United States v. Gregory Miller , 534 F. App'x 204 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4858
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GREGORY THOMAS MILLER,
Defendant-Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, Senior
District Judge. (6:11-cr-00004-NKM-1)
Submitted: June 17, 2013 Decided: July 23, 2013
Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY,
Charlottesville, Virginia, for Appellant. Timothy J. Heaphy,
United States Attorney, Roanoke, Virginia; Mythili Raman, Acting
Assistant Attorney General, Denis J. McInerney, Deputy Assistant
Attorney General, April A. Christine, Assistant United States
Attorney, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gregory Thomas Miller (“Miller”) appeals from the district
court’s denial of his motion to suppress certain evidence
obtained during a search conducted at a DUI checkpoint. For the
reasons set forth below, we affirm the judgment of the district
court.
I
Miller, a 57-year-old man, was riding as passenger in his
pickup truck, which was driven by L.A.J., a 16-year-old female
who was not related to him. When stopped at a sobriety
checkpoint on the Blue Ridge Parkway in Rockingham County,
Virginia, National Park Service Rangers found that L.A.J. had no
driver’s license or learner’s permit and that Miller’s driver’s
license was suspended. Officers then checked L.A.J.’s status and
learned that she had been recently reported missing to the
National Crime Information Center (“NCIC”) by both her mother,
who lived in Michigan, and by her father, who lived in Texas.
Officers observed a marijuana seed on the seat of Miller’s
truck and conducted a search of the vehicle. While searching
Miller’s truck, officers found marijuana, women’s underwear, a
bag of recently purchased sex toys, two glass pipes containing
marijuana residue, and a smoked marijuana cigarette. In
addition, officers found various electronic devices, including
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digital recording equipment, several memory cards, and a laptop
computer.
When questioned by officers, L.A.J. stated that she had
been driving with Miller from Michigan and that she had shared a
hotel room with him on two nights. Miller admitted that he took
L.A.J. from Michigan without her mother’s knowledge or
permission and stated that he was driving L.A.J. to Texas to
request that her father sign emancipation papers. Miller claimed
that he had previously purchased the sex toys for his adult
girlfriend who lived in Louisiana, though a receipt in the bag
showed that he had purchased the items only a few days earlier,
while on his way to Michigan from Louisiana to pick up L.A.J.
Officers looked at pictures on Miller’s digital camera and found
nothing of significance. When they requested Miller’s consent to
search his computer, Miller refused, stating that the computer
contained nude pictures of his girlfriend that she would not
want officers to see. Miller was placed under arrest, L.A.J. was
taken into custody, and Miller’s property was impounded.
Law enforcement officers obtained a warrant to search
Miller’s electronic devices. The search warrant that authorized
the search of the electronic devices was supported by an
affidavit authored by FBI Special Agent James Lamb, who was not
present at the initial stop. Agent Lamb was not aware that
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officers had viewed the pictures contained on Miller’s digital
camera at the time he filed the affidavit.
The affidavit stated that the intended search of Miller’s
electronic devices was for evidence of the crime of possession
of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(A)
and the separate crime of causing or encouraging acts rendering
children delinquent in violation of section 18.2-371 of the
Virginia Code. 1 In support of probable cause, the affidavit set
forth a number of statements, including that:
• Miller was a 57-year-old man traveling with L.A.J., a
16-year-old girl who was not related to him.
• L.A.J. was reported as an outstanding missing person
or runaway with NCIC.
• Miller admitted that he took L.A.J. from Michigan
without her mother’s permission.
• Miller’s vehicle contained a bag of recently
purchased sex toys.
1
Section 18.2-371 of the Code of Virginia provides
penalties for “[a]ny person . . . who (i) willfully contributes
to, encourages, or causes any act, omission, or condition which
renders a child delinquent, in need of services, in need of
supervision, or abused or neglected . . . , or (ii) engages in
consensual sexual intercourse with a child 15 or older not his
spouse, child, or grandchild.”
4
• L.A.J. initially denied that Miller took pictures of
her during their trip, but later acknowledged that
Miller had taken pictures of her.
• Miller refused to give officers consent to examine
his computer, claiming that the computer contained
“pornographic” pictures of his girlfriend.
• L.A.J.’s mother reported that she and L.A.J. formerly
lived in a trailer on Miller’s property for
approximately one year but moved after L.A.J.’s
mother found Miller sleeping in a bed with L.A.J. and
another 14-year-old minor, all of whom were fully
clothed.
In executing the search warrant on Miller’s laptop
computer, officers discovered, among other things, videos
depicting L.A.J. performing oral sex on Miller. He was
subsequently charged in the United States District Court for the
Western District of Virginia with seven counts of producing
child pornography in violation of 18 U.S.C. § 2251(a), one count
of transporting child pornography in violation of 18 U.S.C.
§ 2251(a)(1), one count of possession of child pornography in
violation of 18 U.S.C. § 2251(a)(4)(A) and 2252(b)(2), and one
count of possession of marijuana in violation of 21 U.S.C.
§ 844.
5
Miller moved to suppress the evidence found on his laptop
computer pursuant to the search warrant and requested a hearing
pursuant to Franks v. Delaware, 438 U.S. 154 (1978). He argued
that the affidavit supporting the warrant failed to establish
probable cause and contained material omissions, including the
reason that his vehicle was initially stopped and that officers
conducted a warrantless search of his electronic devices during
that stop. Miller also contended that the affidavit omitted his
statement that the sex toys were for his adult girlfriend in
Louisiana and that he was not referring to L.A.J. when he stated
that he had photographs of his girlfriend on his computer. Only
the Lamb affidavit and search warrant were attached to his
motion; Miller did not present an affidavit or any other
evidence to support his contentions.
The district court conducted evidentiary hearings and
denied both Miller’s motion to suppress and his request for a
Franks hearing. In denying the motion, the district court stated
that the affidavit “contains more than sufficient allegations to
allow the issuing magistrate to conclude that there was probable
cause to find that Miller’s computer and other devices contained
evidence of child pornography, or Miller’s contribution to the
delinquency of a minor, or both.” J.A. 217–18.
Miller subsequently filed an additional motion to suppress
and a second motion for a Franks hearing, arguing that the
6
sobriety checkpoint was an unreasonable warrantless stop and
that Agent Lamb’s affidavit contained additional omissions,
including that L.A.J.’s father had removed her as a runaway with
NCIC on the night of Miller’s arrest; that Miller had text
messages from L.A.J.’s father showing that he was aware she was
traveling with Miller; that officers improperly viewed images on
Miller’s digital camera during the initial stop; and officers
refused to return items seized from his vehicle. Miller also
argued that he never stated that the pictures of his girlfriend
on his computer were “pornographic.” Again, Miller did not
support his arguments with an affidavit or any other competent
evidence.
The district court held a second suppression hearing and
heard testimony from Miller and Ranger Miranda Cook, an officer
who was present at the initial stop. Miller testified that he
did not give officers consent to search his truck and that he
showed officers text messages from L.A.J.’s father demonstrating
that he knew she was traveling to Texas with Miller. Further,
Miller also testified that he stated to officers only that his
computer contained pictures that his adult girlfriend in
Louisiana would not want them to see, not that it contained
anything pornographic. Ranger Cook testified that at the time of
the initial stop, the NCIC report on L.A.J. showed outstanding
missing person reports from both of L.A.J.’s parents.
7
The district court then granted Miller’s request for a
Franks hearing “[o]ut of an abundance of caution,” J.A. 468, and
Miller withdrew his claim that the checkpoint stop was unlawful.
At the Franks hearing, Agent Lamb testified that, among other
things, he was not aware that Miller had told the arresting
officers that the sex toys were for his adult girlfriend, that
he was not aware that Miller or L.A.J. had communicated with
L.A.J.’s father, and that he was not aware that an arresting
officer had looked at pictures on Miller’s digital camera before
he applied for a warrant. The arresting officer, Ranger Cyr,
then testified that he was not aware of any text messages from
L.A.J.’s father, that Miller had informed him that the laptop
computer contained “inappropriate nude photographs” of his
girlfriend (though Miller did not use the term “pornographic”),
and that the pictures he viewed on Miller’s digital camera were
innocuous travel scenes. Miller then testified that L.A.J.’s
father knew that he was driving L.A.J. to Texas and that he
showed the arresting officers text messages from L.A.J.’s
father. Miller provided no evidence of the text messages from
L.A.J.’s father other than his own testimony.
After the hearing, the district court denied Miller’s
Franks motion and concluded that the omission of innocuous facts
by the arresting officers to Agent Lamb were not deliberate
misrepresentations. The district court then held that the
8
uncontroverted facts in Agent Lamb’s affidavit provided the
magistrate judge with a substantial basis for concluding that
probable cause existed to search Miller’s laptop computer for
evidence of both offenses: the federal child pornography crimes
as well as the Virginia crime of contributing to the delinquency
of a minor. The district court also concluded that Miller failed
to meet his burden of showing a Franks violation.
Miller then entered a conditional guilty plea to all counts
pursuant to a plea agreement, retaining his right to appeal the
district court’s rulings on his suppression motions. The
district court sentenced Miller to 300 months’ imprisonment
followed by a life term of supervised release.
Miller timely appealed. We have jurisdiction pursuant to 28
U.S.C. § 1291.
II
We review a district court’s findings of fact in ruling on
a motion to suppress for clear error and legal determinations de
novo. United States v. Lewis, 606 F.3d 193, 197 (4th Cir. 2010)
(motion to suppress); United States v. Gary, 528 F.3d 324, 327
(4th Cir. 2008) (Franks motion). We construe the evidence in the
light most favorable to the prevailing party below, in this
case, the government. United States v. Holness, 706 F.3d 579,
588 (4th Cir. 2013).
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III
Miller raises two issues on appeal. First, he argues that
the affidavit submitted by Agent Lamb did not provide the
magistrate judge with a sufficient basis to conclude that
probable cause existed for the issuance of a search warrant.
Second, Miller argues that the omissions and misstatements
included in Agent Lamb’s affidavit were made with a reckless
disregard for the truth, violating Franks and rendering the
search warrant invalid. We address each argument in turn.
A
Miller argues that the evidence presented in the affidavit
bears no connection to child pornography and, thus, failed to
establish probable cause to justify the search of his electronic
devices for child pornography.
In reviewing the validity of a search warrant, we consider
whether, under the totality of the circumstances, the issuing
judge had a substantial basis for concluding that there was
probable cause to issue the warrant. United States v. Grossman,
400 F.3d 212, 217 (4th Cir. 2005). Here, we have no trouble
concluding that Agent Lamb’s affidavit provided the magistrate
judge with a substantial basis to decide that probable cause
existed as to two crimes, possession of child pornography in
10
violation of 18 U.S.C. § 2252(a)(5)(A) and causing acts
rendering a child delinquent in violation of section 18.2-371 of
the Code of Virginia. Agent Lamb’s affidavit established that
Miller had driven from Louisiana to Michigan to pick up L.A.J.
and that on the way there he stopped and purchased sex toys.
Miller took L.A.J. without her mother’s knowledge or permission
and had thereafter shared hotel rooms with L.A.J. on at least
two nights. Her mother had previously witnessed Miller sharing a
bed with L.A.J. and suspected Miller of having an inappropriate
sexual relationship with her daughter. Miller also traveled with
digital recording devices, several memory cards, and a laptop
computer that he admitted contained inappropriate nude images of
his adult girlfriend that he did not want law enforcement
officers to see. L.A.J. also admitted to police that Miller had
taken pictures of her while on their trip.
Taken together, the above uncontroverted facts permit the
inference that Miller had an inappropriate sexual relationship
with L.A.J., that Miller had the capability of taking sexually
explicit photographs and videos of L.A.J., and that Miller
stored sexually explicit photographs or videos of other women he
had a sexual relationship with on his laptop computer, which was
available to L.A.J.
Agent Lamb’s affidavit thus sets forth uncontroverted facts
that established probable cause to search Miller’s electronic
11
devices and provided a substantial basis for the magistrate
judge to conclude that Miller’s electronic devices contained
evidence of possession of child pornography in violation of 18
U.S.C. § 2252A(a)(5)(A) or of violating section 18.2-371 of the
Code of Virginia. 2 The magistrate judge therefore had a
substantial basis upon which to conclude that probable cause
existed to conduct the search of Miller’s electronics and, thus,
to issue the search warrant. 3
B
Alternatively, Miller argues that Agent Lamb’s affidavit
could not establish probable cause, as it was based upon the
false claim that Miller said his computer contained
“pornographic” pictures of his girlfriend. Also, Agent Lamb’s
2
Furthermore, Miller took L.A.J. away from her home without
her parents’ knowledge or permission, causing two missing person
reports to be filed; Miller’s truck contained marijuana and
other drug paraphernalia; and Miller, with a suspended driver’s
license, permitted L.A.J., a minor with no driver’s license to
operate his vehicle upon a public highway.
3
In support of his arguments, Miller cites a recent Third
Circuit opinion, Virgin Islands v. John, 654 F.3d 412 (3d Cir.
2011). Miller’s reliance on John is misplaced, though, as the
facts of that case are easily distinguishable from those before
us. Among other things, in John, the Third Circuit concluded
that the affidavit failed to establish any link between the
defendant’s crime of molesting children at his place of work and
whether he might possess child pornography at his residence.
John, 654 F.3d at 419. In contrast, in this case, Agent Lamb set
forth a series of facts linking Miller with an underage girl,
sex toys, and digital recording equipment, all at the same time
and place, making John inapposite.
12
use of the generic term “girlfriend” in his affidavit implied
that Miller was referring to L.A.J., when, in fact, he was
referring to his adult girlfriend in Louisiana. Miller further
contends that several omissions from Agent Lamb’s affidavit
defeat the magistrate judge’s conclusion that probable cause
existed. Among other things, Miller argues that Agent Lamb’s
affidavit omitted that arresting officers found only innocuous
pictures on Miller’s camera, that Miller claimed the sex toys
were for his adult girlfriend in Louisiana, that one of the
missing person reports concerning L.A.J. was later removed, and
that Miller had sent and received text messages with L.A.J.’s
father. Taken together, Miller argues, these misstatements and
omissions by Agent Lamb violate Franks and require invalidation
of the search warrant and suppression of all evidence seized
during the search of Miller’s laptop computer and related
devices.
In Franks, the Supreme Court held that a “search warrant
must be voided and the fruits of the search excluded” if a
defendant establishes, by a preponderance of the evidence, that
the affidavit supporting that warrant included false statements
made “knowingly and intentionally, or with reckless disregard
for the truth” and that those false statements were “necessary
to the finding of probable cause” such that, “with the
affidavit’s false material set to one side, the affidavit’s
13
remaining content is insufficient to establish probable cause.”
Franks, 438 U.S. at 155–56.
Here, even excluding all controverted statements from Agent
Lamb’s affidavit and including the omissions that Miller
alleges, the affidavit would support the magistrate judge’s
finding of probable cause. Accepting Miller’s arguments, Agent
Lamb’s affidavit would still have included the facts that
(1) neither Miller nor L.A.J. had a valid driver’s license;
(2) L.A.J. was the subject of two outstanding missing person
reports at the time of Miller’s arrest; (3) L.A.J., a minor, was
traveling across the country with Miller, a 57-year-old man who
was not her relation; (4) Miller and L.A.J. shared a hotel room
on two nights, though Miller claimed that they slept in separate
beds; (5) Miller claimed to be taking L.A.J. from Michigan to
Texas, but actually took her in the opposite direction, to
Virginia; (6) Miller’s truck contained a bag of recently
purchased sex toys; (7) the truck contained marijuana and other
drug paraphernalia; (8) the truck contained a laptop computer,
digital recording devices, and numerous memory cards; (9) Miller
told officers that he did not want them to search his laptop
computer because it contained nude or inappropriate pictures of
his adult girlfriend; (10) L.A.J. admitted to officers that
Miller took pictures of her during their travels; and
(11) L.A.J.’s mother reported to officers that she was concerned
14
that Miller had an inappropriate sexual relationship with L.A.J.
Even including the additional information that officers searched
Miller’s camera and found no inappropriate pictures, the
magistrate judge would still have had a substantial basis for
finding probable cause that Miller had created or possessed
child pornography or had contributed to the delinquency of a
minor. Franks therefore does not require invalidation of the
search warrant or suppression of the fruits of the search of
Miller’s computer.
IV
For all the foregoing reasons, the judgment of the district
court is affirmed. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
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