United States v. Doyle

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 09-4603

ROBERT FRANKLIN DOYLE, JR.,

Defendant-Appellant.



Appeal from the United States District Court

for the Western District of Virginia, at Big Stone Gap.

James P. Jones, Chief District Judge.

(2:07-cr-00004-jpj-pms-1)

Argued: January 28, 2011

Decided: May 23, 2011

Before DUNCAN and WYNN, Circuit Judges, and

Irene C. BERGER, United States District Judge for the

Southern District of West Virginia,

sitting by designation.

Reversed by published opinion. Judge Wynn wrote the opin-

ion, in which Judge Duncan and Judge Berger concurred.

Judge Duncan wrote an opinion concurring separately and

concurring in the judgment.

2 UNITED STATES v. DOYLE

COUNSEL

ARGUED: John Edward Jessee, JESSEE, READ & ELY,

PC, Abingdon, Virginia, for Appellant. Jennifer R. Bockhorst,

OFFICE OF THE UNITED STATES ATTORNEY, Abing-

don, Virginia, for Appellee. ON BRIEF: Timothy J. Heaphy,

United States Attorney, Roanoke, Virginia, for Appellee.

OPINION

WYNN, Circuit Judge:

While "objectively reasonable reliance on a subsequently

invalidated search warrant cannot justify the substantial costs

of exclusion [of evidence]," where the information relied

upon is "‘so lacking in indicia of probable cause as to render

official belief in its existence entirely unreasonable,’" exclu-

sion is an appropriate remedy. United States v. Leon, 468 U.S.

897, 922-23 (1984) (quoting Brown v. Illinois, 422 U.S. 590,

610-11 (1975) (Powell, J., concurring in part)). In this case,

the application for a warrant to search a private residence for

evidence of child pornography failed to indicate that the pic-

tures allegedly possessed by the resident were in fact porno-

graphic and provided no indication as to when the pictures

were allegedly possessed. Because it was unreasonable to

believe that probable cause was demonstrated to search for

evidence of the commission of a crime where the warrant

application included scant indication that the crime had been

committed and zero indication as to when it was committed,

we conclude that exclusion of the evidence obtained from the

search in this case is an appropriate remedy.

I.

On January 9, 2004, Captain Charles Taylor Scott ("Scott")

of the Lee County, Virginia Sheriff’s Department executed a

UNITED STATES v. DOYLE 3

search warrant at the home of Defendant Robert Doyle, Jr.

("Doyle"). Doyle’s computer was seized and a forensic exam-

ination of its hard drive revealed images of child pornogra-

phy. On March 6, 2007, a federal grand jury indicted Doyle

on separate counts of receipt1 and possession2 of child pornog-

raphy. A superseding indictment, returned on September 11,

2007, repeated these two counts and added three counts of mail-

ing3 child pornography.

On August 9, 2007, Doyle filed a motion to suppress the

fruits of the search of his home. In the motion, Doyle asserted

that the search warrant was issued without probable cause.

Specifically, Doyle argued that any information supporting a

finding of probable cause was too "stale" to justify reliance

thereon. On September 9, 2007, Doyle filed a supplement to

the motion, arguing that "an insufficient factual basis as to the

underlying alleged criminal conduct and reliability of the

informant(s) was set forth within the Affidavit or otherwise

represented to the state Magistrate to support a finding of

probable cause."

1

Federal law establishes criminal punishment for one who "knowingly

receives or distributes . . . any child pornography that has been mailed, or

using any means or facility of interstate or foreign commerce shipped or

transported in or affecting interstate or foreign commerce by any means,

including by computer." 18 U.S.C. § 2252A(a)(2)(A).

2

Federal law establishes criminal punishment for one who "knowingly

possesses, or knowingly accesses with intent to view, any book, magazine,

periodical, film, videotape, computer disk, or any other material that con-

tains an image of child pornography that has been mailed, or shipped or

transported using any means or facility of interstate or foreign commerce

or in or affecting interstate or foreign commerce by any means, including

by computer, or that was produced using materials that have been mailed,

or shipped or transported in or affecting interstate or foreign commerce by

any means, including by computer." 18 U.S.C. § 2252A(a)(5)(B).

3

Federal law provides criminal punishment for one who "knowingly

mails, or transports or ships using any means or facility of interstate or for-

eign commerce or in or affecting interstate or foreign commerce by any

means, including by computer, any child pornography." 18 U.S.C.

§ 2252A(a)(1).

4 UNITED STATES v. DOYLE

Scott’s warrant application requested a search for evidence

of a violation of "18.2-347.1:1 Possession of Child Pornogra-

phy."4 Authorization was sought to search Doyle’s house for

"[a]ny and all materials, books, magazines, pictures, [or] vid-

eos that are of a sexual nature involving any minor child" as

well as "any communication system that could be used to

facilitate a sexual offense against a child. (computer)." In the

section stating the "material facts constituting probable cause

that the search should be made," the affidavit stated: "Three

minor children have come forward and stated that [Doyle] has

sexually assaulted them at the Doyle residence. One victims

[sic] disclosed to an Uncle that Doyle had shown the victim

pictures of nude children." The affidavit indicated that the

affiant learned this information through an informant whose

credibility was determined from "[d]etailed Victim statements

of the assault and of the Doyle residence, where victims

describe the assailants [sic] bedroom and vehicle he drives

and description of the home. Which has all been verified by

Sheriffs [sic] Dept."

On September 11, 2007, a federal magistrate held an evi-

dentiary hearing on Doyle’s motion to suppress. During the

hearing, it was revealed that although Scott signed the appli-

cation for the search warrant, as well as the supporting affida-

vit, both documents were drafted by Scott’s subordinate,

Lieutenant Frank Rouse ("Rouse").5 Indeed, Scott did not

even participate in the investigation. Rouse accompanied

Scott to apply for the search warrant and gave an unsworn

4

This statutory citation was incorrect, as the crime of Possession of

Child Pornography is codified as Va. Code § 18.2-374.1:1. However, we

perceive this minor discrepancy as nothing more than a typographical

error, and none of Doyle’s arguments hinge on this erroneous citation.

5

According to both Scott and Rouse, Scott signed the application to alle-

viate concerns on the part of Doyle’s family that Rouse was conducting

the investigation as part of a personal vendetta against Doyle.

UNITED STATES v. DOYLE 5

"summary" of his investigation to the issuing magistrate to

supplement the affidavit.6

At the evidentiary hearing, Rouse testified that during the

first week of August 2003, Edward J. Jones came to his office

at the Sheriff’s department. Jones reported that during a fam-

ily gathering the preceding week, his step-nephew claimed to

have been previously sodomized by Doyle. The child also

reportedly claimed to have witnessed his younger brother

being sodomized by Doyle. Jones additionally informed

Rouse that the child claimed that Doyle showed him pictures

of nude boys.

Rouse further testified that on August 26, 2003, he inter-

viewed the allegedly sodomized siblings at the Sheriff’s

department. According to Rouse, Child 17 (the step-nephew

who spoke to Jones at the family gathering) relayed three sep-

arate accounts of sexual assault. First, Child 1 claimed that

Doyle picked him up from a Rose Hill pool hall and offered

him money to help take out the trash. According to Child 1,

when they reached Doyle’s home, Doyle pulled him out of the

truck, took him inside, and sodomized him. The second inci-

dent was similar: Doyle allegedly picked up Child 1 and Child

1’s brother (Child 2) at the pool hall, took them to Doyle’s

house, and proceeded to sodomize Child 2. The third incident

involved Doyle allegedly fondling Child 1 after picking him

up at a trailer park in Rose Hill. Notably, Rouse admitted that

during the interview, Child 1 never alleged that Doyle showed

him child pornography.

6

Because Rouse’s "summary" was provided to the magistrate orally, and

was not transcribed, we cannot discern exactly what information was

offered in support of the application for a search warrant. For the purposes

of this appeal, we rely on the details of the investigation as provided by

Rouse at the hearing before the federal magistrate, noting Rouse’s testi-

mony that he made the same summary for the state magistrate who issued

the warrant.

7

To protect the minors involved in this case, their names will not be

used. Instead, we will refer to each child by number.

6 UNITED STATES v. DOYLE

Rouse also summarized his interview of Child 2, who

described being picked up by Doyle, told that they were going

to take out the trash, then taken to Doyle’s house. Child 2 did

not describe what transpired in the house, instead saying that

his older brother (Child 1) knew what happened to him. Child

2 did, however, mention a "dragon" on Doyle’s bed. Again,

Rouse conceded that Child 2 did not allege that Doyle showed

him child pornography.

According to Rouse, a fellow investigator in the Sheriff’s

department revealed that a third child claimed to have been

sexually assaulted by Doyle. On December 12, 2003, Rouse

interviewed the child (Child 3), who gave an account of sex-

ual assault similar to those of the other two children. Rouse

stated that Child 3 claimed that Doyle picked him up at the

pool hall in Rose Hill, offered him money to take out the

trash, then took him to the Doyle house and sodomized him.

Child 3 also mentioned a separate incident in which Doyle

fondled him. Additionally, Child 3 described the vehicles in

the driveway at Doyle’s house, how to get to Doyle’s bed-

room upon entering the house, and the contents of Doyle’s

bedroom. Because Rouse had previously been in Doyle’s

home, he was able to verify the accuracy of Child 3’s descrip-

tions. According to Rouse, Child 3’s description of the inte-

rior of the home formed the primary motivation to apply for

a search warrant, as it corroborated the allegations of sexual

assault. As with the other children, Rouse conceded that Child

3 never made an allegation that he was shown child pornogra-

phy by Doyle.

Scott also testified at the evidentiary hearing. However,

because of memory loss resulting from a recent all-terrain

vehicle accident, he was unable to elaborate on Rouse’s

account. On cross-examination, Scott admitted that he never

heard anyone say anything about Doyle possessing child por-

nography. He also admitted that he had not interacted with

any informant in this case, despite swearing to the contrary in

the affidavit offered in support of the warrant application.

UNITED STATES v. DOYLE 7

Scott was also unable to testify with certainty regarding his

review of the affidavit, saying that it was "entirely possible"

that he had not read it.

After hearing testimony from Scott and Rouse regarding

the warrant application, the federal magistrate recommended

granting Doyle’s motion to suppress. The magistrate first con-

cluded that there was insufficient evidence in the affidavit to

support a finding of probable cause that child pornography

would be found in the house. The magistrate noted that there

was no evidence in the affidavit as to when the pictures were

shown to Child 1, where they were shown to the child, or

whether the pictures actually met the statutory definition of

child pornography. Furthermore, the magistrate noted that

there was no information in the affidavit to establish Jones’s

credibility. The magistrate also opined that the "good faith"

exception to the warrant requirement did not apply in this

case. The magistrate concluded that Scott’s reliance on the

warrant was unreasonable because the affidavit contained

knowing or reckless falsity and was so "bare bones" in nature

that the issuing magistrate essentially acted as a "rubber

stamp."

Notwithstanding the magistrate’s recommendation, on Jan-

uary 2, 2008, the district court entered an order denying

Doyle’s motion to suppress. The district court proceeded

directly to the analysis of the applicability of the good faith

exception to the warrant requirement.8 Though the court rec-

ognized that the affidavit contained factual inaccuracies, it

concluded that they were the product of negligence rather

than intentional or reckless falsity. Further, the court opined

that the state magistrate had not acted as a "rubber stamp" and

that the affidavit was not "so lacking in indicia of probable

8

"[R]eviewing courts have the discretion to consider the questions of the

officers’ good faith without deciding the Fourth Amendment issue."

United States v. Clutchette, 24 F.3d 577, 581 n.4 (4th Cir. 1994) (citing

Leon, 468 U.S. at 925).

8 UNITED STATES v. DOYLE

cause as to render official belief in its existence entirely

unreasonable." Accordingly, the district concluded that the

good faith exception applied in this case. The matter pro-

ceeded to trial, and Doyle was convicted on all five counts.

On June 23, 2009, Doyle was sentenced to 235 months’

imprisonment. On appeal, Doyle contends that the district

court erred when denying his motion to suppress.

II.

When reviewing the district court’s suppression determina-

tion, we review the legal conclusions de novo and the findings

of fact for clear error. United States v. Sterling, 283 F.3d 216,

218 (4th Cir. 2002). We construe the evidence in the light

most favorable to the Government, the prevailing party below.

United States v. Han, 74 F.3d 537, 540 (4th Cir. 1996).

A.

The Fourth Amendment protects "[t]he right of the people

to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures" and states that

"no Warrants shall issue, but upon probable cause, supported

by Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized." U.S.

Const. amend. IV. Ordinarily, when a search violates the

Fourth Amendment, the fruits thereof are inadmissible under

the exclusionary rule, "a judicially created remedy designed

to safeguard Fourth Amendment rights generally through its

deterrent effect." See United States v. Calandra, 414 U.S.

338, 348 (1974); see also Mapp v. Ohio, 367 U.S. 643, 654-

55 (1961) (holding that the Fourth Amendment, and particu-

larly the exclusionary rule, is applicable to states through the

Fourteenth Amendment). However, this deterrence objective

"is not achieved through the suppression of evidence obtained

by ‘an officer acting with objective good faith’ within the

scope of a search warrant issued by a magistrate." United

UNITED STATES v. DOYLE 9

States v. Perez, 393 F.3d 457, 461 (4th Cir. 2004) (quoting

Leon, 468 U.S. at 920).

As such, in Leon, the Supreme Court established a good

faith exception to the exclusionary rule under which "evi-

dence obtained pursuant to a search warrant issued by a neu-

tral magistrate does not need to be excluded if the officer’s

reliance on the warrant was ‘objectively reasonable.’" Id. at

461 (quoting Leon, 468 U.S. at 922); accord United States v.

Bynum, 293 F.3d 192, 195 (4th Cir. 2002) ("[A] court should

not suppress the fruits of a search conducted under the author-

ity of a warrant, even a ‘subsequently invalidated’ warrant,

unless ‘a reasonably well trained officer would have known

that the search was illegal despite the magistrate’s authoriza-

tion.’") (quoting Leon, 468 U.S. at 922 n.23)).

Usually, "‘a warrant issued by a magistrate . . . suffices to

establish’ that a law enforcement officer has ‘acted in good

faith in conducting the search.’" Leon, 468 U.S. at 922 (quot-

ing United States v. Ross, 456 U.S. 798, 823 n.32 (1982)).

Accordingly, searches executed "‘pursuant to a warrant will

rarely require any deep inquiry into reasonableness.’" Id.

(quoting Illinois v. Gates, 462 U.S. 213, 267 (1983) (White,

J., concurring in the judgment)). However, there are four cir-

cumstances in which the Leon good faith exception will not

apply:

(1) "if the magistrate or judge in issuing a warrant

was misled by information in an affidavit that the

affiant knew was false or would have known was

false except for his reckless disregard of the truth;"

(2) if "the issuing magistrate wholly abandoned his

judicial role in the manner condemned in Lo-Ji

Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319,

60 L.Ed.2d 920 (1979)"; (3) if the affidavit support-

ing the warrant is "so lacking in indicia of probable

cause as to render official belief in its existence

entirely unreasonable;" and (4) if under the circum-

10 UNITED STATES v. DOYLE

stances of the case the warrant is "so facially

deficient- i.e., in failing to particularize the place to

be searched or the things to be seized-that the exe-

cuting officers cannot reasonably presume it to be

valid."

United States v. DeQuasie, 373 F.3d 509, 519-20 (4th Cir.

2004) (quoting Leon, 468 U.S. at 923 (internal punctuation

omitted)). Doyle’s arguments on appeal focus exclusively on

the first three circumstances.

B.

Doyle first argues that the Leon good faith exception

should not apply because "the affidavit executed by [Scott] is

riddled with false and misleading information." Brief of

Appellant at 19. We disagree.

Specifically, Doyle challenges the statement in Paragraph

4 of the affidavit that "[t]hree minor children have come for-

ward and stated that [Doyle] has sexually assaulted them at

the Doyle residence." This is an inaccurate assertion of the

number of children that actually alleged sexual assault. Rouse

admitted that during his investigation, only two children actu-

ally claimed that they were sexually assaulted. Child 2 merely

stated that he was taken to Doyle’s house and that Child 1, his

older brother, knew what happened to him. Doyle also takes

issue with the statement in the warrant application that "One

victims [sic] disclosed to an Uncle that Doyle had shown the

victim pictures of nude children." Doyle correctly points out

that Jones was the step-uncle, not the Uncle, of Child 1.

The district court, citing Rugendorf v. United States, 376

U.S. 528, 531-32 (1964), opined that these factual inaccura-

cies "are only of peripheral relevancy to the showing of prob-

able cause and do not go to the integrity of the Affidavit." In

Rugendorf, the petitioner challenged the validity of a search

warrant authorizing the search of his basement for stolen furs.

UNITED STATES v. DOYLE 11

Id. at 532. The underlying affidavit indicated that the affiant

learned from an informant that the furs were in the basement

and that they were stolen. Id. The informant also provided a

"detailed description of the furs, including number and type."

Id. The affiant stated that he had checked police records and

confirmed that a robbery of furs matching the description pro-

vided by the informant had occurred nearby. Notwithstanding

these statements, the petitioner contended that the affidavit

could not form the basis of probable cause to search because

the informant inaccurately stated that petitioner was a man-

ager of a local meat market and was in the "meat business."

Id. The court opined that petitioner’s occupation was "of only

peripheral relevancy to the showing of probable cause," and,

because the informant’s minor inaccuracies were not "within

the personal knowledge of the affiant, [they] did not go to the

integrity of the affidavit." Id.

Rugendorf is distinguishable from this case insofar as the

inaccuracies in the affidavit here involved information that

was supposedly within the personal knowledge of the affiant

(i.e. whether victims reported sexual assault). See Franks v.

Delaware, 438 U.S. 154, 163-64 (1978) (finding Rugendorf

inapplicable where accuracy of alleged misstatements was a

matter within the personal knowledge of the affiant). How-

ever, false information will only void a warrant if the infor-

mation was necessary to the finding of probable cause. Id. at

155-56; see also United States v. Gary, 528 F.3d 324, 328

(4th Cir. 2008) (concluding that where omissions from an

affidavit "were not material to the finding of probable cause,

the district court correctly held that the warrant was not

invalid").

Here, neither the exact number of alleged sexual assault

victims, nor the exact relationship between Jones and Child 1

were necessary to a finding of probable cause. To the extent,

if any9, that an allegation of sexual assault can support proba-

9

But see infra Section II.D.

12 UNITED STATES v. DOYLE

ble cause to search for evidence related to the distinct crime

of possession of child pornography, a finding of probable

cause would not be defeated where there were two, rather

than three, victims making these allegations.10 Likewise,

whether Jones was Child 1’s uncle or step-uncle is irrelevant

to the veracity or import of his statement.11 Accordingly,

Doyle’s reliance on these inaccuracies to defeat the good faith

exception is misplaced.

Doyle also argues that inaccuracies in Paragraph 7 of the

affidavit preclude the application of the good faith exception.

Because Rouse actually conducted the interviews of the

alleged victims, Doyle argues that the affidavit was mislead-

ing insofar as, by signing it, Scott swore that he "was advised

of the facts set forth in this affidavit in whole or in part, by

an informer."

The district court opined that the fact that Scott swore to

the contents of the affidavit was unimportant because the issu-

ing magistrate "was well aware that Rouse had conducted

most of the investigation" and "also well aware of the circum-

stances which led to Scott signing off on the Affidavit." As

mentioned above, to defeat the operation of the good faith

exception requires not only intentional or reckless falsity, but

also that the "the magistrate or judge in issuing a warrant was

misled" by such falsity. Leon, 468 U.S. at 923. Rouse and

Scott both testified that they explained to the state magistrate

that Rouse conducted the interviews of the alleged victims, so

10

It bears mention that insofar as Victim 1 alleged that Doyle sexually

assaulted him and Victim 2, both assaults being within Victim 1’s per-

sonal knowledge, there were in fact three allegations of sexual assault. The

affidavit merely incorrectly identified the number of accusers.

11

While Jones’s concern for the safety of the children is an indication

of his credibility, see DeQuasie, 373 F.3d at 523 (recognizing that infor-

mant’s "obvious personal interest in [the victim’s] well-being" supplied "a

corresponding motive to be truthful"), Doyle has presented no evidence

indicating that the concern for one’s step-nephew is markedly different

than that for a nephew.

UNITED STATES v. DOYLE 13

Doyle cannot show that the magistrate was misled by the

inaccuracy of Scott’s statement.

Doyle also contests the veracity of the statement in Para-

graph 7 of the affidavit that there were "[d]etailed Victim

statements of the assault and of the Doyle residence, where

victims describe the assailants [sic] bedroom and vehicle he

drives and description of the home." Doyle notes that only

Child 3 provided a description of the Doyle home. However,

as the government notes, the alleged victims did collectively

describe Doyle’s bedroom, vehicle, and home. As such, the

information provided, though perhaps misleading by virtue of

sentence construction, was not technically false.

In sum, although Doyle identifies a number of factual inac-

curacies in the affidavit offered in support of the warrant to

search his home, where the statements are indeed inaccurate,

he fails to establish that they were critical to the finding of

probable cause and, as such, misled the magistrate into issu-

ing the search warrant. Accordingly, we conclude that the first

circumstance justifying a departure from the Leon good faith

exception is not presented in this case.

C.

Next, Doyle argues the good faith exception should not

apply because the state magistrate "wholly abandoned his

detached and neutral judicial role" by rubber-stamping a "bare

bones" affidavit. Brief of Appellant at 22. We disagree.

The Leon court stated that when a magistrate abandons his

neutral role "in the manner condemned in Lo-Ji Sales, Inc. v.

New York," then the good faith exception should not apply.

Leon, 468 U.S. at 923. In Lo-Ji Sales, an investigator for the

New York State Police sought a warrant to search an adult

bookstore and presented a Town Justice with two allegedly

obscene films along with an affidavit indicating that "similar"

films were present in the bookstore. 442 U.S. at 321. After

14 UNITED STATES v. DOYLE

viewing the two films, the Town Justice issued a warrant

authorizing a search of the bookstore for items determined to

be possessed in violation of New York law. Id. at 321-22. The

warrant did not list those items; instead, the Town Justice

accompanied law enforcement officers on a search of the

bookstore, examined the materials therein to assess their

obscenity, then authorized the seizure of the items deemed

obscene. Id. at 326-27. The Supreme Court stated that the

Town Justice "was not acting as a judicial officer but as an

adjunct law enforcement officer." Id. at 327. The Court disap-

proved of the Town Justice’s reliance on the "conclusory"

allegations that "similar" items were present at the store and

criticized the issuance of an open-ended warrant. Following

Leon’s express reference to the unacceptability of the conduct

of the Town Justice in Lo-Ji Sales, this Court has held that the

good faith exception cannot apply "‘where the issuing magis-

trate wholly abandoned his judicial role’ as a detached and

neutral decisionmaker." United States v. Andrews, 577 F.3d

231, 236 (4th Cir. 2009) (quoting Leon, 468 U.S. at 923).

Here, Doyle does not contend that the state magistrate

issued an open-ended warrant or executed the search along-

side law enforcement officers as did the Town Justice in Lo-

Ji Sales. And while this Court has held that a magistrate aban-

dons his judicial role when issuing a warrant based on a "bare

bones affidavit,"12 United States v. Wilhelm, 80 F.3d 116, 121-

23 (4th Cir. 1996), if a magistrate issues a warrant on the

basis of nonconclusory statements that nonetheless fail to

establish probable cause, the reasonableness of the officer’s

execution of the warrant is better analyzed under the third cir-

cumstance discussed in Leon, which we address below. See

Andrews, 577 F.3d at 240 (stating that a "rubber stamp" chal-

12

See United States v. Laury, 985 F.2d 1293, 1311 n.23 (5th Cir. 1993)

(defining "bare bones affidavit" as one that contains "wholly conclusory

statements, which lack the facts and circumstances from which a magis-

trate can independently determine probable cause") (quoting United States

v. Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992)).

UNITED STATES v. DOYLE 15

lenge to judicial neutrality "[e]ssentially . . . recasts Andrews’

argument that no officer could reasonably rely on the warrant

because there was an insufficient basis for a probable cause

finding"); see also United States v. Sager, 743 F.2d 1261,

1267 (8th Cir. 1984) (rejecting rubber stamp challenge to neu-

trality as "only another way of phrasing the argument that no

one who relied upon the affidavit could have been objectively

reasonable"). Accordingly, we are reluctant to conclude that

the state magistrate so abandoned his judicial role as to

require a departure from the Leon good faith exception.

D.

Doyle next contends that the Leon good faith exception

should not apply because the affidavit offered in support of

the warrant lacked the necessary information from which the

issuing magistrate, or executing police officer, could glean

probable cause to support a search for child pornography. We

agree.

We recognize that mere insufficiency of the affidavit to

support probable cause will not preclude the application of the

Leon good faith exception. See Andrews, 577 F.3d at 236 n.1

("In the Leon context, we begin with the assumption that there

was not a substantial basis for finding probable cause; the

only question is whether reliance on a warrant that lacks such

a ‘substantial basis’ was nevertheless reasonable."). However,

we conclude that the deficiencies in the affidavit, which were

not remedied by Rouse’s investigation summary, were so

great as to render it objectively unreasonable for Scott to rely

on the warrant.

The Fourth Amendment states that "no Warrants shall

issue, but upon probable cause, supported by Oath or affirma-

tion, and particularly describing the place to be searched, and

the persons or things to be seized." U.S. Const. amend. IV.

The unsworn statements of Rouse would therefore not provide

the necessary foundation for the issuance of the warrant itself.

16 UNITED STATES v. DOYLE

However, the issue on appeal is not simply whether the war-

rant was deficient, but rather whether it was so deficient that

relying on it was unreasonable, thus precluding operation of

the good faith exception to the warrant requirement. When

considering the application of the good faith exception, courts

"should examine the totality of the information presented to

the magistrate in deciding whether an officer’s reliance on the

warrant could have been reasonable." United States v. Legg,

18 F.3d 240, 244 n.1 (4th Cir. 1994). As such, "we are not

limited to consideration of only the facts appearing on the

face of the affidavit." Perez, 393 F.3d at 462; see also United

States v. Edwards, 798 F.2d 686, 691 (4th Cir. 1986) (con-

cluding that an officer’s unrecorded oral presentation of criti-

cal information absent from the supporting affidavit did not

preclude application of the Leon good faith exception).

Probable cause to search "exist[s] where the known facts

and circumstances are sufficient to warrant a man of reason-

able prudence in the belief that contraband or evidence of a

crime will be found" in a particular place. Ornelas v. United

States, 517 U.S. 690, 696 (1996). The warrant application in

this case sought permission to search for evidence of child

pornography. Virginia law defines "child pornography" as

"sexually explicit visual material which utilizes or has as a

subject an identifiable minor." Va. Code Ann. § 18.2-

374.1(A) (2010). "Sexually explicit visual material" is defined

to include, inter alia, "a picture . . . which depicts sexual bes-

tiality, a lewd exhibition of nudity, as nudity is defined in

§ 18.2-390, or sexual excitement, sexual conduct or sadomas-

ochistic abuse, as also defined in § 18.2-390 . . . ." Id.

Doyle first contends that there was insufficient evidence

presented to the issuing magistrate to establish the requisite

nexus between Doyle’s residence and any crime involving

child pornography. "The critical element in a reasonable

search is not that the owner of the property is suspected of

crime but that there is reasonable cause to believe that the

specific ‘things’ to be searched for and seized are located on

UNITED STATES v. DOYLE 17

the property to which entry is sought." Zurcher v. Stanford

Daily, 436 U.S. 547, 556 (1978). Accordingly, "residential

searches have been upheld only where some information links

the criminal activity to the defendant’s residence." United

States v. Lalor, 996 F.2d 1578, 1583 (4th Cir. 1993).

Here, Jones provided no indication as to where the pictures

were allegedly shown to Child 1. However, "the nexus

between the place to be searched and the items to be seized

may be established by the nature of the item and the normal

inferences of where one would likely keep such evidence."

United States v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988).

The district court opined that "[t]he magistrate could reason-

ably infer from the nature of the items to be seized and the

location of the alleged assaults that such items would be kept

at Doyle’s residence." This case is distinguishable from others

in which this Court has found probable cause to search a sus-

pect’s residence for evidence of child pornography. See, e.g.,

United States v. Richardson, 607 F.3d 357 (4th Cir. 2010)

(finding probable cause where investigation linked defen-

dant’s email accounts, which he used to distribute child por-

nography, to the address where the warrant was executed);

United States v. Bynum, 604 F.3d 161 (4th Cir. 2010) (finding

probable cause where someone at address where warrant was

executed uploaded suspected child pornography to the inter-

net); United States v. Goodwin, 854 F.2d 33 (4th Cir. 1988)

(finding probable cause for anticipatory search warrant when

defendant ordered child pornography and investigation veri-

fied that materials would be delivered to address where war-

rant was executed). Yet, in light of Anderson, we cannot

conclude that the district court erred in concluding that, if

Doyle actually possessed child pornography, it was reason-

able to assume that Doyle kept it at his house.

There is, however, remarkably scant evidence in the affida-

vit (or Rouse’s investigation summary) to support a belief that

Doyle in fact possessed child pornography. The bulk of the

information supplied in the affidavit concerned allegations of

18 UNITED STATES v. DOYLE

sexual assault. But evidence of child molestation alone does

not support probable cause to search for child pornography.

See United States v. Hodson, 543 F.3d 286, 292 (6th Cir.

2008) ("[I]t is beyond dispute that the warrant was defective

for lack of probable cause-Detective Pickrell established

probable cause for one crime (child molestation) but designed

and requested a search for evidence of an entirely different

crime (child pornography). Consequently, the warrant did not

authorize the search and, barring some other consideration,

the evidence obtained during that search must be excluded

from trial."); see also United States v. Falso, 544 F.3d 110,

124 (2d Cir. 2008) ("[A]lthough Falso’s crime allegedly

involved the sexual abuse of a minor, it did not relate to child

pornography. That the law criminalizes both child pornogra-

phy and the sexual abuse (or endangerment) of children can-

not be enough.") (citation omitted).

Here, the only mention in the warrant application regarding

the presence of pornography was the statement that one of the

alleged victims "disclosed to an Uncle that Doyle had shown

the victim pictures of nude children." Doyle argues that the

warrant lacked sufficient indicia of the credibility of Jones,

the only informant who mentioned the presence of nude pho-

tographs. "In order to establish probable cause for the issu-

ance of a search warrant, it is necessary to show that ‘given

all the circumstances set forth in the affidavit[,] . . . including

the "veracity" and "basis of knowledge" of persons supplying

hearsay information, there is a fair probability that contraband

or evidence of a crime will be found in a particular place.’"

Legg, 18 F.3d at 243 (quoting Illinois v. Gates, 462 U.S. 213,

238 (1983)).

Doyle correctly notes that the affidavit only addressed the

reliability and credibility of the child accusers. The district

court nonetheless opined that the step-uncle’s "information

regarding photographs of nude children could be deemed reli-

able by the officer’s corroboration of the step uncle’s depic-

tion of the alleged assaults." However, Jones did not describe

UNITED STATES v. DOYLE 19

the assaults (the children did), so corroboration of the details

of the assault would not shed light on his credibility. Nonethe-

less, we find unpersuasive Doyle’s argument that there were

insufficient indicia of Jones’s credibility. The Supreme Court

has stated that "if an unquestionably honest citizen comes for-

ward with a report of criminal activity-which if fabricated

would subject him to criminal liability- . . . rigorous scrutiny

of the basis of his knowledge [is] unnecessary." Gates, 462

U.S. at 233-34; see also Easton v. City of Boulder, 776 F.2d

1441, 1449 (10th Cir. 1985) ("[W]hen examining informant

evidence used to support a claim of probable cause for a war-

rant . . . the skepticism and careful scrutiny usually found in

cases involving informants, sometimes anonymous, from the

criminal milieu, is appropriately relaxed if the informant is an

identified victim or ordinary citizen witness."). Moreover,

Jones’s concern for the safety of the children is an additional

indication of his credibility. See DeQuasie, 373 F.3d at 523.

However, the credibility of Jones, who merely reported the

allegations of a child informant, does little, if anything, to

indicate probable cause to search Doyle’s home. Even if the

step-uncle’s credibility were entirely unassailable, this would

merely establish that he was telling the truth that his step-

nephew made the allegations that Jones reported to Rouse.

That, in itself, says nothing about the truth of those allega-

tions. Importantly, Rouse testified that none of the alleged

child victims made allegations to law enforcement that they

were shown pornographic material. Indeed, there is no indica-

tion in the record that the children were even asked during the

interview process about the presence of child pornography.

Doyle also argues that there was no evidence that the pic-

tures referenced by Jones actually constituted child pornogra-

phy. The mere presence of nudity in a photograph, even child

nudity, does not constitute child pornography as that term is

defined by Virginia law. See Va. Code Ann. § 18.2-374.1(A)

(2004). Instead, the picture must contain a "lewd exhibition"

of nudity. Id.; see also Frantz v. Commonwealth, 9 Va. App.

20 UNITED STATES v. DOYLE

348, 353-54, 388 S.E.2d 273, 276 (Va. Ct. App. 1990) (hold-

ing that photographs of nude teenage boys "just standing

there" or "walking around" was not sufficient to establish that

the pictures constituted a lewd exhibition of nudity); Foster v.

Commonwealth, 6 Va. App. 313, 329, 369 S.E.2d 688, 698

(Va. Ct. App. 1988) (holding that pictures of young female’s

exposed nipples, without more, did not constitute a lewd exhi-

bition of nudity). Even assuming Jones’s veracity and the

accuracy of his step-nephew’s allegation, nothing in the affi-

davit supports a belief that the alleged pictures showed a

"lewd exhibition of nudity" in violation of the Virginia stat-

ute. The affidavit therefore lacked probable cause to justify a

search of Doyle’s home for child pornography. It is important

to remember that the absence of probable cause is insufficient

to defeat the operation of the Leon good faith exception; the

evidence offered in the warrant application must be so defi-

cient as to preclude reasonable belief in the existence of prob-

able cause. See Andrews, 577 F.3d at 236 n.1.

One might argue that the legal distinction between mere

nudity and child pornography is not something that a reason-

able law enforcement officer in Virginia should have known.

However, "[p]olice officers generally have a duty to know the

basic elements of the laws they enforce." Kelly v. Borough of

Carlisle, 622 F.3d 248, 258 (3d Cir. 2010). Without anything

more than a description of the photographs as depicting "nude

children,"13 there were arguably insufficient indicia of proba-

ble cause to justify reasonable reliance on a warrant authoriz-

ing a search for child pornography. Insofar as possessing nude

pictures of children is not per se illegal, reasonable officers

should at least obtain a description of the photographs before

relying on them to justify entry into a residence.14

13

Nothing in the investigation "summary" that Rouse provided to the

state magistrate elaborated on the description of the pictures.

14

We are mindful that Child 1’s statement regarding Doyle’s possession

of the pictures was not made in isolation. Instead, it accompanied Child

1’s allegation that Doyle sodomized him. However, we are reminded that

UNITED STATES v. DOYLE 21

Moreover, even assuming arguendo that a reasonable offi-

cer could believe that the pictures possessed by Doyle con-

tained child pornography, it was unreasonable to believe that

probable cause was demonstrated to search Doyle’s home

given the complete absence of any indication as to when the

pictures were possessed. In other words, even if the minimal

facts recited in the affidavit could justify reasonable reliance

on the part of the officers, there is absolutely no indication in

the affidavit as to when probable cause to search arose. "A

valid search warrant may issue only upon allegations of facts

so closely related to the time of the issue of the warrant as to

justify a finding of probable cause at that time." See United

States v. McCall, 740 F.2d 1331, 1335-36 (4th Cir. 1984)

(emphasis added) (internal quotation marks omitted); id. at

1336 ("[E]vidence seized pursuant to a warrant supported by

‘stale’ probable cause is not admissible in a criminal trial to

establish the defendant’s guilt."). Doyle notes that the affida-

vit did not include any mention of when the assaults allegedly

occurred or when the pictures were shown to Child 1. More-

over, according to Rouse, he did not inform the magistrate of

the timing of the alleged offenses, instead only relaying the

dates of his interviews of the alleged victims.

Doyle concedes that "[t]here are a host of cases that dis-

count the nexus of time requirement when considering allega-

tions of child pornography." Brief of Appellant at 16. "In the

context of child pornography cases, courts have largely con-

cluded that a delay-even a substantial delay-between distribu-

tion and the issuance of a search warrant does not render the

underlying information stale." United States v. Richardson,

the crime of child molestation is distinct from the crime of possessing

child pornography. See Hodson, 543 F.3d at 292. We are reluctant to

endorse an inference regarding the subject matter of a photograph drawn

solely from the context in which the photograph is displayed. Moreover,

we cannot conclude that it was reasonable to rely on such an inference

when simply asking Child 1 about the content of the photograph would

have precluded the need to do so.

22 UNITED STATES v. DOYLE

607 F.3d at 370 (concluding that lapse of four months did not

render probable cause to search for child pornography

"stale"); see, e.g. United States v. Newsom, 402 F.3d 780, 783

(7th Cir. 2005) ("Information a year old is not necessarily

stale as a matter of law, especially where child pornography

is concerned."); United States v. Harvey, 2 F.3d 1318, 1323

(3d Cir. 1993) (concluding that two to fifteen months does not

render information stale).15

15

As stated in Richardson:

This consensus rests on the widespread view among the courts-in

accord with Agent White’s affidavit-that "collectors and distribu-

tors of child pornography value their sexually explicit materials

highly, ‘rarely if ever’ dispose of such material, and store it ‘for

long periods’ in a secure place, typically in their homes." United

States v. Lacy, 119 F.3d 742, 746 (9th Cir. 1997); see United

States v. Watzman, 486 F.3d 1004, 1008 (7th Cir. 2007) (reject-

ing challenge to probable cause where three months elapsed

between the crime and issuance of the warrant where agent testi-

fied child pornographers retain their collected materials for long

periods of time); United States v. Gourde, 440 F.3d 1065, 1072

(9th Cir. 2006) (en banc) (concluding that "[t]he details provided

on the use of computers by child pornographers and the collector

profile" provided support for a finding of probable cause); United

States v. Riccardi, 405 F.3d 852, 861 (10th Cir. 2005) (finding

probable cause based, in part, on "the observation that possessors

often keep electronic copies of child pornography"); United

States v. Lemon, 590 F.3d 612, 615 (8th Cir. 2010) ("Many

courts, including our own, have given substantial weight to testi-

mony from qualified law enforcement agents about the extent to

which pedophiles retain child pornography."), cert. denied, No.

90-10170, ___ U.S. ___, 130 S.Ct. 3305, ___ L.Ed.2d ___, 2010

WL 1531424 (2010); United States v. Morales-Aldahondo, 524

F.3d 115, 119 (1st Cir. 2008) (holding that three-year delay

between acquisition of child pornography and application for

warrant did not render supporting information stale since "cus-

tomers of child pornography sites do not quickly dispose of their

cache"), cert. denied, ___ U.S. ___, 129 S.Ct. 512, 172 L.Ed.2d

376 (2008).

607 F.3d at 370.

UNITED STATES v. DOYLE 23

However, Doyle argues that "the record in this case is abso-

lutely void of any information as to when . . . Doyle is alleged

to have shown the victim pictures of nude children." Thus, the

argument is not that too much time elapsed, but instead that

there was insufficient evidence presented to the magistrate to

determine how much time elapsed.16 While in the context of

child pornography substantial amounts of time can elapse

before probable cause to search for child pornography

becomes "stale," there is no support for the contention that

once probable cause exists to search for child pornography, it

remains valid ad infinitum.17 As such, we conclude that even

if the affidavit established probable cause, it was completely

devoid of indicia that the probable cause was not stale.

Further, where the totality of the information provided to

the magistrate included no indication as to when the events

supposedly creating probable cause to search took place,18 we

16

Indeed, Rouse admitted that "no time frame whatsoever" was given to

the magistrate regarding when the pictures were allegedly shown to Vic-

tim 1. Rouse also conceded that "the magistrate was given no information

regarding the alleged timing of the assaults." [J.A. 115] We note that

Rouse did respond to one of the magistrate’s questions by indicating that

child molestors tend to "collect trophies and keep pictures." However, this

observation, without any indication as to when the alleged molestation

occurred, cannot support probable cause to search for child pornography.

17

Logically, the assaults could not have occurred prior to the birth of the

victims, but there is no indication of the age of the children in the affida-

vit. Nor did Rouse indicate that he informed the magistrate of the age of

the children, notwithstanding that Rouse knew that information.

18

The fact that the date of the initial event related to probable cause to

search for child pornography was completely omitted from the informa-

tion provided to the magistrate distinguishes this case from Anzualda v.

Commonwealth, 44 Va. App. 764, 607 S.E.2d 749 (Va. Ct. App. 2005).

In Anzualda, the affidavit included the date of a murder committed with

a pistol. The affidavit further stated that an informant disclosed that Anzu-

alda had traded marijuana for a pistol. The court concluded that probable

cause to search Anzualda’s home was lacking, but that the Leon good faith

exception applied because officers could reasonably assume that probable

cause to search was, at a minimum, existent as of the date of the murder

24 UNITED STATES v. DOYLE

cannot conclude that the officers reasonably relied on the

resulting search warrant. See United States v. Zayas-Diaz, 95

F.3d 105, 114-15 (1st Cir. 1996) ("[A] reasonably well-

trained law enforcement officer should be familiar with the

fundamental legal principle that both the ‘commission’ and

‘nexus’ elements of ‘probable cause’ include an essential tem-

poral component." (citing Leon, 468 U.S. at 920 n.20)); see

also United States v. Huggins, 733 F. Supp. 445, 449 (D.D.C.

1990) (refusing to apply good faith exception where the court

could not infer, from the information within "the four corners

of the affidavit . . . the time during which the criminal activity

was observed").

Here, nothing indicated when or if child pornography alleg-

edly existed in Doyle’s home. We conclude that the objec-

tively reasonable officer would not rely on a warrant

application so devoid of necessary information. Moreover,

because reliance on the warrant was not objectively reason-

able, we find that the good faith exception recognized in Leon

is inapplicable.

III.

In sum, nothing in this opinion should be construed as

requiring officers to second-guess the legal conclusions drawn

by magistrates presented with sufficient evidence to reach

them. However, where a reasonable officer would know that

a probable cause determination could not be rendered without

information conspicuously absent from his application for a

warrant, reliance on the resulting warrant is not objectively

6 months prior to the execution of the warrant. Id. at 782-83, 607 S.E.2d

at 758. As such, the court opined that the omission of other critical dates

did not preclude the application of the good faith exception. Here, in con-

trast, the only critical date was the date when Doyle allegedly showed Vic-

tim 1 a nude photograph. As that date was omitted, there was nothing on

which a reasonable officer could rely to conclude that a sufficiently lim-

ited period of time had elapsed to justify the search.

UNITED STATES v. DOYLE 25

reasonable. Stated differently, a magistrate’s signature cannot

render reasonable an objectively unreasonable failure to sup-

port a warrant application with evidence necessary to demon-

strate probable cause. Here, the information before the

magistrate failed to demonstrate whether the pictures alleg-

edly possessed by Doyle were in fact illegal to possess and

failed to indicate when Doyle allegedly possessed them.

Upholding this warrant would ratify police reliance on ques-

tionable indicia of probable cause to justify a search of a resi-

dence for child pornography without any regard to when the

child pornography supposedly existed in the residence.

Because such reliance would be manifestly unreasonable, we

cannot endorse such action. Accordingly, the holding of the

district court is

REVERSED.

DUNCAN, Circuit Judge, concurring separately and concur-

ring in the judgment:

This is a particularly troubling set of circumstances and I

commend the majority for its thorough parsing of the facts. I

am in ultimate agreement with its conclusion and write sepa-

rately only to explain my somewhat different analytical

approach.

The majority carefully considers each prong of the good

faith analysis raised by Doyle but ultimately relies on the

staleness of the evidence to preclude application of the Leon

exception. Staleness is indeed an issue here, though I remain

unconvinced that it is, standing alone, dispositive. For my

part, rather, it is the totality of irregularities and questionable

actions—Lieutenant Rouse’s unsworn testimony in support of

the warrant, the fact that the affiant to the search warrant did

not participate in the investigation, and the paucity of evi-

dence regarding child pornography—that ultimately tips the

scales in favor of reversal and provides guidance for law

enforcement and the district courts going forward. Cf. U.S. v.

26 UNITED STATES v. DOYLE

DeQuasie, 373 F.3d 509, 520 (4th Cir. 2004) (considering "all

of the circumstances of the case" when evaluating the applica-

bility of the Leon exception (quoting Leon, 468 U.S. at 922

n.23)).