United States v. McLellan ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1561
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID MCLELLAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Torruella, Selya, and Lynch,
Circuit Judges.
Judith H. Mizner, Assistant Federal Public Defender, Federal
Public Defender Office, for appellant.
Crystal S. Yang, Special Assistant United States Attorney,
with whom Carmen M. Ortiz, United States Attorney, was on brief,
for appellee.
July 6, 2015
TORRUELLA, Circuit Judge. On February 19, 2010, law
enforcement officers executed a federal search warrant at 180 High
Street in Taunton, Massachusetts as part of an investigation into
an individual using the online usernames "babylick" and "a35scott"
to trade child pornography. After speaking with one of the co-
owners (who was also an occupant), the officers searched the entire
single-family residence, including the bedroom of Appellant David
McLellan, who was renting a bedroom in the residence. In
McLellan's bedroom, officers seized numerous electronics containing
more than 6.3 million images and videos of child pornography and
files depicting McLellan sexually abusing an infant. McLellan was
subsequently indicted on one count of sexual exploitation of
children under 18 U.S.C. § 2251(a) and one count of transporting
child pornography under 18 U.S.C. § 2252(a)(1). Following the
denial of his request for a Franks hearing and for suppression of
the evidence seized during the search, McLellan pleaded guilty,
specifically reserving his right to appeal the district court's
rulings. Finding no error with these rulings, we affirm.
I. Background
This investigation began in February 2008, when Canadian
authorities alerted the Federal Bureau of Investigation ("FBI")
that an individual in or near Boston, Massachusetts was using the
username babylick to post images of child pornography to an online
bulletin board system. A few months later, in June 2008, the FBI
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obtained from Yahoo! the user information for the username
a35scott. They learned that a35scott self-identified as Adam Scott
from Medford, Massachusetts and that he had logged into Yahoo! from
seven different IP addresses between January and May of 2008.1
Three of the IP addresses were linked to Verizon accounts assigned
to Dennis Truso in Boston, Massachusetts, one was linked to a
Comcast account assigned to Greg Little in East Boston,
Massachusetts, and the other two were linked to accounts in Boston,
Massachusetts, and Cambridge, Massachusetts. Notably, one of the
IP addresses linked to Dennis Truso matched the IP address provided
by the Canadian authorities in relation to babylick, thus
suggesting that the two usernames belonged to the same individual.
The FBI continued investigating a35scott, and by March
2009, it had issued a report identifying him as an active member in
the Multiply.com e-group2 "YOUCANTSEEMETOO," where he was observed
posting and trading child pornography. Though the zipcode
1
An IP address, or Internet Protocol address, "is the unique
address assigned to every machine on the internet." United States
v. Cameron, 699 F.3d 621, 627 n.1 (1st Cir. 2012) (quoting United
States v. Kearney, 672 F.3d 81, 84 n.1 (1st Cir. 2012)). It
"consists of four numbers separated by dots, e.g., 166.132.78.215."
Id. (quoting Kearney, 672 F.3d at 84 n.1).
2
Multiply.com was a social networking website from March 2004
through May 2013 which provided users with a medium to share
photos, videos, and other information with their network of
contacts. In addition to providing a means to connect with
contacts, the service also allowed registered users to create "e-
groups" in order to meet and socialize with other members who may
have similar interests.
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associated with a35scott's Multiply.com account was in California,
the IP addresses were once again traced to the internet accounts of
Dennis Truso and Greg Little. The report noted, however, that
a35scott was not necessarily Dennis Truso or Greg Little, but might
be another member of the Truso or Little household, or another
person entirely.
For reasons unclear from the record, the investigation
into a35scott appears to have gone quiet from March 2009 through
December 2009. The investigation resumed on December 1, 2009,
however, when FBI Special Agent Raj Patel, acting in an undercover
capacity, logged on to Gigatribe.com, a peer-to-peer ("P2P") file-
sharing network. Like other P2P networks such as Napster, Kazaa,
and Limewire, Gigatribe allows a user who has downloaded the
service's software to directly connect to other users' computers in
order to search and download files that other users have designated
for sharing. Unlike the traditional P2P network, however, the
Gigatribe system requires a user to already know another user's
username and to be accepted by that other user before contact and
file-sharing can occur. The Gigatribe files are also encrypted
when they are exchanged. Because of these added layers of
security, Gigatribe has become a preferred P2P system for
trafficking child pornography.
When Agent Patel logged in to Gigatribe on December 1, he
observed a35scott logged in as well. Agent Patel proceeded to
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browse a35scott's shared directory and discovered numerous files
with names indicative of child pornography, such as "!-baby
unsorted" and "7yo private, cbaby and dea (5yo)." He selected
three files to download, but, midway through the downloads,
a35scott blocked Agent Patel's access. As a result, two of the
three files were only partially downloaded and could not be opened.
The third file, however, titled "Boner0170 (Thai boys).jpg," was
fully downloaded (the "December 1 Download"). This file contained
a collage of twenty-five images of child pornography, mostly
consisting of two prepubescent boys either partially clothed or
naked with a focus on their genitals.
The FBI was able to trace the file's origin to a single
IP address -- 173.76.210.90. This IP address was registered to
Verizon and, according to Verizon's records, was assigned to the
residential high speed internet service account of Darryl J. St.
Yves, located at 180 High Street in Taunton, Massachusetts. The
FBI confirmed St. Yves's residential address with both the
Massachusetts Registry of Motor Vehicles ("RMV") and the United
States Postal Service ("USPS"), and agents visibly observed that a
single mailbox at 180 High Street listed St. Yves and two other
occupants -- Keller and Theobold.
Armed with this information, FBI Special Agent John Locke
applied for a search warrant for 180 High Street on February 11,
2010. In his affidavit in support of the warrant, Special Agent
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Locke recounted the investigation by Special Agent Patel linking
the Gigatribe download to an IP address belonging to the account of
St. Yves, as well as the FBI's subsequent confirmation that
St. Yves lived at 180 High Street both at the time of the download
and at the time of the affidavit. The affidavit also described how
individuals involved in the transportation and possession of child
pornography often keep their pornography close by in secure
locations and how complicated forensic examinations of electronics
are often necessary to discover the hidden files containing child
pornography. Accordingly, the affidavit concluded that there was
"probable cause to believe that there exists evidence, fruits and
instrumentalities" of the crimes of the transportation and
possession of child pornography at 180 High Street and that "Darryl
J. St. Yves and/or other residents, as yet unknown," committed
those crimes. The magistrate judge agreed and issued the search
warrant.
Notably, the affidavit omitted certain information
presumably known to Agent Locke. For example, it did not reference
either the February 2008 Canadian tip regarding "babylick" or the
March 2009 report detailing the FBI's investigation into a35scott's
involvement in the YOUCANTSEEMETOO e-group on Multiply.com. It
also failed to mention that this activity had been linked to IP
addresses traced to Dennis Truso, Greg Little, and two others, and
not to Darryl J. St. Yves. The affidavit did, however, state that
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it did "not contain every fact known to [Special Agent Locke] with
respect to this investigation" but rather "it contain[ed] those
facts that [he] believe[d] to be necessary to establish probable
cause for issuance of a search warrant" for 180 High Street.
The FBI agents executed the warrant on February 19, 2010.
When they arrived, both St. Yves and McLellan were present.
St. Yves explained to the agents that he and Keller owned -- and
occupied -- the residence and that they had rented a third room --
the room formerly occupied by Theobold -- to McLellan
"approximately" two months prior, on or about December 1, 2009. He
added that all three occupants used his Verizon internet service
via a router which created a wireless network, but each resident
had his own computers and did not share files. The agents then
informed St. Yves that they were looking for child pornography and
would be examining all the computers to determine who was most
likely responsible. St. Yves admitted that he possessed some child
pornography but had not actively searched for it; rather, it was
downloaded along with adult pornography videos St. Yves had
collected. Upon further inquiry, the FBI agents learned that
St. Yves claimed to be unfamiliar with the username a35scott, to
not use Yahoo!, and to have never used Gigatribe. St. Yves also
told the agents that McLellan was "the most knowledgeable about
computers" among the three residents.
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Following this conversation, the FBI proceeded to search
180 High Street. They seized several computers, 497 CDs and DVDs,
five hard drives, one four-gigabyte thumb drive, and three cell
phones from McLellan's bedroom. A subsequent forensic examination
of these items revealed images and videos of child pornography,
including ones of McLellan sexually abusing an infant.3
Accordingly, on August 2, 2012, McLellan was indicted on one count
of sexual exploitation of children under 18 U.S.C. § 2251(a) and
one count of transporting child pornography under 18 U.S.C.
§ 2252(a)(1).
On April 23, 2013, McLellan filed a motion attacking the
search from two angles. First, he argued that the search was
unconstitutional -- and thus the seized electronics should be
suppressed -- because the warrant was insufficiently particular.
To support this claim, McLellan alleged that 180 High Street was a
"multi-unit dwelling" and the affidavit failed to provide probable
cause to search his specific room because there was no evidence to
link anyone other than St. Yves to the December 1, 2009, download.
Second, McLellan requested a hearing under Franks v. Delaware, 438
U.S. 154 (1978), because, he contended, the affidavit in support of
the search warrant omitted material information that would have
negated probable cause. Specifically, McLellan argued that had the
3
When McLellan was sentenced in May 2014, the forensic
examination was still ongoing, yet over 6.3 million files had
already been uncovered.
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magistrate judge been informed that a35scott had been linked to IP
addresses connected to Dennis Truso, Greg Little, and others -- but
not to St. Yves -- in 2008 and early 2009, the magistrate judge
would have found the December 1, 2009, download to be stale by
February 2010 because there would have been evidence suggesting
that a35scott frequently moved around and "piggyback[ed]" on the
internet service of others.
The district court heard arguments on McLellan's motion
on October 16, 2013, and orally denied the motion at the conclusion
of the hearing. Regarding the particularity argument, the district
court found that
in light of the undisputed facts that this
appears to be a single family dwelling in
which there were a number of individuals,
three specific, there was, that the warrant
was sufficiently particular. There was here
no separate entrance to the street. The room
in question was not equipped for independent
living. It appeared that the occupants had
joint access to the common areas. And there's
no sufficient evidence that the police
understood that the house, a single family
house, was subdivided. The search warrant I
rule was sufficiently particular.
As to McLellan's Franks argument, the district court agreed that
"certain data was omitted" but emphasized that "[t]here can be no
Franks hearing unless the omitted information was critical to the
probable cause determination." The district court went on to hold
that
the omitted information was not recklessly
omitted and the information was not essential
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or critical to the probable cause
determination. The warrant does state that
the affidavit does not contain every fact
known to me with respect to this
investigation. The magistrate was put on
notice of that. It's also unclear to the
Court at this stage that the affiant here or
indeed the investigative team ever had a full
picture of [a]35scott's movements at the time
the warrant was issued.
Now, since I decline to find that the
omission was intentional or reckless that's
sufficient standing by itself to deny a Franks
hearing.
Also, the second prong, if I address that,
in this case, I find that had this information
been known and all disclosed in the
[affidavit], the well-known proclivity of
those who possess this child obscenity hang
onto it does not cut against probable cause
here and the two month gap here is not, does
not make this information stale and indeed
supports the issuance of the warrant in this
case.[4]
With both his request for a Franks hearing and motion to
suppress denied, McLellan opted to plead guilty to the two-count
indictment while reserving his right to appeal the district court's
rulings. On May 15, 2014, the district court sentenced McLellan to
204 months of imprisonment followed by fifteen years of supervised
release. This timely appeal followed.
4
The district court also held that even if the search did exceed
the warrant, or if the affidavit contained intentionally or
recklessly omitted material information, the FBI acted in good
faith, and thus denial was still appropriate pursuant to United
States v. Leon, 468 U.S. 897 (1984). Because we agree with the
district court on the merits, we do not review this alternate
holding.
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II. Discussion
A. The Franks Hearing
McLellan first argues that the district court erred in
denying his request for a Franks hearing. We disagree.
1. Standard of Review
We review the denial of a Franks hearing for clear error.
United States v. Grant, 218 F.3d 72, 76 (1st Cir. 2000). Clear
error exists "only when we are left with the definite and firm
conviction that a mistake has been committed." United States v.
Hicks, 575 F.3d 130, 138 (1st Cir. 2009) (internal quotation marks
omitted). We review probable cause determinations, meanwhile, de
novo. United States v. Brunette, 256 F.3d 14, 16 (1st Cir. 2001).
In conducting this latter review, "[o]ur task, like that of the
magistrate judge and district court, 'is simply to make a
practical, common-sense decision whether, given all the
circumstances[,] . . . there is a fair probability that contraband
or evidence of a crime will be found in a particular place.'" Id.(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).
2. The Requirements for a Franks Hearing
The Fourth Amendment protects individuals against
unreasonable intrusion by the government. This protection stems
from the Amendment's instruction that "no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and
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particularly describing the place to be searched, and the persons
or things to be seized." U.S. Const. amend. IV.
As we have repeatedly emphasized, "[a]n affidavit
supporting a search warrant is presumptively valid." United States
v. Gifford, 727 F.3d 92, 98 (1st Cir. 2013). Still, a defendant
may attempt to rebut this presumption and challenge the veracity of
the affidavit. Id.; see also Franks, 438 U.S. at 171. To do so,
he or she must make "two substantial preliminary showings." United
States v. Rigaud, 684 F.3d 169, 173 (1st Cir. 2012) (internal
quotation marks omitted). First, the defendant must show "that a
false statement or omission in the affidavit was made knowingly and
intentionally or with reckless disregard for the truth." Id.; see
also Franks, 438 U.S. at 155-56; Grant, 218 F.3d at 77. Second,
this "falsehood or omission [must have been] necessary to the
finding of probable cause." Rigaud, 684 F.3d at 173. In the case
of an omission, this means establishing that the inclusion of the
omitted information "would have led to a negative finding by the
magistrate on probable cause." Id. at 173 n.5. A failure to make
a showing on either of these two elements dooms the defendant's
challenge. Id. at 173.
If, however, this preliminary showing is made, the
defendant is entitled to a hearing -- known as a Franks hearing --
where he or she can try to establish by a preponderance of the
evidence that the affiant did in fact make a false statement or
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omission "knowingly and intentionally, or with reckless disregard
for the truth" and that "with the recklessly omitted information
added to the affidavit, the reformed affidavit fails to establish
probable cause." Gifford, 727 F.3d at 98 (internal quotation marks
omitted); see also Franks, 438 U.S. at 156; Rigaud, 684 F.3d at
173. Should the defendant establish by proof that these standards
have been met, the warrant is voided and the fruits of the search
are excluded. Gifford, 727 F.3d at 98; see also Franks, 438 U.S.
at 156; Rigaud, 684 F.3d at 173.
As to the second prong, a warrant is based on probable
cause when "'the affidavit upon which a warrant is founded
demonstrates in some trustworthy fashion the likelihood that an
offense has been committed and that there is sound reason to
believe that a particular search will turn up evidence of it.'"
United States v. Chiaradio, 684 F.3d 265, 279 (1st Cir. 2012)
(quoting United States v. Aguirre, 839 F.2d 854, 857-58 (1st Cir.
1988)). It is not necessary, however, for that "'belief [to] be
correct or more likely true than false.'" United States v. Feliz,
182 F.3d 82, 86 (1st Cir. 1999) (quoting Texas v. Brown, 460 U.S.
730, 742 (1983) (plurality opinion)); see also United States v.
Khounsavanh, 113 F.3d 279, 283 (1st Cir. 1997) ("[P]robable cause
need not be tantamount to proof beyond a reasonable doubt. . . .
Probability is the touchstone." (alteration in original) (internal
quotation marks omitted)). Instead, we "examine [an] affidavit in
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a practical, commonsense fashion." United States v. Woodbury, 511
F.3d 93, 98 (1st Cir. 2007) (alteration in original) (quoting
Feliz, 182 F.3d at 86).
3. The Omitted Information Was Immaterial
McLellan argues that Agent Locke intentionally and
recklessly omitted material information regarding the FBI's
investigation into a35scott prior to the December 1 Download from
his affidavit, and had this information been included in the
affidavit, probable cause would have been lacking. Specifically,
McLellan points to: (1) the February 2008 Canadian tip into
babylick; (2) the March 2009 report detailing a35scott's
involvement in the YOUCANTSEEMETOO e-group on Multiply.com, which
was registered with a California zip code; and (3) the links
between these child pornographic activities and IP addresses traced
to Dennis Truso, Greg Little, and others, but not to Darryl J. St.
Yves (collectively, the "Omitted Information"). This information,
according to McLellan, revealed that whoever a35scott was, he or
she was nomadic and never remained at the same place for very long,
and thus when the FBI applied for the warrant two months after
Agent Patel's single December 1 Download, there was no longer
probable cause to believe that a35scott would still be at 180 High
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Street. In other words, the information contained in the affidavit
was stale.5
The parties do not dispute that this information was
omitted from the affidavit,6 though they do disagree over whether
5
It is important to take a moment to emphasize what McLellan is
not arguing. He is not suggesting that the affidavit in support of
the warrant was stale because it was unlikely he would have kept
his illicit child pornography for more than two months. This
argument would readily fail, as courts have held time and time
again that child pornography traders and collectors maintain their
collections for long periods of time, and often store it in safe,
close, and easily accessible locations. See United States v.
Morales-Aldahondo, 524 F.3d 115, 119 (1st Cir. 2008) (holding that
a warrant application was not stale where more than three years had
passed since law enforcement acquired the information contained in
the affidavit because "customers of child pornography sites do not
quickly dispose of their cache"); United States v. Ricciardelli,
998 F.2d 8, 12 n.4 (1st Cir. 1993) ("[H]istory teaches that
collectors [of child pornography] prefer not to dispose of their
dross, typically retaining obscene materials for years."); see also
United States v. Vosburgh, 602 F.3d 512, 528 (3d Cir. 2010)
(finding that a four-month gap between warrant application and
attempt to access child pornography did not render information
stale because it was not unreasonable "for officers to infer that
the person responsible for those attempts already possessed some
quantity of child pornography"); United States v. Gourde, 440 F.3d
1065, 1071 (9th Cir. 2006) (en banc) (finding that a four-month
delay did not render information stale because "[t]hanks to the
long memory of computers, any evidence of a crime was almost
certainly still on his computer, even if he had tried to delete the
images"). Rather, McLellan is arguing that by February 2010,
a35scott would have already relocated from 180 High Street, and
brought his or her child pornography along.
6
Indeed, the affidavit itself states that it "does not contain
every fact known to [Agent Locke] with respect to this
investigation" but rather "contains those facts that [he]
believe[d] to be necessary to establish probable cause." Though we
have upheld warrants based on affidavits with similar language in
the past -- and do so again today -- we once again caution law
enforcement officers about this practice. "[T]he best way to
ensure that the Fourth Amendment's probable cause requirement is
complied with is to meticulously comply with it." Khounsavanh, 113
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or not the omission was intentional and/or reckless. We need not
decide this, however, because the inclusion of the Omitted
Information would have been immaterial to the probable cause
determination. See Rigaud, 684 F.3d at 173 ("In this case, we need
not address the first Franks requirement, because [the defendant]
has plainly failed to meet the second (establishing the effect of
the omission on the probable cause showing).").
Information contained in an affidavit is stale if it
established probable cause at some point in the past but does not
support probable cause at the time of the warrant's issuance. Sgro
v. United States, 287 U.S. 206, 210 (1932) ("[I]t is manifest that
the proof must be 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."). "When evaluating a claim of staleness, we do not
measure the timeliness of information simply by counting the number
F.3d at 289 (internal quotation marks omitted). And
[m]eticulous compliance involves more than an agent's own
judgment as to the ultimate importance of a piece of
information to a judgment of probable cause. The agent
also should, in the interest of both judicial economy and
fairness, ask the further question, "Is this information
so trivial, remote or irrelevant that no reasonable
official could assign it weight in coming to a decision
to issue the warrant?" Unless an affirmative answer can
be given, the information should be included -- even if,
in context, its weight seems too slight to tip the
balance away from a finding of probable cause.
United States v. Stewart, 337 F.3d 103, 107 (1st Cir.), as amended
(Oct. 14, 2003) (footnote omitted).
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of days that have elapsed. Instead, we must assess the nature of
the information, the nature and characteristics of the suspected
criminal activity, and the likely endurance of the information."
Morales-Aldahondo, 524 F.3d at 119.
Here, the Omitted Information would not have led the
magistrate to conclude that the connection between a35scott and 180
High Street was stale. The Omitted Information shows that from
February 2008 until March 2009, a35scott was using IP addresses
assigned to Dennis Truso in Boston, Greg Little in East Boston, and
two other accounts in Boston and Cambridge -- with the majority of
those uses occurring between January and May 2008. This
information can be taken in multiple ways. It could mean, as
McLellan argues, that a35scott was nomadic and moving around, using
whatever internet he or she could find.7 However, it could also
indicate locations where a35scott lived, worked, and/or spent his
or her free time during that time span.8
7
McLellan also implies that the Omitted Information could suggest
that a35scott was merely using whatever nearby internet he or she
could connect to. Putting aside the fact that McLellan provides
absolutely no evidence to support this allegation, we have
previously rejected the argument that the possibility of a third
party stealing a subscriber's internet access defeats probable
cause to search the subscriber's residence. See Grant, 218 F.3d at
75 ("[E]ven discounting for the possibility that an individual
other than [defendant] may have been using his account, there was
a fair probability that [defendant] was the user and that evidence
of the user's illegal activities would be found in [his] home.");
see also United States v. Pérez, 484 F.3d 735, 740 (5th Cir. 2007).
8
In fact, given that there were multiple links to Dennis Truso
and Greg Little over a multi-month span, this latter scenario is
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Either way, this ambiguous information as to a35scott's
travels between January 2008 and March 2009 has very little
relevance to a35scott's location in February 2010. To the
contrary, even taking into account this Omitted Information, the
best information the FBI had in February 2010 as to a35scott's
current location was still the trace of the December 1 Download to
St. Yves's account at 180 High Street. Nothing in the Omitted
Information suggests, for example, that a35scott had used an IP
address linked to a different location between December 1, 2009,
and the filing of the affidavit on February 11, 2010; nor does it
suggest that a35scott had used IP addresses linked to multiple or
different locations around the time of the December 1 Download.
And without any evidence that a35scott had relocated, we do not
believe this two-plus-month delay in applying for the warrant
rendered the information in the affidavit stale. This is
especially true considering those two months were used by the FBI
to corroborate (through checks with the RMV and USPS and with a
drive-by site visit to 180 High Street) that St. Yves -- the
account holder for the targeted IP address -- had not moved. Cf.
United States v. Tiem Trinh, 665 F.3d 1, 13-14 (1st Cir. 2011)
(holding that information contained in an affidavit was not stale
where one month had elapsed between the warrant's issuance and the
last observed narcotics-related activity); United States v.
actually more likely.
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Bucuvalas, 970 F.2d 937, 940-41 (1st Cir. 1992) (finding
information in an affidavit not to be stale where events related to
the conspiracy charge took place four years prior to the search
warrant application because a co-conspirator was seen bribing a
police officer one month before the warrant and the affiant had
verified that a person related to the conspiracy was still
designated as a record owner for the premises), abrogated on other
grounds by Cleveland v. United States, 531 U.S. 12 (2000). But cf.
United States v. Charest, 602 F.2d 1015, 1018 (1st Cir. 1979)
(finding sixteen days between date of murder and date of affidavit
rendered information stale because it was "contrary to common sense
and logic to expect a murderer to keep the murder weapon in his own
premises for almost three weeks").
The Omitted Information, therefore, does not render
a35scott's link to 180 High Street in February 2010 stale, and as
such does not negate the probable cause finding.9 See Rigaud, 684
9
With good reason, McLellan does not challenge that without the
Omitted Information, probable cause to search 180 High Street for
a35scott and child pornography existed following the December 1
Download. See, e.g., Chiaradio, 684 F.3d at 279 (finding probable
cause where affidavit "spelled out how [the investigation] led to
the defendant's IP address and, in turn, his abode"); United States
v. Gillman, 432 F. App'x 513, 515 (6th Cir. 2011) (finding
sufficient nexus between illegality and defendant's residence where
"(1) child pornography was transferred to police from a specific IP
address; (2) that IP address was registered to the defendant's
residential address; and (3) the defendant actually lived at that
address"); United States v. Renigar, 613 F.3d 990, 991 (10th Cir.
2010) (same); Vosburgh, 602 F.3d at 526-27 (same); Pérez, 484 F.3d
at 740 (same); United States v. Hay, 231 F.3d 630, 635-36 (9th Cir.
2000) (same).
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F.3d at 173 n.5 ("With an omission, the inquiry is whether its
inclusion in an affidavit would have led to a negative finding by
the magistrate on probable cause."); Woodbury, 511 F.3d at 98(explaining that a reviewing court examines an affidavit in "a
practical, commonsense fashion" to determine whether it "would
warrant a man of reasonable caution to believe that evidence of a
crime will be found" (citations and internal quotation marks
omitted)). Because McLellan failed to make this preliminary
showing, he cannot satisfy the prerequisites for a Franks hearing.
Accordingly, there was no error -- let alone a clear error -- in
the district court's decision to deny McLellan's request.
B. The Motion to Suppress
McLellan also argues that even taking the warrant as is
-- i.e., without considering the Omitted Information -- his motion
to suppress should have been granted because the "multi-unit"
character of 180 High Street made the warrant insufficiently
particular. As such, the search of his room exceeded the warrant's
permissible scope. Once again, we disagree.
1. Standard of Review
Our review of the district court's denial of McLellan's
motion to suppress is bifurcated: "we review its findings of fact
for clear error and apply de novo review 'to the application of law
to those facts and to conclusions of law.'" United States v.
Werra, 638 F.3d 326, 330 (1st Cir. 2011) (quoting United States v.
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Rheault, 561 F.3d 55, 58 (1st Cir. 2009)). As discussed above, a
finding of fact is clearly erroneous "only if, after considering
all the evidence, we are left with a definite and firm conviction
that a mistake has been made." United States v. Mousli, 511 F.3d
7, 11 (1st Cir. 2007) (quoting United States v. Ferreras, 192 F.3d
5, 9-10 (1st Cir. 1999)) (internal quotation marks omitted). So
long as any reasonable view of the evidence supports the decision,
the district court's ruling will be upheld. Id. at 11-12.
2. The Fourth Amendment's Particularity Requirement
The Fourth Amendment requires that a search "be justified
by probable cause and . . . satisfy the particularity requirement,
which limits the scope and intensity of the search." Mousli, 511
F.3d at 12 (quoting United States v. Bonner, 808 F.2d 864, 867 (1st
Cir. 1986)) (internal quotation marks omitted); see also U.S.
Const. amend. IV. A warrant satisfies the particularity
requirement if "the description is sufficient to enable the
executing officer to locate and identify the premises with
reasonable effort" such that no other premise might be mistakenly
searched. Mousli, 511 F.3d at 12 (quoting United States v. Vega-
Figueroa, 234 F.3d 744, 756 (1st Cir. 2000)) (internal quotation
marks omitted). To that end, "the general rule is that a warrant
that authorizes the search of an undisclosed multi-unit dwelling is
invalid." Id. (quoting Pérez, 484 F.3d at 741) (internal quotation
marks omitted). By contrast, a warrant for a single-unit residence
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authorizes the search of that entire dwelling regardless of who the
area being searched belongs to, so long as the items delineated in
the warrant could reasonably be found in the searched area. See
United States v. Ayers, 924 F.2d 1468, 1480 (9th Cir. 1991) ("A
search warrant for the entire premises of a single family residence
is valid, notwithstanding the fact that it was issued based on
information regarding the alleged illegal activities of one of
several occupants of a residence."); United States v. Canestri, 518
F.2d 269, 273-74 (2d Cir. 1975) (holding that a warrant directing
the entire house be searched included a locked storeroom allegedly
not belonging to the target of the search because "a locked
storeroom is a natural and logical place to hide stolen guns" and
"there was no evidence presented at the suppression hearing which
showed that [the target of the search] did not have access to the
storeroom"). Whether a dwelling constitutes a single- or multi-
unit residence is a fact-intensive and situation-specific
determination, and thus there are no hard-and-fast rules as to what
category any particular dwelling falls into.
3. The Warrant for 180 High Street Was Sufficiently
Particular
Here, McLellan argues that 180 High Street was a multi-
unit dwelling, and thus the search of his room violated the Fourth
Amendment's particularity requirement. This argument is in deep
trouble before it even begins, however, because the district court
made a factual determination that 180 High Street was a single-
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family residence. Specifically, the district court found that
McLellan's room "was not equipped for independent living" because
there was no separate entrance to the street and the occupants had
joint access to the common areas such as the kitchen and living
rooms. Though McLellan disagrees with the court's ultimate
conclusion as to a single- versus multi-family residence, he does
not dispute this underlying description of his room and the
premises.10 Accordingly, we are hard-pressed to disagree with the
district court's factual finding that 180 High Street is a single-
family residence; and at the very least, the finding is in no way
clearly erroneous. See Ferreras, 192 F.3d at 11 (holding that an
attic was included in a search warrant for the building's second
floor because it was connected to the second floor apartment,
lacked an exit to the street, and was "not equipped for independent
living"); United States v. Hinds, 856 F.2d 438, 441-42 (1st Cir.
1998) (finding a single-family building where there "were no
indications, such as separate doorbells or mailboxes, that more
than one family lived" in the building and "the top floor . . . was
not separated from the floors below by a door"). McLellan's
reliance on cases such as Maryland v. Garrison, 480 U.S. 79 (1987),
10
Indeed, McLellan's only rebuttal is that the house was connected
to a shared driveway which could accommodate eight to ten cars.
This fact, which was included in the affidavit, does not change our
conclusion about the residence in this case.
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and United States v. Vaughan, 875 F. Supp. 36 (D. Mass. 1995) --
all involving multi-unit residences -- are therefore misplaced.
Perhaps recognizing that this argument is a lost cause,
McLellan also contends that even if the warrant was particular on
its face, information learned during the execution of the warrant
revealed a "factual mistake" regarding the premises which required
the FBI to exclude McLellan's bedroom from its search. See
Garrison, 480 U.S. at 87 ("[The officers] were required to
discontinue the search of respondent's apartment as soon as they
. . . were put on notice of the risk that they might be in a unit
erroneously included within the terms of the warrant.");
Ricciardelli, 998 F.2d at 17 n.10 (noting that when police
executing a warrant discover a factual mistake, they "'must
reasonably limit their search accordingly'" (quoting Garrison, 480
U.S. at 89 n.14)). We reject McLellan's contention that any
"mistake" was made.
Contrary to McLellan's contention, the additional
information gathered by the FBI actually increased the likelihood
that McLellan -- and not one of the other occupants -- was
a35scott.11 First, by talking to St. Yves, the FBI learned that all
11
Remember, the warrant authorized a search of 180 High Street
because there was probable cause to believe that "Darryl J. St.
Yves and/or other residents, as yet unknown, of 180 High Street"
had possessed and transmitted child pornography from an internet
account assigned to that address under the username a35scott.
Thus, it was not only St. Yves the FBI was interested in, but
rather all internet users at that address.
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three occupants shared St. Yves's internet account via a wireless
router, and thus every internet connection established from any of
the occupants' computers would trace back to the same IP address.
See In re BitTorrent Adult Film Copyright Infringement Cases, 296
F.R.D. 80, 84 (E.D.N.Y. 2012) (explaining that "[i]f you use a
router to share an Internet connection, the router gets the IP
address issued directly from the ISP" and thus "[a]n IP address
provides only the location at which one of any number of computer
devices may be deployed, much like a telephone number can be used
for any number of telephones" (internal quotation marks omitted));
Patrick Collins, Inc. v. Doe 1, 288 F.R.D. 233, 235 (E.D.N.Y. 2012)
("[A] single IP address may host one or more devices operated or
owned by multiple users (for example, a computer or handheld
tablet), each communicating on the same network, such as with a
wireless router or a business intranet." (internal quotation mark
omitted)). Second, St. Yves denied using Gigatribe or Yahoo!, and
given his admission that he did (albeit accidentally) have child
pornography on his computer, the FBI had reason to believe St.
Yves's denial. Third, St. Yves described McLellan as the most
computer savvy of the three occupants. And finally, perhaps most
telling, St. Yves informed the FBI that McLellan moved into 180
High Street around December 1, 2009 -- the same day that Agent
Patel downloaded the file containing child pornography from
a35scott from an IP address originating at 180 High Street. We
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fail to see how this new information should have led the FBI to
conclude that McLellan could not be a35scott.
The motion to suppress, therefore, was properly denied.
III. Conclusion
For the reasons explained above, McLellan fails to make
a preliminary showing that the Omitted Information from Agent
Locke's affidavit would have negated the magistrate judge's
probable cause finding, and thus the district court did not err in
denying his request for a Franks hearing. Moreover, because we
agree with the district court's conclusion that the warrant was
sufficiently particular, McLellan's motion to suppress was properly
denied.
AFFIRMED.
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