United States v. Terry ( 2008 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0156p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 07-3757
v.
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BRENT TERRY, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 06-00091—Sandra S. Beckwith, Chief District Judge.
Argued: March 17, 2008
Decided and Filed: April 15, 2008
Before: BOGGS, Chief Judge; ROGERS, Circuit Judge; and SHADUR, District Judge.*
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COUNSEL
ARGUED: Richard W. Smith-Monahan, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Cincinnati, Ohio, for Appellant. Christopher K. Barnes, ASSISTANT UNITED STATES
ATTORNEY, Cincinnati, Ohio, for Appellee. ON BRIEF: Richard W. Smith-Monahan, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for Appellant. Jeb T. Terrien,
ASSISTANT UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellee.
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OPINION
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BOGGS, Chief Judge. Brent Terry entered a conditional guilty plea to one count of
possession of images of minors engaged in sexually explicit conduct, in violation of
18 U.S.C. § 2252(a)(4)(B), reserving his right to appeal the district court’s denial of his motion to
suppress. Terry argues that the search warrant permitting federal agents to search his home was not
grounded upon probable cause, and that the search therefore violated the Fourth Amendment. For
the following reasons, we affirm the judgment of the district court.
*
The Honorable Milton I. Shadur, United States District Judge for the Northern District of Illinois, sitting by
designation.
1
No. 07-3757 United States v. Terry Page 2
I
The facts of this case are undisputed. In the early morning hours of October 14, 2004,
Internet service provider AOL (formerly known as America Online) intercepted two e-mail
messages containing a known child pornography image. These messages were sent from the e-mail
address “skippie4u@aol.com” to an unknown recipient (or recipients) at 2:35 a.m. and again at 2:36
a.m. The following day, AOL forwarded the image, along with the screen name, e-mail address, and
zip code of the user, to the National Center for Missing and Exploited Children (NCMEC), which
in turn forwarded the information to Immigration and Customs Enforcement (ICE) officers. Upon
issuance of a summons, AOL provided ICE more information on the “skippie4u” screen name,
which revealed that “skippie4u” was one of three screen names assigned to a master AOL account
registered to Roy Terry, who lived at 10 Township Avenue in Cincinnati, Ohio. Defendant Brent
Terry (Roy’s son) was the registered user of the “skippie4u” screen name. ICE confirmed through
the Postal Service that both Roy and Brent Terry received mail at 10 Township Avenue.
Based on this information, ICE obtained a search warrant for the Township Avenue address
and executed it on March 21, 2005. The record does not reveal what, if anything, was searched
and/or seized from the Township Avenue residence. It appears, however, that ICE was most
interested in Brent Terry, not his father, because the e-mail account used to send the image was
registered specifically to the younger Terry. During the search, ICE reported that Roy Terry
was interviewed at which time he stated that he has an Internet account through
America Online (AOL), which is utilized, by himself, Brenda TERRY and Brent
TERRY. Roy TERRY stated that Brent TERRY lives at 16 Walnut St. Cincinnati,
OH and has access to the aforementioned AOL account from that address. Roy
TERRY also stated that Brent TERRY has a computer that he uses at that address to
access the account. Furthermore, Roy TERRY informed [ICE] that Brent TERRY
utilizes the screen name Skippie 4U when accessing the aforementioned AOL
account from his address 16 Walnut St. Cincinnati, OH.
Application and Affidavit for Search Warrant at 8 (capitalization in original). Roy also told ICE that
Brent had lived at the Walnut Street address, which he rented from Roy, for approximately one and
a half years. Thus, he was living in the Walnut Street residence at the time his e-mail account was
used to send the illegal image.
ICE then obtained the search warrant for 16 Walnut Street that is the subject of this appeal.
That warrant was executed on the same day, and agents recovered a laptop computer, three hard
drives, and various external media from the residence, which were found to contain a total of 123
images and eight videos of minors engaged in sexually explicit conduct. Terry later moved to
suppress this evidence, which motion the district court denied. Thereafter Terry entered a
conditional guilty plea pursuant to Federal Rule of Criminal Procedure 11(a)(2) and appealed the
denial of his suppression motion to this court.
II
“When reviewing the denial of a motion to suppress, we review the district court’s findings
of fact for clear error and its conclusions of law de novo.” United States v. Foster, 376 F.3d 577,
583 (6th Cir. 2004) (quoting United States v. Hurst, 228 F.3d 751, 756 (6th Cir. 2000)). However,
when judging the sufficiency of an affidavit to establish probable cause in support of a search
warrant, the Supreme Court has “repeatedly said that after-the-fact scrutiny . . . should not take the
form of de novo review. . . . Rather, reviewing courts are to accord the magistrate’s determination
‘great deference.’” United States v. Allen, 211 F.3d 970, 973 (6th Cir. 2000) (en banc) (quoting
Illinois v. Gates, 462 U.S. 213, 236 (1983)). This means that “so long as the magistrate had a
No. 07-3757 United States v. Terry Page 3
‘substantial basis for . . . conclud[ing]’ that a search would uncover evidence of wrongdoing, the
Fourth Amendment requires no more.” Ibid. (quoting Gates, 462 U.S. at 236). Accordingly, “[t]his
circuit has long held that an issuing magistrate’s discretion should only be reversed if it was
arbitrarily exercised.” Ibid.
In deciding whether to issue a search warrant, the Fourth Amendment requires “the issuing
magistrate . . . simply to make a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or
evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238; see also United
States v. Smith, 510 F.3d 641, 652 (6th Cir. 2007) (referring to this as a ‘totality of the
circumstances’ approach). A “fair probability” is not interpreted as connoting any particular
mathematical degree of probability. See Maryland v. Pringle, 540 U.S. 366, 371 (2003) (“The
probable-cause standard is incapable of precise definition or quantification into percentages because
it deals with probabilities and depends on the totality of the circumstances. . . . Finely tuned
standards such as proof beyond a reasonable doubt or by a preponderance of the evidence . . . have
no place in the probable-cause decision.”) (internal quotation omitted).
Terry asserts that that there was an insufficient nexus to connect the intercepted child
pornography image to his home computer, arguing that the AOL e-mail account used to send the
illicit image could have been accessed from any computer with an Internet connection. We certainly
agree that to establish probable cause to support a search warrant, there must be some nexus between
the illegal activity suspected and the property to be searched. See United States v. McPhearson, 469
F.3d 518 (6th Cir. 2006) (mere fact that man arrested for non-drug offense had drugs on his person
did not establish the requisite nexus to search his home for drugs); United States v. Carpenter, 360
F.3d 591, 594 (6th Cir. 2004) (en banc) (fact that marijuana was found growing near a residence,
by itself, “f[e]ll short of establishing the required nexus between the . . . residence and evidence of
marijuana manufacturing”). We do not agree, however, that such a nexus was lacking in this case.
The government’s affidavit established that (1) the AOL e-mail account belonging to the
“skippie4u” screen name sent two e-mail messages at approximately 2:30 a.m. containing a known
child pornography image; (2) Brent Terry was the registered user of the “skippie4u” screen name;
(3) Brent Terry lived at 16 Walnut Street at the time the e-mail messages were sent; and (4) Brent
Terry had a computer at that address through which he accessed the “skippie4u” e-mail account used
to send the messages. It requires no great leap of logic to conclude that the computer in Terry’s
home was probably used to send the intercepted messages. Given that the probable cause standard
deals with “the factual and practical considerations of everyday life on which reasonable and prudent
men, not legal technicians, act,” Gates, 462 U.S. at 231 (quoting Brinegar v. United States, 338 U.S.
160, 175 (1949)), the district court did not err in concluding that “as a matter of plain common sense,
if . . . a pornographic image has originated or emanated from a particular individual’s email account,
it logically follows that the image is likely to be found on that individual’s computer or on storage
media associated with the computer.” Dist. Ct. Order at 7. There are other possibilities, of
course—a hacker illicitly using Terry’s e-mail account, for example—but probable cause does not
require “near certainty,” only a “fair probability.” See United States v. Martin, 289 F.3d 392, 400
(6th Cir. 2002) (“Although innocent explanations for some or all of these facts may exist, this
possibility does not render the . . . determination of probable cause invalid.”).1
In a similar case, this court upheld probable cause to search a home where the defendant had
purchased subscriptions to known child pornography websites, but where it was unknown precisely
which computer he had used to access those sites. See United States v. Wagers, 452 F.3d 534 (6th
1
Though not central to our analysis on this point, the fact that the images were sent at approximately 2:30 in
the morning further reduces the likelihood that a computer other than the one in Terry’s home was used.
No. 07-3757 United States v. Terry Page 4
Cir. 2006). In Wagers, the defendant used a business-based checking card to subscribe to two
websites that made available both legal and illegal pornography. He argued that since “his
subscriptions were connected only to his business office, not to his home,” there was “nothing . . .
[to] connect[] the residence to the alleged child pornography offenses.” Id. at 539. We rejected this
“feeble” argument, observing that the affidavit “aver[red] that an [Internet Protocol (IP)] address
assigned by Insight [Communications] . . . was used to purchase both memberships” and that the
defendant “used Insight at his home but not his office . . . .” Ibid. Logically, we concluded that the
defendant’s “home would be well within the ambit of a properly issued search warrant.” Ibid. We
further noted that “[e]ven if the home were only one of two locations—home and office—served by
Insight, there would be sufficient evidence to support probable cause.” Ibid.
Terry attempts to distinguish Wagers on the ground that, unlike in Wagers, there was no IP
information either to tie his computer to the e-mail messages, or even to limit the possible number
of computers that could have been used to send the message. But the Wagers opinion did not hold
that IP information was an indispensable prerequisite to obtaining a search warrant in a case
involving Internet-based child pornography, only that such information contributed to the totality
of the probable-cause determination. Indeed, Wagers favorably cited several cases that arguably
involved even less evidence of probable cause than is presented here. See id. at 540, 543 (citing
United States v. Gourde, 440 F.3d 1065 (9th Cir. 2006) (en banc); United States v. Martin, 426 F.3d
68 (2d Cir. 2005); and United States v. Froman, 355 F.3d 882 (5th Cir. 2004)). All of the cited cases
involved defendants who subscribed to websites that were advertised as child pornography sites but
contained both legal and illegal material, and in which the government’s affidavit supporting a
search warrant never stated whether the individuals had actually downloaded any of the illicit
materials. Nevertheless, the courts universally found that the probable cause threshold had been
satisfied because the defendants had purchased access to child pornography. In this case, although
there was no evidence that Terry belonged to such a website, there was evidence that Terry had
actually possessed (as opposed to merely having had access to) child pornography. While any IP
or other information that could have more specifically tied Terry’s home computer to the e-mail
messages would certainly have been welcome, we are satisfied that the use of Terry’s personal e-
mail account in the wee hours of the morning, combined with information that Terry used his home
computer to access that account, established at least a “fair probability” that the computer used to
send the messages was, in fact, the one in Terry’s home. Ergo,2there was at least a fair probability
that the illicit image (or similar images) would be found there.
We are somewhat troubled by the fact that the content of the incriminating e-mail messages
was apparently not preserved.3 It is thus impossible to know the context in which the image was
sent; Terry argues that he may have merely been replying to some unsolicited child pornography4
spam to request that no further such images be sent to him. Although this is theoretically possible,
it is not enough for Terry simply to speculate about hypothetical “false-positive” scenarios. He
presented no evidence at the suppression hearing about the actual occurrence of such “spam-
2
We do not believe that the passage of five months between the sending of the intercepted e-mail messages and
the execution of the warrant changes the probable cause calculus much, if at all. Images typically persist in some form
on a computer hard drive even after the images have been deleted and, as ICE stated in its affidavit, such evidence can
often be recovered by forensic examiners. See United States v. Lacy, 119 F.3d 742, 746 (9th Cir. 1997) (holding that
the nature of the crime “provided good reason to believe the computerized visual depictions downloaded by Lacy would
be present in his apartment when the search was conducted ten months later”) (internal quotation omitted).
3
The record does not reveal whether this failure was the fault of AOL, the NCMEC, or ICE.
4
Whether an image that is received via an e-mail message is also included in an outgoing reply would depend
on various factors, including the e-mail client settings, whether the image was included within the body of the incoming
message or as an attachment, the operation of any filtering software, etc.
No. 07-3757 United States v. Terry Page 5
rejection” transmission of child porn, either in his case or in society generally. Since a probable
cause finding does not require a preponderance of the evidence, in order to undermine the
magistrate’s finding, the likelihood of an innocent explanation must (at the very least) be greater
than the likelihood of a guilty one. For example, this court has indicated that—given studies
demonstrating that a sizable percentage of United States currency in circulation is tainted with a
detectable level of cocaine residue—a canine alert to currency, standing alone, will likely not
establish probable cause in a forfeiture action. United States v. $5,000.00 in U.S. Currency, 40 F.3d
846, 849-50 (6th Cir. 1994).5 In the context of automobiles, however, the rate of false positives is
significantly lower, and an alert from a trained, reliable canine will alone establish probable cause
to search the vehicle. United States v. Diaz, 25 F.3d 392, 393-94, 396 (6th Cir. 1994). Although
we recognize that the government ultimately has the burden of demonstrating probable cause, absent
any evidence that innocent persons frequently receive and reply to unsolicited child pornography
spam (and in a way that would produce the computer traces in this case), this court cannot say that
the magistrate judge arbitrarily exercised his discretion in issuing a search warrant for Terry’s home.
III
For the foregoing reasons, we AFFIRM the judgment of the district court.
5
More recent case law has called this assumption into question. See United States v. Funds in Amount of Thirty
Thousand Six Hundred Seventy Dollars, 403 F.3d 448, 459 (7th Cir. 2005) (skeptically approaching the “currency
contamination theory” and citing newer research indicating that “it is likely that trained cocaine detection dogs will alert
to currency only if it has been exposed to large amounts of illicit cocaine within the very recent past”).