W.D.Mo.: Affidavit for SW did not mention CP but SW did; seizure of CP suppressed

Defendant was a suspect in identity theft and failure to register as a sex offender. The search warrant affidavit supported those offenses, but it also included child pornography yet no facts supporting a search for child pornography. Once in the house, officers plugged in a thumb drive with the program OS Triage to search for child pornography, and they went about the remainder of the search. After an hour they came back to the computer and an image of child pornography was on the screen with a red border. They shut down the computer to take it and get a warrant for child pornography. The discovery of the child pornography is suppressed because nothing in the affidavit supported searching for it. United States v. Dallman, 2016 U.S. Dist. LEXIS 144487 (W.D.Mo. Oct. 12, 2016), adopted, 2016 U.S. Dist. LEXIS 144488 (W.D. Mo. Oct. 19, 2016):

In this case, the search exceeded the scope of the warrant from the beginning. Though the language of the warrant allowed officers to search through the data on Defendant’s computer, see Hudspeth, 459 F.3d at 927-28 (concluding that a search warrant allowing for the search of “any and all” records included records on the computer), the search was specifically limited to items related to Defendant’s travel, residency, and identity. (See Gov. Ex. 1.) Each witness at the hearing testified that OS Triage has standard settings that automatically search a computer for images containing child pornography, through both an automatic keyword search and utilization of the FBI’s database of known images of child pornography. Deputy Walker testified that he knew that the program worked in this way when he ran OS Triage on Defendant’s computer. As such, Deputy Walker had knowledge that OS Triage would search for items that were outside the parameters of the warrant. Koch, 625 F.3d at 477 (“Evidence should be suppressed ‘only if it can be said that the law enforcement officer[s] had knowledge, or may be properly charged with knowledge, that the search was unconstitutional under the Fourth Amendment.'”) (quoting Illinois v. Krull, 480 U.S. 340, 348-49, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987)). Given the facts and circumstances, the Court cannot conclude that officers conducted the search in such a way that “minimize[d] unwarranted intrusions into an [Defendant]’s privacy.” Gregoire, 2009 U.S. Dist. LEXIS 120801, 2009 WL 5216844, at *8.

Though the Government does not argue the doctrine of inevitable discovery, this doctrine provides guidance regarding whether officers would have found the video simply because they had authority to search all data. In order for inevitable discovery to apply, the Government must show that: “(1) there was a reasonable probability that the evidence would have been discovered by lawful means in the absence of police misconduct, and (2) that the government was actively pursuing a substantial, alternative line of investigation at the time of the constitutional violation.” United States v. James, 353 F.3d 606, 617 (8th Cir. 2003) (citation omitted).