United States v. Kilgore ( 2021 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 21, 2021
FOR THE TENTH CIRCUIT Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 20-5059
v. (D.C. No. 4:20-CR-00015-GKF-1)
(N.D. OK)
COREY WAYNE KILGORE,
Defendant - Appellant.
ORDER AND JUDGMENT*
Before MORITZ, SEYMOUR and BRISCOE, Circuit Judges
Corey Wayne Kilgore entered a conditional guilty plea for violating 18 U.S.C.
§§ 2252(a)(2) and (b)(1), Distribution and Receipt of a Visual Depiction of a Minor
Engaged in Sexually Explicit Conduct. He preserved this appeal from the district court’s
denial of his motion to suppress. We affirm.
Facts
On January 7, 2020, the Tulsa Police Cyber Crimes Unit obtained a warrant to
search Mr. Kilgore’s home in Rogers County. The search warrant was initiated based on
a tip from Homeland Security Investigations agents who learned that IP addresses
assigned to Mr. Kilgore had been used to upload two images of child pornography
*
This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
through a social messaging application called Kik. A criminal history check revealed
that Mr. Kilgore was a registered sex offender, having previously been convicted of a
crime involving child pornography, and that he had recently moved to an address in
Rogers County, Oklahoma. The affidavit in support of the search warrant offered the
foregoing facts as probable cause for issuing the search warrant.
The warrant was executed by detectives on January 9, 2020. Detectives knocked
on Mr. Kilgore’s door and, when he answered, they explained that he was not under
arrest and that he did not have to talk to them. A consensual interview followed, during
which Mr. Kilgore ultimately admitted that he had used the Kik application to send and
receive messages containing images of child pornography.1 Thereafter, a federal grand
jury charged Mr. Kilgore with distribution and receipt of child pornography. Mr.
Kilgore moved to suppress all evidence and statements obtained through the search of his
home, challenging the sufficiency of the affidavit. The district court denied that motion
and this appeal followed.
Standard of Review
When reviewing a district court’s denial of a motion to suppress, the court’s
factual findings are reviewed for clear error and the evidence is considered in the light
most favorable to the government. United States v. Perrine, 518 F.3d 1196, 1201 (10th
Cir. 2008). Determinations relating to the sufficiency of a search warrant are
1
The discussion with the detective at Mr. Kilgore’s home was recorded and submitted as
evidence in support of the government’s Response in Opposition to Motion to Suppress.
See Government’s Exhibit 1, Rec., vol. I at 42.
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conclusions of law, which are reviewed de novo. Id. Determinations of probable cause
by a judge are not reviewed de novo. Such decisions are instead entitled to great
deference, and the reviewing court “need only ask whether, under the totality of the
circumstances, the [issuing] judge had a substantial basis for determining that probable
cause existed.” Id. (quoting United States v. Artez, 389 F.3d 1106, 1111 (10th Cir.
2004)).
Analysis
Mr. Kilgore raises two viable issues on appeal.2 First, that the affidavit failed to
establish probable cause and, second, that the affidavit failed to establish a sufficient
nexus between the crime and his new address.
Mr. Kilgore first argues that the affidavit was insufficient to establish probable
cause because it described the images as “child exploitation” instead of “child
pornography.”3 But, as the district court subsequently explained, “in [its] experience”
the term “known image of child exploitation,” which was used several times in the
2
Because we conclude it was not error for the district court to determine that the affidavit
was sufficient to establish probable cause, we do not reach the third issue relating to
whether, in the absence of probable cause, the good faith exception applies.
3
In support of this argument, Mr. Kilgore relies heavily upon United States v. Edwards,
813 F.3d 953 (10th Cir. 2015). The district court distinguished that case in its order
denying the motion to suppress by highlighting the fact that Mr. Edwards was not a
convicted sex offender and that he was alleged to have possessed “child erotica” (which
includes a separate category of material that is legal to possess). Rec., vol. I at 57-60.
Here, Mr. Kilgore had both a prior conviction as a sex offender involving child
pornography (for which he is still registered as a sex offender) and possessed
photographs depicting “child exploitation.” When considered together, in this case,
these facts established probable cause for the warrant.
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affidavit for search warrant, referred to the “government’s files of child porn that are
maintained by law-enforcement authorities.” Rec., vol. II at 9. The district court
simply noted that the term “child exploitation” has a specific meaning in the context of
child pornography.
For the purposes of issuing a search warrant, a finding of probable cause relates to
the degree of suspicion created by the government’s evidence. All that was required was
a substantial basis for concluding there was a “fair probability” that evidence of criminal
activity would be found in Mr. Kilgore’s home. United States v. Barajas, 710 F.3d
1102, 1108 (10th Cir. 2013) (citation omitted). “Courts should not invalidate a warrant
by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner.”
Id. at 1109 (quoting United States v. Ventresca, 380 U.S. 102, 108 (1965). It was not
clear error for the district court to find that the terms “child exploitation” and “child
pornography” are used interchangeably by law enforcement in the context of child
pornography.
The affidavit in support of the search warrant contained sufficient information
linking Mr. Kilgore to the receipt and distribution of child pornography. The affidavit
specified that IP addresses assigned to Mr. Kilgore’s had been linked to images of child
4
exploitation, identified him as a convicted sex offender (child pornography),4 and stated
that he was currently registered at a new address in Rogers County which was the subject
of the warrant. When considered together these facts established probable cause for the
warrant.
With respect to whether the affidavit established a sufficient nexus between the
crime and the new address, Mr. Kilgore argues that the images were uploaded when he
lived at a previous address and that there was no nexus between the crime and his current
address, which was the target of the warrant. In response to this, the district court cited
United States v. Potts, 586 F.3d 823, 829 (10th Cir. 2009), and noted there is no
requirement that the affidavit contain “direct evidence that contraband is in the place to
be searched.” Rec., vol. I at 52. The court further explained that determining whether a
sufficient nexus exists between suspected criminal activity and a residence depends on
the facts, including the type of crime, the opportunity to conceal evidence, the type of
evidence, and reasonable inferences about where a person would likely keep that
evidence. Id. The court found that “the affidavit provided a sufficient nexus between
the defendant’s suspected criminal activity and his new address,” noting that “‘images of
child pornography are likely to be hoarded by persons interested in those materials in the
privacy of their homes.’” Id. (quoting United States v. Haymond, 672 F.3d 948, 959
4
Mr. Kilgore contends the affidavit lacked information which would establish whether
the prior conviction was stale. But our caselaw counters the argument that an undated
conviction for possession of child pornography cannot be used to support a search
warrant for child pornography. See United States v. Perrine, 518 F.3d 1196, 1205-06
(10th Cir. 2008) (citing cases).
5
(10th Cir. 2012); see also Perrine, 518 F.3d at 1206. Based on the foregoing, the district
court reasonably concluded that because Mr. Kilgore possessed child pornography on his
personal computer at his previous residence, it was likely he would have maintained that
material on his personal computer when he moved. Thus, the affidavit provided a
sufficient nexus between Mr. Kilgore’s suspected criminal activity and his new residence.
Viewing the totality of the evidence in a light most favorable to the government,
we are not persuaded that the district court erred in denying the motion to suppress.
Accordingly, we affirm.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
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