USA v. David Allen

Filing

PUBLISHED OPINION FILED. [09-50283 Affirmed ] Judge: EGJ , Judge: EMG , Judge: KS Mandate pull date is 11/29/2010 for Appellant David Roger Allen [09-50283]

USA v. David Allen Case: 09-50283

Document: 00511284538 Page: 1 Date Filed: 11/04/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 4, 2010 N o . 09-50283 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. DAVID ROGER ALLEN, D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Western District of Texas

B e fo r e JOLLY and GARZA, Circuit Judges and STARRETT 1 , District Judge. K E I T H STARRETT, District Judge: D a v id Roger Allen (Allen) appeals the district court's denial of a motion to s u p p r e s s evidence seized in an allegedly illegal search. He argues the search w a r r a n t was overbroad, lacked particularity, was based on stale information and w a s not supported by probable cause. Allen, a college professor and first time o ffe n d e r , was indicted by a federal grand jury on May 28, 2008. The indictment c h a r g e d Allen with two Counts of Shipping by Computer, Visual Depictions of M i n o r s Engaging in Sexually Explicit Conduct (Counts One and Two) and a n o t h e r Count charging Receiving Matter Containing Visual Depictions of M in o r s Engaging in Sexually Explicit Conduct (Count Three).
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District Judge of the Southern District of Mississippi, sitting by designation.

Dockets.Justia.com

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09-50283 A lle n filed a motion to suppress the evidence seized from his home p u r s u a n t to a search warrant on the basis that the search warrant was invalid u n d e r the Fourth Amendment because it lacked particularity and was not s u p p o r t e d by probable cause. After an evidentiary hearing, the district court d e n ie d the Motion to Suppress and excluded, as irrelevant, the testimony of a d e fe n s e 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 p le d guilty to Count Three of the Indictment pursuant to a plea agreement. In t h e plea agreement, Allen waived his right to appeal the conviction or sentence, b u t reserved the right to appeal the motion to suppress and any and all e v id e n t ia r y rulings made during the hearing on the motion to suppress. The r e m a in in g two counts were dismissed. A s set forth in the Factual Basis filed in support of the guilty plea, the fo llo w in g occurred: I n July of 2006 Agents with Immigration and Customs E n fo r c e m e n t (ICE) identified an individual in Oregon by the name o f Jeremy Rice. A forensic examination of Rice's computer reveal[ed] o v e r 1,800 images depicting minors engaging in sexually explic[i]t c o n d u c t . Rice was found to exchange or share those files using a G o o g le program called Hello. Rice was found to have exchanged t h e s e child pornography images with an individual later identified a s Jerry Mikowski of Michigan. Mikowski's computer was seized on o r about March 29, 2007, during the execution of a court authorized s e a r c h warrant. A forensic examination of Mikowski's computer r e v e a le d approximately 2,000 images of child pornography. A list of M ik o w s k i's Google Hello "friends" included "mrhyde6988". A s u b s e q u e n t investigation revealed "mrhyde6988" to be this d e fe n d a n t . A file found on Mikowski's computer entitled "from m r h y d e 6 9 8 8 " contained two images of minor females, the reviewing M a g is t r a t e Judge found these images to depict minors engaging in s e x u a lly explicit conduct, to wit: the lascivious exhibition of the g e n it a lia of these children. On or about May 15, 2008, ICE Agents executed a court 2

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09-50283 a u t h o r iz e d search warrant at the defendant's residence. Several c o m p u t e r s and external hard drives were seized. A forensic e x a m in a t io n of the defendant's computer revealed approximately 3 ,3 0 0 images of child pornography, of those approximately 40 im a g e s , including duplicates, involved depictions of children in v o lv e d in "bondage", a form of sadomasochism, and approximately t w o depict children involved in beastiality [sic]. The children d e p ic t e d in these images vary in age from infancy to approximately 1 5 years of age. On or about December 13, 2006, the defendant shared images w it h Mikowski, known to him as "candyman". Additionally, on or a b o u t February 22, 2007, the defendant also used the Google Hello p r o g r a m on his computer to send several images to an individual k n o w n only as "lilangel55555". During the investigation, Agents d is c o v e r e d that, in addition to receiving child pornography images, t h e defendant also shipped and transported child pornography im a g e s in interstate commerce. These images were sent using the G o o g le Hello program. A lle n was sentenced on Count Three to 121 months imprisonment and 10 y e a r s of supervised release. He subsequently filed a timely notice of appeal, a r g u in g that the district court erred in denying his motion to suppress. Specifically, Allen contends that the search warrant lacked particularity, in v io la t io n of the Fourth Amendment, and was based on stale information, overb r o a d , and not supported by probable cause. Allen further contends that the two im a g e s found on the Michigan computer did not depict minors engaged in s e x u a lly explicit conduct and thus were insufficient to provide the magistrate ju d g e with a substantial basis for concluding that probable cause existed to issue t h e warrant. Finally, Allen appeals the exclusion of testimony at the

s u p p r e s s io n hearing. S T A N D A R D OF REVIEW W h e n reviewing the denial of a motion to suppress, we review factual fin d in g s for clear error and legal conclusions regarding the sufficiency of the w a r r a n t or the reasonableness of an officer's reliance on a warrant de novo.

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09-50283 U n ite d 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 m o s t favorable to the prevailing party, in this case, the United States. United S ta te s v. Garza, 118 F.3d 278, 282 (5th Cir. 1997). The Fourth Amendment requires a warrant to "particularly describ[e] the p la c e to be searched, and the persons or things to be seized." U.S. Const. amend. I V . The Fourth Amendment's particularity requirement demands that the place t o be searched and the items to be seized be described with sufficient p a r tic u la r it y so as to leave "nothing . . . to the discretion of the officer executing t h e warrant." Marron v. United States, 275 U.S. 192, 196 (1927); Williams v. K u n z e , 806 F.2d 594, 598 (5th Cir. 1986)("The items to be seized must be d e s c r ib e d with sufficient particularity such that the executing officer is left with n o discretion to decide what may be seized."). See also United States v.

C h r is tin e , 687 F.2d 749, 752 (3d Cir. 1982) ("The particularity requirement `m a k e s 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 S e p t . 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 A m e n d m e n t is unconstitutional." Groh v. Ramirez, 540 U.S. 551, 559 (2004)

(q u o tin g Massachusetts v. Sheppard, 468 U.S. 981, 988 n.5 (1984) (internal c it a t i o n s omitted)). "When the Government conducts a search pursuant to a w a r r a n t that does not particularly describe the things to be seized, the a p p r o p r ia te remedy is for the court to exclude from the evidence in a later c r im in a l action the items improperly taken." Cook, 657 F.2d at 734. T h is Court conducts a two-part inquiry to determine whether a seizure c o n d u c t e d pursuant to a search warrant violated the Fourth Amendment. Cherna, 184 F.3d at 407. First, we ask whether the seizure falls within the good4

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09-50283 fa it h exception to the exclusionary rule. United States v. Leon, 468 U.S. 897, 9 2 0 -2 1 (1984); Cherna, 184 F.3d at 407. The good-faith inquiry is confined "to t h e objectively ascertainable question whether a reasonably well trained officer w o u ld have known that the search was illegal despite the magistrate's a u t h o r i z a t i o n ." Leon, 468 U.S. at 923 n.23. Thus, under the good-faith

e x c e p t io n , if the evidence was obtained by law enforcement officers who relied o n the warrant in objectively reasonable good-faith, then the evidence obtained d u r in g the search is admissible. United States v. Davis, 226 F.3d 346, 351 (5th C ir . 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 w a s not sufficient to establish probable cause. Id. If the good-faith exception a p p lie s , this court affirms the district court's decision denying the motion to s u p p r e s s . Id. If the good-faith exception does not apply, then this court goes to t h e second step and determines whether the magistrate issuing the warrant had a "substantial basis for believing there was probable cause for the search." Id. (c it in g Cherna, 184 F.3d at 407). A N A L Y S IS A t the suppression hearing, and in his motion to suppress, Allen argued t h a t the good-faith exception to the exclusionary rule should not be applied b e c a u s e the warrant was overly broad and failed the particularity requirement a n d 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 r e a s o n a b le officer would have believed the warrant was valid. The Government concedes that the warrant was not sufficiently p a r tic u la r iz e d and that the attachment detailing the items to be seized was not in c o r p o r a t e d by reference in the warrant. Nevertheless, the Government

c o n t e n d s that, under the circumstances, the agents involved in the search r e a s o n ab ly believed that the warrant was valid because the warrant application, 5

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09-50283 a ffid a v it , and attachments had been reviewed by several ICE agents and the U n ite d States Attorney's Office prior to submission to the magistrate judge. The m a g is tr a t e judge then reviewed the documents and ultimately signed both the w a r r a n t and affidavit. Furthermore, Agent Stone, the agent in charge, made c e r t a in that those taking part in the search reviewed the warrant, affidavit, and a t t a c h m e n t s and were familiar with what could be seized. T h e Government also emphasizes that the agents exercised restraint d u r in g the search by contacting the U.S. Attorney's Office several times during t h e search whenever there was a question about what could be seized. Thus, the G o v e r n m e n t argues that the evidence seized was admissible under the goodfa it h exception to the exclusionary rule. T h e warrant at issue clearly does not pass constitutional muster. It is u n d o u b t e d ly broad because of its lack of particularity, absent the affidavit and a t t a c h m e n t s . Simply incorporating the affidavit and attachments, which stated s p e c ific a lly what the search entailed and what was to be seized, by reference in t h e warrant could have cured the deficiency of the warrant. That being said, the is s u e here is not the constitutional invalidity of the warrant, but whether the e v id e n c e seized pursuant to the unconstitutionally vague warrant should be s u p p r e s s e d . Indeed, the Supreme Court has clearly stated that suppression is " a n issue separate from the question whether the Fourth Amendment rights of t h e 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)). E v e n though the warrant in this case was not sufficiently particular, we c o n c lu d e that the fruits of the search are admissible under the good-faith e x c e p t io n . See Leon, 468 U.S. at 913 ("[O]ur evaluation of the costs and benefits o f suppressing reliable physical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate leads to the conclusion t h a t such evidence should be admissible . . .."). The district court correctly found 6

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09-50283 t h a t the agents involved acted in objectively reasonable good-faith in relying on t h e 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 f a s h io n e d remedy whose focus is not on restoring the victim to his rightful p o s it io n but on deterring police officers from knowingly violating the C o n s t it u t io n . Therefore, evidence should be suppressed "only if it can be said t h a t the law enforcement officer had knowledge, or may properly be charged w it h knowledge, that the search was unconstitutional under the Fourth A m e n d m e n t ." Id. at 701 (quoting Illinois v. Krull, 480 U.S. 340, 348-49 (1987)); s e e also United States v. Otero, 563 F.3d 1127 (10th Cir. 2009). Otherwise, the " g o o d -fa it h " rule of Leon applies. T h e Herring Court identified several critical factors in deciding whether o r not evidence should be excluded: whether the application of the exclusionary r u le results in deterrence; whether the benefits of deterrence outweigh its costs; a n d whether the misconduct was flagrant or deliberate. Id. at 700-02. Then the C o u r t stated: A n error that arises from nonrecurring and attenuated negligence is thus far removed from the core concerns that led us to adopt the r u le in the first place. ... T o trigger the exclusionary rule, police conduct must be s u ffic ie n t ly deliberate that exclusion can meaningfully deter it, and s u ffic ie n t ly culpable that such deterrence is worth the price paid by t h e justice system. As laid out in our cases, the exclusionary rule s e r v e s to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. 129 S.Ct. at 702. H e r e , the police conduct was neither deliberate nor sufficiently culpable t o warrant application of the exclusionary rule. It is clear from reading the

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09-50283 t r a n s c r ip t of the suppression hearing that Agent Stone, the officer who sought t h e warrant and submitted the affidavit, had reason to believe the search w a r r a n t was proper and was supported by probable cause. He testified that he p r e p a r e d the application for the warrant, the affidavit, and the warrant. Prior t o asking the magistrate judge to execute the warrant or having the paperwork r e v ie w e d by the U.S. Attorney's office, the agent reviewed the affidavit, the w a r r a n t 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 t h e other agent's agreement that the pictures were child pornography. After the review by his co-workers, Agent Stone presented the application a n d warrant to the U.S. Attorney's office for review. Only after that review was c o m p le t e , did Agent Stone present the affidavit to Magistrate Judge Platt for r e v ie w . Judge Platt took the time to review the affidavit and the search

w a r r a n t. The agent also testified that Judge Platt signed off on language in the s e a r c h warrant that states, "I am satisfied that the affidavit and any record t e s t im o n y establish probable cause to believe that the person or property so d e s c r ib e d is now concealed on the person or premises above described and e s t a b lis h grounds for the issuance of this warrant." It is clear from the

t e s t im o n y given that Magistrate Judge Platt carefully reviewed the warrant, the a ffid a v it , and the attachment and did not just give the documents a cursory r e v ie w . Furthermore, he signed the affidavit to which the specific list of items t o be seized was attached. Prior to executing the search warrant, Agent Stone gave his fellow agents, in c lu d in g the forensic analyst, a copy of the search warrant as well as the a ffid a v it and attachments which specifically listed the items to be seized. Stone t e s t ifie d that he did this so they could review it and know what they were s e a r c h in g for. In fact, all of the agents and law enforcement officers who

p a r tic ip a t e d in the search were given the affidavit and attachments in advance 8

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09-50283 o f the search. There was a brief meeting before executing the warrant, but the a ffid a v it and its attachments were all reviewed and handed to the agents prior t o that meeting. Agent Stone told the court at the suppression hearing that after t h e y began executing the warrant, they contacted the U.S. Attorney's office s e v e r a l times with questions about what they could seize. D u r in g the hearing Agent Stone was asked, "Did you have any reason to b e lie v e prior to executing the search warrant that it was not valid? He answered, " N o , ma'am." Then the AUSA asked, "Did you, in fact, think that it was a valid w a r r a n t and that you had taken the necessary steps to be cautious and actually m a k e sure you had a valid warrant that was approved not only by a magistrate b u t by the U.S. Attorney's office and your colleagues at ICE?" The Agent a n s w e r e d , "Yes, ma'am, I did." Although the good faith inquiry is ultimately an o b je c t iv e one, the record clearly demonstrates that Agent Stone had a subjective b e lie f that the warrant was valid and the search was constitutional. Further, h is actions and those of the magistrate judge gave Agent Stone good reason to b e lie v e in the warrant's validity. A lle n argues that the warrant was so facially deficient in failing to p a r tic u la r iz e the things to be seized that Agent Stone could not reasonably b e lie v e the warrant was valid. As stated, the Government agrees that the w a r r a n t was not sufficiently particularized and that the attachment, which d e s c r ib e d 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 C ir c u it has stated, a reviewing court "must also review the text of the warrant a n d the circumstances of the search to ascertain whether the agents might have r e a s o n a b ly presumed it to be valid." United States v. Riccardi, 405 F.3d 852,863 (1 0 t h Cir. 2005) (quoting United States v. Leary, 846 F.2d 592, 607 (10th Cir. 1 9 8 8 )). 9

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09-50283 I n this case, although the language that was ultimately used in the w a r r a n t was flawed in that it did not reference the Exhibit containing the a ffid a v it and list of items to be seized, a reasonable officer could have easily c o n c lu d e d that the warrant was valid. The warrant, along with the affidavit and a t t a c h e d list of items to be seized, had been reviewed at many levels, and the a ffid a v it had been signed by the magistrate judge. Agent Stone clearly

a t t e m p t e d to properly perform his duty prior to seeking the magistrate's a p p r o v a l to make sure he had drafted a valid warrant that was supported by p r o b a b le cause. The ultimate mistake was not that the documentation was in s u ffic ie n t to support issuance of the warrant, but that the attachment and a ffid a v it were not properly incorporated into the warrant by reference. A lle n 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 w a r r a n t that was insufficiently particular. The district court below decided that t h e Groh case did not require suppression in the instant case. As support for t h is conclusion, the district court pointed out that Groh was a civil case in which t h e agents were being sued in their personal capacity. It did not deal with w h e t h e r or not the exclusionary rule should be applied. The Government argues t h a t this distinction is relevant and points to the Seventh Circuit, which has s a id : G r o h was a suit for damages; we doubt that the Court would have in v o k e d the exclusionary rule when a description of the things to be s e iz e d , though missing from the warrant, appeared in an affidavit t h a t was filed with the court in support of the application and was r e s p e c t e d when the search occurred. U n ite d States v. Cazares-Olivas, 515 F.3d 726, 729 (7th Cir. 2008). H o w e v e r , the district court was incorrect to distinguish Groh on the basis o f its civil origins. As the Groh Court itself pointed out, "the same standard of o b je c t iv e reasonableness that we applied in the context of a suppression hearing

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09-50283 in Leon defines the qualified immunity afforded an officer." Groh, 540 U.S. at 5 6 5 n.8 (quoting Malley v. Briggs, 475 U.S. 335, 344 (1986)(other citations o m it t e d )). The district court also held that there was no "glaring deficiency" in this c a s e as there was in Groh. In Groh, the portion of the warrant calling for the it e m s 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 t h is case was "[p]roperty designed or intended for use or which has been used as t h e means of committing a criminal offense or that contains evidence of the c o m m is s io n 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 fa c ia lly invalid. N e v e r t h e le s s , this case is distinguishable from Groh. The distinguishing fa c t o r in this case is that the magistrate judge signed not only the warrant, but a ls o the affidavit, to which the list of items to be seized was attached. Thus, the e x e c u t in g officer who prepared the warrant, the affidavit and the attachment a n d had them reviewed by his colleagues, the prosecutors and the magistrate ju d g e had additional objective reason to believe the warrant was valid. Because o f this, the officer's conduct was less culpable, and therefore less likely to be d e t e r r e d by applying the exclusionary rule, than the conduct in Groh. A d d it io n a lly , the magistrate judge's signature on the affidavit reduces the c o n c e r n that he did not agree to the scope of the search as defined and limited t h e r e in . This demonstrates that one of the core purposes of the Fourth

A m e n d m e n t , preventing a "general" search by having a magistrate restrict the s c o p e of the search, was achieved here. See Groh, 540 U.S. at 561 & n.4 ("[W]e t h e r e fo r e cannot know whether the Magistrate was aware of the scope of the s e a r c h he was authorizing."); see also United States v. Tracey, 597 F.3d 140, 153 (3 d Cir. 2010) (finding good faith when an officer failed to properly incorporate 11

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09-50283 a detailed affidavit that was physically attached to the warrant, where the m a g is tr a t e signed each page of the affidavit and the search was executed by the o ffic e r who prepared the warrant; and noting that "the primary purpose of the F o u r t h Amendment's particularity requirement . . . was achieved in this case"). T h is case is factually similar to both Otero and Riccardi, two previously c it e d Tenth Circuit cases which applied the good-faith exception. In Otero, the C ou rt considered the circumstances surrounding the issuance of the warrant and t h e execution of the warrant in deciding whether or not the good-faith exception a p p lie d . Otero, 563 F.3d at 1134. The Otero Court noted that the officer had a t t e m p t e d to craft a warrant that would authorize a search for evidence of mail a n d credit card theft. Id. While the language was deficient and it failed the p a r tic u la r it y requirement of the Fourth Amendment, the Court noted that the o ffic e r had sought the assistance of the Assistant United States Attorney who h a d assured the officer that the language satisfied legal requirements and had r e c e iv e d approval from the magistrate. Id. Moreover, the Otero Court noted t h a t the search was limited to evidence of the mail and credit card theft. Id. I n Riccardi, the Tenth Circuit considered a case in which the warrant to s e iz e and examine the defendant's computer failed to satisfy the Fourth A m e n d m e n t 's particularity requirement. Riccardi, 405 F.3d at 863.

Nevertheless, the Court found that certain factors supported the district court's fin d in g that there was good-faith. This included the fact that the investigating o ffic e r s carefully limited their search to files relevant to the investigation, and t o the scope of the search as it was described in the affidavit. Moreover, the o ffic e r s , as in the instant case, temporarily suspended their search to ask q u e s t io n s of legal counsel. Id. at 864. A s in Otero and Riccardi, the agents in this case limited their search to e v id e n c e of child pornography and seized only the evidence that was specified on E x h ib it B to the affidavit. The care Agent Stone took in making sure everyone 12

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09-50283 h a d a copy of the affidavit and supporting documents prior to the search in d ic a te s the officer was dedicated to doing things the proper way. Based on t h e s e 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 le v e l which requires application of the exclusionary rule. Although the executing a g e n t was partially at fault, as he is the one who drafted the warrant and failed t o incorporate the attachment and the affidavit into the warrant, the fault was m e r e ly negligent. There was no deliberate, reckless or grossly negligent conduct b y 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 t h is 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 e x c lu s io n ." Id. at 700. T h e Government argues that because the good-faith exception applies, this c o u r t need not consider the issue of whether there was sufficient probable cause. However, because the good-faith exception applies to the particularity challenge d o e s not presume its application to the other challenges leveled by Allen. Regardless, we find that the search resulting from reliance on the evidence of c h ild pornography used to establish the basis for the issuance of the warrant was n o t stale and that sufficient probable cause existed for the issuance of the w a r r a n t. We also conclude that the district court did not err in excluding the p r o ffe r e d testimony regarding the lascivious nature of the images used to e s t a b lis h probable cause. Each of these findings will be discussed in turn. A magistrate's determination of probable cause is entitled to great d e fe r e n c e by reviewing courts. Gates, 462 U.S. at 216 & n.10. A magistrate n e e d s only a substantial basis for concluding that a search would uncover 13

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09-50283 e v id e n c e of wrongdoing. Jones v. United States, 362 U.S. 257, 271 (1960),

o v e r r u le d on other grounds by United States v. Salvucci, 448 U.S. 83 (1980). As t h is court has said, the task of a magistrate signing a search warrant is simply t o make a "practical common-sense decision as to whether, given all the

c ir c u m s t a n c e s set forth in the affidavit . . ., there is a fair probability that c o n t r a b a n d or evidence of a crime will be found in a particular place." United S ta te s v. Froman, 355 F.3d 882, 889 (5th Cir. 2004) (internal quotation marks a n d citation omitted). T h e affidavit certainly provided enough information to permit the m a g is t r a t e to decide that there was a fair probability that child pornography w o u ld be found at Allen's home. The affidavit detailed how the investigation b e g a n . Computers seized from Jeremy Rice revealed data associated with the G o o g le program "Hello." The affidavit explained that the Hello program allowed u s e r s to create a friend's list of other Hello users by adding their email addresses t o their friends list. c o n n e c tio n . Friends can access each other using an encrypted

The peer-to-peer networking provided by this program allows

fr ie n d s 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 w it h the name and exchanged over 1800 image files with four friends, one of w h o m was identified as "candyman04." Many of the files depicted children en g a g ed in sexually explicit conduct. ICE subsequently identified "candyman04" a s Jerry Mikowski. When Mikowski's computer was searched, a file named "friends.xml" was d is c o v e r e d . The file contained a list of Mikowski's current Hello "friends." The e x a m in a t io n also revealed that Mikowski traded child pornography with dozens o f Hello users. One friend was identified as "mrhyde6988." 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).
2

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09-50283 I n fo r m a t io n provided by Google pursuant to a subpoena indicated that the H ello user name "m yrhyde6988" used the em ail address

m r h y d e 6 9 8 8 @ y a h o o .c o m .

Google records indicated that "mrhyde 6988"

r e g is t e r e d with the Google Hello program on December 6, 2006 and that he had lo g g e d into the program from only one IP address from April 17, 2007 through M a y 7, 2007 and he had accessed the program 23 times during this period. Y ah oo, pursuant to a subpoena, provided information on the

" m y h y d e 6 9 8 8 @ y a h o o .c o m " email address. Yahoo identified the same IP address t h a t Google had given investigators earlier. Their information indicated the a c c o u n t holder was a Mr. Hyde from New York, New York. A third subpoena, t h is time to Clearwire, LLC, revealed the IP address was associated with David A lle n in Midland, Texas. I m a g e s were obtained from Mikowski's (candyman04) computer. The im a g e s were of what appeared to be prepubescent females posing nude. The im a g e s came from a file named "frommrhyde6988." This indicated to the agent t h a t "mrhyde6988" distributed at least two images of children engaged in s e x u a lly explicit conduct. The affidavit described the images in detail. The file n a m e of the first image was "11 very hot." This information was clearly sufficient to support the magistrate's decision t h a t there was probable cause to believe evidence of child pornography would be fo u n d in Allen's home on his computer. The information presented in the

a ffid a v it 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 t r a c e d the user name and the IP address used to access the Hello program to A lle n 's computer in Midland. Therefore, it was reasonable for the magistrate to c o n c l u d e Allen had sent copies of the pornographic images to his Hello friend " c a n d y m a n 0 4 " and that he still either retained those images or had more stored o n his computer. See Froman, 355 F.3d at 890-91 (upholding a finding of 15

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09-50283 p r o b a b le cause to search the defendant's computer and other electronic e q u ip m e n t , 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 t h e group for approximately a month without cancelling his subscription, and u s e s screen names that reflect his interest in child pornography, would download s u c h pornography from the website and have it in his possession"). Allen argues that the fact that images of child pornography on c a n d y m a n 0 4 's computer were labeled "frommrhyde6988" was not sufficient p r o b a b le cause to support the warrant. Allen submits that candyman04 could h a v e 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 h a d become one of candyman04's online "friends." When those facts are coupled w it h the way the files are labeled, there is clearly probable cause to believe Allen h a d transmitted child pornography over the internet with his computer. The affidavit also states that the forensic examination of Mikowski's (c a n d y m a n 0 4 ) computer revealed that Mikowski "traded child pornography with d o z e n s of Hello users. One user with whom Mikowski traded child pornography w a s identified as `mrhyde6988'". The fact that Mikowski was using the Hello p r o g r a m to trade child pornography with dozens of users makes it likely that he h a d also traded child pornography with Allen. It also further supports the c o n c lu s io n that the photos labeled from "frommrhyde6988" were in fact from Mr. H y d e , who was later identified as Allen. As the district court noted, the "peculiarity of the user name `mrhyde6988,' t h e fact that this user name was listed as one of Mikowski's `friends' on the file s h a r in g service on which he was known to trade child pornography, and the fact t h a t a file containing child pornography was labeled `frommrhyde6988' on M ik o w s k i's computer, provides enough information for this Court to find that p r o b a b le cause existed." We agree. 16

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09-50283 F u r t h e r , Allen used a false name and address when he opened an account fo r his "[e-mail]" email address. Clearly, the magistrate could in fe r 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 d o u b t . Rather, the Fourth Amendment requires only that there is probable c a u s e to believe that the fruits, instrumentalities or evidence of criminal acts e x is t 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 " fr o m m r h y d e 6 9 8 8 " was stale and therefore could not be used to provide probable c a u s e . The district court correctly rejected this claim. In its opinion, the district c o u r t recognized that the affidavit did not establish when the photographs were t r a n s fe r r e d by Allen to Mikowski. However, the court found that because Allen in it ia te d use of his "Hello" account on December 6, 2006, that would have been t h e earliest date the photos could have been sent. The court then assumed, for p u r p o s e s of analyzing the issue, the images were transferred at the first o p p o r t u n it y , on December 6, 2006. Therefore, the facts underlying the warrant w e r e 18 months old on the date the warrant was issued. The district court found t h e information was not so stale as to render official belief in its adequacy u n r e a s o n a b le . We concur with the conclusion of the district court. The amount of delay which will make information stale depends upon the p a r tic u la r facts of the case, including the nature of the criminal activity and the t y p e of evidence sought. Bastida v. Henderson, 487 F.2d 860, 864 (5th Cir. 1 9 7 3 ). As with other issues concerning probable cause, a magistrate's decision is given considerable deference in the absence of arbitrariness, and the m a g is tr a t e is expected to act reasonably and use common sense. Id. at 863. I n this case, the magistrate could have reasonably concluded that the 17

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09-50283 p o r n o g r a p h ic images were still on the computer at Allen's home at the time the w a r r a n t was issued. This conclusion is reasonable given the nature of the e v id e n c e sought. In the affidavit submitted to the magistrate, the affiant said t h a t the computer's ability to store images in digital form makes it an ideal r e p o s it o r y for child pornography. Internet access permits a computer user to t r a n s p o r t and download an image file to his own computer. Important to the s t a le n e s s issue, the magistrate was advised that computer files or remnants of s u c h files can be recovered months or even years after they have been d o w n lo a d e d onto a hard drive, deleted, or viewed via the internet. A g e n t Stone reported to the magistrate in his affidavit that because of the fa c t that Allen appears to have traded images depicting child pornography and e n g a g e d in chat sessions discussing the trade of child pornography, the agent b e lie v e d Allen had a sexual interest in children. The agent went on to say that in d iv id u a ls who have a sexual interest in children or images of children often m a in t a in their collection on a computer and maintain these collections for s e v e r a l 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 w a s probable cause for the issuance of a warrant. In Riccardi, 405 F.3d at 8 6 0 -6 1 , the Tenth Circuit considered whether a five-year-old Kinko's receipt fo u n d in an envelope with non-pornographic pictures was too stale to support p r o b a b le cause for the issuance of a search warrant. The court explained that w h e t h e r information is stale depends on the nature of the criminal activity, the le n g t h of the activity, and the nature of the property to be seized. Id. The court w e n t 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 p h o to g r a p h s of children to a digital format, which is a common means by which c h ild pornographers distribute and exchange their materials. Id. 18 While the

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09-50283 r e c e ip t was not the only evidence that supported probable cause, the receipt c o u ld be considered despite its age. It was not "stale." Id. I n United States v. Frechette, 583 F.3d 374 (6th Cir. 2009), the Sixth C ir c u it held that information presented to a magistrate judge regarding a s u s p e c t 's purchase of a one-month subscription to a child pornography site was n o t stale though the purchase of the subscription occurred 16 months prior to the s e a r c h . 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; t h e r e fo r e the same time limitations that apply to more fleeting crimes do not a p p ly to child pornography cases. Id. at 378. In United States v. Lacy, 119 F.3d 742, 745 (9th Cir. 1997), the Court u p h e ld a search warrant based on information ten months old. The court

e x p la in e d that information is not stale because the affidavit provided ample r e a s o n 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 d e fe n d a n t subscribed to child pornography 13 months earlier was not stale); United States v. Morales-Aldahondo, 524 F.3d 115, 119 (1st Cir. 2008) (holding t h a t "[t]he passage of more than three years from the acquisition of the evidence u n t il the warrant application [did not] render[] the evidence stale" in a child p o r n o g r a p h y case); and United States v. Newsom, 402 F.3d 780, 783 (7th Cir. 2 0 0 4 ) ("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 in fo r m a t io n was not stale. Allen also claims there was not probable cause because the photographs o f children referenced in the affidavit were not "lascivious" and therefore were n o t child pornography. The district court applied the factors set forth in United S ta te s v. Bouderau, 250 F.3d 279, 282 n.2 (5th Cir. 2001) to analyze the la s c iv io u s nature of the photographs. After doing so, the district court concluded 19

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09-50283 t h a t it was reasonable for officials to believe that the photos were child p o r n o g r a p h y and rejected Allen's argument by expressly holding that the p r o b a b le cause determination based on the lascivious nature of the photographs w a s well founded. The court noted that the photos displayed children with the pubic area p la in ly exposed. One photo showed a girl in an unnatural pose who was fully n u d e 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 t h ig h -h ig h stockings, was suggestive. Given these facts, the court found it r e a s o n a b le for officials to believe the photos were child pornography and the p h o to s gave those officials probable cause to believe pornography would be found o n Allen's home computer. See United States v. Hill, 459 F.3d 966, 972 (9th Cir. 2 0 0 6 ) (upholding a finding of probable cause based on, inter alia, the description o f the images in the affidavit and stating that there was a fair probability that t h e images were "so presented by the photographer as to arouse or satisfy the s e x u a l cravings of a voyeur.") (internal quotation marks and citations omitted). The district court did not err in finding the description of the pictures supported t h e finding of probable cause. Finally, Allen argues the district court erred in excluding the testimony o f Nancy Piette, a private investigator, at the suppression hearing. Allen states in his brief that Piette would have testified that she reviewed the descriptions o f the two photographs in the affidavit in support of the search warrant and she w o u ld have stated that the photographs are the same or very similar to p h o to g r a p h s found in various books in libraries throughout the country. A lle n submits that the court erred in excluding the evidence because it w a s relevant. We disagree. Whether the photographs described in the affidavit w e r e similar to other photographs Piette may have found is not relevant to e it h e r the issue of probable cause or good-faith. What was at issue was whether 20

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09-50283 t h e description of the images that was contained in the affidavit was sufficient t o provide probable cause to believe child pornography would be located on A lle n 's computer. The district court did not err in excluding this testimony and t h e admission of the photographs. See Hill, 459 F.3d at 972 (evaluating probable c a u s e based on the description of the images in the affidavit and not the images th e m s e lv e s ). F o r the foregoing reasons, the judgment of the district court is A F F IR M E D .

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