United States v. Hinojosa

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0169p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 08-1393
v.
,
>
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Defendant-Appellant. -
MICHAEL HINOJOSA,
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Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 06-00093-01—Paul Lewis Maloney, Chief District Judge.
Argued: April 28, 2010
Decided and Filed: June 9, 2010
*
Before: CLAY and GILMAN, Circuit Judges; ZATKOFF, District Judge.

_________________

COUNSEL
ARGUED: Jeffrey J. O’Hara, LAW OFFICE, Grand Rapids, Michigan, for Appellant.
Daniel Y. Mekaru, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids,
Michigan, for Appellee. ON BRIEF: Jeffrey J. O’Hara, LAW OFFICE, Grand Rapids,
Michigan, for Appellant. Daniel Y. Mekaru, ASSISTANT UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee.
_________________

OPINION
_________________

LAWRENCE P. ZATKOFF, District Judge. Following a bench trial, Defendant
was convicted and sentenced on the following six counts: (1) two counts of Sexual
Exploitation of a Child in violation of 18 U.S.C. § 2251(a), (e); (2) two counts of

*
The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District of
Michigan, sitting by designation.

1
No. 08-1393 United States v. Hinojosa Page 2

Distribution of Image of Minor Engaging in Sexually Explicit Conduct in violation of
18 U.S.C. § 2252(a)(2), (b)(1); (3) one count of Possession of Images of Minors
Engaging in Sexually Explicit Conduct in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2);
and (4) one count of Possession of Child Pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B), (b)(2).

Defendant’s appeal contains the following three issues, all relating to the district
court’s denial of each of his four motions to suppress evidence:

I. Whether the entry into Appellant’s home and the Appellant’s arrest
based on a non-existent warrant resulted in Fourth Amendment
constitutional violations which required suppression of the evidence
seized?

II. Whether the Appellant’s Fourth Amendment constitutional rights
were violated when the police made an uninvited and warrantless
intrusion into his home, enabling the police to observe evidence which
was used to obtain a search warrant?

III. Whether the evidence seized pursuant to a search warrant must be
suppressed because of the Fourth Amendment constitutional violations
involved in obtaining that search warrant?

For the reasons that follow, we AFFIRM the judgment of the district court.

I. BACKGROUND

Defendant was targeted as part of an international child pornography
investigation involving authorities from the United States and Canada. As part of the
investigation, undercover Canadian officials communicated with Defendant in an
internet chat room that was believed to be a forum for exchanging child pornography.
The online conversations contained graphic sexual talk, including Defendant’s claims
that he had engaged in sexual activities with his 13-year-old daughter “S.”1

1
The district court and the parties referred to Defendant’s minor daughter as “S.” We refer to her
in the same manner.
No. 08-1393 United States v. Hinojosa Page 3

In conjunction with these chat sessions, Defendant began to electronically
transfer computer files that contained videos and images of child pornography. During
a March 1, 2006, chat session, Defendant sent the Canadian officials two files containing
videos depicting child pornography. He also provided three images of a young female,
later determined to be S. On March 10, 2006, Defendant sent the agents another
pornographic video file, which he claimed involved himself and S engaging in sexual
activity. When questioned, Defendant acknowledged that S was 13 years old at the time
the video was filmed.

The Canadian agents traced the Internet Protocol (IP) address of the transferring
computer to Comcast, located in Michigan. The investigation was thereafter turned over
to Immigration and Customs Enforcement (ICE) in the United States. ICE issued
Comcast a subpoena to ascertain the subscriber information for the tracked IP address.
Comcast complied with the subpoena and informed the agents that the IP address was
registered in Defendant’s name at Defendant’s Lansing, Michigan, home address. The
agents later confirmed that a vehicle present at that address was registered in
Defendant’s name.

As part of the investigation, ICE Special Agent Craig Smith requested a check
of Defendant’s criminal history. Two different databases were consulted: The National
Crime Information Center (NCIC) and the Law Enforcement Information Network
(LEIN), the latter having been consulted on two occasions by different officers.

The LEIN report and the NCIC report were inconsistent in several ways. The
most significant difference was that the LEIN report indicated that Defendant had an
outstanding arrest warrant, while the NCIC report contained no such indication. Despite
several inconsistencies between the reports, Agent Smith and ICE Special Agent
Michael George, accompanied by members of the Lansing Police Department, traveled
to Defendant’s residence to execute the arrest warrant.2 After arriving, they knocked on
the door. Defendant’s then-wife, Christine Spears (“Spears”), answered the door, and

2
The warrant was issued in Oakland County, Michigan, for a probation violation. The decision
to proceed on the warrant is discussed in greater detail in Part III.A infra.
No. 08-1393 United States v. Hinojosa Page 4

the officers identified themselves. The officers informed Spears that they needed to
speak with Defendant regarding an important matter and asked permission to enter the
residence, which Spears granted.

Spears informed the officers that Defendant was feeling ill and was asleep in the
bedroom. She offered to rouse him. The parties disagree over what happened next. The
government contends that Spears consented to the officers’ request to accompany her to
the bedroom. Defendant maintains that no such consent was given, and that Spears was
unaware that the officers had followed her until she reached the bedroom. While
proceeding down the hallway to the bedroom, the agents recognized certain hardwood
flooring, a set of French doors, and a distinctive black-and-white tile pattern in the
bathroom, all of which were visible in the videos and images that Defendant had
transferred to the Canadian authorities.

Upon entering Defendant’s bedroom, Agent George identified himself and briefly
questioned Defendant about S. Defendant’s responses confirmed S’s age and that it was
S pictured in a non-pornographic image that Defendant had transmitted to the
authorities. The officers then informed Defendant of the investigation and requested
consent to search the residence and Defendant’s computer. Defendant declined to
consent to the searches.

At that point, Defendant was placed under arrest and advised of his Miranda
rights. Defendant waived his rights and admitted to a sexual relationship with S and to
the manufacture of pornography involving himself and S. During the interview, the
agents determined that Defendant should be removed from the residence and taken to the
police station. After arriving at the station, the interview continued, and Defendant
confessed to engaging in sexual conduct with S on over fifty occasions. He also
admitted that he manufactured the pornographic videos and images that he transmitted
to the Canadian authorities.

Meanwhile, Agent Smith prepared an affidavit for a search warrant. The
affidavit recited facts obtained both from the officers’ observations of the residence and
Defendant’s statements, along with the knowledge previously gathered during the
No. 08-1393 United States v. Hinojosa Page 5

investigation. A magistrate judge issued a search warrant, which was executed later that
day.

A grand jury returned a six-count indictment. Defendant filed four motions to
suppress evidence, arguing that his arrest and the subsequent search were
unconstitutional. Following an evidentiary hearing, at which Defendant refused to
permit his attorney to make objections, call witnesses, or “argue the facts of the case,”
the district court orally denied three of the motions. After requesting additional briefing
on the remaining issue—the suppression of Defendant’s pre-Miranda statements—the
district court denied that motion as well.

The district court held a bench trial, at which Defendant again waived his rights
to present evidence, cross-examine witnesses, and present opening and closing
arguments. The district court found Defendant guilty on all six counts. At the
sentencing hearing, the district court sentenced Defendant to consecutive sentences on
each count, for a total sentence of 1,440 months of imprisonment. This appeal followed.

II. LEGAL STANDARD

When reviewing the denial of a motion to suppress, we review the district court’s
factual findings for clear error and its legal conclusions de novo. See United States v.
Smith, 594 F.3d 530, 535 (6th Cir. 2010); United States v. Hudson, 405 F.3d 425, 431
(6th Cir. 2005). “Where a district court denies [a motion to suppress], this court
considers the evidence ‘in the light most favorable to the government.’” United States
v. Carter, 378 F.3d 584, 587 (6th Cir. 2004) (en banc) (quoting United States v.
Wellman, 185 F.3d 651, 654–55 (6th Cir. 2004)).

This court is not restricted to considering only the evidence presented at a
suppression hearing, and it may consider evidence offered at trial to uphold the denial
of a motion to suppress. United States v. Perkins, 994 F.2d 1184, 1188 (6th Cir. 1993);
United States v. McKinney, 379 F.3d 259, 264 (6th Cir. 1967).
No. 08-1393 United States v. Hinojosa Page 6

III. ANALYSIS

A. Arrest Warrant

Defendant first attacks the district court’s conclusion that the officers’ reliance
on the arrest warrant was not unreasonable. He alleges that the inconsistencies between
the criminal history reports should have alerted the officers that the warrant was issued
for a person other than Defendant (i.e., a different person named Michael Hinojosa).
Defendant insists that all evidence obtained as a result of the warrantless entry into his
home should be suppressed. See Payton v. New York, 445 U.S. 573, 590 (1980)
(requiring that police officers obtain a warrant prior to entering a residence in order to
effectuate an arrest unless exigent circumstances are present).

Defendant directs our attention to the following discrepancies between the LEIN
and NCIC reports: (1) the reports contained different social-security numbers; (2) the
reports contained different dates of birth; (3) the reports contained different driver’s
license numbers; (4) the listed heights varied by one inch; (5) the listed weights varied
by sixty pounds; and (6) only the LEIN report indicated an active arrest warrant. He
additionally identifies several other factors that he believes should have put the officers
on notice that they were dealing with two unique individuals: (1) the warrant was issued
in Oakland County, to which Defendant had no known ties; (2) Defendant’s only prior
criminal history involved a 1995 incident that included 2 years of probation, which
probationary period would have expired long before the bench warrant issued;
(3) Defendant’s name and hair and eye color (both brown) are all very common and
therefore should not support a conclusion that the reports referred to the same person;
and (4) a quick check of the Michigan Department of Corrections website would have
resolved the issue in Defendant’s favor.

On appeal, the government does not dispute that the relied-upon warrant was
issued for a person other than Defendant. Instead, the government contends that the
Supreme Court’s recent decision in Herring v. United States, __ U.S. ___, 129 S. Ct. 695
(2009), mandates that exclusion is not the proper remedy for mistakes that result from
police negligence.
No. 08-1393 United States v. Hinojosa Page 7

The resolution of this issue is unnecessary, however, because even if we were to
assume that the officers’ reliance on the arrest warrant was unreasonable under Herring,
Defendant will be unable to obtain the relief he seeks. As discussed infra, the officers
received consent to enter Defendant’s residence; therefore, an arrest warrant was not a
prerequisite for such entry. See, e.g., United States v. Pasquarille, 20 F.3d 682, 685 (6th
Cir. 1994) (“[A] denial of a motion to suppress will be affirmed on appeal if the district
court’s conclusion can be justified for any reason.”).

B. Consent

The government asserts that, despite being armed with an arrest warrant, it
nonetheless sought and received consent from Spears prior to entering the residence, and
again before proceeding from the entryway of the residence to the bedroom. Defendant
does not seriously dispute the initial consent, but he challenges whether the officers had
consent to proceed beyond the entryway.

“It is well settled that a person may waive his Fourth Amendment rights by
consenting to a search.” Carter, 378 F.3d at 587 (citing Davis v. United States, 328 U.S.
582, 593–94 (1946)). “Consent to search only vitiates the warrant requirement if
consent was voluntarily given.” United States v. Aaron, 33 Fed. Appx. 180, 183 (6th
Cir. 2002) (citing Florida v. Royer, 460 U.S. 491, 497 (1983)). It is well settled that
valid consent may be given by a third party with common authority over the premises.
See United States v. Matlock, 415 U.S. 164, 171–72 (1974); United States v. McCauley,
548 F.3d 440, 446 (6th Cir. 2008).

“Generally, whether consent to a search was voluntarily given is a question of
fact.” United States v. Buchanan, 904 F.2d 349, 355 (6th Cir. 1990). “It is the
Government’s burden by a preponderance of the evidence, to show through ‘clear and
positive’ testimony that valid consent was obtained.” United States v. Burns, 298 F.3d
523, 541 (6th Cir. 2002) (quoting United States v. Riascos-Suarez, 73 F.3d 616, 625 (6th
Cir. 1996) (internal quotation marks omitted)). When determining whether consent was
voluntarily given, the reviewing court is to examine the totality of the circumstances
involved. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).
No. 08-1393 United States v. Hinojosa Page 8

There has been no challenge to Spears’s authority or ability to provide valid
consent. The record further indicates that the interaction between the officers and Spears
was devoid of coercion or intimidation. In regard to the officers’ demeanor, Spears
testified that “[t]hey were fairly polite. They saw I had two small children. I mean they
let it be known it was important they speak to [Defendant], but they weren’t intimidating
or aggressive in any way.” (9/19/07 Mot. Hr’g Tr. at 99). In fact, Spears’s cooperation
was the reason why the officers continued to seek consent, rather than proceed on the
authority of the warrant, which Agent George termed a “soft approach.” (9/19/07 Mot.
Hr’g Tr. at 59–60).

Agent George testified that he requested consent to follow Spears to the bedroom
for “officer safety” and that Spears did not object. (9/19/07 Mot. Hr’g Tr. at 64). Spears
recalled the encounter as follows:

Q. Do you remember one of the agents saying that he asked to
accompany you back to the bedroom?
A: I don’t recall that, but I’m not saying it didn’t happen, I just don’t
remember.
Q: Do you recall any of the law enforcement officers or agents saying
that we need to accompany you for officer safety?
A: I don’t remember that.

(9/19/07 Mot. Hr’g Tr. at 99).

The district court credited Agent George’s testimony that valid consent was
requested and received for the continued entry. “We afford the district court’s credibility
determinations regarding witness testimony great deference and must uphold its findings
of fact unless they are clearly erroneous.” United States v. Esteppe, 483 F.3d 447, 452
(6th Cir. 2007) (citing United States v. Horn, 355 F.3d 610, 613 (6th Cir. 2007)). The
district court’s credibility finding is particularly compelling in this case because Spears’s
testimony did not contradict that of Agent George; rather, she simply could not recall
whether she was asked for permission to further enter the residence. See United States
No. 08-1393 United States v. Hinojosa Page 9

v. Dillard, 438 F.3d 675, 681 (6th Cir. 2006) (upholding district court’s adoption of
officer testimony when that testimony was not contradicted by the record).

In rebuttal, Defendant presents an alternative explanation of Spears’s testimony:
that the officers did not ask for, and Spears did not give, consent to proceed past the
entryway. Defendant simply concludes that the district court erred in not accepting this
reading. “Where there are two permissible views of the evidence,” the district court does
not clearly err in accepting one interpretation over the other. United States v. Navarro-
Camacho, 186 F.3d 701, 708 (6th Cir. 1999) (citation omitted); see also United States
v. Taylor, 956 F.2d 572, 576 (6th Cir. 1992); United States v. Rose, 889 F.2d 1490, 1494
(6th Cir. 1989).

Defendant also points out that the above testimony never indicates that Spears
affirmatively responded to the officers’ request, but there is no requirement that consent
must be verbally given. See Carter, 378 F.3d at 589 (“Carter asks us to hold as a matter
of law that consent must be given verbally, perhaps by some ‘magic words’ formula.
This we decline to do.”). The district court thus did not clearly err in finding that
Spears’s non-verbal actions constituted valid consent.

Finally, the government briefly attempts to justify the continued entry as a
protective sweep under Maryland v. Buie, 494 U.S. 325 (1990). There is nothing in the
record, other than the reference to “officer safety” in requesting the further consent, to
indicate that such a sweep took place. Because the officers did not exceed the scope of
the received consent, however, we need not consider this alternate justification.

Considering the totality of the circumstances, we conclude that the district court
did not clearly err in finding that Spears consented to the officers’ continued entry into
the residence.

C. Search Warrant

Defendant next argues that the affidavit prepared to apply for the search warrant
referenced illegally-obtained evidence that should have been suppressed, including
(1) the statements he made both prior and subsequent to receiving his Miranda warnings;
No. 08-1393 United States v. Hinojosa Page 10

and (2) the officers’ observations of his residence.3 Defendant further submits that the
affidavit lacks probable cause without this evidence.

1. Defendant’s Statements Were Properly Included in the Affidavit

i. Pre-Miranda Statements

Defendant first challenges the inclusion of his pre-Miranda statements in the
affidavit. The district court concluded that Miranda warnings were not required because
Defendant was not in custody during the preliminary questioning.

The Fifth Amendment protects a criminal defendant from compelled self-
incrimination, see U.S. CONST. amend. V, and the Supreme Court has required that a
criminal defendant be apprised of certain rights prior to a custodial interrogation.
Miranda v. Arizona, 384 U.S. 436, 478–79 (1966). The Miranda requirements apply
only “when there has been such a restriction on a person’s freedom as to render him ‘in
custody.’” Oregon v. Mathiason, 429 U.S. 492, 495 (1977).

We consider several factors when determining whether an interrogation was of
a custodial nature, including (1) the location of the interview; (2) the length and manner
of the questioning; (3) whether there was any restraint on the individual’s freedom of
movement; and (4) whether the individual was told that he or she did not need to answer
the questions. United States v. Panak, 552 F.3d 462, 465 (6th Cir. 2009); United States
v. Swanson, 341 F.3d 524, 529 (6th Cir. 2003); United States v. Salvo, 133 F.3d 942, 950
(6th Cir. 1998).

It is significant to our inquiry that the questioning occurred at Defendant’s home.
This court has found that such a venue generally does not present a coercive
environment. See, e.g., Panek, 552 F.3d at 467; Salvo, 133 F.3d at 950. The remaining
factors do not require a finding to the contrary. The interview was of short
duration—lasting only a few brief questions—and there is nothing to suggest that the

3
Defendant also objects to what he deems to be false evidence contained in the affidavit,
specifically the statement that there was a valid arrest warrant. He fails to explain, however, how the
existence of an arrest warrant for an unrelated probation violation was material to the magistrate judge’s
probable-cause determination.
No. 08-1393 United States v. Hinojosa Page 11

officers acted in a hostile or coercive manner. No weapons were drawn, nor were any
threats made. The officers did not place Defendant in handcuffs or otherwise restrain
his freedom. In addition, Defendant refused to consent to the further search of the
residence, which suggests that the environment was not coercive.

Although the officers did not advise Defendant that he was not under arrest, their
failure to do so does not automatically render the encounter custodial. Rather, it is
merely “one factor among many” to be considered. Panek, 552 F.3d at 467. Likewise,
Defendant was not informed of the existence of the arrest warrant. Because he was
unaware of the warrant, “[its] existence could not have affected how [he] understood
[his] position, which is the only relevant consideration . . . .” United States v. Reynolds,
762 F.2d 489, 493 (6th Cir. 1985). This reasoning similarly curtails Defendant’s
suggestion that, because the officers intended to arrest him the entire time, he was
effectively in custody as soon as they entered the residence. See Berkemer v. McCarty,
468 U.S. 420, 442 (1984) (“A policeman’s unarticulated plan has no bearing on the
question whether a suspect was ‘in custody’ at a particular time; the only relevant
inquiry is how a reasonable man in the suspect’s position would have understood his
situation.”).

Based on the totality of the encounter, we find that the initial interrogation did
not present a custodial environment such that Miranda warnings were required prior to
questioning. Defendant’s pre-Miranda statements were therefore properly included in
the affidavit.

ii. Post-Arrest Statements

Defendant also challenges the statements he made following his arrest, arguing
that the arrest was illegal because the officers did not possess a valid arrest warrant. The
district court held that the officers had probable cause to believe Defendant had
committed felonies relating to the possession and transfer of child pornography.

At the time of Defendant’s arrest, the arresting officers were aware of both the
information gathered prior to entering the residence and the corroborating facts learned
No. 08-1393 United States v. Hinojosa Page 12

while inside, including the recognition of the decor and Defendant’s responses to their
initial questioning. The district court correctly determined that probable cause to arrest
Defendant existed independent of the arrest warrant. See United States v. Harness, 453
F.3d 752, 754 (6th Cir. 2006) (holding that officers may effectuate an arrest so long as
they have “reasonably trustworthy information” that would “warrant a prudent man” in
believing that the defendant was committing, or had committed, a crime).

Following the valid arrest, the officers immediately advised Defendant of his
Miranda rights, which he waived. Defendant does not argue that this waiver was
involuntary or coerced. Accordingly, Defendant’s post-arrest statements were properly
included in the affidavit.

2. The Officers’ Plain-View Observations Were Properly Included in
the Affidavit
Defendant next argues that all evidence gained by the officers after leaving the
entryway was not properly included in the search-warrant affidavit. This “evidence”
consists of the officers’ observations of the hardwood floors, bathroom tiling, and French
doors, which the officers recognized as matching those in the videos and photographs.4
The government responds that these items were all in plain view during their progression
to the bedroom.

Defendant’s argument is undermined by the fact that the officers did not “seize”
any evidence. See Horton v. California, 496 U.S. 128, 133–34 (1990) (differentiating
between observation and seizure of items in plain view); United States v. Jackson, 131
F.3d 1105, 1108 (4th Cir. 1997) (“Viewing an article that is already in plain view does
not involve an invasion of privacy and, consequently, does not constitute a search
implicating the Fourth Amendment[.]”). Moreover, there was no testimony that the
officers manipulated any of Defendant’s property when making their observations (i.e.,
they did not open any doors, etc.). See Arizona v. Hicks, 480 U.S. 321, 324–25 (1987)

4
In fact, it is only the tiling at issue, because Agents Smith and George each testified that the
hardwood floors and French doors were visible from the entryway. (9/19/2007 Mot. Hr.’g Tr. at 40–41;
61–62).
No. 08-1393 United States v. Hinojosa Page 13

(finding that plain-view observations turned into a Fourth Amendment search when
officers moved audio speakers to ascertain ID numbers).

Here, the officers received consent to enter the house and, once inside, to proceed
down the hallway and into the bedroom. Because everything that the officers observed
was in plain view from their lawful position, no constitutionally improper search
occurred. The officers therefore did not violate Defendant’s constitutional rights by
observing the decor of his residence, and those observations were properly included in
the affidavit.

3. Probable Cause Existed Prior to Entry

Finally, even if we were to excise the allegedly offending portions, we would
disagree with Defendant’s contention that the affidavit lacks probable cause.

The Fourth Amendment states that “no Warrants shall issue, but upon probable
cause.” U.S. CONST. amend. IV. The Supreme Court has held that a magistrate’s duty
in determining probable cause is to:

[M]ake a practical, common sense decision whether, given all the
circumstances set forth in the affidavit before him, including the
‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay
information, there is a fair probability that contraband or evidence of a
crime will be found in a particular place.

Illinois v. Gates, 462 U.S. 213, 238 (1983).

In United States v. Terry, 522 F.3d 645 (6th Cir. 2008), this court found that
probable cause existed to issue a search warrant where images involving child
pornography were sent from an email address registered to the defendant, and the
government established that the defendant had accessed that email account at his home
address. Id. at 648. Likewise, in United States v. Wagers, 452 F.3d 534 (6th Cir. 2006),
this court upheld a probable-cause finding based primarily on evidence of subscriptions
to websites involving child pornography. Id. at 540. See also United States v. Lapsins,
570 F.3d 758, 767 (6th Cir. 2009) (affirming probable-cause finding based on images
No. 08-1393 United States v. Hinojosa Page 14

that were uploaded using screen names connected to the defendant and his home
address).

Prior to entering the residence, the officers had established that (1) videos and
images involving child pornography were transferred to undercover agents from a
specific IP address; (2) the IP address was registered to Defendant at a Lansing,
Michigan, address; and (3) Defendant resided at the Lansing, Michigan, address. Based
on the above-cited authorities, this evidence would have established the required “fair
probability” that evidence of criminal activity would be found inside Defendant’s
residence, and it would have justified the issuance of a search warrant. See, e.g., Gates,
462 U.S. at 238.

Defendant maintains that an IP address is insufficient to establish that evidence
of child pornography would be present in his residence because IP addresses are not
always accessed at the registered address. This court has considered, and rejected,
similar arguments. See Lapsins, 570 F.3d at 767 (finding probable cause even though
there was “no direct evidence that [the defendant] used a home computer to access his
accounts” where the evidence showed that child pornography was uploaded under the
defendant’s user name and in his city of residence); Wagers, 452 F.3d at 540 (agreeing
that “evidence that a person has visited or subscribed to websites containing child
pornography supports the conclusion that he has likely downloaded, kept, or possessed
the material”).

As a last resort, Defendant questions why a search warrant was not initially
sought by the well-trained agents if probable cause existed prior to the entry. The
agents’ prudence in seeking a search warrant, however, does not negate the existence of
probable cause.

IV. CONCLUSION

For the reasons stated above, we AFFIRM the judgment of the district court.