USA v. Keith Symmank

Filing

UNPUBLISHED OPINION FILED. [10-20261 Affirmed ] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 11/10/2010 for Appellant Keith Nathan Symmank [10-20261]

USA v. Keith Symmank

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Case: 10-20261

Document: 00511268901

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Date Filed: 10/20/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-20261 S u m m a r y Calendar October 20, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. K E I T H NATHAN SYMMANK, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:09-CR-59-1

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* K e it h Nathan Symmank pleaded guilty to one count of possession of child p o r n o g r a p h y and was sentenced to 78 months of imprisonment. See 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). His plea was in accordance with a plea agreement in which he reserved the right to appeal the denial of his motion to suppress e v id e n c e seized at his residence and the district court's failure to conduct an e v id e n t ia r y hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978).

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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A search warrant had issued on the affidavit of Gilbert Mendoza, a special a g e n t under Texas law and a U.S. Immigration and Customs Enforcement (ICE) in v e s t ig a t o r . Mendoza attested that ICE investigators, working with law

e n fo r c e m e n t in the United Kingdom, had identified Symmank as someone who fr e q u e n t ly visited a website that was aimed at individuals having a sexual in t e r e s t in children. Mendoza attested that Symmank posted messages on the w e b s it e 639 times and made sexual comments about images posted by others. Further, Mendoza stated that he had viewed log files of text postings by S y m m a n k in which Symmank discussed "websites known to offer images of c h ild r e n posing in a lewd and lascivious manner." According to Mendoza, among t h e images and texts posted by Symmank were "multiple images of prepubescent fe m a le children clothed in panties, bikini's [sic] or shorts posing in a lewd m a n n e r with the camera focusing primarily on the genital area of the victims." Mendoza provided more detailed descriptions "of a sampling of the images," n a m e ly photographs marked as image # 1, image # 2, and image # 4. Mendoza a t t e s t e d that a prepubescent girl's right nipple is exposed in image # 1 and that h e r left nipple is exposed in image # 2. Mendoza attested also that image # 4 d e p ic t e d a pubescent girl wearing a string bikini that exposed her buttocks. The p h o to g r a p h s themselves were not shown to the issuing magistrate, but they were file d under seal in the district court in connection with the motion to suppress. The district court denied the suppression motion without a hearing and without e n te r in g findings of fact. Symmank contends first that the search of his residence was illegal b e c a u s e neither the particular images described in Mendoza's affidavit nor the r e m a in d e r of the affidavit constituted evidence of criminal activity sufficient to s u p p o r t a warrant. Second, Symmank contends that a Franks hearing was r e q u ir e d because he had properly challenged Mendoza's affidavit and the c h a lle n g e was accompanied by what he deemed an offer of proof, i.e., his c o u n s e l's affidavit. In that affidavit, counsel stated that neither image # 1 nor 2

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im a g e # 2 shows a nipple; instead, he states, each shows "what appears to be the e d g e of [a nipple's] areola." Counsel also opined that the bikini in image #4 was n o t a string bikini. Third, Symmank contends that the good faith exception to t h e exclusionary rule was inapplicable because there could be no reasonable r e lia n c e on Mendoza's affidavit because of its alleged falsehoods. When reviewing the denial of a motion to suppress, we review factual fin d in g s for clear error, and we review de novo the trial court's conclusions as to t h e sufficiency of a warrant and the reasonableness of a police officer's reliance o n a warrant. United States v. Cherna, 184 F.3d 403, 406 (5th Cir. 1999). Because "the district court entered no factual findings and indicated no legal t h e o r y underlying its decision [not to suppress] the evidence obtained in t h e . . . search, [we] must independently review the record." United States v. Y e a g in , 927 F.2d 798, 800 (5th Cir. 1991). A district court's ruling to deny a s u p p r e s s i o n motion should be upheld "if there is any reasonable view of the e v id e n c e to support it." United States v. Michelletti, 13 F.3d 838, 841 (5th Cir. 1 9 9 4 ) (en banc) (internal quotation marks and citation omitted). The "more s e a r c h in g review" undertaken if there are no district court factual findings is " g u id e d by [any] testimony [or] other evidence adduced at the suppression h e a r in g ." United States v. Paige, 136 F.3d 1012, 1017 (5th Cir. 1998). Although t h e r e was no testimony offered at a suppression hearing in the present case, the a ffid a v it and the exhibits filed in the district court constitute part of the a p p e lla te record. See FED. R. APP. P. 10(a)(1). T h e motion to suppress should be granted "where a Fourth Amendment v io la t io n has been substantial and deliberate." Franks, 438 U.S. at 171. One e x c e p t io n to the exclusionary rule provides that "evidence obtained by officers in objectively reasonable good-faith reliance upon a search warrant is a d m is s ib le , even though the affidavit on which the warrant was based was in s u ffic ie n t to establish probable cause." United States v. Satterwhite, 980 F.2d 3 1 7 , 320 (5th Cir. 1992). However, the good faith exception is inapplicable if, for 3

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i n s t a n c e , the issuing judge was misled by information in an affidavit that the a ffia n t knew or should have known was false except for his reckless disregard o f the truth. Symmank contends Mendoza's affidavit falls in this category, r e n d e r in g the good faith exception inapplicable. See United States v. Mays, 466 F .3 d 335, 343 (5th Cir. 2006).1 A n affidavit supporting a warrant carries a presumption of validity. Franks, 438 U.S. at 171. Nevertheless, a defendant challenging that

p r e s u m p t io n is entitled to an evidentiary hearing if he makes a substantial p r e lim in a r y showing that a statement material to the probable cause finding in a warrant affidavit was knowingly and intentionally false, or was made with r e c k le s s disregard for the truth. Id. at 155-56. A "challenger's attack must [in c lu d e ] allegations of deliberate falsehood or of reckless disregard for the truth, a n d those allegations must be accompanied by an offer of proof." Id. at 171. It is insufficient that an affidavit was made negligently or through innocent error. Id. T h e r e is no merit to Symmank's contention that the judge who issued the w a r r a n t was misled by information in the affidavit that Mendoza knew or should h a v e known to be false. Symmank's counsel's affidavit interpreting and

d e s c r ib in g three photographs that were described differently by Mendoza does n o t satisfy Symmank's burden of presenting a challenge that is "more than c o n c lu s o r y ." Franks, 438 U.S. at 171. The actual pictures filed in the district c o u r t under seal show that Mendoza's description of #1 and #2 is substantially c o r r e c t , and his characterization of #4 is debatable. Even if we accepted

S y m m a n k 's counsel's view of the pictures, showing that Mendoza's view might

Another exception to the good faith exception occurs where the underlying affidavit is "bare bones," i.e., "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Id. (internal quotation marks and citation omitted). Although Symmank alludes to the bare-bones exception, he has abandoned the issue by not briefing it. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

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b e the mistaken one is not equivalent to showing that it was the product of a d e lib e r a t e falsehood or a reckless disregard for the truth. See Franks, 438 U.S. a t 171. Thus, Symmank has failed to show that he was entitled to a hearing to p r e s e n t evidence on the issue. See id. at 171-72. Additionally, he has failed to s h o w that the good faith exception to the exclusionary rule was inapplicable in h is case. See Satterwhite, 980 F.2d at 320. Because the good faith exception a p p lie s , we do not consider whether the affidavit in support of the warrant to s e a r c h Symmank's residence presented sufficient evidence to establish probable c a u s e . See Cherna, 84 F.3d at 407. W e find no reversible error in the district court's refusal to hold a Franks h e a r in g or suppress the evidence. Symmank's conviction and sentence are A F F IR M E D .

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