United States v. Zimmerman

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit

1-4-2002

USA v. Zimmerman
Precedential or Non-Precedential:

Docket 1-1251

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Filed January 4, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1251

UNITED STATES OF AMERICA

v.

DAVID SCOTT ZIMMERMAN,
Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
D.C. Crim. No. 99-cr-00110
District Judge: The Honorable Gary L. Lancaster

Argued October 17, 2001

Before: ALITO, BARRY and ROSENN, Circuit Judge s

(Filed: January 4, 2002)

Robert E. Mielnicki, Esq. (Argued)
Seewald, Swartz & Associates
429 Fourth Avenue
1600 Law & Finance Building
Pittsburgh, PA 15219

Attorneys for Appellant
 Mary Beth Buchanan, Esq. (Argued)
Bonnie R. Schlueter, Esq.
Office of the United States Attorney
633 United States Post Office &
Courthouse
Pittsburgh, PA 15219

Attorneys for Appellee

OPINION OF THE COURT

BARRY, Circuit Judge:

On March 19, 1999, the Police Department in
McCandless Township, Pennsylvania obtained a warrant to
search the residence of appellant David Zimmerman for
adult and child pornography. Several images of the latter
were found, and Zimmerman was indicted for possession of
child pornography in violation of 18 U.S.C. S 2252A(a)(5)(B).
His suppression motion was denied, and he entered a
conditional plea of guilty to the one-count indictment,
preserving his right to appeal the issue of whether the
search warrant that produced the damning evidence was
supported by probable cause.

The warrant application did not contain any information
indicating that Zimmerman ever possessed child
pornography, much less that child pornography would be
found in his home on March 19, 1999. While it did contain
information that many months earlier, one video clip of
adult pornography was in Zimmerman's home (or at least
that Zimmerman had accessed it via the Internet from his
home), that information was stale. Thus, we agree with
Zimmerman that there was no probable cause to search for
pornography -- child or adult -- in his home. We agree as
well that, under the circumstances evident here, the good
faith exception does not apply. We, therefore, will reverse
the denial of the suppression motion and vacate the
judgment of conviction and sentence.1
_________________________________________________________________

1. Given this disposition, we need not decide the numerous other issues
raised by Zimmerman, to wit: whether (1) the affidavit contained material

2
I.

David Zimmerman was a high school teacher and
basketball coach in McCandless Township, Pennsylvania.
Sergeant Donald O'Connor and Detective David DiSanti of
the McCandless Police Department initiated an
investigation after a number of Zimmerman's male students
alleged that Zimmerman had sexually accosted them.
Several boys stated that Zimmerman had forced them to
simulate oral sex on his person, touched their genitalia,
and talked to them about graphic sexual matters. A boy
identified as John Doe #1 made particularly serious
allegations and seemed to be the focus of much of
Zimmerman's conduct. The mother of John Doe #1 played
a very active role in the investigation of Zimmerman,
sending detailed letters to school officials discussing the
accusations against Zimmerman and recommending
courses of action the school should take. She also
communicated with the police to keep them informed of the
school's investigation of Zimmerman. On March 4, 1999,
Zimmerman was charged in the Court of Common Pleas of
Allegheny County, Pennsylvania with two crimes:
corruption of minors, in violation of 18 Pa. Cons. Stat.
S 6301(a)(1), and simple assault, in violation of 18 Pa. Cons.
Stat. S 2701(a)(1).

The investigation continued after Zimmerman was
charged. On March 13, 1999, the police interviewed a
college student identified as John Doe #12, the brother of
John Doe #1. John Doe #12 stated that Zimmerman, on
apparently one occasion, had shown him "Internet
pornography" at Zimmerman's home when John Doe #12
was a senior in high school.2 The pornography consisted of
_________________________________________________________________

misstatements and omitted material information; (2) the warrant was
overbroad; (3) the executing officers engaged in general rummaging; (4)
Sergeant O'Connor violated the Municipal Police Jurisdiction Act, 42 Pa.
Cons. Stat. S 8952, because he obtained and executed the warrant
outside his "primary jurisdiction"; and (5) the hearing afforded
Zimmerman by the District Court in and of itself warrants relief.
2. The affidavit does not indicate when John Doe #12 allegedly saw the
pornography at Zimmerman's home. Assuming he was a freshman in
college when the police interviewed him and that he graduated from high
school in May 1998, John Doe #12 would have seen the clip at the very
earliest ten months before the interview. It is quite possible that more
time had elapsed.

3
a video clip that depicted a woman performing oral sex on
a horse. John Doe #12 stated that another student, John
Doe #13, was at Zimmerman's home when he showed the
video clip. On March 18, 1999, the police questioned John
Doe #13 and were told by him that he did not recall being
shown pornography at Zimmerman's home.

When John Doe #13 did not corroborate John Doe #12's
story about having been with him when the video of the
woman with the horse was supposedly shown by
Zimmerman, the officers called John Doe #12 to confirm
what he had previously stated and to get additional details
about the video. John Doe #12 was away at college and
could not be reached, however, so the officers contacted his
mother and told her why they wanted to speak with him. In
a subsequent phone call, she stated that she had
"confirmed" with John Does # 1, 4 and 8 that they had
seen the video at Zimmerman's home one day in either
September or October of 1998 although, as it turned out,
she had confirmed no such thing.3 At no time did Sergeant
O'Connor confirm the mother's information with any of the
three boys and nothing in Detective DiSanti's reports
indicate that he asked the boys about the video or that the
boys mentioned it to him. Nonetheless, Sergeant O'Connor
included the mother's statement in his affidavit in support
of the search warrant.

Virtually the entirety of the lengthy affidavit recounted
various incidents in which Zimmerman allegedly sexually
_________________________________________________________________

3. We, of course, must confine ourselves to the facts that were before the
issuing magistrate -- in other words, the affidavit. We note, however,
that it was later discovered that the mother never spoke with John Does
#4 and 8 about the video and there is no evidence that she spoke to her
son, John Doe #1, about it. Rather, her statement was based on a
conversation with a parent of either John Doe #4 or 8 and what she
overheard the other boy's parents saying, presumably about what they
had been told by their sons. Unlike United States v. Harvey, 2 F.3d
1318, 1324 (3d Cir. 1993), in which the defendant"offer[ed] nothing to
question the reliability of the warrant's information," Zimmerman did so
here. Had he not been given such short shrift by the District Court when
he challenged the reliability of this triple hearsay, the government might
well have been left with the one statement of John Doe #12 made at
least ten months earlier.

4
accosted students at the high school or on athletic road
trips, with only brief mention made of pornography. The
affidavit refers to the video clip shown to John Doe #12; the
mother's statement that it had been shown to John Does #
1, 4 and 8; and an opinion by Postal Inspector Thomas
Clinton stating, among other things, that persons with a
sexual interest in children may possess child pornography
and keep it in their homes for extended periods of time.
Inspector Clinton's statements did not refer to Zimmerman
or the facts of this case, and there was no indication that
he knew anything about either.

The warrant application sought authorization to search
for evidence of violations of 18 Pa. Cons. Stat.SS 2701
(simple assault), 2709 (harassment and stalking), 6301
(corruption of minors) and 6312 (sexual abuse of children,
which includes the possession of child pornography), and
identified the following items to be searched for and seized:

Computer and any computer related or attached
equipment, including but not limited to hard drives,
keyboard, mouse(s), printers, terminals, display
screens, modems and connectors, cables, magnetic and
optical media storage devices, any sexual materials
including photos, printed materials or likenesses such
as images of humans in sexual contact with animals or
other prohibited sexual acts defined by Title 18
Sections 3101 and 6312.

App. at 57. The Hon. Lawrence O'Toole of the Court of
Common Pleas of Allegheny County, Pennsylvania issued
the warrant and the police, including Inspector Clinton,
searched Zimmerman's home on March 19, 1999. The
police seized, among other things, several images of child
pornography. In July 1999, a federal grand jury empaneled
in western Pennsylvania returned a one-count indictment
charging Zimmerman with possession of child pornography
in violation of 18 U.S.C. S 2252A(a)(5)(B).

II.

The Fourth Amendment to the United States Constitution
provides:

5
 The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizure, shall not be violated, 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. One's home is sacrosanct, and
unreasonable government intrusion into the home is"the
chief evil against which the wording of the Fourth
Amendment is directed." Payton v. New York , 445 U.S. 573,
585 (1980) (quoting United States v. United States District
Court, 407 U.S. 297, 313 (1972)). The Fourth Amendment
prohibits a general warrant. Boyd v. United States, 116 U.S.
616, 625 (1886); Andresen v. Maryland, 427 U.S. 463, 480
(1976). A magistrate must determine that there is a"fair
probability that . . . evidence of a crime will be found in a
particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983)
(quoting United States v. Jones, 362 U.S. 257, 271 (1960)).
The warrant must also describe the things to be seized with
sufficient particularity and be "no broader than the
probable cause on which it is based." United States v.
Weber, 923 F.2d 1338, 1342 (9th Cir. 1991).

We exercise plenary review of the District Court's denial
of Zimmerman's motion to suppress. United States v. Loy,
191 F.3d 360, 365 (3d Cir. 1999). Thus, we apply the same
standard the District Court was required to apply and
determine whether the magistrate who issued the warrant
had a "substantial basis" for determining that probable
cause existed. United States v. Harvey, 2 F.3d 1318, 1322
(3d Cir. 1993). In so doing, we must determine if a
"practical, commonsense decision [was made] whether,
given all the circumstances set forth in the affidavit before
him . . . there is a fair probability that contraband or
evidence of a crime [would] be found in a particular place."
Gates, 462 U.S. at 238. The decision of the magistrate
"should be paid great deference." Harvey , 2 F.3d at 1322.
This, however, "does not mean that reviewing courts should
simply rubber stamp a magistrate's conclusions." United
States v. Tehfe, 722 F.2d 1114, 1117 (3d Cir. 1984).

6
At the time the search warrant was issued, Zimmerman
had been charged in state court with two crimes:
corruption of minors and simple assault. The affidavit of
Sergeant O'Connor is replete with probable cause that
Zimmerman committed both crimes. But the police were
not looking for evidence of "wrongdoing," which is the only
probable cause the District Court found and the conduct on
which the Dissent, mistakenly in our view, focuses. The
police were looking for pornography. As the government
argued at the suppression hearing, "It was a warrant for
the adult pornography that the Defendant had shown to
three minor children at his residence." App. at 289. And, as
we will explain, it was also a warrant for child pornography,
although the government attempts to recast history on that
score.

A. Child Pornography

We need not tarry long before deciding that there was no
probable cause to search Zimmerman's home for child
pornography; indeed, the government concedes that there
was not, and the affidavit contained no information that
Zimmerman had ever purchased or possessed child
pornography.

It is quite clear to us, though, that when the police
applied for the warrant, they were seeking the magistrate's
imprimatur to search for both adult and child pornography,
and we reject the government's argument that the police
were only seeking the former. For starters, the application
for the warrant and the warrant itself specifically identified
images of "sexual acts as defined by Title 18 Sections 3101
and 6312" of the Pennsylvania Criminal Statute as items to
be searched for and seized. Section 3101, entitled
"Definitions," defines "deviate sexual intercourse," "indecent
contact" and "sexual intercourse." These definitions were
certainly broad enough to cover any hardcore adult
pornography, including bestiality. Yet the definitional
section was expanded in the application and the warrant to
include section 6312, entitled "Sexual Abuse of Children."
Section 6312 prohibits, in its only relevant subsection, the
possession of images of children engaged in sexual acts. 18
Pa. Cons. Stat. S 6312(d). In addition to drawing upon

7
section 6312 for purposes of definition, the application and
the warrant itself clearly call for a search for items that are
in violation of section 6312.

The affidavit of Sergeant O'Connor supports the
conclusion that child pornography was targeted. In the
affidavit, O'Connor refers to his discussion with Postal
Inspector Clinton:

Clinton stated that persons who have sexual interest or
sexual contact with children may often collect images,
pictures, photos or other visible depictions of children,
or of children depicted in sexually explicit positions or
involved in sexual acts. Very often these people will
keep these items in close proximity to themselves
where they can easily gain access to it. These items
may be hidden in a place not readily observable. Very
often these people will not dispose of these items and
will only give these items up when they are taken from
them. These people may keep these items for years.

App. at 63-64. There was no necessity for Clinton's
statement had the police not been searching for child
pornography.4 And finally, we note, Sergeant O'Connor
requested assistance from a City of Pittsburgh police officer
_________________________________________________________________

4. Because it is undisputed that there was no probable cause to search
for child pornography, we need not determine what weight, if any, to
accord Clinton's statement. We note, however, that there is nothing in
that statement indicating that Clinton knew anything about Zimmerman
or what the investigation had disclosed. It is well-established that an
expert opinion must be tailored to the specific facts of the case to have
any value. See, e.g., Weber, 923 F.2d at 1345. "Rambling boilerplate
recitations designed to meet all law enforcement needs" do not produce
probable cause. Id. In Loy, we stated that "experience and expertise,
without more, is insufficient to establish probable cause." 191 F.3d at
366. In that case, the very same Postal Inspector Clinton provided a
similar statement regarding the proclivities of persons who are sexually
interested in children. We found that "Inspector Clinton's conclusory
statement that people who collect child pornography commonly keep it
in their homes is insufficient . . . to establish the sufficient nexus
between the contraband and [the defendant's] residence." Id. at 366-67.
Were we required to decide the issue, we would most likely find that
Clinton's boilerplate statement "may have added fat to the affidavit, but
certainly no muscle." Weber, 923 F.2d at 1346.

8
in executing the warrant. The "Offense/Incident Report"
filled out by the officer states that "Sgt. Don O'Connor of
the McCandless Police Department requested assistance in
executing a search warrant at 3729 Parviss Street in an
attempt to seize items of or related to child pornography."
App. at 200 (emphasis added). Clearly, the officers intended
to enter Zimmerman's home to retrieve child pornography,
although there was absolutely no information in the
affidavit or anywhere else indicating that child pornography
was -- or ever had been -- located there.

B. Adult Pornography

The government argues that the police were only
searching for adult pornography, that it had probable cause
to do so, and that the child pornography that was found
was thus discovered incident to a legal search. But there
was no probable cause to search for adult pornography and
no "substantial basis" for the magistrate to have found
probable cause because the information supporting
probable cause was stale. It is well settled that:

Age of the information supporting a warrant
application is a factor in determining probable cause.
See United States v. Forsythe, 560 F.2d 1127, 1132 &
n.6 (3d Cir. 1977); see also United States v. McNeese,
901 F.2d 585, 596 (7th Cir. 1990). If too old, the
information is stale, and probable cause may no longer
exist. McNeese, 901 F.2d at 596. Age alone, however,
does not determine staleness . . . Rather, we must also
examine the nature of the crime and the type of
evidence. See United States v. Tehfe, 722 F.2d 1114,
1119 (3d Cir. 1983), cert. denied, 466 U.S. 904, 104
S.Ct. 1679, 80 L.Ed.2d 154 (1984); Forsythe, 560 F.2d
at 1132; see also United States v. McCall, 740 F.2d
1331, 1135-36 (4th Cir. 1984).

Harvey, 2 F.3d at 1322.

The government concedes that when the warrant was
issued, the officers were only aware of the one video clip
"depicting a woman performing a sexual act with a horse."
Appellee's Br. at 36. The affidavit noted the mother's
statement that John Does # 1, 4 and 8 had been shown

9
that video clip some six months earlier and John Doe #12's
statement that he had been shown the video clip when he
was in high school -- in other words, at the very earliest,
ten months before. This information, the issue of reliability
aside, is the only information in the affidavit that
Zimmerman ever had pornography of any type in his home.

In Harvey, we held that information indicating that the
defendant had ordered and received child pornography on
thirteen occasions during the fifteen months preceding the
issuance of a warrant was not stale. We emphasized,
however, that the defendant had received three mailings
only two months before the warrant was issued. The
information linking Zimmerman to adult pornography was
much older and there was less of it. We also emphasized
the fact that there was a "continuing offense of receiving
child pornography." Harvey, 2 F.3d at 1322 (quoting United
States v. Rakowski, 714 F.Supp. 1324, 1331 (D. Vt. 1987)).
The affidavit here does not even allege much less
demonstrate that Zimmerman was engaged in a "continuing
offense" of acquiring pornography and keeping it in his
home. The affidavit only avers that six and at least ten
months earlier Zimmerman had one piece of adult
pornography and there is no indication whatsoever that he
continuously acquired or planned to acquire any other
pornography.5 Indeed, there is nothing which indicates that
even one piece of pornography was ever downloaded from
the computer on which the boys allegedly viewed it.

In conducting our staleness analysis in Harvey , we also
pointed to the fact that pedophiles rarely, if ever, dispose of
child pornography. Many courts have similarly accorded
weight to that fact. See, e.g., United States v. Lacy, 119
F.3d 742, 746 (9th Cir. 1997); United States v. Peden, 891
F.2d 514, 518-19 (5th Cir. 1989). Presumably individuals
will protect and retain child pornography for long periods of
time because it is illegal and difficult to obtain.
_________________________________________________________________

5. The government states that the "offenses described in the instant
affidavit . . . are continuing offenses." Appellee's Br. at 27. The
affidavit
does allege that Zimmerman engaged in a continuous pattern of sexual
abuse and inappropriate conduct. This, however, has nothing to do with
whether he continuously possessed and showed pornography to boys in
his home.

10
Postal Inspector Clinton, too, opined that "persons who
have a sexual interest or sexual contact with children . . .
[v]ery often . . . will not dispose of [child pornography] . . . ."
App. at 64. In its brief opinion, the District Court
emphasized what Clinton had said. There is no indication,
however, that Zimmerman ever possessed child
pornography, and Clinton did not address the issue of
whether adult pornography is typically retained. Moreover,
the only piece of pornography that Zimmerman allegedly
possessed was, in all likelihood, legal and quite easy to
obtain. The affidavit states that the video clip of the woman
and the horse was viewed via the Internet. This suggests
that Zimmerman could easily access it and had no reason
to retain a copy and carefully guard it.

The government relies on two Ninth Circuit child
pornography cases to argue that the six month passage of
time from when John Does #1, 4 and 8 supposedly viewed
the video to the issuance of the warrant does not render the
information stale.6 Parenthetically, and while, of course,
there is no bright line that can be drawn, we note that in
another Ninth Circuit case, the Court found that a four
month passage of time between the activities described and
the issuance of the warrant rendered the search unlawful.
Durham v. United States, 403 F.2d 190, 195 (9th Cir. 1968).

Pointing first to United States v. Rabe, 848 F.2d 994 (9th
Cir. 1988), the government asserts that the Court held that
information "over two years old was not stale." Appellee's
Br. at 25. This assertion is, quite simply, incorrect. In
Rabe, the warrant, indeed, depended in part on packages of
child pornography that had been seized two years before
the warrant was issued. The government fails to mention,
however, that the defendant in Rabe had corresponded with
an undercover investigator about the pornography
collection he kept in his home only two months before the
search warrant was issued.

The government next points to United States v. Lacy, 119
F.3d 742 (9th Cir. 1997). In Lacy, the Court held that ten-
_________________________________________________________________

6. We find it curious that the government relies on cases dealing with
child pornography when it claims to have been seeking only adult
pornography.

11
month-old information was not stale. Lacy, however, is
readily distinguishable from this case. First, of course, Lacy
involved child pornography. Thus, the Court placed
significant weight on expert opinion indicating that
collectors of child pornography rarely if ever dispose of such
material and store it for long periods in a secure place,
typically in their homes. Id. at 746 (citing Rabe, 848 F.2d
at 995-96) (internal quotations omitted). As discussed,
nothing indicates that this logic applies in the adult
pornography context. There was also evidence in Lacy that
the defendant had called an Internet pornography provider
sixteen times and downloaded six picture files. The Court
emphasized the fact that the defendant had actually
"downloaded" images of child pornography. Downloading
the images to a hard drive or diskette established that the
pornography was physically present in the defendant's
home, thereby justifying a search of his home. Here, there
is no evidence that Zimmerman made more than one or two
calls, much less repeated calls, to request pornography.
More importantly, the affidavit did not even suggest that
Zimmerman ever downloaded the video clip of the woman
and the horse, and the Dissent does not argue that he did.
Thus, the video clip -- the only pornography of which the
investigating officers were aware -- may well have been
located in cyberspace, not in Zimmerman's home.

In sum, the circumstances of this case clearly
demonstrate that the affidavit was bereft of "facts so closely
related to the time of the issue of the warrant as to justify
a finding of probable cause at that time." Sgro v. United
States, 287 U.S. 206, 210 (1932).

C. Good Faith Exception

The government argues, however, that even if the warrant
was defective, the seized items of child pornography should
not be suppressed because the good faith exception to the
exclusionary rule applies. United States v. Leon , 468 U.S.
897, 922 (1984). "The good faith exception instructs that
suppression of evidence `is inappropriate when an officer
executes a search in objectively reasonable reliance on a
ewarrant's authority,' " even though no probable cause to
search exists. United States v. Hodge, 246 F.3d 301, 307

12
(3d Cir. 2001) (quoting United States v. Williams, 3 F.3d 69,
74 (3d Cir. 1993)). Because law enforcement officers are not
attorneys and, in Leon's phrase, must often make "hurried
judgment[s]," courts should not suppress probative
evidence when a reasonable mistake has been made in
obtaining a warrant. "The test for whether the good faith
exception applies is `whether a reasonably well trained
officer would have known that the search was illegal despite
the magistrate's authorization.' " Loy, 191 F.3d at 367
(quoting Leon, 468 U.S. at 922 n. 23).

Before determining whether the good faith exception
applies, we should briefly reflect upon the purpose of the
exclusionary rule. The exclusionary rule is designed to
deter police conduct that violates the constitutional rights
of citizens. Leon, 468 U.S. at 919. "The deterrent purpose
of the exclusionary rule necessarily assumes that the police
have engaged in willful, or at the very least negligent,
conduct which has deprived the defendant of some right."
United States v. Peltier, 422 U.S. 531, 539 (1975) (quoting
Michigan v. Tucker, 417 U.S. 433, 447 (1974)). By excluding
evidence seized as a result of an unconstitutional search
and seizure, "the courts hope to instill in those particular
investigating officers, or in their future counterparts, a
greater degree of care toward the rights of an accused." Id.
Because the "purpose of the exclusionary rule is to deter
unlawful police conduct," the fruits of an unconstitutional
search should be suppressed if, despite the magistrate's
authorization, an objectively reasonable, well-trained officer
would have known that the search violated the Fourth
Amendment. Leon, 468 U.S. at 919 (quoting Peltier, 422
U.S. at 542). Concomitantly, suppression should not be
ordered where an officer, acting in objective good faith, has
obtained a warrant without probable cause because in such
cases only marginal deterrent purposes will be served
which "cannot justify the substantial costs of exclusion."
Leon, 468 U.S. at 922.

The Supreme Court has held that " `a warrant issued by
a magistrate normally suffices to establish' that a law
enforcement officer has `acted in good faith in conducting
the search.' " Leon, 468 U.S. at 922 (quoting United States
v. Ross, 456 U.S. 798, 823 n. 32 (1982)). There are

13
situations, however, where "an officer's reliance on a
warrant would not be reasonable and would not trigger the
[good faith] exception." Hodge, 246 F.3d at 308. We have
identified four such situations:

1. Where the magistrate issued the warrant in
reliance on a deliberately or recklessly false affidavit;

2. Where the magistrate abandoned his or her judicial
role and failed to perform his or her neutral and
detached function;

3. Where the warrant was based on an affidavit so
lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable; or

4. Where the warrant was so facially deficient that it
failed to particularize the place to be searched or the
things to be seized.

Hodge, 246 F.3d at 308; see also Leon , 468 U.S. at 923.
Zimmerman contends that all but the second situation
apply here. If, of course, just one is present, application of
the good faith exception will not be triggered. We, therefore,
will address but one.

The affidavit of Sergeant O'Connor so lacked the requisite
indicia of probable cause that it was "entirely
unreasonable" for an official to believe to the contrary.
O'Connor applied for a warrant authorizing the seizure of
images of both adult and child pornography, was the
author of the supporting affidavit, and was one of the
executing officers. In that affidavit, O'Connor recited
information indicating that a single video clip of a woman
engaged in oral sex with a horse was located on a computer
in Zimmerman's home no earlier than six months before
the search. As discussed above, this information was stale.
Moreover, there was nothing that transpired over that six
month period to even suggest that a "hurried judgment"
had to be made to seek the warrant, excusing any
reasonable mistake; indeed, the police had complete control
over the timing.7 And, of course, while the warrant also
_________________________________________________________________

7. At the time he applied for the warrant, Sergeant O'Connor had no real
reason to question the reliability of the mother's statement given to him

14
specifically authorized a search for child pornography,
nothing in the affidavit indicated that such pornography
was ever in Zimmerman's home.

Any reasonably well-trained officer in the "stationhouse
shop would recognize as clearly insufficient" the affidavit
that was presented to the magistrate. United States v.
Williams, 3 F.3d 69, 74 (3d Cir. 1993). When a police officer
has "not presented a colorable showing [of probable cause],
and the warrant and affidavit on their face preclude
reasonable reliance, the reasoning of Leon does not apply."
United States v. Hove, 848 F.2d 137, 140 (9th Cir. 1988).

It bears mention that Sergeant O'Connor crafted the
affidavit to portray Zimmerman in the worst possible light.
In that single-spaced, seven-page affidavit, O'Connor
described in great detail the sexual misdeeds that
Zimmerman allegedly committed against his students but
which had nothing to do with whether there was
pornography in his home. It is not until the next to the last
line of the fifth page of the affidavit, however, that O'Connor
even mentioned pornography, much less anything that
might provide probable cause to search for pornography in
Zimmerman's home, and that mention -- the John Doe #12
reference -- was fleeting. Any "reasonably well-trained
officer" would have known that there was marginal evidence
at best of adult pornography, evidence which was anything
but current, and no evidence whatsoever to support a
search for child pornography. Perhaps this is why the
affidavit is loaded with lurid -- and irrelevant--
accusations.

When the Supreme Court announced the good faith
exception in Leon, it weakened the exclusionary rule, but it
did not eviscerate it. "Good faith is not a magic lamp for
police officers to rub whenever they find themselves in
_________________________________________________________________

that same day. Because he was not operating under any time pressure,
however, some minimal further investigation -- contacting even one of
the boys, for example -- would most likely have caused him to question
her reliability before the application was made if, indeed, it would have
been made at all given the precious little evidence that would have
remained.

15
trouble." United States v. Reilly, 76 F.3d 1271, 1280 (2nd
Cir. 1996). And particularly where the affiant is also one of
the executing officers, it is somewhat disingenuous, after
having gone to the magistrate with the paltry showing seen
here, to suggest, as the government suggests, that at
bottom it was the magistrate who made the error and the
search and seizure are insulated because the officer's
reliance on that error was objectively reasonable. That
aside, "[T]he good faith exception requires a sincerely held
and objectively reasonable belief that the warrant is based
on a valid application of the law to all known facts." Id. at
1273. The objective standard "requires officers to have a
reasonable knowledge of what the law prohibits." Leon, 468
U.S. at 919-20 n.20. No objectively reasonable police officer
could believe that, despite the magistrate's authorization,
the law did not prohibit a search of Zimmerman's home for
pornography, child and adult. It follows that the good faith
exception does not apply and the fruits of the search must
be suppressed.8

III.

The order denying the motion to suppress will be
reversed and the judgment of conviction and sentence
imposed thereon will be vacated and the case remanded for
such proceedings as are consistent with this opinion.
_________________________________________________________________

8. The government argues that even if the warrant was defective, the
good faith exception should apply because Postal Inspector Clinton was
not involved in the investigation leading up to the issuance of the
warrant and, therefore, "would have had no reason to know of the defect"
in the warrant. Appellee's Br. at 23. The Supreme Court has made clear,
however, that investigating officers cannot "rely on colleagues who are
ignorant of the circumstances under which the warrant was obtained" to
insulate the search from constitutional scrutiny. Leon, 468 U.S. at 923
n.24 (citing Whiteley v. Warden, 401 U.S. 560, 568 (1971)).

16
ALITO, Circuit Judge, dissenting:

I must respectfully dissent. Even if the search warrant's
authorization to seize the critical evidentiary items was not
supported by fresh probable cause, suppression of the
evidence obtained in the search is not proper due to the
"good faith" exception to the exclusionary rule recognized
by the Supreme Court in United States v. Leon , 468 U.S.
897 (1984).

The defendant, a high school coach, pled guilty in federal
court to the offense of possession of child pornography, in
violation of 18 U.S.C. S 2252A(a)(5)(B), but his plea was
conditioned on his right to appeal the denial of his motion
to suppress evidence taken in a search of his home
pursuant to a warrant issued by the Allegheny County
Court of Common Pleas. Critical evidence obtained in that
search included "computer-generated images depicting
minor boys engaged in sexually explicit acts, several
catalogs offering for sale video tapes and other materials
depicting teenaged boys and young adults engaged in
sexual activity, and several hundred images of child
erotica." App. 244.

When the search warrant was issued, the only charges
pending against the defendant were state charges for
corruption of minors, in violation of 18 Pa. Cons. Stat. Ann.
S 6301 (A) (1), and simple assault, in violation of 18 Pa.
Cons. Stat. Ann. S 2701 (A) (1). An affidavit of Sergeant
Donald O'Connor of the McCandless Township Police
Department was submitted in support of the search
warrant application, and it set out ample evidence
supporting these charges. According to the information in
the affidavit, the defendant, among other things, had
engaged in the unwelcome touching of minor male
students; had rubbed his clothed genitals against them;
had forced a student to engage in simulated oral sex and
had told this student that the student would perform oral
sex on the entire basketball team; had pressured a minor
student to perform masturbation in the defendant's
presence; had coerced a student to submit to being struck
on the buttocks with a two-by-four piece of wood and had
then tried forcibly to lower the student's pants; had
whipped a student with belts and punched another

17
student; and had continually engaged in verbal sexual
harassment of minor students, for example, repeatedly
calling one student the "team slut." Some of these incidents
had allegedly taken place at the defendant's home. In
addition, Sergeant O'Connor's affidavit recited evidence that
on several occasions the defendant had shown sexually
explicit materials to the minor students. On one occasion
during a basketball trip, the defendant had allegedly forced
several minors to watch a pornographic movie with him in
a hotel room and had complained that the movie did not
contain enough graphic sex. On another occasion,
according to the affidavit, the defendant had repeatedly
shown four minors a video clip of a woman performing oral
sex on a horse. The defendant had allegedly displayed this
video clip to the minors in his home on his computer
screen.

The warrant authorized a search for evidence of the
offenses with which the defendant was charged and related
crimes involving the victimization of minors. The warrant
listed as items to be seized computer equipment and
"sexual materials." It is apparent that the warrant
authorized a search for this latter, broad category of
materials, not because their possession was necessarily
illegal (i.e., not because they were legally obscene or
constituted child pornography), but because the defendant
had allegedly used such materials as part of the course of
conduct of sexual abuse recounted in the affidavit.

In order to obtain reversal of his conviction, the
defendant must show that the critical items of evidence
previously noted should have been suppressed. He cannot
make such a showing if the critical items were within the
scope of the warrant and there was probable cause to
search for them in his home. See United States v. Le, 173
F.3d 1258 (10th Cir. 1999) (if officers seize items not within
the scope of the warrant, only those items should be
suppressed); United States v. Christine, 687 F.2d 749, 754
(3d Cir. 1982) (if probable cause is lacking for certain items
covered by a warrant, the warrant may generally be
redacted to remove invalid portions). Nor can he make such
a showing if these items were in plain view of the executing
officers when they conducted valid aspects of the search.
See, e.g., Horton v. California, 496 U.S. 128, 134-37 (1990).

18
Beginning with what I view as the easiest point, I believe
that the evidence in the affidavit was clearly sufficient to
provide probable cause to believe that, in March 1999,
when the warrant was issued, the defendant's home
computer still contained the video clip or traces of the clip
of the woman and the horse, and that this video clip,
whether or not it met the constitutional test for obscenity,
was evidence of corruption of minors. Furthermore, it is not
important whether the minors had last viewed this clip as
recently as five months before the search or as much as 12
months before the search. Since the clip had been shown
repeatedly on the computer, it is probable -- not certain,
but probable -- that it had been downloaded to the
computer's hard drive. In that event, it was probable --
again, not certain, but probable -- that either the clip or
traces of it remained, even if the defendant had attempted
to delete it. See Adobe Systems, Inc. v. South Sun Products,
187 F.R.D. 636, 642-43 (S.D. Cal. 1999) (deleting a file on
most computers does not actually result in deletion) (citing
authorities). Whether a search of the computer's hard drive
for this clip would have necessarily resulted in the
discovery of any of the computer-related items of evidence
that the government intended to introduce at the
defendant's trial is not disclosed by the record, as far as I
am aware.

It is also not entirely clear whether there was fresh
probable cause to believe that the defendant's computer
contained other similar items or that his home contained
similar materials in other media. However, the defendant's
allegedly extended course of conduct, with the students and
his use of sexual materials in carrying out that course of
conduct both away from and in his home, provide support
for the proposition that as of the date of the search he
possessed similar materials in his home. In addition,
Sergeant O'Connor's affidavit stated that he had been
informed by a postal inspector with lengthy experience
investigating crimes involving the sexual victimization of
minors that persons with a sexual interest in children often
collect and keep sexually related images of minors for
lengthy periods and often use pornography depicting adults
to assist in victimizing minors. See App. 64. The previously
noted incidents alleged in the affidavit showed that the

19
defendant had a sexual interest in minors and that he had
used sexual materials on several occasions as part of his
course of conduct. All of this information tends to support
a finding of probable cause.

We need not decide, however, whether we would find that
Sergeant O'Connor's affidavit provided fresh probable cause
for the items that the government intended to introduce at
the defendant's federal trial because the search in this case
was supported by a warrant issued by a detached and
neutral magistrate. Under Leon, we may not suppress
evidence seized pursuant to that warrant for lack of fresh
probable cause unless the supporting affidavit was" `so
lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable.' " 468 U.S. at
923 (quoting Brown v. Illinois, 422 U.S. 590, 610-11 (1975)
(Powell, J., concurring in part)). This exception to the "good
faith" exception applies in only those rare circumstances in
which, although a neutral magistrate has found that there
is probable cause, a lay officer executing the warrant could
not reasonably believe that the magistrate was correct.

This exception to the "good faith" exception is
inapplicable here. The majority finds that the probable
cause set out in the affidavit was stale, but there is no
bright line between fresh and stale probable cause. See,
e.g., United States v. LaMorie, 100 F.3d 547, 554 (8th Cir.
1996). The line varies depending on the nature of the case
and the circumstances, and the passage of time is less
significant " `when an activity is of a protracted and
continuous nature.' " United States v. Williams, 124 F.3d
411, 420 (3d Cir. 1997) (citation omitted). Here, a judge of
the Allegheny County Court of Common Pleas found that
there was probable cause. So did a United States District
Court Judge. I cannot agree with the majority that this
conclusion was so obviously wrong that a lay officer could
not reasonably have thought that probable cause was
present. In my view, the majority's holding is not consistent
with Leon, and I must therefore dissent.

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A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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