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United States v. Morgan

United States Court of Appeals, Eighth Circuit

December 1, 2016

United States of America Plaintiff- Appellee
v.
Damien Morgan Defendant-Appellant

          Submitted: September 23, 2016

         Appeal from United States District Court for the Eastern District of Missouri - St. Louis

          Before LOKEN, GRUENDER, and BENTON, Circuit Judges.

          BENTON, Circuit Judge.

         Damien Morgan pled guilty to one count of production of child pornography in violation of 18 U.S.C. § 2251(a) and one count of attempted production in violation of 18 U.S.C. § 2251(a) and (e). He reserved the right to appeal the denial of a motion to suppress. Morgan now appeals the motion and two base-offense-level enhancements to his guidelines range. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

         I.

         On August 4, 2013, an officer discovered that a computer offered child pornography by peer-to-peer file sharing. That day, police identified the computer's IP address. Twenty-four days later, police determined that the IP address was assigned to Morgan. Over seven weeks later, a state judge issued a search warrant for his home-75 days after the IP address was identified and 51 days after investigators associated the IP address with Morgan.

         Five days later, police executed the warrant at Morgan's home. They also arrested him on a warrant for an unrelated no-fare-transit violation.

         The arresting officer seized a cell phone from Morgan and, while handcuffing him, noticed a tattoo on his wrist. At the station, Morgan requested his cell phone to tell his employer and sister where he was. Police gave him the cell phone, under police supervision. As Morgan scrolled through his contacts, he did not object as a detective watched his screen. According to the detective, Morgan spontaneously shared facts about the contacts. The detective wrote down some names and numbers.

         While Morgan was in custody, a different detective found original images of child pornography on a computer from his home. One image showed a man with a tattooed arm touching a female child's genitalia. The detective who found the images asked Morgan to lift the sleeve of his shirt so that he could photograph his tattoo. Morgan agreed, lifting his sleeve and allowing photographs without objection. Morgan's tattoos matched the tattoos in the photographs from his computer.

         Police later identified the child in the computer images. Morgan's public Facebook profile led to the profile of a woman who a detective recalled was one of Morgan's cell-phone contacts. Her public profile showed a daughter resembling the child pictured.

         The district court[1] denied Morgan's motion to suppress all evidence seized from his home as well as physical evidence seized from his person or possession. Following a conditional guilty plea, the court sentenced him to 360 months, based on a guidelines range including enhancements of: (1) four levels for images depicting sadistic conduct and (2) five levels for a pattern of activity.

         II.

         This court reviews a district court's factual findings for clear error and its legal conclusions de novo. United States v. Burston, 806 F.3d 1123, 1126 (8th Cir. 2015). The denial of a motion to suppress is affirmed unless this court "find[s] that the decision is unsupported by the evidence, based on an erroneous view of the law, or the Court is left with a firm conviction that a mistake has ...


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