United States v. Corleto

56 F.4th 169

UNITED STATES of America, Appellee,

v.Robert CORLETO, Defendant, Appellant.

No. 21-1326

United States Court of Appeals, First Circuit.

December 28, 2022

Mark G. Miliotis, with whom Elliot M. Weinstein was on brief, for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom John J. Farley, United States Attorney, was on brief, for appellee.

Before Kayatta, Lipez, and Howard, Circuit Judges.

KAYATTA, Circuit Judge.

After the district court denied Robert Corleto's motion to suppress evidence collected during the investigation that led to his arrest, he pled guilty to one count of sexual exploitation of a minor. In so doing, he preserved his right to appeal the denial of his motion to suppress. For the following reasons, we affirm the judgment of the district court.

I.

For the purposes of this appeal, "[w]e recount the facts in the light most favorable to the district court's ruling on the motion to suppress, but only to the extent that they have support in the record and are not clearly erroneous." United States v. Dubose, 579 F.3d 117, 120 (1st Cir. 2009) (quoting United States v. Holloway, 499 F.3d 114, 115 (1st Cir. 2007) ). Although Corleto takes issue with some of the district court's factual findings, he develops no argument that these findings were clearly erroneous. Any such argument is thus waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

A.

FBI Special Agent Timothy DeMann applied for a warrant to search Corleto's residence and any vehicles registered to that residence. In his supporting affidavit, DeMann explained that on March 18, 2019, an undercover FBI task force officer used the KIK Messenger app to chat with a person ("the target") who claimed to use KIK to communicate with a "12 year-old slave" who did whatever the target asked. The target ultimately connected the undercover agent and the purported minor in a live group chat, and the target directed the minor to send photos of herself in her underwear and, ultimately, proof of her masturbating. Asked by the undercover agent if he had past photos of the purported minor, the target sent an image showing nail polish that seemed to match that seen in the live chat images.

That same day, the FBI sent an emergency request to KIK seeking the subscriber identification and IP access information associated with the target's KIK username. KIK's responsive disclosures included IP addresses from March 16, 2019, through March 18, 2019, and indicated that the target was using an iPhone. The FBI focused on one frequently used IP address, which was assigned to Comcast. The FBI sent an emergency request to Comcast seeking subscriber information for that IP address. Comcast identified the subscriber as Nicole Corleto and provided the physical service address as a location on Elmwood Drive in Hudson, New Hampshire. Public records indicated that Robert Corleto resided there, and that a 2016 blue Chevy Equinox and a 2001 white Ford F150 were registered at that address to Nicole and Robert Corleto, respectively.

After relating this information, DeMann's affidavit described the likelihood that a "computer or storage medium" found at the Elmwood Drive address would contain contraband and/or evidence of crimes, "[b]ased on [his] knowledge, training, and experience." Again invoking his "training and experience," DeMann asserted that the evidence he sought "is by its very nature portable" and may be stored on "extremely compact storage devices," including "smart phones," and that "it is not uncommon for individuals to keep such media in multiple locations within their premises, including in outbuildings and motor vehicles."

A magistrate judge issued a search and seizure warrant on March 19, 2019. As requested, the warrant authorized the search of the Elmwood Drive residence and "any vehicles registered to that address," including the F150 and the Equinox registered to Robert and Nicole Corleto, for, among other things, "records and visual depictions of minors engaged in sexually explicit conduct." The warrant also authorized the seizure of "[a]ny computer ... that [was] or may have been used as a means to commit the offenses described on the warrant," employing a broad definition of "computer" that included smartphones.

B.

That same day, DeMann and other FBI agents executed the search warrant for the Elmwood Drive address. When the agents arrived, Robert Corleto and his wife Nicole were in the process of leaving the residence's parking lot in the Equinox. Without drawing his gun, DeMann stopped the Equinox and identified himself. DeMann approached the SUV's passenger side -- where Robert Corleto was seated -- and asked him to exit the vehicle.

At the suppression hearing, DeMann expressed some uncertainty as to whether Corleto had the phone in his hand or in a pocket as he exited the car, ultimately concluding that it was in Corleto's hand. Corleto agreed, and the district court so found. After DeMann asked if Corleto could unlock the phone for him, Corleto opened his iPhone by pressing the "home" button and handed it to DeMann.¹

After DeMann and Corleto moved away from the car, DeMann explained that they had a warrant to search for evidence of child pornography. DeMann then stepped away for a few moments, back to the vehicle, until Corleto motioned him over. Unprompted, Corleto informed DeMann that everything the officer sought was on his phone.

Agents nevertheless proceeded to execute the warrant by searching Corleto's residence. At no point was Corleto handcuffed nor were any weapons drawn. As the agents searched the home, Corleto reiterated to DeMann several times that his phone contained what the agents sought. DeMann eventually suggested that they discuss things at the Hudson Police Department. DeMann testified that he made that suggestion because the residence contained around ten agents plus the Corletos, "and everybody [was] walking around," there was "really no place to sit down," and DeMann "figured that the interview was going to have some sensitive ... questions that I was going to be asking him." DeMann testified that, at the station, he "could sit down," "take notes," and "record the interview."

Corleto asked if he could take his truck, but it had yet to be searched. Instead, DeMann drove Corleto to the station with Corleto seated in the front seat of DeMann's car. Corleto was not handcuffed, and another agent sat in the backseat.

Corleto was interviewed in a room at the station. The interview was recorded in its entirety. The door was open during parts of the interview, and Corleto was told multiple times that he was free to leave.² Four different law enforcement officers, including DeMann, participated in various portions of the interview. Corleto admitted, among other things, that he solicited sexual photographs from a twelve-year-old girl and had similar interactions with a "handful" of others. In response to DeMann asking whether there was "anything else you need to let us know," Corleto stated, "It's all right there on the phone."

When the interview ended, DeMann asked Corleto where he would like DeMann to drive him, and Corleto indicated that he wanted to go home. DeMann drove him there, with Corleto again in the front seat.

In due course, a grand jury returned an indictment charging Corleto with one count of sexual exploitation of a minor, 18 U.S.C. § 2251(a), (e), and one count of transportation of child pornography, 18 U.S.C. § 2252A(a)(1), (b)(1). Corleto moved to suppress the evidence obtained from the March 19 search, as well as the statements he made during the search and later at the station. After holding an evidentiary hearing, the district court denied the motion. Corleto then agreed with the government to plead guilty to sexual exploitation of a minor in exchange for the government dismissing the second count, though Corleto retained the right to appeal the denial of his suppression motion. Corleto timely appealed on that basis.

II.

"In reviewing the denial of a motion to suppress, we review the district court's ... conclusions of law, including its ultimate constitutional determinations, de novo." United States v. Merritt, 945 F.3d 578, 583 (1st Cir. 2019). We will uphold the denial "as long as ‘any reasonable view of the evidence supports the decision.’ " Id. (quoting United States v. Clark, 685 F.3d 72, 75 (1st Cir. 2012) ).

Corleto advances an array of arguments on appeal. Invoking the Fourth Amendment, he argues that the warrant lacked sufficient nexus and particularity and that it was executed as an unlawful general warrant. He also insists that his iPhone's seizure exceeded the scope of the warrant; that he did not consensually surrender the phone; that the phone's seizure was not within the plain-view exception to the warrant requirement; and that the search of the iPhone was improper. Finally, he argues that the use of statements made by him violated his Fifth Amendment right against self-incrimination.

We begin with Corleto's challenges to the warrant itself, then examine his claims about its execution, and conclude with his Fifth Amendment argument.

A.

Corleto faults DeMann for obtaining the warrant by providing testimony about the general practices of those who possess child pornography, rather than specific information about Corleto's suspected activities. Corleto further insists that "there was insufficient guidance applied for and obtained to limit the scope of the potential seizures of smart phones." He broadly frames these challenges in terms of the warrant's failure to establish a nexus between the place to be searched and the alleged criminal activity, and the warrant's lack of sufficient particularity. We consider those challenges in turn.

1.

When evaluating a challenge to a warrant, "[w]e review a determination of probable cause de novo and look only to the ‘ "facts and supported opinions" set out within the four corners of the affidavit.’ " United States v. Lindsey, 3 F.4th 32, 39 (1st...