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United States of America v. Gary Farlow

June 1, 2012



The opinion of the court was delivered by: Thompson, Circuit Judge.

Before Torruella, Boudin, and Thompson, Circuit Judges.

After a district judge denied Gary Farlow's motion to suppress the fruits of an allegedly illegal search of his home computer, Farlow pled guilty to one count of Unlawful Transportation of Child Pornography, 18 U.S.C. § 2252A(a)(1). His guilty plea was conditioned on his ability to bring this appeal broadly challenging the denial of his motion to suppress. Farlow's appeal raises some interesting arguments, but in the end they cannot carry the day: for the reasons that follow, we affirm the denial of his motion to suppress, and his conviction therefore stands.

From February through April 2007, a person using the AOL screen name "FarlowMeCasa" contacted a putative 14-year-old AOL user who was actually Detective Peter Badalucco, a member of New York's Nassau County Police Department. FarlowMeCasa sent several explicit messages to Badalucco, including proposals to meet in person for sex; Badalucco believed these messages constituted the crimes of disseminating indecent materials to minors in the first degree (N.Y. Penal Law § 235.22) and endangering the welfare of a child (N.Y. Penal Law § 260.10). Also, on March 8 FarlowMeCasa sent Badalucco an image of a bodybuilder, saying it was an image of himself; this act, though apparently not criminal, will be relevant later.

While FarlowMeCasa was sending these messages, Badalucco was looking into the person behind the screen name. He subpoenaed AOL for FarlowMeCasa's subscriber information, and AOL informed him that the account belonged to Gary Farlow of Litchfield, Maine. On April 13, Badalucco contacted Maine-based Detective Laurie Northrup to obtain and execute a search warrant of Farlow's residence. Northrup determined that a Gary Farlow, born in 1945, indeed resided in Litchfield, Maine. She also determined that Farlow had been convicted of public lewdness in 1974, disorderly conduct in 1997 (a crime that had originally been charged as indecent conduct), and indecent conduct in 2002.

Based on Farlow's criminal history and his alleged attempts to solicit sex from Badalucco (who, again, had presented himself as a 14-year-old), Northrup prepared an application for a search warrant. A Maine state judge signed off on the warrant, authorizing police to search Farlow's home for the following:

1) Computers and computer equipment (such as monitors, keyboards, compact disk [sic] drives, zip disk drives, USB drives, digital cameras, MP3 players, etc.), electronic data storage devices (such as hard drives, floppy disks, zip disks, compact disks [sic], digital video disks [sic], memory sticks, flash memory cards, etc.), software, and written materials relating to the operation of the computer (such as names of online accounts, screen names, passwords, manuals, computer reference books, guides and notes).

2) Computer records or data, whether in printed or electronic form, that are evidence of the crimes of dissemination of indecent materials to minors or endangering the welfare of a child, including but not limited to records of Internet use (such as Internet browser history, search engine history, temporary Internet files, etc.), electronic communications (such as email and email attachments, records or data pertaining to online chat room communications, file transfer logs, text messages, writings created on word processing software or notepads, etc.), stored data files and folders, graphic visual images (such as photographs, movie clips and scanned images), software or programs for file sharing or peer-to-peer networks, personal calendars or diaries, and any records or data that demonstrate the identity of the person(s) who exercised dominion or control over the computer or its contents.

The warrant specified that "all of" this material "constitute[s] evidence of the" New-York-state crimes noted above.

On April 23, 2007, the Maine State Police executed the search warrant, appearing at Farlow's home while he was chatting online with Badalucco. The police seized Farlow's computer and "other electronic equipment." A police search of the computer using a forensic program to open image files in a gallery view*fn1 turned up some child pornography. The police sought and obtained a second warrant geared specifically toward this new discovery; a subsequent search yielded 3,366 images of child pornography, 95 emails sent from the computer with child pornography attachments, and 54 emails received with child pornography attachments. These images and emails led to Farlow's March 11, 2009 federal-court indictment on twelve child-pornography-related charges.

On August 4, 2009, Farlow moved to suppress the fruits of the search authorized by the first warrant (including the second warrant). He argued that the first warrant facially authorized an essentially unfettered search of his computer and therefore failed the Fourth Amendment's probable-cause and particularity requirements. Additionally, he argued, the actual search of his computer could not be saved by various exceptions to the warrant requirement, and even if the warrant had been valid the search had still exceeded the scope of its authorization. Finally, he requested an evidentiary hearing to explore the propriety of the warrant and search. The government responded that the warrant was in fact limited "to computers, computer equipment and computer records or data that are evidence of two specific crimes." Further, the government argued, the search itself "complied, as it must, with the terms of the warrant." In any event, it said, "images of child pornography unavoidably came within [the searching officer's] plain view" during a reasonable search for the bodybuilder image and were therefore exempted from the warrant requirement. And because both the warrant and the search were plainly legal, it said, there was no need for a hearing.

A magistrate judge tasked with reviewing Farlow's suppression motion penned a report and recommendation suggesting that the district court deny the motion. The magistrate judge determined that the warrant was founded on probable cause, it was sufficiently particular, it authorized the search as conducted, no hearing was necessary, and suppression was not appropriate. In a separate written opinion dated December 3, 2009, a district judge adopted and affirmed the magistrate judge's recommendation in full.

After several continuances, on November 9, 2010 Farlow entered a guilty plea on one count of the indictment, conditioned on his right to appeal the denial of his suppression motion. Following one more false start (Farlow moved to withdraw his plea; the motion was denied), Farlow was sentenced to ten years in prison followed by supervised release for life.

Farlow now appeals, arguing that we must suppress the evidence of child pornography because: (1) the warrant allowed a search that was overbroad given the narrow scope of the government's probable cause; (2) the computer search unlawfully exceeded even the broad scope of the warrant; (3) the plain-view and good-faith exceptions to the warrant requirement do not apply; and (4) even if we disagree with him on the first three issues, we should nevertheless remand for a hearing on the validity of the warrant and search. The government responds (among other things) that there was probable cause to believe Farlow had committed New-York-state indecency crimes, the warrant was tailored to allow police to search for evidence of those crimes, and the police reasonably executed such a search to produce that evidence given the ease of disguising computer files. In reviewing the denial of Farlow's suppression motion, we apply clear-error review to any factual ...

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