United States v. Allen

Case: 09-50283 Document: 00511284538 Page: 1 Date Filed: 11/04/2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

November 4, 2010

No. 09-50283 Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

DAVID ROGER ALLEN,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

Before JOLLY and GARZA, Circuit Judges and STARRETT 1 , District Judge.

KEITH STARRETT, District Judge:

David Roger Allen (Allen) appeals the district court’s denial of a motion to

suppress evidence seized in an allegedly illegal search. He argues the search

warrant was overbroad, lacked particularity, was based on stale information and

was not supported by probable cause. Allen, a college professor and first time

offender, was indicted by a federal grand jury on May 28, 2008. The indictment

charged Allen with two Counts of Shipping by Computer, Visual Depictions of

Minors Engaging in Sexually Explicit Conduct (Counts One and Two) and

another Count charging Receiving Matter Containing Visual Depictions of

Minors Engaging in Sexually Explicit Conduct (Count Three).

1

District Judge of the Southern District of Mississippi, sitting by designation.

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Allen filed a motion to suppress the evidence seized from his home

pursuant to a search warrant on the basis that the search warrant was invalid

under the Fourth Amendment because it lacked particularity and was not

supported by probable cause. After an evidentiary hearing, the district court

denied the Motion to Suppress and excluded, as irrelevant, the testimony of a

defense witness offered in support of the motion. The district court later entered

a written order memorializing the denial of the motion.

On September 3, 2008, following denial of his motion to suppress, Allen

pled guilty to Count Three of the Indictment pursuant to a plea agreement. In

the plea agreement, Allen waived his right to appeal the conviction or sentence,

but reserved the right to appeal the motion to suppress and any and all

evidentiary rulings made during the hearing on the motion to suppress. The

remaining two counts were dismissed.

As set forth in the Factual Basis filed in support of the guilty plea, the

following occurred:

In July of 2006 Agents with Immigration and Customs

Enforcement (ICE) identified an individual in Oregon by the name

of Jeremy Rice. A forensic examination of Rice’s computer reveal[ed]

over 1,800 images depicting minors engaging in sexually explic[i]t

conduct. Rice was found to exchange or share those files using a

Google program called Hello. Rice was found to have exchanged

these child pornography images with an individual later identified

as Jerry Mikowski of Michigan. Mikowski’s computer was seized on

or about March 29, 2007, during the execution of a court authorized

search warrant. A forensic examination of Mikowski’s computer

revealed approximately 2,000 images of child pornography. A list of

Mikowski’s Google Hello “friends” included “mrhyde6988”. A

subsequent investigation revealed “mrhyde6988” to be this

defendant. A file found on Mikowski’s computer entitled “from

mrhyde6988” contained two images of minor females, the reviewing

Magistrate Judge found these images to depict minors engaging in

sexually explicit conduct, to wit: the lascivious exhibition of the

genitalia of these children.

On or about May 15, 2008, ICE Agents executed a court

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authorized search warrant at the defendant’s residence. Several

computers and external hard drives were seized. A forensic

examination of the defendant’s computer revealed approximately

3,300 images of child pornography, of those approximately 40

images, including duplicates, involved depictions of children

involved in “bondage”, a form of sadomasochism, and approximately

two depict children involved in beastiality [sic]. The children

depicted in these images vary in age from infancy to approximately

15 years of age.

On or about December 13, 2006, the defendant shared images

with Mikowski, known to him as “candyman”. Additionally, on or

about February 22, 2007, the defendant also used the Google Hello

program on his computer to send several images to an individual

known only as “lilangel55555”. During the investigation, Agents

discovered that, in addition to receiving child pornography images,

the defendant also shipped and transported child pornography

images in interstate commerce. These images were sent using the

Google Hello program.

Allen was sentenced on Count Three to 121 months imprisonment and 10

years of supervised release. He subsequently filed a timely notice of appeal,

arguing that the district court erred in denying his motion to suppress.

Specifically, Allen contends that the search warrant lacked particularity, in

violation of the Fourth Amendment, and was based on stale information, over-

broad, and not supported by probable cause. Allen further contends that the two

images found on the Michigan computer did not depict minors engaged in

sexually explicit conduct and thus were insufficient to provide the magistrate

judge with a substantial basis for concluding that probable cause existed to issue

the warrant. Finally, Allen appeals the exclusion of testimony at the

suppression hearing.

STANDARD OF REVIEW

When reviewing the denial of a motion to suppress, we review factual

findings for clear error and legal conclusions regarding the sufficiency of the

warrant or the reasonableness of an officer’s reliance on a warrant de novo.

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United States v. Cherna, 184 F.3d 403, 406 (5th Cir. 1999)(citing United States

v. Kelley, 140 F.3d 596, 601 (5th Cir. 1998)). We view the evidence in the light

most favorable to the prevailing party, in this case, the United States. United

States v. Garza, 118 F.3d 278, 282 (5th Cir. 1997).

The Fourth Amendment requires a warrant to “particularly describ[e] the

place to be searched, and the persons or things to be seized.” U.S. Const. amend.

IV. The Fourth Amendment’s particularity requirement demands that the place

to be searched and the items to be seized be described with sufficient

particularity so as to leave “nothing . . . to the discretion of the officer executing

the warrant.” Marron v. United States, 275 U.S. 192, 196 (1927); Williams v.

Kunze, 806 F.2d 594, 598 (5th Cir. 1986)(“The items to be seized must be

described with sufficient particularity such that the executing officer is left with

no discretion to decide what may be seized.”). See also United States v.

Christine, 687 F.2d 749, 752 (3d Cir. 1982) (“The particularity requirement

‘makes general searches . . . impossible.’” (quoting Marron, 275 U.S. at 196)).

“A general order to explore and rummage through a person’s belongings

is not permitted.” United States v. Cook, 657 F.2d 730, 733 (5th Cir. Unit A

Sept. 1981). “The uniformly applied rule is that a search conducted pursuant to

a warrant that fails to conform to the particularity requirement of the Fourth

Amendment is unconstitutional.” Groh v. Ramirez, 540 U.S. 551, 559 (2004)

(quoting Massachusetts v. Sheppard, 468 U.S. 981, 988 n.5 (1984) (internal

citations omitted)). “When the Government conducts a search pursuant to a

warrant that does not particularly describe the things to be seized, the

appropriate remedy is for the court to exclude from the evidence in a later

criminal action the items improperly taken.” Cook, 657 F.2d at 734.

This Court conducts a two-part inquiry to determine whether a seizure

conducted pursuant to a search warrant violated the Fourth Amendment.

Cherna, 184 F.3d at 407. First, we ask whether the seizure falls within the good-

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faith exception to the exclusionary rule. United States v. Leon, 468 U.S. 897,

920-21 (1984); Cherna, 184 F.3d at 407. The good-faith inquiry is confined “to

the objectively ascertainable question whether a reasonably well trained officer

would have known that the search was illegal despite the magistrate's

authorization.” Leon, 468 U.S. at 923 n.23. Thus, under the good-faith

exception, if the evidence was obtained by law enforcement officers who relied

on the warrant in objectively reasonable good-faith, then the evidence obtained

during the search is admissible. United States v. Davis, 226 F.3d 346, 351 (5th

Cir. 2000) (citing United States v. Shugart, 117 F.3d 838, 843 (5th Cir. 1997)) .

This is true even if the evidence in the affidavit on which the warrant was based

was not sufficient to establish probable cause. Id. If the good-faith exception

applies, this court affirms the district court’s decision denying the motion to

suppress. Id. If the good-faith exception does not apply, then this court goes to

the second step and determines whether the magistrate issuing the warrant had

a “substantial basis for believing there was probable cause for the search.” Id.

(citing Cherna, 184 F.3d at 407).

ANALYSIS

At the suppression hearing, and in his motion to suppress, Allen argued

that the good-faith exception to the exclusionary rule should not be applied

because the warrant was overly broad and failed the particularity requirement

and that no reasonable officer should have relied on the validity of the warrant.

Allen also argued that the warrant was so lacking in probable cause that no

reasonable officer would have believed the warrant was valid.

The Government concedes that the warrant was not sufficiently

particularized and that the attachment detailing the items to be seized was not

incorporated by reference in the warrant. Nevertheless, the Government

contends that, under the circumstances, the agents involved in the search

reasonably believed that the warrant was valid because the warrant application,

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affidavit, and attachments had been reviewed by several ICE agents and the

United States Attorney’s Office prior to submission to the magistrate judge. The

magistrate judge then reviewed the documents and ultimately signed both the

warrant and affidavit. Furthermore, Agent Stone, the agent in charge, made

certain that those taking part in the search reviewed the warrant, affidavit, and

attachments and were familiar with what could be seized.

The Government also emphasizes that the agents exercised restraint

during the search by contacting the U.S. Attorney’s Office several times during

the search whenever there was a question about what could be seized. Thus, the

Government argues that the evidence seized was admissible under the good-

faith exception to the exclusionary rule.

The warrant at issue clearly does not pass constitutional muster. It is

undoubtedly broad because of its lack of particularity, absent the affidavit and

attachments. Simply incorporating the affidavit and attachments, which stated

specifically what the search entailed and what was to be seized, by reference in

the warrant could have cured the deficiency of the warrant. That being said, the

issue here is not the constitutional invalidity of the warrant, but whether the

evidence seized pursuant to the unconstitutionally vague warrant should be

suppressed. Indeed, the Supreme Court has clearly stated that suppression is

“an issue separate from the question whether the Fourth Amendment rights of

the party seeking to invoke the rule were violated by police conduct.” Leon, 468

U.S. at 906 (quoting Illinois v. Gates, 462 U.S. 213, 223 (1983)).

Even though the warrant in this case was not sufficiently particular, we

conclude that the fruits of the search are admissible under the good-faith

exception. See Leon, 468 U.S. at 913 (“[O]ur evaluation of the costs and benefits

of suppressing reliable physical evidence seized by officers reasonably relying on

a warrant issued by a detached and neutral magistrate leads to the conclusion

that such evidence should be admissible . . ..”). The district court correctly found

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that the agents involved acted in objectively reasonable good-faith in relying on

the search warrant.

As the Supreme Court pointed out recently in Herring v. United States, __

U.S.__, 129 S. Ct. 695, 699-700 (2009), the exclusionary rule is a judicially

fashioned remedy whose focus is not on restoring the victim to his rightful

position but on deterring police officers from knowingly violating the

Constitution. Therefore, evidence should be suppressed “only if it can be said

that the law enforcement officer had knowledge, or may properly be charged

with knowledge, that the search was unconstitutional under the Fourth

Amendment.” Id. at 701 (quoting Illinois v. Krull, 480 U.S. 340, 348-49 (1987));

see also United States v. Otero, 563 F.3d 1127 (10th Cir. 2009). Otherwise, the

“good-faith” rule of Leon applies.

The Herring Court identified several critical factors in deciding whether

or not evidence should be excluded: whether the application of the exclusionary

rule results in deterrence; whether the benefits of deterrence outweigh its costs;

and whether the misconduct was flagrant or deliberate. Id. at 700-02. Then the

Court stated:

An error that arises from nonrecurring and attenuated negligence

is thus far removed from the core concerns that led us to adopt the

rule in the first place.

...

To trigger the exclusionary rule, police conduct must be

sufficiently deliberate that exclusion can meaningfully deter it, and

sufficiently culpable that such deterrence is worth the price paid by

the justice system. As laid out in our cases, the exclusionary rule

serves to deter deliberate, reckless, or grossly negligent conduct, or

in some circumstances recurring or systemic negligence.

129 S.Ct. at 702.

Here, the police conduct was neither deliberate nor sufficiently culpable

to warrant application of the exclusionary rule. It is clear from reading the

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transcript of the suppression hearing that Agent Stone, the officer who sought

the warrant and submitted the affidavit, had reason to believe the search

warrant was proper and was supported by probable cause. He testified that he

prepared the application for the warrant, the affidavit, and the warrant. Prior

to asking the magistrate judge to execute the warrant or having the paperwork

reviewed by the U.S. Attorney’s office, the agent reviewed the affidavit, the

warrant and the application with his co-workers and other agents in his office.

Agent Stone also had another agent review the pictures recovered and obtained

the other agent’s agreement that the pictures were child pornography.

After the review by his co-workers, Agent Stone presented the application

and warrant to the U.S. Attorney’s office for review. Only after that review was

complete, did Agent Stone present the affidavit to Magistrate Judge Platt for

review. Judge Platt took the time to review the affidavit and the search

warrant. The agent also testified that Judge Platt signed off on language in the

search warrant that states, “I am satisfied that the affidavit and any record

testimony establish probable cause to believe that the person or property so

described is now concealed on the person or premises above described and

establish grounds for the issuance of this warrant.” It is clear from the

testimony given that Magistrate Judge Platt carefully reviewed the warrant, the

affidavit, and the attachment and did not just give the documents a cursory

review. Furthermore, he signed the affidavit to which the specific list of items

to be seized was attached.

Prior to executing the search warrant, Agent Stone gave his fellow agents,

including the forensic analyst, a copy of the search warrant as well as the

affidavit and attachments which specifically listed the items to be seized. Stone

testified that he did this so they could review it and know what they were

searching for. In fact, all of the agents and law enforcement officers who

participated in the search were given the affidavit and attachments in advance

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of the search. There was a brief meeting before executing the warrant, but the

affidavit and its attachments were all reviewed and handed to the agents prior

to that meeting. Agent Stone told the court at the suppression hearing that after

they began executing the warrant, they contacted the U.S. Attorney’s office

several times with questions about what they could seize.

During the hearing Agent Stone was asked, “Did you have any reason to

believe prior to executing the search warrant that it was not valid? He answered,

“No, ma’am.” Then the AUSA asked, “Did you, in fact, think that it was a valid

warrant and that you had taken the necessary steps to be cautious and actually

make sure you had a valid warrant that was approved not only by a magistrate

but by the U.S. Attorney’s office and your colleagues at ICE?” The Agent

answered, “Yes, ma’am, I did.” Although the good faith inquiry is ultimately an

objective one, the record clearly demonstrates that Agent Stone had a subjective

belief that the warrant was valid and the search was constitutional. Further,

his actions and those of the magistrate judge gave Agent Stone good reason to

believe in the warrant’s validity.

Allen argues that the warrant was so facially deficient in failing to

particularize the things to be seized that Agent Stone could not reasonably

believe the warrant was valid. As stated, the Government agrees that the

warrant was not sufficiently particularized and that the attachment, which

described in detail the items to be seized, was not referenced in the warrant.

However, not every deficient warrant is so deficient that an officer would lack

a reasonable basis for relying on it. Otero, 563 F.3d at 1136. As the Tenth

Circuit has stated, a reviewing court “must also review the text of the warrant

and the circumstances of the search to ascertain whether the agents might have

reasonably presumed it to be valid.” United States v. Riccardi, 405 F.3d 852,863

(10th Cir. 2005) (quoting United States v. Leary, 846 F.2d 592, 607 (10th Cir.

1988)).

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In this case, although the language that was ultimately used in the

warrant was flawed in that it did not reference the Exhibit containing the

affidavit and list of items to be seized, a reasonable officer could have easily

concluded that the warrant was valid. The warrant, along with the affidavit and

attached list of items to be seized, had been reviewed at many levels, and the

affidavit had been signed by the magistrate judge. Agent Stone clearly

attempted to properly perform his duty prior to seeking the magistrate’s

approval to make sure he had drafted a valid warrant that was supported by

probable cause. The ultimate mistake was not that the documentation was

insufficient to support issuance of the warrant, but that the attachment and

affidavit were not properly incorporated into the warrant by reference.

Allen argues that the warrant must be suppressed under Groh v. Ramirez

in which the Court denied qualified immunity to agents who acted on a search

warrant that was insufficiently particular. The district court below decided that

the Groh case did not require suppression in the instant case. As support for

this conclusion, the district court pointed out that Groh was a civil case in which

the agents were being sued in their personal capacity. It did not deal with

whether or not the exclusionary rule should be applied. The Government argues

that this distinction is relevant and points to the Seventh Circuit, which has

said:

Groh was a suit for damages; we doubt that the Court would have

invoked the exclusionary rule when a description of the things to be

seized, though missing from the warrant, appeared in an affidavit

that was filed with the court in support of the application and was

respected when the search occurred.

United States v. Cazares-Olivas, 515 F.3d 726, 729 (7th Cir. 2008).

However, the district court was incorrect to distinguish Groh on the basis

of its civil origins. As the Groh Court itself pointed out, “the same standard of

objective reasonableness that we applied in the context of a suppression hearing

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in Leon defines the qualified immunity afforded an officer.” Groh, 540 U.S. at

565 n.8 (quoting Malley v. Briggs, 475 U.S. 335, 344 (1986)(other citations

omitted)).

The district court also held that there was no “glaring deficiency” in this

case as there was in Groh. In Groh, the portion of the warrant calling for the

items and persons to be seized described a “single dwelling residence two story

in height which is blue in color.” The description of the property to be seized in

this case was “[p]roperty designed or intended for use or which has been used as

the means of committing a criminal offense or that contains evidence of the

commission of a criminal offense.” While this may not rise to the Groh level of

a “glaring deficiency,” it is certainly an obvious error which makes the warrant

facially invalid.

Nevertheless, this case is distinguishable from Groh. The distinguishing

factor in this case is that the magistrate judge signed not only the warrant, but

also the affidavit, to which the list of items to be seized was attached. Thus, the

executing officer who prepared the warrant, the affidavit and the attachment

and had them reviewed by his colleagues, the prosecutors and the magistrate

judge had additional objective reason to believe the warrant was valid. Because

of this, the officer’s conduct was less culpable, and therefore less likely to be

deterred by applying the exclusionary rule, than the conduct in Groh.

Additionally, the magistrate judge’s signature on the affidavit reduces the

concern that he did not agree to the scope of the search as defined and limited

therein. This demonstrates that one of the core purposes of the Fourth

Amendment, preventing a “general” search by having a magistrate restrict the

scope of the search, was achieved here. See Groh, 540 U.S. at 561 & n.4 (“[W]e

therefore cannot know whether the Magistrate was aware of the scope of the

search he was authorizing.”); see also United States v. Tracey, 597 F.3d 140, 153

(3d Cir. 2010) (finding good faith when an officer failed to properly incorporate

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a detailed affidavit that was physically attached to the warrant, where the

magistrate signed each page of the affidavit and the search was executed by the

officer who prepared the warrant; and noting that “the primary purpose of the

Fourth Amendment’s particularity requirement . . . was achieved in this case”).

This case is factually similar to both Otero and Riccardi, two previously

cited Tenth Circuit cases which applied the good-faith exception. In Otero, the

Court considered the circumstances surrounding the issuance of the warrant and

the execution of the warrant in deciding whether or not the good-faith exception

applied. Otero, 563 F.3d at 1134. The Otero Court noted that the officer had

attempted to craft a warrant that would authorize a search for evidence of mail

and credit card theft. Id. While the language was deficient and it failed the

particularity requirement of the Fourth Amendment, the Court noted that the

officer had sought the assistance of the Assistant United States Attorney who

had assured the officer that the language satisfied legal requirements and had

received approval from the magistrate. Id. Moreover, the Otero Court noted

that the search was limited to evidence of the mail and credit card theft. Id.

In Riccardi, the Tenth Circuit considered a case in which the warrant to

seize and examine the defendant’s computer failed to satisfy the Fourth

Amendment’s particularity requirement. Riccardi, 405 F.3d at 863.

Nevertheless, the Court found that certain factors supported the district court’s

finding that there was good-faith. This included the fact that the investigating

officers carefully limited their search to files relevant to the investigation, and

to the scope of the search as it was described in the affidavit. Moreover, the

officers, as in the instant case, temporarily suspended their search to ask

questions of legal counsel. Id. at 864.

As in Otero and Riccardi, the agents in this case limited their search to

evidence of child pornography and seized only the evidence that was specified on

Exhibit B to the affidavit. The care Agent Stone took in making sure everyone

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had a copy of the affidavit and supporting documents prior to the search

indicates the officer was dedicated to doing things the proper way. Based on

these factors, the good-faith exception should be applied in this case.

We therefore conclude that the error in this case simply does not rise to a

level which requires application of the exclusionary rule. Although the executing

agent was partially at fault, as he is the one who drafted the warrant and failed

to incorporate the attachment and the affidavit into the warrant, the fault was

merely negligent. There was no deliberate, reckless or grossly negligent conduct

by law enforcement officers generally, nor specifically by the executing agent.

Nor was there recurring or systemic negligence. See Herring, 129 S.Ct. at 702.

Exclusion of the evidence seized under the authority of the invalid warrant in

this case therefore would not have the desired deterrent effect under Herring.

Accordingly, the district court did not err in denying Allen’s motion to suppress.

The negligent mistake in the warrant does not require “the extreme sanction of

exclusion.” Id. at 700.

The Government argues that because the good-faith exception applies, this

court need not consider the issue of whether there was sufficient probable cause.

However, because the good-faith exception applies to the particularity challenge

does not presume its application to the other challenges leveled by Allen.

Regardless, we find that the search resulting from reliance on the evidence of

child pornography used to establish the basis for the issuance of the warrant was

not stale and that sufficient probable cause existed for the issuance of the

warrant. We also conclude that the district court did not err in excluding the

proffered testimony regarding the lascivious nature of the images used to

establish probable cause. Each of these findings will be discussed in turn.

A magistrate’s determination of probable cause is entitled to great

deference by reviewing courts. Gates, 462 U.S. at 216 & n.10. A magistrate

needs only a substantial basis for concluding that a search would uncover

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evidence of wrongdoing. Jones v. United States, 362 U.S. 257, 271 (1960),

overruled on other grounds by United States v. Salvucci, 448 U.S. 83 (1980). As

this court has said, the task of a magistrate signing a search warrant is simply

to make a “practical common-sense decision as to whether, given all the

circumstances set forth in the affidavit . . ., there is a fair probability that

contraband or evidence of a crime will be found in a particular place.” United

States v. Froman, 355 F.3d 882, 889 (5th Cir. 2004) (internal quotation marks

and citation omitted).

The affidavit certainly provided enough information to permit the

magistrate to decide that there was a fair probability that child pornography

would be found at Allen’s home. The affidavit detailed how the investigation

began. Computers seized from Jeremy Rice revealed data associated with the

Google program “Hello.” The affidavit explained that the Hello program allowed

users to create a friend’s list of other Hello users by adding their email addresses

to their friends list. Friends can access each other using an encrypted

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

friends to chat and trade data files, including images, in an encrypted format.

The examination of Rice’s computer revealed he had accessed the Hello account

with the name and exchanged over 1800 image files with four friends, one of

whom was identified as “candyman04.” Many of the files depicted children

engaged in sexually explicit conduct. ICE subsequently identified “candyman04”

as Jerry Mikowski.

When Mikowski’s computer was searched, a file named “friends.xml” was

discovered. The file contained a list of Mikowski’s current Hello “friends.” The

examination also revealed that Mikowski traded child pornography with dozens

of Hello users. One friend was identified as “mrhyde6988.” 2

2

Mikowski was subsequently convicted of Distributing Images of Minors Engaging in

Sexually Explicit Activity in violation of 18 U.S.C. § 2252(a)(2).

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Information provided by Google pursuant to a subpoena indicated that the

H ello user name “m yrhyde6988” used the em ail address

mrhyde6988@yahoo.com. Google records indicated that “mrhyde 6988”

registered with the Google Hello program on December 6, 2006 and that he had

logged into the program from only one IP address from April 17, 2007 through

May 7, 2007 and he had accessed the program 23 times during this period.

Yahoo, pursuant to a subpoena, provided information on the

“myhyde6988@yahoo.com” email address. Yahoo identified the same IP address

that Google had given investigators earlier. Their information indicated the

account holder was a Mr. Hyde from New York, New York. A third subpoena,

this time to Clearwire, LLC, revealed the IP address was associated with David

Allen in Midland, Texas.

Images were obtained from Mikowski’s (candyman04) computer. The

images were of what appeared to be prepubescent females posing nude. The

images came from a file named “frommrhyde6988.” This indicated to the agent

that “mrhyde6988” distributed at least two images of children engaged in

sexually explicit conduct. The affidavit described the images in detail. The file

name of the first image was “11 very hot.”

This information was clearly sufficient to support the magistrate’s decision

that there was probable cause to believe evidence of child pornography would be

found in Allen’s home on his computer. The information presented in the

affidavit proved pornographic images had been sent to candyman04 and placed

in a file labeled with Allen’s user ID for the Hello program. The investigation

traced the user name and the IP address used to access the Hello program to

Allen’s computer in Midland. Therefore, it was reasonable for the magistrate to

conclude Allen had sent copies of the pornographic images to his Hello friend

“candyman04" and that he still either retained those images or had more stored

on his computer. See Froman, 355 F.3d at 890-91 (upholding a finding of

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probable cause to search the defendant’s computer and other electronic

equipment, stating that “it is common sense that a person who voluntarily joins

a group such as Candyman [an online pornography club], remains a member of

the group for approximately a month without cancelling his subscription, and

uses screen names that reflect his interest in child pornography, would download

such pornography from the website and have it in his possession”).

Allen argues that the fact that images of child pornography on

candyman04's computer were labeled “frommrhyde6988” was not sufficient

probable cause to support the warrant. Allen submits that candyman04 could

have labeled the files this way even if they were not sent to him by mrhyde6988.

Allen’s argument ignores the fact that he had enrolled in the Hello program and

had become one of candyman04's online “friends.” When those facts are coupled

with the way the files are labeled, there is clearly probable cause to believe Allen

had transmitted child pornography over the internet with his computer.

The affidavit also states that the forensic examination of Mikowski’s

(candyman04) computer revealed that Mikowski “traded child pornography with

dozens of Hello users. One user with whom Mikowski traded child pornography

was identified as ‘mrhyde6988’”. The fact that Mikowski was using the Hello

program to trade child pornography with dozens of users makes it likely that he

had also traded child pornography with Allen. It also further supports the

conclusion that the photos labeled from “frommrhyde6988” were in fact from Mr.

Hyde, who was later identified as Allen.

As the district court noted, the “peculiarity of the user name ‘mrhyde6988,’

the fact that this user name was listed as one of Mikowski’s ‘friends’ on the file

sharing service on which he was known to trade child pornography, and the fact

that a file containing child pornography was labeled ‘frommrhyde6988’ on

Mikowski’s computer, provides enough information for this Court to find that

probable cause existed.” We agree.

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Further, Allen used a false name and address when he opened an account

for his “mrhyde6988@yahoo.com” email address. Clearly, the magistrate could

infer that Allen wanted to conceal his identity by using the name “Mr. Hyde” and

a New York address because he was involved in distributing child pornography.

The affidavit is not required to give the magistrate proof beyond a reasonable

doubt. Rather, the Fourth Amendment requires only that there is probable

cause to believe that the fruits, instrumentalities or evidence of criminal acts

exist at the place for which the warrant is requested. Gates, 462 U.S. at 238.

The information was sufficient to establish probable cause.

Allen argues the information concerning the photographs stored as

“frommrhyde6988” was stale and therefore could not be used to provide probable

cause. The district court correctly rejected this claim. In its opinion, the district

court recognized that the affidavit did not establish when the photographs were

transferred by Allen to Mikowski. However, the court found that because Allen

initiated use of his “Hello” account on December 6, 2006, that would have been

the earliest date the photos could have been sent. The court then assumed, for

purposes of analyzing the issue, the images were transferred at the first

opportunity, on December 6, 2006. Therefore, the facts underlying the warrant

were 18 months old on the date the warrant was issued. The district court found

the information was not so stale as to render official belief in its adequacy

unreasonable. We concur with the conclusion of the district court.

The amount of delay which will make information stale depends upon the

particular facts of the case, including the nature of the criminal activity and the

type of evidence sought. Bastida v. Henderson, 487 F.2d 860, 864 (5th Cir.

1973). As with other issues concerning probable cause, a magistrate’s decision

is given considerable deference in the absence of arbitrariness, and the

magistrate is expected to act reasonably and use common sense. Id. at 863.

In this case, the magistrate could have reasonably concluded that the

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pornographic images were still on the computer at Allen’s home at the time the

warrant was issued. This conclusion is reasonable given the nature of the

evidence sought. In the affidavit submitted to the magistrate, the affiant said

that the computer’s ability to store images in digital form makes it an ideal

repository for child pornography. Internet access permits a computer user to

transport and download an image file to his own computer. Important to the

staleness issue, the magistrate was advised that computer files or remnants of

such files can be recovered months or even years after they have been

downloaded onto a hard drive, deleted, or viewed via the internet.

Agent Stone reported to the magistrate in his affidavit that because of the

fact that Allen appears to have traded images depicting child pornography and

engaged in chat sessions discussing the trade of child pornography, the agent

believed Allen had a sexual interest in children. The agent went on to say that

individuals who have a sexual interest in children or images of children often

maintain their collection on a computer and maintain these collections for

several years.

A number of courts have considered the issue of whether information in

a child pornography case is stale for the purposes of determining whether there

was probable cause for the issuance of a warrant. In Riccardi, 405 F.3d at

860-61, the Tenth Circuit considered whether a five-year-old Kinko’s receipt

found in an envelope with non-pornographic pictures was too stale to support

probable cause for the issuance of a search warrant. The court explained that

whether information is stale depends on the nature of the criminal activity, the

length of the activity, and the nature of the property to be seized. Id. The court

went on to say that although the Kinko’s receipt may have been five years old,

it showed that the defendant had the desire and ability to convert Polaroid

photographs of children to a digital format, which is a common means by which

child pornographers distribute and exchange their materials. Id. While the

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receipt was not the only evidence that supported probable cause, the receipt

could be considered despite its age. It was not “stale.” Id.

In United States v. Frechette, 583 F.3d 374 (6th Cir. 2009), the Sixth

Circuit held that information presented to a magistrate judge regarding a

suspect’s purchase of a one-month subscription to a child pornography site was

not stale though the purchase of the subscription occurred 16 months prior to the

search. Id. at 378-79. In reaching this conclusion, the court noted that the crime

is generally carried out in the secrecy of the home and over a long period;

therefore the same time limitations that apply to more fleeting crimes do not

apply to child pornography cases. Id. at 378.

In United States v. Lacy, 119 F.3d 742, 745 (9th Cir. 1997), the Court

upheld a search warrant based on information ten months old. The court

explained that information is not stale because the affidavit provided ample

reason to believe pornography was in Lacey’s apartment. Id. at 745-46; see also

United States v. Paull, 551 F.3d 516 (6th Cir. 2009) (information that the

defendant subscribed to child pornography 13 months earlier was not stale);

United States v. Morales-Aldahondo, 524 F.3d 115, 119 (1st Cir. 2008) (holding

that “[t]he passage of more than three years from the acquisition of the evidence

until the warrant application [did not] render[] the evidence stale” in a child

pornography case); and United States v. Newsom, 402 F.3d 780, 783 (7th Cir.

2004) (“Information a year old is not necessarily stale as a matter of law.”).

Accordingly, we find that the district court did not err when it found the

information was not stale.

Allen also claims there was not probable cause because the photographs

of children referenced in the affidavit were not “lascivious” and therefore were

not child pornography. The district court applied the factors set forth in United

States v. Bouderau, 250 F.3d 279, 282 n.2 (5th Cir. 2001) to analyze the

lascivious nature of the photographs. After doing so, the district court concluded

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that it was reasonable for officials to believe that the photos were child

pornography and rejected Allen’s argument by expressly holding that the

probable cause determination based on the lascivious nature of the photographs

was well founded.

The court noted that the photos displayed children with the pubic area

plainly exposed. One photo showed a girl in an unnatural pose who was fully

nude in the setting of a hotel room. The other photo was entitled “11 very hot.”

The court noted that the girl, posing nude in front of a bed without clothing in

thigh-high stockings, was suggestive. Given these facts, the court found it

reasonable for officials to believe the photos were child pornography and the

photos gave those officials probable cause to believe pornography would be found

on Allen’s home computer. See United States v. Hill, 459 F.3d 966, 972 (9th Cir.

2006) (upholding a finding of probable cause based on, inter alia, the description

of the images in the affidavit and stating that there was a fair probability that

the images were “so presented by the photographer as to arouse or satisfy the

sexual cravings of a voyeur.”) (internal quotation marks and citations omitted).

The district court did not err in finding the description of the pictures supported

the finding of probable cause.

Finally, Allen argues the district court erred in excluding the testimony

of Nancy Piette, a private investigator, at the suppression hearing. Allen states

in his brief that Piette would have testified that she reviewed the descriptions

of the two photographs in the affidavit in support of the search warrant and she

would have stated that the photographs are the same or very similar to

photographs found in various books in libraries throughout the country.

Allen submits that the court erred in excluding the evidence because it

was relevant. We disagree. Whether the photographs described in the affidavit

were similar to other photographs Piette may have found is not relevant to

either the issue of probable cause or good-faith. What was at issue was whether

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the description of the images that was contained in the affidavit was sufficient

to provide probable cause to believe child pornography would be located on

Allen’s computer. The district court did not err in excluding this testimony and

the admission of the photographs. See Hill, 459 F.3d at 972 (evaluating probable

cause based on the description of the images in the affidavit and not the images

themselves).

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

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