United States v. Daniel Brown

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 11-5048

DANIEL J. BROWN,

Defendant-Appellant.



Appeal from the United States District Court

for the Western District of Virginia, at Charlottesville.

Norman K. Moon, Senior District Judge.

(3:10-cr-00016-NKM-1)

Argued: October 26, 2012

Decided: December 6, 2012

Before WILKINSON, KING, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge King wrote the opin-

ion, in which Judge Wilkinson and Judge Shedd joined.

2 UNITED STATES v. BROWN

COUNSEL

ARGUED: Frederick Theodore Heblich, Jr., OFFICE OF

THE FEDERAL PUBLIC DEFENDER, Charlottesville, Vir-

ginia, for Appellant. Nancy Spodick Healey, OFFICE OF

THE UNITED STATES ATTORNEY, Charlottesville, Vir-

ginia, for Appellee. ON BRIEF: Larry W. Shelton, Federal

Public Defender, Christine Madeleine Lee, OFFICE OF THE

FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, Lauren

Smith, OFFICE OF THE FEDERAL PUBLIC DEFENDER,

Charlottesville, Virginia, for Appellant. Timothy J. Heaphy,

United States Attorney, Roanoke, Virginia, for Appellee.

OPINION

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 con-

duct ("child pornography"), in violation of 18 U.S.C.

§§ 2252(a)(2) and 2252(b)(1) (Count One), and with possess-

ing 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 per-

sonal 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 super-

vised 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.

UNITED STATES v. BROWN 3

I.

In May 2009, Detective Nicholas Rudman of the Char-

lottesville (Virginia) Police Department, who was assigned to

investigate internet crimes against children, began an investi-

gation of an internet protocol ("IP") address associated with

a computer that had downloaded files containing child pornogra-

phy.1 Those files were identified to Rudman by what is known

as "hash value," rather than by a proper name.2 Rudman rec-

ognized the hash values of the files as corresponding to those

which, he knew from prior experience, contained child por-

nography. The pornographic files had been transmitted over

the internet through peer-to-peer (file sharing) networks,

where users are able to download each others’ digital files.

Detective Rudman’s investigation revealed that the sub-

scriber of the IP address was Medical Transport, LLC, a pri-

vate 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 infor-

mation they had discovered, the detectives secured a search

warrant on June 17, 2009, for Medical Transport’s headquar-

ters. Rudman and Lucas, joined by Detectives Lisa Reeves

and Michael Flaherty, executed the search warrant that day

while Brown and Yarboro were on duty. Their search of Med-

ical Transport’s building did not, however, reveal any com-

puters or electronic equipment relevant to their investigation.

1

Our recitation is drawn from the facts adduced at trial, as well as those

set forth in Brown’s motion to suppress, which the district court accepted

as true.

2

A "hash value" is a code that identifies an individual digital file as a

kind of "digital fingerprint." See United States v. Wellman, 663 F.3d 224,

226 n.2 (4th Cir. 2011).

4 UNITED STATES v. BROWN

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 investi-

gating internet crimes against children. Detective Rudman

then inquired of Brown and Yarboro, "Do you guys have any

laptops in your vehicle?" J.A. 825.3 When Brown responded

in the affirmative, Rudman asked, "Can you get those for us?"

Id. Brown complied, retrieving his laptop, which Rudman

took out of Brown’s hands and handed to Detective Flaherty

for inspection. Brown and Yarboro were then brought into the

Medical Transport building and interviewed separately. Rud-

man conducted the interview of Yarboro, who was the initial

focus of the investigation because he was younger than

Brown and was presumably more computer savvy. Detective

Lucas simultaneously interviewed Brown, and quickly real-

ized that Brown was the more likely suspect of the two.

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 por-

nography. During the interview, Rudman showed Brown doc-

uments from the investigation indicating that files containing

child pornography had been downloaded at Medical Trans-

port’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

3

Citations herein to "J.A. ____" refer to the contents of the Joint Appen-

dix filed by the parties in this appeal.

UNITED STATES v. BROWN 5

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, con-

tains the two charges underlying this appeal.4 After prelimi-

nary proceedings in the case, Brown’s jury trial was

scheduled for Monday, February 28, 2011. Brown did not file

his motion to suppress, however, until late on Saturday, Feb-

ruary 26, 2011.

By his suppression motion, Brown suggested that the

search warrant for Medical Transport did not authorize a sei-

zure 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 Charlottes-

ville. 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

[n]either Brown nor the computer was at the location

4

In Count One, Brown is charged with having "knowingly received . . .

one or more visual depictions . . . , and the production of such visual

depiction(s) involved the use of a minor engaging in sexually explicit con-

duct and such visual depiction(s) were of such conduct . . . in violation of

Title 18 United States Code, Sections 2252(a)(2) and 2252(b)(1)." J.A. 15

(emphasis added). Count Two alleges that Brown "knowingly possessed

. . . at least one matter which contained a visual depiction . . . , and the

production of such visual depiction involved the use of a minor engaging

in sexually explicit conduct, and such visual depiction was of such con-

duct . . . in violation of Title 18, United States Code, Sections

2252(a)(4)(B) and 2252(b)(2)." Id. (emphasis added).

6 UNITED STATES v. BROWN

the warrant authorized for search. Officer Rudman’s

statements reveal that the CPD officers’ zeal to

obtain the subject of the warrant led them to disre-

gard their authority to search for it. . . . Here, the

warrant clearly allows for search inside a specific

building but officers chose to search a person and

vehicle outside of the building. Thus, the officers

found what they were looking for but they did not

find it in an area where they were constitutionally

permitted to look.

J.A. 22.5

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.

5

The suppression motion also portrayed Brown’s initial encounter with

the detectives as a coercive scenario. According to the motion, after

Detective Rudman asked Brown to retrieve his laptop, "Brown turned

around and walked back to the passenger door of the ambulance. Rudman

followed inches behind Brown. Following the directives of the officers,

Brown stepped into the vehicle and retrieved a laptop computer. As Brown

disembarked from the ambulance, Detective Rudman pulled the laptop out

of Brown’s hands." J.A. 20. For purposes of this appeal, we accept the fac-

tual allegations of the motion to suppress as true, as did the district court

when it advised Brown’s lawyer just before trial that it would deny sup-

pression "based on what you filed." Id. at 26.

UNITED STATES v. BROWN 7

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 conclu-

sion of the prosecution’s evidence, the district court again

rejected it, explaining:

As far as the original motion to suppress, I think

you’ve heard all the evidence. You’ve questioned the

witnesses. The Court knows all of the evidence you

would put on regarding that. On the merits of it, I

think — I don’t think it’s a meritorious argument.

. . . I also think no justification for not filing it timely

has been shown.

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 motion filed on September 21, 2011, Brown argued

that the possession offense of Count Two is a lesser-included

offense of the receiving offense in Count One, and that his

convictions on both offenses therefore violated the Double

Jeopardy Clause of the Fifth Amendment. Brown moved to

dismiss Count One, which charged him with knowingly

receiving child pornography, as opposed to Count Two, which

charged him with knowingly possessing such files. See supra

note 4. The United States Attorney did not dispute that pos-

session is a lesser-included offense of receipt, but moved to

dismiss Count Two, asserting that Brown should be sentenced

on Count One only.6

Prior to imposing sentence on Brown, the district court

granted the government’s dismissal motion as to Count Two,

6

Though we have not confronted the question, our sister circuits are in

agreement that the knowing possession of child pornography is generally

a lesser-included offense of the knowing receipt thereof. See United States

v. Dudeck, 657 F.3d 424 (6th Cir. 2011) (collecting cases).

8 UNITED STATES v. BROWN

the lesser offense. Consequently, Brown was sentenced solely

on Count One to 144 months in prison and ten years of super-

vised release. Brown has timely noticed this appeal, and we

possess jurisdiction pursuant to 28 U.S.C. § 1291.

II.

A.

Brown’s initial contention is that the district court improp-

erly 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 jus-

tify 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 evi-

dence, looked at in the light most favorable to the govern-

ment, 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 enti-

tled to reject a remand request and affirm on "any ground sup-

ported 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 sei-

UNITED STATES v. BROWN 9

zure 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.7

The Fourth Amendment protects citizens against unreason-

able searches and seizures. Although warrantless searches and

seizures are considered to be "per se unreasonable," there are

"a few specifically established and well-delineated excep-

tions" to the search warrant requirement. Katz v. United

States, 389 U.S. 347, 357 (1967). The underlying command

of each such exception is reasonableness — "the ultimate

touchstone of the Fourth Amendment." Kentucky v. King, 131

S. Ct. 1849, 1856 (2011) (internal quotation marks and alter-

ation omitted). In this case, as the government suggests, the

applicable exception to the warrant requirement is "exigent cir-

cumstances."8

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 Amend-

ment," 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 cir-

cumstances 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 —

7

"A ‘seizure’ of property occurs when there is some meaningful inter-

ference with an individual’s possessory interests in that property." United

States v. Jacobsen, 466 U.S. 109, 113 (1984). It is clear that a seizure of

Brown’s laptop occurred here.

8

Although Brown contends that the government waived its exigent cir-

cumstances theory, we are, as explained above, entitled to affirm on any

grounds supported by the record in our de novo review.

10 UNITED STATES v. BROWN

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 destruc-

tion is fear that the evidence will fall into the hands of law

enforcement").

The Supreme Court recognized that, with respect to war-

rantless 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 down-

loaded at the Medical Transport building, and they could rea-

sonably believe that it was being downloaded at that location

by either Brown or Yarboro. The detectives’ showing of prob-

able 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 har-

bored evidence of child pornography. Accordingly, when the

Charlottesville detectives informed Brown that they were

investigating internet crimes against children, they had proba-

ble cause to believe that Brown’s laptop, which he possessed

UNITED STATES v. BROWN 11

during his work shift, contained evidence of child pornogra-

phy. See United States v. Place, 462 U.S. 696, 701 (1983)

(recognizing that the Fourth Amendment permits a warrant-

less seizure of property "[w]here law enforcement authorities

have probable cause to believe that [the property] holds con-

traband or evidence of a crime . . . , if the exigencies of the

circumstances demand it."). Following up on Brown’s

response, it was entirely reasonable for the officers to seize

Brown’s laptop — as they did — to prevent either it or its

contents from being damaged or destroyed. See King at 1862.

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 pornogra-

phy, 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’ con-

duct constituted a warrantless seizure — in that it interfered

with Mitchell’s possessory interests — the seizure of the com-

puter "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 sup-

ports our ruling. In United States v. Respress, where officers

had conducted a warrantless seizure of the suitcase of an air-

line passenger who was a drug courier suspect, the court of

appeals explained that "[t]his was a plain old-fashioned sei-

zure 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

12 UNITED STATES v. BROWN

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) (uphold-

ing warrantless seizure of computer where officers had proba-

ble cause to believe it contained evidence of child

pornography because, in part, such seizure "prevent[ed] the

disappearance of evidence" (internal quotation marks omit-

ted)). In these circumstances, we must reject Brown’s conten-

tion of a Fourth Amendment violation.

B.

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 mul-

tiplicitous 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 States,

470 U.S. 856, 865 (1985).

Put simply, the court did not abuse its discretion by deny-

ing 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 vaca-

tion 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.3d 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,

UNITED STATES v. BROWN 13

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 sen-

tence 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 con-

viction and dismissing Count Two rather than Count One.9

III.

Pursuant to the foregoing, we affirm the judgment of the

district court.

AFFIRMED

9

In his challenge to the dismissal of Count Two, Brown also maintains

that the jury was not properly instructed on the distinction between know-

ing possession and knowing receipt of child pornography. Although he

interposed no objections at trial, he argues that, as a result of the faulty

instructions, "there is serious reason to doubt that the jury concluded Mr.

Brown actually ‘knowingly received’ the images found on his computer

equipment." Br. of Appellant 23. Inasmuch as the instructions did not per-

mit the jury to convict Brown without concluding that he knew the content

of the pornography depictions at the time he received them, the court did

not plainly err in its instructions. See United States v. Rahman, 83 F.3d 89,

92 (4th Cir. 1996) (requiring that instructions be reviewed as whole);

United States v. Wilson, 484 F.3d 267, 279 (4th Cir. 2007) (applying plain

error review to instructions if no objection made at trial).