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United States v. Perez-Diaz

United States Court of Appeals, First Circuit

February 3, 2017

UNITED STATES OF AMERICA, Appellee,
v.
ÁNGEL LUIS PÉREZ-DÍAZ, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Jay A. García-Gregory, U.S. District Judge]

          Andrew S. McCutcheon, Assistant Federal Public Defender, with whom Eric Alexander Vos, Federal Public Defender, and Vivianne M. Marrero, Assistant Federal Public Defender, Supervisor, Appeals Section, were on brief, for appellant.

          Marshal D. Morgan, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Juan Carlos Reyes-Ramos, Assistant United States Attorney, were on brief, for appellee.

          Before Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.

          TORRUELLA, Circuit Judge.

         Ángel Luis Pérez-Díaz ("Pérez") was convicted of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and sentenced to seventy-eight months of imprisonment and ten years of supervised release. Pérez pled guilty and conditioned his guilty plea on preserving his right to appeal the district court's denial of his motion to suppress. In this motion to suppress, Pérez had alleged that the search and seizure of computers and other items from his apartment violated the Fourth Amendment. The district court held two evidentiary hearings and issued a Report and Recommendation ("R&R") after each hearing, both times denying the motion to suppress. Pérez now appeals the denial of his motion to suppress, arguing that FBI agents violated the Fourth Amendment by trespassing on the curtilage of his home, entering his apartment without his consent, and illegally seizing his property before obtaining a search warrant. Because the district court's factual findings do not support Pérez's contentions -- and we find no clear error in these factual findings -- we reject Pérez arguments and affirm the district court.

         I. Background

         In November 2010, FBI agents conducted an undercover online session through which they downloaded child pornography. The I.P. address of the internet user from whom they downloaded the pornography led them to the former family home of Pérez (the "Family Home"). On April 29, 2011, the FBI agents executed a search warrant on the Family Home. The FBI agents spoke to Pérez's wife and children at the Family Home, and learned that Pérez had recently moved out. Pérez's fourteen-year-old son told one of the FBI agents that he saw Pérez looking at pornography on Pérez's computer before Pérez moved out. Pérez's wife told the FBI agents where Pérez presently lived and what kind of car he drove, and informed the agents that Pérez worked as a police officer for the Puerto Rico Police Department. Upon obtaining Pérez's new address, the FBI agents traveled to his apartment, where they determined the car outside the apartment belonged to Pérez.

         The parties dispute the facts surrounding the subsequent events. Based on the testimony of the FBI agents, the agents entered the apartment building property through the back gate, which did not require force to open. Two of the four FBI agents, led by Special Agent Tomás Ortiz, initiated a knock-and-talk[1] by knocking on the door to Pérez's apartment. Pérez answered and talked with the agents through the door for two minutes, and then allowed the agents to enter. Agent Ortiz asked Pérez if he could ask him some questions; Pérez responded in the affirmative, and showed them into the kitchen.

         In the kitchen, the agents asked Pérez about his computer use. He stated he searched for pornography on his computer, and that any accidentally viewed child pornography would be on the hard drive of a broken desktop computer. When asked if he ever accidentally downloaded child pornography, Pérez stated yes. Pérez led the agents to the living room closet, where he took out a ten-year-old hard drive and gave it to one of the agents, attempting to pass it off as the hard drive of the above-mentioned desktop computer. The agents noticed a laptop on the floor of the living room and asked Pérez if he used that laptop at his prior residence (the Family Home where his wife and children still resided) and may have inadvertently downloaded or watched child pornography on it. Pérez responded that he had used the laptop at his prior residence, but that he had neither downloaded nor watched child pornography on it. One of the agents asked if Pérez could turn on the laptop to show the agents that he did not have any peer-to-peer file sharing applications installed, and at that point Pérez became evasive and stated he did not want them to touch the laptop.

         At this point the agents immediately ended the interview and proceeded to secure the premises while Agent Ortiz went to obtain a search warrant for the apartment, which he received by 12:20 that afternoon. After they obtained the warrant, the agents searched the apartment and seized several electronic media items, including the desktop computer Pérez discussed during the knock-and-talk and the laptop located on the living room floor. The desktop and the laptop yielded at least eighty images and over six hundred videos of child pornography.

         Pérez tells a different story. According to his account, the agents forced open a padlock on the back gate in order to gain access to his front door; entered his apartment without his consent by pushing gently on his chest; forcefully sat him on an exercise bike and interrogated him; searched his apartment at will after he refused to cooperate; ordered him to move from the kitchen to the living room after they had completed the initial investigation; and continued to search his apartment even after he spoke to his attorney on the phone.

         On May 30, 2012, a grand jury charged Pérez with possession of one or more materials which contained visual depictions of minors engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(4)(B) in the United States District Court for the District of Puerto Rico. Following the indictment, Pérez filed a motion to suppress all evidence, both physical and testimonial, recovered during the FBI agents' search of his residence and property on April 29, 2011, arguing these pieces of evidence were the fruits of a warrantless and illegal search. After an evidentiary hearing on August 19, 2013, the magistrate judge issued a first R&R denying Pérez's motion to suppress. The magistrate judge credited the agents' testimony over Pérez's testimony. Pérez filed a timely objection, but the district court denied that objection and adopted the magistrate's R&R.

         Two months later, in December of 2013, Pérez moved for reconsideration of the motion to suppress and produced new evidence, namely two blurry pictures of the padlock of the back gate purportedly taken on April 29, 2011, and an affidavit from a locksmith stating that those pictures appeared to show that the padlock had been opened by force. The court denied ...


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