United States v. Burgess , 357 F. App'x 974 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 23, 2009
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 09-3131
v.
(D.C. No. 2:08-CR-20062-CM-1)
(D. Kan.)
CHANNING BURGESS,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before MURPHY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
GORSUCH, Circuit Judge.
Following an investigation by Immigration and Customs Enforcement
(“ICE”) agents, Channing Burgess was indicted on one count of receiving child
pornography, in violation of 18 U.S.C. § 2252(a)(2), and one count of possessing
child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). When the district
court denied his pretrial motion to suppress incriminating evidence ICE agents
recovered in a search of his home computer, Mr. Burgess pled guilty and was
*
This order and judgment is not binding precedent except under the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.
sentenced, though he reserved the right to appeal the district court’s suppression
ruling to us. Mr. Burgess does just that now.
***
This case arose out of an investigation by ICE agents into “Sexy Angels,” a
member-restricted Internet website that provided access to child pornography, and
at least according to Mr. Burgess, adult pornography as well. To purchase a
subscription to the site, users had to provide personally identifiable information
and send payments through PayPal, an online money transfer service. ICE agents
obtained records from PayPal that identified various customers who had
purchased access to the “Sexy Angels” site. One of these customers appeared to
be Mr. Burgess.
After receiving this information, ICE Special Agent James D. Kanatzar
obtained a warrant to search Mr. Burgess’s home for evidence of child
pornography. In requesting the search warrant, Agent Kanatzar submitted a 34-
page affidavit detailing ICE’s investigation and why he thought child
pornography would be found in the proposed search. The warrant was approved
by a neutral magistrate, and the subsequent search, conducted by Agent Kanatzar
and others, revealed child pornography on Mr. Burgess’s home computer.
After Mr. Burgess was arrested and indicted, he moved to suppress the
incriminating evidence found by ICE agents. Mr. Burgess argued that the
affidavit supporting the warrant failed to establish probable cause to search his
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home. Following an examination of the parties’ briefs on the probable cause
question, the district court asked for supplemental briefing. The court asked the
parties to address whether, even if the affidavit failed to supply probable cause,
the “good faith” rule announced in United States v. Leon, 468 U.S. 897 (1984),
precluded the court from suppressing the evidence in question.
In Leon, the Supreme Court held that evidence recovered pursuant to a
legally deficient warrant is still admissible in criminal proceedings so long as the
warrant was issued by a neutral magistrate and the executing officers’ reliance on
the warrant was objectively reasonable. Id. at 913. The Court, however,
recognized certain circumstances when Leon’s “good faith” rule should not apply:
first, when “the issuing magistrate was misled by an affidavit containing false
information or information that the affiant would have known was false if not for
‘his reckless disregard of the truth’”; second, when the “‘issuing magistrate
wholly abandon[s her] judicial role’”; third, “when the affidavit in support of the
warrant is ‘so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable’”; and fourth, “when a warrant is so facially
deficient that the executing officer could not reasonably believe it was valid.”
United States v. Danhauer, 229 F.3d 1002, 1007 (10th Cir. 2000) (quoting Leon,
468 U.S. at 923) (alteration in original).
Before the district court, Mr. Burgess sought to invoke the first and third of
these exceptions to the Leon rule. With respect to the first exception, Mr.
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Burgess argued that Agent Kanatzar “intentionally or recklessly” failed to include
in his affidavit “critical” information showing that, at the time Mr. Burgess
subscribed to the “Sexy Angels” website, he was aware that it contained child,
rather than adult, pornography. R. Vol. I at 101, 103. Mr. Burgess noted that the
“Sexy Angels” website had a “banner page” viewers saw before they could
provide any financial or personal information to gain access to the site. He
emphasized that this banner page, while changing from week to week, suggested
“beyond any question” that child (not just adult) pornography would be made
available to subscribers. R. Vol. II at 40. 1 He noted that the banner page even
showed images of child pornography to entice viewers to subscribe to the website.
And, he emphasized, Agent Kanatzar knew all these facts, yet did not include
them in his warrant application. The agent’s omission of facts about the banner
page, Mr. Burgess submitted, “was intentional [and] [t]his alone is enough to
establish a lack of good faith.” R. Vol. I at 103.
With respect to the third exception to the Leon rule, Mr. Burgess argued
that the warrant was “wholly lacking in ‘indicia of probable cause because it
failed to establish any connection’” between his home and the computer that was
1
In its brief to the district court, the government included the following
“banner page” associated with the “Sexy Angels” website: “This is what you’ve
been looking for[, for] so long! . . . In our Lolita paradise your sweet dreams will
come true. These cute innocent angels are posing for you solo and in couples.
They are ready to show you all their secret desires, so tight, so beautiful. Fly to
paradise of orgasm with our little angels.” R. Vol. I. at 73.
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used to subscribe to the “Sexy Angels” website. R. Vol. I. at 104 (quoting United
States v. Gonzales, 399 F.3d 1225, 1229 (10th Cir. 2005)). While ICE agents
knew the specific Internet Protocol (“IP”) address associated with the questioned
subscription to “Sexy Angels,” Mr. Burgess contended that they were unable to
connect this IP address to his home computer. Accordingly, in his view, the
affidavit failed to provide probable cause that child pornography would be found
in his home.
The district court denied the motion to suppress, holding that, at a
minimum, Leon’s “good faith” rule mandated its result. With respect to Mr.
Burgess’s argument under Leon’s first exception, the district court found that,
while Agent Kanatzar “may have participated in the conscious decision to omit
the information” regarding the banner page from the warrant application, “it does
not follow that [he] intentionally or recklessly misled the magistrate judge.” R.
Vol. II. at 58. Instead, the evidence before the district court suggested that Agent
Kanatzar omitted the banner page information because he thought that his 34-page
affidavit already contained sufficient information to suggest that Mr. Burgess
knew he was accessing child pornography when he subscribed to the “Sexy
Angels” website. While the district court expressed doubt about the agent’s
assessment on this score, it noted that the officer’s explanation did not suggest an
intentional or reckless effort to hide information from the magistrate in order to
secure a warrant. To the contrary, the district court emphasized, including
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information about the banner page “would appear to only have strengthened the
application, and in this case . . . , likely supported a probable cause finding.” R.
Vol. II. at 58. With respect to Mr. Burgess’s argument under the third exception
to the Leon rule, the district court found that “the affidavit established a
substantial nexus between the place to be searched and the suspected criminal
activity” and thus “the executing officer’s reliance on the warrant was objectively
reasonable.” R. Vol. II. at 59.
***
Before us, Mr. Burgess has, understandably, chosen not to appeal his
argument under the first exception to the Leon rule. Such a challenge, after all,
would implicate the district court’s finding of fact that the ICE agent who
prepared the warrant application did not “intentionally or recklessly” mislead the
magistrate. We may reverse such a factual finding only if it is clearly erroneous,
see Danhauer, 229 F.3d at 1005, and there appears to be no basis for such a
conclusion in this case. As the district court explained, all the facts in this record
suggest Agent Kanatzar omitted the information about the banner page because he
thought (rightly or wrongly) that the affidavit was already sufficient to establish
that Mr. Burgess knew he was accessing child pornography. Neither, as the
district court also explained, did the agent have any apparent incentive to hide the
information about the banner page given that it would have strengthened, not
diminished, the government’s case for probable cause.
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Instead, Mr. Burgess focuses his appeal on the district court’s ruling on the
third exception to the Leon rule, renewing his argument that Agent Kanatzar’s
affidavit lacked any evidence connecting his computer to the “Sexy Angels”
website, and thus that no reasonable officer could have relied upon it. Because
this argument is a purely legal one, turning on uncontested facts, we review the
district court’s ruling de novo. See Danhauer, 229 F.3d at 1005. In determining
whether the third exception to Leon’s “good faith” rule pertains, our inquiry “is
confined to the objectively ascertainable question whether a reasonably well
trained officer would have known that the search was illegal despite the
magistrate’s authorization.” 468 U.S. at 922 n.23.
With these standards in mind, we agree with the district court that the
affidavit supporting the warrant supplied a sufficient nexus between Mr.
Burgess’s home and the “Sexy Angels” website such that a reasonable officer
could have reasonably relied upon it. The affidavit stated that transaction logs
obtained from PayPal showed that Mr. Burgess had purchased a subscription to
the “Sexy Angels” website on December 18, 2006 from a specific Internet
Protocol (“IP”) address. In connection with that transaction, PayPal records
indicated that Mr. Burgess provided his full name, home address, telephone
number, and an email address. The affidavit also described how ICE agents
sought records from Yahoo Inc., the company through which the email address
was issued. This search confirmed that the email address provided to PayPal
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belonged to Mr. Burgess, and the address and phone number associated with that
email account matched the information Mr. Burgess had provided to PayPal on
December 18, 2006. The affidavit also described how agents further confirmed
Mr. Burgess’s address by running a credit history check on him and by obtaining
his address from the Kansas Department of Revenue, Driver’s License Bureau.
While ICE agents were unable to determine which computer was assigned the IP
address used on December 18, 2006 to purchase the subscription to “Sexy
Angels,” the affidavit indicated that the agents were able to determine that this IP
address belonged to Internet Service Provider, Sunflower Broadband, whose
records revealed that Mr. Burgess had been a customer since March 2005.
This case does not involve the type of “bare bones” affidavit of which the
Court in Leon disapproved. See id. at 923 n.24, 926; see also United States v.
McPhearson, 469 F.3d 518, 526 (6th Cir. 2006) (“A bare bones affidavit is one
that merely states suspicions, beliefs, or conclusions, without providing some
underlying factual circumstances regarding the veracity, reliability, and basis of
knowledge.”) (quotation marks omitted). The affidavit here is not devoid of facts
linking Mr. Burgess’s home to the “Sexy Angels” website, and therefore we
cannot consider the executing officer’s reliance on the warrant to be “entirely
unreasonable.” Leon, 468 U.S. at 923. We agree with the district court that the
“good faith” rule applies, and affirm the district court’s denial of Mr. Burgess’s
motion to suppress.
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While this would seem to be the end of this appeal, in his reply brief and at
oral argument, Mr. Burgess sought to raise a new argument under the third
exception to the Leon rule. Now, he seemed to argue that the warrant did not
contain sufficient information to suggest to a reasonable officer that Mr. Burgess
knew he was accessing child pornography, at least to the extent that Agent
Kanatzar’s affidavit failed to include the “critical” information about the “banner
page[].” R. Vol. I at 101. 2 Mr. Burgess did not, however, pursue this argument
either before the district court, or in his opening brief on appeal. 3 And a party’s
2
We do not understand Mr. Burgess to suggest that the warrant would
have been insufficient even if the affidavit had included information about the
banner page. After all, throughout the district court proceedings Mr. Burgess
represented that the banner page information was “critical” to the question of
probable cause and good faith because it informed subscribers that they were
paying to access child pornography. In response to the government’s
representation that the content of the banner page changed from week to week,
Mr. Burgess represented to the district court that “even if the banner pages
changed,” they changed only from one depiction of child pornography to a
different depiction of child pornography, and this “wouldn’t change the fact that
the banner page[] disclosed beyond any question prior to the active subscription
what someone was subscribing to.” R. Vol. II at 40.
3
The closest Mr. Burgess came to raising this issue was in two fleeting
sentences at the end of his opening appellate brief where he stated: “The warrant
application must establish there are items subject to seizure due to their
relationship to a crime, and that the items subject to seizure are located in the
place to be searched. Even if the good faith exception can be applied to the
second part of the inquiry, it cannot be applied to the first.” Opening Br. at 22.
Plainly, these two sentences do not clearly raise the issue he now seeks to pursue,
and “we routinely have declined to consider arguments that are not raised, or are
inadequately presented, in an appellant’s opening brief.” Bronson v. Swensen,
500 F.3d 1099, 1104 (10th Cir. 2007).
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failure to present an argument in an opening brief alone generally precludes our
review. See, e.g., Bronson, 500 F.3d at 1104.
But even if we could overlook this problem, the fact that Mr. Burgess did
not pursue this argument before the district court means that, at best, we could
review it only for plain error. See, e.g., United States v. Charles, 576 F.3d 1060,
1065-66 (10th Cir. 2009). No such error exists here for at least two reasons.
First, it is uncontested that (1) the same ICE agent (Agent Kanatzar)
prepared and executed the warrant, and (2) this agent knew about the contents of
the banner page, even though he failed to mention them in his warrant
application. Under at least some existing case law, no more is required to support
a Leon “good faith” finding. As the Eighth Circuit has explained its view,
“[w]hen [a court] assess[es] the objective reasonableness of the officers who
executed a warrant,” to determine whether the third exception to the Leon rule
applies, it must examine not just the content of the warrant application but also
“look to the totality of the circumstances, including any information known to the
officers but not presented to the issuing judge.” United States v. Guzman, 507
F.3d 681, 685 (8th Cir. 2007) (quotation marks omitted); cf. United States v.
Perry, 181 F. App’x 750, 753 (10th Cir. 2006) (unpublished). But see United
States v. Hove, 848 F.2d 137, 140 (9th Cir. 1988). To be sure, we have no
published opinion announcing such a holding and the question remains an open
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one in our circuit. But it is precisely this fact that precludes us from finding any
plain error in the district court’s disposition.
Second, Mr. Burgess does not dispute either that (1) the officer who
prepared and executed the challenged search warrant knew about the banner page,
or (2) the banner page showed that he knew he was accessing child pornography
when he subscribed to the “Sexy Angels” website. His new argument is only
about whether the warrant application included facts necessary to support
probable cause, not whether such facts existed. Because sufficient evidence did
exist to support the search, even under Mr. Burgess’s view of the case, we fail to
see how the omission of particular facts from the warrant application affected Mr.
Burgess’s substantial rights or “the integrity, fairness, or public reputation of
judicial proceedings.” Charles, 576 F.3d at 1066.
***
The judgment of the district court is affirmed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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