Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion *

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30599

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

DANNY M DAUGHERTY, also known as Dan Daugherty

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana 

USDC No. 2:07-CR-184-1

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges. 

PER CURIAM:*

Danny M. Daugherty pleaded guilty, pursuant to a plea agreement, to

three counts of production of child pornography and one count of possession of

child pornography. He was sentenced to a total of 210 months of imprisonment

and to a life term of supervised release. In his agreement, Daugherty reserved

the right to appeal the district court’s denial of his motion to suppress evidence.

He argues that the district court erred by finding that the seizure of the

United States Court of Appeals

Fifth Circuit

F I L E D

March 26, 2009

Charles R. Fulbruge III

Clerk
No. 08-30599

2

computer and hard drive from his residence fell within the plain view doctrine.

He also asserts that the district court erred in finding that probable cause

existed to seize the computer and hard drive.

In reviewing the denial of a motion to suppress, the district court’s factual

findings are reviewed for clear error and its legal conclusions, . . . are reviewed

de novo.” United States v. Jacquinot, 258 F.3d 423, 427-28 (5th Cir. 2001). A

factual finding is not clearly erroneous if it is plausible in light of the record as

a whole. Id. The evidence presented at a suppression hearing must be viewed

in the light most favorable to the prevailing party, in this case, the Government.

Id.

As to his argument regarding plain view, the district court determined

that the seizure of the pornographic images contained in the albums found inside

Daugherty’s residence fell within the plain view doctrine, but not the computer

and hard drive. Rather, the district court determined that these pornographic

images, combined with Daugherty’s change in demeanor upon the officer’s

discovery of the images, and his repeated attempts to turn off the laptop

computer, provided the officers with sufficient probable cause to seize the laptop

and hard drive pending a search warrant.

Daugherty also contends that the district court’s probable cause

determination was erroneous because there was no evidence that linked the

pornographic images to his computer. He further contends that his desire to

turn off his computer “could have been based on completely legitimate concerns

. . . [since] [c]omputers contain a wealth of private information.”

Daugherty’s argument lacks merit. Testimony at the suppression hearing

supported a finding that it was apparent that the pornographic images had been

downloaded from a computer due to the internet and email address printed on

the backside of the images. Daugherty admitted ownership of the albums where

the images were found. As soon as he was confronted with the albums,

Daugherty attempted several times to turn off the laptop that was on in his
No. 08-30599

3

office. Furthermore, he became visibly nervous as officers searched his office

that contained the computer equipment. The evidence introduced at the hearing

reflects that there was a fair probability that the computer Daugherty attempted

to turn off contained more pornographic images. Accordingly, the district court

did not clearly err in its probable cause determination and in denying

Daugherty’s motion to suppress. See id. The judgment of the district court is

AFFIRMED.