United States v. Gatherum

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4683

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.

DEAN R. GATHERUM,

Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:07-cr-00105-1)

Argued: March 27, 2009 Decided: July 7, 2009

Before MICHAEL and TRAXLER, Circuit Judges, and Thomas D.
SCHROEDER, United States District Judge for the Middle District
of North Carolina, sitting by designation.

Affirmed by unpublished opinion. Judge Traxler wrote the
majority opinion, in which Judge Schroeder joined. Judge
Michael wrote a dissenting opinion.

ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. Karen B.
Schommer, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Federal
Public Defender, David R. Bungard, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston,
West Virginia, for Appellant. Charles T. Miller, United States
Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
TRAXLER, Circuit Judge:

Dean Gatherum pleaded guilty to possession of child

pornography, preserving his right to appeal the district court’s

denial of his motions to suppress. Because we find no error in

the district court’s rulings, we affirm Gatherum’s conviction.

I.

Gatherum registered as a sex offender in accordance with

West Virginia law, and two state troopers went to his house to

confirm information he provided when registering. Gatherum

indicated when he registered that he had a personal computer

with internet access. While the officers were at Gatherum’s

home, they asked Gatherum for consent to search his computer.

Gatherum agreed and signed a consent form provided to him by

Trooper Eldridge.

Eldridge used a program that permitted him to browse the

computer files and view video and images stored on Gatherum’s

computer. Eldridge viewed a series of “thumbnail” previews of

images that featured three males standing in a wooded area. The

progressing images showed the men removing their clothes and

engaging in sexual activity. While two of the men appeared to

be more than 18 years old, the third appeared to Eldridge to be

between 12 and 14 years old. Eldridge sought Trooper Summers’s

opinion, and he, too, believed that the third male was between

12 and 14 years old.

2
 Eldridge told Gatherum that he believed the images were

child pornography and that he was going to use the images as the

basis for seeking a search warrant. When Eldridge described the

pictures at issue to Gatherum, Gatherum explained that he had

gotten the pictures from a website called “Mike18.com” and that

the website had a disclaimer stating that all of the models were

at least 18 years old. (Each of the images had a Mike18.com

logo in the corner, although Eldridge was not aware of that fact

at the time). Eldridge refused Gatherum’s offer to log-on to

Mike18.com to show the troopers the age certification for the

model the troopers believed to be underage.

At the troopers’ request, Gatherum accompanied them to the

state police barracks for further questioning. Gatherum

continued to maintain that the images all came from the

Mike18.com website, and Gatherum told the troopers that the

website included a picture of the apparently underage model

holding a passport that showed his birth date.

After interviewing Gatherum, Eldridge prepared an

application for a warrant to search for child pornography. In

the affidavit supporting the application, Eldridge set forth in

a fair amount of detail the specialized training he had received

in “computer forensics, criminal use of computers and the

Internet and the investigation of matters concerning child

sexual exploitation,” J.A. 573, and the affidavit noted that

3
Gatherum was a registered sex offender. With regard to the

facts gathered during Eldridge’s search of the computer, the

affidavit stated:

[T]he affiant conducted a secure preview of Dean
Gatherum’s home computer. During this preview, the
affiant observed that Dean Gatherum’s computer had
numerous graphic picture files of three male[s]
engaged in sexually explicit conduct. The affiant
further observed that one of the males depicted in
these pictures appeared to be approximately 12 to 14
years of age. The affiant further observed that
Corporal Summers examine[d] these picture files, in
which he too agreed that the one of the male subjects
participating in the pictures appeared to be 12 to 14
years old.

The affiant brought these pictures to Dean Gatherum’s
attention, in which he advised that he had obtained
them from a web site on the Internet.

J.A. 581-82. The affidavit did not include copies of the images

themselves or otherwise describe the nature of the sexually

explicit conduct pictured, nor did the affidavit recount

Gatherum’s claim about the age-disclaimer on Mike18.com.

A state-court judge concluded that the affidavit

established probable cause, and the search warrant was issued

and executed that day. Gatherum’s computer was seized, as were

a number of CD-ROMs that were found under Gatherum’s bed.

Images on those CD-ROMs led to the child pornography charge to

which Gatherum pleaded guilty.

The day after the search warrant was executed, Gatherum was

admitted to a hospital for an in-patient psychiatric evaluation.

4
Four days later, Trooper Eldridge learned that Gatherum was to

be discharged. Eldridge went to the hospital and asked if

Gatherum would return to the police barracks for another

interview. Gatherum agreed. Eldridge did not tell Gatherum

that he had already obtained warrants for Gatherum’s arrest

(based on the images found on the CD-ROMs).

At the police barracks, Trooper Smith advised Gatherum of

his Miranda rights before the interview began. Smith told

Gatherum that he was not under arrest and was free to leave at

any time, without mentioning the arrest warrants. Gatherum

signed a form waiving his rights, and Smith began the interview.

When Gatherum started making incriminating statements, Smith

brought Eldridge into the room. Eldridge reviewed the Miranda

form with Gatherum and reaffirmed that Gatherum was not under

arrest, again without mentioning the outstanding arrest

warrants. During the interview, Gatherum admitted that the CD-

ROMs contained images of child pornography. As soon as the

interview was over, Eldridge arrested Gatherum on the

outstanding warrants.

Gatherum moved to suppress the evidence seized pursuant to

the search warrant and the statements he gave upon his release

from the hospital. The district court denied the motions,

concluding that Eldridge’s affidavit supporting the search

warrant application was sufficient to establish probable cause,

5
that there were no material omissions in the affidavit that

would invalidate the warrant, and that Gatherum was not coerced

into giving the post-hospitalization statements. This appeal

followed.

II.

We first consider Gatherum’s challenges to the search

warrant.

A.

West Virginia law prohibits the possession of “material

visually portraying a minor engaged in sexually explicit

conduct.” W. Va. Code Ann. § 61-8C-3. 1 Gatherum contends that

because Eldridge’s affidavit did not include copies of the

thumbnail images at issue or describe the nature of the images

in any detail, there was no basis for the issuing judge to find

probable cause that a minor was involved or that the minor was

engaging in sexually explicit conduct.

Preliminarily, we reject any suggestion that a search-

warrant affidavit must include copies of images giving rise to

the request for a warrant. See United States v. Lowe, 516 F.3d

580, 586 (7th Cir. 2008) (“As a general matter, an issuing court

does not need to look at the images described in an affidavit in

1
Although Gatherum pleaded guilty to federal charges, he
was initially arrested on state charges. The federal statute is
similar to the state statute. See 18 U.S.C.A. § 2252A(a)(5)(B).

6
order to determine whether there is probable cause to believe

that they constitute child pornography.”). Including copies of

the images believed to be child pornography would certainly aid

in a probable-cause determination, but the relevant question is

whether “the known facts and circumstances are sufficient to

warrant a man of reasonable prudence in the belief that

contraband or evidence of a crime will be found in a particular

place.” United States v. Perez, 393 F.3d 457, 461 (4th Cir.

2004) (internal quotation marks omitted). The probable-cause

standard “is not defined by bright lines and rigid boundaries.

Instead, the standard allows a magistrate judge to review the

facts and circumstances as a whole and make a common sense

determination of whether there is a fair probability that

contraband or evidence of a crime will be found in a particular

place.” United States v. Grossman, 400 F.3d 212, 217 (4th Cir.

2005) (internal quotation marks omitted). Given the fluid

nature of the probable-cause standard and the deference to which

the magistrate’s determination is entitled, see id., we see no

reason to establish a bright-line rule requiring investigating

officers to provide magistrates with copies of the images they

believe to be unlawful. Cf. New York v. P.J. Video, 475 U.S.

868, 874 n.5 (1986) (“[W]e have never held that a magistrate

must personally view allegedly obscene films prior to issuing a

warrant authorizing their seizure.”).

7
 We turn now to the ultimate question of whether the

affidavit in this case was sufficient to support the issuance of

the search warrant. As previously noted, the affidavit stated

that Trooper Eldridge and Trooper Summers viewed the images at

issue and that both believed one of the males pictured was

between 12 and 14 years old. In our view, it was entirely

reasonable for the magistrate to accept the officers’ estimation

of the child’s age when determining whether probable cause

existed. While some 16- or 17-year-old models might be

difficult to distinguish from 18-year-olds, the physical

differences between a 12-year-old model and an 18-year-old model

generally would be significant and readily apparent. That both

troopers believed the model at issue might be so young provided

the magistrate with a reasonable basis for concluding that the

images at issue involved a minor. See United States v.

Battershell, 457 F.3d 1048, 1053-54 (9th Cir. 2006) (finding

affidavit sufficient in child pornography case where officer

described images as depicting “young female[s] (8-10 YOA)” and

noting that “we have accepted, for purposes of an affidavit in

support of a search warrant, the conclusory age estimates made

by civilians and other untrained lay witnesses without demanding

a detailed explanation of how the witnesses reached that

conclusion”). We therefore conclude that the information in the

8
affidavit was sufficient to establish a fair probability that

the images at issue depicted a minor.

The more difficult question, however, is whether the

affidavit was likewise sufficient to establish that the minor

was engaged in sexually explicit conduct. Trooper Eldridge

stated in his affidavit that he had viewed “graphic picture

files” showing three males, including one he believed to be a

minor, engaging in “sexually explicit conduct.” J.A. 581.

Although the statute prohibits the possession of material

depicting minors engaged in sexually explicit conduct, the

statute specifically defines the acts that constitutes sexually

explicit conduct, such as sexual intercourse or the exhibition

of genitals in a sexual context. See W. Va. Code § 61-8C-1(c);

see also 18 U.S.C.A. §§ 2256(2)(A)(i), 2256(2)(A)(v) (West Supp.

2009). Because the affidavit did not include any description of

the actual behavior depicted in the images at issue, it may be

that the affidavit failed to provide sufficient information to

permit the magistrate to make an independent determination of

whether probable cause existed. See Illinois v. Gates, 462 U.S.

213, 239 (1983) (“Sufficient information must be presented to

the magistrate to allow that official to determine probable

cause; his action cannot be a mere ratification of the bare

conclusions of others.” (emphasis added)).

9
 We need not definitively determine whether the affidavit

was sufficient in that regard, however. Even if the affidavit

was deficient, suppression of the evidence is not required,

because the officers acted in good faith and were entitled to

rely on the warrant. See United States v. Leon, 468 U.S. 897,

926 (1984).

“[U]nder Leon’s good faith exception, evidence obtained

pursuant to a search warrant issued by a neutral magistrate does

not need to be excluded if the officer’s reliance on the warrant

was objectively reasonable.” Perez, 393 F.3d at 461 (internal

quotation marks omitted). “[S]earches conducted pursuant to a

warrant will rarely require any deep inquiry into

reasonableness, for a warrant issued by a magistrate normally

suffices to establish that a law enforcement officer has acted

in good faith in conducting the search.” Id. (internal

quotation marks omitted). Under Leon, however, reliance on a

warrant is not objectively reasonable if: (1) the magistrate was

misled by false information knowingly or recklessly included in

the underlying affidavit, id.; (2) “the magistrate acted as a

rubber stamp for the officers and so wholly abandoned his

detached and neutral judicial role,” United States v. Bynum, 293

F.3d 192, 195 (4th Cir. 2002) (internal quotation marks

omitted); (3) the supporting affidavit is “so lacking in indicia

of probable cause as to render official belief in its existence

10
entirely unreasonable,” Leon, 468 U.S. at 923 (internal

quotation marks omitted); or (4) the warrant itself is so

facially deficient in particularizing the place to be searched

or the evidence to be seized that “the executing officers cannot

reasonably presume it to be valid, id.

The only exceptions arguably relevant here are the second

and third, 2 but we do not believe that either precludes reliance

on the warrant issued in this case. The affidavit cannot be

described as so bare-boned that the magistrate’s issuance of the

warrant could be viewed as a mere rubber-stamping of the warrant

application, nor is the affidavit so lacking in indicia of

probable cause that it was unreasonable for the officers or the

magistrate to conclude that probable cause existed.

The affidavit explained that Gatherum was a registered sex

offender who had “numerous graphic picture files” on his home

computer, J.A. 581, and the affidavit outlined Trooper

Eldridge’s extensive training in the investigation of similar

crimes. The affidavit stated that Eldridge and Trooper Summers

had viewed the images themselves and had both determined that

2
With regard to the first Leon exception, there was no
false information included in the affidavit, and, as we will
discuss in more detail below, there is no evidence that Eldridge
intentionally or recklessly omitted any material information
from his affidavit. As to the fourth exception, we do not
believe that the warrant itself was facially deficient.

11
the images depicted a minor engaged in sexually explicit

behavior. Because the affidavit specifically referred to the

relevant West Virginia statute, which sets out a list of actions

that constitute “sexually explicit conduct,” 3 the kind of conduct

that could have been depicted in the images was necessarily

limited. While a more detailed description of the conduct

pictured would have been helpful, courts have found similar

language used under similar factual situations to be sufficient

to support a finding of probable cause. See United States v.

Smith, 795 F.2d 841, 848 (9th Cir. 1986) (“As to the affidavit’s

‘conclusory’ statement that the photographs depicted ‘sexually

explicit conduct,’ we do not find the character of the

allegation fatal to the warrant. Although more specific

descriptions of the photographs would have been desirable, we

note that the affidavit specifically refers to violation of

section 2251, directing the magistrate to the child pornography

statute and its definitions. These definitions are quite

specific, and the magistrate reasonably considered the statement

3
See W. Va. Code § 61-8C-1(c) (defining sexually explicit
conduct” as “(1) Genital to genital intercourse; (2) Fellatio;
(3) Cunnilingus; (4) Anal intercourse; (5) Oral to anal
intercourse; (6) Bestiality; (7) Masturbation; (8)
Sadomasochistic abuse, including, but not limited to,
flagellation, torture or bondage; (9) Excretory functions in a
sexual context; or (10) Exhibition of the genitals, pubic or
rectal areas of any person in a sexual context.”).

12
of an experienced postal inspector that the photos depicted

‘sexually explicit conduct’ within the statute.” (citation and

footnote omitted)); see also Battershell, 457 F.3d at 1052 (“The

statement that the photographs depict sexually explicit conduct

is similar to many other factual conclusions routinely accepted

by courts in applications for warrants. Factual conclusions are

a normal, necessary, and perfectly acceptable part of an

affidavit.” (internal quotation marks and alterations omitted)).

While there also is case law to the contrary, see United States

v. Brunette, 256 F.3d 14, 17 (1st Cir. 2001) (concluding that

affidavit parroting the statutory definition of child

pornography but not otherwise describing the nature of the

images was not sufficient to support the magistrate’s probable-

cause finding), this court has yet to address the question

directly. Under these circumstances, we cannot say that an

objectively reasonable officer should have known that the

affidavit was insufficient. See United States v. Bynum, 293

F.3d at 195 (“Leon teaches that a court should not suppress the

fruits of a search conducted under the authority of a warrant,

even a subsequently invalidated warrant, unless a reasonably

well trained officer would have known that the search was

illegal despite the magistrate’s authorization.” (internal

quotation marks omitted)).

13
 Accordingly, even if the absence of a detailed description

of the conduct pictured in the relevant images rendered the

affidavit deficient, the officers relied in good faith on the

warrant issued by the magistrate, and the district court

therefore properly denied Gatherum’s suppression motion.

B.

Gatherum also argues that the warrant must be voided under

Franks v. Delaware, 438 U.S. 154 (1978), because Trooper

Eldridge intentionally omitted from his affidavit any mention of

the Mike18.com website or the website’s disclaimer asserting

that all of its models, including the one Eldridge believed to

be a minor, were at least 18 years old. We disagree.

Under Franks, a search warrant may be voided and the fruits

of the search suppressed if the defendant establishes that the

underlying affidavit contained material falsehoods that were

knowingly or recklessly made. Where, as here, the claim

involves omissions from the affidavit, the standard for

establishing materiality is fairly high:

[T]o be material under Franks, an omission must do
more than potentially affect the probable cause
determination: it must be necessary to the finding of
probable cause. For an omission to serve as the basis
for a hearing under Franks, it must be such that its
inclusion in the affidavit would defeat probable cause
for arrest. Omitted information that is potentially
relevant but not dispositive is not enough to warrant
a Franks hearing.

14
United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990)

(citations and internal quotation marks omitted).

Beyond the mere fact of omission, the record is devoid of

evidence suggesting that Eldridge intentionally or recklessly

failed to disclose to the issuing magistrate the Mike18.com

information. Moreover, even if information about the

disclaimers on the website and Gatherum’s belief about the age

of the models had been included in the affidavit, their presence

would not have defeated probable cause. As discussed above,

Trooper Eldridge and Summers both looked at the images and

concluded that one of the models was between 12 and 14 years

old. That was enough to establish probable cause that the model

was underage, even in the face of Gatherum’s (and Mike18.com’s)

insistence to the contrary. The district court therefore

properly denied Gatherum relief on his Franks v. Delaware claim.

See United States v. Shorter, 328 F.3d 167, 171, n.2 (4th Cir.

2003) (explaining that “the fact of an omission, standing alone,

is not sufficient to demonstrate intent or reckless disregard”

in cases where the omitted material is not “clearly critical” to

the probable-cause determination (internal quotation marks

omitted)).

III.

Finally, we consider Gatherum’s claim that the district

court should have suppressed the statements Gatherum made when

15
he was interviewed after his release from the hospital.

Although Gatherum was informed of and waived his Miranda rights

before making the statements, he claims that the troopers’

failure to inform him of the outstanding arrest warrants

invalidated the Miranda waiver and rendered his statements

inadmissible.

A waiver of Miranda rights is valid as long as “the waiver

is made voluntarily, knowingly and intelligently.” Moran v.

Burbine, 475 U.S. 412, 421 (1986) (internal quotation marks

omitted). A waiver is voluntarily, knowingly, and intelligently

made if it was “voluntary in the sense that it was the product

of a free and deliberate choice rather than intimidation,

coercion, or deception,” and if it was “made with a full

awareness of both the nature of the right being abandoned and

the consequences of the decision to abandon it.” Id.; see also

United States v. Cristobal, 293 F.3d 134, 139-40 (4th Cir.

2002).

“We engage in the same inquiry when analyzing the

voluntariness of a Miranda waiver as when analyzing the

voluntariness of statements under the Due Process Clause,”

Cristobal, 293 F.3d at 140, and thus ask whether “the

defendant’s will has been overborne or his capacity for self-

determination critically impaired because of coercive police

conduct,” id. (citations and internal quotation marks omitted).

16
Because the failure to inform Gatherum of the warrants does not

even approach the level of coercive, overreaching conduct that

could render the Miranda waiver involuntary, see Colorado v.

Connelly, 479 U.S. 157, 163 n.1 (1986) (collecting cases), we

reject Gatherum’s claim that his Miranda waiver was involuntary.

We likewise reject Gatherum’s contention that the failure

to inform him about the warrants “made it impossible for him to

understand the nature of the rights he could invoke and the

consequences of abandoning them.” Brief of Appellant at 36.

Preliminarily, we note that the waiver form Gatherum executed

before the interview stated that Gatherum was being investigated

for possession of child pornography, information that should

have signaled to Gatherum the significance of the interview,

just as a statement about the outstanding warrants might have.

In any event, the troopers informed Gatherum about the nature of

his Miranda rights and the consequences of a decision to waive

those rights, which is all that is required under Moran. While

knowledge of the outstanding warrants might have been useful to

Gatherum when deciding whether to provide a statement, the

troopers’ failure to provide him with that information simply

does not render the waiver invalid:

We have held that a valid waiver does not require that
an individual be informed of all information useful in
making his decision or all information that might
affect his decision to confess. We have never read
the Constitution to require that the police supply a

17
 suspect with a flow of information to help him
calibrate his self-interest in deciding whether to
speak or stand by his rights. Here, the additional
information could affect only the wisdom of a Miranda
waiver, not its essentially voluntary and knowing
nature.

Colorado v. Spring, 479 U.S. 564, 576-77 (1987) (citations,

internal quotation marks and alterations omitted). Because the

Miranda waiver was valid, the district court properly denied

Gatherum’s motion to suppress the statements made after his

release from the hospital.

IV.

For the reasons discussed above, we conclude that the

district court properly denied Gatherum’s motion to suppress the

evidence seized pursuant to the search warrant and his motion to

suppress the statements he gave after waiving his Miranda

rights. Accordingly, we hereby affirm Gatherum’s conviction.

AFFIRMED

18
MICHAEL, Circuit Judge, dissenting:

Because the officer’s affidavit presented to the state

judge failed to provide a factual basis on which the judge could

independently determine that there was probable cause to issue

the warrant for the search of Dean Gatherum’s home, and because

the judge acted as a rubber stamp for the officer’s legal

conclusions, see United States v. Leon, 468 U.S. 897, 914

(1984), I respectfully dissent.

I.

The search warrant in this case was issued under a

West Virginia statute that prohibits the possession, “with

knowledge,” of “any material visually portraying a minor engaged

in sexually explicit conduct.” W. Va. Code Ann. § 61-8C-3. See

also 18 U.S.C. 2252A(5)(B). “Sexually explicit conduct” is

defined to include several specific sexual acts. W. Va. Code

Ann. § 61-8C-1(c). As the majority notes, in order for a search

warrant to be properly issued under Illinois v. Gates,

“[s]ufficient information must be presented to the magistrate to

allow that official to determine probable cause; his action

cannot be a mere ratification of the bare conclusions of

others.” 462 U.S. 213, 239 (1983) (emphasis added). See ante

at 9. The affidavit in this case merely parrots the relevant

statute, W. Va. Code Ann. § 61-8C-3, and provides no facts upon

which the state judge could have conducted an independent

19
probable cause analysis. Rather than describing, even

superficially, what the photographs found on Gatherum’s computer

depicted, Corporal Eldridge’s affidavit simply states that the

photographs showed three males (one of whom the officer believed

to be 12 to 14 years old 1 ) “engaged in sexually explicit

conduct.” J.A. at 581-82.

Whether or not the activities in the photographs

constituted “sexually explicit conduct” was a matter for the

state judge to decide without deferring to the officer’s “bare

conclusion.” See Gates, 462 U.S. at 239. “The point of the

Fourth Amendment, which often is not grasped by zealous officers

. . . [is that] [i]ts protection consists in requiring that

. . . inferences be drawn by a neutral and detached magistrate

instead of being judged by the officer engaged in the often

competitive enterprise of ferreting out crime.” United States

v. Ventresca, 380 U.S. 102, 106 (1965) (quoting Johnson v.

United States, 333 U.S. 10, 13-14 (1948)). See also South

Dakota v. Opperman, 428 U.S. 364, 370 n.5 (1976) (“[The Supreme

Court has] frequently observed that the warrant requirement

assures that legal inferences and conclusions as to probable

cause will be drawn by a neutral magistrate unrelated to the

1
I agree with the majority’s conclusion that it was
reasonable for the judge to accept the officer’s estimate of the
younger male’s age. See ante at 8-9.
criminal investigative-enforcement process”). Thus, the benefit

of having a neutral magistrate make the probable cause

determination is forfeited if the magistrate defers to an

officer’s legal conclusions in an affidavit that merely recites

general statutory language. A detached and independent review

is especially important in the context of determining whether

images involve child pornography, a determination that by its

very nature will often involve a high degree of subjectivity.

In United States v. Brunette, 256 F.3d 14 (1st Cir.

2001), the First Circuit applied these principles in almost

identical circumstances to those presented here. In that case a

search warrant was issued based on a single affidavit, written

by a law enforcement agent, which asserted that he had viewed

thirty-three images traced to the defendant and that they met

the statutory definition of child pornography. Id. at 16. The

agent neither appended copies of these images to his affidavit

nor included a description of the images’ contents. Id. The

First Circuit held that the government had failed to make a

showing of probable cause because “[t]he evidence on the nature

of the images consisted solely of [the agent’s] legal conclusion

parroting the statutory definition.” Id. at 17. This

conclusion was based on that court’s recognition that the

“inherent subjectivity [of identifying images that are

21
‘lascivious’] is precisely why the determination should be made

by a judge, not an agent.” Id. at 18.

The majority cites two Ninth Circuit cases reaching

the opposite conclusion on similar facts, but I believe the

reasoning in Brunette is more persuasive. First, the majority

points to United States v. Smith, 795 F.2d 841 (9th Cir. 1986),

which is distinguishable because the affidavit “[did] not stand

on the evaluation of the photographs alone,” but also included

statements by a pediatrician, the defendant, and the two alleged

victims. Id. at 849. Furthermore, Smith reaches the

unwarranted conclusion that “[t]he statement that the

photographs depict sexually explicit conduct is similar to many

other factual conclusions routinely accepted by courts.” Id. at

848 n.7. This reasoning, adopted by the second case cited by

the majority, United States v. Battershell, 457 F.3d 1048 (9th

Cir. 2006), mistakes a legal conclusion –- whether the contents

of a photograph amount to “sexually explicit conduct” –- with

the conclusion’s factual underpinnings (the contents of the

photograph itself).

An officer can readily provide the factual description

required to allow an independent determination by the

magistrate. In most instances it would be enough for the

officer to describe the “focal point and setting of the image,

22
and [the] pose [or activity] and attire of the subject.” 2

Brunette, 256 F.3d at 20. But in this case the judge was

presented with an affidavit that provides no factual details

whatsoever regarding the substance of the photographs in

question. The affidavit is simply insufficient to support a

finding of probable cause.

II.

For similar reasons, the Leon good faith exception

does not apply in this case. As a general matter, evidence need

not be excluded when police officers act in objectively

reasonable reliance on a search warrant issued by a neutral

magistrate. United States v. Leon, 468 U.S. at 926. Reliance

is not warranted in certain circumstances, however, such as when

“the magistrate acted as a rubber stamp for the officers and so

‘wholly abandoned’ his detached and neutral ‘judicial role’.”

United States v. Bynum, 293 F.3d 192, 195 (4th Cir. 2002)

(citing Leon, 468 U.S. at 923). Because the state judge in this

case acted as a rubber stamp by failing to conduct an

independent probable cause inquiry and instead simply adopted

2
The best course of action, and the one most certain to
ensure a valid probable cause finding, would be to include
copies of the photographs themselves with the affidavit. I
agree with the majority, however, that this is not a
requirement. See ante at 7-8.

23
the one officer’s legal conclusion that the pictures he found

portrayed “sexually explicit conduct,” the officers were not

objectively justified in relying on the warrant.

The majority offers four basic reasons to support its

conclusion that the state judge did not act as a rubber stamp

(and that the affidavit was not “so lacking in indicia of

probable cause”, ante at 11, that it could not be reasonably

relied on). First, the majority points out that the affidavit

“explained that Gatherum was a registered sex offender who had

‘numerous graphic picture files’ on his home computer.” Ante at

11. But this merely resurrects the basic questions before us:

What specific activities did the pictures portray, and did those

activities constitute “sexually explicit conduct”?

Second, the majority notes that the “affidavit

outlined [Corporal] Eldridge’s extensive training in the

investigation of similar crimes.” Id. This statement refers to

ten pages of “Facts for Belief” that the officer included in his

affidavit. J.A. 573-582. The facts showing the officer’s

training do not remove the state judge’s decision from the

“rubber stamp” category. These “facts” are boilerplate,

listing, for example, many “characteristics [of] people who

sexually exploit children” that have no specific bearing on this

case. It is telling that amidst the ten pages of “facts,” the

officer included only three sentences pertaining to, with one

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only vaguely describing, the photographs at issue. Furthermore,

regardless of the officer’s training, the state judge himself

had to ultimately determine the factual content of the

photographs. There was insufficient information for the judge

to perform that function.

Third, the majority reasons that “[b]ecause the

affidavit specifically referred to the relevant West Virginia

statute, which sets out a list of actions that constitute

‘sexually explicit conduct,’ the kind of conduct that could have

been depicted in the images was necessarily limited.” Ante at

12. However, this assumes that the officer would refer to the

statute only if one of the listed “sexually explicit” activities

was implicated. Thus, the officer’s cryptic reference to the

statute only reinforces the conclusion that the judge functioned

solely as a rubber stamp in making the probable cause

determination. Again, the affidavit gave no factual information

about the contents of the photographs, instead merely parroting

the conclusory language of the statute. This rendered the judge

unable to make an independent determination as to whether there

was probable cause to believe the photographs violated the

statute.

Fourth, the majority states that Corporal “Eldridge

and Trooper Summers had viewed the images themselves and had

both determined that the images [contained] sexually explicit

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behavior.” Ante at 11-12. But it was for the judge, not the

officers, to make this determination. The problem is that the

judge in this case could only substitute the officers’

conclusions for his own. As a result, the judge committed

precisely the error warned of in Gates, 462 U.S. at 239, and

became merely a rubber stamp for the officers’ determination.

III.

Today’s decision allows law enforcement officers to

submit legal conclusions, rather than factual observations, to a

magistrate and allows the magistrate to issue a warrant without

conducting an independent probable cause determination. We

should make clear that the affidavit in this case was

insufficient to support probable cause and thereby put law

enforcement officers and magistrates on notice for the future.

In all events, because the affidavit was inadequate, and because

the state judge served as a rubber stamp for the officer’s

conclusions, evidence seized pursuant to the invalid search

warrant should have been suppressed. I would therefore vacate

Gatherum’s conviction.

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