Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 08-02-2021
Case Style:
United States of America v. Joseph Keck, Jr.
Case Number: 19-3534
Judge: Leonard Steven Grasz
Court: United States Court of Appeals
For the Eighth Circuit
Plaintiff's Attorney:
Defendant's Attorney:
Description:
St. Louis, MO - Criminal defense lawyer represented defendant with five child pornography related counts.
In 2016, the Swiss federal police told the Federal Bureau of Investigation that
an internet protocol (“IP”) address in Arkansas was distributing child pornography
on a file sharing website known as GigaTribe. The FBI tied the IP address to
Matthew Fee. Agents then questioned him. Fee, a former local law enforcement
officer who was then at a police academy, pointed the FBI agents to his future fatherin-law, Joseph Keck. Fee’s fiancée Danika (Keck’s daughter) did too.
Keck worked as a long-haul trucker and stayed at the Fees’ house periodically
when he was in town. Several years earlier, Keck had spent thirty days in jail and
paid a $16,000 fine for a child-pornography conviction.
When the agents first made contact with the Fees on a Friday night, the couple
consented to the seizure and search of their personal electronic devices. Those
searches came up empty. The following Monday, the FBI discovered that another
jurisdiction was investigating Keck for child-pornography-related crimes. The Fees
told the agents that they expected Keck to return to their house that afternoon.
The lead agent on the case asked his supervisor and the FBI’s in-house legal
counsel for advice. He was advised that (1) the FBI could lawfully seize Keck’s
electronic devices without a warrant to prevent Keck from destroying them, and
(2) the agents needed to do so as soon as Keck returned to town.
-3-
When Keck arrived at the Fees’ house on Monday, two FBI agents were there
waiting for him. They pulled their vehicles next to Keck’s van in the Fees’ driveway,
got out, and questioned him. Keck told them he had come from Atlanta and had
slept at a West Memphis, Arkansas hotel. The agents told Keck they needed his
electronic media.
Keck gathered his devices—including two laptops, a cell phone, a portable
hard drive, and a memory card—from his van. Initially, he only turned over two
devices. But after the agents told him that lying to the FBI during an investigation
is a felony, he went back to the van and got the rest. During the encounter, the agents
did not yell or threaten Keck, and he could not see their guns.
After obtaining a search warrant for Keck’s devices, the FBI’s examination
revealed twelve file-sharing accounts associated with Keck’s computers. An
Oklahoma-based FBI investigation had previously linked one of those accounts to
child pornography. Another account had used an IP address from the West Memphis
hotel where Keck told the agents he had stayed the night before they seized his
devices. One of the laptops contained a folder, which in turn contained sub-folders
with thousands of downloaded child pornography videos and images.
The government charged Keck with five crimes: two counts of receiving child
pornography, and one count each of possessing, advertising, and attempting to
distribute child pornography. See 18 U.S.C. §§ 2251(d); 2252(a)(2), (a)(4)(B).
Keck moved to suppress the evidence recovered from his electronic devices. The
district court denied that motion without written order, reasoning that the warrantless
seizure was justified by (1) the consent exception, (2) the exigent-circumstances
exception, or (3) the inevitable-discovery doctrine. At trial, the jury returned a guilty
verdict on all counts. The district court sentenced Keck to 300 months of
imprisonment and five years of supervised release.
-4-
II. Analysis
On appeal, Keck first argues that the district court wrongly denied his
suppression motion because no exception to the Fourth Amendment’s warrant
requirement applies. He next argues that the evidence against him is insufficient to
support his conviction for the attempted distribution of child pornography.
A. Suppression Motion
In the context of a motion to suppress, we review the district court’s factual
findings for clear error and its legal conclusions de novo. See United States v.
McCoy, 847 F.3d 601, 605 (8th Cir. 2017). We affirm the denial unless it “is
unsupported by substantial evidence, is based on an erroneous view of the applicable
law, or in light of the entire record, we are left with a firm and definite conviction
that a mistake has been made.” United States v. Farnell, 701 F.3d 256, 260–61 (8th
Cir. 2012) (quoting United States v. Rodriguez-Hernandez, 353 F.3d 632, 635 (8th
Cir. 2003)). We may affirm on any ground supported by the record. See United
States v. Murillo-Salgado, 854 F.3d 407, 414 (8th Cir. 2017).
The Fourth Amendment protects against “unreasonable searches and
seizures[.]” U.S. Const. amend. IV. While the “ultimate touchstone” of any Fourth
Amendment analysis is “reasonableness,” Brigham City v. Stuart, 547 U.S. 398, 403
(2006), the Supreme Court has long held that a warrant is required for all searches
and seizures, unless an exception to the warrant-requirement applies. See Groh v.
Ramirez, 540 U.S. 551, 559–60 (2004).
One such exception, long-recognized by the Court, is the automobile
exception. See Carroll v. United States, 267 U.S. 132, 149 (1925); Collins v.
Virginia, 138 S. Ct. 1663, 1669–70 (2018) (explaining the two rationales behind the
exception: the “ready mobility” of vehicles and their “pervasive regulation”). The
automobile exception is a categorical one: “Probable cause to believe that an
automobile contains contraband or evidence of criminal activity has long been held
-5-
to justify a warrantless search of the automobile and seizure of the contraband.”
United States v. Shackleford, 830 F.3d 751, 753 (8th Cir. 2016). “Probable cause
exists, when, given the totality of the circumstances, a reasonable person could
believe there is a fair probability that contraband or evidence of a crime would be
found in a particular place.” Murillo-Salgado, 854 F.3d at 418 (quoting United
States v. Wells, 347 F.3d 280, 287 (8th Cir. 2003)).
The Supreme Court has clarified that the automobile exception’s scope
extends to the “automobile and the containers within it where [officers] have
probable cause to believe contraband or evidence is contained.” California v.
Acevedo, 500 U.S. 565, 580 (1991). The upshot is that law enforcement may seize
an item inside a car if a “fair probability” exists to believe the item is or contains
evidence of a crime. Murillo-Salgado, 854 F.3d at 418; see, e.g., United States v.
Martin, 806 F.2d 204, 207–08 (8th Cir. 1986) (upholding the seizure of gun parts
from a truck under the automobile exception when the officer had probable cause to
believe they were evidence of a crime). This includes electronic evidence. See, e.g.,
United States v. Gaskin, 364 F.3d 438, 458 (2d Cir. 2004) (concluding that the
automobile exception justified the seizure of electronics the agents had probable
cause to believe were linked to a crime); United States v. Trevino, 388 F. Supp. 3d
901, 906 (W.D. Mich. 2019) (same).2
2
While some courts have held that the automobile exception allows the
government to seize electronics located inside vehicles and search their contents,
see, e.g., United States v. Davis, 787 F. Supp. 2d 1165, 1171 (D. Or. 2011), we need
not reach that issue because the FBI used a warrant to search Keck’s devices. See
United States v. Brooks, 715 F.3d 1069, 1075 (8th Cir. 2013) (“In this case, it is
unnecessary to decide whether a cell phone is a container for purposes of the
automobile exception[.]”); see also United States v. Burgess, 576 F.3d 1078, 1087–
90 (10th Cir. 2009) (discussing the issue but ultimately resolving the case on other
grounds because the agents had a search warrant); cf. Riley v. California, 573 U.S.
373, 386 (2014) (holding that searching a person’s phone incident to their arrest
violated the Fourth Amendment, but not discussing the application of that holding
within the automobile-exception context).
-6-
Before the FBI agents met Keck in the Fees’ driveway, they knew that
someone associated with the Fees’ IP address had downloaded child pornography.
And two people—one of whom was Keck’s daughter—had indicated that Keck was
the likely culprit. The agents had confirmed that none of the Fees’ devices contained
child pornography, which further supported Keck as the primary suspect as well as
a belief that he had the devices with him on the road. They also knew that Keck had
previously committed a child-pornography-related crime. Based on these facts,
there was a “a fair probability that contraband or evidence of a crime would be
found” in Keck’s vehicle, Murillo-Salgado, 854 F.3d at 418, and from the outset, the
agents could search Keck’s van and seize any items that they had probable cause to
believe contained evidence of a crime.
While this situation may differ from a run-of-the-mill application of the
automobile exception, we see no reason why it should not apply here. Based on the
evidence from the FBI agents’ pre-seizure investigation, a “fair probability” existed
both that (1) Keck’s van contained electronic devices, and (2) those devices
contained child pornography. Because the automobile exception allowed the
officers to search Keck’s van and to seize any materials that they had probable cause
to believe were contraband, seizing Keck’s devices from his van was constitutional.3
B. Sufficiency of the Evidence
We turn next to Keck’s sufficiency-of-the-evidence challenge to his
conviction for attempted distribution of child pornography. See 18 U.S.C.
§ 2252(a)(2). We review this challenge de novo, “view[] the evidence in a light most
favorable to the verdict[,] and accept[] all reasonable inferences supporting the
verdict.” United States v. Colton, 742 F.3d 345, 348 (8th Cir. 2014). This “strict”
standard means that we will overturn his conviction “only if no reasonable jury could
3
Because seizing Keck’s devices is justified under the automobile exception,
we need not analyze the other exceptions that the district court discussed. See
Murillo-Salgado, 854 F.3d at 414.
-7-
have found [the defendant] guilty beyond a reasonable doubt.” United States v. Bell,
477 F.3d 607, 613 (8th Cir. 2007).
To prevail, Keck needs to show that “no reasonable jury could have” found
him guilty. Id. The government put on evidence that Keck had installed GigaTribe
on his computer, knew how to operate it, and kept an immense collection of child
pornography images and videos on his devices. His laptop alone contained
thousands of files of child pornography, which any in-network users could have
downloaded using Gigatribe. And the evidence showed that he regularly chatted
with other users and provided them with his password.
We conclude that this evidence, taken together, supports Keck’s conviction.
He has failed to show that “no reasonable jury could have” convicted him. See
United States v. Hill, 750 F.3d 982, 987–89 (8th Cir. 2014) (rejecting a defendant’s
sufficiency-of-the-evidence challenge to his child-pornography convictions when
evidence showed that he had downloaded images of child pornography onto his
computer and had distributed those images with a file-sharing program).
Keck argues that United States v. Durham, 618 F.3d 921 (8th Cir. 2010),
supports reversal. But Durham differs for three reasons. First, it involved a
sentencing enhancement, while this case involves a charge of attempted distribution.
Id. at 922, 925. Second, Durham did not install the file-sharing program and did not
know much about it. Id. at 923–24. Here, the jury heard evidence that Keck installed
GigaTribe and knew about its operation. Third, Durham had no child pornography
in his shared folders, whereas Keck had thousands of images and videos of child
pornography in his GigaTribe folders and actively offered to share them with others.
Id. Thus, Durham does not advance Keck’s sufficiency-of-the-evidence challenge
Outcome: For the reasons stated above, we affirm.
Plaintiff's Experts:
Defendant's Experts:
Comments: