NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 7, 2017
Decided August 7, 2017
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
No. 17‐1354
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 16‐CR‐40022‐JPG‐1
CHARLES B. WEATHERMAN, J. Phil Gilbert,
Defendant‐Appellant. Judge.
O R D E R
Charles Weatherman entered a conditional guilty plea to one count of possessing
child pornography, 18 U.S.C. § 2252A(a)(5)(B), after authorities executing a search
warrant at his home turned up child pornography on his electronic devices. On appeal
Weatherman claims that the district court should have granted his motion to suppress,
which argued that the affidavit supporting the search warrant was deficient because the
investigator did not attach the images of child pornography he expected to find or
include a description of those images. Whether or not the affidavit was deficient,
however, we conclude that the search warrant was executed in good faith. On that basis
we uphold the denial of Weatherman’s motion to suppress.
No. 17‐1354 Page 2
In March 2015, FBI special agent Tyrone Forte applied for a warrant to search
Weatherman’s home on suspicion that Weatherman possessed child pornography.
Agent Forte supported his application with an affidavit explaining that he had worked
at the FBI for 24 years, the last 10 investigating violent crimes against children. After
explaining his knowledge of the ways in which child pornography is produced,
possessed, and traded over the Internet, Forte described the course of the FBI’s
investigation into the production and distribution of child pornography by
Jason Carpenski, a Maryland resident. That investigation had led investigators to
Weatherman.
Agent Forte explained that Carpenski had been indicted on charges of producing,
possessing, and distributing child pornography. See 18 U.S.C. §§ 2251(a), 2252(a)(2),
2252A(a)(5)(B). Carpenski had admitted taking an illicit photo of a minor and sharing it
through email and a Craigslist post. According to Forte, a search of Carpenski’s email
account revealed he had sent “at least one image of child pornography” to several other
accounts, including “mrscarrierobert@yahoo.com” and
“kendrahammer94@yahoo.com.” One image in particular, titled “CAM00313,” was sent
to both of those addresses. Someone using the “kendrahammer94@yahoo.com” address
responded to Carpenski’s email with eight more images. Seven of those, Forte declared,
were child pornography. And someone using the “mrscarrierobert@yahoo.com” address
sent Carpenski two images that Forte also characterized as child pornography.
Based on Yahoo! subscriber data, Agent Forte came to believe that Weatherman
was the man behind the two email accounts, “kendrahammer94@yahoo.com” and
“mrscarrierobert@yahoo.com.” These accounts had been opened within a month of each
other and most recently had been accessed from the same Internet Protocol address.
Forte traced that IP address to subscribers Virginia and Terry Weatherman at 703 Prairie
Street in Altamont, Illinois. Public records showed that Terry Weatherman was
deceased, though a Charles Weathermen also resided at the same address. Public
records further linked Charles Weatherman to another address in Altamont, 201 Clover
Street. The residence at that address was abandoned, but over the course of several days
investigators saw a van registered to Charles Weatherman parked at 703 Prairie Street.
Agent Forte’s suspicions were heightened when he investigated
Charles Weatherman’s Facebook profile. His Facebook page identifies as friends
Kendralynn Hammer and Carrie Roberts—names corresponding with the email
addresses that received images from Carpenski. The Facebook accounts had been
opened around the same time as the email accounts, and the Facebook page for Hammer
No. 17‐1354 Page 3
includes a photo depicting Kenralynn Hammer as a young woman who, according to
Forte, was possibly 17 years old. Neither page had much activity, Forte said, but the
profiles listed one another—and Charles Weatherman—as friends. The page for
Hammer was captioned “I’ll be your little naughty angel,” while the Roberts page was
captioned “My Angel.” Agent Forte believed these accounts were fictitious and
explained his understanding that persons have used phony Facebook accounts “to target
and gain access to unsuspecting young boys and girls in order to begin the grooming
process.” Forte further described his knowledge that “certain individuals use these
fictitious accounts to find other adults with their same interests to either validate their
own inappropriate actions toward juveniles or to begin to trade images, movies or
recounted stories of sex with minors to satisfy their sexual desires.”
Weatherman’s Facebook page revealed connections with additional profiles that
Agent Forte suspected were fictitious. These other profiles purported to represent young
women with “sexually suggestive overtones such as bondage, incest, nudist
communities and role playing.” Several of the accounts had been accessed from the same
two or three IP addresses, meaning that, on multiple occasions, the same computer and
wireless connection had been used to log in to each account.
Based on this information, a magistrate judge issued a search warrant for the
residence at 703 Prairie Street. Federal agents executed that warrant and seized
computers, thumbdrives, and other electronic devices. Forensic analysis uncovered child
pornography, leading to Weatherman’s indictment for possessing child pornography,
18 U.S.C. 2252A(a)(5)(B).
Weatherman moved to suppress those images on the ground that the search
warrant was not supported by probable cause because Agent Forte’s affidavit does not
describe the suspected images of child pornography. Weatherman further argued that
the agents who executed the warrant would have known that the supporting affidavit
fails to demonstrate probable cause, and thus the government could not rely on the
good‐faith exception to defeat his motion to suppress.
The district court denied Weatherman’s motion. The court acknowledged that the
magistrate judge was not entitled to rely on Agent Forte’s conclusory statements
characterizing as “child pornography” the photos sent by Carpenski to the email
addresses believed to be operated by Weatherman. But, the court concluded, even
without those conclusory statements, the affidavit establishes probable cause to believe
that Weatherman possessed child pornography. The court pointed to the fact that
Carpenski had been indicted for producing, possessing, and distributing child
No. 17‐1354 Page 4
pornography and that Carpenski had sent images to email accounts traced to
Weatherman. Not only had a grand jury determined that Carpenski produced child
pornography, but Carpenski himself had admitted taking a pornographic image of a
minor and sending it to others by email. The court further noted the pattern of
suspicious Facebook and email personas likely created by Weatherman, which, in
Forte’s training and experience, indicated an interest in the sexual activity of children.
Thus concluding that the affidavit supports a finding of probable cause, the district court
declined to address whether the agents who executed the warrant had acted in
good‐faith reliance on the issuing judge’s determination.
Weatherman entered a conditional guilty plea, reserving his right to challenge the
suppression ruling on appeal. He was sentenced to 120 months’ imprisonment and
5 years’ supervised release.
On appeal Weatherman renews his contention that the search‐warrant affidavit
does not establish probable cause. He argues in his brief that “a search warrant affidavit
seeking authority to search for evidence of child pornography offenses must contain
either the actual images suspected of being child pornography or a detailed verbal
description of them.” But at oral argument, Weatherman’s counsel conceded that our
precedent does not require that every affidavit supporting a search warrant in a
child‐pornography case be accompanied by an image or detailed description of an
image. See United States v. Clark, 668 F.3d 934, 940–41 (7th Cir. 2012); United States v. Lowe,
516 F.3d 580, 586 (7th Cir. 2008). Indeed, such an argument would fail. Our precedent
requires that if a probable‐cause determination is based on an affiant’s knowledge that a
suspect produced, possessed, or distributed specific images of “child pornography,” the
issuing judge must independently determine whether those images meet the legal
definition of child pornography. See Clark, 668 F.3d at 940–41. The judge cannot accept at
face value the affiant’s characterization of those images as child pornography but,
instead, must either examine the images or evaluate detailed verbal descriptions. Id.
at 941; see Lowe, 516 F.3d at 586. The reason for this rule is that “identifying images as
child pornography will almost always involve, to some degree, a subjective and
conclusory determination on the part of the viewer” which must be made by the judge,
not the affiant. United States v. Pavulak, 700 F.3d 651, 661 (3d Cir. 2012) (quotations marks
and citations omitted); see also Illinois v. Gates, 462 U.S. 213, 239 (1983) (“Sufficient
information must be presented to the magistrate to allow that official to determine
probable cause; his action cannot be a mere ratification of the bare conclusions of
others.”).
No. 17‐1354 Page 5
If the determination of probable cause is based on more than just an affiant’s
conclusory characterization of an image as child pornography, however, a search
warrant will not be invalid simply because the supporting affidavit lacks a reproduction
of the image or a description. Rather, a reviewing court may look to the other facts
contained in the affidavit to see if those facts could establish probable cause without the
conclusory references to child pornography. Clark, 668 F.3d at 941. In Clark we did just
that, concluding that the affidavit still established probable cause because there was
evidence that the defendant had sexually assaulted at least three children and used a
computer in at least one of those instances. Id.
Excising all conclusory references to child pornography from the affidavit in this
case leaves us with a thin set of facts from which to determine whether probable cause
existed. The affidavit states that Carpenski, a man who admitted producing child
pornography and emailing it to others, sent several images to two email addresses
traced to Weatherman. Each email address incorporates a woman’s
name—Kendra Hammer and Carrie Roberts—corresponding to a Facebook profile listed
as a “friend” on Weatherman’s own Facebook page. Both profiles had been accessed
from an IP address assigned to a computer in Weatherman’s home. Agent Forte averred
that, given his expertise, he believed the Facebook pages were fictitious accounts of the
type typically used by persons trying to find and gain access to young boys and girls and
to connect with other adults with similar interests in sexual activity with minors.
The district court concluded that these facts were “just enough” to establish
probable cause, and Weatherman raises several challenges to that determination. But
even if the affidavit is insufficient to support probable cause, the information it includes
is enough to justify the executing agents’ good‐faith reliance on the warrant.
Suppression of evidence is not an appropriate remedy for a deficient search
warrant where the agent who executed the warrant did so with a good‐faith belief that
the warrant was supported by probable cause. See United States v. Leon, 468 U.S. 897
(1984). Agent Forte’s decision to seek a warrant is prima facie evidence of good faith.
See United States v. Woolsey, 535 F.3d 540, 546–47 (7th Cir. 2008). To rebut that
presumption, Weatherman was required to show that either “the issuing judge
abandoned his role as a neutral and detached arbiter, that the officers were dishonest or
reckless in preparing the supporting affidavit, or that the affidavit was so lacking in
probable cause that no officer could have relied on it.” United States v. Mykytiuk, 402 F.3d
773, 777 (7th Cir. 2005). Weatherman argues that, because Clark’s requirements were
clear when Forte drafted his affidavit, his omission of the images or a description
No. 17‐1354 Page 6
constituted disregard for, or ignorance of, clearly established circuit law. He further
argues that the affidavit obviously is lacking in probable cause, such that the agents’
reliance on it was unreasonable.
Agent Forte reasonably could have believed that probable cause was established
simply based on the fact that Weatherman had exchanged images with a known
producer of child pornography. This is especially plausible given the agent’s suspicions
(which Weatherman never has refuted) that Weatherman had created several false
Facebook personas and email addresses in an attempt to either groom unsuspecting
minors to participate in sexually explicit activities or to connect with other collectors of
child pornography.
Moreover, the description in Carpenski’s indictment of the same photo referenced
in the warrant affidavit—CAM00313—makes clear that the image is child pornography,
so there is no credible argument that the warrant affidavit was intended to mislead by
omitting that description. See Indictment, United States v. Carpenski, No. 14‐CR‐461‐CCB
(D. Md. October 1, 2014), ECF No. 1. The indictment specifically references the photo
entitled “CAM00313” as the basis for the production charge, and describes the image as
depicting Carpenski “touching the genitalia of Jane Doe,” a minor female, less than
twelve years of age. See Indictment, United States v. Carpenski, No. 14‐CR‐461‐CCB (D.
Md. October 1, 2014), ECF No. 1. Although leaving the description out of the warrant
affidavit may have been sloppy, the omission did not render the warrant so obviously
lacking in probable cause (when combined with the other facts) to preclude good‐faith
reliance on the magistrate judge’s determination of probable cause. See Woolsey, 535 F.3d
at 547.
The judgment of conviction thus is AFFIRMED.