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State v. Lehman
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 124

Docket:	Cum-98-503
Argued:	June 8, 1999
Decided:	July 30, 1999

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and ALEXANDER, JJ.




STATE OF MAINE v. PETER LEHMAN


DANA, J.

	[¶1]  Peter Lehman appeals from a judgment entered in the Superior
Court (Cumberland County, Cole, J.) on his conditional guilty plea to fifty-one
counts of sexual exploitation of a minor, 17 M.R.S.A. § 2922 (1983 & Supp.
1998), and one count of sexual abuse of a minor, 17-A M.R.S.A. § 254(1)
(Supp. 1998).  Lehman argues that the Superior Court erred when it denied
his motion to suppress because the search warrant was unconstitutionally
broad in permitting a search of "all computer equipment and computer-
related equipment."  We disagree and affirm the judgment.
I.
	[¶2]  In September 1997, a detective with the Portland Police
Department submitted an affidavit and request for a search warrant to the
District Court.  The police sought to search Lehman, his house in Gorham,
his van, his office at the University at Southern Maine, and the University of
Southern Maine computer network system for evidence of the sexual
exploitation of a minor, 17 M.R.S.A. § 2922 (1983 & Supp. 1998),{1} and the
possession of sexually explicit materials, 17 M.R.S.A. § 2924 (Supp. 1998).{2} 
The detective stated in an affidavit that probable cause existed for the search
because of statements by three girls, ages thirteen, sixteen, and eighteen. 
The girls stated that Lehman had photographed them with both a regular
camera and a digital camera, first with their clothes on and then asking
them to slowly take off their clothes.  The girls stated that they posed naked
and exposed their genitalia.  The girls further explained that Lehman
photographed them in his backyard and in the woods behind his house, and
that he downloaded certain pictures from the digital camera to his
computer.  One girl stated that Lehman told her that he intended to create a
portfolio of these pictures.
	[¶3]  The District Court issued the search warrant.  The property or
articles to be searched for included: photographs, photo packages,
photograph receipts, slides, negatives, computer files, or digital images of
the three girls; writings that include the names of the three girls, or five
other named girls; "[p]hotographic film which appears to be exposed but
unprocessed;" digital cameras, cameras, and camera equipment; and "[a]ll
computer equipment and computer related equipment, including, but not
limited to laptops, monitors, key boards, printers, mice, modems, hard
drives, CD roms, photo scanners, computer disks, tapes, programs to run
computers, and access data, manuals on operations of systems and
programs, which Peter Lehman would have been able to access, including,
but not limited to, copies of the contents thereof."
	[¶4]  The police executed the warrant.  The evidence that supported
the State's prosecution for sexual exploitation of a minor was seized from a
detached hard drive in the basement of Lehman's house.  The police also
recovered other computer-related equipment, including hardware,
commercial compact disks, manuals for computer programs, and over four
hundred computer disks.
	[¶5]  In December 1997, a grand jury returned an indictment
charging Lehman with fifty-four counts of Class B sexual exploitation, 17
M.R.S.A. § 2922, and one count of Class C sexual abuse, 17-A M.R.S.A.
§ 254(1) (Supp. 1998).{3}  In January 1998, Lehman filed a motion to
suppress evidence pursuant to M.R. Crim. P. 41A(a){4} arguing, inter alia, that
the warrant was overbroad.  After a hearing, the Superior Court denied the
motion to suppress.  In April 1998, Lehman entered a conditional guilty plea
pursuant to M.R. Crim. P. 11(a)(2){5} to fifty-one counts of sexual exploitation
of a minor, 17 M.R.S.A. § 2922, and one count of sexual abuse of a minor,
17-A M.R.S.A. § 254(1).  Lehman thereafter appealed.
II.
	[¶6]  Lehman argues that the warrant was overbroad in violation of the
Fourth Amendment because it permitted the police to search all computer
equipment, hardware, and software without limitation.  We disagree.
	[¶7]  "A decision as to the constitutional adequacy of a search warrant
is a matter of law."  State v. Pelletier, 673 A.2d 1327, 1329 (Me. 1996)
(footnote omitted).  The issue of whether the search warrant lacks the
required specificity as to the place and items to be searched is an issue of
constitutional adequacy that we review de novo.  See id.
	[¶8]  The Fourth Amendment to the United States Constitution and
article I, section 5, of the Maine Constitution protect against unreasonable
searches and seizures.  U.S. Const. amend. IV.; Me. Const. art. 1, § 5.{6}  The
Fourth Amendment requires that a search warrant "particularly describ[e]"
the place to be searched and the persons or things to be seized, and article
I, section 5, of the Maine Constitution requires that a warrant make a
"special designation" of the place to be searched and the persons or things
to be seized.  U.S. Const. amend. IV.; Me. Const. art. 1, § 5.  "A warrant must
describe the property to be seized with such particularity that an executing
officer will be able to identify it 'with certainty.'"  Pelletier, 673 A.2d at
1329 (quoting State v. Sweatt, 427 A.2d 940, 949 (Me. 1981)).  "Such
particularity discourages general searches and prevents the unauthorized
seizure of property under the mistaken belief that it falls within the
authorization of the warrant."  Sweatt, 427 A.2d at 949.  "The warrant can
leave nothing to the discretion of the executing officer as to what is to be
taken."  Pelletier, 673 A.2d at 1329.
	[¶9]  When a warrant is issued to seize all computer software and
hardware to recover computer images, courts have refused to conclude that
the warrant is unconstitutional because of a failure to particularly describe
the items to be seized. See United States v. Upham, 168 F.3d 532, 535 (1st
Cir. 1999), cert. denied, 67 U.S.L.W. 3757 (U.S. June 14, 1999) (No. 98-
9320) (upholding warrant issued for "[a]ny and all computer software and
hardware, . . . computer disks, disk drives . . ."  in the house of a woman
suspected of sending and receiving child pornography over the Internet);
United States v. Lacy, 119 F.3d 742, 746 (9th Cir. 1997), cert. denied, 118
S. Ct. 1571 (U.S. Apr. 27, 1998) (No. 97-8454) (upholding warrant issued
for search of computer equipment and concluding that "this type of generic
classification is acceptable 'when a more precise description is not
possible,' and in this case no more specific description of the computer
equipment sought was possible."); Davis v. Gracey, 111 F.3d 1472, 1479
(10th Cir. 1997) (upholding warrant issued for "equipment . . . pertaining to
the distribution or display of pornographic material in violation of state
obscenity laws . . . ." that resulted in seizure of computers, monitors,
keyboards, modems, CD-ROM drives and changers).  "[A] warrant that
describes the items to be seized in broad or generic terms may be valid
when the description is as specific as the circumstances and the nature of
the activity under investigation permit."  Davis, 111 F.3d at 1478 (quoting
United States v. Leary, 846 F.2d 592, 600 (10th Cir. 1988)) (internal
quotations omitted).
	[¶10]  The warrant was not unconstitutionally overbroad when it
authorized the seizure of all computer-related equipment in Lehman's
house.  See Upham, 168 F.3d at 535; Lacy, 119 F.3d at 746; Davis, 111 F.3d
at 1479.  The police knew only that the images of the girls who Lehman
allegedly sexually exploited were taken by a digital camera and downloaded
on a computer.  The description of the computer equipment to be seized
was "as specific as the circumstances and the nature of the activity under
investigation permit[ted]."  Davis, 111 F.3d at 1478.   Consequently, the
warrant was not overbroad.  See Upham, 168 F.3d at 535; Lacy, 119 F.3d at
746; Davis, 111 F.3d at 1479.
	[¶11]  Lehman also argues that the warrant should have limited the
search to the computer on the second floor of his Gorham home because
such a computer was specifically identified by one of the girls who made a
statement to the police.  We disagree.  A search of Lehman's entire house
was appropriate given the mobility of computer equipment and the girls'
statements that the alleged acts of sexual exploitation occurred throughout
the premises.  Moreover, although two girls stated that Lehman used a
computer, only one specifically identified that computer as the computer on
the second floor of the Gorham house.  Consequently, the warrant does not
fail for overbreadth because it authorized a search of Lehman's entire house.
III.
	[¶12]  Lehman argues that because the warrant authorized the seizure
of items presumptively protected by the First Amendment, the warrant must
describe the items to be seized with "scrupulous exactitude."  We disagree.
	[¶13] "[T]he constitutional requirement that warrants must
particularly describe the 'things to be seized' is to be accorded the most
scrupulous exactitude when the 'things' are books, and the basis for their
seizure is the ideas which they contain."  Stanford v. Texas, 379 U.S. 476,
485 (1965); see also United States v. Guarino, 729 F.2d 864, 867 (1st Cir.
1984); see generally 2 Wayne R. LaFave, Search and Seizure § 4.6(e) (3d ed.
1996) (discussing "scrupulous exactitude" standard).  First Amendment
rights and the "scrupulous exactitude" standard are not implicated,
however, when the materials to be seized are sought as evidence of a crime
and not for "the ideas which they contain."  See United States v. Layne, 43
F.3d 127, 133 (5th Cir. 1995) (rejecting "scrupulous exactitude" standard
for seizure of "pornographic" videotapes and magazines when items seized
to corroborate victim's testimony regarding a sexual assault and not because
of ideas contained); United States v. Stelten, 867 F.2d 446, 450 (8th Cir.
1989) (rejecting "scrupulous exactitude" standard for seizure of written
business records when items seized as evidence that defendant conspired to
defraud government); United States v. Kufrovich, 997 F. Supp. 246, 263 (D.
Conn. 1997) (rejecting "scrupulous exactitude" standard for warrant to seize
computers and correspondences when items seized as evidence that
defendant used interstate commerce to persuade minor to engage in
unlawful sexual act).
	[¶14]  We reject Lehman's contention that the warrant was required
to describe the items to be seized with "scrupulous exactitude."  The
warrant authorized the seizure of photographs and digital images because
such items were evidence that Lehman sexually exploited minors--the police
did not seize these items because of the content or ideas contained therein. 
See Layne, 43 F.3d at 133; Stelten, 867 F.2d at 450; Kufrovich, 997 F. Supp.
at 263.  Consequently, the First Amendment and the "scrupulous
exactitude" standard is not implicated.  Because this warrant particularly
described the items to be seized pursuant to the United States Constitution
and the Maine Constitution, we affirm the judgment.
	The entry is:
			Judgment affirmed.

Attorneys for the State: Stephanie Anderson, District Attorney Julia A. Sheridan, Asst. Dist. Atty. (orally) Cumberland County Courthouse 142 Federal St. Portland, Maine 04l03 Attorney for the defendant: Wayne S. Moss, Esq. (orally) P.O. Box 2207 295 Water St. Augusta, Maine 04338
FOOTNOTES******************************** {1} . Title 17 M.R.S.A. § 2922 provides in relevant part: Sexual exploitation of a minor 1. Offense. A person is guilty of sexual exploitation of a minor if: A. Knowing or intending that the conduct will be photographed, he intentionally or knowingly employs, solicits, entices, persuades, uses or compels another person, not his spouse, who is in fact a minor, to engage in sexually explicit conduct; . . . . . . . A minor is a person under 18 years of age. See 17 M.R.S.A. § 2921(3) (Supp. 1998). {2} . Title 17 M.R.S.A. § 2924 provides in relevant part: Possession of sexually explicit materials 1. Definitions. As used in this section, the term "sexually explicit conduct" means any of the following acts: A. Sexual act, as defined in Title 17-A, section 251, subsection 1, paragraph C; B. Bestiality; C. Masturbation; D. Sadomasochistic abuse for the purpose of sexual stimulation; E. Lewd exhibition of the unclothed genitals, anus or pubic area of a person. An exhibition is considered lewd if the depiction is designed for the purpose of eliciting or attempting to elicit a sexual response in the intended viewer; or F. Conduct that creates the appearance of the acts in paragraphs A to D and also exhibits any uncovered or covered portions of the genitals, anus or pubic area. 2. Offense. A person is guilty of possession of sexually explicit material if that person intentionally or knowingly transports, exhibits, purchases or possesses any book, magazine, print, negative, slide, motion picture, videotape or other mechanically reproduced visual material that the person knows or should know depicts another person engaging in sexually explicit conduct, and: A. The other person has not in fact attained the age of 14 years; or B. The person knows or has reason to know that the other person has not attained the age of 14 years. . . . . 4. Age of person depicted. The age of the person depicted may be reasonably inferred from the depiction. Competent medical evidence or other expert testimony may be used to establish the age of the person depicted. . . . . 6. Contraband. Any material that depicts a person who has not attained the age of 14 years engaging in sexually explicit conduct is declared to be contraband and may be seized by the State. {3} . Title 17-A M.R.S.A. § 254 provides in relevant part: Sexual abuse of minors 1. A person is guilty of sexual abuse of a minor if: A. Having attained the age of 19 years, the person engages in a sexual act with another person, not the actor's spouse, who has attained the age of 14 years but has not attained the age of 16 years, provided that the actor is at least 5 years older than the other person; . . . 2. It is a defense to a prosecution under subsection 1, paragraph A, that the actor reasonably believed the other person to have attained his 16th birthday. 3. Violation of subsection 1, paragraph A is a Class D crime; . . . except that the sentencing class for a violation of subsection 1 is one class higher if the State pleads and proves: A. The actor was more than 10 years older than the other person; or B. The actor knew the person was related to the actor within the 2nd degree of consanguinity. {4} . Rule 41A of the Maine Rules of Criminal Procedure provides in relevant part: MOTION TO SUPPRESS EVIDENCE (a) Grounds of Motion. A defendant may move to suppress as evidence any of the following, on the ground that it was illegally obtained: (1) physical objects; (2) statements of the defendant; (3) test results; (4) out-of-court or in-court eyewitness identifications of the defendant. . . . . {5} . Rule 11 of the Maine Rules of Criminal Procedure provides in relevant part: PLEAS; ACCEPTANCE OF A PLEA TO A CHARGE OF A CLASS C OR HIGHER CRIME (a) Pleas . . . . (2) Conditional Guilty Plea. With the approval of the court and the consent of the attorney for the state, a defendant may enter a conditional guilty plea. A conditional guilty plea shall be in writing. It shall specifically state any pretrial motion and the ruling thereon to be preserved for appellate review. If the court approves and the attorney for the state consents to entry of the conditional guilty plea, they shall file a written certification that the record is adequate for appellate review and that the case is not appropriate for application of the harmless error doctrine. Appellate review of any specified ruling shall not be barred by the entry of the plea. If the defendant prevails on appeal, the defendant shall be allowed to withdraw the plea. . . . . {6} . The Fourth Amendment to the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Article I, section 5, of the Maine Constitution provides: The people shall be secure in their persons, houses, papers and possessions from all unreasonable searches and seizures; and no warrant to search any place, or seize any person or thing, shall issue without a special designation of the place to be searched, and the person or thing to be seized, nor without probable cause -- supported by oath or affirmation.