United States v. Davis , 313 F. App'x 672 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4084
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RALPH D. DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:07-cr-00254-TSE-1)
Submitted: January 15, 2009 Decided: February 27, 2009
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Chuck
Rosenburg, United States Attorney, Andrew McCormack, Special
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ralph D. Davis was indicted on one count of Receipt of
Child Pornography, in violation of 18 U.S.C. § 2252A(a)(2)
(2006) (“Count One”), one count of Possession of Child
Pornography, in violation of 18 U.S.C. § 2252A(a)(4)(B) (2006)
(“Count Two”), and one count of Possession of a Firearm by a
Convicted Felon, in violation of 18 U.S.C. § 922(g)(1) (2006)
(“Count Three”). Davis pled guilty to Count One, the district
court dismissed Count Two, and Davis was convicted by a jury on
Count Three. The district court sentenced Davis to 120 months’
imprisonment on Count One, to run concurrently with a
sixty-month sentence imposed for Count Three. On appeal, Davis
alleges that the district court erred in denying his motion to
suppress evidence seized in a search of his house conducted
pursuant to a warrant.
Davis first contends the affidavit supporting the
search warrant “contains misstatements which were intentionally
or recklessly made by the Agent to mislead the magistrate judge
into finding probable cause.” Where an affiant, in obtaining a
search warrant, included “‘a false statement knowingly and
intentionally, or with reckless disregard for the truth,’” and
the false statement was necessary to the probable cause finding,
“the warrant is void and the fruits of the search must be
suppressed.” United States v. Gary, 528 F.3d 324, 327 (4th Cir.
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2008) (quoting Franks v. Delaware, 438 U.S 154, 171-72 (1978)).
The defendant must provide affidavits or statements of witnesses
to support this showing, and must allege more than mere
negligence or mistake. United States v. Tate, 524 F.3d 449, 454
(4th Cir. 2008). “The burden of making the necessary showing is
thus a heavy one to bear.” Id. Whether the showing made by the
defendant is adequate to warrant a Franks hearing is a question
of law subject to de novo review. Id. at 455. As Davis failed
to show that the affiant knowingly and intentionally made any
false statements, this argument fails. Moreover, the district
court correctly denied Davis’ motion to suppress because
probable cause existed to search Davis’ home. See Illinois v.
Gates, 462 U.S. 213, 238 (defining probable cause as “a fair
probability that . . . evidence of a crime will be found in a
particular place”).
Davis asserts that the information supporting the
search warrant was stale. “A valid search warrant may issue
only upon allegations 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.” United States v. McCall, 740 F.2d 1331,
1335-36 (4th Cir. 1984) (internal quotation marks and citation
omitted). “The vitality of probable cause cannot be quantified
by simply counting the number of days between the occurrence of
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the facts supplied and the issuance of the affidavit.” Id. at
1336 (internal quotation marks and citation omitted).
Other circuits have found that child pornographers
keep their contraband for a long time; information a year old is
not stale as a matter of law in child pornography cases. United
States v. Newsom, 402 F.3d 780, 783 (7th Cir. 2005); see also
United States v. Lacy, 119 F.3d 742, 745 (9th Cir. 1997)
(upholding search warrant based on information ten months old
because “the [agent] explained that collectors and distributors
of child pornography value their sexually explicit materials
highly, ‘rarely if ever’ dispose of such material, and store it
‘for long periods’ in a secure place, typically in their
homes.”); United States v. Harvey, 2 F.3d 1318, 1322-23 (3d Cir.
1993) (concluding that a warrant was not based on stale
information, in part because those who collect child pornography
tend to keep it); United States v. Rabe, 848 F.2d 994, 996 (9th
Cir. 1988) (upholding warrant despite two-year delay between
original seizures and warrant because more recent letters
indicated that pornographic material was still being kept by the
defendant). Guided by this body of authority, we conclude the
district court properly found the warrant did not contain stale
information.
Finally, Davis argues that the evidence seized from
his home must be suppressed because the search occurred before
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daylight hours, in violation of Rule 41 of the Federal Rules of
Criminal Procedure. Rule 41(e)(2)(A)(ii), Fed. R. Crim. P.,
requires that a search warrant be executed during the daytime
unless otherwise authorized by the warrant. The Rule defines
daytime as “between 6:00 a.m. and 10:00 p.m. according to local
time.” Fed. R. Crim. P. 41(a)(2)(B). However, even if the
search occurred a few minutes before 6:00 a.m., suppression is
not warranted as a remedy for such non-constitutional
violations. See United States v. Hurwitz, 459 F.3d 463, 472 &
n.6 (4th Cir. 2006).
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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