USA v. Ted L. Pappas.  09-1595.   

Ted Pappas was indicted for possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Pappas pleaded not guilty and filed a motion to suppress evidence seized during a search of his home, as well as statements he made during the execution of the search warrant. The district court granted Pappas's motion to suppress. The government appeals. We reverse.

In May 2005, law enforcement officers in California executed a search warrant on Michael Golubski's America Online email account. The search revealed that between April and May 2005, Golubski used the email name "Exh ibM ale39" to send seventeen em ails to "longtalks@aol.com," including eleven that contained images of child pornography. Further investigation revealed that the email account "longtalks@aol.com" belonged to Ted Pappas, although in June 2005, Pappas changed his email account to TedP5785@aol.com.

Federal agent Elizabeth Hanson provided this information to an Assistant United States Attorney, and the two discussed the propriety of obtaining a search warrant for Pappas's home. After concluding there was probable cause to obtain a search warrant, Agent Hanson presented a search warrant application and a nine-page affidavit to a magistrate judge.

In November 2006, based on the search warrant application and Hanson's affidavit, a federal magistrate judge issued a search warrant for Pappas's residence. According to the government, during the search, Pappas spoke with agents and admitted he used the screen name "longtalks". He also admitted receiving images and videos of children engaged in sexually explicit conduct, but claimed he had deleted those images. A search of Pappas's computer hard drive, however, uncovered images of child pornography.

On appeal, the government argues that while it may be questionable whether probable cause supported the issuance of the search warrant, the evidence seized and Pappas's statements are nonetheless admissible under United States v. Leon, 468 U.S. 897 (1984).

In Leon, the Supreme Court articulated the good faith exception to the exclusionary rule, holding that evidence obtained in violation of the Fourth Amendment is nonetheless admissible if the officer who conducted the search acted in good faith reliance on a search warrant. Id. at 922-23. "That [an] officer obtained a warrant is prima facie evidence of good faith." United States v. Elst, 579 F.3d 740, 744 (7th Cir. 2009).

A defendant may rebut the prima facie evidence of good faith by presenting evidence to establish that:
(1) the issuing judge wholly abandoned his judicial role and failed to perform his neutral and detached function, serving merely as a rubber stamp for the police; (2) the affidavit supporting the warrant was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or (3) the issuing judge 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.  Id.

In this case, Pappas argues, and the district court held, that the affidavit supporting the warrant was so lacking in probable cause that the officers could not rely upon it in good faith. We disagree

Here, the affidavit clearly documented evidence establishing that at least eleven images of child pornography had been sent to Pappas's email account and verifying that Pappas continued to maintain email access (thus indicating continued access to a computer on which child pornography could be stored).

Additionally, prior to seeking a warrant, Agent Hanson consulted with an Assistant United States Attorney. Consulting "with the prosecutor prior to applying for [a] search warrant provides additional evidence of [that officer's] objective good faith." United States v. Bynum, 293 F.3d 192, 198 (4th Cir. 2002).

Pappas further argues that the search warrant application was completely lacking in indicia of probable cause because of the eighteen-month delay between the transmission of the emails (mid-2005) and the issuance of the search warrant (late 2006). While the recency of information contained in a search warrant application is one factor bearing on the question of probable cause, United States v. Watzman, 486 F.3d 1004, 1008 (7th Cir. 2007), there is no bright line for when information is stale. United States v. Prideaux-Wentz, 543 F.3d 954, 958 (7th Cir. 2008).

Indeed, we recently held that while four-year-old transmissions of child pornography were too stale to provide probable cause, officers could nonetheless rely in good faith on a search warrant issued by a magistrate judge based on those transmissions. Prideaux-Wentz, 543 F.3d at 958-59.  Similarly, in this case, the officers reasonably could have relied on the search warrant that was based on child pornography sent eighteen months earlier.

Pappas also argues that the officers could not reasonably rely on the warrant because the warrant application included boilerplate language concerning the practices of collectors of child pornography but did not include any evidence Pappas fit that profile. In support of his position, Pappas relies on this court's recent decision in Prideaux-Wentz, 543 F.3d 954.

Pappas's reliance on Prideaux-Wentz is misplaced for several reasons.  While Prideaux-Wentz explained that a search warrant affidavit must lay a foundation showing that the target of the search is a member of the class identified in the warrant, there is no magic "profile" of child pornography "collectors" that must be attested to in a search warrant affidavit. Thus, as Prideaux-Wentz explained, where evidence indicates that an individual has uploaded or possessed multiple pieces of child pornography, there is enough of a connection to the "collector" profile to justify including the child pornography collector boilerplate in a search warrant affidavit.

Pappas's reliance on Prideaux-Wentz is also misplaced because we decided that case after the search warrant in this case was issued. Thus, Prideaux-Wentz could not have called into question the good faith of the officers involved in the search of Pappas's residence. See United States v. Adames, 56 F.3d 737, 747 (7th Cir. 1995) (holding that "the officers could not have known that the warrant was invalid at the time it was executed because [the Supreme Court precedent relied upon by the defendant to invalidate the search warrant] was not decided until more than a year later").

Finally, Prideaux-Wentz held that while probable cause was lacking, the evidence seized was nonetheless admissible under the Leon good faith exception to the exclusionary rule. Similarly, the good faith exception applies here and saves from exclusion the evidence discovered during the search of Pappas's home and the statements he made during the execution of the search warrant.

A magistrate judge issued a search warrant authorizing the search of Pappas's residence. Even if probable cause did not support issuance of this warrant, Agent Hanson demonstrated a prima facie case of good faith by obtaining a warrant in the first instance.

Accordingly, the district court erred in granting Pappas's motion to suppress.

We REVERSE.

For the full opinions visit the 7th Circuit Court of Appeals Web Site

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.

 

  

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