2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-16-2013

USA v. Brandon Carter

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-3430

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Recommended Citation

"USA v. Brandon Carter" (2013). 2013 Decisions. Paper 562.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-3430

___________

UNITED STATES OF AMERICA

v.

BRANDON CARTER, 

 Appellant

_______________________

On Appeal from the District Court

for the Western District of Pennsylvania

D.C. Criminal No. 2-09-cr-00161-001

(Honorable Joy Flowers Conti)

______________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 10, 2013

Before: SCIRICA, HARDIMAN, VAN ANTWERPEN, Circuit Judges

(Filed: July 16, 2013)

_________________

OPINION OF THE COURT

_________________

SCIRICA, Circuit Judge.

Brandon Carter was indicted for possession of child pornography and receipt of 

child pornography, in violation of 18 U.S.C. § 2252(a)(2), (a)(4)(B). The District Court 

denied his motion to suppress evidence obtained from a search of his computers, finding 
2

the evidence admissible under the independent source doctrine. Carter entered a 

conditional plea of guilty to possession of child pornography, and now appeals from the 

denial of his motion to suppress. He was sentenced to 36 months in prison.

I. 

Carter was arrested on May 13, 2008 for counterfeiting gift certificates and 

Federal Reserve Bank Notes. His car was impounded, and during an inventory search of

the car, police officers found counterfeit banknotes and counterfeit gift certificates made 

on VersaCheck paper stock. VersaCheck is a software program that allows a person to 

print his or her own checks. 

The police contacted the Secret Service to investigate the counterfeit banknotes. 

Secret Service Agent Michael Radens began investigating the location of Carter‟s 

computer(s), because counterfeiters often used computers and the VersaCheck software 

was run on a computer. At the time of his arrest, Carter lived with his ex-girlfriend, 

Stephanie Kennedy, who was evicted from the home on June 1, 2008, while Carter was 

incarcerated. On June 11, Radens interviewed Kennedy and learned that Carter had two 

computers that were kept in a spare bedroom, which served as a home office. Kennedy 

told Radens she had seen a $500 gift certificate on the floor of the office, but had thrown 

it in the trash.1 Kennedy told Radens she left all of Carter‟s property on the back porch 

of his parents‟ house when she was evicted, including the two computers. Radens took 

notes on this interview and began to prepare an affidavit to apply for a warrant to search 

 

1 When Radens showed Kennedy a picture of a counterfeit gift certificate Carter had used 

at a local retailer, Kennedy told Radens it looked like the gift certificate she had found on 

the floor of Carter‟s home office.
3

the Carter home for the computers. Prior to the interview with Kennedy, Radens 

instructed Agent Brian Morris to report directly to the Carter home, because he was 

concerned Kennedy might have warned the Carters the Secret Service was looking for 

defendant‟s computers.

Immediately following the interview with Kennedy, Radens rendezvoused with 

Kernan and Morris at the Carters‟ residence. They knocked on the door and the rear 

window, but no one answered. Radens then called defendant‟s mother, Rochelle Carter, 

who initially denied the computers were in the house. When Radens told Rochelle Carter 

that he could get a warrant to search the house for the computers, she said that she would 

give the agents the computers when she returned home after work. Radens then left to 

obtain a search warrant, and instructed Morris and Kernan to watch the house in case 

someone tried to remove the computers. After Radens left, defendant‟s father, Laverne 

Carter, came out of the house, and explained to Morris and Kernan that he did not hear 

the knocking since he was sleeping after working the midnight shift. Laverne Carter told 

the agents that the computers were in the basement, and signed a consent form permitting 

a search of the basement.2 The agents recovered two computers, a Gateway and an HP, 

from the Carters‟ basement, and took them to the Pittsburgh field office. Kernan called 

Radens to tell him they had obtained the computers. Radens did not complete the warrant 

application.

On June 23, 2008, a magistrate judge signed a warrant authorizing the search of 

both computers for evidence of counterfeiting. The warrant was based on Radens‟ 

 

2

There is a factual dispute whether Laverne Carter was told the agents already had a 

search warrant. 
4

affidavit reciting the facts described above, including the search of the Carter home and 

the seizure of the computers from the basement. After obtaining the warrant, the agents 

discovered the hard drive was missing from the HP computer. Radens contacted 

Kennedy, who was deployed in the Air Force at the time. Kennedy said she did not know 

if she had the hard drive, but said she would ask her boyfriend to search her belongings 

for it. Kennedy later contacted Radens and told him that her boyfriend had found the 

hard drive, and that she had sent it to the Secret Service. The Secret Service received a 

Western Digital hard drive from Kennedy on July 23, 2008.

On June 25, the Gateway hard drive was imaged. During a search of the Gateway 

hard drive for evidence of counterfeiting, agents discovered evidence of child 

pornography. They stopped the search, and obtained a second warrant to search the 

Gateway computer for child pornography on August 7, 2008. Agents obtained a third 

warrant to search the Western Digital hard drive on August 21, 2008.

As noted, Carter moved to suppress evidence obtained under all three search 

warrants, contending the initial search of the Carter home violated his Fourth 

Amendment rights and the warrants were obtained as a result of that illegal search. The 

District Court found that even if the initial search of the Carter home was invalid, the 

evidence was admissible under the independent source doctrine. 

II.3

“Typically, the exclusionary rule requires that we suppress evidence obtained as a 

 

3 We have jurisdiction under 28 U.S.C. § 1291. “We review the District Court‟s denial of 

a motion to suppress for clear error as to the underlying factual determinations but 

exercise plenary review over the District Court‟s application of law to those facts.” 

United States v. Stabile, 633 F.3d 219, 230 (3d Cir. 2011).
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result of an illegal search.” United States v. Stabile, 633 F.3d 219, 243 (3d Cir. 2011) 

(citing Wong Sun v. United States, 371 U.S. 471, 485 (1963)). But, “[t]he independent 

source doctrine serves as an exception to the exclusionary rule and permits the 

introduction of „evidence initially discovered during, or as a consequence of, an unlawful 

search, but later obtained independently from activities untainted by the initial 

illegality.‟” United States v. Price, 558 F.3d 270, 281 (3d Cir. 2009) (quoting Murray v. 

United States, 487 U.S. 533, 537 (1988)).

Since we agree with the District Court that the independent source exception is 

dispositive, we do not consider whether the search of the Carter home and seizure of the 

two computers was unconstitutional. We find the independent source doctrine applies to 

the initial search of defendant‟s two computers. Accordingly, the second and third search 

warrants, based on information obtained in execution of the first search warrant, were 

also valid.

Evidence that is obtained during an illegal search may be admissible under the 

independent source doctrine. See Murray, 487 U.S. at 537 (quoting Nix v. Williams, 467 

U.S. 431, 443 (1984) (“When the challenged evidence has an independent source, 

exclusion of such evidence would put the police in a worse position than they would have 

been in absent any error or violation.”) (internal quotation marks omitted). The evidence 

is from an independent source if “(1) . . . a neutral justice would have issued the search 

warrant even if not presented with information that had been obtained during an unlawful 

search and (2) . . . the first search [had not] prompted the officers to obtain the 

[subsequent] search warrant.” United States v. Herrold, 962 F.2d 1131, 1144 (3d Cir.
6

1992). 

A. 

We review whether the Magistrate Judge had a substantial basis to find the 

affidavit supported probable cause. Illinois v. Gates, 462 U.S. 213, 236-37 (1983). A 

warrant must “particularly describ[e] the place to be searched, and the persons or things 

to be seized.” U.S. Const. amend. IV.

1.

“„A reviewing court should excise the tainted evidence and determine whether the 

remaining, untainted evidence would provide a neutral magistrate with probable cause to 

issue a warrant.‟” Herrold, 962 F.2d at 1138 (quoting United States v. Vasey, 834 F.2d 

782, 788 (9th Cir. 1987)). Probable cause exists if “the issuing magistrate [makes the] 

practical, common-sense decision [that], given all the circumstances set forth in the 

affidavit before him . . . there is a fair probability that contraband or evidence of a crime 

will be found in a particular place.” Gates, 462 U.S. at 238. “While ideally every 

affidavit would contain direct evidence linking the place to be searched to the crime, it is 

well established that direct evidence is not required for the issuance of a search warrant.”

United States v. Jones, 994 F.2d 1051, 1056 (3d Cir. 1993) (“[P]robable cause can be, 

and often is, inferred by „considering the type of crime, the nature of the items sought, the 

suspect‟s opportunity for concealment and normal inferences about where a criminal 

might hide stolen property.‟” (quoting United States v. Jackson, 756 F.2d 703, 705 (9th 

Cir. 1985)).

We explained in Jones that an affidavit that supports the inference that contraband 
7

will be found in the place described provides probable cause to issue a search warrant. 

Id. at 1056. The defendants in Jones stole a large amount of cash, and had ample time to 

hide the money. Id. The affidavit supported a sufficient nexus between the crime and 

defendants‟ homes, because it stated a cellphone stolen in the robbery would be found in 

one of the homes, and another defendant parked a motorcycle likely purchased with the 

stolen money outside of his home. Id. at 1056-57. We found it was reasonable to infer 

that the money was likely hidden in the defendants‟ homes, so the affidavit describing the 

crime and the time frame provided probable cause to issue the warrants to search 

defendants‟ homes for evidence of the theft. Id.

The only new information discovered through the search of the Carter basement 

was the brand name and serial number of defendant‟s computers. Excising this 

information from the affidavit, there was, as the District Court found, “a surplus of 

evidence” to support probable cause. The affidavit said the counterfeit gift certificates 

officers found in defendant‟s car were likely produced by a computer program, and a 

witness told Agent Radens she saw a similar gift certificate on the floor of defendant‟s 

home office where he kept his computers, and told Radens where the computers were 

located. The facts in this affidavit requires less of an inference than did the affidavit in 

Jones. We agree that there was a substantial basis for the Magistrate Judge to find the 

affidavit supported probable cause to search defendant‟s computers even without the 

computer brand name and serial numbers. Accordingly, when excising the information 

obtained from the initial search, the affidavit still supported probable cause to issue the 

search warrant.
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2. 

“The Fourth Amendment provides that warrants must „particularly describ[e] the 

place to be searched and the persons or things to be seized.‟” United States v. Yusuf, 461 

F.3d 374, 393 (3d Cir. 2006) (quoting U.S. Const. amend. IV). General warrants are 

invalid because they essentially authorize “a general, exploratory rummaging in a 

person‟s belongings.” Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). A 

warrant is not an invalid general warrant when “it does not vest the executing officers 

with unbridled discretion to conduct an exploratory rummaging through appellees‟ papers 

in search of criminal evidence.” United States v. Christine, 687 F.2d 749, 753 (3d Cir. 

1982). In Christine we found a warrant authorizing seizure of all defendant‟s folders, 

checks, general ledgers, correspondence, and “all other documents, papers, 

instrumentalities and fruits of the crime” was sufficiently particular, because it limited the 

search to certain items, so “the magistrate, rather than the officer, determined what was to 

be seized.” Id. (internal quotation marks omitted).

Carter contends the warrant was not sufficiently particular without the serial 

number and brand name of the computers obtained in the allegedly illegal search. 

Excising the brand name and serial number, the warrant did not authorize a general 

search of all of defendant‟s belongings, or even the entire contents of the computers. 

Instead, it authorized the search of two computers known to belong to defendant, in a 

location specified in the affidavit, and was limited to evidence of counterfeiting. The

warrant described the computers with more particularity than the documents and papers

described in Christine. Since the warrant did not authorize “a general exploratory 
9

rummaging,” the warrant had sufficient particularity to comply with the Fourth 

Amendment.

B.

The government must show the unlawful search did not prompt the officers to 

obtain the search warrant. Murray, 487 U.S. at 542. In Price a defendant was arrested 

after selling methamphetamine to an undercover officer. 558 F.3d at 273. The police 

found incriminating paraphernalia on Price and in a valid search of his home. Id. at 273-

274, 279. Evidence found during the invalid search of a locked basement was not 

excluded because, under the independent source doctrine, it seemed “impossible that the 

police would not have applied for a warrant to search the basement of the house . . . .” Id.

at 282. 

The police had similar evidence in this case. When defendant was arrested, police 

found counterfeit banknotes and gift certificates in his car made from a computer 

program. Kennedy told the police she had seen a counterfeit gift certificate in 

defendant‟s home office, and told the police she brought defendant‟s two computers to 

his parents‟ home. Under these circumstances, it is inconceivable the police would not 

have applied for a warrant to search the Carter home for the computers. Moreover, the 

District Court found Agent Radens decided to apply for the warrant before the search. 

He began to draft the affidavit the day before the search, and left to apply for the warrant 

before the search occurred. Accordingly, the decision to apply for the search warrant was 

not prompted by the allegedly illegal search.

III.
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For the foregoing reasons we will affirm the District Court‟s order.