                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         APR 29 2003
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 02-4172
v.                                                   (District of Utah)
                                                  (D.C. No. 99-CR-627-C)
ROBERT WAYNE FISCUS,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before MURPHY, McWILLIAMS, and HARTZ, Circuit Judges.


I. INTRODUCTION

      Defendant Robert Fiscus appeals the district court’s denial of his motion to

suppress evidence obtained from the search of his home and the seizure of his

computer hard drive and diskettes on July 20, 1999, and his statements made to

law enforcement agents on October 13, 1999. This court has jurisdiction under 28

U.S.C. § 1291 and affirms.


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
II. BACKGROUND

      Fiscus was paroled from South Carolina state prison while serving a

sentence for committing a lewd act with a minor and for criminal sexual conduct

with a minor. Pursuant to his parole agreement, Fiscus agreed to “refrain from

the violation of any Federal, State, or Local penal law.”

      While still on parole, Fiscus moved to Utah, and the Utah Board of Pardons

agreed to supervise his parole. Fiscus signed an additional Parole Agreement

which authorized “a Parole Agent to search [Fiscus’] person, residence, vehicle,

or any other property under [Fiscus’] control, without a warrant, any time day or

night, upon reasonable suspicion as ascertained by a Parole Agent, to insure

compliance with the conditions of [his] parole.”

      On June 9, 1999, Herbert, a relative of Fiscus, telephoned the Orem Police

to report his observation of child pornography on Fiscus’ computer. Herbert

informed Officer Todd Moake that he had observed the child pornography while

repairing Fiscus’ computer and that he had erased it from the computer’s hard

drive. Herbert told Moake that Fiscus had asked him not to look at the files

which contained the images. Herbert also told Moake that he believed Fiscus had

downloaded the child pornography from the Internet and that Fiscus continued to

have access to the Internet. Finally, Herbert told Moake that he believed Fiscus




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was on parole for a sex crime. Moake contacted Fiscus’ parole officer, Jim

Mower.

      On July 20, 1999, Moake, Mower and Steve Bulkley, a computer forensics

specialist, went to Fiscus’ home to conduct a search. Mower told Fiscus that he

was doing a parole check and, specifically, that he was going to check Fiscus’

computer for inappropriate photographs. Fiscus told the officers that there were

embarrassing photographs on the computer. Mower asked Fiscus if he could also

search the rest of Fiscus’ home. Fiscus told Mower, “You’re not going to find

anything – anything there because everything is on the computer.”

      When the officers began to search Fiscus’ computer, they observed that

Fiscus’ computer wallpaper was a nude adult male. Bulkley attempted to view the

hard drive on Fiscus’ computer, but was unable to do so in Fiscus’ home without

destroying or corrupting the stored files. The officers also discovered an open

box of diskettes next to the computer. The first disk visible to the officers was

labeled in handwriting “Bob’s Pics.” Mower testified that he told Fiscus that he

was going to take his computer hard drive and diskettes so that they could be

searched.

      On July 21, 1999, Moake, Mower, and Bulkley reviewed the hard drive and

diskettes seized from Fiscus’ home. While no child pornography was found on

the hard drive, the officers discovered what they believed to be child pornography


                                         -3-
on the diskettes labeled “Bob’s Pics.” Moake contacted United States Customs

Agent Donald Daufenbach regarding the images found on Fiscus’ diskettes. On

July 22, 1999, Daufenbach viewed the images and determined that they contained

child pornography. Daufenbach again viewed the diskettes on September 2, 1999

to ensure that the images on the diskettes were consistent with the CD-ROM copy

made of the diskettes by Bulkley.

      On July 22, 1999, Mower asked Fiscus to agree to an extension of his

parole pending the investigation. Fiscus agreed and signed a document to that

effect. Fiscus’ parole, however, was not extended. His parole ended on July 26,

1999 without being revoked. In August 1999, Mower informed Fiscus that his

parole was terminated.

      On October 13, 1999, Moake, Daufenbach, and Mower went to Fiscus’

place of employment. Daufenbach asked Fiscus if the officers could meet with

him. Fiscus took the officers to a back room. Daufenbach questioned Fiscus for

about thirty minutes concerning the images found on the seized diskettes. During

the interview, Fiscus made incriminating statements.

      On November 19, 1999, Fiscus was charged with “knowing[] possess[ion]

[of] material . . . containing an image of child pornography, that was mailed,

shipped, and transported in interstate [or] foreign commerce, and which was

produced using materials that have been mailed, shipped, and transported in


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interstate and foreign commerce,” in violation of 18 U.S.C. § 2252A(a)(5)(B).

Fiscus moved to suppress the evidence obtained from the July 20, 1999 search of

his home and the seizure of his computer hard drive and diskettes and his October

13, 1999 statements to law enforcement agents. After an evidentiary hearing, the

district court determined that Fiscus consented to the search of his home and the

officers properly seized the computer hard drive and diskettes because they were

in plain view. Further, the district court determined that the subsequent search of

the computer diskettes was permissible because the initial “seizure was justified

by a reasonable belief that child pornography would be found” on the diskettes.

Finally, the district court concluded that Fiscus’ statements to Moake, Mower, and

Daufenbach were voluntarily made. Accordingly, the district court denied the

motion to suppress.

III. DISCUSSION

      Fiscus appeals the denial of his motion to suppress. This court views the

evidence in a light most favorable to the government and reviews the district

court’s findings of fact for clear error. United States v. Lewis, 71 F.3d 358, 360

(10th Cir. 1995). The district court’s determination that the search and seizure

was reasonable under the Fourth Amendment, however, is reviewed de novo. Id.




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      A. Search of Fiscus’ Home 1

      The Fourth Amendment generally requires law enforcement officers to

obtain a search warrant supported by probable cause prior to conducting a search

of a residence. United States v. Tucker, 305 F.3d 1193, 1199 (10th Cir. 2002).

Parolees who have assented to the search of their residence under a parole

agreement, however, have a diminished expectation of privacy. United States v.

Knights, 534 U.S. 112, 119-20 (2001). Further, the state’s interest in monitoring

the behavior of a parolee is heightened because of the increased likelihood that a

parolee will violate the law. Tucker, 305 F.3d at 1199. Therefore, an officer may

conduct a warrantless parole search pursuant to a search condition in a valid

parole agreement when they have a reasonable suspicion that the parolee is in

violation of the parole agreement. Id.

      Fiscus argues that all evidence taken from his home should be suppressed

because the July 20, 1999 search of his home was an invalid parole search.

Specifically, Fiscus argues that (1) the search was not based upon reasonable




      1
        The district court concluded that because Fiscus consented to the search of
his home, the search was lawful under the Fourth Amendment. This court,
however, may “affirm [the] district court decision on any grounds for which there
is a record sufficient to permit conclusions of law, even grounds not relied upon
by the district court.” Medina v. City & County of Denver, 960 F.2d 1493, 1495
n.1 (10th Cir. 1992) (quotation omitted).

                                         -6-
suspicion, and (2) the purpose of the search was not reasonably related to

Mower’s duties as a parole officer.

             1. Reasonable Suspicion

      “Reasonable suspicion is a less demanding standard than probable cause”

because “reasonable suspicion can arise from information that is less reliable than

that required to show probable cause.” United States v. Tuter, 240 F.3d 1292,

1296 n.2 (10th Cir. 2001). Unlike probable cause, “reasonable suspicion is

merely a particularized and objective basis for suspecting criminal activity.”

Tucker, 305 F.3d at 1200. “To determine whether the investigating officers had

reasonable suspicion, we consider both the quantity of information possessed by

law enforcement and its reliability.” Id. (footnote omitted).

      Fiscus contends that the officers lacked reasonable suspicion to search his

home because the tip they relied on was unreliable and stale. The reliability of

information received from an informant is assessed by considering “the credibility

or veracity of the informant, the basis of the informant’s knowledge, and the

extent to which police are able independently to verify the reliability of the tip.”

United States v. Leos-Quijada, 107 F.3d 786, 792 (10th Cir. 1997). Herbert, a

citizen informant, told the Orem Police that he saw what he believed was child

pornography on Fiscus’ home computer. Because Herbert disclosed his identity to

the police, he was a credible informant. See J.B. v. Wash. County, 127 F.3d 919,


                                         -7-
929-30 (10th Cir. 1997) (noting that citizen-informants are presumed to be

reliable). Herbert viewed the images while repairing Fiscus’ computer. His

personal knowledge, therefore, was the basis of his tip. Moreover, Herbert

provided detailed information to the Orem Police regarding the images he

observed on Fiscus’ computer, Fiscus’ Internet capabilities, and Fiscus’ criminal

history. Accordingly, Herbert’s tip to the Orem Police was reliable.

      Fiscus argues, however, that the tip was stale when Fiscus’ home was

searched because: (1) the tip was made over two months before the search was

conducted, and (2) Herbert had informed the Orem Police that he had erased the

images from Fiscus’ hard drive. To determine whether information relied upon as

the basis for a search is stale, this court considers “the nature of the crime and the

length of criminal activity.” See United States v. Myers, 106 F.3d 936, 939 (10th

Cir. 1997) (considering whether information relied upon to obtain a search

warrant was stale). Herbert informed the Orem Police that he believed Fiscus

obtained the images from the Internet and that Fiscus continued to have Internet

access. Herbert also informed the Orem Police that Fiscus asked him not to look

at the files which contained the images and that he, rather than Fiscus, deleted the

images on Fiscus’ computer. Given this information and the knowledge that

Fiscus was on parole for criminal sexual conduct with a minor, Herbert’s tip was

not stale at the time of the search and was sufficient to establish a reasonable


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suspicion that Fiscus violated the terms of his parole agreement. Tucker, 305

F.3d at 1201 (reasoning that reasonable suspicion may be established on

information less reliable than that required to establish probable cause).

      This court concludes, therefore, the parole search conducted of Fiscus’

residence was supported by reasonable suspicion.

             2. Purpose of the Search

      Fiscus also contends that the July 20, 1999 search of his residence was an

invalid parole search because the purpose of the search was not reasonably related

to Mower’s duties as a parole officer. Fiscus argues that Mower was used as a

“stalking horse” of the police to conduct an investigatory search of his home.

      In Tucker, this court concluded that a parole search is valid under the

Fourth Amendment if it is conducted pursuant to a search provision of a parole

agreement and is supported by reasonable suspicion even if the “search was a

subterfuge for a law enforcement investigation.” 305 F.3d at 1200. Fiscus’

parole agreement authorized the search of his residence to “insure compliance

with the conditions of [his] parole.” Moreover, Fiscus’ parole was conditioned on

his compliance with all federal, state, and local penal laws. Therefore, because

we conclude that the officers had reasonable suspicion that Fiscus possessed child

pornography on his home computer in violation of his parole agreement, the July




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20, 1999 search of his residence was a valid parole search under the Fourth

Amendment regardless of the officers’ motivation in conducting the search.

      B. Seizure of the Diskettes 2

      Fiscus argues that the officers’ lacked justification to seize his diskettes,

and, therefore, the evidence obtained from the diskettes must be suppressed under

the Fourth Amendment.

      Typically, an object may not be seized unless it is identified and

particularly described in a valid warrant. See United States v. Guidry, 199 F.3d

1150, 1154 (10th Cir. 1999). Law enforcement officers, however, may seize an

object without a warrant if the object is in plain view. Tucker, 305 F.3d at 1202.

The following conditions must be satisfied to justify a warrantless search under

the plain view doctrine: (1) the officer must “arriv[e] at the place from which the

evidence could be plainly viewed” without violating the Fourth Amendment; (2)

the incriminating character of the item must be immediately apparent such that the

officer has “probable cause to believe the object to be contraband or evidence of

illegal activity” upon seeing the object; and (3) the officer must “have a lawful




      2
       Fiscus argues that the seizure of the computer also violated the Fourth
Amendment. The only evidence of child pornography, however, was found on his
diskettes labeled “Bob’s Pics.” Therefore, the court will confine its discussion to
the validity of the seizure and subsequent search of the diskettes.

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right of access to the object.” 3 United States v. Naugle, 997 F.2d 819, 822 (10th

Cir. 1993) (quotations omitted); Tucker, 305 F.3d at 1202 (footnote omitted).

      Because the seizure of Fiscus’ diskettes meets these conditions, it is

justified under the plain view doctrine. The seizing officers had a reasonable

suspicion that Fiscus was in violation of his parole agreement by possessing child

pornography on his computer; they were, thus, entitled to search his residence.

Therefore, the officers arrived in the place where Fiscus’ diskettes were plainly

apparent without violating the Fourth Amendment.

      Fiscus, however, argues that the incriminating character of the diskettes

was not immediately apparent to the officers. Fiscus was on parole for

committing a lewd act with a minor and for criminal sexual conduct with a minor.

Prior to searching his home, the officers were informed by Herbert that Fiscus

stored child pornography on his computer. When the officers arrived at Fiscus’

residence and informed him that they were going to conduct a search, Fiscus told

the officers that there were embarrassing photographs on the computer. Fiscus

also told the officers that they need not search the rest of his residence stating,


      3
        As discussed in United States v. Tucker, because the “[o]fficers were
entitled to enter [Fiscus’] home and conduct a search merely upon reasonable
suspicion[,] [a]rguably . . . they only needed reasonable suspicion that any item
viewed was contraband or evidence of illegal activity or parole violations in order
to seize it under the plain-view doctrine.” 305 F.3d 1193, 1203 n.13 (10th Cir.
2002). Because we conclude infra that the officers had probable cause, we need
not decide this issue.

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“You’re not going to find anything – anything there because everything is on the

computer.” Further, the diskettes seized were labeled “Bob’s Pics.” From this

information, the officers had probable cause to believe that Fiscus’ computer and

diskettes contained child pornography. While Fiscus argues that his statement

regarding the existence of embarrassing photographs on the computer could have

referred to the wallpaper depicting a nude adult male and the label “Bob’s Pics” is

innocuous, “probable cause merely requires that the facts available to the officer

would warrant a man of reasonable caution in the belief that certain items may be

. . . useful as evidence of a crime; it does not demand any showing that such a

belief be correct or more likely true than false.” Naugle, 997 F.3d at 823

(quotation omitted) (concluding that while “no officer can tell upon first sight

whether a weapon is properly registered” and, therefore, illegally possessed, the

officer had probable cause to seize the weapon). Accordingly, the incriminating

character of the computer and diskettes was immediately apparent to the officers

searching Fiscus’ residence.

      Finally, because the parole agreement authorized the officers to search all

of Fiscus’ property, the officers had a lawful right of access to Fiscus’ diskettes.

See Tucker, 305 F.3d at 1203.




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      C. The Search of Fiscus’ Diskettes

      Fiscus argues that the subsequent search of his diskettes violated the Fourth

Amendment because the officers were required to obtain a search warrant prior to

conducting the search. To support his argument, Fiscus cites this court’s

decisions in United States v. Carey, 172 F.3d 1268 (10th Cir. 1999), and United

States v. Campos, 221 F.3d 1143 (10th Cir. 2000). Fiscus argues that, under

Carey and Campos, computer searches require a “special approach” in that law

enforcement officers may not search computer files without a warrant, absent

exigent circumstances. Fiscus’ argument that Carey and Campos require the

suppression of the evidence found on his diskettes is unavailing.

      In Carey, law enforcement officers suspected the defendant was involved in

illegal drug sales. 172 F.3d at 1270. The officers obtained the defendant’s

consent to search his apartment and, as a result, seized the defendant’s computer.

Id. The officers then obtained a search warrant to search the computer files for

“names, telephone numbers, ledger receipts, addresses, and other documentary

evidence pertaining to the sale and distribution of controlled substances.” Id.

While searching his computer, the officers discovered several files which

contained child pornography. Id. at 1271. The defendant moved to suppress the

evidence of child pornography obtained from the computer files. Id. The Carey




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court held that because the search went beyond the justification and basis for the

warrant, the search violated the Fourth Amendment. Id. at 1273-74.

      While Fiscus argues that Carey stands for the broad proposition that, absent

exigent circumstances, law enforcement may not search a computer without a

warrant, our decision in Carey merely stands for the proposition that law

enforcement may not expand the scope of their search beyond its original

justification. See Campos, 221 F.3d at 1148. In this case, unlike the search in

Carey, the original justification for seizing Fiscus’ diskettes was the officers’

probable cause to believe that the diskettes contained images of child

pornography. Because the evidence actually obtained in the search of Fiscus’

diskettes was consistent with the original justification for the seizure, the search

was permissible under Carey.

      Fiscus also argues that our decision in Campos mandates that law

enforcement obtain a warrant prior to conducting a search of a computer. The

Campos court distinguished the search in Carey and affirmed the district court’s

denial of the defendant’s motion to suppress, reasoning that “the officers . . . did

not expand the scope of their search in a manner not authorized by the warrant.”

Id. The Campos court did note, however, that Carey “require[s] law enforcement

officers to take a special approach” when they discover files in a computer search

that contain information that is both relevant and irrelevant to the scope of the


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search. Id. In this case, however, the officers did not discover the images of

child pornography in files intermingled with other information not relevant to the

scope of their search. Therefore, Fiscus’ argument regarding Campos is similarly

unavailing.

      Accordingly, Fiscus’ narrow arguments do not present a sufficient basis on

which to suppress the evidence obtained during the search of his diskettes.

      D. Fiscus’ Statements on October 13, 1999

      Fiscus contends that the statements he made to the officers at his place of

employment on October 13, 1999 were not voluntarily made and, thus, were made

in contravention of the Fifth Amendment. The district court determined that the

totality of the circumstances demonstrated that Fiscus’ statements were voluntary.

This court reviews de novo the district court’s determination that the statements

were voluntarily made. United States v. Lugo, 170 F.3d 996, 1003 (10th Cir.

1999). The district court’s underlying factual findings, however, are accepted

absent clear error. Id.

      To determine whether a statement was voluntary, we consider:

      (1) the defendant’s age, intelligence, and education; (2) the length of
      the detention and interrogation; (3) the length and nature of the
      questioning; (4) whether the defendant was advised of his
      constitutional rights; and (5) whether the defendant was subjected to
      or threatened with any physical punishment.

Id. at 1004.


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No single factor is considered determinative. Id. Rather, this court determines

“voluntariness on the totality of the circumstances.” Id.

      Fiscus had prior experience with the criminal justice system. He was

questioned at his place of employment. Moreover, Fiscus directed the officers to

the room in which the questioning was conducted. Fiscus was only questioned for

approximately thirty minutes and was neither threatened with any physical

punishment nor arrested. Fiscus, however, argues that he was led to believe that

he was still bound by the terms of his parole agreement. Consequently, Fiscus

argues, he believed he was obligated to answer the officers’ questions. While

Mower was present when Daufenbach questioned Fiscus, Mower did not

participate in the questioning. Moreover, Mower informed Fiscus in August 1999

that he was no longer on parole. Finally, the officers never informed Fiscus that

he was obligated to answer their questions. Accordingly, considering the totality

of the circumstances, Fiscus’ statements were voluntarily made.




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IV. CONCLUSION

     For the foregoing reasons, the district court’s denial of Fiscus’ motion to

suppress is AFFIRMED.

                                     ENTERED FOR THE COURT



                                     Michael R. Murphy
                                     Circuit Judge




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