SMITH, District Judge.
Defendants-appellants Kendra D'Andrea and Willie Jordan separately appeal their convictions following conditional guilty pleas. For the reasons set forth below, we hold that the district court erred in denying defendants' motions to suppress without an evidentiary hearing, vacate the judgments, and remand for an evidentiary hearing on the suppression motions.
The following facts are essentially undisputed except as otherwise indicated. At around 6:30 p.m. on December 2, 2004, a woman (the "Tipster") called the Judge Baker child abuse hotline of the Massachusetts Department of Social Services ("DSS").
Shortly after receiving the anonymous call, DSS agents reported it to the Gloucester, Massachusetts Police Department to alert them to this possible case of child abuse. After several unsuccessful attempts at accessing the website and at least one other telephone conversation with the Tipster, DSS agents were able to access the website, where they found numerous pornographic pictures of the victim consistent with the Tipster's report. A DSS agent printed out more than 30 of these photographs and took them to the Gloucester Police Department. Three telephone numbers, two of which appeared to be alternate numbers for the same person (Jordan), and some text messages also appeared on the website along with the pictures. In some of the text messages, the person associated with one of the phone numbers, later revealed to be Jordan, asks for more pornographic pictures of the victim to be sent by the person with one of the other phone numbers, later revealed to be D'Andrea.
After viewing the pictures, a detective with the Gloucester Police Department applied for a warrant to search D'Andrea's residence for files that may contain evidence of child abuse and child pornography. The warrant affidavit stated that the Tipster had told DSS that the child abuse was occurring at D'Andrea's residence in Gloucester at an address she provided, and that a Registry of Motor Vehicles check had indicated that D'Andrea had a revoked Massachusetts license with the same address as that provided by the Tipster. The warrant was signed at midnight and the search commenced ten minutes later. The searching officers found D'Andrea and her two little children, one of whom was the victim, at the residence.
When the police knocked on D'Andrea's door on the morning of December 3, she called Jordan, whereupon Jordan contacted Sprint and deleted the account. Therefore, the copies printed by the DSS agent appear to be the only surviving copies of the images on the Sprint website.
After being indicted, defendants moved to suppress the images, the evidence seized from D'Andrea's home (including the camera phone), and D'Andrea's incriminating statements on the grounds that all of it was obtained in violation of their Fourth Amendment right to be free from unreasonable searches and seizures. The district court denied the motions without holding an evidentiary hearing. It also denied defendants' motion for a Franks hearing to challenge the veracity of the warrant affidavit. Defendants then entered conditional pleas of guilty to sexual exploitation of a child and conspiracy to sexually exploit a child, reserving their right to appeal the denial of the motions to suppress and the motion to hold a Franks hearing. The district court sentenced Jordan to 30 years in prison and restitution in the amount of $67,600, and D'Andrea to 27 years in prison and restitution in the amount of $67,600.
Defendants separately appeal their convictions, raising five issues: Whether the district court erred in (1) denying defendants' motions to suppress without holding an evidentiary hearing, (2) denying the requests for a Franks hearing without holding an evidentiary hearing, (3) imposing an unreasonably high prison sentence, (4) denying Jordan's request to be present and allocute at the restitution hearing, and (5) failing to hold an evidentiary hearing to determine the appropriate amount of restitution.
Defendants' first claim of error targets the district court's denial of the motions to suppress without conducting an evidentiary hearing. A criminal defendant does not have a presumptive right to an evidentiary hearing on a motion to suppress. United States v. Brown, 621 F.3d 48, 57 (1st Cir.2010) (citing United States v. Panitz, 907 F.2d 1267, 1273 (1st Cir. 1990)). "A hearing is required only if the movant makes a sufficient threshold showing that material facts are in doubt or dispute, and that such facts cannot reliably be resolved on a paper record.... Most importantly, the defendant must show that there are factual disputes which, if resolved in his favor, would entitle him to the requested relief." United States v. Staula, 80 F.3d 596, 603 (1st Cir.1996) (citations omitted).
A district court's denial of an evidentiary hearing is reviewed for abuse of discretion. Id.; United States v. Lewis, 40 F.3d 1325, 1332 (1st Cir.1994). In considering the denial of the motions to suppress, the district court's factual findings are reviewed for clear error and its legal conclusions, including ultimate constitutional determinations, are reviewed de novo. Lewis, 40 F.3d at 1332-33 (citing United States v. Zapata, 18 F.3d 971, 975 (1st Cir.1994)).
A search within the meaning of the Fourth Amendment "occurs when the
The focus of defendants' appeal of the denial of the motions to suppress is the DSS agent's accessing the Sprint PCS website and downloading and printing the pictures uploaded there. Because the Tipster was a private actor, her unauthorized viewing of the website did not implicate the Fourth Amendment. See United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984).
For the purpose of defending this appeal only, the government does not dispute that defendants had a subjective expectation of privacy in their password-protected online account and that this expectation of privacy was, at least initially, reasonable. Nor is there any question that the DSS agent's unauthorized accessing of the website constituted a warrantless search. The question presented is whether the warrantless search was nonetheless valid because an exception to the warrant requirement applied or there were circumstances defeating the reasonableness of defendants' expectation of privacy. The government presses three theories: (1) the private search doctrine; (2) emergency intervention; and (3) inevitable discovery.
The district court held that the search was reasonable. Its reasoning is
The district court was correct in identifying Jacobsen as the key case governing this area of Fourth Amendment law, where a government search follows on the heels of a private search. In Jacobsen, FedEx employees opened an accidentally damaged package to examine its contents pursuant to a company policy regarding insurance claims. 466 U.S. at 111, 104 S.Ct. 1652. They found a suspicious white powdery substance inside, put the substance back into the container (but did not re-seal it), and summoned DEA agents. Id. DEA agents came, took the substance out of the box again, and removed a trace of it for a field test, which revealed that it was cocaine. Id. at 111-12, 104 S.Ct. 1652.
One of the issues presented was whether the DEA agents' reopening of the box and removal of the substance violated the defendant's Fourth Amendment rights. As in this case, in Jacobsen the initial private search did not implicate the Fourth Amendment because it was conducted by a private party. Id. at 113, 104 S.Ct. 1652. The question was whether the DEA agents' seizure of the drugs, which followed on the heels of the private search, violated the Fourth Amendment. The Court, per Justice Stevens, held that it did not. Id. at 120-21, 104 S.Ct. 1652. It ruled that the "additional invasions of respondents' privacy by the Government agent must be tested by the degree to which they exceeded the scope of the private search." Id. at 115, 104 S.Ct. 1652. Because the DEA agent's seizure did not exceed the scope of the initial FedEx employees' search, held the Court, the "agent's viewing of what a private party had freely made available for his inspection did not violate the Fourth Amendment." Id. at 119-20, 104 S.Ct. 1652.
In this case, the assumption of the risk, if any, goes to how the Tipster obtained the account access information. On this score, contrary to the district court's finding, there is no evidence in the record that defendants "shar[ed] the website access information with the anonymous caller." (Order at 10.) Quite the opposite, both defendants affirmed in sworn affidavits that they did not share the password with anyone. Moreover, in a February 2007 interview, the Tipster told an investigator for the Federal Public Defender Office that she pieced together the password by surreptitiously taking scraps of paper on which Jordan had jotted down various letters and numbers. Therefore, on this record, the district court's factual finding that defendants shared the password with the Tipster was clearly erroneous.
It is possible that an evidentiary hearing would unearth facts to support a finding of assumption of the risk—for example, if Jordan or D'Andrea were so careless with the password that one of them assumed the risk of its disclosure. Further, it is mentioned on one of the DSS information sheets that "[t]he pictures had been forwarded to the site and various responders with web-names had written to many pictures with comments of a highly sexualized nature." (D'Andrea Sealed App. 3.) This arguably implies that defendants had shared the site with others. If, however, as D'Andrea and Jordan have sworn, they never shared the password with anyone and reasonably believed no one else could get into the account, assumption of the risk would not be present. In sum, an evidentiary hearing is needed to explore whether the circumstances under which the Tipster obtained the account access information evince that defendants assumed the risk that the security of their account would be compromised.
Finally, the Court in Jacobsen pointed out that when the federal agent arrived to inspect the package, "there was a virtual certainty that nothing else of significance [except for the white powder to which the FedEx employees had alerted him] was in the package and that a manual inspection of the tube and its contents would not tell him anything more than he already had been told." 466 U.S. at 118-19, 104 S.Ct. 1652. By requiring a virtual certainty that the government's search will reveal "nothing else of significance" other than the evidence to which they were tipped off by the private party, the Court was emphasizing that an antecedent private search does not amount to a free pass for the government to rummage through a person's effects. The same principle is expressed in the Supreme Court's jurisprudence in the context of the plain view doctrine. See Coolidge, 403 U.S. at 466, 91 S.Ct. 2022 ("[T]he `plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges."); accord Arizona v. Hicks, 480 U.S. 321, 328, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987). To comply with this limitation, the evidentiary hearing should explore whether, at the time the DSS agents accessed the website, the Tipster's information would have left a reasonable agent virtually certain that the website was used to house child pornography, and not some other significant data.
This issue is important because a search carried out by a private party in conjunction with government efforts may no longer qualify as a private search immune from the Fourth Amendment. See United States v. Momoh, 427 F.3d 137, 140-41 (1st Cir.2005) (enumerating the following factors as relevant in distinguishing private and government action for Fourth Amendment purposes: "the extent of the government's role in instigating or participating in the search, its intent and the degree of control it exercises over the search and the private party, and the extent to which the private party aims primarily to help the government or to serve its own interests" (quoting United States v. Pervaz, 118 F.3d 1, 6 (1st Cir.1997))); United States v. Silva, 554 F.3d 13, 18 (1st Cir.2009) (restating the aforementioned factors but noting that "[w]e will not find state action simply because the government has a stake in the outcome of a search"). Accordingly, on remand, the district court should explore whether the Tipster had to re-hack the website before she could give DSS the correct password; whether the DSS or other authorities were involved in the re-hacking; and whether, under the factors enunciated in Pervaz and its progeny, the re-hacking amounted to a government search and not a private search.
If the district court finds that there was a second hacking and that it amounted to a government search rather than a private search, then it should inquire whether the gap in surveillance of the website restored defendants' expectation of privacy in its contents. See Illinois v. Andreas, 463 U.S. 765, 773, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983) (holding that an expectation of privacy in the contents of a container, even if lawfully frustrated, may be regained by a gap in surveillance; provided only, however, that "there is a substantial likelihood that the contents of the container have been changed during the gap in surveillance").
A warrantless search unreasonable under ordinary circumstances may be reasonable if undertaken under certain exigent circumstances, for example "to render emergency assistance to an injured occupant or to protect an occupant from imminent injury." Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). The district court mentioned in a footnote that this emergency intervention exception "provides a sufficient alternative basis on which to uphold the search of D'Andrea's apartment." (Order at 10 n. 18.)
The district court's application of the emergency aid exception is somewhat cursory, no doubt because the Court relied primarily on Jacobsen. Because we have negated that holding, we consider whether, on this record, exigent circumstances justify the warrantless search by DSS. We agree with the district court that "powerful evidence" of child abuse was received by DSS. But the record does not indicate that abuse was then ongoing or that further abuse was imminent. Nor does it explain how the Tipster—who told DSS she resided in California and never claimed to have been present at the time of the abuse or to have known about it when it was going on—could have known whether further abuse was imminent at the time she called DSS.
Moreover, no other exigency can support an affirmance on this appeal because we cannot say with certainty, based on the record as it currently stands, that the Tipster's uncorroborated call provided probable cause that a crime was committed. See, e.g., Florida v. J.L., 529 U.S. 266, 271-72, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (holding that an anonymous telephone tip that a young black male wearing a plaid shirt and standing at a particular bus stop was carrying a gun was, without more, insufficient to establish reasonable suspicion for a Terry stop and frisk (let alone probable cause) when the police found the described person with the described clothing at the bus stop). This is significant because exigent circumstances is an exception to the warrant, not the probable cause, requirement. See Brigham City, 547 U.S. at 403, 126 S.Ct. 1943 (describing exigent circumstances as an exception to the warrant requirement); see also United States v. Wilson, 36 F.3d 205, 208 (1st Cir.1994) ("To cross the apartment's threshold, [the officer] needed (1) probable cause to believe that contraband or evidence would be found inside, and (2) exigent circumstances justifying an exception to the warrant requirement, allowing him to enter without first obtaining a warrant.") (emphases added). The sum of all this is that the district court's reliance, in the alternative, on exigent circumstances is not supportable on the current state of the record. An evidentiary hearing is needed to flesh out the facts to determine whether the Tipster's tip provided probable cause and whether the authorities had an objectively reasonable belief in the imminence of harm.
The government argues that even if the DSS search violated the Fourth Amendment, the evidence is admissible under the inevitable discovery doctrine. This doctrine provides that evidence obtained by violating the Fourth Amendment is nevertheless admissible "[i]f the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means." Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). We have identified "three basic concerns" to keep in mind in deciding whether to apply the inevitable discovery doctrine: "are the legal means truly independent; are both the use of the legal means and the discovery by that means truly inevitable; and does the application of the inevitable discovery exception either provide an incentive for police misconduct or significantly weaken fourth amendment protection?" United States v. Silvestri, 787 F.2d 736, 744 (1st Cir.1986). In this Circuit, there is no requirement that the independent line of investigation that would have led to the inevitable discovery be already underway at the time of the illegal discovery. Id. at 746; United States v. Ford, 22 F.3d 374, 377 (1st Cir. 1994).
In light of the Supreme Court's warning that "inevitable discovery involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment," Nix, 467 U.S. at 444 n. 5, 104 S.Ct. 2501, we cannot say that the present record contains all the facts necessary to enable an informed determination on the applicability of the inevitable discovery doctrine. An evidentiary hearing could explore whether the evidence would have been discovered independently and inevitably.
For the foregoing reasons, the district court erred in denying defendants' motions to suppress without holding an evidentiary hearing. An evidentiary hearing is warranted to determine whether the DSS agent's warrantless search of the Sprint account violated defendants' Fourth Amendment rights. The hearing would reveal facts sufficient to enable an informed decision on the private search doctrine, exigent circumstances, inevitable discovery, and any other potentially applicable Fourth Amendment doctrines.
"[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant
The crux of D'Andrea's Franks request is that the affidavit in support of the search warrant misrepresented a nexus between the abuse and D'Andrea's home. D'Andrea argues that while the Tipster did provide information about the abuse, she did not relay D'Andrea's address or in any way link the abuse with her home. D'Andrea does not dispute that all pertinent affidavits and reports prepared by the police state that the Tipster provided D'Andrea's address and reported abuse occurring there; rather, she claims that the Tipster did not in fact report this to DSS and that DSS recklessly or intentionally relayed misleading information to the police.
The district court denied the Franks request, finding it "flawed by two fundamental errors, one legal, and the other factual." (Order at 11.) The legal error, according to the district court, was that a Franks hearing examines alleged misrepresentations by an affiant, not an informant—and, by extension, not a DSS agent. Thus, the district court held that, even assuming the DSS agent misrepresented the Tipster's call as conveying a link between D'Andrea's home and the child abuse, the request for a Franks hearing must be denied because there has been no showing that the affiant was in any way responsible for this misrepresentation. On the factual front, the district court relied on a copy of the original DSS Intake Information Form to find that the Tipster did in fact provide D'Andrea's address and did link the abuse to her home.
The "legal" basis for the district court's decision—that Franks does not apply to misstatements by DSS agents—is reviewed de novo. See United States v. Hicks, 575 F.3d 130, 136 (1st Cir.2009); Lewis, 40 F.3d at 1332-33. It is undisputed that a Franks hearing cannot test the truthfulness of the Tipster (or of any other private informant, for that matter). See Franks, 438 U.S. at 171, 98 S.Ct. 2674 ("The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.") (emphasis added). But it does not necessarily follow that a Franks hearing cannot test the truthfulness of the DSS agent. The DSS agent was, after all, a government actor (a conclusion the government does not dispute), so he cannot be conveniently lumped together with the private Tipster. Nor should Franks be read to apply only to misrepresentations made by the affiant himself, because such a reading would allow the police to slip lies into affidavits with impunity by simply passing them through an officer ignorant of their falsehood. Franks, 438 U.S. at 164 n. 6, 98 S.Ct. 2674 ("[P]olice could not insulate one officer's deliberate misstatement merely by relaying it through an officer-affiant personally ignorant of its falsity.").
This does not mean that Franks necessarily applies to DSS agents or other similarly situated governmental actors; rather, it means that such a determination requires an examination and weighing of the policies served and disserved by applying Franks, the kind of inquiry the Supreme Court has grappled with when deciding whether to apply other Fourth Amendment doctrines to non-police governmental actors in other contexts. See, e.g., New Jersey v. T.L.O., 469 U.S. 325, 333-37, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (deciding whether the Fourth Amendment applies to actions of public school officials); Arizona
It is unnecessary to decide this question, however, because the district court's "factual" ground for denying the Franks hearing is free from clear error. See Hicks, 575 F.3d at 138 ("We review the denial of a Franks hearing for clear error ... which exists only when we are left with the definite and firm conviction that a mistake has been committed.") (citations and quotation omitted). As the district court found, the record supports the conclusion that the Tipster did provide D'Andrea's address and did link the child abuse to her home.
Even if she had not, DSS and the police could have drawn these inferences from other information she provided. The address could be (and was) easily confirmed by checking D'Andrea's driver license records. And the nexus to D'Andrea's home was apparent from the circumstances: The detailed report, corroborated in its most incriminating parts, that an itinerant truck driver and his girlfriend were abusing the girlfriend's child and posting images of the abuse on the Internet, and that the girlfriend would send pornographic pictures of the victim via her mobile phone to the truck driver when he was away, established probable cause that some of the abuse was occurring at the girlfriend's home or, at the very least, that some evidence of the crime could be found at the home. Thus, the explicit linking of the abuse to the home by the Tipster was not "necessary to the finding of probable cause," as required by Franks, 438 U.S. at 155-56, 98 S.Ct. 2674.
Therefore, while the district court erred in holding categorically that Franks does not apply to DSS agents, we agree with the district court's factual determination that defendants did not make the "substantial preliminary showing" required to entitle them to a Franks hearing. See id.
For the foregoing reasons, the judgments of the district court are VACATED and the case is REMANDED for an evidentiary hearing on the motions to suppress.
