United States v. William Cannon

Filing

OPINION FILED - THE COURT: Lavenski R. Smith, C. Arlen Beam and Raymond W. Gruender AUTHORING JUDGE:Raymond W. Gruender (PUBLISHED) [3991651] [12-1362]

United States Court of Appeals
For the Eighth Circuit
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No. 12-1362
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
William Cannon
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: November 16, 2012
Filed: January 8, 2013
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Before SMITH, BEAM, and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
William Cannon pled guilty to two counts of sexual exploitation of a minor and
two counts of receipt of child pornography, conditioned on his right to appeal the
denial of his motion to suppress. Cannon appeals the denial of his motion to suppress
as well as his sentence. We affirm.

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I.
On July 14, 2010, Captain Fire Investigator Inspector David Creek, a deputy
fire marshal, conducted a routine fire safety inspection at EZ Credit Auto Sales (“EZ
Credit”), a car dealership located in Springdale, Arkansas. During the course of his
inspection, Captain Creek came upon a locked door. He asked Juan Carlos Figueroa,
an EZ Credit manager who had accompanied him during the inspection, what was
behind the door. Figueroa replied that it led to “Billy’s rooms,” referring to William
Cannon, a car detailer and night watchman for EZ Credit. Figueroa added that the
only key belonged to Cannon. That day, Cannon was off-site working at a different
EZ Credit location.
Captain Creek told Figueroa that he needed to see the rooms to complete the
inspection, so Figueroa called Cannon and told him to bring his key. When Cannon
arrived, he first requested time alone in the rooms, during which Captain Creek heard
a large amount of rustling. When Cannon finally opened the door at Captain Creek’s
request, from the doorway Captain Creek observed that the walls were covered from
floor to ceiling with what appeared to be hundreds of pictures of a particular young
male’s face. He then entered the main room and looked into an adjoining bathroom,
which had a collection of bound, blindfolded, and mutilated naked dolls hanging from
the ceiling. Captain Creek also saw a third adjoining room. Above the doorway to
that room, a sign was posted that read “Boy’s Club.” Continuing his inspection,
Captain Creek entered this third room, where he found a child’s bed, many more
mutilated dolls, a tripod for a camera, a big-screen TV, and several children’s toys.
Captain Creek noted that there were several pictures of nude children on the walls and
that the walls appeared as if some things had been torn down immediately before the
inspection. Captain Creek then called the police and told the dispatcher that he
believed he had discovered a child pornography operation. While he waited for
police to arrive, he saw Cannon remove several items from the rooms. Captain Creek
later provided a written statement summarizing what he had observed.
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Officer Eric Holland, a uniformed patrolman for the Springdale Police
Department, was the first officer on the scene. Although Officer Holland entered the
rooms with Cannon’s consent and formed the impression that the rooms were
Cannon’s residence, he did not discuss his observations or his impression with the
detectives who ultimately prepared the search warrant application, and he was not
involved with the subsequent investigation.
Soon after Officer Holland arrived, Detectives Al Barrios and Darrell Hignite,
of the Springdale Police Department Criminal Investigative Division, arrived at EZ
Credit. Detective Barrios first made contact with Captain Creek, who explained that
he had seen some disturbing posters, signs, and images, including images of nude
young boys under the age of thirteen. Captain Creek also told Detective Barrios that
he suspected Cannon had removed several pictures from the walls between Captain
Creek’s initial entry and Detective Barrios’s arrival.
When Detectives Barrios and Hignite first approached the rooms, the door had
been left open. From the hallway they were able to see what they characterized as
one to two hundred photographs of a particular boy’s face covering the walls and a
large number of mutilated baby dolls hanging from the bathroom ceiling. Detective
Barrios then entered the rooms to confirm the rest of Captain Creek’s observations.
There he found several handmade signs reading “kill little boys,” “I eat boys,” “boys
only,” “I ! boys,” “boys rule,” and “boy killer.” There were many pictures of boys’
faces, boys in various stages of undress, and boys sleeping. There was also one
poster of a prepubescent boy showing full-frontal nudity.
After discovering the child’s bed in the third room and deciding that he would
need a warrant to search further, Detective Barrios took several photographs of the
rooms and instructed other officers to secure the premises while he left to obtain a
search warrant. Detectives Barrios and Hignite then left EZ Credit and went to the
police station with Cannon, who had consented to an interview, to prepare the warrant
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application. During the interview, Cannon told Detective Barrios that he was an artist
and that he believed others thought his art was offensive. He claimed that the image
showing full-frontal nudity came from a magazine, but he later stated that it came
from a book. Cannon also told Detective Barrios that he had no home and that he
stayed at EZ Credit three nights a week while serving as a night security guard for the
business.
Based on the information they had obtained, Detectives Barrios and Hignite
prepared a search warrant application, which also included Captain Creek’s
handwritten statement, and presented it to a state court judge. The detectives’
affidavit stated that before Captain Creek initially entered the rooms to conduct the
fire inspection, Cannon told Captain Creek that he lived there. It also stated that the
rooms “appeared to have someone living in [them].” It described the premises to be
searched as “[t]he business . . . located at 2679 N. Thompson in Springdale,
Washington County, Arkansas. The residence is a business structure consisting of
one (1) unit . . . owned by E/Z Credit Auto Sales Inc.” The affidavit did not mention
that Cannon claimed the poster of the fully nude child was art or that it was allegedly
taken from a book. The state court judge issued a search warrant allowing the
detectives to search EZ Credit as well as a car allegedly owned by Cannon.
The officers then returned to EZ Credit and executed the warrant. They seized
approximately fifteen pictures of nude children, two laptops, approximately twelve
video cassettes, and several handwritten journals, among other things. One of the
laptops contained thousands of images depicting sexually explicit conduct involving
children and its internet browsing history revealed that Cannon had made multiple
visits to child pornography websites. Police also found a video that Cannon had
created, which depicted a minor female engaging in sexually explicit conduct.
Cannon moved to suppress the items seized pursuant to the search warrant, as
well as statements he made while the warrant was executed. He argued that the
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search warrant lacked probable cause because it was based on information gathered
by Detectives Barrios and Hignite in violation of Cannon’s Fourth Amendment rights.
A magistrate judge1 determined that Detectives Barrios and Hignite violated
Cannon’s Fourth Amendment rights during the initial warrantless entry because
Cannon had a reasonable expectation of privacy in the rooms. However, the
magistrate judge further concluded that the exclusionary rule did not apply to the
fruits of the warrant-based search due to both the independent source doctrine, see
Murray v. United States, 487 U.S. 533 (1988), and the Leon good faith exception, see
United States v. Leon, 468 U.S. 897, 920-21 (1984). The district court2 adopted the
magistrate judge’s report and recommendations over Cannon’s objection.
Cannon subsequently entered a conditional plea of guilty to two counts of
sexual exploitation of a minor, 18 U.S.C. §§ 2251(a) and (e), as well as two counts
of receipt of child pornography, 18 U.S.C. §§ 2252(a)(2) and (b)(1). The district
court sentenced Cannon to 840 months’ imprisonment. At sentencing, the district
court imposed a four-level enhancement based on its finding that one of the videos
seized from Cannon “involved material that portrays sadistic or masochistic conduct
or other depictions of violence.” See U.S.S.G. § 2G2.1(b)(4).
II.
“On appeal from the denial of a motion to suppress, we review a district court's
findings of fact for clear error and its determination of probable cause and the
application of the Leon exception de novo.” United States v. Houston, 665 F.3d 991,

1

The Honorable Erin L. Setser, United States Magistrate Judge for the Western
District of Arkansas.
2

The Honorable Jimm Larry Hendren, United States District Judge for the
Western District of Arkansas.
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994 (8th Cir. 2012) (quoting United States v. Perry, 531 F.3d 662, 665 (8th Cir.
2008)), cert. denied, 566 U.S. ---, 132 S. Ct. 2418 (2012).
“The Fourth Amendment protects the ‘right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.’”
Davis v. United States, 564 U.S. ---, 131 S. Ct. 2419, 2426 (2011) (quoting U.S.
Const. Amend. IV). Ordinarily, “[e]vidence obtained in violation of the Fourth
Amendment is subject to the exclusionary rule and, therefore, ‘cannot be used in a
criminal proceeding against the victim of the illegal search and seizure.’” United
States v. Riesselman, 646 F.3d 1072, 1078 (8th Cir. 2011) (quoting United States v.
Calandra, 414 U.S. 338, 347 (1974)), cert. denied, 565 U.S. ---, 132 S. Ct. 1065
(2012). Because exclusion is a prophylactic remedy, however, there are some
instances where a Fourth Amendment violation does not trigger the exclusionary rule.
See Davis, 131 S. Ct. at 2426 (“Exclusion is ‘not a personal constitutional right,’ nor
is it designed to ‘redress the injury’ occasioned by an unconstitutional search.”
(quoting Stone v. Powell, 428 U.S. 465, 486 (1976))).
One exception to the exclusionary rule occurs “when an officer acting with
objective good faith has obtained a search warrant from a judge or magistrate and
acted within its scope,” even if the warrant is subsequently invalidated. Leon, 468
U.S. at 920-21. “In the absence of an allegation that the magistrate abandoned his
detached and neutral role, suppression is appropriate only if the officers were
dishonest or reckless in preparing their affidavit or could not have harbored an
objectively reasonable belief in the existence of probable cause.” Id. at 926. We
have recognized four circumstances that preclude a finding of good faith:
(1) when the affidavit or testimony supporting the warrant contained a
false statement made knowingly and intentionally or with reckless
disregard for its truth, thus misleading the issuing judge; (2) when the
issuing judge wholly abandoned his judicial role in issuing the warrant;
(3) when the affidavit in support of the warrant is so lacking in indicia
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of probable cause as to render official belief in its existence entirely
unreasonable; and (4) when the warrant is so facially deficient that no
police officer could reasonably presume the warrant to be valid.
United States v. Fiorito, 640 F.3d 338, 345 (8th Cir. 2011) (quoting Perry, 531 F.3d
at 665 (8th Cir. 2008)), cert. denied, 565 U.S. ---, 132 S. Ct. 1713 (2012).
Although Cannon does not challenge Captain Creek’s inspection of the rooms,
he does claim that the Leon good-faith exception to the exclusionary rule should not
apply in this case because Detectives Barrios and Hignite violated his Fourth
Amendment rights when they initially entered his living quarters without a warrant,
consent, or exigency. He also argues that the detectives’ warrant application was
misleading because they failed to tell the judge that the poster of the nude boy
allegedly came from an art book. We will assume, for purposes of this appeal, that
the detectives violated Cannon’s Fourth Amendment rights during the initial entry,
but we conclude that the Leon exception applies. Cf. United States v. Carpenter, 341
F.3d 666, 671 (8th Cir. 2003) (noting that we do not need to review the existence of
probable cause as part of a Leon analysis).
We have applied Leon where, as here, the search warrant application cites
information gathered in violation of the Fourth Amendment. See, e.g., United States
v. Kiser, 948 F.2d 418, 421 (8th Cir. 1991); United States v. White, 890 F.2d 1413,
1419 (8th Cir. 1989) (“[E]vidence seized pursuant to a warrant, even if in fact
obtained in violation of the Fourth Amendment, is not subject to the exclusionary rule
if an objectively reasonable officer could have believed the seizure valid.”). For the
Leon exception to apply when the warrant is based on evidence obtained through a
Fourth Amendment violation, the detectives’ prewarrant conduct must have been
“close enough to the line of validity to make the officers’ belief in the validity of the
warrant objectively reasonable.” United States v. Conner, 127 F.3d 663, 667 (8th Cir.
1997) (quoting White, 890 F.3d at 1419). If “the officers’ prewarrant conduct is

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‘clearly illegal,’ the good-faith exception does not apply.” Id. (quoting United States
v. O'Neal, 17 F.3d 239, 242-43 n.6 (8th Cir. 1994)).
Cannon argues that Leon does not apply because the detectives did not have
consent for their initial entry and because there were no exigent circumstances to
justify the warrantless entry. The good-faith exception applies in this case, however,
because it was objectively reasonable when they first entered the rooms for Detectives
Barrios and Hignite to believe that they simply were entering rooms that were part of
a car dealership business, EZ Credit. Although there is some evidence that the
detectives knew Cannon had the only key to the room, which could imply a privacy
interest, other facts overwhelmingly suggested that Cannon had no such interest. The
detectives had responded to a call about a potential child pornography operation at
a car dealership, not a residence. When the detectives arrived at EZ Credit, it was
open for business, there were cars for sale on the lot, and there were both employees
and customers present. EZ Credit also is located in an area zoned for business use,
where residential use is prohibited.
Moreover, given Cannon’s responsibilities as both a car detailer and night
watchman, there are numerous explanations for the fact that he alone had a key
unrelated to any potential privacy interest. The rooms could have been a storage
space for toxic chemicals used to clean cars, or they could have housed expensive
security equipment. In either case, it would be logical for Cannon to have the only
key, but in neither case would it obviously follow that Cannon had a legitimate
expectation of privacy in the rooms. After seeing the child’s bed in the third room,
Detective Barrios did determine that Cannon may have been living in the rooms, and
therefore, might have a reasonable expectation of privacy in them. But at that point,
Detective Barrios discontinued the search, exited the rooms, and obtained a search
warrant.

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In light of these facts, the district court made the following findings with
respect to what was known by Detectives Barrios and Hignite: (1) although Officer
Holland, the first to arrive on the scene, was aware that Cannon lived in “Billy’s
rooms,” he did not discuss this fact with Detectives Barrios and Hignite prior to their
entry; (2) Captain Creek told the detectives that Cannon lived in the rooms, but only
after they already had entered the rooms and made their observations; and (3) the
detectives did not observe the bed on the floor in the back room until well after their
entry. After reviewing the record, we have determined that these findings are not
clearly erroneous. Based on these factual findings, we agree with the district court
that the detectives reasonably could have believed that they were entering another
part of the car dealership, not a private residence, with EZ Credit’s consent. As a
result, the detectives’ pre-warrant conduct was “close enough to the line of validity”
to make their belief in the validity of the subsequent warrant “objectively reasonable.”
Conner, 127 F.3d at 667.
Furthermore, the detectives fully disclosed the nature of the rooms to the state
court judge in the warrant application. They noted that in the course of their initial
inspection of the rooms, they discovered that someone appeared to be living there.
The detectives also disclosed that after their initial entry they discovered that Cannon
had told Captain Creek that he lived in the rooms. Once the state court judge
considered these facts and issued the warrant, it was reasonable for the detectives to
believe the warrant was valid. To the extent that such disclosures might undermine
the validity of the warrant, “[t]he error in such a case rests with the issuing magistrate,
not the police officer, and ‘punish[ing] the errors of judges’ is not the office of the
exclusionary rule.” Davis, 131 S. Ct. at 2428 (alteration in original) (quoting Leon,
468 U.S. at 922).
Cannon also argues that Leon does not apply because the detectives
intentionally misled the issuing judge by omitting from the affidavit that the only
observed picture depicting a fully nude child was obtained from an art book. See
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United States v. Moya, 690 F.3d 944, 948 (8th Cir. 2012) (“In assessing whether the
officer relied in good faith on the validity of a warrant, we consider the totality of the
circumstances, including any information known to the officer but not included in the
affidavit . . . .”) (quoting United States v. Grant, 490 F.3d 627, 632 (8th Cir. 2007)).
However, the detectives submitted many other incriminating facts in the affidavit.
In addition to the nude poster, they observed disturbing signs, mutilated baby dolls,
numerous pictures of young boys in various stages of undress, and a camera tripod.
At the suppression hearing, Detective Barrios testified at length about how the totality
of his observations led him to believe that Cannon possessed child pornography—he
did not rely on the nude poster to serve as the sole basis for establishing probable
cause. Moreover, there is no evidence that the detectives knew the poster came from
an art book aside from the claims Cannon made in his interview. Even if the
detectives should have known this, as Cannon contends they should, its omission did
not make the affidavit misleading given the overall content of the rooms.
The detectives also had reason to believe that Cannon had removed similar
posters from the wall immediately before they entered. Captain Creek reported that
he heard a large amount of rustling before Cannon let him into the rooms, that the
walls appeared as though several posters had been hastily removed prior to his
inspection, and that he saw Cannon remove items from the rooms prior to the
detectives’ arrival. Given this context, it would make no difference whether this
particular poster could have been considered non-pornographic art for the purpose of
establishing probable cause. To obtain a warrant, the detectives were not required to
show that they had actually found child pornography. Rather, they needed to
establish only the “fair probability that contraband or evidence of a crime will be
found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). In light of
these circumstances, we find that no “reasonably well trained officer would have
known that the search was illegal despite the [issuing judge’s] authorization,” Moya,
690 F.3d at 948 (alteration in original) (quoting Grant, 490 F.3d at 632), even if the

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detectives had known that the poster came from an art book and omitted this fact from
the warrant application.
Therefore, assuming that the warrant was based on evidence collected in
violation of Cannon’s Fourth Amendment rights, the Leon good-faith exception bars
application of the exclusionary rule to evidence seized pursuant to the warrant. We
affirm the denial of Cannon’s motion to suppress.3
III.
Cannon also appeals the imposition of the § 2G2.1(b)(4) enhancement. When
reviewing the district court’s calculation of the United States Sentencing Guidelines
advisory sentencing range, “[w]e review the district court's factual findings for clear
error and its construction and application of the Guidelines de novo.” United States
v. Raplinger, 555 F.3d 687, 693 (8th Cir. 2009).
The district court imposed a four-level enhancement, finding that the video
underlying Count II of the indictment portrayed “sadistic or masochistic conduct or
other depictions of violence.” See U.S.S.G. § 2G2.1(b)(4). “The enhancement . . .
applies to material depicting sadistic, masochistic, or violent conduct even if those
pictured were not truly engaging in painful activities.” Raplinger, 555 F.3d at 694.
In construing § 2G2.1(b)(4), the district court relied on the PSR’s unobjected-to
description of the video:
[The victim] is observed laying on her back completely nude exposing
her breasts and genitalia. Cannon is heard instructing [the victim], “roll
3

Because we find that the Leon good-faith exception precludes application of
the exclusionary rule, we need not determine whether the independent source doctrine
may also apply.
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over, let me see your butt.” [The victim] replied “no, you cut it.”
Cannon was then heard stating, “that’s what I want to see [expletive],
roll the [expletive] over.” [The victim] is then observed rolling over and
a small cut could be seen on her buttocks . . . .
PSR ¶ 43. Cannon argues that this video does not depict sadistic or masochistic
content because it does not show Cannon cutting the victim but rather at most shows
the aftermath of violent behavior. We disagree. An image does not have to depict
ongoing violent conduct to be “sadistic” for the purposes of § 2G2.1(b)(4). See
Raplinger, 555 F.3d at 691 (finding that photographs showing the victim wearing toy
handcuffs depicted “sadistic, masochistic, or violent conduct pursuant to
§ 2G2.1(b)(4)”). In fact, we have recognized sadism to mean “the infliction of pain
upon a love object as a means of obtaining sexual release,” “delight in physical or
mental cruelty,” and “the use of ‘excessive cruelty.’” United States v. Parker, 267
F.3d 839, 847 (8th Cir. 2001) (quoting Webster’s Third New International Dictionary
1997–98 (1986)). The dialogue in the video is sufficient evidence that Cannon
inflicted pain upon the victim by cutting her just prior to filming her. Then the video
shows the result of his act while Cannon directs verbal abuse at the minor victim. At
the very least, Cannon’s conduct meets the level of cruelty this court branded as
“sadism” in Raplinger. The district court did not err in imposing the § 2G2.1(b)(4)
enhancement.
IV.
We affirm the denial of Cannon’s motion to suppress, and we affirm his
sentence.
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