United States v. Alexander (574 F.3d 484, 2009)

SHEPHERD, Circuit Judge.

Michael Alexander appeals the district court’s denial of his motion to suppress evidence that he received and possessed child pornography in violation of 18 U.S.C. § 2252(a)(2) and 2252(a)(4). We affirm.

I.

On October 14, 2006, a 31-year-old woman, JC, contacted the Kansas City, Missouri, police department (“KCPD”) and informed them that the appellant, Michael Alexander, had secretly videotaped her and other women while engaged in consensual sexual activity with himself. JC stated that she learned about the secret videotapes from Alexander’s then-girlfriend, ES, who discovered the tapes and video equipment in Alexander’s home. On the next day, Detective Catherine Johnson took a written statement from ES concerning what she had discovered. ES told Det. Johnson that, after she discovered a hidden camera in Alexander’s bedroom, she watched several videocassettes and DVDs located in his armoire. The VHS tapes contained depictions of women, including JC, having sex in the bedroom and naked in the backyard in and around Alexander’s hot tub. ES also informed Det. Johnson that she watched some DVDs that contained images of the hot tub without anyone in it. ES subsequently found another camera hidden above Alexander’s hot tub.

Based on the information provided by JC and ES, police obtained a warrant to search Alexander’s residence for evidence of invasion of privacy. The warrant included within the items to be searched “[djigital storage devices consisting of all such equipment designed to collect, analyze, create, display, convert, conceal, or transmit electronic, magnetic, optical, or similar computer impulses or data, to include but ... not limited to desktop/laptop/handheld computers.... ” It also included storage devices such as hard drives and floppy disks, “still photos, negatives, videotapes, DVDs, films, undeveloped film” and any documents relating to the victims.

During the execution of the search warrant, police arrested Alexander. In the course of the search, police found an email printout confirming a subscription to a child pornography website in an envelope in a desk in Alexander’s office. Images of child pornography, some of which contained addresses for child pornography websites printed on them, were found in Alexander’s attic. Additionally, police seized a laptop computer, a digital camera, TVs, and VCRs.

Alexander was taken to the police station, where he waived his Miranda rights. After being shown the images found in his attic, he admitted that they were his but claimed that he viewed them as art and not pornography. Alexander acknowledged, however, that most people would not view the images in the same way.

Police then gave the computer and digital camera to Detective Brian Roach, the computer forensic analyst for the KCPD, to review the items for invasion-of-privacy violations. Det. Roach advised that, if he discovered child pornography, he would ask the detectives to get a second search warrant. Early during his search, Det. Roach discovered child pornography, stopped his review, and directed the other officers to get a second search warrant. The second warrant authorized the search of the already seized items for child pornography and authorized a second search of Alexander’s home for evidence of the same. During the second search of Alexander’s residence, police seized various items, including additional VHS tapes and photographs.

Alexander was indicted on eight counts of receiving child pornography over the Internet in violation of 18 U.S.C. § 2252(a)(2) and one count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4). He then moved to suppress the evidence on various grounds. First, he argued that Missouri’s invasion-of-privacy statute does not prohibit the secret recording of a sexual encounter in which the recording party is a participant. Thus, according to Alexander’s argument, if the magistrate had been informed by Det. Johnson that Alexander was present in some of the recordings discovered by ES, the magistrate would have known that no crime had been committed and that police lacked probable cause to search his home. Second, Alexander argued that the first warrant was overbroad because it permitted the seizure of all forms of electronic media as well as all photographs. Third, he contended that police unconstitutionally expanded the scope of their search after the discovery of child pornography during the execution of the first search warrant. Fourth, he claimed that the warrant was so defective that no officer could have in good faith relied on the warrant. Finally, he sought suppression of the items seized pursuant to the second search warrant and suppression of his statements to police as fruits of the poisonous tree. The district court rejected all of these arguments. After entering a conditional guilty plea reserving his right to appeal the denial of his suppression motion, the court sentenced him to 72 months imprisonment.

II.