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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-13362
Non-Argument Calendar
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D.C. Docket No. 7:16-cr-00229-LSC-HNJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRETT WILLIAM KIRKHAM,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(April 16, 2018)
Before MARCUS, WILLIAM PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
Brett Kirkham appeals from his convictions for enticement of a minor to
engage in prostitution, 18 U.S.C. § 2422(b), and possession of child pornography,
18 U.S.C. § 2252A(a)(5)(B). He argues that the district court erred in denying his
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motion to suppress evidence obtained pursuant to a search warrant, because the
affidavit in support of the warrant was based on stale information. After thorough
review, we affirm.
“A district court’s denial of a motion to suppress is a mixed question of law
and fact.” United States v. Frank,
599 F.3d 1221, 1228 (11th Cir. 2010). We
review factual findings for clear error, but review the district court’s application of
the law to those facts de novo.
Id. We also review de novo a district court’s ruling
on probable cause. United States v. Butler,
102 F.3d 1191, 1199 (11th Cir. 1997).
“Probable cause to support a search warrant exists when the totality of the
circumstances allow a conclusion that there is a fair probability of finding
contraband or evidence at a particular location.” United States v. Brundidge,
170
F.3d 1350, 1352 (11th Cir. 1999). However, “the information supporting the
government’s application for a warrant must show that probable cause exists at the
time the warrant issues.” United States v. Lopez,
649 F.3d 1222, 1246 (11th Cir.
2011) (quotations omitted). In deciding if supporting information is “stale,” we do
not apply arbitrary time limits, but consider the particular facts of the case, like the
maturity of the information, the nature of the suspected crime, the habits of the
accused, the character of the items sought, and the nature and function of the area
to be searched. United States v. Harris,
20 F.3d 445, 450 (11th Cir. 1994).
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The “good-faith exception” prevents the suppression of “reliable physical
evidence seized by officers reasonably relying on a warrant issued by a detached
and neutral magistrate.” United States v. Leon,
468 U.S. 897, 913 (1984). The
good faith exception does not apply, however, where the underlying affidavit is “so
lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable.”
Id. at 923 (quotations omitted).
Here, the district court did not err in denying Kirkham’s motion to suppress.
As the record reflects, the evidence in question consisted of nude photographs of a
minor victim that were taken at some point during the four years before the search
warrants were issued. The evidence was obtained pursuant to two search warrants
that local law enforcement obtained in June 2016, for Kirkham’s home, computers,
cell phones, and hard drives, because they had evidence that Kirkham, a school
official, violated Ala. Code § 13A-6-81, by having a sexual relationship with a
student under the age of 19. At the hearing on the motion, it was disclosed that
sexual activity between the victim and Kirkham began when the victim was 16
years old and occurred between January 1, 2014, and January 1, 2016. It was also
revealed that the photographs began to be taken when the victim was 14,
presumably in or about 2012. Thus, when the first affidavit was signed on June 14,
2016, the information was at least six months old at that time.
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We recognize that the affidavit provided no clear time frame to establish
probable cause that evidence of Kirkham’s relationship with the victim still existed
when the warrant was obtained. However, even if the affidavit was insufficient to
establish probable cause, we cannot say that the officers were “entirely
unreasonable” in believing that it was sufficient. The affidavit provided that the
victim had sent nude photographs of himself to Kirkham “since he was 14 years
old,” suggesting -- although not precisely saying -- that sending nude photographs
was an ongoing occurrence. That implication was bolstered by the statement that
the victim had “observed numerous pornographic images” of himself on
Kirkham’s computer. Additionally, the affidavit said that Kirkham and the victim
had been in a sexual relationship “over the last two years” and had engaged in
sexual intercourse several times. On this record, it would not be unreasonable,
much less “entirely unreasonable” for an officer to believe that a man who received
numerous nude photographs from a boy with whom he had a two-year sexual
relationship would still possess those photographs, even if the relationship had
ended. Thus, the district court did not err in concluding that the good-faith
exception applied, or in denying the motion to suppress.
AFFIRMED.
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