F I L E D

United States Court of Appeals

Tenth Circuit

October 26, 2005

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 04-4255

BRENT RAY BROOKS,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

(D.C. NO. 03-CR-751-PGC)

Steven B. Killpack, Federal Public Defender (Scott Keith Wilson, Assistant

Federal Public Defender, with him on the briefs), Office of the Federal Public

Defender, Salt Lake City, Utah for Defendant-Appellant.

Paul G. Amann, Special Assistant United States Attorney (Paul M. Warner,

United States Attorney, with him on the brief), Office of the United States

Attorney, Salt Lake City, Utah for Plaintiff-Appellee.

Before McCONNELL , McKAY , and TYMKOVICH , Circuit Judges.

TYMKOVICH , Circuit Judge.
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Brent Ray Brooks was indicted for receipt of child pornography in violation

of 18 U.S.C. § 2252A(a)(2)(A), possession of child pornography in violation of

18 U.S.C. § 2252A(5)(B), and distribution of child pornography in violation of 18

U.S.C. § 2242A(a)(1). He entered a conditional plea of guilty to the charge of

possession of child pornography and preserved his right to appeal the district

court’s denial of his motion to suppress evidence found on his computer.

In his appeal, Brooks argues (1) that officers exceeded the scope of his

consent when they searched his computer by means other than those explained to

him in the course of obtaining consent; and (2) that the warrant for the computer

search was not adequately specific. We take jurisdiction pursuant to 28 U.S.C.

§ 1291 and affirm.

I. BACKGROUND

On August 26, 2003, Utah County law enforcement officers responded to a

report of an unattended child at Brooks’s house. When they arrived, they detected

the odor of marijuana inside the residence. Thereafter, they obtained a search

warrant (the “first warrant”) authorizing a search for items associated with

marijuana use. During their search the following day they found a substantial

amount of what appeared to be child pornography in one of Brooks’s garbage

cans. After this discovery, officers obtained another warrant on August 27, 2003

(the “second warrant”) authorizing a search of Brooks’s home, including any
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computer equipment, for child pornography. They also contacted Special Agent

Brian Snyder, an FBI agent with experience in child pornography and child

exploitation investigations, to assist with their search. Law enforcement executed

the warrant on the same day.

Since the pornographic images found in Brooks’s garbage appeared to have

been printed from a computer printer, officers “assume[d] that there [was]

possibly more child pornography on the [home] computer[.]” ROA, Vol. IV at

11. Accordingly, upon his arrival Agent Snyder requested permission from

Brooks to search Brooks’s computer. Snyder explained to Brooks that the search

would involve inserting a “pre-search” disk into his computer. Although the

record is unclear as to precisely how the disk functioned, it apparently contained a

program that searched for image files and displayed the images in a thumbnail

format so a viewer could easily ascertain whether the images included child

pornography. Agent Snyder further explained to Brooks that the disk would not

search for text files, but would search for and display only image files.

Brooks told Snyder that he had “nothing to hide” and agreed to sign a

search consent form. The form stated that Brooks (1) had been asked by the FBI

to authorize a “complete search” including a “pre-search for child pornography”

of his computer tower; (2) had been advised of his right to refuse consent; (3)
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gave his consent voluntarily; and (4) authorized agents to take any items they

determined were related to their investigation. ROA, Vol. IV, Exhibit F.

After obtaining Brooks’s consent to search the computer, Snyder went to

the computer and inserted the pre-search disk. The computer was already turned

on. For reasons the record does not make clear, the disk did not function on the

computer. Thus, Agent Snyder decided to attempt a manual search for image files

through the computer’s “file search” function. He was unable to complete the

manual review, however, because Brooks’s computer prompted him to enter a

password. Snyder therefore returned to Brooks and asked him for the password to

the computer, which Brooks told him was the same as the log-on password. After

this conversation Agent Snyder went back to Brooks’s computer and completed

the process of a manual image file search.

Snyder located several images of adolescent male boys engaged in sexual

activity. He did not view or open any text files. After Snyder viewed the images,

officers shut down the computer and seized it. They subsequently obtained a third

warrant authorizing a search of three computers, twelve compact disks, and seven

diskettes located at Brooks’s residence. This forensic search was carried out at a

police laboratory.

Brooks later moved to suppress the pornographic images found during (1)

Snyder’s manual search, and (2) the laboratory’s forensic search. The district
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court denied the motion. Brooks then entered a conditional guilty plea on May 3,

2004, and on October 14, 2004, the United States District Court for the District of

Utah sentenced him to 88 months in prison and 156 months of supervised release. 

Pursuant to the conditional plea, Brooks filed this appeal. 

II. DISCUSSION

Brooks argues on appeal (A) that officers exceeded the scope of his consent

when they searched his computer by means other than those explained to him in

the course of obtaining written consent; and (B) that the warrant for the computer

search was not adequately specific.

A. Scope of the Search

We uphold the factual findings of a district court made in connection with a

motion to suppress unless those findings are clearly erroneous, United States v.

Williams , 271 F.3d 1262, 1266 (10th Cir. 2001) (citing United States v.

Hunnicutt , 135 F.3d 1345, 1348 (10th Cir. 1998)), and we must view the evidence

in the light most favorable to the determination of the district court. Id. (citing

United States v. West , 219 F.3d 1171, 1176 (10th Cir. 2000)). We review the

district court’s legal findings de novo. United States v. Minjares-Alvarez , 264

F.3d 980, 983-84 (10th Cir. 2001).

It is well settled that voluntary consent can obviate the warrant requirement

of the Fourth Amendment. See Schneckloth v. Bustamonte , 412 U.S. 218, 227
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(1973). However, “[t]he scope of a search . . . is limited by the breadth of the

consent given.” United States v. Elliott , 107 F.3d at 814-15 (10th Cir. 1997)

(internal citations omitted). We apply an “objective reasonableness” standard to

the scope of consent, asking what “would the typical reasonable person have

understood by the exchange[.]” Id. We examine the totality of the circumstances

when determining whether a search was within the scope of the consent. United

States v. Gutierrez-Hermosillo , 142 F.3d 1225, 1231 (10th Cir. 1998).

As a preliminary matter, the record shows that Brooks never explicitly

argued to the district court that the officers’ search exceeded his consent. His

only argument to the district court was that his consent to the home seach was not

knowingly and voluntarily given. Accordingly, since Brooks failed to raise the

issue below, we review for plain error. See United States v. Walser , 275 F.3d

981, 985 (10th Cir. 2001). We find no error here. The record is clear that the

officers did not expand their search of Brooks’s computer nor overstep the bounds

of Brooks’s consent. As previously discussed, at the point Agent Snyder obtained

Brooks’s permission to search the computer, Snyder told Brooks the search would

be conducted with a computer disk that would automatically search for image

files. Brooks argues that his consent was therefore limited to the specific

software-driven pre-search Snyder initially described, and the images obtained

during Snyder’s subsequent manual search should have been suppressed. We
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disagree that the search exceeded an objectively reasonable interpretation of

Brooks’s consent for several reasons.

First, the scope of Snyder’s search did not, in fact, exceed the permission

Brooks granted in his written consent. In the consent form, Brooks agreed to the

following: a “complete search” of the “CPU tower . . . belonging to Brent Brooks

to conduct a pre-search for child pornography.” ROA, Vol. I, Exhibit F. While

the officers intended to use a computer tool to assist the search, the actual manual

search did nothing more than what Brooks had authorized. The terminology in

the consent form regarding a “pre-search” is somewhat confusing. What is not

confusing is the fact, as determined by the district court, that Brooks understood

his computer was to be searched for pornographic images and voluntarily

consented to such a search.

Second, in the face of this written authorization, Brooks argues that his

conversations with Agent Snyder implicitly limited the scope of the search. On

this record, however, Snyder’s actual search does not appear to exceed the scope

of the disk search he orally described to Brooks. As counsel explained at oral

argument, the pre-search disk searches the computer hard drive for image files,

then displays them for review. An officer must then review those images for

pornographic material. What Agent Snyder did manually was the functional

equivalent of employing the pre-search disk—he ran a search for image files,
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them viewed them to determine whether they contained child pornography. We

see no discernable difference between the search to which Brooks says he

consented and the search that actually occurred, and Brooks has not provided us a

reason to believe otherwise.

Brooks counters these facts by arguing that our precedent requires a narrow

construction of the scope of consent. See, e.g., United States v. Elliott , 107 F.3d

810 (10th Cir. 1997). In Elliott , the officer requested permission to “look through

the trunk [of the defendant’s car] and see what you got in there.” The officer

further stated that he did not “want to look through each item” and merely wanted

to ascertain how the bags were “packed” or “packaged” in the trunk. Id. at 815. 

After the defendant consented to the search as described by the officer, the officer

proceeded to open a zipped bag in the trunk. Inside the bag he discovered

marijuana. This court held that because the officer “expressly and narrowly

limited the scope of his request, it is apparent that [he] exceeded the scope of [the

defendant’s consent] and thereby violated her Fourth Amendment rights by

unzipping and looking inside one of the bags in the trunk.” Id. at 815-16. 

Unlike the plaintiff in Elliott , who could show the actual search differed

substantially from the proffered search, Brooks is unable to supply a reason why

Snyder’s manual search process exceeded the permission granted. Snyder stayed

well within the boundaries of the search that had been authorized, searching only
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for image files. His manual search was no more invasive than the automated one

he described to Brooks; Snyder viewed no text files, opened no additional

electronic folders, and completed no searches that the disk would not have

completed. Once Snyder viewed several images and confirmed the presence of

pornography, he turned off the computer. After examining the record, we cannot

conclude Snyder’s search differed substantially from the search that would have

transpired had he used the pre-search disk; Snyder simply entered certain

commands manually instead of allowing this work to be done by a preprogrammed disk. Accordingly, these circumstances can hardly be compared to

the situation in Elliott , where, after explicitly stating they would not do so,

officers opened zipped bags and searched them. 

Our conclusion is bolstered by the circumstances surrounding this search. 

In this case, officers scrupulously sought warrants every step of the way and were

careful not to overstep the boundaries of Brooks’s initial consent to conduct the

pre-search. Even before Snyder began the pre-search, officers were already in the

process of seeking a warrant to seize Brooks’s computers. More importantly,

Snyder viewed only a few images on Brooks’s computer before turning off the

computer, seeking the advice of counsel, and then obtaining the forensic search

warrant from a neutral magistrate for the completion of the search.
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Accordingly, we conclude the search was within the scope of Brooks’s

consent, and the district court did not commit plain error in denying Brooks’s

motion to suppress on this ground.

B. The Computer Search Warrant

The Fourth Amendment requires that a search warrant “describe the things

to be seized with sufficient particularity to prevent a general exploratory

rummaging in a person’s belongings.” United States v. Campos, 221 F.3d 1143,

1147 (10th Cir. 2000). In considering whether the warrants at issue describe the

items to be seized with sufficient particularity, we accept the district court’s

factual findings unless clearly erroneous. However, the district court’s ultimate

determination of sufficient particularity is reviewed de novo. United States v.

Leary, 846 F.2d 592 (10th Cir. 1988). 

“The manifest purpose of [the] particularity requirement was to prevent

general searches. By limiting the authorization to search the specific areas . . .

the requirement ensures that the search will be carefully tailored to its

justifications, and will not take on the character of the wide-ranging exploratory

searches the Framers intended to prohibit.” United States v. Riccardi, 405 F.3d

852, 863 (10th Cir. 2005) (citing Maryland v. Garrison, 480 U.S. 79, 84 (1987);

Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir. 1985); Campos, 221 F.3d at

1147)).
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Brooks argues that the third warrant, which authorized a laboratory search

of his computer equipment, was not sufficiently particular for two reasons. First,

he argues it failed to describe a specific search methodology for use on the

computer. Second, he claims it allowed investigators to search for and view text

files that may not have included pornographic images. 

Search Methodology. At the outset, we disagree with Brooks that the

government was required to describe its specific search methodology. This court

has never required warrants to contain a particularized computer search strategy. 

We have simply held that officers must describe with particularity the objects of

their search. Recognizing the difficulties inherent in computer searches, in some

circumstances, we have suggested that “law enforcement must engage in the

intermediate step of sorting various types of documents and then only search the

ones specified in a warrant.” United States v. Carey, 172 F.3d 1268, 1275 (10th

Cir. 1999). As we explained in Carey, “[w]here officers come across relevant

documents so intermingled with irrelevant documents that they cannot feasibly be

sorted at the site, the officers may seal or hold the documents pending approval

by a magistrate . . . [t]he magistrate should then require officers to specify in a

warrant which type of files are sought.” Id. However, we have not required a

specific prior authorization along the lines suggested in Carey in every computer

search, see, e.g., Campos, 221 F.3d at 1147, nor has Brooks suggested how the

search in this case would have been different with a scripted search protocol.
1

 An interesting article on the challenges in this area can be found in Orin

Kerr, Searches and Seizures in a Digital World, 119 HARV. L. REV. (forthcoming

2006), available at http://ssrn.com/abstract=697541.

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The question of whether the nature of computer forensic searches lends

itself to predetermined search protocols is a difficult one. Given the numerous

ways information is stored on a computer, openly and surreptiously, a search can

be as much an art as a science. See Carey, 172 F.3d 1268 (10th Cir. 1999).1

 But

as we noted in Carey and Campos, courts will look to (1) the object of the search,

(2) the types of files that may reasonably contain those objects, and (3) whether

officers actually expand the scope of the search upon locating evidence of a

different crime. Both Carey and Campos involved warrants less detailed than the

one here. In Carey, while searching for drug crime evidence, officers came

across evidence of child pornography, and without authorization they expanded

their search of a computer for additional pornographic images. In Campos, the

warrant broadly allowed for the seizure of a computer without any specific reason

to believe it actually contained child pornography. The question in those cases

was whether additional authorization for an expanded search was necessary. They

do not, however, stand for the proposition that a warrant is per se overbroad if it

does not describe a specific search methodology.
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We thus find in the circumstances here that the warrant need not have

included a search protocol to satisfy the particularity requirement of the Fourth

Amendment.

Scope of Warrant. We now turn to Brooks’s second overbreadth argument. 

The warrant authorized officers to search two computers and a number of disks

“for evidence of child pornography,” including

“photographs, pictures, computer generated pictures or images,

depicting partially nude or nude images of prepubescent males and or

females engaged in sex acts,”. . . as well as “correspondence, including

printed or handwritten letters, electronic text files, emails and instant

messages[.]”

ROA, Vol. I at 62; Aplt. Br. Attach. B. While the warrant does not explicitly

instruct officers to look solely for those text files containing child pornography,

in context—and certainly in the view of the officers conducting the search—the

restrictions placed upon searches for image files also apply to the other types of

files. In other words, although the language of the warrant may, on first glance,

authorize a broad, unchanneled search through Brooks’s document files, as a

whole, its language more naturally instructs officers to search those files only for

evidence related to child pornography. In this light, the warrant should be—and

was—read by officers to implicitly place the same restriction ( i.e. , to locate child

pornography) on the scope of the entire search.

Brooks, however, argues that our cases have required “a more

particularized inquiry” than the warrant here describes. See Riccardi, 405 F.3d at
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862 (citing Campos , 221 F.3d at 1147). We disagree that this requirement has not

been met. In Riccardi , the warrant at issue in a child pornography investigation

authorized the “seizure” of the defendant’s computer and “all electronic and

magnetic media stored therein, together with all storage devises [sic], internal or

external to the computer or computer system.” Riccardi, 405 F.3d at 862. On

review, we found that “[b]y its terms, the warrant thus permitted the officers to

search for anything—from child pornography to tax returns to private

correspondence,” making it “precisely the kind of ‘wide-ranging exploratory

search that the Framers intended to prohibit.’” Id. at 863 (citing Maryland v.

Garrison , 480 U.S. 79, 84 (1987)).

Here, in contrast, we are faced with a warrant that authorized officers to

search through computer files for particular items specifically related to child

pornography. The warrant language is properly read to place the very same

subject matter restriction on the authorization to search Brooks’s text files as it

clearly placed on searches of his image files. Moreover, Brooks has made no

showing that officers improperly viewed text files, or expanded the scope of the

search for materials other than child pornography. While the warrant could have

been more artfully written, we are satisfied on these facts that it falls within the

particularity requirement of the Fourth Amendment. 

III. CONCLUSION

Accordingly, we AFFIRM the district court’s judgment.