Opposition Brief — Pappas v. United States

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No. 09-1285

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In the Supreme Court of the Anited States

TED L. PAPPAS, PETITIONER

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[INITED STATES OF AMERICA

ON PETITION FORA WRIT OF CERTIORAK/

lO THE UNITED STATES COURT OF APPEAI

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

NEAL KUMAR KATYAL

Acting Solicitor Genera

Counsel of Record

LANNY A. BREUER

Assistant Attorney Genera

Scott A.C. MEISLER

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@ usdo7.gor

(202) 514-2217

QUESTION PRESENTED

Whether the evidence obtained during a warrant

search of petitioner’s residence is admissible under t!

sood-faith exception to the exclusionary rule

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MRISDIC TION

conduct, in violation of 18 U.S.C. 2252(a)(4)(B). The dis:

trict court granted petitioner’s pre-trial motion to sup-

press evidence seized during a warrant-authorized

search of his home and statements he made during the

search. Pet. App. 21-34. On the government’s interlocu-

tory appeal, the court of appeals reversed and re-

manded. Jd. at 1-11.

1. In May 2005, law enforcement agents in San

Diego, California, executed a warrant to search Michael

Golubski’s account with America Online (AOL), an In-

ternet service provider. Pet. App. 2. The search re-

vealed that, between April 5 and May 1, 2005, Golubsk1

sent 17 messages, including 11 that contained child por-

nography, to “longtalks@aol.com.” /d. at 2, 72. Records

later obtained from AOL showed that petitioner used

longtalks@aol.com as his email address until June 28,

2005; that petitioner then changed his email address to

TedP5785@aol.com and continued to use that account

through at least November 2006; and that petitioner

resided in Wauwatosa, Wisconsin. 7d. at 2, 73-74.

In November 2006, Immigration and Customs In-

forcement Special Agent Elizabeth Hanson informed an

Assistant United States Attorney in the Eastern District

of Wisconsin of the results of the California investiga-

tion and inquired about the possibility of securing a war-

rant to search petitioner’s residence. Pet. App. 2. As

part of that consultation, Agent Hanson and the prose

cutor reviewed the facts together, and Agent Hanson

prepared a detailed affidavit in support of a warrant

application. Jd. at 2; Gov’t C.A. Br. 7; see Pet. App. 65-

83 (search warrant affidavit). The affidavit set forth

Agent Hanson’s professional experience investigating

the sexual! exploitation of minors, detailed three of the

11 sexually explicit images'of children sent to petitioner,

stated that petitioner continued to maintain an AOL

email account (TedP5785@aol.com), and provided infor-

mation corroborating petitioner’s address and identity.

Pet. App. 2-3, 66-68, 72-74. The affidavit also noted that

individuals who collect child pornography frequently use

computers to obtain and retain those images, typically

retain the pornographic images for years, and often

keep such images in their homes. /d. at 2, 75-77.

On the basis of the affidavit, a magistrate judge is-

sued a warrant to search petitioner’s residerice for evi-

dence of child pornography possession. Pet. App. 24:

Law enforcement agents executed the warrant the next

day. Ibid. Petitioner spoke te the agents during the

search, admitting that he had used the screen name

longtalks@aol.com to trade adult pornography in chat

rooms and over email. /d. at 3. Petitioner also stated

that he had received images and videos of child pornog-

raphy, but that he deleted them. /bid. The agents, how-

ever, found images of child pornography on the hard

drive of petitioner’s computer and on a floppy disk

seized during the search. /bid.

2. A grand jury in the Eastern District of Wisconsin

charged petitioner on two counts of possessing visual

depictions of minors engaging in sexually explicit con-

duct, in violation of 18 U.S.C. 2252(a)(4)(B). Indictment

1-3. Petitioner moved to suppress all of the evidence

obtained as a result of the search, contending that the

warrant authorizing the search was not supported by

probable cause. Pet. App. 36-37.

A magistrate judge recommended that the suppres-

sion motion be granted. Pet. App. 35-56. In the magis

trate judge’s view, the affidavit in support of the war-

rant. did not establish probable cause because it relied on

stale information (email messages found on Golubski's

4

AOL account 18 months earlier) and provided an insuffi-

cient basis for inferring that petitioner was a collector of

child pornography. /d. at 50-52. The magistrate judge

declined to apply the good-faith exception to the

exclusionary rule recognized in United States v. Leon,

468 U.S. 897 (1984), because in her view, “[t]he search

warrant affidavit was so lacking in probable cause” that

it was “entirely unreasonable” for the agents to rely on

it. Pet. App. 54 (internal quotation marks omitted).

The district court adopted the magistrate judge's

recommendation and granted petitioner’s suppression

motion. Pet. App. 21-34. Because “the government

[had] econcede[d] that probable cause for issuance of the

warrant may have been lacking,” the district court ad-

dressed only whether the good-faith exception to the

exclusionary rule applied. /d. at 25. The court declined

to apply that exception, explaining that the affidavit

failed to provide information “connecting boilerplate

averments about collectors of child pornography to [peti-

tioner].” Jd. at 27. In the district eourt’s view, “a rea-

sonable agent would know that the (scant) information

presented in support of [the] search warrant was wholly

insufficient and stale.” Jd. at 32. The court subse-

quently denied the government's reconsideration motion

and stayed proceedings pending resolution of the govern-

ment’s interlocutory appeal. /d. at 12-13, 17.

3. The court of appeals reversed and remanded.

Pet. App. 1-11. The court explained that, under this

Court’s decision in Leon, “evidence obtained in violation

of the Fourth Amendment is nonetheless admissibie if

the officer who conducted the search acted in good faith

reliance on a search. warrant.” Jd. at 4. The fact that

the officer obtained the warrant, the court added, “is

prima facie evidence of good faith.” Ibid. (internal quo-

tation marks omitted). The court observed that “a de

fendant may rebut the prima facie evidence of good

faith” by establishing that “the affidavit * * * was so

lacking in probable cause as to render official belief in

its existence entirely unreasonable,” 2bid. (internal quo

tation marks omitted), but concluded that petitioner had

not made such a showing here, 7d. at 5-10.

As the court explained, the affidavit recounted “that

at least eleven images of child pornography had been

sent to [petitioner’s] email account” and that petitioner

had an active AOL email account and “continued access

to a computer on which child pornography could be

stored.” Pet. App. 5. Petitioner had argued that there

was no evidence that he solicited the child pornography

that was sent to him; the court replied that “an officer

could reasonably believe that the number of email mes-

sages containing child pornography sent to [petitioner],

and the risk inherent in sending even one image of child

pornography to anyone other than a willful recipient,

was sufficient to establish probable cause.” /d. at 6.

The court also rejected petitioner’s contention that his

change of email account suggests he did not want to con

tinue receiving child pornography, stating that it is

“much more likely” that “[petitioner] changed his email

account to avoid detection,” noting that petitioner

“waited nearly three months after he received the first

email from Golubski to change his email address” and

“received numerous images of child pornography” in the

meantime. /d. at 6-7. The court also held that the 18

month delay between the transmission of the email mes-

sages and the issuance of the search warrant did not

render reliance on the search warrant unreasonable,

explaining that there is no “bright line for when infor-

mation is stale,” id. at 7, and the delay here “was not so

6

ereat as to overcome the presumption of good faith,” 2d.

at 11. And the court stated that Agent Hanson’s “con-

sult{ation] with an Assistant United States Attorney”

before seeking a warrant provided “additional evidence”

of good faith. /d. at 5 (internal quotation marks omit

ted).

Finally, the court held that it was not unreasonable

to believe that petitioner was a collector of child pornog-

raphy and that the agent’s observations about child por-

nography collectors applied to him. Pet. App. 8-9. The

court explained that “there is no magic ‘profile’ of child

pornography ‘collectors’ that must be attested to ina

search warrant affidavit”; rather, “the moniker ‘collec-

tor’ merely recognizes that * * * because child por-

nography is difficult to come by, those receiving the ma-

terial often keep the images for years.” /bid. Here, the

court explained, the evidence that petitioner possessed

numerous images of child pornography justified “inclu-

sion of the child-pornography boilerplate [language]” in

the search warrant affidavit.. [bid.

ARGUMENT

Petitioner renews his contention (Pet. 13-25) that the

good-faith exception to the exclusionary rule should not

apply on the facts of this case. Review of that claim

should be denied because the court of appeals’ decision

is interlocutory. Moreover, the court of appeals’ fact-

bound decision is correct and does not conflict with the

decisions of this Court or any other court of appeals.

Further review is therefore unwarranted.

1. Asan initial matter, review should be denied be

eause this case is an interlocutory posture. The court of

appeals reversed the district court’s order suppressing

evidence and remanded the case for further proceed-

ings. The lack of any final judgment below is “a fact that

of itself alone furnishe|s] sufficient ground for the de-

nial” of the petition. Hamilton-Brown Shoe Co. v. Wolf

Bros. & Co., 240 U.S. 251, 258 (1916); see Brotherhood of

Locomotive Firemen v. Bangor & Aroostook R.R., 389

U.S. 327, 328 (1967) (per curiam); Virginia Military

Inst. v. United States, 508 U.S. 946, 946 (1993) (“We

generally await final judgment in the lower courts be-

fore exercising our certiorari jurisdiction.”) (Scalia, J.,

coneurring in denial of certiorari). “[E]xcept in extraor-

dinary cases, [a] writ [of certiorari] is not issued until

final decree.” Hamilton-Brown Shoe Co., 240 U.S. at

258. This Court therefore routinely denies petitions by

criminal defendants challenging interlocutory determi-

nations that may be reviewed at the conclusion of the

criminal proceedings. See Eugene Gressman et al., Su

preme Court Practice § 4.18, at 280-281 & n.63 (9th ed.

2007).

That practice promotes judicial efficiency. The case

will now return to the district court, which has stayed

proceedings pending resolution of the government's ap-

peal. Pet. App. 17. If petitioner is acquitted, his claim

will become moot. If petitioner is convicted, he can pres-

ent all of his claims that the court of appeals rejects to

this Court, following a final judgment, in a single peti-

tion. See Major League Baseball Players Ass'n v. Gar-

vey, 532 U.S. 504, 508 n.1 (2001) (per curiam) (Court

“hals}] authority to consider questions determined in

earlier stages of the litigation where certiorari is sought

from” most recent judgment).

2. Review is also unwarranted because the court of

appeals’ fact-bound decision applying the good-faith ex

ception to the exclusionary rule in this case is correct

8

and does not conflict with the decisions of this Court or

another court of appeals.

a. In United States v. Leon, 468 U.S. 897 (1984), the

Court held that evidence seized pursuant to a defective

search warrant may be admitted if the executing officers

relied on the warrant in objective good faith. “In the

ordinary ease,” the Court observed, executing officers

“cannot be expected to question the magistrate’s proba-

ble-cause determination or his judgment that the form

of the warrant is technically sufficient.” Jd. at 921. Off!

cers can only be expected to do so in extraordinary cir-

cumstances where, for example, the “warrant [is] based

on an affidavit so lacking in indicia of probable cause as

to render official belief in its existence entirely unrea-

sonable.” Jd. at 923 (internal quotation marks omitted).

The court of appeals correctly stated the established

rule in Leon, Pet. App. 4-5, and correctly applied it to

the specific facts of this case. The court observed that

the warrant established petitioner’s receipt of at least 11

images of child pornography over several weeks, and it

concluded that “an officer could reasonably believe that

the number of email messages containing child pornog

raphy sent to [petitioner], and the risk inherent in send-

ing even one image of child pornography to anyone other

than a willful recipient, was sufficient to establish proba-

ble cause.” /d. at 5-6. The court explained that the affi-

davit established that petitioner had an active AOL

email account and “continued access to a computer on

which child pornography could be stored,” 2d. at 9, and

that collectors of child pornography typically retain such

material for many years, id. at 8-9. Finally, the court

noted that law enforcement officer’s consultation with an

Assistant United States Attorney provided additional

evidence of good faith. Jd. at 5.

y

Petitioner contends (Pet. 13) that the agents could

not reasonably rely on the warrant because the support

ing affidavit identified “no fact, act or behavior [tying

petitioner| to the alleged illegal conduct.” But as the

court of appeals explained, this argument overlooks the

most critical facts set forth in the affidavit: that peti-

tioner was sent at least 11 images of child pornography

via separate messages sent on five different dates to an

email address that he maintained for weeks after the

last message had been sent. Pet. App. 5; see id. at 83

(listing email messages). These facts strongly support

the inference that petitioner was a willing recipient of

the materials. /d. at 6. Under all of those circum-

stances, the court of appeals did not err in rejecting peti-

tioner’s contention that the detailed search warrant affi-

davit was so lacking in probable cause that it was unrea

sonable for agents to rely upon it.

b. Petitioner is mistaken in contending (Pet. 14-17)

that the decision below conflicts with the decisions of

other courts of appeals. Most of the decisions he cites

address what facts are sufficient to establish probable

cause that child pornography will be found on a particu-

lar computer. But the court of appeals did mot address

whether the warrant affidavit here established probable

cause; rather, the court assumed that probable cause

was lacking and asked whether the evidence obtained

was nonetheless admissible under the good-faith excep-

tion set out in Leon. Pet. App. 4 & n.1 (court addressed

only “whether a reasonable officer could believe proba-

ble cause supported the issuance of the warrant”); see

Leon, 468 U.S. at 925 (recognizing that courts have “dis-

cretion” to pretermit “Fourth Amendment questions by

turning immediately to a consideration of the officers’

good faith”). Because the government did not

10

press—and the court of appeals did not pass on—the

underlying issue of probable cause, this case presents no

oceasion for the Court to consider that issue. See

United States v. Williams, 504 U.S. 36, 41 (1992).

Only three of the decisions petitioner cites address

the good-faith exception, and the different outcomes in

those cases are attributable to differences in the evi-

dence; rather than any disagreement about the applica

ble legal rules. In United States v. Rice, 358 F.3d 1268,

1275-1276 (10th Cir. 2004), vacated on other grounds,

543 U.S. 1103 (2005)—a case similar to this one—the

court of appeals held that the good-faith exception ap-

plied where the affidavit described the defendant’s re

ceipt of several sexually explicit email messages that

linked the defendant: to child-pornography websites.

See also United States v. Prideaux-Wentz, 543 F.3d 954

(7th Cir. 2008) (applying good-faith exception where

affidavit detailed that defendant uploaded numerous

images of child pornography to an electronic bulletin

board). By contrast, in United States v. Weber, 923 F.2d

1338, 1344-1346 (9th Cir. 1990), the court of appeals de-

clined to apply the Leon exception where the warrant

affidavit was based primarily on the fact that one pack

age containing advertising for material that “appar-

ently” was child pornography was sent to the defendant,

and the defendant never received any images of child

pornography. /d. at 1340. That situation is very unlike

the situation here, where petitioner was sent numerous

emails containing child pornography over a period of

several weeks. And the Ninth Circuit in Weber stated

the same legal rule used by the court of appeals here,

the Leon good-faith exception. /d. at 1346. The fact

that the two courts came to different conclusions on dif-

1]

ferent facts does not evidence a conflict warranting this

Court’s review.

Petitioner likewise fails to identify any disagreement

in the circuits regarding the legal standards for estab-

lishing probable cause to search a computer for child

pornography. One of the cases petitioner cites holds

that there was probable cause in facts like those here.

See United States v. Kelley, 482 F.3d 1047, 1053 (9th

Cir. 2007) (finding probable cause where affidavit de-

scribed defendant’s receipt of nine email messages con-

taining child pornography “on multiple occasions”; “con

crete evidence” that a defendant “actually solicited” il-

licit images was net required, so long as “it appears

likely that he did from the facts averred in the affidavit

and reasonable inferences drawn from them”), cert.

denied, 552 U.S. 1104 (2008). In two other cases peti

tioner cites, the courts also found probable cause to sup-

port searches of defendants’ computers, based largely

on evidence that the defendants subscribed to porno

graphic web sites. See United States v. Wagers, 452

F.3d 534, 540 (6th Cir.), cert. denied, 549 U.S. 1032

(2006); United States v. Gourde, 440 F.3d 1065, 1070-

1072 (9th Cir.) (en banc), cert. denied, 549 U.S. 10382

(2006). The remaining cases petitioner cites—United

States v. Stulock, 308 F.3d 922, 925 (8th Cir. 2002), and

United States v. Romm, 455 F.3d 990, 998 (9th Cir.

2006), cert. denied, 549 U.S. 1150 (2007)—do not address

the question of probable cause but instead concern the

distinct issue of what evidence suffices:to prove knowing

possession of child pornography beyond a reasonable

doubt. Again, to the extent that courts have reached

different outcomes on that question, they are attribut-

able to differences in the evidence, rather than a dis

agreement about the applicable legal standards.

|?

29 Petitioner contends (Pet. 18-22) that the court ol

appeals erred in considering, as evidence of good faith,

the fact that the law enforcement agent consulted with

an Assistant United States Attorney. He is mistaken

As an initial matter, the court of appeals did not hold, a:

petitioner suggests (Pet. 18), that “the subjective judg

ment of a prosecutor” may “replace| | the object ive and

neutral” judgment of a detached judicial officer. Rather,

the court held that the search warrant affidavit was not

so lacking in probable cause as to make reliance upon It

unreasonable, and then stated that consulting wit h the

prosecutor before applying for a search warrant pro

vided “additional evidence” of good faith. Pet. App. 5

(internal quotation marks omitted).

The court’s latter observation is entirely consistent

with Leon and a companion case, Massachusetts \

Sheppard, 468 U.S. 981 (1984). In Sheppard, this Court

applied the good-faith exception based in part on the

fact that “[t]he officers * * * took every step that

could reasonably be expected of them,” including having

the search warrant affidavit prepared by the investigat

ing detective “reviewed and approved by the District

Attorney.” /d. at 989. And in Leon, the Court likewise

noted that the officer’s “extensive application” for a

search warrant “was reviewed by several Deputy Dis

trict Attorneys,” which was one of many factors that

made “the officers’ reliance on the magistrate’s determ1

nation of probable cause * * * objectively reasonable.”

468 U.S. at 902, 926.

As petitioner acknowledges (Pet. 21), the courts o1

appeals have routinely treated an officer’s consultation

with the prosecutor as “additional evidence ES sali

objective good faith.” Pet. App. 9 (quoting United

States v. Bynum, 293 F.3d 192, 198 (4th Cir, 2002), and

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collecting cases); see also, é.g., United state Ha

107 F.3d 942, 947 (8th Cir. Z005) l/nited States v. Joh

on. 78 F.3d 1258, 1264 (Sth Cir.), cert denied, 519 {

RKY (1996): lJnited State vy. Mendonsa, 989 Kk 2d 366

269-370 (9th Cir. 1993); l/nited State v. brown, Yo!

Fe 2d 999, 1005 (9th Cir. 1991); United state

Taxracher, 902 I'.2d S67, séZ | lith Cir. 1990), cert. de

nied, 499 U.S. 919 (1991). Petitioner identifies no d

agreement In the circuits on this point Indeed, he

knowledges that “| p|rosecutorial approval may increa

an agent’s subjective rood faith that probable CAUSE ¢

ists.” Pet. 19 (emphasis omitted). Accordingly, th

court of appeal: did not err in identifying consultatio!

with a prosecutor as additional evidence of good faith

| Finally, there 1s no merit to petitions rs conte!

tion (Pet. 22) that the court of appeals’ decision create

a conflict on the que ‘tion whether the inclusion of a

called collector’s profile in a warrant affidavit can co!

tribute to a finding of probable cause. ‘The court of a}

peals did not hold that an affidavit with a boilerplat

profile and no connection to the defendant maj establish

probable cause. To the contrary: the court tated that

an affidavit “must lay a foundation” to “connect | th

defendant to child pornography, such as by showing that

he “uploaded or possessed multiple pieces of child por

nography.” Pet. App. 8-9 (internal quotation mark

omitted). That is the same point made in Weber, 925

F.2d at 1345, and United States v. Zammerman, 27°

F.3d 426, 438 n.4 (3d Cir. 2002), the decisions petitionet

cites. Indeed, the court of appeals itself rehed upo!

Petitioner also cites (Pet. 24) United States \ Courde, 342 }

1003, 1013 (9th Cir. 2004), but that decision was re heard en banc

the en banc court found that the facts asserted in the affidavit estal

lished probable cause, see 440 F 3d at 1069-1074

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