United States Court of Appeals
Fifth Circuit
F I L E D
In the October 20, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 05-10785
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MICHAEL DAVID FLANDERS,
Defendant-Appellant
_________________________
Appeal from the United States District Court
for the Northern District of Texas
______________________________
Before SMITH, GARZA, and CLEMENT, Because the executing officers’ reliance on the
Circuit Judges. validity of the search warrant was objectively
reasonable and thus in good faith, we affirm.
JERRY E. SMITH, Circuit Judge:
I.
Michael Flanders appeals his child por- On June 3, 2004, a state judge signed a
nography conviction that followed his condi- search warrant that permitted police to search
tional plea of guilty after the district court had and seize, inter alia, computer equipment,
denied his motion to suppress evidence dis- data and memory storage devices, computer
covered on his computer and storage drives files, photographs, or any other type of media
pursuant to the execution of a search warrant. that might be used to collect or depict persons
younger than eighteen years of age engaging in (5) The affiant stated that based on his
sexual conduct, found in Flanders’s house. training and over six years of experience as
The police officer applying for the warrant a police officer, he knew “that persons who
stated in an affidavit that he had probable sexually abuse children also collect and
cause to believe “that Michael Flanders com- keep child pornography as well as exchange
mitted the offense of Aggravated Sexual As- child pornography, and electronic writings,
sault of a Child, a First Degree Felony[,] Texas with others who sexually exploit children.”
Penal Code section 22.021, and the offense of
Possession of Child Pornography, a Third Based on evidence found on his computer
Degree Felony, Texas Penal Code section and storage drives pursuant to execution of the
43.26.” The affidavit included the following warrant, Flanders was charged with six counts
information: of interstate receipt of child pornography in
violation of 18 U.S.C. §§ 2252A(a)(2)(A) and
(1) The United States Immigration Cus- 2 and one count of possession of child pornog-
toms Enforcement Agency discovered an raphy shipped through interstate commerce in
Internet chat log in which Flanders violation of 18 U.S.C. §§ 2252A(a)(5)(B) and
described various sex acts that he had 2. He moved to suppress, arguing that the
performed on his two-year-old daughter warrant was not supported by probable cause.
and that she had performed on him; The district court denied the motion, and pur-
suant to a plea agreement Flanders then condi-
(2) Flanders’s daughter told a forensic tionally pleaded guilty to one count of inter-
interviewer that “she had licked her daddy, state receipt of child pornography.
and that he had licked her,” and the daugh-
ter used anatomical drawings to indicate On appeal, Flanders contends that the mere
that the licking had taken place on her and fact he allegedly had sexually abused his young
her father’s genitals; daughter does not create probable cause that
he possessed child pornography. Also, he as-
(3) Flanders’s wife told the police that serts there was not probable cause that child
Flanders spends a lot of time on his com- pornography would be located in his home.
puter, visits adult pornography sites, and The affidavit supporting the warrant, he
chats with others on the Internet; claims, was only a bare bones recital of the of-
ficer’s beliefs.
(4) Flanders’s wife told the police of an in-
cident in which Flanders took a digital pic- II.
ture of his daughter standing on the bed When a defendant moves to suppress evi-
nude after his wife took her out of the dence on the ground that the search warrant
shower1; and was not supported by probable cause, “[p]rin-
ciples of judicial restraint and precedent dictate
that, in most cases, we should not reach the
probable cause issue if a decision on the ad-
1
The affidavit states that Flanders’s wife was missibility of evidence under the good-faith
unable to state which part of their daughter’s body exception [to the exclusionary rule] will re-
Flanders photographed. The photo in question was solve the matter.” United States v. Craig, 861
neither discovered nor offered in evidence.
2
F.2d 818, 820 (5th Cir. 1988). We deviate ders’s wife’s statement that Flanders took a
from this scheme and proceed directly to the picture of his daughter while she was naked
probable cause inquiry only where “the resolu- and (2) the forensic interviewer’s conclusion,
tion of a ‘novel question of law . . . is neces- based on the daughter’s statements, that Flan-
sary to guide future action by law enforcement ders had sexually exploited her. The affiant’s
officers and magistrates.’” Id. at 820-21 statement that he knew that people who ex-
(quoting Illinois v. Gates, 462 U.S. 213, 264 ploit children also possess child pornography
(1983) (White, J., concurring)). This case understandably leads Flanders to conclude that
does not present a “novel question of law” but the inference from child exploitation to child
involves only the application of established pornography was the only basis on which the
Fourth Amendment principles to a given set of affidavit supports the search for child pornog-
facts, so we begin by determining whether the raphy. The affidavit, however, does not re-
good faith exception to the exclusionary rule quire this inferenceSSthe act of digitally pho-
applies.2 tographing a naked child whom the defendant
had allegedly previously sexually exploited
We review de novo whether an officer’s re- provides direct support for the search for child
liance on a warrant was objectively reasonable pornography.
and accordingly in good faith. United States v.
Satterwhite, 980 F.2d 317, 321 (5th Cir. Where an affidavit states, inter alia, that a
1992). Flanders avers that the affidavit was so defendant has taken sexually explicit photo-
lacking in indicia of probable cause that it ren- graphs of a minor, the affidavit supports a
ders official belief in the existence of probable search for child pornography. United States v.
cause objectively unreasonable. We disagree. Payne, 341 F.3d 393, 401 (5th Cir. 2003).
Unlike the affidavit in Payne, the instant affi-
First, the affidavit contains sufficient infor- davit here states it was unknown whether the
mation that Flanders possessed child pornog- pictures were sexually explicit, but Flanders’s
raphy for an officer reasonably to rely on the alleged past sexual abuse of his daughter,
judge’s probable-cause determination. To ne- coupled with his decision to take a digital pho-
gate Flanders’s charge that this is a bare bones tograph of that child naked, provided enough
affidavit that cannot support the warrant, the information for an officer reasonably to believe
affidavit must provide the judge “with facts, he could execute the warrant.3
and not mere conclusions, from which he
could determine probable cause.” Satterwhite,
3
980 F.2d at 321. This court does not require that an affidavit
supporting a warrant to search for child pornogra-
The affidavit presented the judge with suf- phy contain specific, individualized information
that a defendant possesses child pornography. In
ficient facts, because it recounted (1) Flan-
United States v. Froman, 355 F.3d 882, 890-91
(5th Cir. 2004), we upheld a finding of probable
cause to search the defendant’s computer and other
2
If an officer’s “reliance on the magistrate’s electronic equipment for child pornography, stating
probable-cause determination and on the technical that “it is common sense that a person who volun-
sufficiency of the warrant he issues [is] objectively tarily joins a group such as Candyman [an online
reasonable,” a court need not suppress the fruits. child pornography club], remains a member of the
United States v. Leon, 468 U.S. 897, 922 (1984). (continued...)
3
Second, the affidavit contains sufficient in-
formation that an officer reasonably could rely
on a judge’s probable-cause determination that
Flanders’s home computer and electronic stor-
age contained child pornography. We start
with the general observation that “‘few places
are more convenient than one’s residence for
use in planning criminal activities and hiding
fruits of a crime.’” Id. (quoting United States
v. Green, 634 F.2d 222, 226 (5th Cir. Unit B
Jan.1981)). Beyond this, the affidavit provid-
ed information that established Flanders’s
home as a probable site for his possession of
child pornography: His wife told police that
he used his computer at home to view adult
pornography and to chat on the internet; he
previously used the internet to communicate
about his sexual conduct with a minor; and he
photographed his naked daughter at home us-
ing a digital camera.
The officers’ reliance on the warrant, sup-
ported by the affidavit, was objectively rea-
sonable, and the good-faith exception to the
exclusionary rule therefore applies to render
the evidence admissible regardless of the val-
idity of the warrant.4
The judgment of conviction is AFFIRMED.
3
(...continued)
group for approximately a month without cancel-
ling his subscription, and uses screen names that
reflect his interest in child pornography, would
download such pornography from the website and
have it in his possession.”
4
Because the good faith exception to the exclu-
sionary rule applies, we do not reach the question
whether the warrant was supported by probable
cause.
4