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United States v. Tosti

United States Court of Appeals, Ninth Circuit

October 1, 2013

UNITED STATES of America, Plaintiff-Appellee,
v.
Donald Thomas TOSTI, Defendant-Appellant.

Argued and Submitted June 14, 2013.

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[Copyrighted Material Omitted]

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Amitai Schwartz (argued) and Moira Duvernay, Law Offices of Amitai Schwartz, Emeryville, CA, for Defendant-Appellant.

Melinda Haag, United States Attorney, and Barbara J. Valliere, Assistant United States Attorney, San Francisco, CA; Julia Malkina (argued), United States Department of Justice, Washington, D.C., for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of California, Jeffrey S. White, District Judge, Presiding. D.C. No. 3:09-cr-00973-JSW-1.

Before: MARY M. SCHROEDER, KENNETH F. RIPPLE [*], and CONSUELO M. CALLAHAN, Circuit Judges.

OPINION

CALLAHAN, Circuit Judge:

Defendant Donald Thomas Tosti (" Tosti" ) was convicted of possessing child pornography in violation of 18 U.S.C. ยง 2252(a)(4)(B). He appeals from the district court's denial of his multiple motions to suppress evidence derived from both the 2005 search of his computer at a CompUSA store and the 2009 search of his home office. Tosti also challenges his 96-month sentence as unreasonable in light of his advanced age and poor health. We hold that the 2005 search was lawful because the police officers who conducted it did not exceed the scope of the permissible search already conducted by a private party, and the 2009 search was lawful because Tosti's wife had apparent authority, if not actual authority, to consent. We also hold that the district court properly considered Tosti's age and physical characteristics when it exercised its sentencing discretion. Accordingly, we affirm Tosti's conviction and sentence.

I

In January 2005, Tosti took his computer to a CompUSA store for service. According to Tosti, " [he] understood that a technician at CompUSA would have temporary custody of the computer, and would inspect it as needed to complete the requested repairs."

Seiichi Suzuki was working on the machine when he discovered pornographic images of children in a sub-folder, which

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prompted him to contact the police. According to Suzuki, he was " opening various folders and subfolders to look for images," and he and a technician " were randomly checking what was on the drive folders when [they] eventually encountered images that looked like child pornography." Pursuant to the police report, Suzuki advised the police that " he discovered numerous photographs in the file of naked children and adult men." " He said the photographs depicted many graphic sex scenes of children."

Two detectives, George Schikore and Ed Rudolph, responded to Suzuki's call. Detective Schikore arrived first. When he got to the store, " there were numerous images appearing on the computer monitor in a very small ‘ thumbnail’ format." According to Detective Shikore, he " could tell by looking at the [thumbnail] pictures that they depicted child pornography." Detective Schikore purportedly " directed [Suzuki] to open the images in a ‘ slide show’ format so that they would appear as larger images viewable one by one." Suzuki " opened up the individual images in the ‘ slide show’ format, using keys to move forward or backward as requested by [Detective Schikore]."

Detective Rudolph arrived later and scrolled through the active images on the computer monitor. According to Detective Rudolph, there were " more than two-dozen [t]humbnail view graphical files maximized on the desktop." Detective Rudolph stated that he scrolled through the images on the screen, but also indicated that he could tell even from the thumbnail images that they depicted obvious sexual activity between adults and children.

The detectives seized Tosti's computer. Based on Officer Rudolph's observations, Detective Mojib Aimaq thereafter prepared an affidavit supporting the issuance of a search warrant for Tosti's computer, residence, office and two vehicles registered to Tosti and his wife. A Marin County magistrate judge issued the warrant, which was executed the following day.

Tosti was eventually arrested on October 16, 2009.[1] A few days later, on October 20, 2009, Tosti's then estranged wife, Annette Tosti, contacted FBI Special Agent Elizabeth Casteneda. Ms. Tosti had been married to Tosti for approximately twenty years, during the ...


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