United States v. Crosby , 24 F. App'x 7 ( 2001 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-2384
UNITED STATES,
Appellee,
v.
ROBERT CROSBY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Campbell, Bownes and Cyr,
Senior Circuit Judges.
J. Hilary Billings and Billings & Silverstein on brief for
appellant.
Jay P. McCloskey, United States Attorney, and F. Mark
Terison, Senior Litigation Counsel, on Motion for Summary
Disposition for appellee.
DECEMBER 6, 2001
Per Curiam. The appellant-defendant, Robert Crosby
(“Crosby”), conditionally pleaded guilty to a charge of
possession of child pornography in violation of 18 U.S.C. §
2252(A)(a)(5)(B), reserving his right to challenge the validity
of a search warrant used to seize evidence from his home.
Crosby claims that the warrant application failed to establish
probable cause to search because the magistrate declined to
examine the three images made available by the affiant and the
description of the images was “woefully inadequate.” Crosby
also denies that the good faith exception to the Fourth
Amendment’s exclusionary rule applies.
Probable cause determinations are reviewed de novo. Ornelas
v. United States, 517 U.S. 690, 699 (1996); United States v.
Brunette, 256 F.3d 14, 16 (1st Cir. 2001). The appellate
court’s task, like that of the lower court, “is simply to make
a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit[,] . . . there is a
fair probability that contraband will be found in a particular
place.” Illinois v. Gates, 462 U.S. 213, 238 (1983); United
States v. Grant, 218 F.3d 72, 75 (1st Cir. 2000). The legal
determination that a particular image is child pornography is
also reviewed de novo. United States v. Amirault, 173 F.3d 28,
2
32-33 (1st Cir. 1999). Our review of the Leon determination is
de novo as well. United States v. Shea, 211 F.3d 658, 666 (1st
Cir. 2000).
The assessment of probable cause focuses on the affidavit.
In the affidavit, the law enforcement officer averred that there
was probable cause to believe that there had been a violation of
the statutes that criminalize the possession and transportation
of child pornography. To support this allegation, the affidavit
included verbatim recitations of at least 10 e-mail postings and
fairly detailed descriptions of approximately 20 images. Three
photographs were made available to the magistrate judge. One
image was described as “a male who appeared to be prepubescent
posed on a lawn on his stomach and faced away. His legs are
bent up and held by his hands. His perineum and anal area are
depicted.” In addition to the factual description of the
images, the affiant quoted an e-mail message in which Crosby
referenced the existence of more explicit pictures than the
images described in the affidavit. Based on the affidavit
alone, the magistrate judge determined that there was probable
cause to issue a warrant. The district court, after reviewing
the affidavit and examining the images, affirmed that probable
cause existed and, alternatively, determined that the Leon good
faith exception applied. We affirm.
3
Regardless whether the affidavit contains sufficiently
detailed descriptions of the images alleged to be child
pornography, as well as other supporting data, to find probable
cause, the Leon exception to the exclusionary rule clearly
applies. United States v. Leon, 468 U.S. 897, 922 (1984). In
Leon the Supreme Court held that, with limited exception, the
exclusionary rule should not apply when police officers
reasonably rely in good faith on a warrant that subsequently is
determined to be invalid. Id. at 923; United States v. Manning,
79 F.3d 212, 221 (1st Cir. 1999). We find that the affidavit
here had ample indicia of probable cause “to render official
belief in its existence” reasonable. Leon, 468 U.S. at 923.
As already noted, to support her contention that Crosby had
violated statutes criminalizing the possession of child
pornography, the agent quoted ten e-mail postings, described in
detail approximately twenty images, and made three photographs
available to the magistrate. This was more than adequate to
allow the magistrate judge to make a considered judgment. An
objectively reasonable agent could have relied in good faith on
the warrant. Crosby’s arguments to the contrary are without
merit.
The district court’s denial of Crosby’s motion to suppress
is affirmed. Loc. R. 27(c).
4