Case: 09-50283 Document: 00511284538 Page: 1 Date Filed: 11/04/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 4, 2010
No. 09-50283 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
DAVID ROGER ALLEN,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
Before JOLLY and GARZA, Circuit Judges and STARRETT 1 , District Judge.
KEITH STARRETT, District Judge:
David Roger Allen (Allen) appeals the district court’s denial of a motion to
suppress evidence seized in an allegedly illegal search. He argues the search
warrant was overbroad, lacked particularity, was based on stale information and
was not supported by probable cause. Allen, a college professor and first time
offender, was indicted by a federal grand jury on May 28, 2008. The indictment
charged Allen with two Counts of Shipping by Computer, Visual Depictions of
Minors Engaging in Sexually Explicit Conduct (Counts One and Two) and
another Count charging Receiving Matter Containing Visual Depictions of
Minors Engaging in Sexually Explicit Conduct (Count Three).
1
District Judge of the Southern District of Mississippi, sitting by designation.
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Allen filed a motion to suppress the evidence seized from his home
pursuant to a search warrant on the basis that the search warrant was invalid
under the Fourth Amendment because it lacked particularity and was not
supported by probable cause. After an evidentiary hearing, the district court
denied the Motion to Suppress and excluded, as irrelevant, the testimony of a
defense witness offered in support of the motion. The district court later entered
a written order memorializing the denial of the motion.
On September 3, 2008, following denial of his motion to suppress, Allen
pled guilty to Count Three of the Indictment pursuant to a plea agreement. In
the plea agreement, Allen waived his right to appeal the conviction or sentence,
but reserved the right to appeal the motion to suppress and any and all
evidentiary rulings made during the hearing on the motion to suppress. The
remaining two counts were dismissed.
As set forth in the Factual Basis filed in support of the guilty plea, the
following occurred:
In July of 2006 Agents with Immigration and Customs
Enforcement (ICE) identified an individual in Oregon by the name
of Jeremy Rice. A forensic examination of Rice’s computer reveal[ed]
over 1,800 images depicting minors engaging in sexually explic[i]t
conduct. Rice was found to exchange or share those files using a
Google program called Hello. Rice was found to have exchanged
these child pornography images with an individual later identified
as Jerry Mikowski of Michigan. Mikowski’s computer was seized on
or about March 29, 2007, during the execution of a court authorized
search warrant. A forensic examination of Mikowski’s computer
revealed approximately 2,000 images of child pornography. A list of
Mikowski’s Google Hello “friends” included “mrhyde6988”. A
subsequent investigation revealed “mrhyde6988” to be this
defendant. A file found on Mikowski’s computer entitled “from
mrhyde6988” contained two images of minor females, the reviewing
Magistrate Judge found these images to depict minors engaging in
sexually explicit conduct, to wit: the lascivious exhibition of the
genitalia of these children.
On or about May 15, 2008, ICE Agents executed a court
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authorized search warrant at the defendant’s residence. Several
computers and external hard drives were seized. A forensic
examination of the defendant’s computer revealed approximately
3,300 images of child pornography, of those approximately 40
images, including duplicates, involved depictions of children
involved in “bondage”, a form of sadomasochism, and approximately
two depict children involved in beastiality [sic]. The children
depicted in these images vary in age from infancy to approximately
15 years of age.
On or about December 13, 2006, the defendant shared images
with Mikowski, known to him as “candyman”. Additionally, on or
about February 22, 2007, the defendant also used the Google Hello
program on his computer to send several images to an individual
known only as “lilangel55555”. During the investigation, Agents
discovered that, in addition to receiving child pornography images,
the defendant also shipped and transported child pornography
images in interstate commerce. These images were sent using the
Google Hello program.
Allen was sentenced on Count Three to 121 months imprisonment and 10
years of supervised release. He subsequently filed a timely notice of appeal,
arguing that the district court erred in denying his motion to suppress.
Specifically, Allen contends that the search warrant lacked particularity, in
violation of the Fourth Amendment, and was based on stale information, over-
broad, and not supported by probable cause. Allen further contends that the two
images found on the Michigan computer did not depict minors engaged in
sexually explicit conduct and thus were insufficient to provide the magistrate
judge with a substantial basis for concluding that probable cause existed to issue
the warrant. Finally, Allen appeals the exclusion of testimony at the
suppression hearing.
STANDARD OF REVIEW
When reviewing the denial of a motion to suppress, we review factual
findings for clear error and legal conclusions regarding the sufficiency of the
warrant or the reasonableness of an officer’s reliance on a warrant de novo.
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United States v. Cherna, 184 F.3d 403, 406 (5th Cir. 1999)(citing United States
v. Kelley, 140 F.3d 596, 601 (5th Cir. 1998)). We view the evidence in the light
most favorable to the prevailing party, in this case, the United States. United
States v. Garza, 118 F.3d 278, 282 (5th Cir. 1997).
The Fourth Amendment requires a warrant to “particularly describ[e] the
place to be searched, and the persons or things to be seized.” U.S. Const. amend.
IV. The Fourth Amendment’s particularity requirement demands that the place
to be searched and the items to be seized be described with sufficient
particularity so as to leave “nothing . . . to the discretion of the officer executing
the warrant.” Marron v. United States, 275 U.S. 192, 196 (1927); Williams v.
Kunze, 806 F.2d 594, 598 (5th Cir. 1986)(“The items to be seized must be
described with sufficient particularity such that the executing officer is left with
no discretion to decide what may be seized.”). See also United States v.
Christine, 687 F.2d 749, 752 (3d Cir. 1982) (“The particularity requirement
‘makes general searches . . . impossible.’” (quoting Marron, 275 U.S. at 196)).
“A general order to explore and rummage through a person’s belongings
is not permitted.” United States v. Cook, 657 F.2d 730, 733 (5th Cir. Unit A
Sept. 1981). “The uniformly applied rule is that a search conducted pursuant to
a warrant that fails to conform to the particularity requirement of the Fourth
Amendment is unconstitutional.” Groh v. Ramirez, 540 U.S. 551, 559 (2004)
(quoting Massachusetts v. Sheppard, 468 U.S. 981, 988 n.5 (1984) (internal
citations omitted)). “When the Government conducts a search pursuant to a
warrant that does not particularly describe the things to be seized, the
appropriate remedy is for the court to exclude from the evidence in a later
criminal action the items improperly taken.” Cook, 657 F.2d at 734.
This Court conducts a two-part inquiry to determine whether a seizure
conducted pursuant to a search warrant violated the Fourth Amendment.
Cherna, 184 F.3d at 407. First, we ask whether the seizure falls within the good-
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faith exception to the exclusionary rule. United States v. Leon, 468 U.S. 897,
920-21 (1984); Cherna, 184 F.3d at 407. The good-faith inquiry is confined “to
the objectively ascertainable question whether a reasonably well trained officer
would have known that the search was illegal despite the magistrate's
authorization.” Leon, 468 U.S. at 923 n.23. Thus, under the good-faith
exception, if the evidence was obtained by law enforcement officers who relied
on the warrant in objectively reasonable good-faith, then the evidence obtained
during the search is admissible. United States v. Davis, 226 F.3d 346, 351 (5th
Cir. 2000) (citing United States v. Shugart, 117 F.3d 838, 843 (5th Cir. 1997)) .
This is true even if the evidence in the affidavit on which the warrant was based
was not sufficient to establish probable cause. Id. If the good-faith exception
applies, this court affirms the district court’s decision denying the motion to
suppress. Id. If the good-faith exception does not apply, then this court goes to
the second step and determines whether the magistrate issuing the warrant had
a “substantial basis for believing there was probable cause for the search.” Id.
(citing Cherna, 184 F.3d at 407).
ANALYSIS
At the suppression hearing, and in his motion to suppress, Allen argued
that the good-faith exception to the exclusionary rule should not be applied
because the warrant was overly broad and failed the particularity requirement
and that no reasonable officer should have relied on the validity of the warrant.
Allen also argued that the warrant was so lacking in probable cause that no
reasonable officer would have believed the warrant was valid.
The Government concedes that the warrant was not sufficiently
particularized and that the attachment detailing the items to be seized was not
incorporated by reference in the warrant. Nevertheless, the Government
contends that, under the circumstances, the agents involved in the search
reasonably believed that the warrant was valid because the warrant application,
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affidavit, and attachments had been reviewed by several ICE agents and the
United States Attorney’s Office prior to submission to the magistrate judge. The
magistrate judge then reviewed the documents and ultimately signed both the
warrant and affidavit. Furthermore, Agent Stone, the agent in charge, made
certain that those taking part in the search reviewed the warrant, affidavit, and
attachments and were familiar with what could be seized.
The Government also emphasizes that the agents exercised restraint
during the search by contacting the U.S. Attorney’s Office several times during
the search whenever there was a question about what could be seized. Thus, the
Government argues that the evidence seized was admissible under the good-
faith exception to the exclusionary rule.
The warrant at issue clearly does not pass constitutional muster. It is
undoubtedly broad because of its lack of particularity, absent the affidavit and
attachments. Simply incorporating the affidavit and attachments, which stated
specifically what the search entailed and what was to be seized, by reference in
the warrant could have cured the deficiency of the warrant. That being said, the
issue here is not the constitutional invalidity of the warrant, but whether the
evidence seized pursuant to the unconstitutionally vague warrant should be
suppressed. Indeed, the Supreme Court has clearly stated that suppression is
“an issue separate from the question whether the Fourth Amendment rights of
the party seeking to invoke the rule were violated by police conduct.” Leon, 468
U.S. at 906 (quoting Illinois v. Gates, 462 U.S. 213, 223 (1983)).
Even though the warrant in this case was not sufficiently particular, we
conclude that the fruits of the search are admissible under the good-faith
exception. See Leon, 468 U.S. at 913 (“[O]ur evaluation of the costs and benefits
of suppressing reliable physical evidence seized by officers reasonably relying on
a warrant issued by a detached and neutral magistrate leads to the conclusion
that such evidence should be admissible . . ..”). The district court correctly found
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that the agents involved acted in objectively reasonable good-faith in relying on
the search warrant.
As the Supreme Court pointed out recently in Herring v. United States, __
U.S.__, 129 S. Ct. 695, 699-700 (2009), the exclusionary rule is a judicially
fashioned remedy whose focus is not on restoring the victim to his rightful
position but on deterring police officers from knowingly violating the
Constitution. Therefore, evidence should be suppressed “only if it can be said
that the law enforcement officer had knowledge, or may properly be charged
with knowledge, that the search was unconstitutional under the Fourth
Amendment.” Id. at 701 (quoting Illinois v. Krull, 480 U.S. 340, 348-49 (1987));
see also United States v. Otero, 563 F.3d 1127 (10th Cir. 2009). Otherwise, the
“good-faith” rule of Leon applies.
The Herring Court identified several critical factors in deciding whether
or not evidence should be excluded: whether the application of the exclusionary
rule results in deterrence; whether the benefits of deterrence outweigh its costs;
and whether the misconduct was flagrant or deliberate. Id. at 700-02. Then the
Court stated:
An error that arises from nonrecurring and attenuated negligence
is thus far removed from the core concerns that led us to adopt the
rule in the first place.
...
To trigger the exclusionary rule, police conduct must be
sufficiently deliberate that exclusion can meaningfully deter it, and
sufficiently culpable that such deterrence is worth the price paid by
the justice system. As laid out in our cases, the exclusionary rule
serves to deter deliberate, reckless, or grossly negligent conduct, or
in some circumstances recurring or systemic negligence.
129 S.Ct. at 702.
Here, the police conduct was neither deliberate nor sufficiently culpable
to warrant application of the exclusionary rule. It is clear from reading the
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transcript of the suppression hearing that Agent Stone, the officer who sought
the warrant and submitted the affidavit, had reason to believe the search
warrant was proper and was supported by probable cause. He testified that he
prepared the application for the warrant, the affidavit, and the warrant. Prior
to asking the magistrate judge to execute the warrant or having the paperwork
reviewed by the U.S. Attorney’s office, the agent reviewed the affidavit, the
warrant and the application with his co-workers and other agents in his office.
Agent Stone also had another agent review the pictures recovered and obtained
the other agent’s agreement that the pictures were child pornography.
After the review by his co-workers, Agent Stone presented the application
and warrant to the U.S. Attorney’s office for review. Only after that review was
complete, did Agent Stone present the affidavit to Magistrate Judge Platt for
review. Judge Platt took the time to review the affidavit and the search
warrant. The agent also testified that Judge Platt signed off on language in the
search warrant that states, “I am satisfied that the affidavit and any record
testimony establish probable cause to believe that the person or property so
described is now concealed on the person or premises above described and
establish grounds for the issuance of this warrant.” It is clear from the
testimony given that Magistrate Judge Platt carefully reviewed the warrant, the
affidavit, and the attachment and did not just give the documents a cursory
review. Furthermore, he signed the affidavit to which the specific list of items
to be seized was attached.
Prior to executing the search warrant, Agent Stone gave his fellow agents,
including the forensic analyst, a copy of the search warrant as well as the
affidavit and attachments which specifically listed the items to be seized. Stone
testified that he did this so they could review it and know what they were
searching for. In fact, all of the agents and law enforcement officers who
participated in the search were given the affidavit and attachments in advance
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of the search. There was a brief meeting before executing the warrant, but the
affidavit and its attachments were all reviewed and handed to the agents prior
to that meeting. Agent Stone told the court at the suppression hearing that after
they began executing the warrant, they contacted the U.S. Attorney’s office
several times with questions about what they could seize.
During the hearing Agent Stone was asked, “Did you have any reason to
believe prior to executing the search warrant that it was not valid? He answered,
“No, ma’am.” Then the AUSA asked, “Did you, in fact, think that it was a valid
warrant and that you had taken the necessary steps to be cautious and actually
make sure you had a valid warrant that was approved not only by a magistrate
but by the U.S. Attorney’s office and your colleagues at ICE?” The Agent
answered, “Yes, ma’am, I did.” Although the good faith inquiry is ultimately an
objective one, the record clearly demonstrates that Agent Stone had a subjective
belief that the warrant was valid and the search was constitutional. Further,
his actions and those of the magistrate judge gave Agent Stone good reason to
believe in the warrant’s validity.
Allen argues that the warrant was so facially deficient in failing to
particularize the things to be seized that Agent Stone could not reasonably
believe the warrant was valid. As stated, the Government agrees that the
warrant was not sufficiently particularized and that the attachment, which
described in detail the items to be seized, was not referenced in the warrant.
However, not every deficient warrant is so deficient that an officer would lack
a reasonable basis for relying on it. Otero, 563 F.3d at 1136. As the Tenth
Circuit has stated, a reviewing court “must also review the text of the warrant
and the circumstances of the search to ascertain whether the agents might have
reasonably presumed it to be valid.” United States v. Riccardi, 405 F.3d 852,863
(10th Cir. 2005) (quoting United States v. Leary, 846 F.2d 592, 607 (10th Cir.
1988)).
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In this case, although the language that was ultimately used in the
warrant was flawed in that it did not reference the Exhibit containing the
affidavit and list of items to be seized, a reasonable officer could have easily
concluded that the warrant was valid. The warrant, along with the affidavit and
attached list of items to be seized, had been reviewed at many levels, and the
affidavit had been signed by the magistrate judge. Agent Stone clearly
attempted to properly perform his duty prior to seeking the magistrate’s
approval to make sure he had drafted a valid warrant that was supported by
probable cause. The ultimate mistake was not that the documentation was
insufficient to support issuance of the warrant, but that the attachment and
affidavit were not properly incorporated into the warrant by reference.
Allen argues that the warrant must be suppressed under Groh v. Ramirez
in which the Court denied qualified immunity to agents who acted on a search
warrant that was insufficiently particular. The district court below decided that
the Groh case did not require suppression in the instant case. As support for
this conclusion, the district court pointed out that Groh was a civil case in which
the agents were being sued in their personal capacity. It did not deal with
whether or not the exclusionary rule should be applied. The Government argues
that this distinction is relevant and points to the Seventh Circuit, which has
said:
Groh was a suit for damages; we doubt that the Court would have
invoked the exclusionary rule when a description of the things to be
seized, though missing from the warrant, appeared in an affidavit
that was filed with the court in support of the application and was
respected when the search occurred.
United States v. Cazares-Olivas, 515 F.3d 726, 729 (7th Cir. 2008).
However, the district court was incorrect to distinguish Groh on the basis
of its civil origins. As the Groh Court itself pointed out, “the same standard of
objective reasonableness that we applied in the context of a suppression hearing
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in Leon defines the qualified immunity afforded an officer.” Groh, 540 U.S. at
565 n.8 (quoting Malley v. Briggs, 475 U.S. 335, 344 (1986)(other citations
omitted)).
The district court also held that there was no “glaring deficiency” in this
case as there was in Groh. In Groh, the portion of the warrant calling for the
items and persons to be seized described a “single dwelling residence two story
in height which is blue in color.” The description of the property to be seized in
this case was “[p]roperty designed or intended for use or which has been used as
the means of committing a criminal offense or that contains evidence of the
commission of a criminal offense.” While this may not rise to the Groh level of
a “glaring deficiency,” it is certainly an obvious error which makes the warrant
facially invalid.
Nevertheless, this case is distinguishable from Groh. The distinguishing
factor in this case is that the magistrate judge signed not only the warrant, but
also the affidavit, to which the list of items to be seized was attached. Thus, the
executing officer who prepared the warrant, the affidavit and the attachment
and had them reviewed by his colleagues, the prosecutors and the magistrate
judge had additional objective reason to believe the warrant was valid. Because
of this, the officer’s conduct was less culpable, and therefore less likely to be
deterred by applying the exclusionary rule, than the conduct in Groh.
Additionally, the magistrate judge’s signature on the affidavit reduces the
concern that he did not agree to the scope of the search as defined and limited
therein. This demonstrates that one of the core purposes of the Fourth
Amendment, preventing a “general” search by having a magistrate restrict the
scope of the search, was achieved here. See Groh, 540 U.S. at 561 & n.4 (“[W]e
therefore cannot know whether the Magistrate was aware of the scope of the
search he was authorizing.”); see also United States v. Tracey, 597 F.3d 140, 153
(3d Cir. 2010) (finding good faith when an officer failed to properly incorporate
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a detailed affidavit that was physically attached to the warrant, where the
magistrate signed each page of the affidavit and the search was executed by the
officer who prepared the warrant; and noting that “the primary purpose of the
Fourth Amendment’s particularity requirement . . . was achieved in this case”).
This case is factually similar to both Otero and Riccardi, two previously
cited Tenth Circuit cases which applied the good-faith exception. In Otero, the
Court considered the circumstances surrounding the issuance of the warrant and
the execution of the warrant in deciding whether or not the good-faith exception
applied. Otero, 563 F.3d at 1134. The Otero Court noted that the officer had
attempted to craft a warrant that would authorize a search for evidence of mail
and credit card theft. Id. While the language was deficient and it failed the
particularity requirement of the Fourth Amendment, the Court noted that the
officer had sought the assistance of the Assistant United States Attorney who
had assured the officer that the language satisfied legal requirements and had
received approval from the magistrate. Id. Moreover, the Otero Court noted
that the search was limited to evidence of the mail and credit card theft. Id.
In Riccardi, the Tenth Circuit considered a case in which the warrant to
seize and examine the defendant’s computer failed to satisfy the Fourth
Amendment’s particularity requirement. Riccardi, 405 F.3d at 863.
Nevertheless, the Court found that certain factors supported the district court’s
finding that there was good-faith. This included the fact that the investigating
officers carefully limited their search to files relevant to the investigation, and
to the scope of the search as it was described in the affidavit. Moreover, the
officers, as in the instant case, temporarily suspended their search to ask
questions of legal counsel. Id. at 864.
As in Otero and Riccardi, the agents in this case limited their search to
evidence of child pornography and seized only the evidence that was specified on
Exhibit B to the affidavit. The care Agent Stone took in making sure everyone
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had a copy of the affidavit and supporting documents prior to the search
indicates the officer was dedicated to doing things the proper way. Based on
these factors, the good-faith exception should be applied in this case.
We therefore conclude that the error in this case simply does not rise to a
level which requires application of the exclusionary rule. Although the executing
agent was partially at fault, as he is the one who drafted the warrant and failed
to incorporate the attachment and the affidavit into the warrant, the fault was
merely negligent. There was no deliberate, reckless or grossly negligent conduct
by law enforcement officers generally, nor specifically by the executing agent.
Nor was there recurring or systemic negligence. See Herring, 129 S.Ct. at 702.
Exclusion of the evidence seized under the authority of the invalid warrant in
this case therefore would not have the desired deterrent effect under Herring.
Accordingly, the district court did not err in denying Allen’s motion to suppress.
The negligent mistake in the warrant does not require “the extreme sanction of
exclusion.” Id. at 700.
The Government argues that because the good-faith exception applies, this
court need not consider the issue of whether there was sufficient probable cause.
However, because the good-faith exception applies to the particularity challenge
does not presume its application to the other challenges leveled by Allen.
Regardless, we find that the search resulting from reliance on the evidence of
child pornography used to establish the basis for the issuance of the warrant was
not stale and that sufficient probable cause existed for the issuance of the
warrant. We also conclude that the district court did not err in excluding the
proffered testimony regarding the lascivious nature of the images used to
establish probable cause. Each of these findings will be discussed in turn.
A magistrate’s determination of probable cause is entitled to great
deference by reviewing courts. Gates, 462 U.S. at 216 & n.10. A magistrate
needs only a substantial basis for concluding that a search would uncover
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evidence of wrongdoing. Jones v. United States, 362 U.S. 257, 271 (1960),
overruled on other grounds by United States v. Salvucci, 448 U.S. 83 (1980). As
this court has said, the task of a magistrate signing a search warrant is simply
to make a “practical common-sense decision as to whether, given all the
circumstances set forth in the affidavit . . ., there is a fair probability that
contraband or evidence of a crime will be found in a particular place.” United
States v. Froman, 355 F.3d 882, 889 (5th Cir. 2004) (internal quotation marks
and citation omitted).
The affidavit certainly provided enough information to permit the
magistrate to decide that there was a fair probability that child pornography
would be found at Allen’s home. The affidavit detailed how the investigation
began. Computers seized from Jeremy Rice revealed data associated with the
Google program “Hello.” The affidavit explained that the Hello program allowed
users to create a friend’s list of other Hello users by adding their email addresses
to their friends list. Friends can access each other using an encrypted
connection. The peer-to-peer networking provided by this program allows
friends to chat and trade data files, including images, in an encrypted format.
The examination of Rice’s computer revealed he had accessed the Hello account
with the name and exchanged over 1800 image files with four friends, one of
whom was identified as “candyman04.” Many of the files depicted children
engaged in sexually explicit conduct. ICE subsequently identified “candyman04”
as Jerry Mikowski.
When Mikowski’s computer was searched, a file named “friends.xml” was
discovered. The file contained a list of Mikowski’s current Hello “friends.” The
examination also revealed that Mikowski traded child pornography with dozens
of Hello users. One friend was identified as “mrhyde6988.” 2
2
Mikowski was subsequently convicted of Distributing Images of Minors Engaging in
Sexually Explicit Activity in violation of 18 U.S.C. § 2252(a)(2).
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Information provided by Google pursuant to a subpoena indicated that the
H ello user name “m yrhyde6988” used the em ail address
mrhyde6988@yahoo.com. Google records indicated that “mrhyde 6988”
registered with the Google Hello program on December 6, 2006 and that he had
logged into the program from only one IP address from April 17, 2007 through
May 7, 2007 and he had accessed the program 23 times during this period.
Yahoo, pursuant to a subpoena, provided information on the
“myhyde6988@yahoo.com” email address. Yahoo identified the same IP address
that Google had given investigators earlier. Their information indicated the
account holder was a Mr. Hyde from New York, New York. A third subpoena,
this time to Clearwire, LLC, revealed the IP address was associated with David
Allen in Midland, Texas.
Images were obtained from Mikowski’s (candyman04) computer. The
images were of what appeared to be prepubescent females posing nude. The
images came from a file named “frommrhyde6988.” This indicated to the agent
that “mrhyde6988” distributed at least two images of children engaged in
sexually explicit conduct. The affidavit described the images in detail. The file
name of the first image was “11 very hot.”
This information was clearly sufficient to support the magistrate’s decision
that there was probable cause to believe evidence of child pornography would be
found in Allen’s home on his computer. The information presented in the
affidavit proved pornographic images had been sent to candyman04 and placed
in a file labeled with Allen’s user ID for the Hello program. The investigation
traced the user name and the IP address used to access the Hello program to
Allen’s computer in Midland. Therefore, it was reasonable for the magistrate to
conclude Allen had sent copies of the pornographic images to his Hello friend
“candyman04" and that he still either retained those images or had more stored
on his computer. See Froman, 355 F.3d at 890-91 (upholding a finding of
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probable cause to search the defendant’s computer and other electronic
equipment, stating that “it is common sense that a person who voluntarily joins
a group such as Candyman [an online pornography club], remains a member of
the group for approximately a month without cancelling his subscription, and
uses screen names that reflect his interest in child pornography, would download
such pornography from the website and have it in his possession”).
Allen argues that the fact that images of child pornography on
candyman04's computer were labeled “frommrhyde6988” was not sufficient
probable cause to support the warrant. Allen submits that candyman04 could
have labeled the files this way even if they were not sent to him by mrhyde6988.
Allen’s argument ignores the fact that he had enrolled in the Hello program and
had become one of candyman04's online “friends.” When those facts are coupled
with the way the files are labeled, there is clearly probable cause to believe Allen
had transmitted child pornography over the internet with his computer.
The affidavit also states that the forensic examination of Mikowski’s
(candyman04) computer revealed that Mikowski “traded child pornography with
dozens of Hello users. One user with whom Mikowski traded child pornography
was identified as ‘mrhyde6988’”. The fact that Mikowski was using the Hello
program to trade child pornography with dozens of users makes it likely that he
had also traded child pornography with Allen. It also further supports the
conclusion that the photos labeled from “frommrhyde6988” were in fact from Mr.
Hyde, who was later identified as Allen.
As the district court noted, the “peculiarity of the user name ‘mrhyde6988,’
the fact that this user name was listed as one of Mikowski’s ‘friends’ on the file
sharing service on which he was known to trade child pornography, and the fact
that a file containing child pornography was labeled ‘frommrhyde6988’ on
Mikowski’s computer, provides enough information for this Court to find that
probable cause existed.” We agree.
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Further, Allen used a false name and address when he opened an account
for his “mrhyde6988@yahoo.com” email address. Clearly, the magistrate could
infer that Allen wanted to conceal his identity by using the name “Mr. Hyde” and
a New York address because he was involved in distributing child pornography.
The affidavit is not required to give the magistrate proof beyond a reasonable
doubt. Rather, the Fourth Amendment requires only that there is probable
cause to believe that the fruits, instrumentalities or evidence of criminal acts
exist at the place for which the warrant is requested. Gates, 462 U.S. at 238.
The information was sufficient to establish probable cause.
Allen argues the information concerning the photographs stored as
“frommrhyde6988” was stale and therefore could not be used to provide probable
cause. The district court correctly rejected this claim. In its opinion, the district
court recognized that the affidavit did not establish when the photographs were
transferred by Allen to Mikowski. However, the court found that because Allen
initiated use of his “Hello” account on December 6, 2006, that would have been
the earliest date the photos could have been sent. The court then assumed, for
purposes of analyzing the issue, the images were transferred at the first
opportunity, on December 6, 2006. Therefore, the facts underlying the warrant
were 18 months old on the date the warrant was issued. The district court found
the information was not so stale as to render official belief in its adequacy
unreasonable. We concur with the conclusion of the district court.
The amount of delay which will make information stale depends upon the
particular facts of the case, including the nature of the criminal activity and the
type of evidence sought. Bastida v. Henderson, 487 F.2d 860, 864 (5th Cir.
1973). As with other issues concerning probable cause, a magistrate’s decision
is given considerable deference in the absence of arbitrariness, and the
magistrate is expected to act reasonably and use common sense. Id. at 863.
In this case, the magistrate could have reasonably concluded that the
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pornographic images were still on the computer at Allen’s home at the time the
warrant was issued. This conclusion is reasonable given the nature of the
evidence sought. In the affidavit submitted to the magistrate, the affiant said
that the computer’s ability to store images in digital form makes it an ideal
repository for child pornography. Internet access permits a computer user to
transport and download an image file to his own computer. Important to the
staleness issue, the magistrate was advised that computer files or remnants of
such files can be recovered months or even years after they have been
downloaded onto a hard drive, deleted, or viewed via the internet.
Agent Stone reported to the magistrate in his affidavit that because of the
fact that Allen appears to have traded images depicting child pornography and
engaged in chat sessions discussing the trade of child pornography, the agent
believed Allen had a sexual interest in children. The agent went on to say that
individuals who have a sexual interest in children or images of children often
maintain their collection on a computer and maintain these collections for
several years.
A number of courts have considered the issue of whether information in
a child pornography case is stale for the purposes of determining whether there
was probable cause for the issuance of a warrant. In Riccardi, 405 F.3d at
860-61, the Tenth Circuit considered whether a five-year-old Kinko’s receipt
found in an envelope with non-pornographic pictures was too stale to support
probable cause for the issuance of a search warrant. The court explained that
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. Id. The court
went on to say that although the Kinko’s receipt may have been five years old,
it showed that the defendant had the desire and ability to convert Polaroid
photographs of children to a digital format, which is a common means by which
child pornographers distribute and exchange their materials. Id. While the
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receipt was not the only evidence that supported probable cause, the receipt
could be considered despite its age. It was not “stale.” Id.
In United States v. Frechette, 583 F.3d 374 (6th Cir. 2009), the Sixth
Circuit held that information presented to a magistrate judge regarding a
suspect’s purchase of a one-month subscription to a child pornography site was
not stale though the purchase of the subscription occurred 16 months prior to the
search. Id. at 378-79. In reaching this conclusion, the court noted that the crime
is generally carried out in the secrecy of the home and over a long period;
therefore the same time limitations that apply to more fleeting crimes do not
apply to child pornography cases. Id. at 378.
In United States v. Lacy, 119 F.3d 742, 745 (9th Cir. 1997), the Court
upheld a search warrant based on information ten months old. The court
explained that information is not stale because the affidavit provided ample
reason to believe pornography was in Lacey’s apartment. Id. at 745-46; see also
United States v. Paull, 551 F.3d 516 (6th Cir. 2009) (information that the
defendant subscribed to child pornography 13 months earlier was not stale);
United States v. Morales-Aldahondo, 524 F.3d 115, 119 (1st Cir. 2008) (holding
that “[t]he passage of more than three years from the acquisition of the evidence
until the warrant application [did not] render[] the evidence stale” in a child
pornography case); and United States v. Newsom, 402 F.3d 780, 783 (7th Cir.
2004) (“Information a year old is not necessarily stale as a matter of law.”).
Accordingly, we find that the district court did not err when it found the
information was not stale.
Allen also claims there was not probable cause because the photographs
of children referenced in the affidavit were not “lascivious” and therefore were
not child pornography. The district court applied the factors set forth in United
States v. Bouderau, 250 F.3d 279, 282 n.2 (5th Cir. 2001) to analyze the
lascivious nature of the photographs. After doing so, the district court concluded
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that it was reasonable for officials to believe that the photos were child
pornography and rejected Allen’s argument by expressly holding that the
probable cause determination based on the lascivious nature of the photographs
was well founded.
The court noted that the photos displayed children with the pubic area
plainly exposed. One photo showed a girl in an unnatural pose who was fully
nude in the setting of a hotel room. The other photo was entitled “11 very hot.”
The court noted that the girl, posing nude in front of a bed without clothing in
thigh-high stockings, was suggestive. Given these facts, the court found it
reasonable for officials to believe the photos were child pornography and the
photos gave those officials probable cause to believe pornography would be found
on Allen’s home computer. See United States v. Hill, 459 F.3d 966, 972 (9th Cir.
2006) (upholding a finding of probable cause based on, inter alia, the description
of the images in the affidavit and stating that there was a fair probability that
the images were “so presented by the photographer as to arouse or satisfy the
sexual cravings of a voyeur.”) (internal quotation marks and citations omitted).
The district court did not err in finding the description of the pictures supported
the finding of probable cause.
Finally, Allen argues the district court erred in excluding the testimony
of Nancy Piette, a private investigator, at the suppression hearing. Allen states
in his brief that Piette would have testified that she reviewed the descriptions
of the two photographs in the affidavit in support of the search warrant and she
would have stated that the photographs are the same or very similar to
photographs found in various books in libraries throughout the country.
Allen submits that the court erred in excluding the evidence because it
was relevant. We disagree. Whether the photographs described in the affidavit
were similar to other photographs Piette may have found is not relevant to
either the issue of probable cause or good-faith. What was at issue was whether
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the description of the images that was contained in the affidavit was sufficient
to provide probable cause to believe child pornography would be located on
Allen’s computer. The district court did not err in excluding this testimony and
the admission of the photographs. See Hill, 459 F.3d at 972 (evaluating probable
cause based on the description of the images in the affidavit and not the images
themselves).
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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