UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 23-469 D.C. No. Plaintiff - Appellee, 2:21-cr-075-RSL v. OPINION JOHN HOLCOMB,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, District Judge

Argued and Submitted September 10, 2024 Seattle, Washington

Filed March 27, 2025 Before: Susan P. Graber and Jennifer Sung, Circuit Judges, and Jed S. Rakoff, District Judge. *

Opinion by Judge Rakoff; Partial Concurrence and Partial Dissent by Judge Sung * The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. 2 USA V. HOLCOMB

SUMMARY **

Criminal Law

The panel reversed the district court’s ruling on John Holcomb’s motion to suppress three videos found on his computer, vacated his conviction and sentence for producing child pornography, and remanded for further proceedings. The panel held (1) the “dominion and control” provision of a second warrant to search Holcomb’s computer was invalid because it was both overbroad and insufficiently particular; (2) the good-faith exception does not apply to the examiner’s search of the computer; and (3) the plain view doctrine does not independently justify the examiner’s seizure of the videos. Judge Sung concurred in part and dissented in part. She concurred with the holding that the dominion and control provision is overbroad and insufficiently particular, but would find that the provision is severable from the remainder of the warrant. Because the record is not clear enough to make the necessary findings of fact in the first instance, she would remand for a determination whether the videos were permissibly seized pursuant to a lawful provision in the warrant, a threshold inquiry that also impacts the analysis of the good faith exception and plain view doctrine.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. USA V. HOLCOMB 3

COUNSEL Matthew P. Hampton (argued), Teal L. Miller, and Jonas B. Lerman, Assistant United States Attorneys; Laura Harmon, Special Assistant United States Attorney, Criminal Division; Tessa M. Gorman, United States Attorney; Office of the United States Attorney, United States Department of Justice, Seattle, Washington; Jehiel I. Baer, McNaul Ebel Nawrot & Helgren PLLC, Seattle, Washington; for Plaintiff-Appellee. Colin A. Fieman (argued) and Gregory Geist, Assistant Federal Public Defenders; Alan Zarky, Research and Writing Attorney; Office of the Federal Public Defender, Seattle, Washington; for Defendant-Appellant. John C. Ellis Jr., Law Offices of John C. Ellis Jr. Inc., San Diego, California, for Amici Curiae Digital Forensic Examiners. Jennifer S. Granick, Immigrants Rights Project, American Civil Liberties Union Foundation, San Francisco, California; Brett M. Kaufman, American Civil Liberties Union Foundation, New York, New York; Jazmyn Clark, American Civil Liberties Union of Washington Foundation, Seattle, Washington; for Amici Curiae American Civil Liberties Union and American Civil Liberties Union of Washington Foundation. David B. Owens and Rachel Nowlin-Sohl, Attorneys; Averill L. Aubrey, Megan Haygood, Kayleigh McNiel, and Michael C. Orehek, Law Students; Civil Rights and Justice Clinic, University of Washington School of Law; for Amici Curiae Fourth Amendment Scholars. 4 USA V. HOLCOMB