                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                             May 6, 2009
                             No. 08-10987                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                D. C. Docket No. 06-00004-CR-T-26-TGW

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

DAVID MIRANDA,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                              (May 6, 2009)


Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
      David Miranda appeals his convictions for possession of child pornography,

in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2). The district court granted

Miranda’s motion to suppress evidence pertaining to child pornography as to his

computer tower but denied it with regard to his laptop computer, external hard

drive, and uninstalled hard drive.

      We review “a district court’s denial of a motion to suppress [as] a mixed

question of law and fact.” United States v. Smith, 459 F.3d 1276, 1290 (11th Cir.

2006). We review the district court’s findings of fact for clear error, construing the

facts in the light most favorable to the prevailing party below, and its application of

the law de novo. Id. The evidence brought forth at trial can be considered in

determining whether the denial of a motion to suppress constitutes reversible error.

United States v. Newsome, 475 F.3d 1221, 1224 (11th Cir.), cert. denied, 128 S. Ct.

218 (2007).

                                           I.

      On appeal, Miranda argues the police violated the Fourth Amendment’s

Warrant Clause by searching his computer for information outside the scope of the

warrant, which was limited to searching for evidence of counterfeit software. He

relies on United States v. Carey, 172 F.3d 1268 (10th Cir. 1999), to contend that

the pornographic images on his computer were in closed files, and thus, were not



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within plain view. Further, Miranda asserts: (1) the police had a warrant to search

for something other than child pornography; (2) the searching officer noticed files

with sexually suggestive names, unrelated to the reason for initiating the search;

and (3) the officer abandoned his original search to open additional files, without

obtaining a second search warrant, based on a reasonable suspicion that the

additional files might contain child pornography.

      Pursuant to the Fourth Amendment, search warrants must “particularly

describe the place to be searched, and the persons or things to be seized” in order

to “protect individuals from being subjected to general, exploratory searches.”

United States v. Khanani, 502 F.3d 1281, 1289 (11th Cir. 2007) (internal

quotations omitted). However, the particularity requirement of the Fourth

Amendment must be applied with a practical margin of flexibility, taking into

account the nature of the items to be seized and the complexity of the case under

investigation. See United States v. Wuagneux, 683 F.2d 1343, 1349 (11th Cir.

1982). When a warrant authorizes the seizure of documents, “an officer acting

pursuant to such a warrant is entitled to examine any document he discovers,” in

order to “to perceive the relevance of the documents to the crime.” United States v.

Slocum, 708 F.2d 587, 604 (11th Cir. 1983). Moreover, “[i]n searches for papers,

it is certain that some innocuous documents will be examined, at least cursorily, in



                                          3
order to determine whether they are, in fact, among those papers authorized to be

seized.” Andresen v. Maryland, 96 S. Ct. 2737, 2749 n. 11 (1976).

      “The ‘plain view’ doctrine permits a warrantless seizure where (1) an officer

is lawfully located in the place from which the seized object could be plainly

viewed and must have a lawful right of access to the object itself; and (2) the

incriminating character of the item is immediately apparent.” Smith, 459 F.3d at

1290 (citing Horton v. California, 110 S. Ct. 2301, 2308 (1990)). “An example of

the applicability of the ‘plain view’ doctrine is the situation in which the police

have a warrant to search a given area for specified objects, and in the course of the

search come across some other article of incriminating character.” Id. (internal

quotations omitted) (quoting Horton, 110 S. Ct. at 2307). Of course, the officers

“must have probable cause to believe the object in plain view is contraband.” Id.

      In this case, the searching officer was searching Miranda’s hard drives

pursuant to a warrant. In doing so, the officer had a lawful right to view each file

to determine whether or not it was evidence of counterfeiting crimes. See Slocum,

708 F.2d at 604. The child pornography files were intermingled with

counterfeiting files, so they were in plain view. Once the officer saw child

pornography on Miranda’s hard drives, its incriminating character was

immediately apparent, so the officer could seize the files. See Smith, 459 F.3d at



                                           4
1290. This is distinguishable from the child pornography found on Miranda’s

computer tower, which the district court suppressed because it was found during a

search conducted solely for the purpose of finding child pornography, outside the

scope of the counterfeiting warrant. For these reasons, the district court did not err

in denying Miranda’s motion to suppress the child pornography found on his

laptop computer, external hard drive, and uninstalled hard drive.

                                          II.

      Miranda also argues the district court erred in refusing to exclude time-

stamp evidence obtained from the external hard drive and uninstalled hard drive.

Specifically, he argues this evidence was “fruit of the poisonous tree” because the

information originated from the computer tower’s internal timing mechanism, and

evidence pertaining to the computer tower was suppressed by the district court.

      In addition to the illegally obtained evidence, a court may suppress

incriminating evidence that was derived from that primary evidence as “fruit of the

poisonous tree.” United States v. Terzado-Madruga, 897 F.2d 1099, 1112-13 (11th

Cir. 1990). When determining whether evidence is “fruit of the poisonous tree”

and therefore must be excluded, the relevant question is “whether, granting

establishment of the primary illegality, the evidence to which instant objection is

made has been come at by exploitation of that illegality or instead by means



                                           5
sufficiently distinguishable to be purged of the primary taint.” Wong Sun v. United

States, 83 S. Ct. 407, 417 (1963) (internal quotations omitted). The government

can establish that evidence has been “purged of the primary taint” by showing that

the evidence was discovered from an independent source, would have been

discovered inevitably by lawful means, or was so attenuated from the illegality “as

to dissipate the taint” of the unlawful conduct. Terzado-Madruga, 897 F.2d at

1113. Under the “independent source” doctrine, the challenged evidence is

admissible if it was obtained from a lawful source, independent of the illegal

conduct. Id.

      Here, the district court granted Miranda’s motion to suppress child

pornography found on his computer tower but declined to suppress the actual

computer tower, as it was lawfully seized pursuant to a search warrant. The time-

stamp evidence was unrelated to the suppressed child pornography because it was

derived from the internal timing mechanism in the computer tower, a lawful

source. For these reasons, the district court did not err by denying Miranda’s

motion to suppress the time-stamp evidence.

      AFFIRMED.




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