FILED
United States Court of Appeals
Tenth Circuit
March 11, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 06-3336
STEVEN C. PERRINE,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 05-CR-10254-01-MLB)
Kristen B. Patty, Wichita, Kansas (Philip R. White, Ariagno, Kerns, Mank &
White, LLC, Wichita, Kansas, with her on the brief) for Defendant - Appellant.
Brent I. Anderson, Assistant United States Attorney, Wichita, Kansas (Eric F.
Melgren, United States Attorney, Wichita, Kansas, with him on the brief) for
Plaintiff - Appellee.
Before TACHA, ANDERSON, and GORSUCH, Circuit Judges.
ANDERSON, Circuit Judge.
Defendant and appellant Steven C. Perrine appeals the denial of his motion
to suppress evidence following his conviction by a jury on three counts relating to
the distribution, receipt and/or possession of child pornography, one count of
possession of a firearm by a convicted felon, and two counts of criminal
forfeiture. He also appeals the denial of his motion to dismiss the case against
him, on the ground that governmental authorities engaged in outrageous conduct.
We affirm.
BACKGROUND
On September 2, 2005, James Vanlandingham reported to local police that,
while in a Yahoo! chat room and while using the screen name “dana_hotlips05,”
he began chatting with a person with the screen name “stevedragonslayer.”
“stevedragonslayer” invited Vanlandingham/“dana_hotlips05” to watch a web
cam video depicting two nude six-to-nine-year-old girls. While waiting for the
police to arrive, Vanlandingham stayed on the line with “stevedragonslayer” and
continued to chat. Vanlandingham asked if “stevedragonslayer” had any more
videos, to which “stevedragonslayer” replied he did not know what might offend
“dana_hotlips05.” After Vanlandingham informed “stevedragonslayer” that he
liked “the young hard stuff,” “stevedragonslayer” played several videos depicting
young girls in various explicit sexual acts.
“stevedragonslayer” stopped sending video clips to “dana_hotlips05” prior
to the arrival of police officers at Vanlandingham’s house, but Vanlandingham
was able to preserve a copy of the chat room conversation. One of the
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Pennsylvania law enforcement authorities interviewed Vanlandingham and viewed
the saved chat room conversation.
Based upon Vanlandingham’s account of these events, Pennsylvania law
enforcement personnel obtained a disclosure order dated October 14, 2005,
pursuant to 18 U.S.C. § 2703(d) and 18 Pa. C.S.A. § 5743(d), 1 directing Yahoo!
to provide the subscriber information for the screen name “stevedragonslayer.”
Yahoo!’s records indicated that “stevedragonslayer” logged on to the Yahoo!
website from the IP address 68.103.177.146 on October 9, 2005, October 22,
2005, October 29, 2005, October 30, 2005, November 1, 2005, and November 6,
2005. 2
Further investigation revealed that this IP address was maintained by Cox
Communications, Inc. Pennsylvania authorities obtained another disclosure order
requiring Cox to provide the subscriber information for that IP address. Cox
reported that the Yahoo! logins from this particular IP address at the times
reported by Yahoo! were associated with an account belonging to Steve Perrine,
11944 Rolling Hills Court, Wichita, Kansas.
1
As discussed more fully below, 18 U.S.C. § 2703(d) is part of the
Electronic Communications Privacy Act (“ECPA”), which regulates the disclosure
of electronic communications and subscriber information. 18 Pa. C.S.A.
§ 5743(d) is the Pennsylvania state law similar to the ECPA.
2
“The IP, or Internet Protocol, address is unique to a specific computer.
Only one computer would be assigned a particular IP address.” United States v.
Kennedy, 81 F. Supp. 2d 1103, 1105 n.3 (D. Kan. 2000).
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Pennsylvania authorities then contacted Kansas authorities, who discovered
that Steve Perrine had a prior state conviction for sexual exploitation of a child,
for which he was still on probation. Wichita police obtained a search warrant for
Perrine’s house, which was executed on December 22, 2005. In addition to
seizing Perrine’s computer, the police also found firearms and drug paraphernalia.
They accordingly amended the search warrant to authorize seizure of those items
as well. A forensic examination of Perrine’s computer revealed thousands of
images of child pornography.
On February 7, 2006, Perrine was charged in a superceding indictment with
one count of distributing child pornography, in violation of 18 U.S.C.
§ 2252(a)(2); one count of receiving child pornography, in violation of 18 U.S.C.
§ 2252(a)(2); one count of possessing child pornography, in violation of 18
U.S.C. § 2252(a)(4)(B); one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and two counts of forfeiture.
Among other motions, Perrine filed a motion to suppress and a motion to dismiss
based upon outrageous government conduct.
The district court held a motions hearing, at which Perrine testified that he
was “stevedragonslayer.” Perrine further testified that he had enabled peer-to-
peer file sharing on his computer, thereby giving anyone with internet access and
certain software the ability to gain entrance to certain files on his computer.
After subsequent briefing, the district court denied Perrine’s motions.
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The case proceeded to a jury trial. A Wichita Police Department Computer
Forensics detective, Detective Stone, testified that he found in excess of 16,000
images of child pornography on Perrine’s computer. Detective Stone also found
Kazaa, a peer-to-peer file sharing program, installed on Perrine’s computer.
Stone further testified that Kazaa is a program which allows individual users like
Perrine to identify folders that are available to share with others, search other
computers with Kazaa for specific topics, and download files from other
computers, while allowing other computers to download files from Perrine’s
computer. 3
3
Another court has recently described Kazaa as follows:
Kazaa is a computer program that connects a computer to other
computers on which the Kazaa program is also running. Kazaa’s
purpose is to allow users to download each other’s shared files. The
Kazaa program allows the user to designate which folders–and
therefore which files–on his computer are shared with other Kazaa
users. Each shared file has several descriptive fields that are
viewable by other Kazaa users. These fields generally describe the
file’s contents and can be edited by a file’s possessor. Kazaa makes
each user’s shared files discoverable to other users by allowing any
user to perform a keyword search of the descriptive fields of all
shared files. Files with descriptive fields containing the search term
are listed for the searcher, who can then see all the descriptive fields
for each file on the list. Based on these descriptions, the searcher
decides which of the available files to download onto his computer.
The searcher is likewise free to refrain from downloading a file in
which, based on its descriptive fields, the searcher is uninterested.
United States v. Sewell, 513 F.3d 820, 821 (8th Cir. 2008). See also United
States v. Shaffer, 472 F.3d 1219, 1220-22 (10th Cir. 2007) (describing more fully
how Kazaa operates).
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Additionally, Annie Cheung, the senior compliance paralegal at Yahoo!,
testified that Yahoo! tracks dates, times, and IP addresses for log-in attempts on a
Yahoo! account and maintains that information for approximately thirty days.
She further testified that Yahoo! records showed that the IP addresses
68.103.177.226 and 68.103.177.146 belonged to “stevedragonslayer.”
Perla Rodriguez, the Cox Communications Customer Escalations
Coordinator, testified that residential account IP addresses can change because
they are leased for twenty-four hours at a time. Cox Communications residential
account IP addresses release and renew every twenty-four hours; when an IP
address releases, if the same IP address is available, it reattaches within a few
seconds. Rodriguez further testified that only one IP address is assigned to a user
at a time and that it is the customer’s address on the internet when he or she is
online. She stated that the IP address 68.103.177.146 was used by Perrine.
Perrine was convicted on all counts.
Perrine thereafter filed a motion for a new trial, a motion for a judgment of
acquittal, and a motion for arrest of judgment. After denying the motions, the
district court sentenced Perrine to 235 months’ imprisonment, to be followed by
supervised release for life. Perrine appeals, arguing (1) the district court erred in
failing to suppress evidence obtained against him in violation of the Fourth
Amendment and/or 18 U.S.C. § 2703(d) and 18 Pa. C.S.A. § 5743(d); and (2) the
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district court erred in failing to dismiss the case against Perrine due to outrageous
government conduct.
DISCUSSION
Perrine appeals the denial of his motion to suppress. “When reviewing a
district court’s denial of a motion to suppress, we review the district court’s
factual findings for clear error and consider the evidence in the light most
favorable to the Government.” United States v. Zamudio-Carrillo, 499 F.3d 1206,
1209 (10th Cir. 2007). Further, “[d]eterminations relating to the sufficiency of a
search warrant and the applicability of the good-faith exception are conclusions of
law, . . . which this court reviews de novo.” United States v. Danhauer, 229 F.3d
1002, 1005 (10th Cir. 2000). Finally, while we review the district court’s ruling
on the sufficiency of a search warrant de novo, we do not review de novo the
determination of probable cause by the issuing judge or magistrate. Rather, a
state judge’s “decision to issue a warrant is entitled to great deference,” and we
“need only ask whether, under the totality of the circumstances presented in the
affidavit, the [state] judge had a ‘substantial basis’ for determining that probable
cause existed.” United States v. Artez, 389 F.3d 1106, 1111 (10th Cir. 2004)
(further quotations and citations omitted).
We first consider Perrine’s argument that evidence was seized in violation
of the ECPA and its state law equivalent, as well as the Fourth Amendment.
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I. ECPA/State Law and Fourth Amendment
Perrine argues that compliance with 18 U.S.C. § 2703(d) and 18 Pa. C.S.A.
§ 5743(d) is “akin to a Terry stop within the scope of the Fourth Amendment and
suppression is available to remedy violations.” Appellant’s Br. at 7. Section
2703 is the core provision of the ECPA, and it authorizes the government to
require disclosure of stored communications and transaction records by third-
party service providers. Under 18 U.S.C. § 2703(c)(2), “[a] provider of electronic
communication service or remote computing service shall disclose to a
governmental entity the . . . name; . . . address; . . . telephone or instrument
number or other subscriber number or identity, including any temporarily
assigned network address . . . of a subscriber to or customer of such service . . . .”
18 U.S.C. § 2703(c)(2). Section 2703(d) specifies that “[a] court order for
disclosure under subsection . . . (c) . . . shall issue only if the governmental entity
offers specific and articulable facts showing that there are reasonable grounds to
believe that the . . . records or other information sought[] are relevant and
material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). 4
Perrine argues that suppression, an appropriate remedy for an
impermissible Terry stop, 5 is an available remedy for a violation of the ECPA.
4
18 Pa. C.S.A. § 5743 provides for comparable disclosure and has virtually
identical requirements for the court order.
5
Under Terry v. Ohio, 392 U.S. 1 (1968), investigatory stops are permitted
(continued...)
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However, section 2708 of the ECPA specifically states that “[t]he remedies and
sanctions described in this chapter are the only judicial remedies and sanctions for
nonconstitutional violations of this chapter.” 18 U.S.C. § 2708. Section 2707, in
turn, describes remedies for violations of the Act as including civil actions for
violators other than the United States and administrative discipline against federal
employees in certain circumstances. 18 U.S.C. § 2707. Thus, violations of the
ECPA do not warrant exclusion of evidence. See United States v. Steiger, 318
F.3d 1039, 1049 (11th Cir. 2003); United States v. Smith, 155 F.3d 1051, 1056
(9th Cir. 1998); Bansal v. Russ, 513 F. Supp. 2d 264, 282-83 (E.D. Pa. 2007);
United States v. Sherr, 400 F. Supp. 2d 843, 848 (D. Md. 2005); United States v.
Kennedy, 81 F. Supp. 2d 1103, 1110 (D. Kan. 2000). 6
Perrine next argues that, in any event, the government violated the ECPA
and the Pennsylvania law by failing to present “specific and articulable” facts in
support of its applications for court orders requiring Yahoo! and Cox to reveal
Perrine’s IP address and name, and that the government therefore used illegally
obtained information in support of its search warrants. We disagree. As Perrine
5
(...continued)
if “supported by a reasonable suspicion of criminal activity.” United States v.
Treto-Haro, 287 F.3d 1000, 1004 (10th Cir. 2002).
6
The Pennsylvania statute at issue similarly provides exclusively civil
remedies for violations of the act. See 18 Pa. C.S.A. §§ 5747, 5748.
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notes, the “specific and articulable facts” standard derives from the Supreme
Court’s decision in Terry. Thus, we are familiar with the standard imposed.
Perrine argues the government’s affidavit in support of its application for
an order failed to provide specific and articulable facts because it did not attach a
copy of the “chat” between “stevedragonslayer” and Vanlandingham; it did not
contain anything specifically indicating that Vanlandingham was a truthful and
reliable person; and it failed to show that “stevedragonslayer” was logged on to
Yahoo! on the date of the crime, September 2, 2005, at 2 p.m. The affidavit
attached to the October 14, 2005, application for a disclosure order for Yahoo!
stated as follows:
Officer Humbert received information from Leetsdale Police Officer
Wayne Drish indicating that a resident of his jurisdiction had
received what appeared to be child pornography via his computer
while in a Yahoo! Inc messaging chat room.
Officer Humbert interviewed the resident, James Vanlandingham,
and learned that he was logged into Yahoo Messaging Chat on
September 2, 2005 at approximately 2:00 PM EDT. He received a
message from an individual logged in Yahoo Messaging Chat as
“stevedragonslayer.” This individual invited James Vanlandingham
to view his web cam. When James Vanlandingham viewed the cam
he was presented with images of a young female he describes as
between 6 and 9 years of age performing oral sex on an adult male,
images of a young female he describes as between 6 and 9 years of
age having oral sex performed on her by an adult female and images
of two young females he describes as between 6 and 9 years of age
walking around in a bathroom unclothed. James Vanlandingham
immediately reported the incident to law enforcement. I did view
that chat log of this session between James Vanlandingham and
“stevedragonslayer.”
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Appellant’s App. at 72, attach. D. The affidavit attached to the December 8,
2005, application for a disclosure order for Cox recited the same information as
above, and added at the bottom:
On 11/22/05 I received a response from Yahoo! Inc. which provided
the IP login address of 68.103.177.146 for the screenname
“stevedragonslayer” on 10/09/05, 10/22/05, 10/29/05, 10/30/05,
11/01/05, and 11/06/05.
Appellant’s App. at 83: attach. E.
The statutory standard requires that “the governmental entity offers specific
and articulable facts showing that there are reasonable grounds to believe that the
. . . records or other information sought, are relevant and material to an ongoing
criminal investigation.” 18 U.S.C. § 2703(d). The affidavits above satisfy that
standard. There is no reason to doubt Vanlandingham’s account of what
happened; indeed, he immediately contacted the police, which suggests he was
simply a concerned citizen. Further, the officer stated that he had personally read
the chat log between Vanlandingham and “stevedragonslayer.” The details
provided are specific and certainly would lead to a reasonable suspicion that
“stevedragonslayer” was involved in child pornography.
Perrine also alleges that the application for the order was deficient because
it failed to show that “stevedragonslayer” was on line with Vanlandingham on
September 2, 2005, at 2 PM. The district court dismissed this as “of no moment”
because Yahoo!’s logs simply did not go back that far. As indicated above,
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Yahoo! employee Annie Cheung testified that Yahoo! tracks dates, times, and IP
addresses for login attempts on a Yahoo! account and maintains that information
for approximately thirty days. Both Cheung’s testimony and the actual document
turned over by Yahoo! to law enforcement pursuant to the court’s order revealed
that “stevedragonslayer” had IP addresses of both 68.103.177.226 and
68.103.177.146. Appellant’s App. at 129-30. Yahoo!’s records also revealed that
“stevedragonslayer” with IP address 68.103.177.146 had logged on to Yahoo! a
number of times in October and November 2005.
We agree with the district court that the absence of a specific record of
“stevedragonslayer” with IP address 68.103.177.226 or 68.103.177.146 being
logged on at 2 PM on September 2, 2005, does not undermine the adequacy of the
affidavit. The reason for that absence is simply that Yahoo! fails to maintain
records for more than thirty days. Perrine admitted he was “stevedragonslayer”
and gives no explanation for who else could have been logged on to Yahoo! on
September 2, 2005, with the name “stevedragonslayer,” when every other login
for “stevedragonslayer” matches the IP address of Perrine’s computer. 7 In sum,
7
While no one argues the point, and it is not critical to our decision, it is
widely known that any single service provider, like Yahoo!, does not permit more
than one subscriber to have the same screen name. Thus, there would have been
only one “stevedragonslayer” as a Yahoo! subscriber during the period of time
relevant to this case. Since Perrine admitted he was “stevedragonslayer” and both
Vanlandingham and Officer Humbert observed the chat session with
“stevedragonslayer,” there can be little doubt that the individual chatting with
Vanlandingham on September 2, 2005, and showing pornographic videos was, in
(continued...)
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we conclude that the affidavits submitted in the application for an order under the
ECPA and the Pennsylvania statute contained “specific and articulable facts
showing that there are reasonable grounds to believe that the . . . information
sought[] []is] relevant and material to an ongoing criminal investigation.” 18
U.S.C. § 2703(d); 18 Pa. C.S.A. § 5743(d).
Perrine also appears to make a broader Fourth Amendment challenge to the
government’s acquisition of his subscriber information from Yahoo! and Cox.
The district court held:
the identifying information at issue here–defendant’s name, address,
etc.–was information that he voluntarily transmitted to the third-party
internet providers, Cox and Yahoo!. Indeed, defendant also admitted
at the hearing that he had enabled peer-to-peer file sharing on his
computer, thereby giving anyone with internet access the ability to
gain entrance to his computer. Under such a scenario, a defendant
holds no reasonable expectation of privacy that the Fourth
Amendment will protect.
Mem. and Order at 16, Appellant’s App. at 149. We agree with the district court.
Every federal court to address this issue has held that subscriber
information provided to an internet provider is not protected by the Fourth
Amendment’s privacy expectation. See, e.g., Guest v. Leis, 255 F.3d 325, 336
(6th Cir. 2001) (holding, in a non-criminal context, that “computer users do not
have a legitimate expectation of privacy in their subscriber information because
7
(...continued)
fact, Perrine. Furthermore, despite his wholly speculative arguments to the
contrary, Perrine presents no evidence that anyone else “hijacked” his computer
and went on line using the name “stevedragonslayer.”
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they have conveyed it to another person–the system operator”); United States v.
Hambrick, 225 F.3d 656 (4th Cir. 2000) (unpublished), affirming United States v.
Hambrick, 55 F. Supp. 2d 504, 508-09 (W.D. Va. 1999) (holding that there was
no legitimate expectation of privacy in noncontent customer information provided
to an internet service provider by one of its customers); United States v.
D’Andrea, 497 F. Supp. 2d 117, 120 (D. Mass. 2007) (“The Smith line of cases
has led federal courts to uniformly conclude that internet users have no
reasonable expectation of privacy in their subscriber information, the length of
their stored files, and other noncontent data to which service providers must have
access.”); Freedman v. America Online, Inc., 412 F. Supp. 2d 174, 181 (D. Conn.
2005) (“In the cases in which the issue has been considered, courts have
universally found that, for purposes of the Fourth Amendment, a subscriber does
not maintain a reasonable expectation of privacy with respect to his subscriber
information.”); United States v. Sherr, 400 F. Supp. 2d 843, 848 (D. Md. 2005)
(“The courts that have already addressed this issue . . . uniformly have found that
individuals have no Fourth Amendment privacy interest in subscriber information
given to an ISP.”); United States v. Cox, 190 F. Supp. 2d 330, 332 (N.D.N.Y.
2002) (same); United States v. Kennedy, 81 F. Supp. 2d 1103, 1110 (D. Kan.
2000) (“Defendant’s constitutional rights were not violated when [internet
provider] divulged his subscriber information to the government. Defendant has
not demonstrated an objectively reasonable legitimate expectation of privacy in
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his subscriber information.”). Cf. United States v. Forrester, 512 F.3d 500, 510
(9th Cir. 2008) (“e-mail and Internet users have no expectation of privacy in the
to/from addresses of their messages or the IP addresses of the websites they visit
because they should know that this information is provided to and used by
Internet service providers for the specific purpose of directing the routing of
information.”); United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004)
(“Individuals generally possess a reasonable expectation of privacy in their home
computers. . . . They may not, however, enjoy such an expectation of privacy in
transmissions over the Internet or e-mail that have already arrived at the
recipient.”).
Furthermore, as Perrine conceded, he had peer-to-peer software on his
computer, which permitted anyone else on the internet to access at least certain
folders in his computer. To the extent such access could expose his subscriber
information to outsiders, that additionally vitiates any expectation of privacy he
might have in his computer and its contents. Thus, Perrine has no Fourth
Amendment privacy expectation in the subscriber information he gave to Yahoo!
and Cox.
II. Search of His House
Perrine also challenges the search of his house. In particular, he argues
“[t]he affidavits in support of the search warrants do not establish probable cause
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as the facts revealed therein were not particularized as to [Perrine], contained
stale information of alleged criminal activity relating to [Perrine], and materially
omitted facts vitiating probable cause.” Appellant’s Br. at 22.
“[P]robable cause exists where attending circumstances ‘would lead a
prudent person to believe there is a fair probability that contraband or evidence of
a crime will be found in a particular place.’” United States v. Cantu, 405 F.3d
1173, 1176 (10th Cir. 2005) (quoting United States v. Basham, 268 F.3d 1199,
1203 (10th Cir. 2001)). In assessing whether there is probable cause for a
warrant, “we assess the sufficiency of a supporting affidavit based on the totality
of the circumstances.” Id. Further, a magistrate’s or judge’s determination that a
warrant is supported by probable cause is entitled to “great deference.” Id. On
review, our task is to “ensur[e] ‘that the magistrate had a substantial basis for
concluding probable cause existed.’” United States v. Tisdale, 248 F.3d 964, 970
(10th Cir. 2001) (quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983)).
The affidavits in support of the search warrants in this case provided
sufficient information for the judge to conclude that probable cause existed. They
recited essentially the same facts as in the applications for the disclosure orders,
quoted above, with the addition of a description of the information obtained from
Yahoo! and Cox, which identified Perrine as “stevedragonslayer.” They also
recited the fact that Wichita police officer Shawn Bostick, after further
investigation of Perrine/“stevedragonslayer,” discovered that he had been
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previously convicted in Kansas state court of exploitation of a child, was still on
probation for that offense, and that the prior case involved Perrine sending images
of child pornography and showing videos containing child pornography via
Yahoo! Messenger using a web cam.
Perrine argues they were not “particularized to” him, Appellant’s Br. at 22,
because they did not state that Yahoo!’s records showed that “stevedragonslayer”
was in fact logged on to Yahoo! on September 2, 2005. For the same reasons we
found that this omission did not undermine the sufficiency of the applications for
the disclosure orders, we find it does not undermine the sufficiency of the
affidavits in support of the search warrants.
Perrine next argues that the affidavits contained stale information. Perrine
asserts that 111 days had passed between the chat between “stevedragonslayer”
and Vanlandingham and the submission of the affidavits. Whether information is
stale depends on “the nature of the criminal activity, the length of the activity,
and the nature of the property to be seized.” United States v. Riccardi, 405 F.3d
852, 860 (10th Cir. 2005) (further quotation omitted). We have explained:
The observation that images of child pornography are likely to be
hoarded by persons interested in those materials in the privacy of
their homes is supported by common sense and the cases. Since the
materials are illegal to distribute and possess, initial collection is
difficult. Having succeeded in obtaining images, collectors are
unlikely to destroy them. Because of their illegality and the
imprimatur of severe social stigma such images carry, collectors will
want to secret them in secure places, like a private residence. This
proposition is not novel in either state or federal court: pedophiles,
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preferential child molesters, and child pornography collectors
maintain their materials for significant periods of time.
Id. at 861 (quoting United States v. Lamb, 945 F. Supp. 441, 460 (N.D.N.Y.
1996)); see also United States v. Hay, 231 F.3d 630, 636 (9th Cir. 2000); United
States v. Harvey, 2 F.3d 1318, 1322-23 (3d Cir. 1993); United States v. Koelling,
992 F.2d 817, 823 (8th Cir. 1993); United States v. Rabe, 848 F.2d 994, 997 (9th
Cir. 1988). The district court correctly found that the information in the
affidavits was not stale.
Finally, Perrine argues the affidavits omitted information that would have
vitiated probable cause. Essentially, he reiterates the argument that the affidavits
did not state that none of the log ons by the IP address connected to
“stevedragonslayer” occurred on September 2, nor did they attach the Yahoo!
Login Tracker, which revealed that fact. He argues that the judge, had he known
those facts, would not have found probable cause. For the reasons already stated,
we reject this argument. The affidavits gave the issuing judge a “substantial basis
for . . . conclud[ing] that a search would uncover evidence of wrongdoing.”
Illinois v. Gates, 462 U.S. 213, 236 (1983) (internal quotation marks omitted).
Even were we to conclude that probable cause was not established, we
would affirm the denial of Perrine’s motion to suppress under the good faith
exception of United States v. Leon, 468 U.S. 897, 920-24 (1984). In Leon, “the
Supreme Court adopted a good-faith exception to the application of the
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exclusionary rule and specifically applied that exception where ‘an officer acting
with objective good faith has obtained a search warrant from a judge or
magistrate and acted within its scope,’ even though the search warrant was later
deemed to be invalid.” United States v. Herrera, 444 F.3d 1238, 1249 (10th Cir.
2006) (quoting Leon, 468 U.S. at 920). “In this circuit, we have concluded that
‘Leon’s good faith exception applies only narrowly, and ordinarily only when an
officer relies, in an objectively reasonable manner, on a mistake made by
someone other than the officer.’” United States v. Cos, 498 F.3d 1115, 1132
(10th Cir. 2007) (quoting Herrera, 444 F.3d at 1249).
In this case, law enforcement personnel searched Perrine’s house in
reliance on warrants issued by a state judge. “When reviewing the reasonableness
of an officer’s reliance upon a search warrant, this court must examine the
underlying documents to determine whether they are ‘devoid of factual support.’”
Danhauer, 229 F.3d at 1006 (quoting United States v. McKneely, 6 F.3d 1447,
1454 (10th Cir. 1993)). The Leon Court recognized four situations in which an
officer would not have reasonable grounds for believing that a search warrant had
been properly issued. In any of those situations, the good-faith exception to the
exclusionary rule does not apply. Thus, if the issuing judge was misled by an
affidavit containing false information or information that the affiant would have
known was false but for his “reckless disregard of the truth,” the evidence should
be suppressed. Leon, 468 U.S. at 923. Or suppression is required when the
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affidavit supporting the warrant is “so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable.” Id. (further
quotation omitted). Additionally, the exception does not apply “when a warrant is
so facially deficient that the executing officer could not reasonably believe it was
valid.” Danhauer, 229 F.3d at 1007 (citing Leon, 468 U.S. at 923). None of
those situations is present in this case.
III. Governmental Outrageous Conduct
Perrine moved to dismiss this case on the ground that the government had
engaged in outrageous conduct. The district court denied the motion. We review
that denial de novo. United States v. Pedraza, 27 F.3d 1515, 1521 (10th Cir.
1994).
Perrine’s claim of outrageous governmental conduct is based upon the
following: as indicated above, when Perrine committed the instant offense, he
was on probation for a prior offense involving child pornography on his
computer. His computer had been confiscated in connection with that prior
offense. Before the police returned his computer to him, they thought the
computer had been “cleaned” so that all pornography was removed. Wichita
Police Detective Shawn Bostick testified that he had turned the computer over to
the forensics unit to have it cleaned. Prior to releasing the computer to Perrine’s
attorney in the prior case, Bostick did not check to see that the forensics unit had
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in fact cleaned the computer. Perrine claims that the computer was returned to
him with the child pornography from the prior case still on it, which he claims is
tantamount to sticking a needle with heroin into the arm of an addict.
When explaining what happened to Perrine’s computer, Bostick testified
that, during the investigation of the prior case, Perrine had mentioned that he kept
a hidden back-up copy of each of his files. Bostick further opined that, if the
hidden back-up copy was missed during the search of the computer, the files
could have been moved back to the computer after the computer was returned to
Perrine, and it would appear that the files had been on the computer the entire
time. Bostick thus testified, “As I stated, is it possible I returned child
pornography to [Perrine] mistakenly? It is possible. Is it possible the stuff
wasn’t there? It’s possible.” Appellee’s Supp. App. at 49. The district court
found “returning these images to defendant was probably negligent, even
incompetent; however, defendant has failed to make any showing that any
governmental official acted intentionally in leaving the images on his computer.”
Mem. and Order at 10, Appellant’s App. at 143.
“[T]he relevant inquiry when assessing claims of outrageous government
conduct is whether, considering the totality of the circumstances . . . the
government’s conduct is so shocking, outrageous and intolerable that it offends
the universal sense of justice.” United States v. Garcia, 411 F.3d 1173, 1181
(10th Cir. 2005) (further quotation omitted). “‘To succeed on an outrageous
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conduct defense, the defendant must show either (1) excessive government
involvement in the creation of the crime, or (2) significant governmental coercion
to induce the crime.’” Id. (quoting Pedraza, 27 F.3d at 1521). An outrageous
conduct defense is of “narrow scope.” Id. (quoting United States v. Lacey, 86
F.3d 956, 964 (10th Cir. 1996)).
We agree with the district court that, assuming the government did return
Perrine’s computer to him with child pornography still on it, that was the product
of negligence or incompetence, at most. It hardly meets the high standard of
outrageous conduct.
CONCLUSION
For the foregoing reasons, the district court’s order is AFFIRMED.
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