United States v. Potts

FILED
United States Court of Appeals
Tenth Circuit

November 16, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 08-3269

COEN C. POTTS,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
D.C. No. 07-CR-40071-JAR-1

Stephen M. Joseph, Joseph & Hollander, PA, Wichita, KS, for the Appellant.

Christine E. Kenney, Assistant United States Attorney, (Marietta Parker, Acting United
States Attorney, with her on the brief), District of Kansas, Topeka, Kansas, for the
Appellee.

Before HENRY, Chief Judge, HOLLOWAY and GORSUCH, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant-appellant Coen Potts was indicted on two offenses: receipt of child

pornography in violation of 18 U.S.C. § 2252(a)(2) and possession of child pornography

in violation of 18 U.S.C. § 2252(a)(4)(B). The indictment also sought forfeiture of

defendant’s computer and various related devices. Mr. Potts moved to suppress all
evidence that had been seized during the execution of a search warrant at his apartment.

The district court denied the motion in a published opinion. United States v. Potts, 559

F.Supp.2d 1162 (D. Kan. 2008).

Defendant Potts then entered a plea of guilty to both charges under an agreement

that permitted him to appeal the denial of his motion to suppress. Mr. Potts was

sentenced to 85 months’ imprisonment, forfeiture of the specified property, a term of five

years of supervised release, and was ordered to pay a special assessment of $200.00. He

now brings this appeal, which is under the jurisdiction granted this court by 28 U.S.C. §

1291.

I

The Affidavit Supporting the
Application for the Search Warrant

The investigation of defendant began on September 8, 2006, when a woman

contacted FBI Special Agent Stacie Lane to report an encounter that she said had

happened about ten months earlier.1 The witness told Agent Lane that she had begun

having telephone conversations with Coen Potts through a telephone dating service in

October 2005. In their telephone conversations, he had told the witness that he lived in

Topeka where he was employed teaching art to very young elementary school pupils.

1
This initial summary presents the facts as they were reflected in Agent Lane’s
affidavit submitted to the federal magistrate judge to support the application for a search
warrant for defendant’s apartment. At the suppression hearing, counsel for defendant was
successful in showing that the information given by the witness was incorrect in some
details, which will be noted later in this opinion.

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 After several telephone conversations, the witness and Mr. Potts arranged to meet

in Norman, Oklahoma, probably on October 29, 2005. During this meeting, apparently

the only time the two met in person, Mr. Potts brought out a large notebook and began

showing photos to the witness. After he had shown her some innocuous images, Mr.

Potts showed the witness three photos that she quickly realized were child pornography.

The witness had described two of the photos to Agent Lane but said that she had been so

shocked by these photos that she could not remember the third image. The witness said

that she got the impression that Mr. Potts frequently viewed child pornography on the

internet and had downloaded the images he had shown her from the internet.

The witness told Agent Lane that she had only three subsequent telephone

conversations with Mr. Potts. The witness told Agent Lane that in each of those three

conversations she had brought up Potts’s interest in child pornography to find out if he

was still viewing it. Potts said that he had been doing it too long to stop.

In these conversations Mr. Potts said two things that upset the witness to the extent

that she said that she ceased all contact with Potts. Both had to do with Mr. Potts’s

fantasies about having sexual contact with children. The witness said that the third and

last call had occurred on November 17, 2005, after which she had no further contact with

Mr. Potts until Agent Lane asked her to contact him again as part of the investigation.

Afterwards, Agent Lane’s affidavit recited, the witness tried to put all of this out of

her mind and forget it. In September 2006, however, a friend persuaded her to call law

enforcement. The witness “broke down” when discussing the matter, according to Agent

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Lane. She could not explain why she had delayed for ten months or so to report the

matter, other than saying that it made her very uncomfortable to talk about it. Agent

Lane’s affidavit states that the witness “continued to break down whenever she discussed

the comments Potts made concerning child exploitation” in subsequent telephone

conversations.

Agent Lane began a limited investigation after her telephone interview with the

witness. Agent Lane established that Mr. Potts had been employed at a certain school

district in the Topeka area since 2002. Contact with the school superintendent confirmed

that Potts was employed as an art teacher. Agent Lane also examined public records and

determined that Potts was “associated with” apartment #125 on 4120 SW Twilight Drive

in Topeka. Other than establishing these basic facts, the only other thing Agent Lane

appears to have done to confirm the witness’s account and to establish probable cause for

a search of defendant’s apartment was to arrange for the witness to make a recorded

telephone call to defendant.

The witness recorded a telephone conversation she had with Potts on October 2,

2006. We quote the district court’s description of the transcript of that conversation,

which quotes liberally from the transcript itself:

During this telephone conversation, defendant confirmed that he still
worked as an art teacher and that he owns his own computer. Three
significant exchanges occurred during this recorded conversation. First, the
informant raised the issue of child pornography in a discreet way. Without
specifically referencing children or child pornography, the informant said
that “you sound like you’re still into that . . . the whole . . .” and “like when
we talked before—that’s what you kinda’ wanted, so I don’t know, I was

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 just hoping you didn’t.” Defendant responded that “it’s not like it’s 24
hours a day or anything and in fact I really, uh, don’t hit any of those sites,
uh, anymore than, I mean I know where they are, but I don’t revisit them
very often” and “it costs money to get on the Net, that often . . . when
you’re downloading things that take hours to download.”

....

Third, defendant raised the fact that the informant wanted him to get
help. The informant responded that “there’s help out there for people that
have addictions . . . or like things that are not normal” and “I’m not saying
you’re not normal, but you know what I mean.” Defendant said that “I have
admittedly . . . I’ve had a porn addiction in a way.” When the informant
asked “[d]o you think that’s what led to that?”, defendant responded “well
no” and “it’s just because I’ve been really by myself and really sort of
unsuccessful with women virtually my whole life . . . .”

559 F.Supp.2d at 1166.2

The Search Warrant

The search warrant included an “Attachment B” with the heading “List of Items

To Be Seized.” Attachment B was a one-and-one-half page document with 13 paragraphs

describing the objects of the search. Paragraph 1 listed all computer-related equipment,

inter alia, that could be used to store visual depictions of child pornography, etc.

Paragraph 2 covered “correspondence” pertaining to possession, receipt or distribution of

visual depictions of minors engaged in sexually explicit conduct . . . .” Each of the other

11 paragraphs also included specific language limiting the objects of the search to matters

connected with child pornography.

2
The emphasis on the word “that” appears in the affidavit. We are unsure of its
origin; our record does not include the recorded conversation, nor have we found any
explanation of the emphasis.

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 The warrant also included this provision: “The search shall be conducted in

accordance with the search protocol outlined in the attached Addendum.” Because of its

importance in this case, we reproduce the Addendum in full (emphasis in the original):

ADDENDUM

The search procedure of the electronic data contained in computer
equipment subject to the foregoing Search Warrant, whether performed on
site or in a laboratory, or other controlled environment, may include the
following techniques:
(a) surveying various file “directories” and the individual files
they contain (analogous to looking at the outside of a file
cabinet for markings identifying its contents and opening a
drawer believed to contain pertinent files);
(b) “opening” or cursorily reading the first few “pages” of
such files in order to determine their precise contents;
(c) “scanning” storage areas to discover and possibly recover
recently deleted data;
(d) scanning storage areas for deliberately hidden files; or
(e) performing “keyword” searches through all electronic
storage areas to determine whether occurrences of language,
symbols, or other data contained in such storage areas exist
that are intimately related to the subject matter of the
investigation.

This Search Warrant and the above-described search procedure
specifically excludes a search of any kind of unopened electronic mail.
No search of unopened electronic mail shall be conducted without a
separate search warrant supported by probable cause. The examiner(s) will
limit his/her search related to the criminal charges under investigation.
Appropriate efforts shall be made to minimize the disclosure of records and
other information that are not the subject of this Search Warrant. If files
and/or information is found related to other criminal activity, then a
separate warrant will immediately be sought to obtain that information.

The Hearing on the Motion to Suppress Evidence

Much of the testimony adduced from Agent Lane by the government at the

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suppression hearing has been recited supra in our summary of Agent Lane’s affidavit

supporting the application for search warrant. The government also presented the

testimony of Agent Jeffrey Owen, a computer forensic expert and the officer who

conducted the search of defendant’s computer, after an initial search by Agent Lane.

For purposes of this opinion, Sergeant Owen’s testimony was significant in

establishing that he used specialized software to search for files that might fit the

descriptions included in Attachment B of the warrant. He explained how a program

automatically finds and collects all images stored on the computer. These images have to

be viewed by the examiner to determine the nature of the images. With text files, such as

correspondence and other documents, Sergeant Owen testified that he used a “key word

search” program that identified specific files as possibly within the search parameters.

Most importantly, Sergeant Owen testified that use of the search software available to

him made it unnecessary for him to actually open every file to determine its contents.

Defendant introduced a significant amount of new evidence at the hearing by

cross-examination of Agent Lane and Sergeant Owen and through his own testimony.

Much of defense counsel’s cross-examination of Agent Lane focused on things that she

had not done in her investigation before obtaining the search warrant, the significance of

which we will discuss infra. She had not obtained phone records to verify that the

witness and the defendant had spoken a number of times, nor had she verified their

contacts by e-mail. Agent Lane had not verified the existence of the dating service the

witness said had led to her introduction to the defendant, nor did she interview anyone

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close to the witness.

Agent Lane’s affidavit, in an earlier, technical section about computers generally,

stated that “[a]nalysis of the IP address used by the person accessing the Internet is the

reliable way to identify the user.” But she did not attempt to do that with defendant’s

internet provider until after execution of the search warrant. She did not confirm that

defendant had internet access at his home until after obtaining and executing the search

warrant.

Agent Lane said that she had been concerned about the fact that the witness had

not reported the events for almost eleven months (or more, if Mr. Potts’s testimony was

accurate). The agent said that because of this concern she interviewed the witness “quite

diligently” and asked her to explain the reason for the delay. Agent Lane interviewed the

witness several times and said that the witness often cried when discussing the matter.

Agent Lane verified that the witness would be willing to testify. The witness agreed to

make a recorded telephone call to the defendant, which required multiple attempts before

the call could be completed. Agent Lane thought this extensive cooperation by the

witness reflected positively on her credibility.

In his own testimony, defendant presented phone records showing that the number

of contacts between him and the witness was much greater than the witness had said and

that the communications had extended over a considerably longer period. Defendant

testified that the only time he had been in Oklahoma had been when he met the witness,

which he said had been in July 2004, more than a year before the witness had said that

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she had met with him.3

The District Court’s Analysis and Ruling

The district judge rejected defendant’s argument that probable cause was lacking

because the information reflected in the affidavit supporting the application for the search

warrant was stale. The judge noted that the question whether the information was stale

depends on “the nature of the criminal activity, the length of the activity, and the nature of

the property to be seized.”4 The judge also noted that our court has recognized that

collectors of child pornography are likely to “hoard” the materials.5 The judge found that

the recorded telephone call of October 2006, seventeen days before issuance of the

warrant, indicated that defendant’s interest in child pornography still existed.

As for the showing of probable cause that the evidence would be found in the

apartment of Mr. Potts, direct evidence or personal knowledge that the contraband is

located there is not required by our cases.6 The magistrate judge reasonably inferred that

defendant likely would have materials at his residence for security. Agent Lane knew

that defendant owned a personal computer, and defendant had mentioned in the recorded

telephone call that it can take hours to download some of the materials from the internet,

which would not be feasible at the elementary schools where he was employed. Also,

3
The district court made no findings regarding the discrepancies in the testimony.
4
Quoting United States v. Perrine, 518 F.3d 1196, 1205-06 (10th Cir. 2008).
5
Also quoting Perrine.
6
See United States v. Hargus, 128 F.3d 1358, 1362 (10th Cir. 1997).

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defendant had printed images that he displayed in a large notebook, and it was also

reasonable to infer that he would not keep that at the schools where he was employed.

The totality of this information was sufficient, the judge concluded, to support a common

sense decision that evidence of the crimes charged likely would be found at the residence.

The district judge went on to opine that the search could be sustained on the

alternative ground of the “good faith” exception to the exclusionary rule first articulated

in United States v. Leon, 468 U.S. 897 (1984). Leon set out four instances in which its

exception to the exclusionary rule would not be applicable, of which Mr. Potts had

invoked only one, arguing that the affidavit was “so lacking in indicia of probable cause”

that it would be unreasonable for the officer to rely on it. See id. at 923 (quoting Brown v.

Illinois, 422 U.S. 590, 610-611 (1975) (Powell J., concurring in part)). Mr. Potts relied

on the evidence he adduced at the hearing on his motion to suppress, evidence that tended

to show that Agent Lane had failed to investigate the complaining witness’s account in

several respects.

The district judge found that Agent Lane had corroborated significant portions of

the witness’s account and had formed a reasonable opinion that the witness was credible

based on her interviews with the witness and the level of cooperation the witness had

displayed. Further corroboration was obtained in the recorded telephone call between the

witness and Mr. Potts. The warrant contained sufficient indicia of probable cause, and

Agent Lane had acted reasonably, the judge concluded.

The district judge also rejected Mr. Potts’s challenge to the scope of the search

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warrant. The challenge Mr. Potts made in his motion to suppress, which he also pursues

in this appeal, was focused on the language in the Addendum to the search warrant, which

we have quoted supra, authorizing the officers to open or cursorily read the first few

pages of “such files” to determine their contents. The district judge concluded that the

warrant “did not authorize the search and seizure of evidence for which there was no

probable cause.” 559 F.Supp.2d at 1176.

II

Probable Cause

Mr. Potts contends that the search warrant was not based on probable cause. His

challenge has two distinct parts. We will first address his contentions that the

investigating agent failed to establish probable cause that he was currently in possession

of child pornography because the information provided to the agent was allegedly stale

and the recorded telephone conversation between Mr. Potts and the complaining witness

did not provide more up-to-date information to remedy the problem of staleness because

the conversation was so ambiguous as to be without probative value for establishing

probable cause. We will then examine Mr. Potts’s argument that the agent failed to

establish probable cause to believe that evidence of the alleged crimes would be found at

his residence.

In reviewing the determination of the magistrate judge that probable cause had

been established for the search warrant, we use a standard of “great deference” to ensure

that the judge had a “substantial basis” for the determination of probable cause. United

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States v. Grimmett, 439 F.3d 1263, 1268 (10th Cir. 2006). We remain mindful that the

issuing judge’s task “is simply to make a practical, common sense decision whether,

given all the circumstances set forth in the affidavit . . . there is a fair probability that

contraband or evidence of a crime will be found in a particular place.” United States v.

Cusumano, 83 F.3d 1247, 1250 (10th Cir. 1996) (quoting Illinois v. Gates, 462 U.S. 213,

238-39 (1983)).

We conclude that the warrant was supported by an adequate showing of probable

cause. Agent Lane’s affidavit recited the information she had obtained from the

complaining witness, information which was plausible on its face. Agent Lane

investigated some of the details that the witness had reported, and her investigation

verified what the witness had reported. Agent Lane did not investigate every part of the

witness’s account, but the law has never required an officer to conduct a perfect

investigation.

Agent Lane’s affidavit reflects that she questioned the witness about the delay in

reporting her encounter with Mr. Potts. The witness offered only one explanation: that it

was very difficult for her to discuss the matter. At this point in the affidavit, Agent Lane

added her personal observation that the witness had become emotional each time she

discussed Mr. Potts’s most disturbing comments. The magistrate judge could have

readily inferred, as we do, that Agent Lane had made a judgment that the witness seemed

credible and that Agent Lane’s evaluation was reasonable.

The information in the affidavit was not stale when measured under the standards

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that we have endorsed in child pornography cases. As the district judge noted, we have

endorsed the view that possessors of child pornography are likely to hoard their materials

and maintain them for significant periods of time. See United States v. Riccardi, 405 F.3d

852, 861 (10th Cir. 2005).

Moreover, the recorded phone call occurred just seventeen days before the warrant

issued. Although the witness and Mr. Potts used vague and ambiguous terms during the

conversation, there was sufficient indication that the conversation referred to child

pornography and that his interest in it had endured. Thus, when Mr. Potts said in the

recorded telephone conversation that he had admittedly “had a porn addiction in a way,”

the witness asked if he thought the porn addiction was “what led to that.” We think the

implication here clearly is that the subject under discussion was something different from

pornography in general. Given the rest of the information in Agent Lane’s affidavit, it

was a reasonable inference that the reference was to child pornography and that Mr. Potts

had admitted to the witness that he still had that interest. In sum, the affidavit as a whole

made a sufficient showing of probable cause that Mr. Potts had committed the crimes of

receipt of child pornography and possession of child pornography to support the warrant.

Mr. Potts’s challenge goes further, however. He argues that the affidavit failed to

establish probable cause to believe that there was a fair probability that evidence of the

suspected crimes would be found in his residence. The fundamental requirement at issue

here is that “a nexus must exist between suspected criminal activity and the place to be

searched . . . .” United States v. Biglow, 562 F.3d 1272, 1278 (10th Cir. 2009). Whether

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a “sufficient nexus has been shown between a defendant’s suspected criminal activity and

his residence . . . necessarily depends upon the facts of each case.” Id. at 1279. Among

the factors that may be relevant are the type of crime involved; the opportunity for

concealment of evidence; the nature of the evidence sought; and the reasonable inference

that may be drawn as to where a person would be likely to keep that evidence. Id.

Applying these factors to the circumstances of this case, we hold that the

magistrate judge had a substantial basis for determining probable cause to search the

defendant’s home had been shown. The affidavit had shown that Mr. Potts owned a

computer and that he was employed as a teacher at two elementary schools. There was

probable cause to believe that Mr. Potts had some child pornography that he kept in a

large binder. There was probable cause to believe that Mr. Potts had obtained images of

child pornography by downloading them from the internet, a process that he had said

could take hours to complete. We have previously said (as noted supra) that those who

acquire these materials are likely to hoard them for significant periods of time.7 All of

these factors weigh against the possibility that Mr. Potts might have kept the materials at

his workplaces.

These facts provided sufficient nexus for the magistrate judge to issue the search

warrant for Mr. Potts’s residence. As the district court correctly noted, direct evidence

that contraband is in the place to be searched is not required. See United States v.

Hargus, 128 F.3d 1358, 1362 (10th Cir. 1997). The affidavit, and the inferences that

7
United States v. Riccardi, 405 F.3d at 861.

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could reasonably be drawn from it, were sufficient to establish the reasonable probability

that the Fourth Amendment requires.

The Leon Exception

Mr. Potts contends that the warrant was overly broad because it authorized the

officers to open every file in his computer. He asserts that this over breadth violated the

particularity requirement of the Fourth Amendment.8 Mr. Potts further argues that this

alleged defect in the warrant was so obvious that the officers could not have relied on the

warrant in objective good faith, so that the evidence could not properly have been held

admissible under the Leon exception to the exclusionary rule. United States v. Leon, 468

U.S. 896 (1984); see also Massachusetts v. Sheppard, 468 U.S. 981 (1984) (applying the

Leon exception to a search under a warrant that did not particularly describe the items to

be seized).

Because we conclude that the evidence was admissible under the Leon exception,

we need not decide whether the warrant failed to satisfy the particularity requirement.

Instead, we assume arguendo that the warrant fell short in this respect and proceed to the

Leon analysis. We have previously taken this approach of assuming a deficiency without

deciding the issue and applying Leon. See United States v. Cook, 854 F.2d 371, 372 (10th

Cir. 1988) (assuming arguendo that the warrant failed to show probable cause and

proceeding directly to Leon analysis). Under Leon, evidence “‘should be suppressed only

8
“. . . and no warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or things
to be seized.” U.S. CONST. amend. IV.

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if it can be said that the law enforcement officer had knowledge, or may properly be

charged with knowledge, that the search was unconstitutional under the Fourth

Amendment.’” United States v. Otero, 563 F.3d 1127, 1133-34 (10th Cir. 2009) (quoting

Herring v. United States, 129 S.Ct. 695, 701 (2009)).

The government has urged us in application of the Leon exception here to weigh,

in favor of admission of the evidence, the fact that the search itself – as opposed to the

authority to search granted by the warrant – was not overly broad.9 The district court’s

rationale for its ruling on this point is not clear, but that court seems to have so weighed

this factor.

We are convinced that proper execution of the warrant – an execution that, as in

this case, limited the search to things for which probable cause had been shown – is a

prerequisite for undertaking the Leon analysis. In Leon the Supreme Court said: “Our

discussion of the deterrent effect of excluding evidence obtained in reasonable reliance on

a subsequently invalidated warrant assumes, of course, that the officers properly executed

the warrant and searched only those places and for those objects that it was reasonable

9
Mr. Potts has not properly raised any objection to the scope of the actual search,
only to the scope of the authority to search granted by the warrant. Counsel for Mr. Potts
explicitly told the district court that he was not challenging the execution of the warrant.
Aplt. Appx. 207, 210-11. Nor was any challenge to the execution of the warrant made in
the briefs on appeal. At oral argument, counsel for Mr. Potts did state that the first search
of the computer files by Agent Lane was overly broad. However, in light of the express
waiver of this issue in the district court and the failure to raise it in the briefs, we do not
consider this contention, which was raised for the first time at argument on appeal.
Moreover, we have not found clear support for counsel’s assertion in our review of the
record.

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to believe were covered by the warrant.” Leon, 468 U.S. at 918 n.19 (emphasis added).

Our early cases applying Leon noted this principle. In United States v. Medlin,

798 F.2d 407 (10th Cir. 1986), we assumed that the warrant failed to show probable

cause, but held that the officers’ reliance on the warrant was objectively reasonable under

Leon. We then considered the appellant’s separate argument that the actual search had

substantially exceeded the scope of the warrant. We held that Leon was not applicable to

this issue: “Medlin correctly notes that Leon does not apply to issues of improper

execution of warrants.” 798 F.2d at 410. We remanded the case for the district court to

consider, in the first instance, whether property had been seized illegally and, if so,

whether the officers’ conduct was “so flagrant” as to require exclusion of all evidence

seized. Id. at 411.

We later quoted the Leon footnote and the holding of Medlin in United States v.

Leary, 846 F.2d 592, 607 n.27 (10th Cir. 1988). We continued to recognize that Leon

would simply be inapplicable if the execution of the search warrant had been improper in

United States v. Moland, 996 F.2d 259, 261 (10th Cir. 1993). A few years after that, we

noted both Medlin and Moland again, United States v. Rowland, 145 F.3d 1194, 1208

n.10 (10th Cir. 1998), while deciding that the execution of the warrant in Rowland had

been proper.

Because the Leon exception cannot be applied when execution of the warrant was

not limited to things for which probable cause to search had been shown, proper

execution of an invalid warrant is a pre-condition: if the pre-condition exists, then the

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court should apply the objective good faith test to the warrant, asking whether a

reasonably trained officer could have believed that the search was authorized in spite of

the defect in the warrant.

We adhere to our holding in Medlin. Leon does not apply if the execution of the

warrant was improper. The proper execution of the warrant in the instant case permits the

government to rely on Leon and argue for this court to affirm the denial of the motion to

suppress, which we do.

Thus we proceed to consider the objective reasonableness exception of Leon to the

exclusionary rule.10 “[O]ur good faith inquiry is confined to the objectively ascertainable

question whether a reasonably well trained officer would have known that the search was

illegal despite the magistrate’s authorization.” Leon, 468 U.S. at 922 n.23. This is a

question of law that we review de novo. United States v. Rowland, 145 at 1206 (10th Cir.

1998). Of course some examination of the alleged defects in the warrant and of the

Fourth Amendment’s requirements is an essential part of the Leon analysis because we

are instructed to consider “all of the circumstances,” Leon, 468 U.S. at 922 n.23, and

assume that the executing officers “have a reasonable knowledge of what the law

prohibits,” id. at 919-20 n.20.

10
As the Court recently noted, the very name of the rule announced in Leon may
have invited misunderstanding: “We (perhaps confusingly) called this objectively
reasonable reliance ‘good faith.’” Herring, 129 S.Ct. at 701. In our analysis, we strive to
maintain our focus on the objective nature of the inquiry and to avoid slipping into
consideration of subjective factors, a danger perhaps created by the misleading “good
faith” label.

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 “The Fourth Amendment requires that a search warrant describe the things to be

seized with sufficient particularity to prevent a general exploratory rummaging in a

person’s belongings. It was adopted in response to the evils of general warrants – those

that allow such exploratory rummaging.” United States v. Campos, 221 F.3d 1143, 1147

(10th Cir. 2000) (internal quotations marks and citations omitted).

With respect to computer searches, we have held that the particularity requirement

of the Fourth Amendment demands that “[o]fficers must be clear as to what it is they are

seeking on the computer and conduct the search in a way that avoids searching files of

types not identified in the warrant.” United States v. Walser, 275 F.3d 981, 986 (10th Cir.

2001). At the same time, we have recognized that a computer search “may be as

extensive as reasonably required to locate the items described in the warrant.” United

States v. Grimmett, 439 F.3d at 1270 (quoting United States v. Wuagneux, 683 F.2d 1343,

1352 (11th Cir. 1982)). Moreover, we have adopted a “somewhat forgiving stance” in

analyzing particularity challenges to search warrants involving computers. Grimmett, 439

F.3d at 1269.

Working within these generally phrased parameters, we begin with the specific

language from the search warrant that Mr. Potts contends is so broad as to violate the

Fourth Amendment’s command. As we quoted supra, the Addendum sets out a

procedure for searching the computer and related equipment by listing “techniques” that

may be used. In its first subparagraph, the addendum refers to “surveying” file directories

and individual files in language that appears to limit the “survey” to the names or labels

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attached to directories and files. The second subparagraph, subparagraph (b), is the focus

of defendant’s challenge. In this section, the addendum states that the “techniques”

allowed include “‘opening’ or cursorily reading the first few ‘pages’ of such files in order

to determine their precise contents.”

Although this language sweeps very broadly, the language should be read in

context. The search warrant described the “items to be seized” in another discrete

attachment, labeled Attachment B. Attachment B comprises 13 numbered paragraphs on

one and one-half, single-spaced pages. Although the search warrant does not anywhere

specify the federal statutes that Mr. Potts was suspected of having violated, as we have

already noted, each of the 13 paragraphs of Attachment B refers to “child pornography,”

“sexual activity with children,” “visual depictions of minors engaged in sexually explicit

conduct, as defined in Title 18, United States Code, Section 2256,” “sexual activity with

minors,” or similarly worded expressions. Moreover, the government also points to the

second full paragraph of the Addendum (also quoted supra) where the officer executing

the warrant is (ungrammatically) commanded to “limit his/her search related to the

criminal charges under investigation.” Although the charges are not specified, the

language in Attachment B made it clear what kind of conduct was under investigation.

We conclude that a reasonable officer could have construed the warrant as limited

by the multiple references to child pornography and related offenses that are present in

Attachment B to the warrant. We do not think that such a reading is so strained as to be

unreasonable. The warrant was not “so facially deficient . . . that the executing officers

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cannot reasonably presume it to be valid.” Leon, 468 U.S. at 923.

We reached a similar conclusion in Otero, in which officers were investigating

theft of credit cards and other materials from the mails and had focused the investigation

on a rural mail carrier. A search warrant was obtained for the suspect’s residence,

including her home computer. An attachment to the warrant described the objects of the

search in two distinct sections, labeled “items to be seized” and “computer items to be

seized.” In the first section, the descriptions of the items were limited by references to the

suspected crimes under investigation, as by reference to correspondence related to credit

cards that was addressed to persons other than residents of the suspect’s home, for

example. But in the second section, describing “computer items to be seized,” there were

no references to limit the extremely broad descriptions, which included “all information

and/or data stored” on the computer, for example.

After finding a Fourth Amendment violation in Otero, we analyzed the case under

Leon. We held that a reasonable officer could have read the warrant as the government

had suggested, i.e., as applying the limitations in the first section of the attachment to the

second section as well. We concluded that the officers “had reason to believe that the

warrant was subject to limitations . . . .” Accordingly, we concluded that the officers’

conduct was “not the kind of ‘flagrant or deliberate violation of rights’ that the

exclusionary rule was meant to deter.”11

Similarly in the instant case, we conclude that reasonable officers could have read

11
563 F.3d at 1134 (internal citations omitted).

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the warrant as restricting the search to materials connected to child pornography, even

under our assumption that the warrant was not actually so restricted. It follows that the

district judge properly denied the motion to suppress the evidence.

Conclusion

We hold that the search warrant was supported by probable cause to believe that

Mr. Potts had committed the crimes of receipt of child pornography and possession of

child pornography and that evidence of these crimes was reasonably likely to be found at

his residence. We further hold that, assuming but not deciding that the search warrant

failed to state with particularity the items to be searched on the computer and related

devices in violation of the Fourth Amendment, the district court nevertheless properly

denied Mr. Potts’s motion to suppress the evidence seized under authority of the search

warrant because a reasonably well trained officer could have believed that the search was

legal. Accordingly the judgment is

AFFIRMED.

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