## 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), O ffice of the Federal Public Defender, Salt Lake City, Utah for Defendant-Appell ant. Paul G. Amann, Special Assistant United States Atto rney (Paul M. Warner, United States Attorney, with him on the brief), Off ice of the United States Attorney, Salt Lake City, Utah for Plaintiff-Appell ee.

Before McCONNELL , McKAY , and TYMKOVICH , Circuit Judges.

TYMKOVICH , Circuit Judge.-2-

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 ple a of guilty to the charge of possession of child pornography and preserved his r ight to appeal the district court’s denial of his motion to suppress evidence f ound on his computer. In his appeal, Brooks argues (1) that officers exce eded 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 jurisd iction pursuant to 28 U.S.C. § 1291 and affirm.
I. BACKGROUND On August 26, 2003, Utah County law enforcement off icers responded to a report of an unattended child at Brooks’s house. When they arrived, they detected the odor of marijuana inside the residence. Therea fter, they obtained a search warrant (the “first warrant”) authorizing a search for items associated with marijuana use. During their search the following d ay they found a substantial amount of what appeared to be child pornography in one of Brooks’s garbage cans. After this discovery, officers obtained anot her warrant on August 27, 2003 (the “second warrant”) authorizing a search of Broo ks’s home, including any-3-

computer equipment, for child pornography. They al so contacted Special Agent Brian Snyder, an FBI agent with experience in child pornography and child exploitation investigations, to assist with their s earch. 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 “ass ume[d] that there [was] possibly more child pornography on the [home] computer[.]” ROA, Vol. IV at 11. Accordingly, upon his arrival Agent Snyder req uested permission from Brooks to search Brooks’s computer. Snyder explain ed to Brooks that the search would involve inserting a “pre-search” disk into hi s computer. Although the record is unclear as to precisely how the disk func tioned, 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 t he images included child pornography. Agent Snyder further explained to Bro oks that the disk would not search for text files, but would search for and dis play only image files. Brooks told Snyder that he had “nothing to hide” an d 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-s earch for child pornography” of his computer tower; (2) had been advised of his right to refuse consent; (3)-4-

gave his consent voluntarily; and (4) authorized ag ents to take any items they determined were related to their investigation. RO A, Vol. IV, Exhibit F. After obtaining Brooks’s consent to search the comp uter, 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, th e 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 p rompted 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 bo ys 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. The y subsequently obtained a third warrant authorizing a search of three computers, tw elve compact disks, and seven diskettes located at Brooks’s residence. This fore nsic search was carried out at a police laboratory. Brooks later moved to suppress the pornographic ima ges found during (1) Snyder’s manual search, and (2) the laboratory’s fo rensic search. The district-5-

court denied the motion. Brooks then entered a con ditional guilty plea on May 3, 2004, and on October 14, 2004, the United States Di strict Court for the District of Utah sentenced him to 88 months in prison and 156 m onths 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 thanthose explained to him in the course of obtaining written consent; and (B) th at 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 mus t 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 revie w 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, 227-6-

(1973). However, “[t]he scope of a search . . . i s 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 “objecti ve reasonableness” standard to the scope of consent, asking what “would the typica l 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 Broo ks never explicitly argued to the district court that the officers’ sea rch exceeded his consent. His only argument to the district court was that his co nsent to the home seach was not knowingly and voluntarily given. Accordingly, sinc e 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 co mputer 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 therefor e limited to the specific software-driven pre-search Snyder initially describ ed, and the images obtained during Snyder’s subsequent manual search should hav e been suppressed. We-7-

disagree that the search exceeded an objectively re asonable interpretation of Brooks’s consent for several reasons. First, the scope of Snyder’s search did not, in fac t, exceed the permission Brooks granted in his written consent. In the cons ent 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.” RO A, Vol. I, Exhibit F. While the officers intended to use a computer tool to ass ist the search, the actual manual search did nothing more than what Brooks had author ized. The terminology in the consent form regarding a “pre-search” is somewh at confusing. What is not confusing is the fact, as determined by the distric t court, that Brooks understood his computer was to be searched for pornographic im ages 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 n ot 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 computerhard drive for image files, then displays them for review. An officer must the n review those images for pornographic material. What Agent Snyder did manua lly was the functional equivalent of employing the pre-search disk—he ran a search for image files,-8-

them viewed them to determine whether they containe d child pornography. We see no discernable difference between the search to which Brooks says he consented and the search that actually occurred, an d Brooks has not provided us a reason to believe otherwise. Brooks counters these facts by arguing that our pre cedent 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 throug h 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 desc ribed by the officer, the officer proceeded to open a zipped bag in the trunk. Insid e the bag he discovered marijuana. This court held that because the office r “expressly and narrowly limited the scope of his request, it is apparent th at [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 permiss ion granted. Snyder stayed well within the boundaries of the search that had b een authorized, searching only-9-

for image files. His manual search was no more inv asive 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 c onfirmed the presence of pornography, he turned off the computer. After exa mining the record, we cannot conclude Snyder’s search differed substantially fro m 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 su rrounding 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-searc h, officers were already in the process of seeking a warrant to seize Brooks’s comp uters. More importantly, Snyder viewed only a few images on Brooks’s compute r before turning off the computer, seeking the advice of counsel, and then o btaining the forensic search warrant from a neutral magistrate for the completio n of the search.-10-

Accordingly, we conclude the search was within the scope of Brooks’s consent, and the district court did not commit plai n 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 preve nt 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, w e accept the district court’s factual findings unless clearly erroneous. However , the district court’s ultimate determination of sufficient particularity is review ed de novo. United States v. Leary, 846 F.2d 592 (10th Cir. 1988). “The manifest purpose of [the] particularity requir ement was to prevent general searches. By limiting the authorization to search the specific areas . . . the requirement ensures that the search will be car efully 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)).-11-

Brooks argues that the third warrant, which authori zed a laboratory search of his computer equipment, was not sufficiently particular for two reasons. First, he argues it failed to describe a specific search m ethodology for use on the computer. Second, he claims it allowed investigato rs to search for and view text files that may not have included pornographic image s. Search Methodology. At the outset, we disagree with Brooks that the government was required to describe its specific se arch methodology. This court has never required warrants to contain a particular ized computer search strategy. We have simply held that officers must describe wit h particularity the objects of their search . Recognizing the difficulties inherent in compute r searches, in some circumstances, we have suggested that “law enforcem ent must engage in the intermediate step of sorting various types of docum ents 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 t he 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 sugges ted in Careyin every computer search, see, e.g., Campos , 221 F.3d at 1147, nor has Brooks suggested how th e search in this case would have been different with a scripted search protocol.1 An interesting article on the challenges in this a rea can be found in Orin

Kerr, Searches and Seizures in a Digital World, 119 H ARV
. L. REV . (forthcoming 2006), available at http://ssrn.com/abstract=697541

. -12- The question of whether the nature of computer fore nsic searches lends itself to predetermined search protocols is a diffi cult 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 Careyand 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 up on locating evidence of a different crime. Both Careyand 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 pornograp hic images. In Campos , the warrant broadly allowed for the seizure of a comput er without any specific reason to believe it actually contained child pornography. The question in those cases was whether additional authorization for an expande d search was necessary. They do not, however, stand for the proposition that a w arrant is per se overbroad if it does not describe a specific search methodology.-13-

We thus find in the circumstances here that the war rant need not have included a search protocol to satisfy the particula rity requirement of the Fourth Amendment. Scope of Warrant. We now turn to Brooks’s second overbreadth argument

. The warrant authorized officers to search two compu ters 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 prepubes cent males and or females engaged in sex acts,”. . . as well as “corr espondence, including printed or handwritten letters, electronic text fil es, 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 fil es containing child pornography, in context—and certainly in the view of the officer s conducting the search—the restrictions placed upon searches for image files a lso apply to the other types of files. In other words, although the language of th e warrant may, on first glance, authorize a broad, unchanneled search through Brook s’s document files, as a whole, its language more naturally instructs office rs 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 require d “a more particularized inquiry” than the warrant here describes. See Riccardi , 405 F.3d at-14-

862 (citing Campos , 221 F.3d at 1147). We disagree that this require ment has not been met. In Riccardi , the warrant at issue in a child pornography inves tigation authorized the “seizure” of the defendant’s compute r and “all electronic and magnetic media stored therein, together with all st orage 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 r eturns 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 thatauthorized officers to search through computer files for particular items specifically related to child pornography. The warrant language is properly readto 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. Mor eover, 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 the se facts that it falls within the particularity requirement of the Fourth Amendment.
III. CONCLUSION Accordingly, we AFFIRM the district court’s judgment.