United States v. Ted Pappas ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1595
U NITED S TATES OF A MERICA,
Plaintiff-Appellant,
v.
T ED L. P APPAS,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 08 CR 52—Charles N. Clevert, Jr., Chief Judge.
A RGUED O CTOBER 8, 2009—D ECIDED JANUARY 21, 2010
Before E ASTERBROOK, Chief Judge, and M ANION and
T INDER, Circuit Judges.
M ANION, Circuit Judge. Ted Pappas was indicted
for possession of child pornography in violation of 18
U.S.C. § 2252(a)(4)(B). Pappas pleaded not guilty and
filed a motion to suppress evidence seized during a
search of his home, as well as statements he made
during the execution of the search warrant. The district
court granted Pappas’s motion to suppress. The govern-
ment appeals. We reverse.
2 No. 09-1595
I.
In May 2005, law enforcement officers in California
executed a search warrant on Michael Golubski’s America
Online email account. The search revealed that between
April and May 2005, Golubski used the email name
“ E x h i b M a le 3 9 ” t o s e n d s e v e n te e n e m a il s t o
“longtalks@aol.com,” including eleven that contained
images of child pornography. Further investigation
revealed that the email account “longtalks@aol.com”
belonged to Ted Pappas, although in June 2005, Pappas
changed his email account to TedP5785@aol.com.
Federal agent Elizabeth Hanson provided this informa-
tion to an Assistant United States Attorney, and the
two discussed the propriety of obtaining a search warrant
for Pappas’s home. After concluding there was probable
cause to obtain a search warrant, Agent Hanson
presented a search warrant application and a nine-page
affidavit to a magistrate judge. Hanson’s affidavit
included a summary of her professional experience in-
vestigating child pornography. Specifically, Hanson
stated that she had ten years’ experience investigating
sexual exploitation of minors and had conducted numer-
ous forensic examinations of computers in child pornogra-
phy investigations. Hanson also described the typical
behavior of individuals who collect, procure and
distribute child pornography. She further detailed the
emails sent to Pappas, stating that over a three-week
period, Pappas had received eleven emails that included
child pornography. Hanson also included a description
of the pornographic images of children contained in three
No. 09-1595 3
of the eleven email transmissions. Additionally, Hanson
noted that Pappas continued to maintain an email
account, using the name TedP5785@aol.com.
In November 2006, based on the search warrant ap-
plication and Hanson’s affidavit, a federal magistrate
judge issued a search warrant for Pappas’s residence.
According to the government, during the search, Pappas
spoke with agents and admitted he used the screen
name “longtalks” to trade adult pornography in chat
rooms and via email. He also admitted receiving images
and videos of children engaged in sexually explicit con-
duct, but claimed he had deleted those images. A search
of Pappas’s computer hard drive, however, uncovered
images of child pornography. Agents also discovered
that images of child pornography had been saved on a
floppy disk but were later deleted; the government was
able to recover the images.
Based on the evidence recovered during the search, a
grand jury indicted Pappas on two counts of possession
of child pornography, in violation of 18 U.S.C.
§ 2252(a)(4)(B). Pappas pleaded not guilty and filed a
motion to suppress the evidence seized during the
search and the statements he made during the execution
of the warrant. A magistrate judge recommended
granting the motion to suppress, and the district court
adopted that recommendation and suppressed the evi-
dence seized and Pappas’s statements. The government
appeals.
4 No. 09-1595
II.
On appeal, the government argues that while it may be
questionable whether probable cause supported the
issuance of the search warrant, the evidence seized and
Pappas’s statements are nonetheless admissible under
United States v. Leon, 468 U.S. 897 (1984).1 In Leon, the
Supreme Court articulated the good faith exception to the
exclusionary rule, holding that evidence obtained in
violation of the Fourth Amendment is nonetheless ad-
missible if the officer who conducted the search acted in
good faith reliance on a search warrant. Id. at 922-23. “That
[an] officer[ ] obtained a warrant is prima facie evidence
of good faith.” United States v. Elst, 579 F.3d 740, 744
(7th Cir. 2009). A defendant may rebut the prima facie
evidence of good faith
by presenting evidence to establish that: (1) the
issuing judge wholly abandoned his judicial role and
failed to perform his neutral and detached function,
serving merely as a rubber stamp for the police;
(2) the affidavit supporting the warrant was so
lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable;
or (3) the issuing judge was misled by information in
an affidavit that the affiant knew was false or would
1
Because the government does not argue that there was
probable cause to support the issuance of the search warrant, we
need not address that question; instead our focus is on whether
a reasonable officer could believe probable cause supported the
issuance of the warrant.
No. 09-1595 5
have known was false except for his reckless
disregard of the truth.
Id. (internal quotations and citations omitted).
In this case, Pappas argues, and the district court held,
that the affidavit supporting the warrant was so lacking
in probable cause that the officers could not rely upon it
in good faith.2 We disagree. Here, the affidavit clearly
documented evidence establishing that at least eleven
images of child pornography had been sent to Pappas’s
email account and verifying that Pappas continued to
maintain email access (thus indicating continued access
to a computer on which child pornography could be
stored). Additionally, prior to seeking a warrant, Agent
Hanson consulted with an Assistant United States At-
torney. Consulting “with the prosecutor prior to
applying for [a] search warrant provides additional
evidence of [that officer’s] objective good faith.” United
States v. Bynum, 293 F.3d 192, 198 (4th Cir. 2002). See
also United States v. Johnson, 78 F.3d 1258, 1264 (8th Cir.
1996) (stating that obtaining advice of a county attorney
is an indication that an officer’s reliance on a search
warrant was objectively reasonable); United States v.
Brown, 951 F.2d 999, 1005 (9th Cir. 1991) (noting “an
officer’s consultation with a government attorney is of
significant importance to a finding of good faith . . . [and
it is] of even greater importance where, as here, a point
of law relating to the scope of a Fourth Amendment
2
On appeal, Pappas does not contend that the issuing judge
abandoned his judicial role or was misled by the affidavit.
6 No. 09-1595
search and seizure was not yet settled at the time the
warrant issued”); United States v. Taxacher, 902 F.2d 867, 872
(11th Cir. 1990) (explaining that officer’s consultation
“with the local district attorney before seeking the search
warrant, and then submit[ting] the matter to a neutral
magistrate” was “indicative of objective good faith”).
In response, Pappas claims that the search warrant
application was utterly lacking in probable cause because
there is no evidence that Pappas solicited child pornogra-
phy or that he even read the email messages. Rather,
Pappas maintains that because he also received adult
pornography from Golubski, the only reasonable
inference flowing from the facts is that the emails to
him were “advertisements” that do not indicate that he
knowingly possessed child pornography. That may be
one inference. But an officer could also reasonably
believe that the number of email messages containing
child pornography sent to Pappas, and the risk inherent
in sending even one image of child pornography to
anyone other than a willful recipient, was sufficient to
establish probable cause for the crime of knowing pos-
session of child pornography. Similarly, while Pappas
maintains that the fact that he changed his email account
demonstrates that he did not want to receive child pornog-
raphy, equally plausible is the conclusion that Pappas
changed his email account to avoid detection. In fact,
given that Pappas waited nearly three months after he
received the first email from Golubski to change his email
address, and that he received numerous images of child
pornography from Golubski, the latter inference seems
much more likely.
No. 09-1595 7
Pappas further argues that the search warrant applica-
tion was completely lacking in indicia of probable cause
because of the eighteen-month delay between the trans-
mission of the emails (mid-2005) and the issuance of the
search warrant (late 2006). While the recency of informa-
tion contained in a search warrant application is one
factor bearing on the question of probable cause, United
States v. Watzman, 486 F.3d 1004, 1008 (7th Cir. 2007), there
is no bright line for when information is stale. United
States v. Prideaux-Wentz, 543 F.3d 954, 958 (7th Cir. 2008).
Indeed, we recently held that while four-year-old trans-
missions of child pornography were too stale to provide
probable cause, officers could nonetheless rely in good
faith on a search warrant issued by a magistrate judge
based on those transmissions. Prideaux-Wentz, 543 F.3d
at 958-59.3 Similarly, in this case, the officers reasonably
could have relied on the search warrant that was based
on child pornography sent eighteen months earlier.
Pappas also argues that the officers could not reasonably
rely on the warrant because the warrant application
included boilerplate language concerning the practices of
collectors of child pornography but did not include
any evidence Pappas fit that profile. In support of his
position, Pappas relies on this court’s recent decision
3
The government also cites our nonprecedential decision in
United States v. Doan, 245 Fed. Appx. 550, 555 (7th Cir. 2007),
wherein this court applied the good faith exception to a
warrant based on child pornography transmitted seventeen
months prior to the issuance of the warrant.
8 No. 09-1595
in Prideaux-Wentz, 543 F.3d 954. In Prideaux-Wentz, the
defendant argued that the search warrant affidavit was
defective because it only included boilerplate statements
about child pornography collectors generally and com-
pletely “lacked any information that would indicate
that he has the characteristics of a prototypical child
pornography collector, and furthermore, that this gap
renders any probable cause determination entirely unrea-
sonable.” Id. at 960. We noted in Prideaux-Wentz that an
“affidavit must lay a foundation which shows that the
person subject to the search is a member of the class.” Id.(internal quotations omitted). However, we then held
that “because the warrant connected Prideaux-Wentz to
several email accounts responsible for uploading or
possessing child pornography,” it did not take “much of
an inferential leap to conclude that Prideaux-Wentz
might be a collector of child pornography.” Id. at 961.
Accordingly, we concluded that “[t]here was sufficient
evidence to link the boilerplate statements regarding
child pornographers to the specific characteristics of
Prideaux-Wentz.” Id. at 960.
Pappas’s reliance on Prideaux-Wentz is misplaced for
several reasons. First, he reads too much into that deci-
sion. While Prideaux-Wentz explained that a search
warrant affidavit must lay a foundation showing that
the target of the search is a member of the class
identified in the warrant, there is no magic “profile” of
child pornography “collectors” that must be attested to
in a search warrant affidavit. In fact, the moniker “collec-
tor” merely recognizes that experts in the field have
found that because child pornography is difficult to
No. 09-1595 9
come by, those receiving the material often keep the
images for years. There is nothing especially unique
about individuals who are “collectors” of child pornogra-
phy; rather, it is the nature of child pornography, i.e.,
its illegality and the difficulty procuring it, that causes
recipients to become “collectors.” See Watzman, 486 F.3d at
1008 (noting that the agent explained that “individuals
who view child pornography typically ‘maintain their
collections for many years’ and ‘keep and collect items
containing child pornography over long periods of
time’ ”). Thus, as Prideaux-Wentz explained, where
evidence indicates that an individual has uploaded or
possessed multiple pieces of child pornography, there
is enough of a connection to the “collector” profile to
justify including the child pornography collector
boilerplate in a search warrant affidavit. Similarly, here,
because Pappas received eleven emails containing child
pornography, inclusion of the child-pornography
boilerplate was justified.
Pappas’s reliance on Prideaux-Wentz is also misplaced
because we decided that case after the search warrant
in this case was issued. Thus, Prideaux-Wentz could not
have called into question the good faith of the officers
involved in the search of Pappas’s residence. See United
States v. Adames, 56 F.3d 737, 747 (7th Cir. 1995) (holding
that “the officers could not have known that the warrant
was invalid at the time it was executed because [the
Supreme Court precedent relied upon by the defendant
to invalidate the search warrant] was not decided
until more than a year later”). Finally, Prideaux-Wentz
held that while probable cause was lacking, the evidence
10 No. 09-1595
seized was nonetheless admissible under the Leon good
faith exception to the exclusionary rule. Similarly, the
good faith exception applies here and saves from
exclusion the evidence discovered during the search of
Pappas’s home and the statements he made during the
execution of the search warrant.
III.
A magistrate judge issued a search warrant
authorizing the search of Pappas’s residence. Even if
probable cause did not support issuance of this warrant,
Agent Hanson demonstrated a prima facie case of good
faith by obtaining a warrant in the first instance. Her
efforts to consult with an Assistant United States Attorney
prior to seeking a warrant further demonstrate her
good faith. Although there was some delay between the
transmission of child pornography to Pappas and the
issuance of the warrant, the delay was not so great as to
overcome the presumption of good faith. Nor was there
anything impermissible in including information related
to the practices of child pornography “collectors,” given
that numerous images of child pornography were sent
to Pappas. Accordingly, the district court erred in
granting Pappas’s motion to suppress. We R EVERSE.
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