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Media Alerts - USA v. Robert Franz - Third Circuit
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November 12, 2014
  USA v. Robert Franz - Third Circuit
Headline: The Exclusionary Rule of the Fourth Amendment Does Not Apply When an Agent Executing an Otherwise-Valid Search Warrant Fails to Provide the Homeowner a List of Items Sought, If That Agent Does Not Do So Deliberately, Recklessly, or With Gross Negligence.

Area of Law: Criminal Law

Issue Presented: Whether the exclusionary rule applies when agents executing an otherwise-valid search warrant fail to provide to the homeowner a list of items sought.

Brief Summary:
Robert Franz appeals from his conviction on one count of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). The primary issue on appeal is whether the exclusionary rule applies when an agent executing an otherwise-valid search warrant fails to provide the homeowner a list of items sought. The Court holds that when that agent does not act deliberately, recklessly, or with gross negligence, the exclusionary rule does not apply.

Franz also challenged a separate warrant for the search of his computer. The Court denied this challenge, finding that Franz waived his right to appeal this issue by failing to timely appeal. The Court also rejected Franz's argument that evidence shown to the jury but later stricken from the case was unfairly prejudicial because the court sufficiently instructed the jury not to consider it and the jury found Franz not guilty on the charge related to that evidence. Finally, the Court denied Franz's arguments that the evidence was insufficient to send the case to the jury. Accordingly, the Third Circuit affirms Franz's conviction.

Extended Summary:

In 2009, the Bureau of Land Management (BLM) was investigating Robert Franz on the possibility that he had stolen a wooly mammoth tusk and other paleontological items from BLM-managed land in Alaska and smuggled them to his house in Pennsylvania. Based on evidence obtained from an undercover investigation, the BLM sought and obtained a search warrant ("The Nardinger Warrant") for Franz's house with the assistance of federal prosecutors. Where the face sheet of the warrant asked for a description of the property that the agents expected to seize, it read, "See attached sheet," referring to Attachment B which listed a series of items to be seized. The search warrant, affidavit, and accompanying papers were sealed.

When BLM agents executed the warrant, Franz was present. Agent Nardinger provided Franz with a copy of the face sheet of the warrant but did not give him copies of the warrant attachments. Nardinger mistakenly believed that because the warrant and affidavit had been sealed, he could not reveal those attachments. Nardinger nonetheless explained to Franz the circumstances giving rise to the warrant and thoroughly described the items the warrant authorized him to seize. During the search, agents noticed several framed photographs of young, nude girls on the walls of Franz's house, and they came across pamphlets containing several images of nude minors engaged in sexually explicit conduct. An agent also noticed a file thumbnail depicting a partially nude girl and saw another file name that suggested the presence of child pornography. After consulting federal prosecutors, the agents collected the contraband that was in plain view. They referred the child pornography case to the FBI.

The second warrant in question ("The Herrick Warrant") was obtained to search the digital storage devices and other items that BLM had seized. This warrant was sealed, and the government did not provide a copy to Franz until thirty-one months after issuance and over two months after Franz's indictment. This warrant produced two digital images found on Franz's external hard drive that, along with the pamphlets, served as the basis for the charges filed against Franz. A grand jury indicted Franz for two child pornography crimes: receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) and (b)(1), and possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Following a jury trial, he was convicted of the first charge and acquitted of the second.

The Third Circuit Court first addressed and rejected Franz's challenge of the Nardinger Warrant. The Court agreed with the District Court that the warrant was facially valid when issued but that the execution of it violated Franz's Fourth Amendment rights because when it was presented to Franz, it did not contain a particularized list of items to be seized. The Court determined that the important question was whether that violation necessitated the suppression of the evidence obtained pursuant to the Nardinger Warrant. Franz argued that the exclusionary rule applies without exception to facially invalid warrants, and therefore, that no analysis into the agent's conduct is allowed. The Court disagreed, holding that there is no need to exclude evidence based on Nardinger's mistake in failing to present the list of items to be seized. Further, the Court rejected Franz's argument that a good-faith analysis was unnecessary.

The Court noted that while Third Circuit case law has not always been clear on the need to consider good faith in regards to the exclusionary rule, the Supreme Court's and Third Circuit's precedents have been consistent in requiring case-specific analysis of whether the exclusionary rule applies. The purpose of the Fourth Amendment exclusionary rule is to deter law enforcement from unreasonable searches and seizures by preventing the government from relying at trial on evidence obtained in violation of the Constitution. However, because of the high cost of hiding crucial evidence from a fact-finder, suppression of evidence has always been a last resort. Therefore, it is only used when law enforcement exhibits deliberately, recklessly, or grossly negligent disregard for Fourth Amendment rights. When the police act with an objectively reasonable, good-faith belief that their conduct is lawful, or when their conduct involved only simple, isolated negligence, the exclusionary rule is not applied. Accordingly, the Court considers not only any defects in the warrant but also the officer's conduct in obtaining and executing the warrant and what the officer knew or should have known.

The Third Circuit agreed with the District Court that Nardinger's conduct was objectively reasonable in seeking and obtaining a valid warrant, acting in consultation with federal prosecutors, and explaining to Franz what items the warrant authorized him to search for and seize. Further, Franz presented no evidence that the constitutional violation in question was recurring or systematic, as Nardinger was an inexperienced agent who made an isolated mistake because of the unclear language of the order sealing the attachment. Nardinger did not act deliberately, recklessly, or with gross negligence in executing the warrant in violation of Franz's Fourth Amendment rights. Therefore, excluding the resulting evidence would provide little deterrent effect. Accordingly, the Third Circuit affirmed the denial of Franz's motion to suppress the Nardinger Warrant.

The Court next rejected Franz's challenge to the Herrick Warrant based on the argument that Franz did not receive a copy of it or its supporting documents until thirty-one months after it was executed. He averred that this failure to serve the warrant at the time of the search violated Rule 41 of the Federal Rules of Criminal Procedure and his right to due process. The Court agreed with the government's response that Franz waived his challenge to the Herrick Warrant by failing to timely raise it before the District Court. Raising this challenge in his motion for reconsideration following the District Court's denial of his motion to suppress the aforementioned evidence was not sufficient to preserve the issue for appeal.

Next, the Court turned to the pamphlets and Franz's remaining motions. Franz argued that the District Court abused its discretion when it initially admitted but later excluded the pamphlets from evidence. The Third Circuit Court disagreed for two reasons. The first was that the District Court's curative instructions were clear, comprehensive, and direct, and they were sufficient to address the withdrawal of the pamphlets. The second reason was that the jury acquitted Franz of the possession charge, the only charge the pamphlets were used to support. Therefore, any error in the admission of the pamphlets did not contribute to Franz's conviction on the charge for receipt of child pornography.

Finally, the Court found that the evidence to support his conviction was sufficient. Franz contended that the government failed to establish the jurisdictional nexus, mens rea, and sexually explicit nature of the digital image required for the charge of which he was convicted. The Court found that a rational juror could have concluded that the government had proven the jurisdictional element of the crime beyond a reasonable doubt by providing evidence that the image was downloaded from the internet, a channel and instrumentality of interstate commerce. There was also sufficient evidence to show that Franz's receipt of the image was "knowing." Finally, there was sufficient evidence to establish that the image was of a sexually explicit nature according to both common sense and the six Dost factors. Specifically, the focal point of the image is the child's genitals; the image depicts a child in a bedroom, on a bed, a sexually suggestive setting; the child's legs are spread and her genitals are exposed; the child is only not wearing any sexually suggestive clothing because she is wearing nothing at all; the child's pose can be understood as suggesting a willingness to engage in sexual activity; and all of these facts suggest that the image was intended to elicit a sexual response in the viewer.

Because the District Court did not err in denying Franz's motions to suppress; the admission of the pamphlets did not contribute to Franz's conviction; and the evidence was sufficient to support the conviction, the Third Circuit Court affirmed Franz's conviction for receipt of child pornography.

To read the full opinion, please visit

Panel (if known): Fisher, Jordan, and Hardiman, Circuit Judges

Argument Date: September 9, 2014

Date of Issued Opinion: November 4, 2014

Docket Number: No. 13-2406

Decided: Affirmed

Case Alert Author: Jaclyn Poulton

Counsel for Appellant: Richard Q. Hark
Counsel for Appellee: Alicia M. Freind (Office of United States Attorney)

Author of Opinion: Judge Jordan

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 11/12/2014 03:16 PM     3rd Circuit  

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