KING, Circuit Judge:
Daniel J. Brown appeals from his conviction and sentence in the Western District of Virginia for a child pornography offense. The grand jury returned a two-count indictment against Brown, charging him with receiving visual depictions involving the use of minors engaging in sexually explicit conduct ("child pornography"), in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1) (Count One), and with possessing child pornography, in contravention of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2) (Count Two). Brown sought to suppress evidence that had been recovered from his personal laptop computer (the "laptop"). The district court rejected his suppression motion, however, and Brown was found guilty by a jury on both charges. After vacating Brown's conviction on Count Two, the court sentenced him on Count One to 144 months in prison and ten years of supervised release. Brown maintains that the court's denial of his motion to suppress was erroneous, and he also contends that the court erred in vacating and dismissing Count Two (the lesser-included offense) rather than Count One. As explained below, we reject each of Brown's contentions and affirm.
In May 2009, Detective Nicholas Rudman of the Charlottesville (Virginia) Police Department, who was assigned to investigate internet crimes against children, began an investigation of an internet protocol ("IP") address associated with a computer that had downloaded files containing child pornography.
Detective Rudman's investigation revealed that the subscriber of the IP address was Medical Transport, LLC, a private ambulance business located in Charlottesville. Based on information obtained from the company's manager, Rudman and Detective Todd Lucas were able to narrow the focus of their investigation to defendant Brown and Justin Yarboro, who worked together and were always on duty at Medical Transport when the files were downloaded. Using the information they had discovered, the detectives secured a search warrant on June 17, 2009, for Medical Transport's
When the police officers arrived at Medical Transport, and while they were executing the search warrant, Brown and Yarboro were out on a call in an ambulance. Upon the duo's return to Medical Transport, they pulled the ambulance to the front of the building and exited the vehicle. The detectives promptly approached the ambulance, introducing themselves as officers of the Charlottesville Police Department investigating internet crimes against children. Detective Rudman then inquired of Brown and Yarboro, "Do you guys have any laptops in your vehicle?" J.A. 825.
Detective Reeves, who was present at the outset of Brown's interview, also deduced that Brown was more likely to have downloaded the files. She promptly left the interview room to interrupt Detective Rudman's interview of Yarboro and lead Rudman to where Lucas was interviewing Brown. Detective Rudman explained that he was present to ask about child pornography. During the interview, Rudman showed Brown documents from the investigation indicating that files containing child pornography had been downloaded at Medical Transport's IP address. Brown soon admitted that his laptop was the computer that had been involved, and he acknowledged searching for child pornography by computer on and off for a couple of years, using search terms like "daughter," "incest," and "PTHC" (pre-teen hard core). The detectives thereafter concluded the interview. Having seized Brown's laptop, the detectives procured a second search warrant, authorizing them to search the laptop itself. The laptop was found to contain videos and images of child pornography.
Brown was indicted by the grand jury in June 2010. A superseding indictment, returned on February 9, 2011, contains the two charges underlying this appeal.
By his suppression motion, Brown suggested that the search warrant for Medical Transport did not authorize a seizure of Brown's laptop because the laptop was not found in the Medical Transport building. The motion contended that the warrant only authorized the search of "the business of Medical Transport," and specifically identified and described the building, which was located on Harris Street in Charlottesville. The motion maintained that the warrant allowed the detectives to search for computers, electronic storage devices, and employee records relating to scheduling, but did not authorize a search of either Brown or the ambulance outside the building. More specifically, the motion asserted that
J.A. 22.
When the parties convened on the Monday morning of trial, the district court advised Brown's lawyer that "I'm not going to listen to a lot of argument on motions that are filed late, but you can tell me what it is you want to argue and I'll consider it as quickly as I can." J.A. 25. Brown's lawyer briefly explained his position that the police officers had exceeded the scope of the search warrant in their seizure of Brown's laptop, to which the court responded, "I'm going to deny your motion based on what you filed. I'm not sure there was such a search." J.A. 26 (emphasis added). The court continued, "Disregarding whether [the motion is] late or not, I think it is late, but on the merits, I don't think there's substance to the motion and I'm going to deny the motion to suppress." J.A. 29.
Brown's jury trial lasted for three days and involved the testimony of several witnesses, including Brown himself. When Brown renewed his motion to suppress at the conclusion of the prosecution's evidence, the district court again rejected it, explaining:
J.A. 532.
On March 2, 2011, after being instructed by the district court, the jury returned a guilty verdict on both counts. In a post-trial
Prior to imposing sentence on Brown, the district court granted the government's dismissal motion as to Count Two, the lesser offense. Consequently, Brown was sentenced solely on Count One to 144 months in prison and ten years of supervised release. Brown has timely noticed this appeal, and we possess jurisdiction pursuant to 28 U.S.C. § 1291.
Brown's initial contention is that the district court improperly rejected his motion to suppress as untimely. Because the court ruled on the substance of the motion notwithstanding its purported tardiness, we shall confine our review to the merits and bypass the timeliness issue. In that vein, Brown asserts that the court erred when it failed to conduct an evidentiary hearing prior to denying the motion. Rather than arguing for outright reversal, Brown seeks remand for the desired hearing, asserting that the court acted prematurely. More specifically, Brown contends that the court should have assessed whether the seizure of his laptop by the officers was reasonable, and he opposes our consideration of any alternative bases for denial of his suppression motion. In its response brief, the government asserts that exigent circumstances existed to justify the officers' seizure of the laptop.
On a motion to suppress, we assess the district court's legal determinations de novo. See United States v. Davis, 690 F.3d 226, 233 (4th Cir.2012). We are not obliged to remand for an evidentiary hearing if "any reasonable view of the evidence, looked at in the light most favorable to the government, will sustain the denial." United States v. Bethea, 598 F.2d 331, 333-34 (4th Cir.1979). Nevertheless, our inquiry is not limited to the district court's reasoning, and we are entitled to reject a remand request and affirm on "any ground supported by the record." United States v. Patterson, 278 F.3d 315, 317 (4th Cir.2002). In this case, the government does not contest Brown's assertion that the search warrant for the Medical Transport building failed to authorize a search or seizure of Brown's person or the ambulance. Thus, rather than engaging in an analysis of the scope of the warrant (which is not in the record), we will proceed on the proposition that the seizure of Brown's laptop was warrantless.
When "the exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search [or seizure] is objectively reasonable under the Fourth Amendment," police officers are entitled to bypass the warrant requirement. King, 131 S.Ct. at 1856 (internal quotation marks omitted). The types of exigent circumstances that may justify a warrantless seizure include, inter alia, the imminent destruction of evidence. See United States v. Grissett, 925 F.2d 776, 778 (4th Cir.1991) (recognizing that "[e]xigent circumstances can arise when the evidence might be destroyed before a search warrant could be obtained"). Even if exigent circumstances have been created by actions of the police — e.g., when the announced presence of officers creates an immediate fear of detection — the authorities are entitled to act reasonably and seize evidence in order to prevent its destruction. See King at 1857 (explaining that "in the vast majority of cases in which evidence is destroyed by persons who are engaged in illegal conduct, the reason for the destruction is fear that the evidence will fall into the hands of law enforcement").
The Supreme Court recognized that, with respect to warrantless seizures, "the Fourth Amendment requires only that the steps preceding the seizure be lawful." King, 131 S.Ct. at 1858. In other words, "the exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment." Id. at 1862. Here, the Charlottesville detectives had probable cause to believe that child pornography was being downloaded at the Medical Transport building, and they could reasonably believe that it was being downloaded at that location by either Brown or Yarboro. The detectives' showing of probable cause — accepted and endorsed by the magistrate judge in issuing the search warrant for the building — came from tracing the illegal files to the Medical Transport IP address and learning from Medical Transport's manager that Brown and Yarboro were the only employees working at the time that the files were downloaded. The detectives' entry onto the company's property was authorized by the search warrant, and their subsequent inquiries regarding laptop computers possessed by Brown and Yarboro, were therefore lawful and proper.
Based on their investigation, the detectives had probable cause to believe that any computer used by either Brown or Yarboro during their work shifts at Medical Transport harbored evidence of child pornography. Accordingly, when the Charlottesville detectives informed Brown
The Eleventh Circuit recently addressed a similar issue in United States v. Mitchell, 565 F.3d 1347 (11th Cir.2009). Mitchell was convicted of receiving images of child pornography, after an investigation into a known trafficking website led police officers to several of the website's subscribers. One of the subscribers was Mitchell, whom two agents visited in his home. Mitchell admitted to the agents that there was "probably" illegal contraband on his home computers, and he authorized them to search one of his computers and seize its hard drive. The court concluded that, while the agents' conduct constituted a warrantless seizure — in that it interfered with Mitchell's possessory interests — the seizure of the computer "to ensure that the hard drive was not tampered with before a warrant was obtained," did not contravene the Fourth Amendment's warrant requirement. Id. at 1350.
Another decision arising from a similar factual setting supports our ruling. In United States v. Respress, where officers had conducted a warrantless seizure of the suitcase of an airline passenger who was a drug courier suspect, the court of appeals explained that "[t]his was a plain old-fashioned seizure of a person's effects, based on probable cause, in order to prevent the disappearance of evidence and so that a warrant could be obtained and a search conducted." 9 F.3d 483, 486 (6th Cir. 1993). The actions of the Charlottesville detectives in seizing Brown's laptop were likewise reasonable, in order to prevent the destruction of relevant evidence. Those actions thus fall well within the exigent circumstances exception to the Fourth Amendment's warrant requirement. See United States v. Clutter, 674 F.3d 980, 985 (8th Cir.2012) (upholding warrantless seizure of computer where officers had probable cause to believe it contained evidence of child pornography because, in part, such seizure "prevent[ed] the disappearance of evidence" (internal quotation marks omitted)). In these circumstances, we must reject Brown's contention of a Fourth Amendment violation.
Finally, Brown suggests that the district court erred when it denied his motion to dismiss and sentenced him solely on the basis of his Count One receipt offense, rather than on the lesser-included Count Two possession offense. We review for abuse of discretion the district court's denial of Brown's motion to dismiss. See United States v. Smith, 55 F.3d 157, 158 (4th Cir.1995). "Of course, a district court by definition abuses its discretion when it makes an error of law." Rice v. Rivera, 617 F.3d 802, 811 (4th Cir.2010) (internal quotation marks omitted). When a defendant has been convicted of multiplicitous offenses — in this case, a greater and a lesser-included offense — the trial court shall "enter judgment on only one of the statutory offenses." See Ball v. United
Put simply, the court did not abuse its discretion by denying Brown's motion and striking the lesser-included offense of possession of child pornography; on the contrary, the court properly adhered to a long line of authorities directing vacation of the conviction that carries the more lenient penalty when a defendant is convicted of both a greater and a lesser-included offense. See United States v. Luskin, 926 F.2d 372, 378 (4th Cir.1991) ("The better practice [when a defendant is convicted of a greater and a lesser-included offense] would be for the trial judge to strike the conviction on the lesser included offense[.]"); United States v. Snyder, 766 F.2d 167, 171 (4th Cir.1985) (recognizing that, where a defendant is convicted of both a greater and a lesser-included offense, "the proper remedy is to vacate both the conviction and the sentence on the included offense, leaving the conviction and the sentence on the greater offense intact" (internal quotation marks omitted)); see also United States v. Martorano, 697 F.3d 216, 220 (3d Cir.2012) (explaining that, when faced with convictions on both greater and lesser-included offenses, to vacate the greater offense "would be inconsistent with the very concept of a lesser included offense" (internal quotation marks omitted)); United States v. Dudeck, 657 F.3d 424, 431 (6th Cir.2011) ("If it cannot be determined that separate and distinct conduct occurred for each offense... the district court shall vacate [the lesser offense]"). We therefore reject Brown's contention that the court erred in vacating his conviction and dismissing Count Two rather than Count One.
Pursuant to the foregoing, we affirm the judgment of the district court.
AFFIRMED