United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 11, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 06-50041
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAVIER PEREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
Before KING, GARZA, and PRADO, Circuit Judges.
PRADO, Circuit Judge:
Defendant-Appellant Javier Perez (“Perez”) was convicted of
possession of child pornography and sentenced to fifty-seven
months imprisonment. Perez appeals the district court’s order
denying his motion to suppress evidence acquired in a search of
his premises on June 9, 2004. Perez also appeals the enhancement
of his sentence based on his possession of images depicting
prepubescent minors and images depicting sadistic/masochistic
conduct. For the reasons that follow, we affirm.
1
I. FACTUAL AND PROCEDURAL BACKGROUND
In March 2004, a woman in Jamestown, New York, complained to
the police that she had received an internet message from someone
with the Yahoo ID “famcple,” who proceeded to show her images of
young children engaged in sexual acts. This complaint was
forwarded to the Buffalo, New York division of the Federal Bureau
of Investigation (“FBI”). The FBI sent a subpoena to Yahoo!
Incorporated (“Yahoo”) seeking information regarding the user of
Yahoo ID “famcple.” Yahoo responded with information that the
user’s login name was “stephenmee2003,” that the user’s full name
was “Mr. Rob Ram,” and that on the dates when the child
pornography was transmitted, the user had been using the IP
address 24.27.21.6.
The FBI determined that the owner of the IP address
24.27.21.6 was Time Warner Cable (“Time Warner”). After being
served with a subpoena, Time Warner informed the FBI that the IP
address in question was assigned to Javier Perez, residing at
7608 Scenic Brook Drive, Austin, Texas 78736. The FBI performed a
public records check, a utilities company check, and an internet
white pages check, all of which indicated that there was a Javier
Perez living at 7608 Scenic Brook Drive, Austin, Texas 78736.
Special Agent Robert W. Britt (“Britt”) of the FBI sought a
warrant to search that address. On June 1, 2004, a United States
Magistrate Judge issued a warrant authorizing the search of the
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“residence, business, outbuildings, and motor vehicles on the
curtilage located at: 7608 Scenic Brook Drive, Austin, TX 78736.”
On June 9, 2004, Britt and other officers executed the
search warrant. When the officers arrived at the front door of
7608 Scenic Brook Drive, they were met by Edwin Atterbury
(“Atterbury”), who explained that he was a housemate of Perez and
that a third person also resided in the house.1 Britt proceeded
with the search but confined it to Perez’s room and the common
areas of the house. After the officers searched Perez’s room, in
which they located compact discs containing child pornography,
Perez, who was present during the search, directed the officers
to storage bins in the garage, where more such compact discs were
found. In total, approximately 4000 compact discs containing
thousands of images of child pornography were seized by the
officers.
A grand jury indictment returned on July 19, 2005, charged
Perez with one count of possession of child pornography, in
violation of 18 U.S.C. § 2252(a)(4)(B). Perez moved to suppress
the evidence seized from his premises during the June 9, 2004
search. After a hearing on September 15, 2005, the district court
denied Perez’s motion. Perez then entered a conditional guilty
plea, retaining his right to appeal the district court’s ruling
1
Britt testified that he left the house before discovering
that the third housemate’s name was Robert Ramos, suspiciously
similar to the name provided by Yahoo, “Mr. Rob Ram.”
3
on his motion to suppress. On December 9, 2005, the district
court sentenced Perez to fifty-seven months in federal prison
followed by seven years of supervised release. Perez now appeals.
II. JURISDICTION
This is an appeal from a final judgment of a district court
in a criminal case. This court has jurisdiction pursuant to 28
U.S.C. § 1291.
III. ANALYSIS
A. The district court did not err in denying Perez’s motion to
suppress
1. Standard of Review
When reviewing the denial of a motion to suppress evidence,
this court reviews the district court’s factual findings for
clear error and the district court’s conclusions regarding the
sufficiency of the warrant and the constitutionality of law
enforcement action de novo. United States v. Cherna, 184 F.3d
403, 406 (5th Cir. 1999).
2. Perez’s Arguments
Perez argues that the district court should have granted his
motion to suppress the evidence seized during the search of his
premises on June 9, 2004. Perez first insists that there was
insufficient probable cause to support the issuance of a search
warrant. Perez alleges that “mere association between an IP
address and a physical address is insufficient to establish
probable cause.” Even if the initial determination that probable
4
cause existed was reasonable, however, Perez argues that “[t]he
discovery that multiple people resided at Perez’s residence
undermined the basis for the magistrate’s probable-cause
determination.” Perez argues that the officers’ discovery of
Perez’s housemates should have indicated to them that there was
no longer probable cause to believe that Perez was the source of
the unlawful transmissions. He further argues that the existence
of these two housemates was material information that the
officers had a duty to report to the issuing magistrate. Finally,
Perez argues that the good-faith exception does not apply because
the officers’ reliance on the warrant was no longer objectively
reasonable once they discovered that two other persons lived with
Perez at 7608 Scenic Brook Drive.
3. Guiding Supreme Court Precedent
Like this case, Maryland v. Garrison, 480 U.S. 79 (1987),
involved the constitutionality of a search executed pursuant to a
warrant authorizing the search of a structure that turned out to
contain more individual residences than was believed at the time
the warrant was issued. In Garrison, Baltimore police obtained a
warrant to search the “third floor apartment” of 2036 Park
Avenue. Id. at 80. When applying for the warrant and when
executing it, police reasonably believed that the third floor of
that address had only one apartment and that this apartment was
occupied by the suspect McWebb. Id. at 81. In the course of their
search, the police realized that the third floor actually
5
contained two apartments, and that they were in the process of
searching the apartment of Garrison. Id. The officers ceased
their search of Garrison’s quarters, but the contraband they had
discovered before doing so became the basis for Garrison’s
conviction. Id. at 80-81. The Supreme Court held that under the
circumstances presented, the seizure of contraband from
Garrison’s apartment did not violate the Fourth Amendment. Id. at
88.
While the instant case is not identical to Garrison in all
relevant particulars, Garrison does lay out a framework for how
the analysis of this case should proceed. There, the Supreme
Court stated that “[i]n our view, the case presents two separate
constitutional issues, one concerning the validity of the warrant
and the other concerning the reasonableness of the manner in
which it was executed.” Id. at 84. Perez’s appeal presents the
same two overarching issues.
4. Validity of Warrant to Search 7608 Scenic Brook Drive
A valid search warrant may be issued only upon a finding of
probable cause. United States v. Brown, 941 F.2d 1300, 1302 (5th
Cir. 1991). The information necessary to show probable cause must
be contained within a written affidavit given under oath. Id.
Probable cause does not require proof beyond a reasonable doubt;
a magistrate need only have a substantial basis for concluding
that a search would uncover evidence of wrongdoing. Id. A
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magistrate’s determination is entitled to deference by reviewing
courts. Id.
In this case it is clear that there was a substantial basis
to conclude that evidence of criminal activity would be found at
7608 Scenic Brook Drive. The affidavit presented to the
magistrate included the information that the child pornography
viewed by the witness in New York had been transmitted over the
IP address 24.27.21.6, and that this IP address was assigned to
Javier Perez, residing at 7608 Scenic Brook Drive, Austin, Texas
78736. Perez argues that the association of an IP address with a
physical address does not give rise to probable cause to search
that address. He argues that if he “used an unsecure wireless
connection, then neighbors would have been able to easily use
[Perez’s] internet access to make the transmissions.” But though
it was possible that the transmissions originated outside of the
residence to which the IP address was assigned, it remained
likely that the source of the transmissions was inside that
residence. See United States v. Grant, 218 F.3d 72, 73 (1st Cir.
2000) (stating that “even discounting for the possibility that an
individual other than [defendant] may have been using his
account, there was a fair probability that [defendant] was the
user and that evidence of the user’s illegal activities would be
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found in [defendant’s] home”) (emphasis in original).2
“[P]robable cause does not require proof beyond a reasonable
doubt.” Brown, 941 F.2d at 1302.
Perez also argues that evidence that illicit transmissions
were made does not give rise to probable cause that physical
evidence would be located at the residence. However, the New York
witness stated that the images she observed appeared to be videos
played on a television screen transmitted via a web cam. There
was therefore a basis to believe that the suspect would have such
videos in his residence. Moreover, Britt stated in his affidavit
that, in his experience, persons interested in child pornography
typically retain numerous images of child pornography as well as
“material documenting the arrangements, the introduction, and
tasks to consummate the acquisition of child pornography.” Based
on this information, there was probable cause to believe that
physical evidence of violations of the child pornography laws
would be located at 7608 Scenic Brook Drive.
The analysis is complicated, however, by the fact that 7608
Scenic Brook Drive has more than one occupancy unit.3 The Fourth
Amendment requires that a warrant “particularly describ[e] the
2
The evidence in Grant involved a screen name rather than an
IP address, but the principle is equally applicable to the
latter.
3
The government does not contest Perez’s claim that he and
his housemates each maintained a separate residence within 7608
Scenic Brook Drive.
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place to be searched and the persons or things to be seized.”
Multiple circuit courts have held that to satisfy the
particularity requirement when a search involves a building with
multiple, separate residency units, the warrant must specify the
precise unit that is the subject of the search. See United States
v. White, 416 F.3d 634, 637 (7th Cir. 2005). “[W]hen a building
is divided into more than one residential unit, a distinct
probable cause determination must be made for each unit.” United
States v. Butler, 71 F.3d 243, 249 (7th Cir. 1995); see also
United States v. Hinton, 219 F.2d 324, 325-26 (7th Cir. 1955)
(“For purposes of satisfying the Fourth Amendment, searching two
or more apartments in the same building is no different than
searching two or more completely separate houses. Probable cause
must be shown for searching each house or, in this case, each
apartment.”). Thus the general rule is that a warrant that
authorizes the search of an undisclosed multi-unit dwelling is
invalid. United States v. Gilman, 684 F.2d 616, 618 (9th Cir.
1982).
There are, of course, exceptions to this rule. The warrant
of a multi-unit structure will be valid where (1) there is
probable cause to search each unit;4 (2) the targets of the
4
While this has been stated by the Seventh and Ninth
Circuits as an exception, it is perhaps better understood as an
application of the general rule that probable cause must exist
for each unit of a multi-unit structure.
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investigation have access to the entire structure; or (3) the
officers reasonably believed that the premises had only a single
unit. United States v. Johnson, 26 F.3d 669, 694 (7th Cir. 1994);
Garrison, 480 U.S. at 85-86. Gilman, 684 F.2d at 618.5 In
assessing whether any of these exceptions can support the
validity of the warrant, we must look to the information in
possession of the police and magistrate at the time the warrant
was issued. Garrison, 480 U.S. at 85 (“The validity of the
warrant must be assessed on the basis of the information that the
officers disclosed, or had a duty to discover and disclose, to
the issuing Magistrate.”).
In Garrison, the Supreme Court concluded that the warrant to
search the third floor of 2036 Park Avenue was valid because the
police reasonably believed that the third floor contained only
one apartment when they applied for the warrant. Though the Court
acknowledged that “[a]rguments can certainly be made that the
police in this case should have been able to ascertain that there
was more than one apartment on the third floor of this building,”
the Court noted that the police “made specific inquiries to
determine the identity of the occupants of the third-floor
5
There is also authority for the proposition that a warrant
to search a multi-unit dwelling is valid if it specifies the name
of the occupant of the apartment against which it is directed,
despite the absence of any physical description of the particular
apartment. United States v. Bedford, 519 F.2d 650, 655 (3d Cir.
1975). In this case, however, the search warrant did not include
Perez’s name, so this exception is not applicable.
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premises,” including visiting the address and checking with the
local gas and electric company and local police department. Id.
at 86 n.10.
Though Perez contends that the police performed an
insufficient investigation into the occupancy of 7608 Scenic
Brook Drive before obtaining the warrant, the steps that the
police took in this case are similar to those taken in Garrison.
The officers performed a public records check, a utilities
company check, and an internet white pages check, all indicating
that 7608 Scenic Brook Drive was occupied by Perez and none
indicating the presence of any other residents. We therefore
conclude that the police officers reasonably believed that 7608
Scenic Brook Drive had only one resident at the time the warrant
was issued. Accordingly, the warrant in this case was valid.
5. Reasonableness of Search of 7608 Scenic Brook Drive
Garrison next counsels us to examine “whether the execution
of the warrant violated [the defendant’s] constitutional right to
be secure in his home.” 480 U.S. at 86. In that case, the Supreme
Court concluded that the police did not violate Garrison’s
rights, because as soon they “discovered that there were two
separate units on the third floor and therefore were put on
notice of the risk that they might be in a unit erroneously,”
they ceased to search that unit. Id. at 87. The Court wrote that
“[i]f the officers had known, or should have known, that the
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third floor contained two apartments before they entered the
living quarters on the third floor, they would have been
obligated to limit their search to McWebb’s apartment.” Id. at
86. In this case, the district court concluded and the government
now maintains that Garrison squarely supports the officers’
actions in executing their search of 7608 Scenic Brook Drive.
When, upon arriving at the house, the officers learned that it
contained three residences, the officers confined their search to
areas used by Perez. This, the government argues, is exactly what
Garrison prescribes.
As Perez points out, however, this case is not precisely
like Garrison. In this case, the discovery of additional
residents of 7608 Scenic Brook Drive also altered the calculation
of probable cause against Perez. The discovery of the two other
housemates should have alerted the police to the possibility that
one of the other housemates might have been using the IP address
in question at the time of the illicit transmissions. The
existence of wires traveling into each of the bedrooms added
support to that possibility. Indeed, once the officers learned of
the additional residents, the situation resembled one that
Garrison explicitly declined to address:
We expressly distinguish the facts of this case from a
situation in which the police know there are two
apartments on a certain floor of a building, and have
probable cause to believe that drugs are being sold out of
that floor, but do not know in which of the two apartments
the illegal transactions are taking place. A search
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pursuant to a warrant authorizing a search of the entire
floor under those circumstances would present quite
different issues from the ones before us in this case.
480 U.S. at 89 n.13. Here, the officers faced a situation in
which they knew that 7608 Scenic Brook Drive contained three
residences, and had probable cause to believe that unlawful
transmissions were made from one of the residences, but did not
know which residence. Garrison does not assist us in resolving
this problem.
Perez maintains that when the officers acquired information
that altered the probable cause determination, they had a duty to
present this information to the magistrate. Because they did not
do so, he claims, their search of his premises was unreasonable.
There are no Fifth Circuit decisions that directly address this
issue. Perez relies on United States v. Marin-Buitrago, 734 F.2d
889, 894 (2d Cir. 1984), where the Second Circuit declared that
“when a definite and material change has occurred in the facts
underlying the magistrate’s determination of probable cause, it
is the magistrate, not the executing officers, who must determine
whether probable cause still exists. Therefore, the magistrate
must be made aware of any material new or correcting
information.”
When this decision is read in full, however, it becomes
clear that Marin-Buitrago does not support Perez’s position that
the evidence from his residence must be suppressed. Therein, the
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Second Circuit indicated that the evidence resulting from the
search should be suppressed only when the new information brought
the level of probability below what was necessary for probable
cause. Thus the court stated that “[i]n determining on this
appeal whether the affidavit still supports a finding of probable
cause after the inclusion of [the new information], we must
assume the role of the issuing magistrate.” Id. at 895. After
concluding that “[e]ven with the supplemental information, the
affidavit clearly establishes, by a fair probability,” that the
search would produce evidence of narcotics, and that therefore
“the warrant for the search . . . was supported by probable cause
at the time it was executed,” the court upheld the district
court’s denial of the defendant’s motion to suppress. Id. at 896.
The Sixth Circuit has reached the same result through
slightly different reasoning. In United States v. Bowling, 900
F.2d 926, 933 (6th Cir. 1990), the Sixth Circuit commented that:
The Supreme Court has emphatically cautioned that in the
absence of urgent circumstances officers should not rely
on their own discretion, but should instead resort to a
neutral magistrate, to determine whether probable cause to
conduct a search exists. See Johnson v. United States, 333
U.S. 10, 14 (1948) . . . . Although Johnson’s admonition
speaks specifically to the situation in which officers
conduct a warrantless search, we think it is equally
applicable to cases in which officers possess a warrant but
are alerted to circumstances which affect the probable
cause for its execution.
Addressing the case before it, the Sixth Circuit stated that
“[b]ecause no exigent circumstances are presented by the facts of
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this case, the officers should have refrained from the second
search until a neutral magistrate determined that probable cause
continued to exist.” Id. However, the court went on to declare,
citing Franks v. Delaware, 438 U.S. 154, 171-72 (1978), that
“[n]otwithstanding the officers’ failure to [return to the
magistrate], the fruits of the second search are not to be
suppressed if this court finds that a neutral magistrate would
have determined that probable cause existed.” Id. Concluding that
a neutral magistrate apprised of the new information would still
have found that probable cause existed, the court declined to
suppress the fruits of the search. Id. at 934.
In the instant case, the new information acquired by the
police was that Perez’s house contained two other residences in
addition to his own. Because the IP address in question was
registered in Perez’s name, and because the two other individuals
living in Perez’s house maintained separate residences, there was
still a fair probability that Perez was the party responsible for
the illegal transmissions. This court has held that “the
requisite ‘fair probability’ is something more than a bare
suspicion, but need not reach the fifty percent mark.” United
States v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999) (citing
United States v. Antone, 753 F.2d 1301, 1304 (5th Cir. 1985));
see also Texas v. Brown, 460 U.S. 730, 742 (1983) (stating that
probable cause “does not demand any showing that such a belief be
correct or more likely true than false”). Accordingly, we find
15
that even in light of the new information regarding Perez’s
housemates, probable cause still existed for the search of
Perez’s premises. As a result, the district court did not err by
refusing to suppress the fruits of the officers’ search of
Perez’s premises.
B. The district court did not err in enhancing Perez’s sentence
based on his possession of images depicting prepubescent
minors and images depicting sadistic/masochistic conduct
1. Standard of Review
Perez objected at trial to the enhancement of his sentence
for possession of images depicting prepubescent children and
images depicting sadistic or masochistic conduct. The nature of
his objection was that because he had not been indicted for or
pled guilty to possessing these materials, any increase in
offense level on this basis would be a violation of his Sixth
Amendment rights. At Perez’s sentencing hearing, his lawyer
characterized these objections as “Booker objections.” On appeal,
however, Perez objects to these sentencing enhancements on the
basis that there is insufficient proof that he intended to
possess materials of this nature.
Because Perez did not argue before the district court the
specific objection that he now raises, we analyze his claim under
the plain error framework set out by the Supreme Court in United
States v. Olano, 507 U.S. 725 (1993). Under plain error review,
we may overturn a district court decision only if there is (1)
error, (2) that is plain, and (3) that affects substantial
16
rights. United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005)
(quoting United States v. Cotton, 535 U.S. 625, 631 (2002)). “If
all three conditions are met an appellate court may then exercise
its discretion to notice a forfeited error but only if (4) the
error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id.
2. Applying Plain Error Review
Relying on United States v. Kimbrough, 69 F.3d 723 (5th Cir.
1995), Perez argues that the Fifth Circuit requires that the
government prove intent to possess images depicting prepubescent
children or sadistic/masochistic conduct to obtain sentencing
enhancements under U.S.S.G. §§ 2G2.2(b)(1) and 2G2.2(b)(3).
Addressing sentencing enhancements under these provisions, the
Kimbrough court stated that “the trial court heard sufficient
evidence . . . to conclude that Kimbrough intentionally ordered
and possessed child pornography which depicted prepubescent
minors or minors under the age of 12, or, at the very least, had
reckless disregard of the age of the performers” and that “the
trial court heard sufficient evidence at trial to conclude that
Kimbrough intentionally ordered and possessed pornography which
depicted sadistic or masochistic conduct.” 69 F.3d at 734. We can
conclude from these quotations that this circuit requires a
showing of either reckless disregard or intent for sentencing
enhancements under U.S.S.G. §§ 2G2.2(b)(1) and 2G2.2(b)(3).
Perez argues that language used by the district court
17
indicated that the court “used a strict liability theory in
assessing whether the enhancement provisions applied to Perez.”
The language used by the district court in discussing these
enhancements at Perez’s sentencing hearing is ambiguous. But even
if the district court did commit error, this error did not affect
Perez’s substantial rights, for there is sufficient evidence to
support the enhancements under the correct standard.
Perez admitted that he possessed and “collected” child
pornography. He was able to direct the officers searching his
home to compact discs that contained child pornography. At least
one such compact disc had file folders labeled “kiddie porn.” The
Attorney General’s office reviewed only a portion of the
approximately 4000 compact discs seized from Perez, and still
found an estimated 2500 images of child pornography. Numerous of
these images involved either prepubescent children or
sadistic/masochistic conduct. While Perez claims that he did not
look at most of the child pornography files he downloaded, he
admits having seen some of them. Moreover, the downloaded files
often had file names that summarized their images, implying that
Perez could have been aware of the contents even without viewing
each image. Accordingly, there is sufficient evidence in the
record to demonstrate that Perez either intended to possess
prepubescent and sadistic/masochistic images or had reckless
disregard for his possession of them. We therefore affirm the
district court’s enhancement of Perez’s sentence.
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IV. CONCLUSION
For the reasons stated above, we affirm Perez’s conviction
and sentence.
AFFIRMED.
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