Filed: Jul. 07, 2009
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Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4683 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DEAN R. GATHERUM, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Thomas E. Johnston, District Judge. (5:07-cr-00105-1) Argued: March 27, 2009 Decided: July 7, 2009 Before MICHAEL and TRAXLER, Circuit Judges, and Thomas D. SCHROEDER, United States District Judge for the Middle District of North
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4683 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DEAN R. GATHERUM, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Thomas E. Johnston, District Judge. (5:07-cr-00105-1) Argued: March 27, 2009 Decided: July 7, 2009 Before MICHAEL and TRAXLER, Circuit Judges, and Thomas D. SCHROEDER, United States District Judge for the Middle District of North ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4683
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEAN R. GATHERUM,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:07-cr-00105-1)
Argued: March 27, 2009 Decided: July 7, 2009
Before MICHAEL and TRAXLER, Circuit Judges, and Thomas D.
SCHROEDER, United States District Judge for the Middle District
of North Carolina, sitting by designation.
Affirmed by unpublished opinion. Judge Traxler wrote the
majority opinion, in which Judge Schroeder joined. Judge
Michael wrote a dissenting opinion.
ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. Karen B.
Schommer, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Federal
Public Defender, David R. Bungard, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston,
West Virginia, for Appellant. Charles T. Miller, United States
Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
TRAXLER, Circuit Judge:
Dean Gatherum pleaded guilty to possession of child
pornography, preserving his right to appeal the district court’s
denial of his motions to suppress. Because we find no error in
the district court’s rulings, we affirm Gatherum’s conviction.
I.
Gatherum registered as a sex offender in accordance with
West Virginia law, and two state troopers went to his house to
confirm information he provided when registering. Gatherum
indicated when he registered that he had a personal computer
with internet access. While the officers were at Gatherum’s
home, they asked Gatherum for consent to search his computer.
Gatherum agreed and signed a consent form provided to him by
Trooper Eldridge.
Eldridge used a program that permitted him to browse the
computer files and view video and images stored on Gatherum’s
computer. Eldridge viewed a series of “thumbnail” previews of
images that featured three males standing in a wooded area. The
progressing images showed the men removing their clothes and
engaging in sexual activity. While two of the men appeared to
be more than 18 years old, the third appeared to Eldridge to be
between 12 and 14 years old. Eldridge sought Trooper Summers’s
opinion, and he, too, believed that the third male was between
12 and 14 years old.
2
Eldridge told Gatherum that he believed the images were
child pornography and that he was going to use the images as the
basis for seeking a search warrant. When Eldridge described the
pictures at issue to Gatherum, Gatherum explained that he had
gotten the pictures from a website called “Mike18.com” and that
the website had a disclaimer stating that all of the models were
at least 18 years old. (Each of the images had a Mike18.com
logo in the corner, although Eldridge was not aware of that fact
at the time). Eldridge refused Gatherum’s offer to log-on to
Mike18.com to show the troopers the age certification for the
model the troopers believed to be underage.
At the troopers’ request, Gatherum accompanied them to the
state police barracks for further questioning. Gatherum
continued to maintain that the images all came from the
Mike18.com website, and Gatherum told the troopers that the
website included a picture of the apparently underage model
holding a passport that showed his birth date.
After interviewing Gatherum, Eldridge prepared an
application for a warrant to search for child pornography. In
the affidavit supporting the application, Eldridge set forth in
a fair amount of detail the specialized training he had received
in “computer forensics, criminal use of computers and the
Internet and the investigation of matters concerning child
sexual exploitation,” J.A. 573, and the affidavit noted that
3
Gatherum was a registered sex offender. With regard to the
facts gathered during Eldridge’s search of the computer, the
affidavit stated:
[T]he affiant conducted a secure preview of Dean
Gatherum’s home computer. During this preview, the
affiant observed that Dean Gatherum’s computer had
numerous graphic picture files of three male[s]
engaged in sexually explicit conduct. The affiant
further observed that one of the males depicted in
these pictures appeared to be approximately 12 to 14
years of age. The affiant further observed that
Corporal Summers examine[d] these picture files, in
which he too agreed that the one of the male subjects
participating in the pictures appeared to be 12 to 14
years old.
The affiant brought these pictures to Dean Gatherum’s
attention, in which he advised that he had obtained
them from a web site on the Internet.
J.A. 581-82. The affidavit did not include copies of the images
themselves or otherwise describe the nature of the sexually
explicit conduct pictured, nor did the affidavit recount
Gatherum’s claim about the age-disclaimer on Mike18.com.
A state-court judge concluded that the affidavit
established probable cause, and the search warrant was issued
and executed that day. Gatherum’s computer was seized, as were
a number of CD-ROMs that were found under Gatherum’s bed.
Images on those CD-ROMs led to the child pornography charge to
which Gatherum pleaded guilty.
The day after the search warrant was executed, Gatherum was
admitted to a hospital for an in-patient psychiatric evaluation.
4
Four days later, Trooper Eldridge learned that Gatherum was to
be discharged. Eldridge went to the hospital and asked if
Gatherum would return to the police barracks for another
interview. Gatherum agreed. Eldridge did not tell Gatherum
that he had already obtained warrants for Gatherum’s arrest
(based on the images found on the CD-ROMs).
At the police barracks, Trooper Smith advised Gatherum of
his Miranda rights before the interview began. Smith told
Gatherum that he was not under arrest and was free to leave at
any time, without mentioning the arrest warrants. Gatherum
signed a form waiving his rights, and Smith began the interview.
When Gatherum started making incriminating statements, Smith
brought Eldridge into the room. Eldridge reviewed the Miranda
form with Gatherum and reaffirmed that Gatherum was not under
arrest, again without mentioning the outstanding arrest
warrants. During the interview, Gatherum admitted that the CD-
ROMs contained images of child pornography. As soon as the
interview was over, Eldridge arrested Gatherum on the
outstanding warrants.
Gatherum moved to suppress the evidence seized pursuant to
the search warrant and the statements he gave upon his release
from the hospital. The district court denied the motions,
concluding that Eldridge’s affidavit supporting the search
warrant application was sufficient to establish probable cause,
5
that there were no material omissions in the affidavit that
would invalidate the warrant, and that Gatherum was not coerced
into giving the post-hospitalization statements. This appeal
followed.
II.
We first consider Gatherum’s challenges to the search
warrant.
A.
West Virginia law prohibits the possession of “material
visually portraying a minor engaged in sexually explicit
conduct.” W. Va. Code Ann. § 61-8C-3. 1 Gatherum contends that
because Eldridge’s affidavit did not include copies of the
thumbnail images at issue or describe the nature of the images
in any detail, there was no basis for the issuing judge to find
probable cause that a minor was involved or that the minor was
engaging in sexually explicit conduct.
Preliminarily, we reject any suggestion that a search-
warrant affidavit must include copies of images giving rise to
the request for a warrant. See United States v. Lowe, 516 F.3d
580, 586 (7th Cir. 2008) (“As a general matter, an issuing court
does not need to look at the images described in an affidavit in
1
Although Gatherum pleaded guilty to federal charges, he
was initially arrested on state charges. The federal statute is
similar to the state statute. See 18 U.S.C.A. § 2252A(a)(5)(B).
6
order to determine whether there is probable cause to believe
that they constitute child pornography.”). Including copies of
the images believed to be child pornography would certainly aid
in a probable-cause determination, but the relevant question is
whether “the known facts and circumstances are sufficient to
warrant a man of reasonable prudence in the belief that
contraband or evidence of a crime will be found in a particular
place.” United States v. Perez, 393 F.3d 457, 461 (4th Cir.
2004) (internal quotation marks omitted). The probable-cause
standard “is not defined by bright lines and rigid boundaries.
Instead, the standard allows a magistrate judge to review the
facts and circumstances as a whole and make a common sense
determination of whether there is a fair probability that
contraband or evidence of a crime will be found in a particular
place.” United States v. Grossman,
400 F.3d 212, 217 (4th Cir.
2005) (internal quotation marks omitted). Given the fluid
nature of the probable-cause standard and the deference to which
the magistrate’s determination is entitled, see
id., we see no
reason to establish a bright-line rule requiring investigating
officers to provide magistrates with copies of the images they
believe to be unlawful. Cf. New York v. P.J. Video,
475 U.S.
868, 874 n.5 (1986) (“[W]e have never held that a magistrate
must personally view allegedly obscene films prior to issuing a
warrant authorizing their seizure.”).
7
We turn now to the ultimate question of whether the
affidavit in this case was sufficient to support the issuance of
the search warrant. As previously noted, the affidavit stated
that Trooper Eldridge and Trooper Summers viewed the images at
issue and that both believed one of the males pictured was
between 12 and 14 years old. In our view, it was entirely
reasonable for the magistrate to accept the officers’ estimation
of the child’s age when determining whether probable cause
existed. While some 16- or 17-year-old models might be
difficult to distinguish from 18-year-olds, the physical
differences between a 12-year-old model and an 18-year-old model
generally would be significant and readily apparent. That both
troopers believed the model at issue might be so young provided
the magistrate with a reasonable basis for concluding that the
images at issue involved a minor. See United States v.
Battershell, 457 F.3d 1048, 1053-54 (9th Cir. 2006) (finding
affidavit sufficient in child pornography case where officer
described images as depicting “young female[s] (8-10 YOA)” and
noting that “we have accepted, for purposes of an affidavit in
support of a search warrant, the conclusory age estimates made
by civilians and other untrained lay witnesses without demanding
a detailed explanation of how the witnesses reached that
conclusion”). We therefore conclude that the information in the
8
affidavit was sufficient to establish a fair probability that
the images at issue depicted a minor.
The more difficult question, however, is whether the
affidavit was likewise sufficient to establish that the minor
was engaged in sexually explicit conduct. Trooper Eldridge
stated in his affidavit that he had viewed “graphic picture
files” showing three males, including one he believed to be a
minor, engaging in “sexually explicit conduct.” J.A. 581.
Although the statute prohibits the possession of material
depicting minors engaged in sexually explicit conduct, the
statute specifically defines the acts that constitutes sexually
explicit conduct, such as sexual intercourse or the exhibition
of genitals in a sexual context. See W. Va. Code § 61-8C-1(c);
see also 18 U.S.C.A. §§ 2256(2)(A)(i), 2256(2)(A)(v) (West Supp.
2009). Because the affidavit did not include any description of
the actual behavior depicted in the images at issue, it may be
that the affidavit failed to provide sufficient information to
permit the magistrate to make an independent determination of
whether probable cause existed. See Illinois v. Gates, 462 U.S.
213, 239 (1983) (“Sufficient information must be presented to
the magistrate to allow that official to determine probable
cause; his action cannot be a mere ratification of the bare
conclusions of others.” (emphasis added)).
9
We need not definitively determine whether the affidavit
was sufficient in that regard, however. Even if the affidavit
was deficient, suppression of the evidence is not required,
because the officers acted in good faith and were entitled to
rely on the warrant. See United States v. Leon, 468 U.S. 897,
926 (1984).
“[U]nder Leon’s good faith exception, evidence obtained
pursuant to a search warrant issued by a neutral magistrate does
not need to be excluded if the officer’s reliance on the warrant
was objectively reasonable.” Perez, 393 F.3d at 461 (internal
quotation marks omitted). “[S]earches conducted pursuant to a
warrant will rarely require any deep inquiry into
reasonableness, for a warrant issued by a magistrate normally
suffices to establish that a law enforcement officer has acted
in good faith in conducting the search.”
Id. (internal
quotation marks omitted). Under Leon, however, reliance on a
warrant is not objectively reasonable if: (1) the magistrate was
misled by false information knowingly or recklessly included in
the underlying affidavit, id.; (2) “the magistrate acted as a
rubber stamp for the officers and so wholly abandoned his
detached and neutral judicial role,” United States v. Bynum,
293
F.3d 192, 195 (4th Cir. 2002) (internal quotation marks
omitted); (3) the supporting affidavit is “so lacking in indicia
of probable cause as to render official belief in its existence
10
entirely unreasonable,” Leon, 468 U.S. at 923 (internal
quotation marks omitted); or (4) the warrant itself is so
facially deficient in particularizing the place to be searched
or the evidence to be seized that “the executing officers cannot
reasonably presume it to be valid,
id.
The only exceptions arguably relevant here are the second
and third, 2 but we do not believe that either precludes reliance
on the warrant issued in this case. The affidavit cannot be
described as so bare-boned that the magistrate’s issuance of the
warrant could be viewed as a mere rubber-stamping of the warrant
application, nor is the affidavit so lacking in indicia of
probable cause that it was unreasonable for the officers or the
magistrate to conclude that probable cause existed.
The affidavit explained that Gatherum was a registered sex
offender who had “numerous graphic picture files” on his home
computer, J.A. 581, and the affidavit outlined Trooper
Eldridge’s extensive training in the investigation of similar
crimes. The affidavit stated that Eldridge and Trooper Summers
had viewed the images themselves and had both determined that
2
With regard to the first Leon exception, there was no
false information included in the affidavit, and, as we will
discuss in more detail below, there is no evidence that Eldridge
intentionally or recklessly omitted any material information
from his affidavit. As to the fourth exception, we do not
believe that the warrant itself was facially deficient.
11
the images depicted a minor engaged in sexually explicit
behavior. Because the affidavit specifically referred to the
relevant West Virginia statute, which sets out a list of actions
that constitute “sexually explicit conduct,” 3 the kind of conduct
that could have been depicted in the images was necessarily
limited. While a more detailed description of the conduct
pictured would have been helpful, courts have found similar
language used under similar factual situations to be sufficient
to support a finding of probable cause. See United States v.
Smith, 795 F.2d 841, 848 (9th Cir. 1986) (“As to the affidavit’s
‘conclusory’ statement that the photographs depicted ‘sexually
explicit conduct,’ we do not find the character of the
allegation fatal to the warrant. Although more specific
descriptions of the photographs would have been desirable, we
note that the affidavit specifically refers to violation of
section 2251, directing the magistrate to the child pornography
statute and its definitions. These definitions are quite
specific, and the magistrate reasonably considered the statement
3
See W. Va. Code § 61-8C-1(c) (defining sexually explicit
conduct” as “(1) Genital to genital intercourse; (2) Fellatio;
(3) Cunnilingus; (4) Anal intercourse; (5) Oral to anal
intercourse; (6) Bestiality; (7) Masturbation; (8)
Sadomasochistic abuse, including, but not limited to,
flagellation, torture or bondage; (9) Excretory functions in a
sexual context; or (10) Exhibition of the genitals, pubic or
rectal areas of any person in a sexual context.”).
12
of an experienced postal inspector that the photos depicted
‘sexually explicit conduct’ within the statute.” (citation and
footnote omitted)); see also Battershell, 457 F.3d at 1052 (“The
statement that the photographs depict sexually explicit conduct
is similar to many other factual conclusions routinely accepted
by courts in applications for warrants. Factual conclusions are
a normal, necessary, and perfectly acceptable part of an
affidavit.” (internal quotation marks and alterations omitted)).
While there also is case law to the contrary, see United States
v. Brunette,
256 F.3d 14, 17 (1st Cir. 2001) (concluding that
affidavit parroting the statutory definition of child
pornography but not otherwise describing the nature of the
images was not sufficient to support the magistrate’s probable-
cause finding), this court has yet to address the question
directly. Under these circumstances, we cannot say that an
objectively reasonable officer should have known that the
affidavit was insufficient. See United States v.
Bynum, 293
F.3d at 195 (“Leon teaches that a court should not suppress the
fruits of a search conducted under the authority 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 authorization.” (internal
quotation marks omitted)).
13
Accordingly, even if the absence of a detailed description
of the conduct pictured in the relevant images rendered the
affidavit deficient, the officers relied in good faith on the
warrant issued by the magistrate, and the district court
therefore properly denied Gatherum’s suppression motion.
B.
Gatherum also argues that the warrant must be voided under
Franks v. Delaware, 438 U.S. 154 (1978), because Trooper
Eldridge intentionally omitted from his affidavit any mention of
the Mike18.com website or the website’s disclaimer asserting
that all of its models, including the one Eldridge believed to
be a minor, were at least 18 years old. We disagree.
Under Franks, a search warrant may be voided and the fruits
of the search suppressed if the defendant establishes that the
underlying affidavit contained material falsehoods that were
knowingly or recklessly made. Where, as here, the claim
involves omissions from the affidavit, the standard for
establishing materiality is fairly high:
[T]o be material under Franks, an omission must do
more than potentially affect the probable cause
determination: it must be necessary to the finding of
probable cause. For an omission to serve as the basis
for a hearing under Franks, it must be such that its
inclusion in the affidavit would defeat probable cause
for arrest. Omitted information that is potentially
relevant but not dispositive is not enough to warrant
a Franks hearing.
14
United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990)
(citations and internal quotation marks omitted).
Beyond the mere fact of omission, the record is devoid of
evidence suggesting that Eldridge intentionally or recklessly
failed to disclose to the issuing magistrate the Mike18.com
information. Moreover, even if information about the
disclaimers on the website and Gatherum’s belief about the age
of the models had been included in the affidavit, their presence
would not have defeated probable cause. As discussed above,
Trooper Eldridge and Summers both looked at the images and
concluded that one of the models was between 12 and 14 years
old. That was enough to establish probable cause that the model
was underage, even in the face of Gatherum’s (and Mike18.com’s)
insistence to the contrary. The district court therefore
properly denied Gatherum relief on his Franks v. Delaware claim.
See United States v. Shorter, 328 F.3d 167, 171, n.2 (4th Cir.
2003) (explaining that “the fact of an omission, standing alone,
is not sufficient to demonstrate intent or reckless disregard”
in cases where the omitted material is not “clearly critical” to
the probable-cause determination (internal quotation marks
omitted)).
III.
Finally, we consider Gatherum’s claim that the district
court should have suppressed the statements Gatherum made when
15
he was interviewed after his release from the hospital.
Although Gatherum was informed of and waived his Miranda rights
before making the statements, he claims that the troopers’
failure to inform him of the outstanding arrest warrants
invalidated the Miranda waiver and rendered his statements
inadmissible.
A waiver of Miranda rights is valid as long as “the waiver
is made voluntarily, knowingly and intelligently.” Moran v.
Burbine, 475 U.S. 412, 421 (1986) (internal quotation marks
omitted). A waiver is voluntarily, knowingly, and intelligently
made if it was “voluntary in the sense that it was the product
of a free and deliberate choice rather than intimidation,
coercion, or deception,” and if it was “made with a full
awareness of both the nature of the right being abandoned and
the consequences of the decision to abandon it.” Id.; see also
United States v. Cristobal,
293 F.3d 134, 139-40 (4th Cir.
2002).
“We engage in the same inquiry when analyzing the
voluntariness of a Miranda waiver as when analyzing the
voluntariness of statements under the Due Process Clause,”
Cristobal, 293 F.3d at 140, and thus ask whether “the
defendant’s will has been overborne or his capacity for self-
determination critically impaired because of coercive police
conduct,”
id. (citations and internal quotation marks omitted).
16
Because the failure to inform Gatherum of the warrants does not
even approach the level of coercive, overreaching conduct that
could render the Miranda waiver involuntary, see Colorado v.
Connelly, 479 U.S. 157, 163 n.1 (1986) (collecting cases), we
reject Gatherum’s claim that his Miranda waiver was involuntary.
We likewise reject Gatherum’s contention that the failure
to inform him about the warrants “made it impossible for him to
understand the nature of the rights he could invoke and the
consequences of abandoning them.” Brief of Appellant at 36.
Preliminarily, we note that the waiver form Gatherum executed
before the interview stated that Gatherum was being investigated
for possession of child pornography, information that should
have signaled to Gatherum the significance of the interview,
just as a statement about the outstanding warrants might have.
In any event, the troopers informed Gatherum about the nature of
his Miranda rights and the consequences of a decision to waive
those rights, which is all that is required under Moran. While
knowledge of the outstanding warrants might have been useful to
Gatherum when deciding whether to provide a statement, the
troopers’ failure to provide him with that information simply
does not render the waiver invalid:
We have held that a valid waiver does not require that
an individual be informed of all information useful in
making his decision or all information that might
affect his decision to confess. We have never read
the Constitution to require that the police supply a
17
suspect with a flow of information to help him
calibrate his self-interest in deciding whether to
speak or stand by his rights. Here, the additional
information could affect only the wisdom of a Miranda
waiver, not its essentially voluntary and knowing
nature.
Colorado v. Spring, 479 U.S. 564, 576-77 (1987) (citations,
internal quotation marks and alterations omitted). Because the
Miranda waiver was valid, the district court properly denied
Gatherum’s motion to suppress the statements made after his
release from the hospital.
IV.
For the reasons discussed above, we conclude that the
district court properly denied Gatherum’s motion to suppress the
evidence seized pursuant to the search warrant and his motion to
suppress the statements he gave after waiving his Miranda
rights. Accordingly, we hereby affirm Gatherum’s conviction.
AFFIRMED
18
MICHAEL, Circuit Judge, dissenting:
Because the officer’s affidavit presented to the state
judge failed to provide a factual basis on which the judge could
independently determine that there was probable cause to issue
the warrant for the search of Dean Gatherum’s home, and because
the judge acted as a rubber stamp for the officer’s legal
conclusions, see United States v. Leon, 468 U.S. 897, 914
(1984), I respectfully dissent.
I.
The search warrant in this case was issued under a
West Virginia statute that prohibits the possession, “with
knowledge,” of “any material visually portraying a minor engaged
in sexually explicit conduct.” W. Va. Code Ann. § 61-8C-3. See
also 18 U.S.C. 2252A(5)(B). “Sexually explicit conduct” is
defined to include several specific sexual acts. W. Va. Code
Ann. § 61-8C-1(c). As the majority notes, in order for a search
warrant to be properly issued under Illinois v. Gates,
“[s]ufficient information must be presented to the magistrate to
allow that official to determine probable cause; his action
cannot be a mere ratification of the bare conclusions of
others.” 462 U.S. 213, 239 (1983) (emphasis added). See ante
at 9. The affidavit in this case merely parrots the relevant
statute, W. Va. Code Ann. § 61-8C-3, and provides no facts upon
which the state judge could have conducted an independent
19
probable cause analysis. Rather than describing, even
superficially, what the photographs found on Gatherum’s computer
depicted, Corporal Eldridge’s affidavit simply states that the
photographs showed three males (one of whom the officer believed
to be 12 to 14 years old 1 ) “engaged in sexually explicit
conduct.” J.A. at 581-82.
Whether or not the activities in the photographs
constituted “sexually explicit conduct” was a matter for the
state judge to decide without deferring to the officer’s “bare
conclusion.” See Gates, 462 U.S. at 239. “The point of the
Fourth Amendment, which often is not grasped by zealous officers
. . . [is that] [i]ts protection consists in requiring that
. . . inferences be drawn by a neutral and detached magistrate
instead of being judged by the officer engaged in the often
competitive enterprise of ferreting out crime.” United States
v. Ventresca,
380 U.S. 102, 106 (1965) (quoting Johnson v.
United States,
333 U.S. 10, 13-14 (1948)). See also South
Dakota v. Opperman,
428 U.S. 364, 370 n.5 (1976) (“[The Supreme
Court has] frequently observed that the warrant requirement
assures that legal inferences and conclusions as to probable
cause will be drawn by a neutral magistrate unrelated to the
1
I agree with the majority’s conclusion that it was
reasonable for the judge to accept the officer’s estimate of the
younger male’s age. See ante at 8-9.
criminal investigative-enforcement process”). Thus, the benefit
of having a neutral magistrate make the probable cause
determination is forfeited if the magistrate defers to an
officer’s legal conclusions in an affidavit that merely recites
general statutory language. A detached and independent review
is especially important in the context of determining whether
images involve child pornography, a determination that by its
very nature will often involve a high degree of subjectivity.
In United States v. Brunette, 256 F.3d 14 (1st Cir.
2001), the First Circuit applied these principles in almost
identical circumstances to those presented here. In that case a
search warrant was issued based on a single affidavit, written
by a law enforcement agent, which asserted that he had viewed
thirty-three images traced to the defendant and that they met
the statutory definition of child pornography.
Id. at 16. The
agent neither appended copies of these images to his affidavit
nor included a description of the images’ contents.
Id. The
First Circuit held that the government had failed to make a
showing of probable cause because “[t]he evidence on the nature
of the images consisted solely of [the agent’s] legal conclusion
parroting the statutory definition.”
Id. at 17. This
conclusion was based on that court’s recognition that the
“inherent subjectivity [of identifying images that are
21
‘lascivious’] is precisely why the determination should be made
by a judge, not an agent.” Id. at 18.
The majority cites two Ninth Circuit cases reaching
the opposite conclusion on similar facts, but I believe the
reasoning in Brunette is more persuasive. First, the majority
points to United States v. Smith,
795 F.2d 841 (9th Cir. 1986),
which is distinguishable because the affidavit “[did] not stand
on the evaluation of the photographs alone,” but also included
statements by a pediatrician, the defendant, and the two alleged
victims.
Id. at 849. Furthermore, Smith reaches the
unwarranted conclusion that “[t]he statement that the
photographs depict sexually explicit conduct is similar to many
other factual conclusions routinely accepted by courts.”
Id. at
848 n.7. This reasoning, adopted by the second case cited by
the majority, United States v. Battershell,
457 F.3d 1048 (9th
Cir. 2006), mistakes a legal conclusion –- whether the contents
of a photograph amount to “sexually explicit conduct” –- with
the conclusion’s factual underpinnings (the contents of the
photograph itself).
An officer can readily provide the factual description
required to allow an independent determination by the
magistrate. In most instances it would be enough for the
officer to describe the “focal point and setting of the image,
22
and [the] pose [or activity] and attire of the subject.” 2
Brunette, 256 F.3d at 20. But in this case the judge was
presented with an affidavit that provides no factual details
whatsoever regarding the substance of the photographs in
question. The affidavit is simply insufficient to support a
finding of probable cause.
II.
For similar reasons, the Leon good faith exception
does not apply in this case. As a general matter, evidence need
not be excluded when police officers act in objectively
reasonable reliance on a search warrant issued by a neutral
magistrate. United States v. Leon, 468 U.S. at 926. Reliance
is not warranted in certain circumstances, however, such as when
“the magistrate acted as a rubber stamp for the officers and so
‘wholly abandoned’ his detached and neutral ‘judicial role’.”
United States v. Bynum,
293 F.3d 192, 195 (4th Cir. 2002)
(citing
Leon, 468 U.S. at 923). Because the state judge in this
case acted as a rubber stamp by failing to conduct an
independent probable cause inquiry and instead simply adopted
2
The best course of action, and the one most certain to
ensure a valid probable cause finding, would be to include
copies of the photographs themselves with the affidavit. I
agree with the majority, however, that this is not a
requirement. See ante at 7-8.
23
the one officer’s legal conclusion that the pictures he found
portrayed “sexually explicit conduct,” the officers were not
objectively justified in relying on the warrant.
The majority offers four basic reasons to support its
conclusion that the state judge did not act as a rubber stamp
(and that the affidavit was not “so lacking in indicia of
probable cause”, ante at 11, that it could not be reasonably
relied on). First, the majority points out that the affidavit
“explained that Gatherum was a registered sex offender who had
‘numerous graphic picture files’ on his home computer.” Ante at
11. But this merely resurrects the basic questions before us:
What specific activities did the pictures portray, and did those
activities constitute “sexually explicit conduct”?
Second, the majority notes that the “affidavit
outlined [Corporal] Eldridge’s extensive training in the
investigation of similar crimes.” Id. This statement refers to
ten pages of “Facts for Belief” that the officer included in his
affidavit. J.A. 573-582. The facts showing the officer’s
training do not remove the state judge’s decision from the
“rubber stamp” category. These “facts” are boilerplate,
listing, for example, many “characteristics [of] people who
sexually exploit children” that have no specific bearing on this
case. It is telling that amidst the ten pages of “facts,” the
officer included only three sentences pertaining to, with one
24
only vaguely describing, the photographs at issue. Furthermore,
regardless of the officer’s training, the state judge himself
had to ultimately determine the factual content of the
photographs. There was insufficient information for the judge
to perform that function.
Third, the majority reasons that “[b]ecause the
affidavit specifically referred to the relevant West Virginia
statute, which sets out a list of actions that constitute
‘sexually explicit conduct,’ the kind of conduct that could have
been depicted in the images was necessarily limited.” Ante at
12. However, this assumes that the officer would refer to the
statute only if one of the listed “sexually explicit” activities
was implicated. Thus, the officer’s cryptic reference to the
statute only reinforces the conclusion that the judge functioned
solely as a rubber stamp in making the probable cause
determination. Again, the affidavit gave no factual information
about the contents of the photographs, instead merely parroting
the conclusory language of the statute. This rendered the judge
unable to make an independent determination as to whether there
was probable cause to believe the photographs violated the
statute.
Fourth, the majority states that Corporal “Eldridge
and Trooper Summers had viewed the images themselves and had
both determined that the images [contained] sexually explicit
25
behavior.” Ante at 11-12. But it was for the judge, not the
officers, to make this determination. The problem is that the
judge in this case could only substitute the officers’
conclusions for his own. As a result, the judge committed
precisely the error warned of in Gates, 462 U.S. at 239, and
became merely a rubber stamp for the officers’ determination.
III.
Today’s decision allows law enforcement officers to
submit legal conclusions, rather than factual observations, to a
magistrate and allows the magistrate to issue a warrant without
conducting an independent probable cause determination. We
should make clear that the affidavit in this case was
insufficient to support probable cause and thereby put law
enforcement officers and magistrates on notice for the future.
In all events, because the affidavit was inadequate, and because
the state judge served as a rubber stamp for the officer’s
conclusions, evidence seized pursuant to the invalid search
warrant should have been suppressed. I would therefore vacate
Gatherum’s conviction.
26
