In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3134
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ICHELE C LARK ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 10-CR-30221—G. Patrick Murphy, Judge.
A RGUED JANUARY 9, 2012—D ECIDED F EBRUARY 13, 2012
Before F LAUM and K ANNE, Circuit Judges, and C HANG ,
District Judge.
F LAUM, Circuit Judge. Michele Clark (“Clark”) pled
guilty to possession of child pornography, 18 U.S.C.
§ 2252(a)(4)(B), contingent upon his right to appeal
the district court’s denial of his motion to suppress the
The Honorable Edmond Chang, United States District Court
for the Northern District of Illinois, sitting by designation.
2 No. 11-3134
images underlying the charges. He now exercises that
right.
We affirm the judgment of the district court.
I. Background
A. Factual Background
1. Previous FBI Inquiries into Child Pornography
and the Sexual Assault of a Minor Child at the
Torch Club Road Address
From at least October 2008 until July 2009, Michele Clark
lived with his brother and sister-in-law, Matthew and
Danielle Clark, at their home at 3952 Torch Club Road
in Alton, Illinois. Matthew and Danielle Clark asked
him to leave in July 2009, taking issue with his drinking
habits and frequent viewing of pornography on the
computer.
During the time period in which Michele Clark resided
with his brother and sister-in-law, the FBI observed that
child pornography was being distributed on LimeWire,
via an IP address associated with the Clarks’ home. The
IP address was formally registered to Matthew Clark.
The FBI opened an investigation to uncover the source
and customers of the child pornography, at which time
an undercover agent downloaded seventeen files of
suspected child pornography. It is not clear from the
record what, if anything, came of that investigation.
In April 2010, Michele Clark resided at 3022 Glenwood
Avenue in Alton, Illinois. One evening, Danielle Clark
No. 11-3134 3
went out, leaving her four-year-old daughter and ex-
husband at home.1 She locked the doors as she left. Both
Matthew Clark and his daughter were asleep when she
departed, and her daughter was wearing pajamas. After
she left her residence, she received a text message from
Michele Clark asking if she was at home and if he
could come over. She replied “no.”
When she returned home at 1:45 AM, Danielle Clark
found Michele Clark in her home. Her daughter was
no longer wearing any pajamas and was in only her
underwear. She overheard Michele Clark tell her daugh-
ter to keep quiet and go to sleep and that he would
return to buy her a bird. After he departed, Danielle
Clark asked her daughter how Michele Clark entered
the house. She answered that he came in through the
kitchen window. Danielle Clark then called the police,
at which time Detective David Vucich of the Madison
County Sheriff’s Office initiated an investigation into
Michele Clark’s possible sexual assault of a minor child.
Police found a plastic bucket placed below the kitchen
window, and the screen to the window was pushed up.
Danielle Clark stated that the bucket was not there
when she left her home earlier that evening. While
a deputy was still at the scene, Michele Clark sent his
sister-in-law a second text message, stating, “I’m sorry
about everything. I won’t bother you or her ever again.”
The deputy photographed both text messages from
Michele Clark to Danielle Clark as evidence.
1
Matthew and Danielle Clark continued to live together.
4 No. 11-3134
The child told Vucich that her uncle woke her up, took
off her pajamas, and rubbed her body, including her
breasts, buttocks, and genitalia. She stated that she
had seen and touched his penis, as well as helped him
“go pee pee.”
In an interview with the Child Advocacy Center three
days later, she stated that her uncle had touched an-
other boy’s penis, whom was later identified as the nine-
year-old son of Danielle Clark’s friend, Tonya. The
boy visited the Clarks’ home every other week during the
time period in which Michele Clark lived there, and
there were times that the boy was left alone with him.
In the course of his investigation, Danielle Clark volun-
teered to Vucich that, from April 2008 to April 2009,
Michele Clark babysat her friend Tara’s six-year-old
daughter. When interviewed, Tara informed Vucich
that, in December 2009, her daughter began exhibiting
disorderly behavior at school. When she questioned her
daughter about her behavior, the child told her that
Michele Clark made her watch pornography on the
computer and, on one occasion, asked her to take her
clothes off, which she refused to do. Her daughter
also stated that she knew about sex because of what
Michele Clark showed her on his computer.
Vucich arrested Michele Clark on an outstanding
warrant for a DUI. While in custody, he offered a state-
ment to police. He first explained that he went to the
Clarks’ residence through an unlocked door, but later
stated that he entered through a window. He told the
police that he found his niece with her clothes off, but
No. 11-3134 5
later stated that she had them on and then took them
off because she was itchy. He confirmed sending the
second text message to his sister-in-law from his home
via Yahoo instant messaging, and he confirmed his
address as 3022 Glenwood Avenue. He also confirmed
that he used LimeWire to download music, and he
verified that he owned three computers, including a
work laptop.
On April 26, 2010, Vucich swore out an affidavit to
procure a warrant to search for evidence of aggravated
criminal sexual assault and child pornography at
Michele Clark’s home at 3022 Glenwood Avenue; any
computer equipment located at that address; and his
laptop computer, which had been seized from his work-
place.
2. Vucich’s Affidavit and the State-Law Warrant
In his affidavit, Vucich provided details on his experi-
ence and background with law enforcement, including
his participation on an FBI task force, his training on
computer crimes, and his membership in multiple law
enforcement groups. He explicitly states that he bases
his affidavit on his training and experience, his investi-
gation into Clark’s alleged sexual assault on his niece,
and information acquired by other investigators and
persons specifically trained in the seizure and analysis
of computers and electronic media.
In addition to the facts detailed in Part I.A.1, his af-
fidavit contained general language about individuals
associated with child pornography. Specifically, he stated:
6 No. 11-3134
Based on my training, knowledge, and experience,
I am aware that individuals who are often associated
with the offenses alleged relating to sex offenses
involving minors will often collect and/or view
images on the computer for the following reasons:
(a) They will receive sexual gratification, stimulation,
and satisfaction from actual physical contact with
children and/or from fantasies they may have
viewing children engaged in sexual activity or
sexually suggestive poses (in person, in photographs,
or other visual media) or from literature describing
such activity.
(b) Collect sexually explicit or suggestive materials
(hard-core[] and soft-core pornography, whether of
adults and/or children) in a variety of media . . . that
they use for their own sexual arousal and/or gratifica-
tion.
(c) Almost always possess and maintain their
material . . . in the privacy and security of their homes
or some other secure location. Child pornography
distributors/collectors typically retain recordings,
mailing[] lists, child erotica, and videotapes for many
years, and store their child pornography amongst
other, otherwise legal media or files. . . . [D]igital
evidence, like child pornography contraband, is
different than traditional evidence that can be con-
cealed, sold, used, and/or destroyed and is not as
volatile as other illegal items like narcotics. . . . When
images are stored and/or deleted . . . they can poten-
tially be recovered and may still reside on the digital
No. 11-3134 7
media . . . . I have also learned that . . . these
computer files or remnants of such files can be recov-
ered months or even years after they have been down-
loaded onto a hard drive, deleted or viewed via
the internet . . . .
The warrant was granted. It authorized police to
search Clark’s Glenwood Avenue address and to seize
any items that constituted evidence of aggravated
criminal sexual abuse and child pornography. The
warrant encompassed, among other items, Clark’s Dell
Inspiron laptop; any equipment that could collect, ana-
lyze, create, display, store, conceal, print, or transmit
electronic, magnetic, optical, or similar computer
impulses or data; any data-processing devices such as
central processing units, memory typewriters, and self-
contained laptop or “notebook” computers; printers,
scanners, modems, and internal and peripheral storage
devices; cellular telephones; photographs; and biological
evidence.
The search ensued on April 26, 2010. Police seized
two computers, DVDs, CDs, two hard drives, and the
Dell Inspiron laptop, which was kept at Clark’s place
of employment.
3. Vucich’s Second Affidavit and the Federal Warrant
Vucich then swore out an affidavit to procure a
second, federal search warrant that would authorize
him to search the computers and hard drives seized.
He added to his affidavit the following facts: (1) that
8 No. 11-3134
Danielle and Matthew Clark stated that Michele Clark
installed LimeWire on their computer and was the only
individual in their home to use that program; and
(2) that Michele Clark had given to his stepfather a dif-
ferent computer that he had used while living with
them. The federal warrant was granted. Police analyzed
the computer and hard drives and recovered incrim-
inating evidence of child pornography.
B. Procedural Background
Michele Clark requested a Franks hearing to contest
the veracity of Vucich’s affidavits. See Franks v. Delaware,
438 U.S. 154, 155-56 (1978).2 Claiming that Vucich omitted
material information from his affidavits, he moved to
suppress the evidence recovered from his computer and
hard drives because police lacked probable cause to
search for child pornography. In particular, he argued
that Vucich improperly connected his alleged sexual
2
Under Franks, “if a defendant can demonstrate by a prepon-
derance of the evidence that the signatory of the warrant
affidavit made a false statement (or omitted a material fact)
either intentionally or with reckless disregard for the truth,
then a court will consider whether the content of the affidavit,
setting aside the false material (or including the omitted
material), is sufficient to establish probable cause.” United
States v. Prideaux-Wentz, 543 F.3d 954, 962 (7th Cir. 2008) (citing
United States v. Merritt, 361 F.3d 1005, 1010 (7th Cir. 2004)
(vacated on other grounds by Merritt v. United States, 543
U.S. 1099 (2005))).
No. 11-3134 9
assault on his niece to possession of child pornography
through boilerplate language, lacking any specific basis
for suspecting him of possession. He also claimed that
the alleged sexual assault of his niece provided an insuf-
ficient nexus between his brother’s home and his
address to authorize the police to search the latter.
The district court granted his request for a Franks
hearing and found no material omissions. It further
held that, read including the allegedly omitted informa-
tion, Vucich’s affidavits fostered probable cause to
search for evidence that Michele Clark committed sexual
assault on a minor child or possessed child pornography,
including at his residence. The district court, therefore,
denied Michele Clark’s motion to suppress.
Michele Clark entered a contingent guilty plea to pos-
session of child pornography, reserving his right to
appeal the district court’s denial of his motion to sup-
press. He now appeals.
II. Discussion
When evaluating a district court’s denial of a motion
to suppress, we review issues of law de novo and issues
of fact for clear error. United States v. Whited, 539 F.3d
693, 697 (7th Cir. 2008).
We review de novo the sufficiency of an affidavit in
support of a warrant to search. United States v. Aljabari,
626 F.3d 940, 944 (7th Cir. 2010). Probable cause to issue
a warrant and authorize a search exists if the affidavit
“sets forth sufficient evidence to induce a reasonably
10 No. 11-3134
prudent person to believe that a search will uncover
evidence of a crime.” United States v. Watzman, 486 F.3d
1004, 1007 (7th Cir. 2007); see Ornelas v. United States,
517 U.S. 690, 696 (1996). We evaluate probable cause
based on the totality of the circumstances, see Illinois v.
Gates, 462 U.S. 213, 230-32 (1983), but we afford special
deference to the decisions of the judge issuing the
warrant, see Aljabari, 626 F.3d at 944.
Michele Clark disputes that probable cause existed
to search his home and personal computers on two
grounds. First, he contends that his alleged sexual
assault of his niece did not support probable cause that
he possessed child pornography. Second, he argues
that whatever probable cause existed, it justified only
a search of his brother’s home, not his personal residence.
We disagree.
A. The Evidence that Michele Clark Sexually
Assaulted His Niece Created Probable Cause to
Search for Child Pornography
Michele Clark challenges Vucich’s affidavits on the
ground that they contain boilerplate language about the
correlation between sex offenses involving minors and
the perpetrator’s possession of child pornography. He
claims that the affidavits contain no credible, particular-
ized evidence that he possessed child pornography.
Boilerplate language about the tendencies of child
pornography collectors supports probable cause for a
search when the affidavit also includes facts that
No. 11-3134 11
suggest the target of the search “has the characteristics
of a prototypical child pornography collector.” United
States v. Prideaux-Wentz, 543 F.3d 954, 960 (7th Cir. 2008).
We recognize that no one or “magic” profile for child
pornography collectors exists. See United States v. Pappas,
592 F.3d 799, 803-04 (7th Cir. 2010). Rather, the target
of the search’s demonstrable sexual interest in children,
along with the use of a computer in acting on that
interest, sufficiently connects him to the “collector”
profile to justify including the boilerplate language. See
id. (approving the inclusion of boilerplate language on
the habits of child pornography collectors where the
affidavit also detailed the target’s uploading or posses-
sion of multiple pieces of child pornography).
In his affidavit, Vucich did not provide an example
of Michele Clark downloading child pornography; how-
ever, he did not need to do so in order to establish
Clark’s sexual interest in children and connect him
to the “collector” profile. Vucich’s state-law affidavit
extensively described Clark’s sexual assault on his four-
year-old niece. It further detailed his sexual advances on
a nine-year-old boy and another six-year-old girl. In
short, the affidavit documents Michele Clark’s particular,
sexual attraction to children and his willingness to act
on his proclivities. The affidavit thus places him at the
heart of the boilerplate language to which he objects: as
an individual associated with sex offenses involving
minors, he likely “collect[ed] and/or view[ed] images
on the computer.” See supra Part I.A.2.
Moreover, Vucich’s affidavit provided evidence that
Clark used a computer—a probable repository for child
12 No. 11-3134
pornography—as part of his advances. These details, too,
provided probable cause to connect Clark to the “col-
lector” profile and to conduct an appurtenant search.
Specifically, Clark watched pornography on his com-
puter while concurrently asking a six-year-old girl to
take her clothes off. Facially, the affidavit provides proba-
ble cause to search.
1. Details in the Affidavit Challenged as False
or Improperly Included
i. Six-Year-Old Girl’s Account of Her Interactions
with Clark
Clark protests that the six-year-old girl’s testimony
and the FBI investigation ought to have been excluded
from the issuing judge and the district court’s consider-
ation of probable cause. With respect to the six-year-
old girl’s accusations, Clark contends that Vucich reck-
lessly and falsely construed her account of the events
in his affidavit. During the suppression hearing, he
claims, Vucich testified that the child stated only that
she had seen pornographic images on Clark’s computer,
not that he had deliberately shown the images to
her. He underscores this distinction as subverting the
affidavit’s veracity and the resultant probable cause to
search.
The affiant’s credibility is an issue of fact on which
we afford special deference to the district court. See, e.g.,
United States v. Adamson, 441 F.3d 513, 519 (7th Cir. 2006)
(“Credibility determinations are factual in nature and
No. 11-3134 13
therefore are reviewed for clear error.”). In this case,
the district court considered the affidavit and had the
opportunity to directly consider Vucich’s testimony
during direct and cross-examination. The district court
concluded that his testimony was truthful such that
probable cause to search existed and suppression
was improper. We find no clear error in that judgment,
particularly in light of the fact that, on cross-examina-
tion, Vucich never revised his testimony that Clark
had asked the child to take her clothes off while
he watched pornography with her nearby. Whether he
was watching child pornography at the time is irrele-
vant, as is whether or not he intentionally showed
the child the images: regardless of these distinguishable
facts, he used a computer in conjunction with his at-
tempt to fulfill a sexual fantasy with a minor child.
ii. The FBI Investigation in 2008
Clark further argues that the information regarding
the FBI’s investigation into child pornography distribu-
tion at 3952 Torch Club Road must be excluded as spec-
ulative because Vucich never specifically described
the seventeen images that prompted that investiga-
tion. Without doing so, he asserts, the issuing court
could not rely upon the fact that those images were child
pornography when assessing probable cause.
We agree that, to the extent it factored into the issuing
judge and district court’s evaluation of probable cause,
the FBI investigation was improperly included. Vucich
cites the fact of a previous FBI investigation as circum-
14 No. 11-3134
stantial evidence that Clark fits the “collector” profile:
the FBI suspected someone at 3952 Torch Club Road
of distributing child pornography over LimeWire in
October 2008; Michele Clark resided at that address
during that time period; and, coupled with the other
evidence in the affidavit, there presently exists reason
to suspect that Clark (1) was responsible for the child
pornography distribution at the time; and (2) continues
to collect such images. While circumstantial evidence
may be included in an affidavit to support probable
cause, see, e.g., United States v. Curry, 538 F.3d 718, 730
(7th Cir. 2008) (approving in an affidavit the inclusion
of circumstantial evidence that the defendant per-
petrated the crime under investigation), the fact of an
FBI investigation alone is probative of nothing. To prove
relevant to the search at issue, the FBI investigation
must have uncovered child pornography or the use of
LimeWire to distribute child pornography, an outcome
which cannot be assumed and which requires either
submission of the images themselves or a detailed de-
scription of them. See United States v. Lowe, 516 F.3d
580, 586 (7th Cir. 2008) (explaining that probable cause
to search for child pornography may, in lieu of the
actual images, be based on a detailed verbal description
of them, but implying that one or the other is required).
Absent the pictures or a detailed description, the FBI
investigation could not properly factor into the issuing
judge or district court’s probable cause assessment.
Nevertheless, we hold that without the details of the
FBI investigation, the evidence that Clark sexually as-
saulted his niece, sexually advanced upon two other
No. 11-3134 15
children, and employed a computer in at least one of
his inappropriate advances constitutes sufficiently par-
ticularized facts to characterized him as a member of
the “collector” class. Accordingly, Vucich appropriately
included in his affidavit the boilerplate language on
this class of individuals, and the issuing judge and
district court were permitted to consider that correla-
tive information when evaluating the probable cause to
conduct a search for the possession of child pornography.
In light of the totality of the circumstances, we hold
that probable cause to search for child pornography
existed.
2. Alternatively, the Good Faith Exception to the
Exclusionary Rule Applies in This Case
Assuming arguendo that probable cause did not exist
without including the FBI’s 2008 investigation, we con-
clude that the good faith exception to the Exclusionary
Rule applies to the search, and the district court
properly admitted the evidence. See United States v.
Leon, 468 U.S. 897, 922-23 (1984) (holding that evidence
obtained in violation of the Fourth Amendment
remains admissible if the officer conducting the search
acted in good faith reliance on a search warrant). The
Supreme Court instructs us that “evidence should be
suppressed ‘only if it can be said that the law enforce-
ment officer had knowledge, or may be properly
charged with knowledge, that the search was uncon-
stitutional under the Fourth Amendment.’ ” Herring
v. United States, 129 S. Ct. 695, 701-02 (2009) (quoting
16 No. 11-3134
Illinois v. Krull, 480 U.S. 340, 348-49 (1987)). When, con-
versely, the challenged search or seizure is the result of
“objectively reasonable law enforcement activity,” Leon,
468 U.S. at 897-99, the good faith exception applies.
The fact that an officer obtains a warrant, as Vucich did
in this case, creates a presumption that he conducted
the search or seizure with an objectively reasonable
belief that his actions were lawful. See Pappas, 592 F.3d
at 802 (quoting United States v. Elst, 579 F.3d 740, 744
(7th Cir. 2009)). To rebut this presumption, Clark must
prove: “(1) the issuing judge wholly abandoned his
judicial role and failed to perform his neutral and
detached function, serving merely as a rubber stamp
for the police; (2) the affidavit supporting the warrant
was so lacking in indicia of probable cause as to
render official belief in its existence entirely unrea-
sonable; or (3) the issuing judge was misled by informa-
tion in an affidavit that the affiant knew was false or
would have known was false except for his reckless
disregard of the truth.” Id. Clark attempts to prove the
second and third options—that Vucich’s affidavit
lacked indicia of probable cause because he did not
include a description of the seventeen images under-
lying the FBI investigation and that he misled the
issuing judge by omitting from his affidavit allegedly
material facts.
As discussed above, we agree that the absence of a
description of the seventeen images uncovered in 2008
rendered insufficient the FBI’s 2008 investigation as a
basis for probable cause to search for child pornography.
No. 11-3134 17
The investigation, however, was hardly the affidavit’s
only indicium of probable cause. Vucich’s description
of Clark’s sexual assault on his niece, as well as the evi-
dence suggesting he sexually assaulted another nine-
year-old boy and advanced on a six-year-old girl situated
him within the “collector” profile and created probable
cause to search for evidence of child pornography.
The issuing judge’s reliance on the affidavit and the
conducting officer’s reliance on the warrant were far
from entirely unreasonable. As such, Clark does not
rebut the presumption of good faith reliance on this
ground.
Furthermore, we find no evidence that Vucich misled
the issuing judge either by recklessly omitting material
information about the six-year-old’s account of her inter-
actions with Clark or by omitting the fact that Matthew
Clark was the registrant of the computer in his home.
Whether Michele Clark was watching pornography
or child pornography when he asked the six-year-old
child to remove her clothing is immaterial, as is whether
he made her watch the pornography or simply watched
it with her nearby. Omission of these facts did not
mislead the issuing judge or deprive him of his ability
to render a fair assessment. That Clark watched any
form of pornography while asking a child to remove
her clothing provides a sufficient basis to find probable
cause to search for child pornography.
We similarly find immaterial the alleged omission
regarding the registrant of the IP address at the Torch
Club Road residence. Setting aside our conclusion that
18 No. 11-3134
the FBI investigation ought not to have factored into the
issuing judge’s analysis without a description of the
seventeen images, the fact that Matthew Clark or Danielle
Clark might, too, be the owner or registrant of a computer
and IP address in their home is obvious. Omitting
that detail—if one may call failure to point out the
obvious an “omission”—did not mislead the issuing
judge or deny him access to material information.
Had Vucich provided descriptions of the images and
properly included the FBI investigation, the fact that
child pornography had been distributed on that
computer in the Clarks’ home while Michele Clark
resided there would serve as adequate circumstantial
evidence that the issuing judge could consider as he
evaluated probable cause to search for child pornography.
Clark, therefore, has not rebutted the presumption that
the searching officers acted in objectively reasonable
reliance on the issued warrant. The good faith excep-
tion applies to the search, and the district judge appro-
priately admitted the evidence in question.
B. Sufficient Probable Cause Existed to Search Michele
Clark’s Home and Personal Computers
Clark maintains that even if probable cause to search
for child pornography existed, Vucich’s affidavits failed
to establish a sufficient nexus between his brother’s
home and his own to justify a search of his residence.
In particular, he stresses that whatever assault occurred,
it transpired in his brother’s home. Moreover, he em-
phasizes, police could not reasonably have expected to
No. 11-3134 19
retrieve from his home computer the alleged “apology
text” he sent via Yahoo instant messaging. We disagree.
In light of our conclusion that probable cause existed
to search for evidence that Michele Clark collected
child pornography, all that was required to authorize
a search of his personal residence were facts that
“allow[ed] for a reasonable inference that there [wa]s a
fair probability that evidence w[ould] be found in a
particular place.” See Aljabari, 626 F.3d at 944-45. We
have held that in child pornography cases, an issuing
judge may reasonably assume that a recipient or
collector of child pornography would store that content
in his home. See id. (citing Watzman, 486 F.3d at 1008).
That analysis controls in this case as well: once
probable cause existed to characterize Clark as a
collector of child pornography, probable cause existed to
extend the search to his home and personal computers.
III. Conclusion
For the foregoing reasons, we A FFIRM the judgment of
the district court.
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