Convictions and sentence affirmed for child porn and enticing minor to engage in sex acts despite defective search warrant and Booker sentencing error

SEARCH & SEIZURE/SENTENCING United States v. Riccardi, No. 03-3132, ___ F.3d ___(10th Cir. Apr. 19, 2005)(Kansas). Appeal of convictions and sentence for possession of child pornography and enticing minor to engage in prohibited sex act in violation of 18 U.S.C. § 2252(a)(4)(B) and § 2422(b). HELD: (1) Where search warrant authorized officers to seize computer but did not limit search to particular files or search for evidence of any particular federal crime, warrant essentially authorized search for anything from child pornography to tax returns to private correspondence. By permitting such wide-ranging search, warrant lacked sufficient specificity. Warrant for computer search must affirmatively limit search to evidence of specific crimes or specific types of material. (2) Although search warrant was defective for lack of specificity, district court correctly determined that good-faith exception to exclusionary rule set out in United States v. Leon, 468 U.S. 897 (1984), applied and evidence obtained from hard drive of defendant’s computer need not have been suppressed. Despite fact that warrant’s supporting affidavit was not attached, or otherwise incorporated into warrant, officers nonetheless reasonably presumed warrant to be valid because they: (a) stayed within scope of search of warrant’s supporting affidavit by limiting search to search for child pornography; (b) seized only evidence relevant to crimes identified in affidavit; and (c) sought opinion of prosecutor as to scope of search permitted by warrant. (3) Even though defendant’s sentence as determined under sentencing guidelines was based on judge-found facts in violation of Sixth Amendment standards set out in United States v. Booker, 125 S.Ct. 738, because judge exercised his limited pre-Booker sentencing discretion and sentenced defendant to highest permissible sentence, there is no reason for court of appeals to conclude that judge would exercise now-greater post-Booker discretion to reduce sentence. Thus, Booker error must be disregarded as harmless. Read the opinion here.