                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 14-4667
                                    _____________

                          UNITED STATES OF AMERICA

                                           v.

                                JOSEPH TOWNSEND,
                                                  Appellant
                                 ________________

                     Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                    (D.C. Criminal Action No. 2-13-cr-00625-001)
                      District Judge: Honorable Stewart Dalzell
                                  ________________

                          Argued on November 3, 2015
       Before: McKEE, Chief Judge, JORDAN, and VANASKIE, Circuit Judges

                             (Opinion filed: May 16, 2016)


Keith M. Donoghue, Esq. (Argued)
Federal Community Defender Office for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
                           Counsel for Appellant

Emily McKillip, Esq.,       (Argued)
Robert A. Zauzmer, Esq.
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
                            Counsel for Appellee
                                    ________________

                                        OPINION*
                                    ________________
McKEE, Chief Judge.

       Joseph Townsend appeals from the district court’s denial of his motion to suppress

child pornography1 obtained during a search of his computer and related storage media

that was conducted pursuant to a search warrant. He challenges only the execution of the

warrant. He also argues that the sentences that were imposed on two of the five counts of

conviction exceed the statutory maximum. For the following reasons, we will affirm in

part and vacate in part.2

                                             I.

       Because we are writing only for the parties who are familiar with the underlying

facts, we need not elaborate the factual or procedural history of this case here.

       We “review[] the District Court’s denial of a motion to suppress for clear error as

to the underlying factual findings and exercise[] plenary review of the District Court’s

application of the law to those facts.”3 Because Townsend did not object to the sentences

imposed, we review them for plain error.4




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  See 18 U.S.C. §§ 2251(a), (e); 2252(a)(2); 2252(a)(4)(B).
2
  We have jurisdiction under 28 U.S.C. § 1291.
3
  United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002).
4
  See United States v. Vazquez, 271 F.3d 93, 99 (3d Cir. 2001) (en banc).
                                              2
        The discretion of officers conducting electronic searches is subject to the Fourth

Amendment’s general protections against unreasonable searches and seizures.5 “[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 seizures.’”6 The defendant bears the burden

of establishing that his Fourth Amendment rights were violated by the challenged search

or seizure.7

       Townsend relies in large part upon the decision of the United States Court of

Appeals for the Tenth Circuit in United States v. Burgess8 in arguing that the agents here

should have used the “hashing” function of the forensic software they employed to search

his computer rather than the “gallery view” function. A “hash” is an image or video

file’s unique digital signature, and hashing is a common way to detect known images of

child pornography. The “gallery view” limits what the agent can see to image and video

files, displaying them as thumbnails.

       However, the record in this case does not allow us to conclude that the search of

Townsend’s digital storage devices was inconsistent with the concerns expressed in

Burgess. As an initial matter, the Burgess court did not disapprove an agent’s use of the

gallery view to preview computer files during a search.9 Moreover, in United States v.


5
  Dalia v. United States, 441 U.S. 238, 257 (1979).
6
  United States v. Stabile, 633 F.3d 219 (3d Cir. 2011) (quoting United States v.
Jacobsen, 466 U.S. 109, 124 (1984)).
7
  Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978).
8
  576 F.3d 1078 (10th Cir. 2009).
9
  See id. at 1093-95.
                                             3
Stabile, we concluded that searches of computer drives are circumscribed by objective

reasonableness rather than formulaic search protocol.10 Here, the search warrant

explicitly references images of children engaged in sexually explicit conduct. In

addition, the agent who conducted the search, Agent Munjone, explained that he used the

EnCase forensic software in a manner reasonably calculated to disclose files related to

child pornography while minimizing the likelihood of unreasonably viewing files

containing personal information that did not fall within the scope of the warrant.11

Moreover, by using the gallery view, the agent was able to limit his search to images

only, automatically screening out text files and PDFs.12 Accordingly, the district court

did not err in denying Townsend’s motion to suppress the evidence uncovered during the

onsite preview of Townsend’s electronic data storage devices.13

       Townsend next argues that the three weeks Agent Munjone spent “looking and

poking around” his electronic devices was an impermissible general search because the

agent made no effort to avoid looking in certain types of files, such as text files,14 and



10
   633 F.3d at 239.
11
   App. at 108-09.
12
   In any case, the scope of the warrant -- which Townsend does not contest --
encompassed not only “[i]mages of child pornography ... or child erotica in any format,
but also stories and text-based files regarding the sexual exploitation of children and
records, documents or other materials” related to the sexual exploitation of minors ...
App. at 31 (emphasis added). Thus, in this case the search clearly did not exceed the
scope of the warrant.
13
   Although much of the court’s discussion in Burgess was addressed to the
reasonableness of off-site electronic files, we believe that the underlying concerns are
equally helpful in determining the reasonableness of the search of Townsend’s computer
files at his residence.
14
   Appellant’s Br. at 10, 34-35.
                                              4
that unrestricted searches eviscerate the Fourth Amendment protections in the digital

age.15

         In Stabile, we explained why it is simply not practical to restrict searches of

computer files to on-site searches.16 Here, Agent Munjone explained the necessity for

taking Townsend’s computer and drives to a location where they could be properly

examined. As we have already noted, he also explained that a search protocol was

employed that was reasonably calculated to uncover suspect files while minimizing the

likelihood of opening personal files unrelated to the investigation into Townsend’s

possession and distribution of child pornography.17 Townsend’s argument to the contrary

asks us to ignore the fact that he sent images of child pornography with innocuous or

nonsensical file names, and the onsite preview of his storage devices disclosed

compressed files containing child pornography that had innocuous file names and titles.

         Thus, although we agree with Townsend’s argument that “[f]acially innocuous

material may only be searched to the extent required by the circumstances of the




15
   Appellant’s Br. at 5.
16
   Stabile, 633 F.3d at 234 (internal citations omitted). See also United States v. Upham,
168 F.3d 532, 535 (1st Cir. 1999) (the “narrowest definable search and seizure reasonably
likely to obtain” the evidence described in a warrant is, in most instances, “the seizure
and subsequent off-premises search of the computer and all available disks”); United
States v. Hay, 231 F.3d 630, 637 (9th Cir. 2000) (seizure of entire computer reasonable
because affidavit “justified taking the entire system off site because of the time, expertise,
and controlled environment required for a proper analysis”); United States v. Grimmett,
439 F.3d 1263, 1269 (10th Cir. 2006) (“we have adopted a somewhat forgiving stance
when faced with a ‘particularity’ challenge to a warrant authorizing the seizure of
computers”).
17
   See United States v. Schesso, 730 F.3d 1040, 1046 (9th Cir. 2013).
                                                5
case[,]’”18 this record establishes that the examination of Townsend’s electronic data was

proper.19 The district court therefore correctly denied Townsend’s motion to suppress

evidence arising from the three-week review of his electronic data storage devices.

       Finally, we turn to Townsend’s appeal of the sentence imposed on two of the

counts of conviction. Although he did not object when the sentence was imposed, a

sentence that exceeds the statutory maximum is an illegal sentence and its imposition

obviously constitutes plain error.20 Here, Counts one through three charged production of

child pornography in violation of 18 U.S.C. § 2251(a), which carries a maximum

sentence of 360 months.21 Count four was distribution of child pornography in violation

of 18 U.S.C. § 2252(a)(2), which carries a maximum sentence of 240 months if the

defendant has no previous convictions for certain offenses.22 Townsend has no prior

criminal history. Count five charged possession of child pornography depicting minors

of unspecified age, in violation of 18 U.S.C. § 2252(a)(4)(B), for which the statutory

maximum is 120 months.23

       However, the district sentenced Townsend to 262 months imprisonment on each of

the five counts, to run concurrently. This sentence clearly exceeds the statutory

maximum for counts four and five. However, since the sentence of 262 month


18
   Appellant’s Br. at 31.
19
   In fact, the circumstances here are very similar to the circumstances that supported an
almost identical search of computer files in Schesso. See supra at n.16.
20
   United States v. Lewis, 660 F.3d 189, 192 (3d Cir. 2011).
21
   18 U.S.C. § 2251(e)
22
   18 U.S.C. § 2252(b)(1).
23
   18 U.S.C. § 2252(b)(2).

                                             6
imprisonment is within the statutory maximum for the remaining counts, Townsend’s

total sentence does not change.

                                            IV.

       For the foregoing reasons, we will affirm the district court’s judgment in part,

vacate it in part, and remand to allow the district court to enter a judgment of sentence

consistent with this opinion.




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