United States v. Tosti

Summarized by:

  • Court: 9th Circuit Court of Appeals Archives
  • Area(s) of Law: Criminal Procedure
  • Date Filed: 10-01-2013
  • Case #: 12-10067
  • Judge(s)/Court Below: Circuit Judge Callahan for the Court; Circuit Judges Schroeder and Ripple
  • Full Text Opinion

The Fourth Amendment does not protect information that is voluntarily turned over to a third party and then subsequently viewed by law enforcement officers.

In 2005, Donald Tosti had his computer serviced at CompUSA where a service technician discovered child pornography. When detectives arrived at CompUSA, "they could tell by looking at the [thumbnail] pictures that they depicted child pornography." The detectives opened individual images and viewed them in a “slide show” format. Detectives seized the computer and searched Tosti's home, office, and two vehicles. In 2009, after Tosti’s arrest, on two separate occasions Tosti’s estranged wife contacted the FBI to turn over documents and items she found in the home that "appeared to contain pornography." She explained to the FBI that she lived with her husband and “had full access throughout the residence.” Ms. Tosti also signed a "Consent to Search" form prior to the FBI's second search. The district court granted in part and denied in part Tosti's motion to suppress the evidence, throwing out only the evidence gathered during the first search of Tosti's home in 2009. Tosti was found guilty of possessing child pornography and sentenced to 96-months. Tosti appealed the district court's denials of his motions to suppress evidence from the 2005 and 2009 searches, as well as his sentence. The Ninth Circuit held that by voluntarily allowing CompUSA to inspect his computer, Tosti had no expectation of privacy. Further, detectives did not exceed the scope of the search by enlarging the images because the thumbnails reflected that the images contained child pornography. With regards to the 2009 search, the panel held that "[t]here was no indication at the time of the search that [the FBI] was on notice that Ms. Tosti might not have the authority to consent." Therefore, Tosti's motion to suppress was property denied. Finally, despite Tosti's age and health problems, "the district court properly considered Tosti's age and physical condition at sentencing." AFFIRMED.

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