17-2446-cr
United States v. Smith



                             United States Court of Appeals
                                    FOR THE SECOND CIRCUIT
                                         ______________

                                          August Term, 2018

                         (Argued: October 24, 2018       Decided: July 28, 2020)

                                        Docket No. 17-2446-cr
                                          ______________

                              UNITED STATES OF AMERICA,

                                                              Appellee,

                                                 –v.–

                              KIRKLAND SMITH,
                                                              Defendant-Appellant.
                                           ______________

B e f o r e:

          KATZMANN, Chief Judge, KEARSE, Circuit Judge, and MEYER, District Judge. *

       The defendant-appellant Kirkland Smith appeals from a judgment of
conviction and sentence in the United States District Court for the Northern
District of New York (Mordue, J.). He primarily contends that the district court
erred when it denied his motion to suppress the fruits of a search of a tablet
computer that contained child pornography. He also challenges the
reasonableness of his sentence. We have previously rejected by summary order


          *
        Judge Jeffrey Alker Meyer, of the United States District Court for the District of
Connecticut, sitting by designation.
                                                     1
    Smith’s challenges to the district court’s denial of his suppression motion, except
    that we remanded for the district court to conduct a hearing and make findings
    with respect to whether the police waited for an unreasonably long time before
    applying for a search warrant after their seizure of Smith’s tablet computer. See
    United States v. Smith, 759 F. App’x 62 (2d Cir. 2019). Following the district court’s
    hearing and ruling that the delay was not unreasonable, the appeal has been
    restored to this panel. We now rule that the police delayed unreasonably long in
    violation of the Fourth Amendment when they waited without good cause for 31
    days to seek a search warrant after seizing Smith’s tablet computer. We conclude,
    however, that the exclusionary rule does not apply because the police’s
    unreasonable delay was due to isolated negligence and because an objectively
    reasonable police officer would not have known that the delay amounted to a
    violation of the Fourth Amendment in light of then-existing precedent. We
    otherwise conclude that the district court’s sentence of 212 months of
    imprisonment was not procedurally or substantively unreasonable. Accordingly,
    the district court’s judgment of conviction and sentence is AFFIRMED.

          Judge KEARSE concurs in a separate opinion.
                                  ______________

                              PAUL D. SILVER (Cyrus P. Rieck, of counsel), Assistant
                              United States Attorneys, for Grant C. Jaquith, United
                              States Attorney, Northern District of New York, Albany,
                              NY, for Appellee.

                              JAMES P. EGAN (Molly K. Corbett, on the brief), for Lisa A.
                              Peebles, Federal Public Defender, Office of the Federal
                              Public Defender, Albany, NY, for Defendant-Appellant.

                                      ______________

1   JEFFREY ALKER MEYER, District Judge:

2         It is common for the police to temporarily seize a suspect’s personal

3   property if they have probable cause and intend to apply for a warrant to search

                                              2
 1   the property for evidence of a crime. When the police do so, however, the Fourth

 2   Amendment requires that they act with diligence to apply for a search warrant.

 3         This appeal primarily requires us to decide if the police failed to act with

 4   the diligence that the Constitution demands. The New York State Police seized a

 5   tablet that belonged to defendant-appellant Kirkland Smith after a trooper

 6   glimpsed an image on its screen that was possibly child pornography. But the

 7   police then waited 31 days before applying to a judge for a warrant to search the

 8   tablet’s contents.

 9         We conclude that, in the absence of extenuating reasons for this month-

10   long delay, it was unreasonably long in violation of the Fourth Amendment.

11   Nevertheless, we decline to apply the exclusionary rule, because the error by the

12   police was due to isolated negligence and because an objectively reasonable

13   officer would not have known in light of existing precedent that the delay

14   violated the Fourth Amendment.

15         The district court did not otherwise commit procedural or substantive

16   error when it imposed a sentence of 212 months of imprisonment in light of the

17   large amount of child pornography that Smith possessed as well as his history of

18   sexually abusing children. Accordingly, we affirm the judgment of conviction



                                              3
 1   and sentence of the district court.

 2                                         BACKGROUND

 3         A. The investigation

 4         On the afternoon of October 30, 2014, Trooper Timothy Snickles of the

 5   New York State Police noticed a car pulled off in an embankment on the side of

 6   the road near Keene, New York. The driver was defendant-appellant Kirkland

 7   Smith. He was hunched unconscious over the steering wheel while the car was

 8   still in the “drive” position with the engine running and the doors locked.

 9   Snickles knocked on the window for about two minutes before he finally got a

10   response from Smith, who unlocked the doors. Opening one of the doors,

11   Snickles reached in to put the vehicle in “park,” turn the engine off, and take the

12   key from the ignition.

13         There was a strong smell of alcohol, and lying on the passenger seat of the

14   car were plastic wine jugs as well as a Nextbook tablet computer and a cell

15   phone. When Smith tried to get out of the car, he fell to the ground intoxicated

16   and barely able to speak. Snickles then went back inside the car to check the

17   glove compartment for any identification or vehicle information.

18         While Snickles was looking for this information, he noticed an image on



                                               4
 1   the screen of the Nextbook tablet as it lay on the front passenger seat. According

 2   to a written deposition statement that he completed later that same day, Snickles

 3   saw that “[o]n the screen of this device was a Black male penis, appearing near a

 4   bald white female[’]s vagina.” A. 130.

 5         Snickles contacted his dispatcher to run Smith’s information and learned

 6   that Smith was a registered sex offender. He then spoke by telephone with Kyle

 7   Kirby—a state police investigator—to share what he had seen on the tablet, and

 8   Kirby instructed Snickles to secure any electronic devices that were in the car.

 9   Snickles stated in his deposition that “[t]he electronic device [the Nextbook

10   tablet] was secured as it may pertain to a possible illegal sexual encounter with a

11   female” and that another trooper “secured the item, for further possible

12   evaluation[.]” A. 130.

13         By the time that the tablet was seized, the tablet was off and the image that

14   Snickles reported seeing was no longer visible on the screen. The tablet was

15   secured by another trooper into an evidence bag and stored at a state police

16   barracks.

17         In the meantime, Smith was placed under arrest for driving while

18   intoxicated, and he was taken to the hospital where he stayed overnight before



                                              5
 1   returning home the next day. That next day—October 31, 2014—Kirby went to

 2   Smith’s home to seek Smith’s consent to a search of the contents of the tablet and

 3   cell phone, but Smith declined to consent.

 4         After Smith declined to consent to a search, Kirby waited for more than a

 5   month until December 1, 2014, before seeking a warrant from a state court judge

 6   to search the tablet and cell phone. The subsequent search of the tablet yielded

 7   dozens of videos and images of child pornography. This discovery in turn

 8   triggered additional search warrants for Smith’s residences where the police

 9   seized devices that contained even more child pornography.

10         B. Initial proceedings before the district court

11         A federal grand jury charged Smith with six counts of unlawful possession

12   of child pornography, in violation of 18 U.S.C. § 2252A. Smith moved on

13   multiple grounds to suppress the evidence from his tablet and from the

14   subsequent searches of other electronic devices. The district court (Mordue, J.)

15   conducted a hearing and then denied the motion to suppress. Smith entered a

16   conditional plea of guilty to all six counts of the indictment, reserving the right to

17   appeal the denial of the motion to suppress. The district court sentenced Smith

18   principally to a term of 212 months of imprisonment.



                                               6
 1         C. Initial appeal

 2         Smith appealed the denial of his motion to suppress and the length of his

 3   sentence. By prior summary order, we rejected all but one of Smith’s challenges

 4   to the denial of the motion to suppress. See United States v. Smith, 759 F. App’x 62

 5   (2d Cir. 2019). Specifically, we concluded that the police had probable cause to

 6   seize the tablet from Smith’s car but that the record was not sufficiently

 7   developed to decide if the police had waited an unreasonably long time before

 8   seeking a warrant to search the contents of the tablet. Id. at 64–65.

 9         The case was remanded to the district court to conduct an additional

10   evidentiary hearing and to make findings. Id. at 65. We retained jurisdiction

11   following remand to review the district court’s determination as well as to

12   review Smith’s challenge to the length of his sentence. Id. at 65 & n.3.

13          D. Hearing and ruling on remand

14         The district court on remand conducted an additional evidentiary hearing

15   with testimony from Kirby and Smith. It then re-affirmed in a written ruling its

16   prior conclusion that the delayed search was not unreasonable. In doing so, the

17   district court addressed each of the four factors that we identified as relevant to

18   deciding whether the delay was unreasonable: “[1] the length of the delay, [2] the



                                               7
 1   importance of the seized property to the defendant, [3] whether the defendant

 2   had a reduced property interest in the seized items, and [4] the strength of the

 3   state’s justification for the delay.” Smith, 759 F. App’x at 65.

 4         As to the first factor (length of delay), the district court concluded that “a

 5   month-long delay in obtaining a search warrant is not unreasonable per se.”

 6   Supp. App. 127. It stated that “[c]ourts have found similar and even longer

 7   delays to be reasonable where the delay was justified by other factors.” Id.

 8         As to the second factor (importance of the tablet to Smith), the district

 9   court noted Smith’s testimony that he used the tablet at times for “keeping in

10   touch with family and friends” and for “some basic personal projects,” id. at 128,

11   but it also noted that Smith had a computer and alternative devices that could

12   serve these functions. The district court found “no evidence that the seizure

13   significantly infringed on [Smith’s] property interests or prevented him from

14   accessing important personal information,” pointing out that Smith “never asked

15   for the return of the tablet, nor did he communicate to authorities that he stored

16   important personal information on it.” Id.

17         As to the third factor (whether Smith had a reduced property interest), the

18   district court determined that Smith’s possessory interest in the tablet was



                                                8
 1   diminished because probable cause existed to believe that the seized device

 2   contained child pornography. According to the district court, the seriousness of

 3   the crime gave the police a strong interest in retaining the tablet rather than

 4   returning it to Smith.

 5         Lastly, as to the fourth factor (the justification for delay), the district court

 6   found that Kirby “was solely responsible for 24 active criminal investigations

 7   across an expansive, rural area of New York State.” Id. These investigations

 8   “included matters involving rape, suicide, drowning, burglary, grand larceny,

 9   sexual abuse, accidental shooting, unattended death, death of an incompetent

10   person, and endangering the welfare of an incompetent person.” Id. at 122. The

11   size of Kirby’s district “involved travel times of up to an hour and a half” to

12   drive to outlying towns from the state trooper headquarters in Ray Brook, New

13   York. Id. The district court cited Kirby’s testimony that “he considered [Smith’s]

14   case to be one [of] the highest priorities on his case list,” that “he worked all 19 of

15   his scheduled workdays between October 30th and December 1st, and that he

16   actively worked on [Smith’s] case and other cases during that time.” Id. at 129.

17         The district court went on to acknowledge that “[a]lthough Investigator

18   Kirby’s investigation could be viewed as slow-footed, he testified that he



                                                9
 1   obtained the warrant ‘as soon as possible.’” Id. It added that “while one might

 2   expect that a search warrant would have been sought more expeditiously, the

 3   Court finds no evidence to indicate any deliberate, reckless, or grossly negligent

 4   disregard for [Smith’s] rights.” Id. Thus, the district court concluded that “even if

 5   the one-month delay in obtaining the search warrant was unreasonable,

 6   suppression is not warranted because it would serve no deterrent effect as there

 7   is no evidence of intentional wrongdoing by Investigator Kirby.” Id. at 129 n.3.

 8                                       DISCUSSION

 9         In light of the district court’s supplemental ruling, we now address the

10   remaining two issues in this appeal: (1) whether the district court erred by

11   denying Smith’s motion to suppress insofar as Smith claims that the police

12   waited an unreasonably long time before applying for a warrant to search his

13   tablet, and (2) whether the district court erred when imposing a sentence of 212

14   months of imprisonment.

15         A. Denial of suppression motion

16         When reviewing the grant or denial of a motion to suppress, we apply a de

17   novo standard of review of the district court’s conclusions of law and a

18   deferential, clear-error standard of review of the district court’s findings of fact.



                                               10
 1   See United States v. Boles, 914 F.3d 95, 102 (2d Cir. 2019). To the extent that a

 2   district court’s determination may involve a mixed question of law and fact, we

 3   apply de novo review, including to any ultimate determination whether the

 4   established facts satisfy the relevant legal standard. See United States v. Fiseku, 915

 5   F.3d 863, 869 (2d Cir. 2018).

 6          1. Whether the delay was unreasonable

 7          The Fourth Amendment protects “[t]he right of the people to be secure in

 8   their persons, houses, papers, and effects, against unreasonable searches and

 9   seizures.” U.S. Const., amend. IV. A “search” occurs for purposes of the Fourth

10   Amendment if the police seek information by intruding on a person’s reasonable

11   expectation of privacy or by means of trespassing upon one’s person, house,

12   papers, or effects. See Florida v. Jardines, 569 U.S. 1, 5 (2013); United States v. Jones,

13   565 U.S. 400, 408 n.5 (2012); El-Nahal v. Yassky, 835 F.3d 248, 253–54 (2d Cir. 2016).

14   A “seizure” of personal property occurs for purposes of the Fourth Amendment

15   if the police meaningfully interfere with an individual’s possessory interests in

16   that property. See United States v. Jacobsen, 466 U.S. 109, 113 (1984); United States v.

17   Iverson, 897 F.3d 450, 458 (2d Cir. 2018).

18          Police investigations commonly involve an initial seizure of a person’s



                                                  11
 1   property for purposes of conducting a search of the contents within it. If the

 2   police have probable cause to believe that the property contains contraband or

 3   evidence of a crime and if it is necessary to seize or secure the property

 4   immediately to prevent its destruction or disappearance, the Fourth Amendment

 5   allows the police to seize or secure the property without a warrant provided that

 6   they follow up by applying to a judge for a warrant to search the property’s

 7   contents. See Illinois v. McArthur, 531 U.S. 326, 332–34 (2001); United States v. Place,

 8   462 U.S. 696, 701 (1983).

 9         The right of the police to temporarily seize a person’s property pending

10   the issuance of a search warrant presupposes that the police will act with

11   diligence to apply for the warrant. The Supreme Court “has upheld temporary

12   restraints where needed to preserve evidence until police could obtain a

13   warrant,” and has never “held unlawful a temporary seizure that was supported

14   by probable cause and was designed to prevent the loss of evidence while the

15   police diligently obtained a warrant in a reasonable period of time.” McArthur, 531 U.S.

16   at 334 (emphasis added). To the same effect, we have also ruled that “even a

17   seizure based on probable cause is unconstitutional if police act with

18   unreasonable delay in securing a warrant.” United States v. Martin, 157 F.3d 46, 54



                                                12
 1   (2d Cir. 1998).

 2         Other courts have well explained why the police may not unreasonably

 3   delay in seeking a warrant. “We demand expediency in obtaining a search

 4   warrant to search seized evidence in order to avoid interfering with a continuing

 5   possessory interest for longer than reasonably necessary, in case the search

 6   reveals no evidence (or permissibly segregable evidence) of a crime and the item

 7   has no independent evidentiary value and is not otherwise forfeitable.” United

 8   States v. Sparks, 806 F.3d 1323, 1340 (11th Cir. 2015). Moreover, “unnecessary

 9   delays also undermine the criminal justice process in a more general way: they

10   prevent the judiciary from promptly evaluating and correcting improper

11   seizures.” United States v. Burgard, 675 F.3d 1029, 1033 (7th Cir. 2012). “What,

12   after all, is ‘reasonable’ about police seizing an individual’s property on the

13   ground that it potentially contains relevant evidence and then simply neglecting

14   for months or years to search that property to determine whether it really does

15   hold relevant evidence needed for trial or is totally irrelevant to the investigation

16   and should be returned to its rightful owner?” United States v. Christie, 717 F.3d

17   1156, 1162 (10th Cir. 2013) (Gorsuch, J.).

18         In Martin, we considered whether it was unreasonable under the Fourth



                                                  13
 1   Amendment for the police to delay eleven days before applying for a warrant to

 2   search a package that the police seized from United Parcel Service (“UPS”) and

 3   for which the police had probable cause to believe contained contraband. We

 4   noted that “[i]n some circumstances eleven days might well constitute an

 5   unreasonable delay,” but held that “several factors lead us to conclude that,

 6   under the particular circumstances present here, the delay was not

 7   constitutionally infirm.” 157 F.3d at 54. These case-specific factors in Martin

 8   principally included that the delay involved two intervening weekends and the

 9   Christmas holiday, that the defendant had assumed a risk that his accomplice

10   would reveal (as he did) the contents of the UPS package to the police, and that

11   the defendant had voluntarily relinquished control of the package to UPS for

12   delivery. Id. We held that “while we would normally expect police officers to

13   secure a search warrant in considerably less time than was taken here, under the

14   particular circumstances present here, we cannot say that the delay in securing

15   the . . . warrant was so ‘unreasonable’ as to violate the Fourth Amendment.” Id.

16         As we outlined in our prior summary order in this case, the following four

17   factors are generally relevant to whether the police have waited an unreasonable

18   amount of time before seeking a search warrant: [1] the length of the delay, [2]



                                              14
 1   the importance of the seized property to the defendant, [3] whether the

 2   defendant had a reduced property interest in the seized item, and [4] the strength

 3   of the state’s justification for the delay. See Smith, 759 F. App’x at 65. 1 We asked

 4   the district court on remand to evaluate the relevant factors to decide if the delay

 5   was unreasonable. Although we appreciate the district court’s conscientious

 6   review, we are unable to agree with its assessment of several of these factors.

 7           As to the first factor (the length of delay), the district court stated that “a

 8   month-long delay in obtaining a search warrant is not unreasonable per se.”

 9   Supp. App. 127. We do not agree. As we observed in Martin, “[i]n some

10   circumstances eleven days might well constitute an unreasonable delay,” and

11   “we would normally expect police officers to secure a search warrant in

12   considerably less time than” eleven days. 157 F.3d at 54. The month-long delay at

13   issue here is nearly three times as long as the delay in Martin and is not

14   presumptively reasonable.

15           If the police have seized a person’s property for the purpose of applying



     1 Other federal appeals courts have set forth similar relevant factors that essentially seek to
     balance the individual’s possessory interest against the government’s continuing interest in
     retaining the property for investigation or prosecution. See, e.g., United States v. Pratt, 915 F.3d
     266, 271 (4th Cir. 2019); United States v. Sullivan, 797 F.3d 623, 633–34 (9th Cir. 2015); Christie, 717
     F.3d at 1162; United States v. Laist, 702 F.3d 608, 613–14 (11th Cir. 2012); Burgard, 675 F.3d at
     1033–34; United States v. Stabile, 633 F.3d 219, 235 (3d Cir. 2011).
                                                       15
 1   for a warrant to search its contents, it is reasonable to expect that they will not

 2   ordinarily delay a month or more before seeking a search warrant. After all, if the

 3   police have probable cause to seize an item in the first place, there is little reason

 4   to suppose why they cannot promptly articulate that probable cause in the form

 5   of an application to a judge for a search warrant.

 6         The facts of this case are a good example. Every fact that was material to

 7   probable cause was set forth in a single paragraph in the search warrant

 8   application. Every one of these facts was known to the police on the same day

 9   that the tablet was seized from Smith—October 30, 2014.

10         In addition, although the district court concluded that a month-long delay

11   was not unreasonable per se, it did not explain what weight this factor should

12   have among the balance of factors. Instead, the district court went on to observe

13   that “[c]ourts have found similar and even longer delays to be reasonable where

14   the delay was justified by other factors.” Supp. App. 127. But this analysis

15   prematurely shifts to evaluating the police’s reasons for the delay rather than

16   reckoning with the length of delay itself, which is the first factor that a court

17   must consider when deciding if the police have unreasonably delayed in seeking

18   a search warrant.



                                               16
 1         We give independent weight to the length of delay, and we conclude that a

 2   month-long delay well exceeds what is ordinarily reasonable. The first factor

 3   (length of delay) weighs substantially in favor of Smith.

 4         As to the second factor (importance of the seized property to the

 5   defendant), our starting point is to consider the nature of the property seized: a

 6   personal tablet computer that is typically used for communication and for the

 7   storage of immense amounts of personal data. The sheer volume of data that

 8   may be stored on an electronic device like a Nextbook (or similar tablet computer

 9   products like an Apple iPad) raises a significant likelihood that much of the data

10   on the device that has been seized will be deeply personal and have nothing to

11   do with the investigation of criminal activity.

12         For this reason, we have recognized the special concerns that apply when

13   law enforcement seize and search people’s personal electronic data and

14   communication devices. “Tax records, diaries, personal photographs, electronic

15   books, electronic media, medical data, records of internet searches, banking and

16   shopping information—all may be kept in the same device, interspersed among

17   the evidentiary material that justifies the seizure or search.” United States v.

18   Ganias, 824 F.3d 199, 218 (2d Cir. 2016) (en banc). “While physical searches for



                                               17
 1   paper records or other evidence may require agents to rummage at least

 2   cursorily through much private material, the reasonableness of seizure and

 3   subsequent retention by the government of such vast quantities of irrelevant

 4   private material was rarely if ever presented in cases prior to the age of digital

 5   storage, . . .” Id. Thus, we have acknowledged that the “search and seizure of

 6   digital media is, in some ways, distinct from what has come before” the advent of

 7   personal electronic storage and communication devices. Id.

 8         Indeed, this fundamental distinction between one’s ordinary personal

 9   effects and one’s personal electronic devices has persuaded the Supreme Court to

10   accord broader constitutional protection when the police seize a person’s “smart”

11   cell phone. In Riley v. California, 573 U.S. 373 (2014), the Supreme Court

12   considered the authority of the police to conduct a search of a person’s cell phone

13   when seized incident to the arrest of the person. As the Supreme Court

14   recognized, the prevailing rule was that the police could conduct a search of

15   ordinary personal effects that were found on an arrestee’s person without the

16   need to apply for a search warrant. Id. at 382–85. But the Court observed that

17   “[m]odern cell phones, as a category, implicate privacy concerns far beyond

18   those implicated by the search of a cigarette pack, a wallet, or a purse.” Id. at 393.



                                               18
 1   The Court went on to describe the immense storage capacity of modern cell

 2   phones and how people commonly use them to store vast amounts of highly

 3   personal information. Id. at 393–97.

 4         All these extraordinary characteristics led the Supreme Court to conclude

 5   that “[o]ur answer to the question of what police must do before searching a cell

 6   phone seized incident to an arrest is accordingly simple—get a warrant.” Id. at

 7   403. The same rule has been applied to the search of cell phones seized under

 8   other exceptions to the Fourth Amendment’s warrant requirement. See United

 9   States v. Kirk Tang Yuk, 885 F.3d 57, 79 & n.11 (2d Cir. 2018) (“plain view”

10   exception); United States v. Camou, 773 F.3d 932, 943 (9th Cir. 2014) (automobile

11   exception).

12         The upshot is that the search and seizure of personal electronic devices like

13   a modern cell phone or tablet computer implicates different privacy and

14   possessory concerns than the search and seizure of a person’s ordinary personal

15   effects. Although the district court did not acknowledge or discuss the

16   significance of this distinction, we think it vital to assessing the importance of the

17   seized property to a defendant when the item in question is a tablet computer or

18   other personal electronic device.



                                              19
 1            Nevertheless, the district court here concluded that Smith’s testimony

 2   about the use and particular significance of the tablet to him was spare in detail,

 3   that he had alternative electronic devices that could serve the same functions as

 4   his tablet, and that he did not request the return of the tablet. Notwithstanding

 5   the distinctive qualities of Smith’s tablet as a personal electronic device, these

 6   findings adequately support the district court’s conclusion that the second factor

 7   (importance of the seized property to the defendant) weighs in the Government’s

 8   favor.

 9            As to the third factor (whether the defendant had a reduced property

10   interest in the seized item), the tablet was owned by Smith and was taken from

11   the car he had been driving. Smith did not consent to the seizure of the tablet.

12   Nor did he consent to a search of its contents when Kirby sought his permission

13   the next day. This case is unlike those where courts have found that a defendant

14   has a diminished property interest because the defendant or a co-owner

15   consented to the initial seizure, or because the defendant later consented to a

16   search after the property’s seizure, or because the property had been otherwise

17   voluntarily relinquished to a third party. 2 Smith did nothing to reduce his


     2See, e.g., Sullivan, 797 F.3d at 634 (defendant consented to search of laptop computer 17 days
     after it had been seized); Christie, 717 F.3d at 1163 (co-owner of computer consented to seizure
                                                    20
 1   property interest by means of consent or voluntarily relinquishing control of his

 2   tablet computer.

 3          The district court concluded that Smith’s possessory interest was

 4   diminished for a different reason: because the police had probable cause to

 5   believe that the tablet contained child pornography. It is true that the existence of

 6   probable cause had bearing on Smith’s possessory interest. It entitled the police

 7   to immediately seize the tablet so that they could apply for a warrant to search its

 8   contents. The fact that there was probable cause—rather than merely reasonable

 9   suspicion—allowed more time for the police to retain possession of the tablet

10   pending their application for a search warrant. “The state has a stronger interest

11   in seizures made on the basis of probable cause than in those resting only on

12   reasonable suspicion,” and “[a]ll else being equal, the Fourth Amendment will

13   tolerate greater delays after probable-cause seizures.” Burgard, 675 F.3d at 1033;

14   cf. United States v. Babcock, 924 F.3d 1180, 1190–92 (11th Cir. 2019) (reasonable

15   suspicion would not justify warrantless seizure with delay of two days for police

16   to seek warrant to search cell phone).




     without objection from defendant); Laist, 702 F.3d at 618 (defendant initially consented to
     seizure before later revoking consent); Martin, 157 F.3d at 54 (package with suspect contraband
     voluntarily relinquished to UPS).
                                                   21
 1         Still, to the extent that Smith’s possessory interest was offset by the police’s

 2   probable cause to seize the tablet, the police’s interest was delimited by the

 3   obligation to seek a search warrant without unreasonable delay. That is because

 4   “[t]he longer the police take to seek a warrant, the greater the infringement on

 5   the person’s possessory interest will be, for the obvious reason that a longer

 6   seizure is a greater infringement on possession than a shorter one.” Burgard, 675

 7   F.3d at 1033. Therefore, the existence of probable cause is relevant to Smith’s

 8   possessory interest but far from dispositive to deciding the reasonableness of the

 9   ensuing delay in seeking a search warrant.

10         Nor does the record show that Smith’s tablet had independent evidentiary

11   value that would have justified the police’s retention of the tablet without regard

12   to whether they ever sought a warrant to search the tablet’s contents. See, e.g.,

13   Sparks, 806 F.3d at 1340; Pratt, 915 F.3d at 273 (“We decline to affirm on the

14   government’s alternative argument that it could retain the phone indefinitely

15   because it had independent evidentiary value, like a murder weapon.”).

16          Although the police had probable cause at the outset to seize the tablet for

17   further investigation, they did not charge Smith with possession of child

18   pornography until after the tablet was searched and incriminating images found.



                                              22
 1   Before obtaining a search warrant, Kirby was uncertain what the search of the

 2   tablet would reveal, stating in equivocal terms in his warrant application that

 3   Snickles had seen male genitalia near a “possibly” pre-pubescent female’s

 4   genitalia. A. 132. Similarly, Snickles’ deposition statement on the day of the

 5   seizure described the female genitalia he saw on the tablet screen as “bald” but

 6   without description of age, stating only that “[t]he electronic device was secured

 7   as it may pertain to a possible illegal sexual encounter with a female” and that

 8   another trooper “secured the item, for further possible evaluation.” A. 130

 9   (emphasis added).

10         These circumstances show that this is not like a case where the police seize

11   in plain view a murder weapon or obvious contraband like narcotics that retains

12   investigative or prosecutorial value regardless of any further search of its

13   contents. The tablet’s evidentiary value turned solely on what the police might

14   find from a search of its contents. And the police could not search its contents

15   unless and until they applied for a search warrant.

16         Thus, the existence of probable cause diminished Smith’s property interest

17   in the tablet for only so long as it was reasonable for the police to wait before

18   obtaining a warrant to search its contents. Because Smith otherwise retained a



                                              23
 1   strong property interest in the tablet, we conclude on balance that the third factor

 2   (reduced property interest) is either neutral or weighs in Smith’s favor.

 3         As to the fourth factor (the justification for the delay), the seizure here

 4   occurred when Smith was arrested on October 30, 2014, and the record shows

 5   that Kirby engaged in very little investigation of Smith between that date and

 6   when he applied for a search warrant on December 1, 2014. On the day after the

 7   seizure of the tablet, Kirby went to Smith’s home to seek consent to search the

 8   tablet, which Smith declined to provide. As part of his efforts to investigate

 9   Smith’s prior criminal history, Kirby made an inquiry to a police department in

10   Rhode Island. Although the record does not reflect the exact date when Kirby

11   made this inquiry, Kirby testified that he received the requested information

12   within just two or three days.

13         The record does not otherwise show that Kirby engaged in any

14   investigation of Smith’s case for nearly four weeks from November 4 to

15   December 1, 2014. The desultory nature of the police investigation is underscored

16   by the fact that, when Kirby eventually applied for the search warrant, he

17   mistakenly claimed that Smith had multiple prior sex offense convictions despite

18   the fact that he had a single prior sex offense conviction.



                                              24
 1         The district court found that a month-long delay was justified by reason of

 2   Kirby’s caseload and the geographical size of the region that he covered.

 3   Although we do not question the district court’s findings about the numbers and

 4   types of cases or the size of the region that Kirby covered, these findings by

 5   themselves fall short of justifying the delay. The record does not show that there

 6   was any particular investigation or police duty that specifically delayed Kirby in

 7   applying for a search warrant for the seized tablet.

 8         The fact that a police officer has a generally heavy caseload or is

 9   responsible for a large geographical district does not without more entitle the

10   officer to wait without limit before applying for a warrant to search an item that

11   the officer has seized. That is because the Fourth Amendment imposes a time-

12   sensitive duty to diligently apply for a search warrant if an item has been seized

13   for that very purpose, and all the more so if the item has been warrantlessly

14   seized. The police may not overlook this duty to attend to other matters for

15   which the Constitution imposes no such time-sensitive duty unless there are

16   important reasons why other matters must take priority. “After seizing an item

17   without a warrant, an officer must make it a priority to secure a search warrant

18   that complies with the Fourth Amendment.” Burgard, 675 F.3d at 1035.



                                              25
 1         Indeed, this case involves an investigator with two dozen cases on his

 2   docket in a predominantly rural corner of upstate New York. If we were to

 3   conclude that the general press of business for this investigator with this caseload

 4   is reason enough to excuse a month-long delay in applying for a search warrant,

 5   it is hard to imagine why even longer delays would not become the new

 6   “normal” for investigators in areas with far larger caseloads and congested traffic

 7   conditions.

 8         Nor are the district court’s other findings enough to justify the delay. The

 9   district court recited Kirby’s testimony that “he obtained the warrant ‘as soon as

10   possible.’” Supp. App. 129. But this statement is not supported in the record in

11   light of the absence of any investigative activity by Kirby on Smith’s case for

12   nearly four weeks from November 4 to December 1, 2014.

13         The district court relied on Kirby’s testimony that the case against Smith

14   was “‘really serious,’” that it was “‘very important’” to identify the possibly

15   minor victim seen on the tablet, and that this was one of Kirby’s “highest priority

16   cases” at the time. Id. at 123. But all this testimony cuts against the claim that

17   Kirby had good reason to devote his attention to other cases before applying for

18   a warrant to search Smith’s tablet.



                                               26
 1         We conclude that the fourth factor (the justification for delay) weighs in

 2   Smith’s favor. Even the district court acknowledged that “Investigator Kirby’s

 3   investigation could be viewed as slow-footed,” and “one might expect that a

 4   search warrant would have been sought more expeditiously.” Id. at 129. This was

 5   undoubtedly so.

 6         All in all, the balance of these relevant factors weighs in favor of a

 7   conclusion that Kirby’s delay in seeking a search warrant for Smith’s seized

 8   tablet computer was unreasonable under the Fourth Amendment. In United States

 9   v. Mitchell, 565 F.3d 1347, 1353 (11th Cir. 2009), the Eleventh Circuit concluded

10   that the Government’s delay in seeking a search warrant was unreasonable on

11   similar grounds. Federal law enforcement agents in Mitchell had probable cause

12   to believe that the defendant’s computer contained child pornography, and

13   agents seized the computer hard drive from the defendant without his consent

14   and then waited 21 days before applying for a warrant to search the computer.

15   Id. at 1349. The agent testified that he did not see any urgency to apply for a

16   warrant before he departed for a two-week training program, and the

17   Government further argued that the delay was justified because this particular

18   agent was the only one in the area who was qualified to conduct a forensic



                                              27
 1   examination of the hard drive’s contents. Id. at 1351–52.

 2         The Eleventh Circuit noted that a delay may be excused “if some

 3   overriding circumstances arose, necessitating the diversion of law enforcement

 4   personnel to another case,” and “that there may be occasions where the resources

 5   of law enforcement are simply overwhelmed by the nature of a particular

 6   investigation, so that a delay that might otherwise be unduly long would be

 7   regarded as reasonable.” Id. at 1353. But the court ruled that these overriding

 8   circumstances had not been established on the facts before it: “[n]o effort was

 9   made to obtain a warrant within a reasonable time because law enforcement

10   officers simply believed that there was no rush,” and “[u]nder these

11   circumstances, the twenty-one-day delay was unreasonable.” Id.

12         For similar reasons, the record before us here shows that Kirby was not

13   diligent in seeking a warrant to search Smith’s tablet, and there were no

14   overriding circumstances to otherwise justify a month-long delay. The delayed

15   search of Smith’s tablet was unreasonable in violation of the Fourth Amendment.

16         2. Whether to apply the exclusionary rule

17         Not every violation of the Fourth Amendment justifies invocation of the

18   exclusionary rule to require suppression of evidence. As we have recently noted,



                                             28
 1   “the exclusionary rule is a judicially-created mechanism of safeguarding against

 2   unreasonable searches and seizures—violations of the Fourth Amendment—

 3   primarily through its deterrent effect.” United States v. Hightower, 950 F.3d 33, 36

 4   (2d Cir. 2020) (per curiam).

 5         For this reason, the exclusionary rule applies only if the police have

 6   violated the Constitution deliberately, recklessly, or with gross negligence, or if a

 7   constitutional violation is the product of recurring or systemic negligence. See

 8   Davis v. United States, 564 U.S. 229, 236–40 (2011); Herring v. United States, 555 U.S.

 9   135, 144 (2009). By contrast, the application of the exclusionary rule is not

10   appropriate for constitutional violations that are the product of isolated simple

11   negligence, because exclusion in such circumstances will not result in appreciable

12   deterrence of police misconduct. See Davis, 564 U.S. at 237–38; Herring, 555 U.S. at

13   137, 144 n.4.

14         The district court found “no evidence to indicate any deliberate, reckless,

15   or grossly negligent disregard for [Smith’s] rights.” Supp. App. 129. This finding

16   is well-supported by the record. Although we hold that Kirby’s delay in applying

17   for a warrant to search Smith’s tablet was unreasonable, the record does not

18   show that Kirby acted with a deliberate intent to violate Smith’s rights or that it



                                               29
 1   was reckless or grossly negligent for Kirby to allow a month to slip by before

 2   applying for a search warrant.

 3         Indeed, so far as the record reflects, Kirby’s delay was an isolated act of

 4   negligence. His delay did not afford the police any strategic advantage in Smith’s

 5   case. Cf. United States v. Stokes, 733 F.3d 438, 443–44 (2d Cir. 2018) (exclusionary

 6   rule warranted where “law enforcement personnel made a deliberate decision to

 7   violate constitutional requirements” as part of “a deliberate strategic choice to

 8   have the officers attempt to arrest [the defendant] without a warrant, in order to

 9   question [the defendant] outside of the presence of counsel”). Nor does the

10   record show systemic or recurring negligence by Kirby or any of the

11   investigative agencies involved in this case. There would be no appreciable

12   deterrent value achieved by ordering suppression of the evidence in this case.

13         To be sure, the Supreme Court has instructed that “[t]he pertinent analysis

14   of deterrence and culpability is objective, not an inquiry into the subjective

15   awareness of arresting officers,” and “our good-faith inquiry is confined to the

16   objectively ascertainable question whether a reasonably well trained officer

17   would have known that the search was illegal in light of all of the

18   circumstances.” Herring, 555 U.S. at 145 (internal quotation marks omitted); see



                                               30
 1   also Davis, 564 U.S. at 238 (application of exclusionary rule not warranted “when

 2   the police act with an objectively reasonable good-faith belief that their conduct

 3   is lawful” (internal quotation marks omitted)).

 4          Even from this objective standpoint, we cannot say that a reasonably well-

 5   trained officer in Kirby’s position would have known that the month-long delay

 6   amounted to no less than a violation of Smith’s Fourth Amendment rights. As is

 7   clear from our discussion above, the constitutional reasonableness of delay

 8   depends on the assessment and balancing of multiple factors. For better or

 9   worse, this is not an area of Fourth Amendment law that has reduced itself to

10   bright-line rules.

11          Not surprisingly, precedent ran both ways as of the date of the seizure of

12   Smith’s tablet in this case. As we have already discussed, some of the rulings

13   would have suggested to an officer in Kirby’s position that the 31-day delay in

14   this case was too long. 3 By contrast, other rulings pointed in a different

15   direction—upholding delays of similar or even much longer duration. 4 Although



     3See Martin, 157 F.3d at 54; Mitchell, 565 F.3d at 1353; see also United States v. Dass, 849 F.2d 414,
     415–16 (9th Cir. 1988) (finding unreasonable delays of between seven to 23 days to seek search
     warrants for seized packages).
     4See, e.g., United States v. Howe, 545 F. App’x 64, 66 (2d Cir. 2013) (upholding 13-month delay
     where warrant affidavit was drafted the next day but not executed and where there was
     confusion about whether warrant had previously been obtained); Laist, 702 F.3d at 616–17
                                                       31
 1   an objectively reasonable officer in Kirby’s position should have realized that by

 2   waiting a month he was perilously near the constitutional line, we are not

 3   convinced that an objectively reasonable officer would have known that the

 4   delay amounted to a violation of the Fourth Amendment.

 5          All that said, we have stated and clarified principles above that shall guide

 6   law enforcement officers with respect to what circumstances establish an

 7   unreasonable delay under the Fourth Amendment. We have discussed how the

 8   length of delay has independent weight as a factor and how a delay of one

 9   month or more is ordinarily too long for an officer to apply for a warrant. We

10   have described how seizure of personal electronic storage and communication

11   devices must be given heightened consideration in terms of the defendant’s

12   interests. And we have explained how the general press of police business may

13   not justify a lengthy delay absent particular evidence showing why other police

14   duties reasonably took precedence. These principles shall likewise inform the

15   application of the exclusionary rule in future cases.




     (upholding 25-day delay where initial seizure was based on consent, where record showed
     extended efforts of agent to draft careful warrant application, and where agent had generally
     busy docket and broad geographical area); United States v. Vallimont, 378 F. App’x 972, 976 (11th
     Cir. 2010) (upholding a 45-day delay where there were “overriding circumstances necessitating”
     the officer’s “diversion to other cases,” and more generally where “the law enforcement
     resources . . . were simply overwhelmed” (internal quotation marks omitted)).
                                                    32
 1          B. Sentencing

 2          Smith further challenges his sentence. We review a district court’s sentence

 3   for whether the district court abused its discretion, either with respect to the

 4   procedures it followed or the substantive reasonableness of the sentence

 5   imposed. See United States v. Ojeda, 946 F.3d 622, 627 (2d Cir. 2020). Our review

 6   incorporates de novo review of any questions of law and clear-error review of any

 7   questions of fact. Id.

 8          The district court calculated Smith’s offense level primarily under section

 9   2G2.2 of the then-applicable U.S. Sentencing Guidelines (“U.S.S.G.”). Smith’s

10   final offense level was 34, which in combination with a criminal history category

11   of III resulted in a sentencing guidelines range of 188–235 months of

12   imprisonment. 5

13          As relevant to this appeal, Smith objected to the application of U.S.S.G.




     5 The guidelines calculation included the following components: a base offense level of 18
     (U.S.S.G. § 2G2.2(a)(1)); an increase of two levels because the offense involved a prepubescent
     minor or a minor who had not attained the age of 12 years (U.S.S.G. § 2G2.2(b)(2)); an increase
     of four levels because the offense involved material that portrays sadistic or masochistic
     conduct or other depictions of violence, or sexual abuse or exploitation of an infant or toddler
     (U.S.S.G. § 2G2.2(b)(4)); an increase of five levels for engaging in a pattern of activity involving
     the sexual abuse or exploitation of a minor (U.S.S.G. § 2G2.2(b)(5)); an increase of two levels
     because the offense involved the use of a computer (U.S.S.G. § 2G2.2(b)(6)); an increase of five
     levels because the offense involved 600 or more images (U.S.S.G. § 2G2.2(b)(7)(D)); and a
     decrease of two levels for acceptance of responsibility (U.S.S.G. § 3E1.1(a)).
                                                      33
 1   § 2G2.2(b)(5), which provides for an increase of five offense levels “[i]f the

 2   defendant engaged in a pattern of activity involving the sexual abuse or

 3   exploitation of a minor.” The Guidelines commentary defines a “pattern of

 4   activity involving the sexual abuse or exploitation of a minor” to mean “any

 5   combination of two or more separate instances of the sexual abuse or sexual

 6   exploitation of a minor by the defendant, whether or not the abuse or

 7   exploitation (A) occurred during the course of the offense; (B) involved the same

 8   minor; or (C) resulted in a conviction for such conduct.” U.S.S.G. § 2G2.2 cmt. 1.

 9         The Government based its claim that Smith had engaged in a pattern of

10   sexual abuse of minors on grounds of his abuse of a seven-year-old girl (“KN2”),

11   for which he had been convicted of second-degree child molestation in Rhode

12   Island in 1993, and also his sexual abuse of the girl’s younger sister (“KN1”), for

13   which Smith had never been charged or convicted. Smith did not contest his

14   sexual abuse of KN2 but denied abusing KN1. In light of this dispute about

15   whether Smith had sexually abused KN1, the district court heard testimony at

16   the sentencing hearing from both KN1 and Smith.

17         KN1 testified about two incidents when she was 3 or 4 years old, and both

18   these incidents occurred at Smith’s home in Rhode Island where the parents of



                                              34
 1   KN1 and KN2 had left her for babysitting by Smith’s wife. The first incident

 2   involved Smith’s “touch[ing] [KN1’s] vagina with his fingers and as well as his

 3   mouth.” A. 603. The second incident was early one morning when Smith

 4   “instructed [KN1] to lay on the couch and get undressed,” then he played “VHS

 5   pornography [and] he asked if [KN1] wanted to do certain things in that video.”

 6   A. 604. Smith had her perform oral sex on him until she “began to cry,” at which

 7   point he stopped and then “began to perform oral sex on [KN1],” and “[f]rom

 8   there he put [her] on his lap where he then sodomized [her].” A. 604–05.

 9         On cross examination, KN1 stated that despite her very young age at the

10   time of the incident she recalled what happened clearly because it was a “very

11   life altering feeling and emotion” when Smith abused her. A. 606. KN1

12   acknowledged that she had not told law enforcement at the time about the abuse

13   when she had been questioned during the course of the investigation of Smith’s

14   abuse of KN2. According to KN1, she “shut down immediately and answered

15   basically no questions,” because she “was very afraid.” A. 612.

16         After KN1 testified, Smith took the witness stand to deny that KN1 or KN2

17   had ever come to his home or that his wife had ever babysat for KN1 or KN2. He

18   also denied the incidents of abuse about which KN1 testified. On the other hand,



                                             35
 1   Smith admitted that he knew the parents of KN2 and also that he had once

 2   performed oral sex on seven-year-old KN2 when he went to the house of KN2 to

 3   engage in drug use and sexual relations with KN2’s mother. This incident

 4   involving KN2 was the basis for Smith’s later arrest and conviction for child

 5   molestation in 1993.

 6         At the conclusion of the evidentiary hearing, the district court stated its

 7   finding by a preponderance of the evidence that Smith “did, in fact, sexually

 8   abuse [KN1] in or around 1989 or 1990,” and that “[b]ased on this finding, as well

 9   as the conviction of the defendant for having sexually abused her sister [KN2],

10   the defendant meets the requirements of 2G2.2(b)(5) of the United States

11   Sentencing Guidelines” to warrant a five-level increase in the guidelines offense

12   level. A. 629–30.

13         Smith noted his objection to this ruling, arguing that the Government had

14   failed to corroborate KN1’s account and that KN1’s account was not reliable

15   because KN1 testified that Smith’s wife’s name was “Brenda” when in fact it was

16   “Jill.” A. 632–33. The district court stated that it had considered this discrepancy

17   in the name of Smith’s wife but that it was not material to the court’s decision

18   crediting KN1 about what had occurred.



                                              36
 1         At the conclusion of this evidentiary phase of the sentencing hearing, the

 2   district court then heard general arguments from counsel and a statement from

 3   Smith. The district court also invited KN1 to speak with respect to the sentence

 4   that the court should impose. Smith objected on the ground that KN1 should not

 5   be permitted to address the court because she was not a “victim” of the

 6   pornography offense for which Smith was convicted. A. 638–39. But the district

 7   court overruled this objection, and KN1 then spoke at some length about her

 8   views, including her belief that “[t]his man is sick” and how his abuse “changed

 9   [her] to the core” and how she “ha[s] nightmares about it happening to [her]

10   children and them being broken the way [she] was.” A. 639.

11         The Government urged the district court to impose a sentence of 235

12   months of imprisonment, which was at the top of the guidelines range. By

13   contrast, Smith sought a sentence below the guidelines range. He urged the

14   district court to reject the application of U.S.S.G. § 2G2.2(b)(5) as flawed and

15   instead to impose a sentence of 10 years of imprisonment.

16         The district court then turned to the imposition of sentence. Referring to

17   the sentencing factors set forth in 18 U.S.C. § 3553(a), the district court concluded

18   that a sentence within the guidelines range was warranted. The district court



                                              37
 1   noted its consideration of Smith’s prior conviction for second-degree child

 2   molestation as well as information from the presentence report reflecting that,

 3   while on probation for the molestation offense, he had been arrested in Vermont

 4   with a 16-year-old girl with whom he admitted that he had engaged in sexual

 5   intercourse. The district court further noted its consideration of the sexual abuse

 6   of KN1 and that Smith “possessed hundreds of videos depicting child

 7   pornography, some of which depicted the most violent conduct thinkable.” A.

 8   646. Based on its conclusion that Smith “presents a significant risk of danger to

 9   the community,” the district court decided on a sentence of 212 months of

10   imprisonment, which it noted was “a sentence at the mid range of the guidelines

11   [that] is sufficient, but not greater than necessary, to meet the goals of sentencing

12   outlined in 18 U.S.C. 3553(a).” A. 647.

13         On appeal Smith argues that the district court procedurally erred by

14   crediting the testimony of KN1, which Smith submits was not corroborated and

15   not reliable. We find no clear error in the district court’s credibility determination

16   on the basis of consideration of the testimony of both KN1 and Smith.

17   Notwithstanding the passage of time, the very young age of KN1 at the time of

18   the incidents in question, and the alleged discrepancies in KN1’s account, the



                                               38
 1   district court acted well within its discretion to credit KN1’s account of the

 2   specific incidents when Smith sexually abused her. Indeed, “we pay special

 3   deference to the district court's credibility determination, and a factfinder who

 4   determines that a witness has been contradictory in some respects may

 5   nevertheless find the witness entirely credible in the essentials of his testimony.”

 6   United States v. Gomez, 877 F.3d 76, 97 (2d Cir. 2017) (internal citation, quotation

 7   marks, and alterations omitted). Because Smith had a full opportunity to cross-

 8   examine KN1 as well as to testify to contradict KN1’s account, there is no merit

 9   to Smith’s claim that the district court’s reliance on KN1’s testimony amounted to

10   a violation of the Due Process Clause.

11         Smith further argues that the district court procedurally erred when it

12   allowed KN1 to speak during the sentencing phase of the sentencing hearing. But

13   even if Smith is correct that KN1 did not qualify as a statutory “victim” of

14   Smith’s most recent child pornography offense, see 18 U.S.C. § 3771(e)(2)(A),

15   Congress has not placed arbitrary limits on what information a district court may

16   consider at sentencing. To the contrary, Congress has instructed that “[n]o

17   limitation shall be placed on the information concerning the background,

18   character, and conduct of a person convicted of an offense which a court of the



                                              39
 1   United States may receive and consider for the purpose of imposing an

 2   appropriate sentence.” 18 U.S.C. § 3661.

 3         Thus, we have recognized that “[d]istrict courts have broad discretion both

 4   as to the type of information they may consider in imposing sentence and the

 5   source from which that information derives.” United States v. Messina, 806 F.3d

 6   55, 65 (2d Cir. 2015). And “it has long been established that the Due Process

 7   Clause does not restrict a court with respect to the type of information it may

 8   consider for purposes of sentencing.” United States v. Delacruz, 862 F.3d 163, 175

 9   (2d Cir. 2017).

10         Provided that a defendant has a fair opportunity to respond, a district

11   court has discretion at a sentencing hearing to receive statements or information

12   that are relevant to what sentence the court should impose. KN1’s statement at

13   sentencing about the damaging impact of Smith’s abuse on her life was relevant

14   to the district court’s consideration of Smith’s prior conduct of sexual abuse and

15   also several of the statutory purposes of sentencing—including just punishment,

16   the need for deterrence, and protecting the public from further crimes. See 18

17   U.S.C. § 3553(a)(2)(A)–(C).

18           Lastly, Smith faults the district court’s reliance on U.S.S.G. § 2G2.2, a



                                              40
 1   guideline which we have criticized as often too severe in United States v. Jenkins,

 2   854 F.3d 181 (2d Cir. 2017), and United States v. Dorvee, 616 F.3d 174 (2d Cir.

 3   2010). But unlike the facts in Jenkins and Dorvee, this case involved substantial

 4   evidence of Smith’s actual sexual abuse of children. As we noted in Jenkins,

 5   “[w]hether a child pornography offender has had or has attempted to have

 6   contact with children is an important distinction.” 854 F.3d at 191.

 7         Smith finally challenges his sentence as substantively unreasonable. Our

 8   review for substantive unreasonableness is “particularly deferential,” because we

 9   give “due respect [to] the sentencing court’s very wide latitude to decide the

10   proper degree of punishment for an individual offender and a particular crime.”

11   United States v. Singh, 877 F.3d 107, 115 (2d Cir. 2017) (internal quotation marks

12   omitted). In light of Smith’s possession of large amounts of child pornography

13   and his history of sexually violating children, we cannot conclude that the

14   sentence was substantively unreasonable.

15         Accordingly, we affirm the sentence imposed by the district court.

16                                      CONCLUSION

17         We have considered all other arguments raised by Smith and conclude that

18   they are without merit. For the foregoing reasons, the district court’s judgment of



                                              41
1   conviction and sentence is AFFIRMED.




                                       42
USA v. Smith
No. 17-2446

     1         KEARSE, Circuit Judge, concurring:

     2                      I concur in the judgment, although I do not share the majority's view that

     3         "Kirby's delay in seeking a search warrant for Smith's seized tablet computer was

     4         unreasonable under the Fourth Amendment," Majority Opinion ante at 27; e.g., id.

     5         at 31-32 (the "31-day" "delay amounted to a violation of the Fourth Amendment").

     6                      First, although there was a span of 31 calendar days from the seizure of

     7         the tablet to the application for the search warrant, I regard the appropriate frame of

     8         reference as the 19 working days within that span. See, e.g., United States v. Martin,

     9         157 F.3d 46, 54 (2d Cir. 1998). While Smith was without his tablet for 31 days, he

    10         evinced no interest in when it would be returned; and it is difficult for me to think it

    11         appropriate, in determining whether the delay was unreasonable, to tax the

    12         responsible officer for the days he was scheduled not to work.

    13                      More importantly, I do not see a basis for overturning the conclusion of

    14         the district court that the delay did not violate the Fourth Amendment. The

    15         touchstone of the Fourth Amendment is reasonableness, and the Constitution

    16         requires the police, after a Fourth Amendment seizure, to diligently apply for a search

    17         warrant within a reasonable time, see generally Illinois v. McArthur, 531 U.S. 326, 332-34
 1   (2001). The district court in this case did not in fact find the delay "presumptively

 2   reasonable," Majority Opinion ante at 15, but rather considered the entire record and

 3   concluded that the delay, while "considerable," was "not . . . unreasonable under the

 4   circumstances" (SPA 127). In so concluding, "the district court found," inter alia, "that

 5   Kirby 'was solely responsible for 24 active criminal investigations across an

 6   expansive, rural area of New York State.' . . . These investigations 'included matters

 7   involving rape, suicide, drowning, burglary, grand larceny, sexual abuse, accidental

 8   shooting, unattended death, death of an incompetent person, and endangering the

 9   welfare of an incompetent person.'" Majority Opinion ante at 9 (quoting SPA 128,

10   122).

11                The majority finds that "Kirby was not diligent in seeking a warrant to

12   search Smith's tablet," id. at 28 (emphasis added), without giving any apparent

13   consideration to his diligence in handling his other casework, which "included

14   victim/witness interviews, collection of evidence, scene photography, and time

15   searching for suspects" (SPA 128), in a geographic area that could require three hours

16   of travel time to and from police headquarters (see id. at 122). Rather, the majority

17   finds that Kirby was not diligent in this case for reasons "similar," Majority Opinion

18   ante at 27, 28, to those that were insufficient to find a 21-day delay reasonable in

                                                2
 1   United States v. Mitchell, 565 F.3d 1347, 1353 (11th Cir. 2009). But in Mitchell, there

 2   were two government agents who had seized the defendant's computer component,

 3   either of whom "could have" applied for the search warrant; but they waited 21 days

 4   to apply because the lead agent "'didn't see any urgency'" and went off to a training

 5   program for two weeks. Id. at 1351. Here, Kirby was the sole officer on the case,

 6   considered this case as one of his "'highest priority cases,'" Majority Opinion ante at 26

 7   (quoting SPA 123), and "actively worked on" matters in his 24-case caseload on "all

 8   19 of his scheduled workdays" (SPA 129). The majority simply finds that in this case

 9   "there were no overriding circumstances to otherwise justify a month-long delay."

10   Majority Opinion ante at 28. I do not find this case similar to Mitchell. And I am not

11   convinced that the district court here erred in "declin[ing] to second-guess" (SPA 129)

12   the view of Kirby or the State Police as to how, reasonably, to prioritize his duties in

13   the 24 active cases described above, for which he had sole responsibility, on the 19

14   working days in question, on all of which he actively worked, when the owner never

15   asked for the tablet's return or even inquired as to when it might be returned.




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