreover, such an inference about the portable storage of 

contraband was particularly apt in this case, where law enforcement 

knew the target had already used a portable device to transmit 

saved images. 

In light of the foregoing facts and inferences, there 

can be no serious question that the warrant's affidavit established 

a sufficient nexus between the criminal activity and the places to 

be searched.3 See United States v. Corleto, No. 19-cr-76-1, 2020 

WL 406357, at *8 (D.N.H. Jan. 23, 2020) ("The chain connecting the 

KIK account to a Comcast IP address and the IP address to Corleto's 

residence could hardly be clearer.").

2. 

Corleto devotes comparatively more ink to the warrant's 

purported failure to "particularly describ[e] the place to be 

3 Corleto also cites several cases concerning warrantless 

searches of cell phones and warrantless collection of location 

data for the proposition that a search of his phone occurred. See

Carpenter v. United States, 138 S. Ct. 2206 (2018); Riley v. 

California, 573 U.S. 373 (2014). But these opinions themselves 

have little in common with a case like this in which the government 

acknowledges that there was a search and obtained a warrant to 

seize the smartphone and search for, among other things, "records 

and visual depictions of minors engaged in sexually explicit 

conduct" and "information pertaining to KIK."
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searched, and the persons or things to be seized." U.S. Const. 

amend. IV. This particularity requirement exists "to prevent 

wide-ranging general searches by the police." United States v. 

Moss, 936 F.3d 52, 58 (1st Cir. 2019) (quoting United States v. 

Bonner, 808 F.2d 864, 866 (1st Cir. 1986)). We have previously 

construed particularity as implicating two distinct demands. See

United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999). "[A]

valid warrant: (1) must supply enough information to guide and 

control the executing agent's judgment in selecting where to search 

and what to seize, and (2) cannot be too broad in the sense that 

it includes items that should not be seized." Lindsey, 3 F.4th at 

40 (quoting United States v. Kuc, 737 F.3d 129, 133 (1st Cir. 

2013)). 

The warrant here included two attachments, corresponding 

to the "premises to be searched" and the "items to be seized." 

Attachment A listed the Elmwood Drive address and its two 

affiliated vehicles as the "subject premises." Attachment B 

described several categories of records sought that relate to child 

pornography, the use of KIK, and the occupancy of the Elmwood Drive 

address. Attachment B included as search targets any computers 

that may have been used to commit the offense, listing several 
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further types of computer-specific evidence sought, and it defined 

"computer" to include "mobile 'smart' telephones." 

Corleto argues generally that this warrant was 

defective, invoking the specter of colonial-era general warrants. 

But he fails to explain how the warrant obtained here failed to 

constrain the agents' discretion or was overly broad. At his most 

specific, he claims that the warrant failed the first prong of 

particularity in that it "did not provide enough guidance to the 

agents executing the [search]" because the iPhone ultimately 

seized "may have been either in his pocket or hand, or dropped on 

the ground." But Corleto invokes no authority for the implied 

proposition that a warrant affidavit need predict with omniscient 

precision exactly where on the premises the evidence to be seized 

may be located. And for good reason: The authority is to the 

contrary. See United States v. Banks, 556 F.3d 967, 973 (9th Cir. 

2009) ("The prohibition of general searches is not . . . a demand 

for precise ex ante knowledge of the location and content of 

evidence." (quoting United States v. Meek, 366 F.3d 705, 716 (9th 

Cir. 2004))); United States v. Ross, 456 U.S. 798, 820–21 (1982) 

("[A] warrant that authorizes an officer to search a home for 

illegal weapons also provides authority to open closets, chests, 

drawers, and containers in which the weapon might be found."). 

To the extent Corleto intended his particularity 

argument to encompass the requirement's demand disfavoring 
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overbreadth, by contending that the warrant permitted the seizure 

of too wide a range of electronic devices (including his iPhone), 

we disagree. In light of the evidence reported in the affidavit 

concerning the nature of the offense, the seizure and subsequent 

search of all such devices in the Corletos' residence and vehicles 

"was about the narrowest definable search and seizure reasonably 

likely to obtain the images." Upham, 168 F.3d at 535 (upholding 

a warrant seeking "[a]ny and all computer software and hardware" 

in a child-pornography investigation); see also United States v. 

McLellan, 792 F.3d 200, 213–14 (1st Cir. 2015) (upholding a warrant 

to search the electronic devices of three roommates living in a 

single-family dwelling where evidence of child pornography was 

linked to an IP address shared by all residents).

Finally, Corleto also appears to argue that warrants 

targeting smartphones categorically require some greater standard 

of particularity than might otherwise be required. But even were 

that so -- a matter we need not consider here -- this warrant was 

sufficiently particular to satisfy whatever heightened standard 

might reasonably apply to warrants targeting smartphones. 

Attachment B to the warrant affidavit specifically listed as an 

"item[] to be seized" "[a]ny computer or electronic media that 

were or may have been used as a means to commit the offenses 
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described on the warrant, including the production, receipt,

possession, distribution, or transportation of child pornography." 

B.

Corleto next insists that his iPhone's seizure exceeded 

the scope of the warrant for two separate reasons. He first 

contends that the warrant did not actually authorize agents to 

search the Corleto vehicles unless they were stationary and 

"located on the subject property." This contention simply 

mischaracterizes the warrant's parameters. As Corleto recognizes 

elsewhere in his brief, the warrant's Attachment A specifically 

stated that the "subject premises" to be searched "include the 

residential property" at the Elmwood Drive address, "as well as 

any vehicles registered to that address." It clarified that the 

"subject premises includes the following registered motor 

vehicles," listing the F150 and the Equinox with their registration 

numbers. The attachment thus contained no constraint on the 

location of the vehicles.4 

4 For the same reason, Corleto's corollary argument that 

Attachment A is ambiguous because the warrant affidavit's 

definitions section fails to define the words "subject," 

"premises," or "property" is unavailing. The entire function of 

the attachment is to define the term "subject premises," as that 

term is then used throughout the affidavit and warrant (to which 

the same attachment was appended). Relatedly, his assertion that 

"[t]he agents could not be certain as to the identities of the 

persons in the Equinox" is irrelevant, as the warrant permitted 

the search of the Equinox regardless of who was driving it. 
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Second, Corleto argues that the seizure of his phone 

necessarily required a search of his person that was not permitted 

by the warrant. He invokes Supreme Court case law holding that a 

warrant to search a place does not automatically authorize the 

search of all persons found within. See United States v. Di Re, 

332 U.S. 581, 587 (1948); Ybarra v. Illinois, 444 U.S. 85, 91

(1979). But regardless of whether the warrant here would have 

permitted a search of Corleto's person, the district court 

reasonably found that no such search occurred. Rather, adopting 

Corleto's own testimony on the encounter, it found that Corleto 

was already holding the phone in his hand as he exited the Equinox. 

Corleto further testified that the phone was within DeMann's view 

as Corleto got out of the car.5 

5 Corleto separately asserts that he did not consensually 

surrender the phone. But given the warrant authorizing the seizure 

of any smartphones "used as a means to commit the offenses," there 

was no need for Corleto's consent. Additionally, Corleto arguably 

hints at an argument to the effect that the warrant did not 

authorize a search of the iPhone, even assuming that the iPhone's 

seizure was permissible. Corleto did not raise this argument to 

the district court below, and he does not come close to properly

developing it on appeal. Even if we deemed it forfeited, rather 

than waived, and thus subject to plain error review, United States

v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002), the argument still 

fails. The warrant here authorized officers to search for records 

"in any form wherever they may be stored" relating to the relevant 

offenses, in addition to listing certain records -- such as 

"information pertaining to KIK" -- that were especially likely to 

exist on a smartphone. See Upham, 168 F.3d at 535–36. 
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C.

Finally, we turn to Corleto's argument that his 

statements to the agents should have been suppressed because he 

never received a Miranda warning. The only statement Corleto 

addresses with any specificity on appeal is his "commentary 

concerning the production of the iPhone." Accordingly, our review 

is limited to his interactions with agents prior to his offering 

that commentary.6

"It is well established that Miranda warnings must be 

communicated to a suspect before he is subjected to 'custodial 

interrogation.'" United States v. Li, 206 F.3d 78, 83 (1st Cir. 

2000). "Both 'custody' and 'interrogation' must be present to 

require Miranda warnings." United States v. Molina-Gomez, 781 

F.3d 13, 22 (1st Cir. 2015). "Interrogation" consists of "either 

express questioning or its functional equivalent." Rhode Island

v. Innis, 446 U.S. 291 (1980), 300–01. "The 'functional 

equivalent' of questioning is 'any words or action on the part of 

the police . . . that the police should know are reasonably likely 

to elicit an incriminating response from the suspect.'" United 

6 Corleto's Fifth Amendment discussion fails to mention 

relevant aspects of his interview at the police station, including 

any other statements made at the station that he might have claimed

should have been suppressed. We therefore deem any arguments 

regarding the statements at the station waived. See Zannino, 895 

F.2d at 17.
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States v. Davis, 773 F.3d 334, 339 (1st Cir. 2014) (omission in 

original) (quoting Innis, 446 U.S. at 301). 

Here, Corleto volunteered at his residence without 

interrogation the very statements he now seeks to suppress. Even 

in the absence of a Miranda warning, "[v]olunteered statements of 

any kind are not barred." Miranda v. Arizona, 384 U.S. 436, 478 

(1966). The district court properly found that Corleto's 

"commentary concerning the production of the iPhone" was

admissible.7

III.

For the foregoing reasons, the judgment of the district 

court is affirmed.

7 Not surprisingly, Corleto makes no argument that his 

repetition of these same statements at the station should be 

suppressed even if his statements at his residence are not 

suppressed.