                                                                              FILED
                            NOT FOR PUBLICATION                                APR 27 2011

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-30119

              Plaintiff - Appellant,             D.C. No. 9:09-cr-00054-DWM-1

  v.
                                                 MEMORANDUM*
GIOVANNI DELAWARE BLOOD,

              Defendant - Appellee.


                    Appeal from the United States District Court
                            for the District of Montana
                    Donald W. Molloy, District Judge, Presiding

                       Argued and Submitted April 13, 2011
                               Seattle, Washington

Before: BEEZER, KLEINFELD, and SILVERMAN, Circuit Judges.

       The United States appeals interlocutorily from the district court’s order

suppressing evidence of child pornography contained on Giovanni Delaware

Blood’s laptop computer in a case in which Blood is charged with receipt of child




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
pornography in violation of 18 U.S.C. § 2252A(a)(2). We have jurisdiction under

18 U.S.C. § 3731. We reverse.

      Generally, law enforcement officers must have a warrant to seize personal

property; however, officers may seize a container without a warrant if they “have

probable cause to believe that [it] holds contraband or evidence of a crime, . . .

pending issuance of a warrant to examine its contents, if the exigencies of the

circumstances demand it or some other recognized exception to the warrant

requirement is present.” United States v. Place, 462 U.S. 696, 701 (1983).

      A laptop computer is entitled to the same Fourth Amendment protection as

other closed containers and personal effects. See United States v. Arnold, 533 F.3d

1003, 1009-10 (9th Cir. 2008). To justify the warrantless seizure of a laptop, the

government bears the burden of proving both (1) the existence of “‘circumstances

that would cause a reasonable person to believe that [a seizure] was necessary to

prevent . . . the destruction of relevant evidence . . . or some other consequence

improperly frustrating legitimate law enforcement efforts,’” United States v.

Brooks, 367 F.3d 1128, 1135 (9th Cir. 2004) (quoting United States v. McConney,

728 F.2d 1195, 1199 (9th Cir. 1984) (en banc)), and (2) that a warrant “could not

have been obtained in time,” United States v. Struckman, 603 F.3d 731, 738 (9th

Cir. 2010) (internal quotation marks omitted) (quoting United States v. Good, 780

F.2d 773, 775 (9th Cir. 1986)).
      Blood admitted to the federal agents that his laptop contained child

pornography files and that he had, in the past, deleted child pornography files from

his computer because he knew them to be illegal. The fragile and easily

destructible nature of the digital evidence at issue raises undeniable concerns

regarding “loss or possible destruction of contraband by the owner.” United States

v. Licata, 761 F.2d 537, 541 (9th Cir. 1985). It would be unreasonable for federal

agents to send a suspect out the door with a bag of heroin and an instruction not to

destroy or tamper with the evidence while they seek a telephonic warrant. It would

be similarly unreasonable to expect agents to do so with other such easily

destructible contraband, including the digital images of child pornography in this

case. “The usual risk of loss of contraband left unsecured and the overall

circumstances in this case constitute exigent circumstances sufficient to justify the

warrantless intrusion on [Blood’s] possessory interest in the [laptop].” Id. at 544.

      The district court reasoned that the agents had time to secure a warrant and

were not compelled to act by exigent circumstances because the digital evidence at

issue was safe from destruction, the laptop having been “secured” in the agents’

possession. However, this reasoning begs the question. If the evidence at issue is

secure from destruction only because it has been seized by government agents, it

follows that the seizure is justified by the exigencies of the situation.
      Because the seizure of the laptop did not violate the Fourth Amendment and

there are no independent grounds upon which to find Blood’s consent to search

vitiated, we hold that the district court’s invalidation of Blood’s consent to search

the laptop as “fruit of the poisonous tree” was also erroneous.

      The district court’s order granting Blood’s motion to suppress is

REVERSED and the case is REMANDED for further proceedings consistent with

this memorandum disposition.
