[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________                   FILED
                                                         U.S. COURT OF APPEALS
                              No. 09-15024                 ELEVENTH CIRCUIT
                                                           SEPTEMBER 23, 2010
                          Non-Argument Calendar
                        ________________________                JOHN LEY
                                                                 CLERK

                   D. C. Docket No. 08-00042-CR-WCO-2

UNITED STATES OF AMERICA,


                                                             Plaintiff-Appellee,

                                    versus

CHARLES R. VANBRACKLE,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                             (September 23, 2010)

Before BARKETT, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

     Charles R. Vanbrackle appeals his conviction for receiving child
pornography, in violation of 18 U.S.C. §§ 2252(a)(2)(A) and 2256(8)(A). On

appeal, Vanbrackle argues that (1) the search of his home was illegal because the

search warrant lacked probable cause, as the supporting affidavit failed to identify

a nexus between the criminal activity and Vanbrackle’s home; (2) if the search

warrant affidavit was deficient, the good faith exception to the exclusionary rule

could not be applied because the deficiency in the search warrant affidavit was

known to the agent who applied for and executed the search warrant; and

(3) Vanbrackle’s statements to law enforcement officers during the execution of

the search warrant were involuntary and, thus, inadmissible.

      Notably, neither the magistrate judge nor the district court addressed

whether the search warrant established probable cause that a search of

Vanbrackle’s residence would result in discovery of evidence that he had received

child pornography. Rather, both presumed that the supporting affidavit failed to

identify a nexus between the criminal activity and the residence to be searched but

found that the good faith exception to the exclusionary rule applied. Therefore,

like the district court, we decline to address whether the affidavit established

probable cause for the search warrant and instead address only the good faith

exception to the exclusionary rule and the voluntariness of Vanbrackle’s

statements to law enforcement.

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I.    Good Faith Exception to the Exclusionary Rule

      We review de novo the legal issue of whether the good faith exception to

the exclusionary rule, as articulated in United States v. Leon, 

, 104 S.

Ct. 3405 (1984), applies to a search, but “the underlying facts upon which that

determination is based are binding on appeal unless clearly erroneous.” United

States v. Robinson, 

, 1295 (11th Cir. 2003) (quotation omitted).

      The Fourth Amendment provides for the right to be free of unreasonable

searches and seizures, and mandates 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. In order to establish probable cause, the affidavit supporting the search

warrant must “state facts sufficient to justify a conclusion that evidence or

contraband will probably be found at the premises to be searched.” United States

v. Martin, 

, 1314 (11th Cir. 2002) (quotation omitted). “Evidence

seized as the result of an illegal search may not be used by the government in a

subsequent criminal prosecution.” 

“The exclusionary rule, as it is

known, is a judicially created remedy designed to safeguard Fourth Amendment

rights generally through its deterrent effect.” 

      In Leon, the Supreme Court explained that the good faith exception to the

                                          3
exclusionary rule “stands for the principle that courts generally should not render

inadmissible evidence obtained by police officers acting in reasonable reliance

upon a search warrant that is ultimately found to be unsupported by probable

cause.” 

The exception applies in all but four circumstances, two of

which Vanbrackle relies upon in the instant case: (1) where the warrant is based

on an affidavit “so lacking in indicia of probable cause as to render official belief

in its existence entirely unreasonable,” and (2) where 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 executing officers cannot reasonably presume it to be valid.”

In determining whether these exceptions apply, we

consider the totality of the circumstances surrounding issuance of the warrant.

United States v. Accardo, 

, 1481 (11th Cir. 1985).

      “The Leon good faith exception requires suppression only if the officers

were dishonest or reckless in preparing their affidavit or could not have harbored

an objectively reasonable belief in the existence of probable cause.” 

(quotation omitted). “The purpose of the exclusionary rule is to deter

unlawful police misconduct; therefore, when officers engage in objectively

reasonable law enforcement activity and have acted in good faith when obtaining a

search warrant from a judge or magistrate, the Leon good faith exception applies.”

                                           4


“It is necessary to consider the objective reasonableness,

not only of the officers who eventually executed a warrant, but also of the officers

who originally obtained it or who provided information material to the probable-

cause determination.” 

n. 24. Thus,

the good faith inquiry asks whether a reasonably well-trained officer would have

known that the search was illegal because his affidavit failed to establish probable

cause. Malley v. Briggs, 

, 345, 

, 1098 (1986).

      We agree with the district court that the good faith exception to the

exclusionary rule applies to the affidavit underlying the search warrant of

Vanbrackle’s residence. First, the affidavit was not “so lacking in indicia of

probable cause as to render official belief in its existence entirely unreasonable.”

See 

. To the contrary, it was reasonable for Agents

Blackwell and Witrick to believe that the information contained in the affidavit

was sufficient to support a finding of probable cause that evidence of the unlawful

receipt of child pornography would be found at Vanbrackle’s residence. The facts

alleged within the search warrant affidavit indicate that (1) screen names

registered to Vanbrackle at 253A Little River Lane, Rabun Gap, Georgia, were

implicated in four other cases involving the transmission or solicitation of child

pornography over the internet; (2) Vanbrackle continued to reside at 253A Little

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River Lane, Rabun Gap, Georgia; (3) Vanbrackle was believed to be a collector of

child pornography based on his activities of sending and receiving child

pornography and requests to exchange pictures of skimpily dressed children with

other AOL users; and (4) the tendency of collectors of child pornography, such as

Vanbrackle, was to retain and store images of child pornography on their

computers. Further, at the suppression hearing, Jim Persinger, a computer forensic

cybercrimes specialist, testified that people who collect child pornography do not

normally download child pornography at a public place, but typically view it at

their residence or place of employment.

      While Vanbrackle argues that this evidence failed to establish that unlawful

e-mail transmissions were sent or received by him at his residence, he provides no

legal citation to support his contention that IP address information is required to

establish a link between an individual’s electronic transmission of child

pornography and that same individual’s personal residence. Cf. United States v.

Bach, 

, 627–28 (8th Cir. 2005) (rejecting appellant’s assertion that a

valid warrant for searching his home computer could not have been obtained

without cross references between his telephone records and IPs provided by his

service provider). Although IP address information could have definitively shown

that a computer used at Vanbrackle’s home received the images in question, see

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United States v. Perrine, 

, 1202–03, 1205 (10th Cir. 2008) (holding

that the search warrant affidavit established probable cause to search the

appellant’s home in part because it included IP address information associated

with the appellant’s screen name), Agent Blackwell was only obligated to provide

enough facts to show a fair probability that evidence of a crime would be found at

Vanbrackle’s residence. Illinois v. Gates, 

, 235, 

,

2330 (1983) (stating that “only the probability, not a prima facie showing, of

criminal activity is the standard of probable cause (quotation omitted)). Agent

Blackwell satisfied this obligation, and it was not unreasonable for Agents

Blackwell or Witrick to conclude that someone who was connected, by use of

screen names registered to him at his personal residence, with four other

investigations involving the transmission or solicitation of child pornography over

the internet, was a collector of child pornography. Further, based on the profile

information that collectors of child pornography retained and organized their

collections on their personal computers and the fact that Vanbrackle continued to

reside at 253A Little River Lane, Rabun Gap, Georgia, the agents could have

reasonably inferred that Vanbrackle stored his collection of child pornography on

a home computer. See 

–07 (“The observation that

images of child pornography are likely to be hoarded by persons interested in

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those materials in the privacy of their homes is supported by common sense and

the cases.” (quotation omitted)); United States v. Chrobak, 

, 1046

(8th Cir. 2002) (holding that an affidavit established a sufficient nexus between

the defendant’s residence and the transfer of child pornography because it

provided “evidence that he lived there and that, in her experience, pedophiles

maintain their child pornography in a secure place”).

      Moreover, we reject Vanbrackle’s suggestion that the search warrant was

deficient because Blackwell failed to reference in the affidavit the absence of IP

addressees or the fact that no wireless network connection was found at his home.

Vanbrackle has not alleged that these omissions were deliberately false or

reckless. See Madiwale v. Savaiko, 

, 1326–27 (11th Cir. 1997)

(“[A] warrant affidavit violates the Fourth Amendment when it contains omissions

made intentionally or with a reckless disregard for the accuracy of the affidavit.”

(quotation omitted)). In any event, the exclusion of IP address information is not

dispositive of the probable cause determination, see 

–28, nor

would the absence of a wireless internet network have prevented a finding of

probable cause, given the existence of other means of accessing the internet, see

(stating that “even intentional or reckless omissions

will invalidate a warrant only if inclusion of the omitted facts would have

                                          8
prevented a finding of probable cause”).

      In sum, Vanbrackle has failed to establish that Agent Blackwell was

“dishonest or reckless in preparing [his] affidavit” or that Blackwell and Witrick

could “not have harbored an objectively reasonable belief in the existence of

probable cause” on the affidavit’s facts. 

(quotation

omitted). Accordingly, the affidavit was not “so lacking in indicia of probable

cause as to render official belief in its existence entirely unreasonable.” 

reject Vanbrackle’s second claim that 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 executing officers cannot reasonably presume it to be valid.”

not shown that the warrant lacked particularity in terms of the

place to be searched or items to be seized. To the contrary, the warrant described

and provided directions to the residence at 253A Little River Lane, Rabun Gap,

Georgia, and the warrant identified eleven particular categories of evidence that

could be seized. Rejecting both of Vanbrackle’s challenges, we conclude that the

district court did not err in determining that the Leon good faith exception to the

exclusionary rule applied.

II.   Admissibility of Vanbrackle’s Statements

      Vanbrackle next argues that his statements during the search were

                                           9
inadmissible because the circumstances under which he made the statements were

inherently coercive. The district court’s ultimate conclusion on the voluntariness

of a confession, or the waiver of rights under Miranda v. Arizona, 

,

(1966), “raises questions of law to be reviewed de novo.” United

States v. Barbour, 

, 584 (11th Cir. 1995) (quotation omitted). We

determine whether a statement was made voluntarily, and thus was “the product of

an essentially free and unconstrained choice,” by examining the totality of the

circumstances. Hubbard v. Haley, 

, 1252 (11th Cir. 2003).

      Under Miranda, officers must advise an individual who is in custody of the

following: (1) his right to remain silent; (2) that, if he chooses to speak, anything

he says can be used against him in court; (3) his right to consult with a lawyer and

have his lawyer be present during interrogation; and (4) an explanation that, if he

is indigent, a lawyer will be appointed to represent 

–73, 86 S.

Ct. at 1624–27. An individual may effectively waive these rights “provided the

waiver is made voluntarily, knowingly and intelligently.” 

86 S. Ct.

at 1612. For inculpatory statements to be constitutionally admissible against a

defendant, the waiver must have been (1) “voluntary in the sense that it was the

product of a free and deliberate choice rather than intimidation, coercion, or

deception”; and (2) “made with a full awareness of both the nature of the right

                                          10
being abandoned and the consequences of the decision to abandon it.” 

(quotation omitted). Statements obtained in violation of Miranda,

whether exculpatory or inculpatory, are not admissible at trial. Miranda, 384 U.S.

at 

.

      The government must “prove by a preponderance of the evidence that the

defendant voluntarily, knowingly, and intelligently waived his Miranda rights.”

United States v. Bernal-Benitez, 

, 1318 (11th Cir. 2010), cert.

denied, Cervantes-Guzman v. United States, 

, and cert. denied, 

, and petition for cert. filed, (U.S. Jun 02, 2010) (No. 10-5530).

Moreover, “the standard for evaluating the voluntariness of a confession is

whether a person made an independent and informed choice of his own free will,

possessing the capability to do so, his will not being overborne by the pressures

and circumstances swirling around him.” United States v. Castaneda-Castaneda,

, 1362 (11th Cir. 1984) (quotation and citation omitted).

“Voluntariness depends on the totality of the circumstances and must be evaluated

on a case-by-case basis.” 

factors we consider are “the defendant’s

intelligence, the length of his detention, the nature of the interrogation, the use of

any physical force against him, or the use of any promises or inducements by

police.” 

. Further, “a signed Miranda waiver form is

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usually strong proof that a suspect voluntarily waived his rights, [but] it is not

conclusive on this issue.” Hart v. Att’y Gen. of State of Fla., 

, 893

(11th Cir. 2003) (quotation omitted).

      We agree with the district court that the totality of the circumstances

demonstrate that Vanbrackle’s statements to law enforcement officers were

voluntary. Before Blackwell and Witrick proceeded with any questioning,

Vanbrackle affirmed that he was willing to speak with the agents, and the agents

advised him of his rights and the nature of their investigation. Both an audio

recording and a signed waiver form document that Vanbrackle had been informed

of his Miranda rights before he consented to be interviewed. See 

on the waiver-of-rights form that he had obtained four years of college

education. See 

. While approximately eight law

enforcement officers participated in the execution of the search warrant, some of

whom had their guns drawn upon entry, neither Blackwell nor Witrick drew their

guns during the interview, and no one stood guard over Vanbrackle. Witrick and

Blackwell interviewed Vanbrackle at his kitchen table, while other law

enforcement officers physically searched the home and conducted a forensic

search of his computer. During the interview, Vanbrackle was not handcuffed,

and he did not at any point ask to stop the questioning, nor did he request an

                                          12
attorney. Further, there is no evidence that the agents made any promises or

threats to induce his statements. See 

Vanbrackle’s post-Miranda

statements were not involuntary in that they were not the product of “intimidation,

coercion, or deception.” 

. Thus, the district court did not

err in denying Vanbrackle’s motion to suppress his statements, and we affirm

Vanbrackle’s conviction.

      AFFIRMED.1




1
      Appellant’s request for oral argument is denied.

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