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w . v i l l a no v a . e du/thir dc ir c uit_2013/562NOT 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 fo r 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 a nd receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2), (a) (4)(B). The Dis trict Court denied his motion to suppress evidence obtained f rom a search of his computers , finding2

the evidence admissible under the independent source doctrine. Carter entered a conditional plea of guilty to pos session of child pornography, and now appe als 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 counte rfeiting gift certificates and Federal Reserve Bank N otes. His car was impounded , and during an inventory search of the car, police officers found c ounterfeit bank notes 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 inv estigate the counterfeit bank notes. 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, Ca rter 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 s erved 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 evict ed, 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 sh e had found on the floor of Carter‟s home office

.3

the Carter home for the computers. Prior to the in t erview 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 w as looking for defend a n t‟s computers. Immediately following the interview with Kennedy, Radens rendezvoused with Kernan and Morris at the Cart ers‟ residence. T hey 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 remo ve 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 th at the computers were in the basement, and signed a consent form permitting a search of the basement. 2 The agents recovered two co mputers, 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 j udge 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 contact ed 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 f ound 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 evi dence 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 th ird warrant to search the Wester n 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 eviden ce obtained as a

3 We have jurisdiction under 28 U.S.C. § 1291. “We review the District Court‟ s denial of a motion to s uppress for clear error as to the underlying factual determinations but exercise plenary review over the District Court‟ s ap plication of law to those facts.” United States v. Stabile , 633 F.3d 219, 230 (3d Cir. 2011).5

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 untain ted 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 w as u nconstitutional. 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 vali d.
E vidence that is obt ained 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) ( “W hen the challenged evidence has an independent source, exclus ion 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 th e 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, 11 44 (3d Cir.6

1992)

. A. We review whether the M agistrate 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.‟” H

errold , 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 befo re 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 i s 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 o f th e items sought, the suspect‟ s opportunity for concealment and normal inferences about where a criminal might hide stolen property. ‟ ” (quoting United States v. Jackson , 7 56 F.2d 703, 705 (9th Cir. 1985) ). We explained in Jones that an a ffidavit that suppor ts the in ference that contraband7

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 hid e the money. Id. The affidavit supporte d 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‟ home s , 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 bra nd name and serial number of defendant‟s computers. Excising this information from the affidavit, there was , as the District Court found, “a surplu s 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 require s less of an inference than did the affidavit in
Jones . We agree that there w as a substantial basis for the M agistra te J udge to find the affidavit supported prob able 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 pro bable cause to issue the search warrant.8 2 .

“ The Fourth Amendme nt 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 , ex ploratory 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 a uthorizing seizure of all defendant‟s folders, checks, general ledgers, correspondence, and “ all other documents, papers, instrumentalities and fruits of the crime ” was sufficient ly particular, because it limited the search to certain items, so “ the magist rate, 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 ille gal 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 de fendant, in a location specified in the affidavit , and was limited to evidence of counterfeiting. Th e warrant described the computers wi th more particularity than the documents and papers described in Christine

. Since the warrant did not authorize “a gen eral exploratory9

rummaging , ” the warrant ha d 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 defe ndant was arrested after selling methamphetamine to a n undercover officer. 558 F.3d at 2 73

. The police found incriminating paraphernalia on Price and in a valid search of his home. Id. at 2 7 3

- 2 7 4 , 279 . E vidence found during the invalid search of a lock ed basement was not excluded because, under the independent source doctrine , it seemed “impossible that the police would not have applied for a warrant to sear ch the basement of the house

. . . . ” Id.
at 282. The police had similar evidence in this cas e. When defendant was arrested, police found counterfeit banknotes and gift certificate s 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 brou ght 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 Raden s decide d to app ly 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 ill egal search.
III.10

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