          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                  March 26, 2009
                                 No. 08-30599
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

DANNY M DAUGHERTY, also known as Dan Daugherty

                                            Defendant-Appellant


                 Appeal from the United States District Court
                    for the Eastern District of Louisiana
                           USDC No. 2:07-CR-184-1


Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Danny M. Daugherty pleaded guilty, pursuant to a plea agreement, to
three counts of production of child pornography and one count of possession of
child pornography. He was sentenced to a total of 210 months of imprisonment
and to a life term of supervised release. In his agreement, Daugherty reserved
the right to appeal the district court’s denial of his motion to suppress evidence.
He argues that the district court erred by finding that the seizure of the



      *
      Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
                                   No. 08-30599

computer and hard drive from his residence fell within the plain view doctrine.
He also asserts that the district court erred in finding that probable cause
existed to seize the computer and hard drive.
      In reviewing the denial of a motion to suppress, the district court’s factual
findings are reviewed for clear error and its legal conclusions, . . . are reviewed
de novo.” United States v. Jacquinot, 258 F.3d 423, 427-28 (5th Cir. 2001). A
factual finding is not clearly erroneous if it is plausible in light of the record as
a whole. Id. The evidence presented at a suppression hearing must be viewed
in the light most favorable to the prevailing party, in this case, the Government.
Id.
      As to his argument regarding plain view, the district court determined
that the seizure of the pornographic images contained in the albums found inside
Daugherty’s residence fell within the plain view doctrine, but not the computer
and hard drive. Rather, the district court determined that these pornographic
images, combined with Daugherty’s change in demeanor upon the officer’s
discovery of the images, and his repeated attempts to turn off the laptop
computer, provided the officers with sufficient probable cause to seize the laptop
and hard drive pending a search warrant.
      Daugherty also contends that the district court’s probable cause
determination was erroneous because there was no evidence that linked the
pornographic images to his computer. He further contends that his desire to
turn off his computer “could have been based on completely legitimate concerns
. . . [since] [c]omputers contain a wealth of private information.”
      Daugherty’s argument lacks merit. Testimony at the suppression hearing
supported a finding that it was apparent that the pornographic images had been
downloaded from a computer due to the internet and email address printed on
the backside of the images. Daugherty admitted ownership of the albums where
the images were found.       As soon as he was confronted with the albums,
Daugherty attempted several times to turn off the laptop that was on in his

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office. Furthermore, he became visibly nervous as officers searched his office
that contained the computer equipment. The evidence introduced at the hearing
reflects that there was a fair probability that the computer Daugherty attempted
to turn off contained more pornographic images. Accordingly, the district court
did not clearly err in its probable cause determination and in denying
Daugherty’s motion to suppress. See id. The judgment of the district court is
AFFIRMED.




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