Unpublished Disposition, 897 F.2d 533 (9th Cir. 1987)

MEMORANDUM^** 

Carl Frederick Graff appeals his conviction, following a conditional guilty plea, for one count of knowingly receiving in interstate or foreign commerce, a videotape depicting minors in sexually explicit conduct in violation of 18 U.S.C. § 2252. Graff raises two issues on appeal regarding the search of his residence which produced the videotape. We have jurisdiction under 12 U.S.C. § 1291 and we affirm.

OVERVIEW

On June 12, 1987, Graff picked up the videotape, "Pre-Teen Trio," at the United States Post Office in Rancho Cucamonga, California.¹  Postal Inspectors then followed Graff to his home to await the issuance of a search warrant. Before the warrant was issued, however, Graff left his home and started to drive away. Because it was unclear whether Graff had the videotape with him, Inspectors intercepted Graff and told him they were awaiting a search warrant. Inspectors also advised Graff that the object of the search warrant was the videotape and other pornographic materials, and requested that he return to his residence with them. Graff complied.

Graff's brother, John Graff, and their mother, both of whom shared the residence with Graff, were at home when Graff and the Inspectors arrived. John Graff gave permission to two of the inspectors to accompany him on a "walk through" of the house to determine that no persons, other than his mother, were present. At the hearing on Graff's motion to suppress the pornographic materials, John Graff testified that he led the inspectors through the house and back to the living room, which was "filling up with agents."²  While in the living room, John Graff heard "rummaging sounds" coming from his brother's bedroom.³  Shortly after hearing these sounds, John Graff and his mother left the house. When Inspector Evans was notified by telephone that the search warrant had issued, Carl Graff directed Evans to his bedroom where Inspectors seized the videotape and other pornographic materials.

* Search of Graff's Residence

Graff contends that the district court erred by failing to suppress the pornographic materials seized from his residence because inspectors seized the materials pursuant to a warrantless search. The legality of a warrantless search is a mixed issue of law and fact which we review de novo. United States v. Feldman, 788 F.2d 544, 550 (9th Cir. 1986).

We will uphold a district court's findings of fact unless they are clearly erroneous. Id. This court gives great weight to the determination of the credibility of witnesses made by the district court, which can choose to believe the testimony of a police officer. United States v. Allen, 699 F.2d 453, 459 (9th Cir. 1982) (at hearing on motion to suppress incriminating statement, district court chose to believe agent's testimony that statement was voluntary); e.g., United States v. Rodriguez, 869 F.2d 479, 486 (9th Cir. 1989) ("this court is not in a position to make a clearer credibility determination than that made by the district court" where defendants unsuccessfully contended that officers securing premises, prior to arrival of warrant, searched for more than occupants).

Here, the district court found that John Graff's testimony regarding sounds heard from Carl Graff's bedroom was "uncorroborated,"⁴  and chose to believe the testimony of Inspector Evans that the search did not start until the warrant was issued. Because the district court could choose to believe Inspector Evans over John Graff, see Allen, 699 F.2d at 459, the district court did not err by 1) finding that the inspectors did not conduct a warrantless search, and 2) denying Graff's motion to suppress. See Rodriguez, 869 F.2d at 486 (district court did not err by believing testimony of officers that warrantless search did not occur, and by refusing to grant defendants' motions to quash search warrant and suppress evidence).

II

Search Warrant

Graff also contends that the district court erred by denying his motion to suppress in that the search warrant was overbroad because it failed to specifically describe items to be seized. We review de novo an overbreadth challenge to the validity of a search warrant. United States v. Hurt, 795 F.2d 765, 772, amended, reh'g denied, 808 F.2d 707, 708 (9th Cir. 1986). Because the district court did not make findings of fact regarding overbreadth, "we will uphold a trial court's denial of a motion to suppress if there is a reasonable view of the evidence that will sustain it." United States v. Rabe, 848 F.2d 994, 997 (9th Cir. 1988) citing United States v. Harrington, 636 F.2d 1182, 1185 (9th Cir. 1980).

Section 2252(a) (2) forbids the knowing reception of a visual depiction of a minor engaging in sexually explicit conduct "that has been transported or shipped in interstate or foreign commerce by any means." 18 U.S.C. § 2252(a) (2).

A search warrant must "particularly describ [e] the place to be searched, and the person or things to be seized." U.S. Const. amend. IV. The purpose of the particularity requirement is to make general searches impossible and to prevent "exploratory rummaging in a person's belongings." Andresen v. Maryland, 427 U.S. 463, 480 (1976). Nonetheless, language in a warrant commanding officers to search for materials depicting minor children engaged in sexually explicit conduct is sufficiently specific to circumscribe "the officers' discretion at the time of the seizure." Hurt, 808 F.2d at 708 (language was not overbroad because "any rational adult" can recognize material depicting sexually explicit conduct by children and defendant who, when asked where he kept his pornography, directed officers to location). In addition, a warrant is not overbroad if the items described form the basis for prosecution or comprise "evidence that would prove an element of the crime." Hurt, 795 F.2d at 772.

Here, the search warrant authorized the seizure of "materials which depict minor children engaged in sexually explicit conduct ... and/or correspondence relating to the purchase/receipt of such materials via the U.S. Mails." The warrant also specifically directed agents to seize the videotape, "Pre-Teen Trio," and material from the following categories: "sexually explicit reproductions" of children, "child erotica," and "items used to distribute/receive child pornography." We reject Graff's contention that the search warrant was overbroad because the 1) descriptions in the warrant are sufficiently specific, see Hurt, 795 F.2d at 772, 2) conduct of Graff, who directed inspectors to the pornographic materials, undermined his contention that the descriptions were overbroad, see Hurt, 808 F.2d at 708, and 3) items described support Graff's prosecution for knowingly receiving child pornography materials "transported or shipped in interstate commerce."⁵  See Hurt, 795 F.2d at 772.

Although the district court did not make a finding regarding Graff's overbreadth challenge, we find there is a reasonable basis in the evidence to sustain the district court's order denying Graff's motion to suppress and affirm. See Rabe, 848 F.2d at 997.

CONCLUSION

The district court's order denying Graff's motion to suppress is AFFIRMED.