FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
HAMPSHIRE [Hon. Joseph Laplante, U.S. District Judge]
Richard Guerriero, with whom Lothstein Guerriero, PLLC was on
brief, for appellant.
R. Aframe, Assistant United States Attorney, with whom Scott
W. Murray, United States Attorney, was on brief for appellee.
Lynch, Stahl, and Barron, Circuit Judges.
appeal arises out of Defendant-Appellant Brad Smith's
conviction for producing six videos depicting him sexually
assaulting a three-year-old child. Smith challenges the
district court's denial of his motion to suppress
evidence recovered from his residence on a Louisiana pecan
farm, including a laptop computer and two hard drives that
contained the videos in question, as well as statements he
made to law enforcement at the farm and during a later
interrogation. He argued that law enforcement agents had
violated his Fourth Amendment rights, and that he was coerced
into consenting to the search of the residence. The district
court disagreed, holding that there was no Fourth Amendment
violation and that Smith knowingly and voluntarily consented
to the search.
short jury trial, Smith was convicted of six counts of
violating 18 U.S.C. § 2251(a), the federal child
pornography production statute. At sentencing, Smith argued
that because the videos were taken during one continuous
sexual assault, the charges were multiplicitous. The district
court disagreed and ultimately sentenced Smith to a term of
imprisonment of fifty years.
appeal, Smith challenges both the district court's denial
of his motion to suppress and his sentence. However, even
assuming arguendo that the agents committed a Fourth
Amendment violation at some point before encountering Smith
on the pecan farm, we find that any prior illegality did not
significantly influence or even play an important role in his
subsequent consent to the search of his computer and hard
drives. He voluntarily consented to the seizure of his
computer and hard drives and his consent was not obtained by
exploitation of any Fourth Amendment violation. In addition,
we hold on the facts here that the proper unit of prosecution
under Section 2251(a) is each video depicting the victim.
Accordingly, and for the following reasons, we affirm.
recount the facts in two parts. First, we describe events
occurring before the law enforcement agents' entry onto
the pecan farm, which for purposes of this appeal are
uncontested. Second, we recount the facts relevant to the
motion to suppress, including the agents' entry onto the
farm and subsequent seizure of Smith's computer and hard
drives, "as the trial court found them, consistent with
record support." United States v.
Andrade, 551 F.3d 103, 106 (1st Cir. 2008) (internal
quotation marks and citation omitted). We describe further
facts relevant to sentencing issues in that section.
Events Leading Up to the Agents' Entry
in 2010, Smith was employed at a concrete plant in New
Hampshire by the victim's father. Over the next few
years, Smith befriended the father and his family, and he
occasionally performed repairs at their home. Smith also
regularly came to the victim's home for holidays.
in early 2015, the father learned that Smith had misused
company funds. The company's counsel and distribution
manager recommended that Smith be terminated. However, the
father instead decided to transfer Smith to work on a pecan
farm in Breaux Bridge, Louisiana, that the victim's
2015, before moving to Louisiana, Smith was working at the
father's home. On May 25, during one of his visits, Smith
used a pair of Google glasses to record six videos of him
sexually assaulting the victim, who was then three years old.
The videos depicted various sexual acts that occurred between
roughly 12:43 p.m. and 1:49 p.m. In the immediate term, Smith
remained on friendly terms with the father, who was unaware
of either the assault on his child or the video recordings.
In August 2015, Smith relocated to Louisiana to begin working
on the pecan farm.
in September 2014, agents with the Department of Homeland
Security's Immigration and Customs Enforcement Division
("HSI") obtained a search warrant in the Eastern
District of Michigan to search the e-mail account
email@example.com. HSI agents discovered that, in
October 2013, that account had received an e-mail from the
address firstname.lastname@example.org (the "Yahoo Account")
containing child pornography. In November 2015, Yahoo!
provided law enforcement information pertaining to the Yahoo
Account in response to an administrative subpoena and search
warrant. From Yahoo!'s response, HSI agents discovered
that the Yahoo Account was registered to Smith, and that he
was residing in Louisiana at the pecan farm. HSI Special
Agent Lance Lopez ("Lopez") led the investigation
into Smith and worked with fellow HSI Special Agent Erol
Catalan ("Catalan") and Louisiana State Police
Investigator Georgiana Kibodeaux ("Kibodeaux").
The Agents' Entry onto the Pecan Farm and Subsequent
pecan farm abuts a state highway just outside the city limits
of Breaux Bridge, Louisiana. The farm itself has a
see-through perimeter fence that runs parallel to the
highway. A driveway leads from the highway to the residential
areas of the farm, and the entrance to that driveway is gated
at the highway. The gate runs wider than the driveway and
consists of two metal sections that meet in the center. To
open the gate, a person would have to enter a code on a
keypad located on a nearby pole outside the fence. The code
was not posted, although at all relevant times, there was a
sign near the gate carrying a phone number with a New
Hampshire area code to call for "deliveries." There
were no other signs on or around the front gate.
gate controls access to a driveway that runs through adjacent
pecan fields for 300 to 500 feet. The farm's primary
residence and an adjacent smaller secondary residence lie to
the right of the driveway just before it terminates in a
wider paved area. A paved footpath travels from the driveway
to the front porch of the main residence. A solid six-foot
tall wooden privacy fence extends from both sides of the
primary residence. Viewing the primary residence from the
driveway, the privacy fencing extended a short distance from
the left side of the primary residence to a nearby carport.
From the right side of the primary residence, the privacy
fencing extends farther and encloses a larger area behind the
home, including the secondary residence. The carport consists
of a large, roofed structure with partially enclosed sides,
and covers a portion of the paved area at the end of the
driveway. The carport was located next to the primary
residence and nearby a workshop. Smith resided in the
early January 2016, Lopez surveilled the pecan farm.
Following one of his reconnaissance visits, Lopez called the
phone number posted near the gate for deliveries, pretending
to be a schoolteacher interested in a tour of the farm. A
male identifying himself as Smith answered the phone, but
responded that the owner of the property was not currently
January 12, 2016, Lopez and a local Assistant United States
Attorney discussed the possibility of obtaining a search
warrant for the pecan farm and residences. However, they
concluded that the evidence from the Yahoo Account was too
stale for a warrant. Therefore, Lopez decided to instead
attempt a "knock and talk" entry onto the property.
early afternoon of January 14, 2016, Lopez, Catalan, and
Kibodeaux approached the gate in a truck. They initially
called the "deliveries" number several times, but
nobody answered. Lopez and Kibodeaux, on foot, then
"stepped through the gate." This required Kibodeaux
and Lopez to "duck down" and pass between the top
and middle bars forming the gate. Lopez testified that this
crossing was "like . . . [going] through a barbed wire
fence." When the district court asked Lopez about what
appeared to be a gap "meant for people to pass
through" -- a short length between the two sections of
the gate that lacked a top bar -- Lopez clarified that the
gap was not wide enough for either agent. After crossing
through, Kibodeaux and Lopez realized that, when pushed, the
two gate sections could be separated far enough for Kibodeaux
to fit through. Catalan stayed behind and waited by the gate
in his truck.
and Kibodeaux walked down the driveway and knocked on the
door to the primary residence (but not the secondary
residence, where Smith resided), but nobody answered. As the
agents walked back to the driveway, they heard machinery
operating behind the carport. The agents then walked to the
carport and saw two individuals: a male (later identified as
Smith) and a female working in a pecan field behind the
carport. Lopez waved his arms to draw their attention and
flagged Smith over.
the record nor the district court's decision indicate
precisely where exactly Smith and the agents first met. It
appears, however, that Lopez walked a few feet off the
carport's concrete padding towards Smith, while Smith
simultaneously walked towards Lopez. Smith, Lopez, and
Kibodeaux then moved to the driveway.
point, Lopez identified himself as an HSI agent, and
Kibodeaux as a Louisiana State Police investigator. Lopez
(falsely) told Smith that they were there to investigate
potential illegal immigrants working at the farm. Lopez also
requested that Smith provide the gate code so that Catalan
could drive the truck up the driveway and join them. Smith
provided Lopez the code, which Catalan used to open the gate.
Catalan then drove the truck onto the driveway and parked
near the carport.
afterwards, Lopez asked Smith for his driver's license
and e-mail address. Smith provided his license and the email
address "email@example.com," which had the same
username as the account linked to the child pornography
investigation, but had a different webmail provider. Lopez
then asked if Smith had an alternate e-mail address, and
Smith provided the Yahoo Account address. At that point,
Lopez asked Smith if they could go into his residence to
discuss additional matters, and Smith agreed. The woman who
had been standing with Smith when the agents first saw him
did not join them.
inside the secondary residence, Lopez asked Smith whether he
looked at pornography, to which Smith responded yes. Lopez
then asked whether Smith had come across and downloaded child
pornography, and Smith replied that he had accidentally
downloaded it on several occasions. Lopez then asked if the
computer on which Smith downloaded the pornography was inside
the residence. Smith admitted it was, and stated that it was
his practice to download the pornography and then move it
into another folder to delete it. He further admitted that
the computer still had child pornography files on it.
Kibodeaux recalled that while Smith was
"embarrassed" during this conversation, "[h]e
was not resistant."
Smith admitted to possessing child pornography, Lopez asked
Smith if he would consent to a search of his computer. Lopez
also read aloud a consent to search form. Smith demurred,
asking what would happen if he refused to grant consent.
Kibodeaux replied that it was his right to refuse consent,
but that the agents could detain the computer based on his
admission that he had downloaded child pornography on it, and
that they ...