UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2024

(Argued: December 1, 2023 Decided: September 23, 2024)

Nos. 22-599-cr (L), 22-602-cr (Con)

––––––––––––––––––––––––––––––––––––

UNITED STATES OF AMERICA,

Appellee,

-v.-

ERIC TOMPKINS,

Defendant-Appellant.

–––––––––––––––––––––––––––––––––––– Before: LIVINGSTON, Chief Judge, MENASHI, and KAHN, Circuit Judges.

Defendant-Appellant Eric Tompkins appeals from a judgment of the United States District Court for the Northern District of New York (Thomas J. McAvoy, District Judge), convicting him, upon entry of a conditional plea preserving a Fourth Amendment issue, of failing to register as a sex offender in violation of 18 U.S.C. § 2250(a), and of possessing child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2). Tompkins argues that the district court should have suppressed images of child pornography found on a SanDisk flash memory card (“SD card”) inserted into the back of his Samsung cellular phone because the search warrant that authorized the search of his phone did not

1 separately identify the SD card as a place to be searched. We disagree. The warrant authorized a search of the cellular phone for the purpose of recovering specified information, in whatever form and by whatever means that information was created or stored, including any form of electronic storage. We conclude that the search of the SD card—which is itself a form of electronic storage and which was inserted into the cellular phone and attached to it—fell within the scope of the search warrant. Accordingly, we affirm the judgment of the district court.

AFFIRMED. FOR APPELLEE: PAUL D. SILVER, Assistant United States Attorney, on behalf of Carla B. Freedman, United States Attorney for the Northern District of New York, for United States of America. FOR DEFENDANT-APPELLANT: DANIEL M. PEREZ, Law Offices of Daniel M. Perez, Newton, N.J., for Eric Tompkins. DEBRA ANN LIVINGSTON, Chief Judge:

Defendant-Appellant Eric Tompkins appeals from a March 16, 2022 judgment of the United States District Court for the Northern District of New York (McAvoy, J.), convicting him, upon entry of a conditional plea preserving the instant Fourth Amendment issue, of failing to register as a sex offender in violation of 18 U.S.C. § 2250(a), and of possessing child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2). Tompkins was sentenced principally to a 120-month term of imprisonment for his possession of child pornography, to

2 run concurrently with a 41-month term imposed for his failure to register as a sex offender.

On appeal, Tompkins challenges the district court’s denial of his motion to suppress digital images of child pornography that the government discovered while examining a SanDisk Micro Secure Digital Card (“SD card”) that was inserted into the slot for it inside Tompkins’s Samsung cellular phone. Four images were initially discovered on the SD card during a search conducted pursuant to a warrant that authorized search of the cellular phone for evidence related to Tompkins’s failure to register. Upon discovery of these images, investigators ceased their search and obtained a second search warran