FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 MAY 11, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-14415

Non-Argument Calendar

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D. C. Docket No. 08-00416-CR-7-KOB-RRA

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHARLES KEITH VALLIMONT, JR.,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Alabama

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(May 11, 2010)

Before HULL, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

Charles Keith Vallimont, Jr. appeals his conviction for receipt of child

pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A). On appeal, Vallimont

argues that the district court erroneously denied his motion to suppress evidence
recovered from his laptop computer because (1) the warrantless search and seizure

of his computer violated the Fourth Amendment, and (2) the 45-day delay in

obtaining a warrant to search Vallimont’s computer was unreasonable. After

careful review, we affirm.

“Because rulings on motions to suppress involve mixed questions of fact and

law, we review the district court’s factual findings for clear error, and its

application of the law to the facts de novo.” United States v. Bervaldi, 226 F.3d

1256, 1262 (11th Cir. 2000). Further, “all facts are construed in the light most

favorable to the prevailing party below.” Id. The burden of proving an exception

to the warrant requirement lies with the government. United States v. Jeffers, 342

U.S 48, 51 (1951).

The Fourth Amendment proscribes unreasonable searches and searches.

U.S. Const. amend. IV. In most circumstances, unless there is consent, police

officers must obtain a warrant supported by probable cause to justify a search

under the Fourth Amendment. United States v. Magluta, 418 F.3d 1166, 1182

(11th Cir. 2005). Warrantless searches and seizures inside a person’s home are

presumptively unreasonable. United States v. Burgos, 720 F.2d 1520, 1525 (11th

Cir. 1983).

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First, we reject Vallimont’s claim that the seizure of his computer was

unconstitutional. Seizure of a container, pending issuance of a warrant to examine

its contents, is permitted where there is (1) probable cause to believe that it holds

contraband or evidence of a crime and (2) if the “exigencies of the circumstances

demand it or some other recognized exception to the warrant requirement is

present.” United States v. Place, 462 U.S. 696, 701 (1983). Probable cause exists

when under the totality of the circumstances “there is a fair probability that

contraband or evidence of a crime will be found in a particular place.” Illinois v.

Gates, 462 U.S. 213, 238 (1983). The “plain view” doctrine permits a warrantless

seizure “where (1) an officer is lawfully located in the place from which the seized

object could be plainly viewed and must have a lawful right of access to the object

itself; and (2) the incriminating character of the item is immediately apparent.”

United States v. Smith, 459 F.3d 1276, 1290 (11th Cir. 2006). We have

recognized that exigent circumstances exist where there is the “risk of loss,

destruction, removal, or concealment of evidence.” United States v. Santa, 236

F.3d 662, 669 (11th Cir. 2000).

The warrantless seizure of Vallimont’s computer was permissible under the

“plain view” doctrine because (1) Investigator David Griffin was lawfully present

in the child’s living room to investigate sexual abuse allegations; (2) Vallimont’s

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computer was plainly visible on the living room coffee table; and (3) the

incriminating character of the computer was immediately apparent based upon the

child’s statements that Vallimont had child pornography on that computer. See

Smith, 459 F.3d at 1290. The warrantless seizure was also permissible under the

exigent circumstances exception to the warrant requirement because (1) there was

probable cause to believe the computer held child pornography, and (2) Griffin was

understandably concerned that the evidence on the computer might be deleted if

Vallimont became aware of the investigation. See Santa, 236 F.3d at 669.

We likewise are unpersuaded that the search of his computer was

unconstitutional. Third parties may consent to a warrantless search when they

possess “common authority over or other sufficient relationship to the premises or

effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171

(1974). The Supreme Court has explained that:

The authority which justifies the third-party consent does not rest

upon the law of property . . . but rests rather on mutual use of the

property by persons generally having joint access or control for most

purposes, so that it is reasonable to recognize that any of the

co-inhabitants has the right to permit the inspection in his own right

and that the others have assumed the risk that one of their number

might permit the common area to be searched.

Id. at 171 n.7 (internal quotations and citations omitted).

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Furthermore, “when an individual reveals private information to another, he

assumes the risk that his confidant will reveal that information to the authorities . . .

Once frustration of the original expectation of privacy occurs, the Fourth

Amendment does not prohibit governmental use of the now-nonprivate information

. . . .” United States v. Jacobsen, 466 U.S. 109, 117-19 (1984) (holding there was

no Fourth Amendment violation where an agent examined the inside of a package

that the owner had entrusted to a private party, and which the private party then

freely made available to the agent for inspection); see also Place, 462 U.S. at 705

& n.6 (indicating that the seizure of a defendant’s property is less intrusive where

the owner has previously relinquished control of the property to a third party).

A warrantless search is also permissible where both probable cause and

exigent circumstances exist. United States v. Tobin, 923 F.2d 1506, 1510 (11th

Cir. 1991) (en banc). Where the facts lead a reasonably cautious person to believe

that the search will uncover evidence of a crime, probable cause exists. Id. The

test of whether exigent circumstances exist is an objective one. United States v.

Young, 909 F.2d 442, 446 (11th Cir. 1990). “[T]he appropriate inquiry is whether

the facts . . . would lead a reasonable, experienced agent to believe that evidence

might be destroyed before a warrant could be secured.” Id.

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Although the viewing of an adult pornographic file on Vallimont’s

computer, by a law enforcement officer, constituted a warrantless search, the

district court did not err by denying Vallimont’s motion to suppress because the

warrantless search did not violate Vallimont’s Fourth Amendment rights. First, the

law enforcement officer did not need to obtain a warrant to examine a file on

Vallimont’s computer because the child victim consented to the search of the

computer. Second, because Vallimont frustrated his expectation of privacy by

revealing the contents of his computer to the child and giving her free access to its

contents, the government was not prohibited from using this now-nonprivate

information. See Jacobsen, 466 U.S. at 117-19. Lastly, exigent circumstances may

justify the initial warrantless search of Vallimont’s computer because the search

aided Griffin in determining that seizure of the computer was necessary. See

Tobin, 923 F.2d at 1510.

But even if the warrantless search of Vallimont’s computer was illegal, the

evidence obtained from his computer was still admissible. We recognize that, in

addition to any illegally obtained evidence, a court may suppress incriminating

evidence that was derived from that primary evidence, i.e., “fruit of the poisonous

tree.” United States v. Terzado-Madruga, 897 F.2d 1099, 1112-13 (11th Cir.

1990). Under the independent source doctrine, however, the evidence seized is

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admissible if it was obtained from a lawful source, independent of the

unreasonable or unlawful search. United States v. Davis, 313 F.3d 1300, 1303-04

(11th Cir. 2002).

Here, there were two sources of information, independent from the initial

warrantless search, that supported probable cause to issue a warrant to search

Vallimont’s computer. The independent sources were (1) the child’s statements

that Vallimont had shown her a video of children having sex, and (2) Vallimont’s

admissions at a June 4, 2008 interview that his computer had child pornography on

it. Consequently, we affirm the district court’s conclusion that the initial

warrantless search and seizure of Vallimont’s computer did not violate his Fourth

Amendment rights and did not require suppressing the evidence obtained from his

computer.

We also find no merit in Vallimont’s claim that the 45-day delay in

obtaining a warrant to search his computer was unreasonable because the

government failed to act diligently to secure permission to retain and search it. We

have explained that “even a seizure lawful at its inception can nevertheless violate

the Fourth Amendment because its manner of execution unreasonably infringes

possessory interests protected by the Fourth Amendment’s prohibition on

‘unreasonable searches.’” United States v. Mitchell, 565 F.3d 1347, 1350 (11th

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Cir. 2009) (quotation omitted). “Thus, even a seizure based on probable cause is

unconstitutional if the police act with unreasonable delay in securing a warrant.”

Id. (quotation omitted). “The reasonableness of the delay is determined in light of

all the facts and circumstances, and on a case-by-case basis.” Id. at 1351

(quotation omitted). The reasonableness analysis should “reflect a careful

balancing of governmental and private interests.” Id. (quotation omitted).

In Mitchell, the defendant conceded that the officers had probable cause to

seize a hard drive from the defendant’s computer, but argued that the officers

unreasonably did not request a warrant to search the hard drive until 21 days later.

Id. at 1349-50. We said that “[c]omputers are relied upon heavily for personal and

business use,” and typically are used to store a variety of personal information. Id.

at 1351. Therefore, we concluded that the three-week delay represented a

“significant interference” with the defendant’s “substantial” possessory interest,

and there was no compelling justification for the delay. Id. We also concluded

that the delay was unreasonable under the Fourth Amendment, where (1) the agent

“didn’t see any urgency,” due to the defendant admitting that the hard drive

contained child pornography, (2) the agent attended a two-week training program

during the delay, and (3) the agent did not ask another agent for assistance. Id. at

1351-53.

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We, however, noted that, under the reasonableness standard, certain

circumstances might justify a delay that would otherwise be too long. Id. at

1352-53. For example, a delay could be justified “if the assistance of another law

enforcement officer had been sought,” or “if some overriding circumstances arose,

necessitating the diversion of law enforcement personnel to another case.” Id. We

also recognized that “there may be occasions where the resources of law

enforcement are simply overwhelmed by the nature of a particular investigation, so

that a delay that might otherwise be unduly long would be regarded as reasonable.”

Id. at 1353.

This case is distinguishable from Mitchell in a number of ways. First, the

delay was reasonable due to the “overriding circumstances” necessitating Officer

Pam Kirsch’s diversion to other cases, and because the law enforcement resources

of Tuscaloosa County were “simply overwhelmed.” Id. at 1352-53. This case is

also distinguishable from Mitchell based upon Kirsch’s efforts during the 45-day

delay to prepare the warrant and continue investigating the case. Moreover,

Vallimont had a diminished privacy interest in his computer compared to the

defendant in Mitchell, so that the delay in obtaining a warrant was less intrusive.

Based on all the aspects of the present case that distinguish it from Mitchell, we

affirm the district court’s finding that the 45-day delay in obtaining a warrant to

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search Vallimont’s computer was not unreasonable, and thus, did not require the

suppression of all evidence seized from the computer.

AFFIRMED.

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