Norman K. Moon Unit ed State s District Judge
Defendant Daniel J. Brown has filed a motion seeking to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Defendant’s motion argues that the attorney who represented him at trial was ineffective for not moving to suppress evidence on the ground that there had been an unreasonable lapse of 78 days between the warrantless seizure of Defendant’s laptop computer and external hard drive and the eventual date when law enforcement applied for a search warrant and proceeded to examine the seized electronic equipment.
Counsel was appointed to represent Defendant, the Government filed a motion for summary judgment,  and the parties’ arguments have been fully briefed. Upon consideration of the record and the parties’ filings, I will deny Defendant’s motion, and I will grant the Government’s motion.
On June 9, 2010, a grand jury returned a two-count indictment against Defendant. Count One charged Defendant with knowingly receiving child pornography or material that contained child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and 2252A(b)(1). Count Two charged Defendant with possessing material that contained one or more images of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2).
On June 29, 2010, Defendant made his initial appearance and arraignment. Andrea Harris, of the Office of the Federal Public Defendant in Charlottesville, was appointed to represent him.
On July 16, 2010, a trial date was set for September 7, 2010. On August 24, 2010, I granted Defendant’s motion to continue and rescheduled the trial to commence on November 22, 2010.
On November 1, 2010, Defendant filed a motion to substitute counsel, which I granted on the following day, substituting Vaughan C. Jones, Esq., for Ms. Harris. Soon thereafter, I granted a motion to continue filed by Mr. Jones, and the trial was rescheduled to commence on February 28, 2011.
On February 9, 2011, Defendant was charged in a two-count superseding indictment that, in part, expanded the time period of the offenses charged and added “attempt” language as contemplated by 18 U.S.C. § 2252(b). Count One charged Defendant with knowingly receiving and attempting to receive one or more visual depictions and the production of such visual depiction(s) involved the use of a minor engaging in sexually explicit conduct, and the visual depiction(s) were of such conduct, in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1). Count Two charged Defendant with possessing and attempting to possess at least one matter which contained a visual depiction and the production of such visual depiction involved the use of a minor engaging in sexually explicit conduct, and such visual depiction was of such conduct, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2).
Various motions (regarding conditions of release, evidentiary matters, and the like) were filed in January and February 2011. On Saturday, February 26, 2011, with trial scheduled to begin on Monday, February 28, 2011, Defendant’s counsel filed a motion to suppress evidence from Defendant’s computer. On Monday, February 28, 2011, prior to the commencement of trial, I heard brief argument regarding the motion, which I denied. I remarked on the late filing of the motion, but I denied it because of its lack of merit.
The trial began on Monday, February 28, 2011, and lasted through March 2, 2011. During the trial, Defendant objected, on the basis of his suppression arguments, to the entry of evidence obtained from his laptop. I overruled the objection. At the conclusion of the Government’s evidence, Defendant renewed his motion to suppress, which I denied because there was “no merit to the argument.” After the jury was given final instructions, Defendant again renewed his motion to suppress, which I again denied.
The jury returned guilty verdicts on both counts.
I held a sentencing hearing on June 1, 2011, but I continued the hearing because of disputed sentencing guideline enhancement issues (mainly the Government’s belated push for a distribution enhancement).
On June 7, 2011, I received a letter from Defendant, which the Clerk of the Court docketed as a pro se motion seeking the appointment of new counsel and a new trial. I entered an order on June 8, 2011, denying the motion for a new trial, referring the matter of appointment of counsel to United States Magistrate Judge B. Waugh Crigler, and continuing sentencing pending the resolution of issues concerning Defendant’s representation. At the conclusion of a hearing conducted on June 21, 2011, Judge Crigler discharged Defendant’s retained counsel and appointed Defendant’s present counsel, Frederick T. Heblich of the Office of the Federal Public Defender in Charlottesville. On June 22, 2011, the magistrate judge entered an order granting the motion and addressing matters attendant to the motion. That same day, Defendant filed a pro se motion requesting that I “simply overturn the juries [sic] verdict.” By order entered on July 13, 2011, I denied the motion.
On September 21, 2011, Defendant filed a motion to dismiss Count One of the superseding indictment. On October 6, 2011, the Government filed a supplemental sentencing memorandum with its motion to dismiss Count Two of the superseding indictment. On October 7, 2011, Defendant replied to the Government’s motion to dismiss and its supplemental sentencing memorandum.
On October 11, 2011, I held a sentencing hearing, during the course of which I granted the Government’s motion to dismiss Count Two of the superseding indictment. I sentenced Defendant to serve a term of imprisonment of 144 months, followed by ten years of supervised release.
Defendant timely appealed to the United States Court of Appeals for the Fourth Circuit, arguing that I erred in denying the motion to suppress and that I abused my discretion when I dismissed Count Two of the superseding indictment, rather than Count One. In October 2012, the Fourth Circuit heard oral argument in the appeal and, on December 6, 2012, rejected each of Defendant’s contentions, affirming my judgments in the case. See U.S. v. Brown, 701 F.3d 120, 127 (4th Cir. 2012). As I have already noted, when interviewed at the time of the seizure, Defendant admitted to having used his computer to search for and download child pornography, and the eventual search of the laptop and external hard drive disclosed evidence of Defendant’s knowing receipt and possession of child pornography. Id. at 123. Therefore, regarding the motion to suppress, the Court of Appeals held that exigent circumstances justified the warrantless seizure, finding that the detectives had probable cause to believe that Defendant’s laptop “contained evidence of child pornography” and, “[f]ollowing up on Brown’s response, it was entirely reasonable for the officers to seize Brown’s laptop – as they did – to prevent either it or its contents from being damaged or destroyed.” Id. at 127 (citations omitted). The instant § 2255 motion followed.
The following facts are adduced from the evidence introduced at trial.
In May 2009, Detective Nicholas Rudman of the Charlottesville Police Department (“CPD”), a specialist in investigating Internet crimes against children, began an investigation into a particular Internet Protocol (“IP”) address associated with multiple files of apparent child pornography on a peer-to-peer file sharing network. This IP address appeared as a download candidate at various dates and times. Detective Rudman continued his investigation and, by court order, learned that the subscriber of the IP address was Medical Transport, LLC, a private ambulance company in Charlottesville. Thereafter, Detective Rudman and another officer, Detective Todd Lucas, met with a manager of Medical Transport, narrowed the focus of the investigation to one particular two-person crew (which included Defendant) at Medical Transport, applied for a search warrant, and chose to execute the search warrant on June 17, 2009, when that crew was working.
When Rudman and Lucas and two additional CPD officers arrived at Medical Transport to execute the warrant, Defendant’s two-person crew was not on the premises. The detectives and officers were at Medical Transport to conduct the search when Defendant and his partner arrived in one of Medical Transport’s ambulances and parked near the entrance to the business. The detectives introduced themselves to Defendant and his partner, and asked if they had laptops in the ambulance. Defendant responded, “Yes, ” and Detective Rudman asked, “Can you get those for us?” Defendant retrieved his computer from the ambulance and delivered it to Rudman. At this time, the officers had not informed Defendant that they were at the business pursuant to a warrant.
Detectives Rudman and Lucas interviewed Defendant and told him that they were there to ask him questions about child pornography. Pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), Defendant was advised of his rights, including the right to remain silent. He was told that he was not under arrest, that he was free to leave, and that he could stop the interview at any time. The interview proceeded, and Detective Rudman showed Defendant documents from the investigation indicating that files containing child pornography had been downloaded at Medical Transport’s IP address. Defendant admitted that the laptop that he had given the officers was the computer with the child pornography on it. He further admitted to viewing child pornography on and off for a period of a “couple years, ” viewing and deleting the material, and using search terms associated with child pornography.
The recording and transcript of the interview disclose the following exchanges relevant to Defendant’s § 2255 motion (emphasis added):
RUDMAN: We’re going to have to send the computer off. Okay. We’re going to look at it and we’re going to compile everything that you have and we’re going to have the Commonwealth Attorney look at it. We’re going to send the images that we find to the National Center for Exploited Children. They are going to tell us which ones are known children. And what I mean, known children is that’s Isabel such and such or that is Jane Doe. And when we get that report back then the Commonwealth is going to look at it, look at what your statement was to us and they are going to say well is this something that we want to pursue.
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RUDMAN: Did you say that you saw, you know that, we know that you’ve seen, what, 34 different videos or 34 different files, most were videos. I could say to them that you’re at this point after our investigation that you’re not, you haven’t touched any children. It’s only been going on for a few months. It’s a curiosity thing, not all the way into, you know, in the long end, we’re not looking at a surprise when we’re, when we’re looking in your computer.
LUCAS: When they do the computer, if they get on there and find that there’s chats going on and you’ve actually been chatting to people who say they’re teenage girls who may or may not be undercover law enforcement officers, or, then, then it completely changes because he’s like, I have him an opportunity to tell me all his shit, put all his dirt out there so that we knew where we were at and he didn’t take that opportunity, you understand what I’m saying.
RUDMAN: Or that this thing has been doing on for a lot longer than a couple months, you know, then, because we’re going to be able to pull up your search terms and everything. And that’s why when we asked you what kind of search terms you’re doing, we don’t, we don’t want to, I don’t want to have to go say this is what we found but he was ...