United States v. Harley Pospisil

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United States Court of Appeals For the Eighth Circuit ___________________________ No. 20-2375 ___________________________ United States of America Plaintiff – Appellee v. Harley A. Pospisil Defendant – Appellant ____________ Appeal from United States District Court for the Eastern District of Missouri – St. Louis ____________ Submitted: March 19, 2021 Filed: July 20, 2021 [Unpublished] ____________ Before SHEPHERD, ERICKSON, and KOBES, Circuit Judges. ____________ PER CURIAM. Harley Pospisil was charged with receiving child pornography, 18 U.S.C. § 2252A(a)(2), and possessing child pornography, 18 U.S.C. § 2252A(a)(5)(B). The district court 1 denied his motion to suppress images from his cell phone, and he pleaded guilty. He appeals the denial of his motion to suppress. We affirm. I. Pospisil’s girlfriend, Cathy Klay, 2 told police that she found thousands of suspicious pictures on Pospisil’s computer and cell phone. She copied them onto storage devices and turned them over to police. She also gave them a written statement explaining that she found the pictures on Pospisil’s computer and on his Samsung Galaxy smartphone. After police saw the images, an officer applied for a warrant. A Missouri state judge issued a warrant authorizing police to seize and search “any and all electronic data processing and storage devices, computer[s,] and computer systems” found in Pospisil’s home. D. Ct. Dkt. 115 at 3. Neither the affidavit nor the warrant specifically mentioned a cell phone. When officers executed the warrant, they found a laptop and a cell phone. Pospisil admitted to owning both. Police found child pornography on both devices and arrested him. Pospisil was charged with one count of receiving child pornography and two counts of possessing child pornography. He moved to suppress the evidence from his cell phone, arguing that the phone was outside the scope of the warrant. The district court denied his motion. Pospisil then pleaded guilty, reserving his right to appeal the denial. He was given a below-Guidelines sentence of 96 months. 1 The Honorable Audrey G. Fleissig, United States District Judge for the Eastern District of Missouri, partially adopting the report and recommendations of the Honorable Noelle C. Collins, United States Magistrate Judge for the Eastern District of Missouri. 2 Ms. Klay’s last name is spelled more than one way in the record. For consistency’s sake, we adopt the spelling used in the Magistrate’s report and recommendations. D. Ct. Dkt. 105 at 2. -2- Pospisil raises one issue on appeal: whether the evidence seized from his cell phone should have been suppressed because the warrant did not specifically include cell phones. II. “On appeal from the denial of a motion to suppress, we review the district court’s findings of fact for clear error and its legal conclusions de novo.” United States v. Stevenson, 727 F.3d 826, 829 (8th Cir. 2013). The Fourth Amendment prohibits unreasonable searches and seizures and requires search warrants to be supported by probable cause and to “particularly describ[e] the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. If evidence was gathered …

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