United States v. Timmy Reichling , 781 F.3d 883 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2941
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TIMMY J. REICHLING,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:13-cr-00126-bbc-1 — Barbara B. Crabb, Judge.
____________________
ARGUED FEBRUARY 10, 2015 — DECIDED MARCH 27, 2015
____________________
Before POSNER, MANION, and TINDER, Circuit Judges.
TINDER, Circuit Judge. Defendant-Appellant Timmy
Reichling pleaded guilty to one count of sexual exploitation
of a child, 18 U.S.C. § 2251(a), which charged Reichling with
producing “a visual depiction of [a minor] engaged in sex-
ually explicit conduct onto a Maxwell VHS tape.” Reichling
appeals the denial of his motions to suppress, having re-
served the right to do so in his plea agreement. His appeal
raises the issue of whether a search warrant affidavit detail-
2 No. 14-2941
ing a largely online relationship between Reichling and a
minor victim established probable cause to seize digital and
non-digital storage devices—including the aforementioned
VHS tape—found at Reichling’s residences. We affirm.
I. BACKGROUND
At issue is the August 20, 2013 affidavit used to support
search warrants of Reichling’s parents’ home in Darlington,
Wisconsin, and a trailer on an adjacent property. The affida-
vit, signed by a sergeant with the Darlington Police Depart-
ment, sets forth the following facts: a 14-year-old female vic-
tim and an individual who claimed to be the victim’s age
and named, “Nathan Solman,” began an online Facebook
relationship in July 2010; between August 2010 and July
2012, the victim sent “Nathan Solman” in excess of 300 “na-
ked pictures of herself in varied sexual positions” from her
cell phone; and when she tried to stop sending such pictures,
“Nathan Solman” threatened to show the pictures he al-
ready possessed to others if she stopped. The internet proto-
col address associated with the Facebook account of “Na-
than Solman” was linked the residence of Reichling’s par-
ents in Darlington, Wisconsin.
According to the search warrant affidavit, in July 2012,
the victim met “Nathan Solman” for the first time in the
backyard of her residence and he appeared to be much older
than the victim, with a physical description resembling
Reichling. The victim reported that this encounter lasted on-
ly a few minutes because her stepfather came outside and
“Nathan Solman” quickly left the area. The affidavit also
quotes a series of unwanted, threatening, and harassing text
messages sent to the victim from March 2013 through June
2013. These text messages included details indicating that
No. 14-2941 3
the sender knew the victim and was watching her. Accord-
ing to the affidavit, phone records showed that these text
messages were sent from a cellular telephone number regis-
tered to Reichling.
Through information gathered from various sources, the
affidavit indicates that Reichling either lived in his parent’s
residence or in a trailer on an adjacent property owned by
Reichling’s brother. According to the affidavit, Reichling
was a registered sex offender, having been convicted of sec-
ond-degree sexual assault of a 17-year-old female in Green
County, Wisconsin, in 1993. Reichling was discharged from
probation for this offense on April 1, 2010, approximately
four months before “Nathan Solman” began his Facebook
relationship with the victim described above.
On the basis of this affidavit, a Wisconsin circuit court
judge issued one search warrant for Reichling’s parents’ res-
idence and one warrant for the adjacent trailer, with both
warrants authorizing the seizure of the following: “[i]mages,
photographs, videotapes or other recordings or visual depic-
tions representing the possible exploitation, sexual assault
and/or enticement of children”; “[a]ll computers and com-
puter hardware devices,” including desktops, laptops, cell
phones, and any type of camera; and “[i]nternal and periph-
eral digital/electronic storage devices,” including “hard
drives,” “thumb or flash drives,” and “video tapes.”
Based upon items seized pursuant to these warrants, a
federal grand jury returned an indictment charging Reich-
ling with two counts of producing child pornography, see 18
U.S.C. § 2251(a), one count of receiving child pornography,
see id. § 2252(a)(2), and one count of possession of child por-
nography, see id. § 2252(a)(4). Each count involved different
4 No. 14-2941
victims. Reichling responded by filing two motions to sup-
press the evidence seized at his parent’s residence and the
adjacent trailer. The district court denied both motions.
Reichling then entered into a plea agreement, agreeing to
plead guilty to the first count of the indictment and reserv-
ing the right to appeal the denial of his motions to suppress.
After accepting Reichling’s plea, the district court sentenced
him to 300 months in prison and a lifetime term of super-
vised release. Reichling now appeals.
II. DISCUSSION
Reichling concedes that the search warrant affidavit es-
tablished probable cause to believe that he sent the victim
the quoted text messages from a cell phone and received na-
ked photos of the victim on a cell phone, but he contends
that the affidavit contains no indication that he transferred
the photos to any other device. Reichling argues that the af-
fidavit therefore failed to establish probable cause to search
for and seize any item other than his cell phone, and the lack
of probable cause was so obvious that no reasonable officer
could have relied on the validity of the warrants. Reichling
reasons that each storage device—from a cell phone to a
hard drive to a VHS tape—is “a location just like a ware-
house,” and “police need probable cause for each separate
location that they propose to search.” Alternatively, Reich-
ling argues that, even if probable cause existed to search for
images on digital storage devices—computers, external hard
drives, thumb drives and the like—the affidavit did not es-
tablish probable cause to search for non-digital storage devic-
es, such as the VHS videotape which formed the basis of
count one of the indictment.
No. 14-2941 5
The law does not accord with Reichling’s narrow view of
probable cause. While we review a search warrant affidavit’s
sufficiency de novo to the extent that it presents purely legal
issues of Fourth Amendment doctrine, in applying those
principles to a given case, “we afford great deference to the
decision of the judge issuing the warrant, and we will up-
hold a finding of probable cause so long as the issuing judge
had a substantial basis to conclude that the search was rea-
sonably likely to uncover evidence of wrongdoing.” United
States v. Aljabari, 626 F.3d 940, 944 (7th Cir. 2010) (quotation
and citation omitted); see also Illinois v. Gates, 462 U.S. 213,
238–39 (1983) (“[T]he duty of a reviewing court is simply to
ensure that the [issuing judge] had a substantial basis for
concluding that probable cause existed.”) (quotation omit-
ted).
“Probable cause is established when, based on the totali-
ty of the circumstances, the affidavit to the judge sets forth
sufficient evidence to induce a reasonably prudent person to
believe that a search will uncover evidence of a crime.” Unit-
ed States v. Scott, 731 F.3d 659, 665 (7th Cir. 2013) (quotation
omitted), cert. denied, 134 S. Ct. 1806 (2014). “[P]robable cause
is far short of certainty—it requires only a probability or
substantial chance of criminal activity, not an actual showing
of such activity, and not a probability that exceeds 50 per-
cent (more likely than not), either.” United States v. Seiver,
692 F.3d 774, 777 (7th Cir. 2012) (quotation and citation omit-
ted). The task of the issuing judge “is simply to make a prac-
tical, common-sense decision whether, given all the circum-
stances 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.
6 No. 14-2941
It is important to note that, “in issuing a search warrant,
a judge is given license to draw reasonable inferences con-
cerning where the evidence referred to in the affidavit is
likely to be kept, taking into account the nature of the evi-
dence and the offense.” Scott, 731 F.3d at 665 (quotation
omitted). For example, in a case involving possible evidence
of child pornography or sexual exploitation of a child, the
probable cause inquiry “must be grounded in an under-
standing of both the behavior of child pornography collec-
tors and of modern technology.” United States v. Carroll, 750
F.3d 700, 704 (7th Cir. 2014) (citing Seiver, 692 F.3d at 776–
77). Accordingly, “[w]hen a judge receives an application for
a search warrant, the judge must make ‘a practical, common-
sense decision about whether the evidence in the record
shows a fair probability that contraband or evidence of a
crime will be found in a particular place.’” Id. at 703 (quoting
United States v. Miller, 673 F.3d 688, 692 (7th Cir. 2012)).
Thus, while the law requires judges to be neutral, the law
does not require judges to pretend they are babes in the
woods. In evaluating search warrant applications, judges
may consider what “is or should be common knowledge.”
Seiver, 692 F.3d at 778. When the warrants here were issued
in August 2013, it was or should have been common
knowledge to judges (like other members of the public) that
images sent via cell phones or Facebook accounts may be
readily transferred to other storage devices, such as those
identified in the warrants. 1 It may have been prudent for the
1 Reichling also complains that the applications are “serious[ly] flaw[ed]”
because they “make no effort to explain what the various devices [identi-
fied in the applications] are.” To the extent the device categories listed in
the applications are not common knowledge, the applications offer spe-
No. 14-2941 7
agent preparing the search warrant affidavit to have includ-
ed this fact in the affidavit itself, in case his application end-
ed up on the desk of a Luddite jurist, but we do not think it
was required. See id. at 777–78. The affidavit also did not
specifically assert that “Nathan Solman”—an apparent col-
lector of child pornography—likely would have maintained
some or all of the over 300 images he coaxed and coerced
from his victim between August 2010 and July 2012, so that
the images probably would be found during an August 2013
search. Again, while such an assertion may have been pru-
dent, we do not think it was necessary to make the warrants
valid. See United States v. Newsom, 402 F.3d 780, 783 (7th Cir.
2005) (“[A]lthough the affidavit before the judge did not ex-
plain specifically that collectors of child pornography tend to
hold onto their stash for long periods of time, it was clear
from the context that the police believed that Newsom prob-
ably still had the year-old images or something similar on
his computer.”); cf. Seiver, 692 F.3d at 777–78 (noting that it is
common knowledge that even “deleted” computer files are
often recoverable). These are examples of an issuing judge
being permitted to “draw reasonable inferences concerning
where the evidence referred to in the affidavit is likely to be
kept, taking into account the nature of the evidence and the
offense.” Scott, 731 F.3d at 665 (quotation omitted).
The Supreme Court has explained:
cific examples of each category, which make the meanings adequately
clear (e.g., “[i]nternal and peripheral digital/electronic storage devices,
including but not limited to internal and external hard drives, floppy
disks, zip disks, CD ROM and CD-RW disks, DVD and DVD-RW
disks…”).
8 No. 14-2941
A lawful search of fixed premises generally extends to
the entire area in which the object of the search may
be found and is not limited by the possibility that
separate acts of entry or opening may be required to
complete the search. Thus, a warrant that authorizes
an officer to search a home for illegal weapons also
provides authority to open closets, chests, drawers,
and containers in which the weapon might be found.
United States v. Ross, 456 U.S. 798, 820–21 (1982). The search
warrant affidavit in this case established probable cause to
believe images of the victim (likely constituting child por-
nography), Facebook messages, and text messages would be
found in Reichling’s parents’ residence and the adjacent
trailer. Given the large number of images at issue, the dura-
tion of Reichling’s interest in the victim, and the way various
storage media work together—as well as “an understanding
of both the behavior of child pornography collectors and of
modern technology,” Carroll, 750 F.3d at 704—it was reason-
able for the issuing judge to authorize the police to conduct
“separate acts of entry or opening,” including searching any
computers and other storage devices “in which the [images]
might be found.” Ross, 456 U.S. at 820–21. In short, the affi-
davit was sufficient to show a fair probability that the stor-
age devices identified in the warrants would contain evi-
dence of child pornography—or, as stated in the warrants,
“exploitation of children” (the former being a species of the
latter, see 18 U.S.C. § 2251).
With respect to the non-digital storage media identified
in the warrants (e.g., “video tapes”), Reichling adopts too
narrow a view of the facts. First, Reichling asserts that it is
categorically impossible to transfer digital files, such as those
No. 14-2941 9
sent from a cell phone, onto non-digital storage media, such
as VHS videotapes. At oral argument, government counsel
disputed this assertion, citing a computer program which
allows such a transfer. A quick internet search reveals that,
apart from computer programs, “[t]here are plenty of …
VHS-DVD combo recorders on the market that allow users
to internally dub [i.e., copy] VHS tapes to DVD [i.e., digital
storage media] and vice versa.” Brandon Widder, How to Con-
vert VHS to DVD, Digital Trends (July 8, 2013),
www.digitaltrends.com/home-theater/how-to-convert-vhs-
to-dvd/ (emphasis added).
More importantly, Reichling ignores the quoted text mes-
sages in the affidavit indicating that he was physically fol-
lowing the victim. The text messages mention the victim’s
appearance, her lack of a tan while she was at a swimming
pool, and her boyfriend. It does not require a great leap of
the imagination to think that a person physically stalking a
minor from at least July 2012 (when “Nathan Solman” ap-
peared in the victim’s backyard) to June 2013 would record
images of the victim using either a digital or non-digital re-
cording device. Regardless of whether such images would
qualify as “contraband” (such as child pornography), they
would constitute “evidence of a crime,” and would supply a
basis for probable cause. See Gates, 462 U.S. at 238. Similarly,
it would be reasonable for the police and the issuing judge to
view the facts in the affidavit—including those indicating
Reichling committed a sex offense with a minor victim in
1993 and had been a collector of child pornography since at
least 2010—as providing “ominous hint[s]” of what might be
found on both digital and non-digital media in Reichling’s
residence. See Newsom, 402 F.3d at 783. After all, experienced
investigator/affiants and reviewing magistrates are entitled
10 No. 14-2941
to draw reasonable inferences. Bearing in mind the “great
deference” we must give the issuing judge’s determination,
we find the affidavit supplied a “substantial basis” for the
judge’s probable cause finding as to non-digital storage me-
dia as well as digital. See Gates, 462 U.S. at 236.
And even if the warrants were invalid because the affi-
davit failed to support a finding of probable cause, we agree
with the government that the district court’s denial of Reich-
ling’s suppression motions was proper nonetheless by appli-
cation of the good-faith exception to the exclusionary rule. In
United States v. Leon, 468 U.S. 897, 922–23 (1984), the Su-
preme Court held that even if a search warrant was invalid
based upon a lack of probable cause, evidence seized in exe-
cuting the warrant should not be suppressed if the police of-
ficers relied in good faith on the judge’s decision to issue the
warrant. A law enforcement officer’s decision to obtain a
warrant is treated as prima facie evidence that the officer was
acting in good faith. Miller, 673 F.3d at 693. A defendant can
overcome this evidence of good faith by showing: (1) the is-
suing judge abandoned the detached and neutral judicial
role; (2) the officer was dishonest or reckless in preparing the
affidavit; or (3) the warrant was so lacking in probable cause
that the officer could not reasonably rely on the judge’s issu-
ance of it. Id.; see also Leon, 468 U.S. at 923.
Reichling does not allege that the issuing judge merely
rubber-stamped the warrant applications or that the officer
preparing the affidavit was dishonest or reckless. Reichling
instead claims that the “warrant applications simply fail to
offer any basis for officers to expect to find contraband on
any device other than Reichling’s cell phone,” and the “total
lack of information [in the affidavit] to connect the contra-
No. 14-2941 11
band to … devices beyond the cell phone cannot convince a
reasonably well-trained officer that the warrant is valid.” As
discussed above, the affidavit included enough detail that a
reasonable officer might rely on the judge’s issuance of a
warrant based upon it. While we do not endorse this affida-
vit as a model for other officers to follow, this is not one of
“those unusual cases in which exclusion will further the
purposes of the exclusionary rule.” Leon, 468 U.S. at 918.
The district court’s judgment is AFFIRMED.