12-4394-cr
United States v. Howe

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
25th day of November, two thousand thirteen.

Present:    ROSEMARY S. POOLER,
            REENA RAGGI,
            RICHARD C. WESLEY,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                              Appellee,

                        -v-                                                12-4394-cr

ANTHONY C. HOWE, SR.,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:      Jay Samuel Ovsiovitch (Mark D. Hosken, on the brief), Office of
                              the Federal Public Defender, Rochester, NY.

Appearing for Appellee:       Stephan J. Baczynski, Assistant United States Attorney (William J.
                              Hochul, Jr., United States Attorney for the Western District of
                              New York, on the brief), Buffalo, NY.

       Appeal from the United States District Court for the Western District of New York
(Larimer, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said District Court be and it hereby is AFFIRMED.
        Pursuant to Anthony C. Howe, Sr.’s plea agreement, he was adjudicated guilty of receipt
and possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A), (a)(5)(B),
(b)(1), and (b)(2). He was sentenced principally to 180 months of imprisonment. Howe now
appeals from the district court’s denial of his motion to suppress evidence. On appeal, he asserts
that: (1) there was no probable cause to seize his laptop computer without a warrant; and (2) the
delay between the seizure of his laptop and the issuance of a federal warrant to search the laptop
was unreasonable under the Fourth Amendment. Further, he appears to maintain that there was
not probable cause to support the issuance of a federal warrant to search the laptop. We assume
the parties’ familiarity with the underlying facts, procedural history, and specification of issues
for review.

       “On an appeal from a district court’s ruling on a motion to suppress evidence, we review
the court’s factual findings for clear error, viewing the evidence in the light most favorable to the
government. The district court’s legal conclusions are reviewed de novo.” United States v.
Edelman, 726 F.3d 305, 308 (2d Cir. 2013) (internal quotation marks omitted).

        First, the district court did not err in concluding that probable cause existed to seize
Howe’s laptop. The magistrate judge found that Officer Daniel Weegar, who later seized the
laptop, “viewed the Sample Pictures folder” on that computer, which contained at least one
thumbnail image that the magistrate judge determined was lascivious. Under United States v.
Rivera, 546 F.3d 245, 250 (2d Cir. 2008), the magistrate judge did not err in that determination.
Based on the foregoing, it was not unlawful for Weegar to seize the laptop because a reasonable
person could have concluded that there was a fair probability that Howe’s computer would be
useful as evidence of a child pornography crime. See Texas v. Brown, 460 U.S. 730, 742 (1983)
(plurality opinion) (“probable cause is a flexible, common-sense standard”).

        Second, although the government’s delay in seeking the federal warrant to search the
laptop was quite lengthy, it was not constitutionally unreasonable based on the particular facts in
this case. In determining the reasonableness of the government’s delay in seeking a search
warrant after a valid seizure, a court looks to various factors, including the length of time for
which the individual was deprived of her or his property, any diminished interest in the property
that the individual may have had, and whether the seizure affected the individual’s liberty
interests, for example, where an officer seizes a traveler’s luggage and thereby disrupts that
individual’s travel plans. See United States v. Martin, 157 F.3d 46, 54 (2d Cir. 1998). The court
also analyzes the government’s interests in seizing the property, and balances the competing
interests. See id.; see also Illinois v. McArthur, 531 U.S. 326, 331 (2001) (“we balance the
privacy-related and law enforcement-related concerns to determine if the intrusion was
reasonable”).

        In this case, Howe was deprived of his laptop for a long period of time, approximately
thirteen months. During that time, Howe’s possessory interest in the laptop was diminished by
the fact that Weegar had viewed a folder on that computer containing the lascivious thumbnail
image described earlier. That image provided the government with a strong interest in retaining
the laptop and not returning it to Howe. In addition, the seizure of the laptop did not restrain
Howe’s liberty interests. Importantly, the magistrate judge found that the government’s delay in
seeking the federal warrant was due to error, rather than a lack of diligence in pursuing a search
warrant. Thus, this is not a case in which the government provided no explanation for its delay

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and did not show any sense of urgency in obtaining a search warrant. Rather, the government’s
diligence in this case was exhibited by Weegar, who swore out an application for a state warrant
to search Howe’s residence and the laptop the day after the computer was seized. The delay in
seeking the federal search warrant was based, at least in part, on Weegar’s belief, albeit
erroneous, that he had obtained a state warrant to search the laptop. While the thirteen-month
delay in seeking the federal warrant was lengthy, it was not constitutionally infirm on the facts of
this case.

          Finally, to the extent that Howe argues that the federal search warrant was not based on
probable cause, that argument is without merit. In the warrant context, “[p]robable cause is ‘a
practical, commonsense decision whether, given all the circumstances set forth in the affidavit
. . . , including the veracity and basis of knowledge of persons supplying hearsay information,
there is a fair probability that contraband or evidence of a crime will be found in a particular
place.’” United States v. Canfield, 212 F.3d 713, 718 (2d Cir. 2000) (quoting Illinois v. Gates,
462 U.S. 213, 238 (1983)). In this case, the affidavit in support of the application for the federal
search warrant stated the following. An employee at the establishment from which Howe had
rented the laptop showed a law enforcement official images on Howe’s computer that the
employee believed to be children engaged in sexually explicit conduct. Two of Howe’s family
members stated that they had seen titles of files on Howe’s laptop that indicated that those files
contained depictions of children engaging in lewd acts. In addition, a third member of Howe’s
family stated that Howe had admitted to downloading “kiddy porn” onto his computer. Based on
that information, which was not a product of the searches conducted pursuant to the invalid state
warrant, there was probable cause that evidence of a child pornography crime would be found on
Howe’s laptop.

        We have examined the remainder of Howe’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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