                                                                                F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit

                                                                                APR 30 1999
                                        PUBLISH

                      UNITED STATES COURT OF APPEALS                        PATRICK FISHER
                                                                                        Clerk
                                   TENTH CIRCUIT




 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,
 v.
                                                              No. 98-3077
 PATRICK CAREY,

        Defendant-Appellant.




                     ORDER ON PETITION FOR REHEARING


Before PORFILIO, MCWILLIAMS, and BALDOCK, Circuit Judges.



       This matter is before the court on the government's petition for rehearing by the

panel. Because the government contends we failed to properly follow Horton v.

California, 496 U.S. 128, 130 (1990), we recognize inadvertence is not a Fourth

Amendment requirement. We note, however, "inadvertence is a characteristic of most

legitimate 'plain-view' seizures." Id. As such, the fact that Detective Lewis did not

inadvertently come across the pornographic files is certainly relevant to our inquiry. Our

holding is based, however, on the fact that Detective Lewis impermissibly expanded the
scope of his search when he abandoned the search for drug-related evidence to search for

evidence of child pornography. The petition for rehearing is denied.



                                                Entered for the Court
                                                PATRICK FISHER, Clerk of Court



                                                by:
                                                       Elisabeth A. Shumaker
                                                       Chief Deputy Clerk




                                          -2-
                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                                      PUBLISH
                                                                             APR 14 1999
                     UNITED STATES COURT OF APPEALS
                                                                         PATRICK FISHER
                                                                                   Clerk
                                  TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
 v.
                                                           No. 98-3077
 PATRICK CAREY,

       Defendant-Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF KANSAS
                      (D.C. No. 97-CR-40057-DES)



John V. Wachtel, Klenda, Mitchell, Austerman & Zuercher, L.L.C., Wichita, KS, for
Defendant-Appellant.

Thomas G. Luedke, Assistant United States Attorney (Jackie N. Williams, United States
Attorney, with him on the briefs), Topeka, Kansas, for Plaintiff-Appellee.


Before PORFILIO, MCWILLIAMS, and BALDOCK, Circuit Judges.


PORFILIO, Circuit Judge.



      Patrick J. Carey was charged with one count of possessing a computer hard drive

that contained three or more images of child pornography produced with materials
shipped in interstate commerce. See 18 U.S.C. § 2252A(a)(5)(B) (1996).1 Following a

conditional plea of guilty, he appeals an order of the district court denying his motion to

suppress the material seized from his computer on grounds it was taken as the result of a

general, warrantless search. He also contends his sentence was illegal and the district

court erred in failing to depart downward from the guideline range, but we do not reach

these issues. We conclude the motion to suppress should have been granted and reverse.

                                             I.

       Mr. Carey had been under investigation for some time for possible sale and

possession of cocaine. Controlled buys had been made from him at his residence, and six

weeks after the last purchase, police obtained a warrant to arrest him. During the course

of the arrest, officers observed in plain view a “bong,” a device for smoking marijuana,

and what appeared to be marijuana in defendant’s apartment.

       Alerted by these items, a police officer asked Mr. Carey to consent to a search of

his apartment. The officer said he would get a search warrant if Mr. Carey refused

permission. After considerable discussion with the officer, Mr. Carey verbally consented

to the search and later signed a formal written consent at the police station. Because he




       1
        As amended in 1998, the statute now applies to any person who knowingly
possesses a computer disk “that contains an image of child pornography” produced with
materials shipped in interstate commerce. See 18 U.S.C. § 2252A(a)(5)(B) (1998).
Because Mr. Carey was charged on August 6, 1997, the 1996 version of the statute
applies in this case.

                                            -2-
was concerned that officers would “trash” his apartment during the search, Mr. Carey

gave them instructions on how to find drug related items.

       The written consent to search authorized Sergeant William Reece “to have

conducted a complete search of the premises and property located at 3225 Canterbury

#10, Manhattan, KS 66503.” It further provided, “I do freely and voluntarily consent and

agree that any property under my control . . . may be removed by the officers . . . if said

property shall be essential in the proof of the commission of any crime in violation of the

Laws of the United States . . . .” Armed with this consent, the officers returned to the

apartment that night and discovered quantities of cocaine, marijuana, and hallucinogenic

mushrooms. They also discovered and took two computers, which they believed would

either be subject to forfeiture or evidence of drug dealing.

       The computers were taken to the police station and a warrant was obtained by the

officers allowing them to search the files on the computers for “names, telephone

numbers, ledger receipts, addresses, and other documentary evidence pertaining to the

sale and distribution of controlled substances.” Detective Lewis and a computer

technician searched the contents of the computers, first viewing the directories of both

computers’ hard drives. They then downloaded onto floppy disks and printed the

directories. Included in the directories were numerous files with sexually suggestive titles

and the label “JPG.”2 Lewis then inserted the disks into another computer and began


       Detective Lewis later testified at the time he discovered the first JPG or image
       2

                                                                                 (continued...)

                                             -3-
searching the files copied from Mr. Carey’s computers. His method was to enter key

words such as, “money, accounts, people, so forth” into the computer’s explorer to find

“text-based” files containing those words. This search produced no files “related to

drugs.”

       Undaunted, Detective Lewis continued to explore the directories and encountered

some files he “was not familiar with.” Unable to view these files on the computer he was

using, he downloaded them to a disk which he placed into another computer. He then

was “immediately” able to view what he later described as a “JPG file.” Upon opening

this file, he discovered it contained child pornography.

       Detective Lewis downloaded approximately two hundred forty-four JPG or image

files. These files were transferred to nineteen disks, only portions of which were viewed

to determine that they contained child pornography. Although none of the disks was

viewed in its entirety, Detective Lewis looked at “about five to seven” files on each disk.

Then, after viewing the contents of the nineteen disks in that fashion, he returned to the

computers to pursue his original task of looking for evidence of drug transactions.

       Mr. Carey moved to suppress the computer files containing child pornography.

During the hearing on the motion, Detective Lewis stated although the discovery of the


       2
          (...continued)
file, he did not know what it was nor had he ever experienced an occasion in which the
label “JPG” was used by drug dealers to disguise text files. He stated, however, image
files could contain evidence pertinent to a drug investigation such as pictures of “a
hydroponic growth system and how it’s set up to operate.”

                                            -4-
JPG files was completely inadvertent, when he saw the first picture containing child

pornography, he developed probable cause to believe the same kind of material was

present on the other image files. When asked why, therefore, he did not obtain a warrant

to search the remaining image files for child pornography, he stated, “that question did

arise, [a]nd my captain took care of that through the county attorney’s office.” No

warrant was obtained, but the officer nonetheless continued his search because he

believed he “had to search these files as well as any other files contained [in the

computer].”

       Upon further questioning by the government, Detective Lewis retrenched and

stated until he opened each file, he really did not know its contents. Thus, he said, he did

not believe he was restricted by the search warrant from opening each JPG file. Yet, after

viewing a copy of the hard disk directory, the detective admitted there was a “phalanx” of

JPG files listed on the directory of the hard drive.3 He downloaded and viewed these files

knowing each of them contained pictures. He claimed, however, “I wasn’t conducting a

search for child pornography, that happened to be what these turned out to be.”

       At the close of the hearing, the district court ruled from the bench. Without any

findings, the court denied the motion, saying: “[a]t this point, the Court feels that the . . .

Defendant’s Motion to Suppress . . . would be - should be denied. And that will be the


       3
        We note the JPG files shown on Detective Lewis’ directory printout featured
sexually suggestive or obscene names, many including the word “teen” or “young.” The
detective testified drug dealers often obscure or disguise evidence of their drug activity.

                                              -5-
order of the Court, realizing that they are close questions.” No subsequent written order

containing findings of fact or conclusions of law was filed.

                                             II.

       We review the denial of a motion to suppress for clear error. See United States v.

Griffin, 7 F.3d 1512, 1516 (10th Cir. 1993). Reasonableness of a search is reviewed de

novo. See United States v. Eylicio-Montoya, 18 F.3d 845, 848 (10th Cir. 1994). Mr.

Carey complains: (1) search of the computers exceeded the scope of the warrant, (2) he

did not consent to the search of his apartment, and (3) seizure of the computers was

unlawful because the officers lacked probable cause. We address only the first issue.

       Mr. Carey argues the search of the computers transformed the warrant into a

“general warrant” and resulted in a general and illegal search of the computers and their

files. The Fourth Amendment requires that a search warrant describe the things to be

seized with sufficient particularity to prevent a general exploratory rummaging in a

person’s belongings. See Marron v. United States, 275 U.S. 192, 196, 48 S. Ct. 74, 76

(1927) (“The requirement that warrants shall particularly describe things to be seized

makes general searches under them impossible and prevents the seizure of one thing

under a warrant describing another. As to what is to be taken, nothing is to be left to the

discretion of the officer executing the warrant.”). As we have instructed:

       The essential inquiry when faced with challenges under the Fourth
       Amendment is whether the search or seizure was reasonable –
       reasonableness is analyzed in light of what was reasonable at the time of the
       Fourth Amendment’s adoption. . . . It is axiomatic that the 4th Amendment

                                            -6-
       was adopted as a directed response to the evils of the general warrants in
       England and the writs of assistance in the Colonies.

O’Rourke v. City of Norman, 875 F.2d 1465, 1472 (10th Cir. 1989) (citations omitted).

       Mr. Carey argues that examined against history and case law, the search

constituted general rummaging in “flagrant disregard” for the terms of the warrant and in

violation of the Fourth Amendment. United States v. Foster, 100 F.3d 846, 849-50 (10th

Cir. 1996). Despite the specificity of the search warrant, files not pertaining to the sale or

distribution of controlled substances were opened and searched, and according to Mr.

Carey, these files should have been suppressed. See id. at 849.

       The government responds that the plain view doctrine authorized the police search.

See Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971). A police officer may

properly seize evidence of a crime without a warrant if:

       (1) the officer was lawfully in a position from which to view the object
       seized in plain view; (2) the object’s incriminating character was
       immediately apparent – ie., the officer had probable cause to believe the
       object was contraband or evidence of a crime; and (3) the officer had a
       lawful right of access to the object itself.

United States v. Soussi, 29 F.3d 565, 570 (10th Cir. 1994) (citing Horton v. California,

110 S. Ct. 2301, 2307 (1990)).

       According to the government, “a computer search such as the one undertaken in

this case is tantamount to looking for documents in a file cabinet, pursuant to a valid

search warrant, and instead finding child pornography.” Just as if officers has seized

pornographic photographs from a file cabinet, seizure of the pornographic computer

                                             -7-
images was permissible because officers had a valid warrant, the pornographic images

were in plain view, and the incriminating nature was readily apparent as the photographs

depicted children under the age of twelve engaged in sexual acts. The warrant authorized

the officer to search any file because “any file might well have contained information

relating to drug crimes and the fact that some files might have appeared to have been

graphics files would not necessarily preclude them from containing such information.”

See Erickson v. Commissioner of Internal Revenue, 937 F.2d 1548, 1554 (10th Cir.

1991) (drug trafficking activity is often concealed or masked by deceptive records).

Further, the government states the defendant’s consent to search of the apartment

overrides all of these questions because it extended to the search of every file on both

computers.

       The Supreme Court has instructed, “the plain view doctrine may not be used to

extend a general exploratory search from one object to another until something

incriminating at last emerges.” Coolidge, 403 U.S. at 466. The warrant obtained for the

specific purpose of searching defendant’s computers permitted only the search of the

computer files for “names, telephone numbers, ledgers, receipts, addresses, and other

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

The scope of the search was thus circumscribed to evidence pertaining to drug trafficking.

The government’s argument the files were in plain view is unavailing because it is the

contents of the files and not the files themselves which were seized. Detective Lewis


                                            -8-
could not at first distinguish between the text files and the JPG files upon which he did an

unsuccessful word search. Indeed, he had to open the first JPG file and examine its

contents to determine what the file contained. Thus, until he opened the first JPG file, he

stated he did not suspect he would find child pornography. At best, he says he suspected

the files might contain pictures of some activity relating to drug dealing.

       In his own words, however, his suspicions changed immediately upon opening the

first JPG file. After viewing the contents of the first file, he then had “probable cause” to

believe the remaining JPG files contained similar erotic material. Thus, because of the

officer’s own admission, it is plainly evident each time he opened a subsequent JPG file,

he expected to find child pornography and not material related to drugs. Armed with this

knowledge, he still continued to open every JPG file to confirm his expectations. Under

these circumstances, we cannot say the contents of each of those files were inadvertently

discovered. Moreover, Detective Lewis made clear as he opened each of the JPG files he

was not looking for evidence of drug trafficking. He had temporarily abandoned that

search to look for more child pornography, and only “went back” to searching for drug-

related documents after conducting a five hour search of the child pornography files.

       We infer from his testimony Detective Lewis knew he was expanding the scope of

his search when he sought to open the JPG files. Moreover, at that point, he was in the

same position as the officers had been when they first wanted to search the contents of the

computers for drug related evidence. They were aware they had to obtain a search


                                            -9-
warrant and did so. These circumstances suggest Detective Lewis knew clearly he was

acting without judicial authority when he abandoned his search for evidence of drug

dealing.

       Although the question of what constitutes “plain view” in the context of computer

files is intriguing and appears to be an issue of first impression for this court, and many

others, we do not need to reach it here. Judging this case only by its own facts, we

conclude the items seized were not authorized by the warrant. Further, they were in

closed files and thus not in plain view.4

       We do note the recent decision in United States v. Turner, 1999 WL 90209 (1st

Cir. Feb. 26, 1999)5 affirming the district court’s suppression of several images of child

pornography found on the defendant’s computer. In Turner, the defendant’s neighbor

was the victim of a nighttime assault in her apartment, and police officers obtained the


       Given the officer’s testimony that he inadvertently discovered the first image
       4

during his search for documents relating to drug activity, our holding is confined to the
subsequent opening of numerous files the officer knew, or at least expected, would
contain images of child pornography.
       5
        See also United States v. Maxwell, 45 M.J. 406, 422 (Ct. App. Armed Forces
1996) (Where a colonel used a personal computer to transport obscenity and child
pornography, the plain view doctrine did not apply to the search of computer files under a
screen name not listed in the warrant. Because the warrant did not authorize search of
those files, view was obtained as a result of improper governmental opening, not as a
result of seeing what was legitimately in plain view.). Cf. United States v. Abbell, 914 F.
Supp. 519, 520-21 (S.D. Fla. 1995) (In a criminal prosecution where a large volume of
computer generated data was seized from the defendant’s law office, a special master
would determine whether documents and data were responsive to the search warrant or
fell within an exception to the search warrant requirement such as the plain view
doctrine.).

                                            - 10 -
defendant’s consent to search his apartment for signs of the intruder and for evidence of

the assault itself. While searching the apartment, an officer noticed the defendant’s

computer screen suddenly illuminate with a photograph of a nude woman resembling the

assault victim. He then sat at the computer and itemized the files most recently accessed.

Several of the files had the “suffix ‘.jpg,’ denoting a file containing a photograph.” Id. at

*2. The officer opened these files and found photographs of nude blonde women in

bondage. After calling the district attorney’s office for guidance, the officer copied these

adult pornography files onto a floppy disk and then searched the computer hard drive for

other incriminating files. He opened a folder labeled “G-Images” and “noted several files

with names such as ‘young’ and ‘young with breasts.’” Id. After opening one of these

files and observing child pornography, the officer shut down and seized the computer,

and the defendant was charged in a single count of possessing child pornography. The

government contended the “consent was so broad -- authorizing search of all [the

defendant’s] ‘personal property’ that it necessarily encompassed a comprehensive search

of his computer files.” Id. But the First Circuit affirmed the suppression of the computer

files on grounds “the consent did not authorize the search of the computer” because “an

objectively reasonable person assessing in context the exchange between [the defendant]

and these detectives would have understood that the police intended to search only in

places where an intruder hastily might have disposed of any physical evidence of the …

assault ….” Id. at * 4. The court also held:


                                            - 11 -
       We cannot accept the government’s contention that the sexually suggestive
       image which suddenly came into “plain view” on the computer screen
       rendered [the defendant]’s computer files “fair game” under a consensual
       search simply because the [neighbor’s] assault had a sexual component.…
       The critical consideration in this regard is that the detectives never
       announced, before [the defendant] gave his consent, that they were
       investigating a sexual assault or attempted rape.

Id.

       As in Turner, the government argues here the consent Mr. Carey gave to the

search of his apartment carried over to the contents of his computer files. We disagree.

The arresting officer sought permission to search only the “premises and property located

at 3225 Canterbury #10.” Thus, the scope of the consensual search was confined to the

apartment itself. The seizure of the computer was permitted by Mr. Carey’s consent “that

any property under my control . . . may be removed by the officers . . . if said property

shall be essential in the proof of the commission of any crime . . . .” This agreement, by

its own terms, did not permit the officer to open the files contained in the computer, a fact

he obviously recognized because he obtained a proper warrant to search for drug related

evidence before he began opening files.

       The warrant constrained the officer to search for items it listed. See United States

v. Reyes, 798 F.2d 380, 383 (10th Cir. 1986). In our judgment, the case turns upon the

fact that each of the files containing pornographic material was labeled “JPG” and most

featured a sexually suggestive title. Certainly after opening the first file and seeing an

image of child pornography, the searching officer was aware – in advance of opening the


                                            - 12 -
remaining files – what the label meant. When he opened the subsequent files, he knew he

was not going to find items related to drug activity as specified in the warrant, just like

the officer in Turner knew he was not going to find evidence of an assault as authorized

by the consent.

       At oral argument the government suggested this situation is similar to an officer

having a warrant to search a file cabinet containing many drawers. Although each drawer

is labeled, he had to open a drawer to find out whether the label was misleading and the

drawer contained the objects of the search. While the scenario is likely, it is not

representative of the facts of this case. This is not a case in which ambiguously labeled

files were contained in the hard drive directory. It is not a case in which the officers had

to open each file drawer before discovering its contents. Even if we employ the file

cabinet theory, the testimony of Detective Lewis makes the analogy inapposite because he

stated he knew, or at least had probable cause to know, each drawer was properly labeled

and its contents were clearly described in the label.

       Further, because this case involves images stored in a computer, the file cabinet

analogy may be inadequate. “Since electronic storage is likely to contain a greater

quantity and variety of information than any previous storage method, computers make

tempting targets in searches for incriminating information.” Raphael Winick, Searches

and Seizures of Computers and Computer Data, 8 Harv. J. L. & Tech. 75, 104 (1994).

Relying on analogies to closed containers or file cabinets may lead courts to


                                            - 13 -
“oversimplify a complex area of Fourth Amendment doctrines and ignore the realities of

massive modern computer storage.” Id. Alternatively, courts can acknowledge

computers often contain “intermingled documents.” See United States v. Tamura, 694

F.2d 591, 595-96 (9th Cir. 1982).6 Under this approach, law enforcement must engage in

the intermediate step of sorting various types of documents and then only search the ones

specified in a warrant. Where officers come across relevant documents so intermingled

with irrelevant documents that they cannot feasibly be sorted at the site, the officers may

seal or hold the documents pending approval by a magistrate of the conditions and

limitations on a further search through the documents. See id. at 596.7 The magistrate

should then require officers to specify in a warrant which type of files are sought.8


       6
        United States v. Tamura, 694 F.2d 591, 595-96 (9th Cir. 1982), held seizure of all
of a corporation’s documents during a relevant time period, rather than limiting seizure to
categories of documents described in a search warrant, was unreasonable despite the
government’s contention irrelevant documents were intermingled with described
documents. Although this case did not arise in the context of a computer search, we find
the concept of “intermingled documents” helpful here.
       7
         The government contends Mr. Carey would have been “equally guilty had he
possessed this material in the form of a book, a magazine, or a film.” And in United
States v. Reyes, 798 F.2d 380, 383 (10th Cir. 1986), we explained “in the age of modern
technology and the commercial availability of various forms of items, the warrant could
not be expected to describe with exactitude the precise form the records would take”
because drug records might be found in cassettes, leases and accounts cards, or cancelled
checks. We have stated our belief that the storage capacity of computers requires a
special approach, and we do not intend to comment on the particularity requirement as it
applies to all contemporary media. Rather, our discussion applies specifically to searches
of files of computers held in law enforcement custody.

       See Raphael Winick, Searches and Seizures of Computers and Computer Data, 8
       8

                                                                                (continued...)

                                            - 14 -
       Because in Mr. Carey’s case, officers had removed the computers from his control,

there was no “exigent circumstance or practical reason to permit officers to rummage

through all of the stored data regardless of its relevance or its relation to the information

specified in the warrant.” Winick, 8 Harv. J. L. & Tech. at 105.9 With the computers and

data in their custody, law enforcement officers can generally employ several methods to

avoid searching files of the type not identified in the warrant: observing files types and

titles listed on the directory, doing a key word search for relevant terms, or reading



       8
        (...continued)
Harv. J. L. & Tech. 75, 108 (1994) (“Computer programs store information in a wide
variety of formats. For example, most financial spreadsheets store information in a
completely different format than do word processing programs. Similarly, an investigator
reasonably familiar with computers should be able to distinguish database programs,
electronic mail files, telephone lists and stored visual or audio files from each other.
Where a search warrant seeks only financial records, law enforcement officers should not
be allowed to search through telephone lists or word processing files absent a showing of
some reason to believe that these files contain the financial records sought. Where
relying on the type of computer files fails to narrow the scope of the search sufficiently,
the magistrate should review the search methods proposed by the investigating officers.”);
see also Tamura, 694 F.2d at 596 n.4. (“[w]e recently approved a procedure whereby
law enforcement officers bring in lay experts as consultants to facilitate the on-site search
for documents containing complex or technical subject matter”) (citations omitted).
       9
        Cf. United States v. Hargus, 128 F.3d 1358, 1363 (10th Cir. 1997) (“Although we
are given pause by the wholesale seizure of file cabinets and miscellaneous papers and
property not specified in the search warrant, the officers' conduct did not grossly exceed
the scope of the warrant. Their conduct was motivated by the impracticability of on-site
sorting and the time constraints of executing a daytime search warrant. The officers
were authorized to seize ten broad categories of records, and those records were present
in every drawer of both file cabinets. No item not specified in the warrant was admitted
against [the defendant] at trial. Under these circumstances the officers did not grossly
exceed the warrant in concluding they did not need to examine at the site every piece of
paper in both cabinets.”) (emphasis added).

                                            - 15 -
portions of each file stored in the memory. See id. at 107. In this case, Detective Lewis

and the computer technician did list files on the directory and also performed a key word

search, but they did not use the information gained to limit their search to items specified

in the warrant, nor did they obtain a new warrant authorizing a search for child

pornography.

                                             III.

       We must conclude Detective Lewis exceeded the scope of the warrant in this case.

His seizure of the evidence upon which the charge of conviction was based was a

consequence of an unconstitutional general search, and the district court erred by refusing

to suppress it. Having reached that conclusion, however, we are quick to note these

results are predicated only upon the particular facts of this case, and a search of computer

files based on different facts might produce a different result.10

       Although other errors have been raised, we do not reach them because of our

conclusion the seizure of evidence was beyond the scope of the warrant. We specifically

do not reach the issue of whether Mr. Carey voluntarily consented to the search of his




       10
         Cf. United States v. Hall, 142 F.3d 988, 993-94 (7th Cir. 1998) (Viewing images
of child pornography on the defendant’s computer by a repair company employee was a
private search. Although a police officer then improperly copied the files to a floppy disk
without a warrant, a subsequent search of the computer files by the police officer did not
require suppression because the employee’s statements provided an independent basis for
the warrant.).

                                            - 16 -
apartment. The district court made no findings on this question, and we are not wont to

opine on what would be an immaterial point in this appeal.

      REVERSED and REMANDED for further proceedings in accordance with this

opinion.




                                         - 17 -
98-3077, United States v. Carey

BALDOCK, J., concurring.

      I join in the court’s opinion, but write separately to emphasize that the

questions presented in this case are extremely close calls and, in my opinion, are

totally fact driven.

       First, absent Detective Lewis’ testimony, I would not suppress the evidence.

“The plain view doctrine may not be used to extend a general exploratory search

from one object to another until something incriminating at last emerges.”

Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971). In light of Detective

Lewis’ testimony, just this sort of impermissible general rummaging occurred in

this case. The detective’s testimony makes clear that from the time he found the

first image of child pornography, he switched from his authorized search for drug-

related evidence to another subject — child pornography. At this point, the

detective should have ceased his search and obtained a warrant to search the

computer files for evidence of child pornography. As Detective Lewis testified, it

was clear to him that after he discovered the first image, he had probable cause to

believe the computer contained additional images of child pornography, and no

exigent circumstances existed because the computer had been removed to the police

station.

       In contrast, if the record showed that Detective Lewis had merely continued

his search for drug-related evidence and, in doing so, continued to come across
evidence of child pornography, I think a different result would be required. That is

not what happened here, however.

      Second, while agreeing with the majority that Defendant’s consent to the

search of his apartment did not carry over to his computer hard drive, I write

separately to explain why I think the scope of Defendant’s consent is limited to

evidence of drug-related activity. The scope of a consensual search is “generally

defined by its expressed object.” Florida v. Jimeno, 500 U.S. 248, 251 (1991). To

determine the breadth of the consent given by Mr. Carey, we consider what “the

typical reasonable person would have understood by the exchange between the

officer and the [defendant].” United States v. Elliott, 107 F.3d 810, 815 (10th Cir.

1997). Resolution of this issue requires a detailed inquiry into the facts.

       The waiver signed by Defendant granted the officers permission to search

the “premises and property located at 3255 Canterbury #10" and authorized the

officers to remove any property “if said property shall be essential in the proof of

the commission of any crime . . . .” The officer testified that after he arrested

Defendant, he told him that “based on what I had just observed in his apartment

that I was going to apply for a search warrant.” The officer had just found, in plain

view, a bong typically used for smoking marijuana and a small quantity of what

appeared to be marijuana. The officer then explained to Defendant that he could

consent to a search instead of the officer obtaining a warrant. Defendant told the


                                          -2-
officer he was unsure. En route to the police station, Defendant asked several

questions about the search. Upon arrival at the station, Defendant indicated that he

wished to consent. He also told the officer where he would find additional drugs, a

scale, a firearm and cash. In addition, Defendant told him where he would find a

pornographic videotape. The officer responded that he “couldn’t care less about

his pornographic videotapes” and “that wasn’t of concern to me.”

      In light of the officer’s conversations with Defendant, a reasonable person

would conclude that the statements by the officer limited the scope of the request to

drugs and drug-related items in the apartment. See Elliott, 107 F.3d at 815; see

also, United States v. Dichiarinte, 445 F.2d 126, 129 (7th Cir. 1971) (consent to

search after officers repeated references to narcotics did not grant officers a license

to conduct a general exploratory search). As in United States v. Turner,

— F.3d —, 1999 WL 90209 (1st Cir. Feb. 26, 1999), the Defendant’s consent did

not include permission to search the hard drive of Defendant’s computer for

pornographic or any other type of files, a fact, as the majority points out, the officer

recognized because he obtained a proper warrant to search for drug-related

evidence before he began opening computer files. Thus, I think the record supports

a finding that Defendant’s consent did not extend to a search for pornographic

material on the hard drive of his computer. Of course, the officer’s search of the

computer hard drive for “evidence pertaining to the sale and distribution of


                                          -3-
controlled substances” was lawful, in that the officer obtained a valid search

warrant to do so.




                                         -4-
