United States Court of Appeals

For the Eighth Circuit

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No. 16-1525

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Damien Morgan

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: September 23, 2016

 Filed: December 1, 2016

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Before LOKEN, GRUENDER, and BENTON, Circuit Judges.

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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.

I.

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 armtouching 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. 

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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 court denied Morgan’s motion to suppress all evidence seized 1

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.

II.

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.

A search warrantrequires probable cause, “a practical, common-sense decision

whether, given all the circumstancesset 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 1

District of Missouri.

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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 ofthe 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.

B.

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).

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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 issufficient. 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.

C.

A warrantless search, generally unreasonable, is “valid if conducted pursuant

to the knowing and voluntary consent of the person subject to a search.” United

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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.

III.

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).

A.

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.

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Parker, 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.

B.

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

conduct.”

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 

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(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 statutesin 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

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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.

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The judgment is affirmed.

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