NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 25, 2011
Decided April 14, 2011
Before
MICHAEL S. KANNE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 10‐2157 Appeal from the United
States District Court for the
UNITED STATES OF AMERICA, Southern District of Indiana,
Plaintiff‐Appellee, Indianapolis Division.
v. No. 1:08‐cr‐00172
DANNY SHELTON, William T. Lawrence,
Defendant‐Appellant. Judge.
O R D E R
Danny Shelton challenges the denial of his motion to suppress child pornography
found on his computer. Police obtained a warrant to seize and search his computer, but the
affidavit supporting the warrant omits significant details about the police investigation.
Because we conclude that the affidavit still provided the issuing judge with enough detail to
establish probable cause and that the good‐faith exception would otherwise save the search,
we affirm the judgment.
A computer repair technician notified police in Greensburg, Indiana, that he had
discovered files containing apparent child pornography on a computer left with him for
service. A police officer met with the technician, who explained that Shelton had dropped
off the computer for repairs because it was running slowly. During a diagnostic assessment
No. 10‐2157 Page 2
the technician reviewed files stored on the computer, and searched specifically for
pornography files, which often harbor malicious code that can affect system performance.
The technician showed the officer two videos, both depicting the same girl undressing in a
bedroom. In the videos the girl (later determined to be 12 years old) is alone and apparently
unaware of the camera. The technician informed the officer that the girl also was depicted in
family photos contained on Shelton’s computer.
The first officer then summoned Detective William Meyerrose. The technician
showed Meyerrose the two videos and the service request Shelton completed when he
dropped off his computer for repairs. Meyerrose immediately enlisted a third officer to
identify the girl, and within minutes he learned that Shelton was listed in local school
records as the parent or guardian of a 12‐year‐old girl whose school photo matched the
image in the videos. Meyerrose directed that no further search be conducted, told the first
officer to remain with the computer, and left to seek a search warrant.
Detective Meyerrose then met with the local prosecutor and related the details of his
investigation. The prosecutor agreed that Meyerrose had gathered enough evidence to
obtain approval to seize the computer and search the machine and Shelton’s home for
evidence that he violated § 35‐42‐4‐4 of the Indiana Criminal Code, which prohibits the
production and possession of child pornography. The prosecutor drafted an affidavit for
Meyerrose’s signature based on the information the detective provided. The affidavit,
however, incorporates only part of that information:
1. On April 5, 2008, Danny Shelton delivered a Emachine, desktop style
computer, serial number T2482 to the Greensburg Staples store for
repair and diagnosis. The store service request lists the address of
Danny Shelton as 1602 North Franklin Street, Greensburg, Indiana;
2. Mr. Shelton complained that the computer was running too slow;
3. [The technician] began diagnostic testing on this computer. During
this process, he discovered a video of a young girl appearing to be
about 12 years of age undressing to complete nudity. The background
for the video scene appeared to be a bedroom.
Detective Meyerrose presented the affidavit to a state judge with a proposed warrant
to seize the computer and to search both the computer and Shelton’s home. According to
Meyerrose, the judge reviewed the affidavit and signed the warrant. The police then
executed the warrant. Several discs containing child pornography, along with two guns,
No. 10‐2157 Page 3
were recovered from Shelton’s residence. But the investigators did not examine Shelton’s
computer until months later in August 2008 when authorities conducted a forensic analysis.
In November 2008, a grand jury charged Shelton with three counts of producing
child pornography, 18 U.S.C. § 2251(a), one count of possessing child pornography, id.
§ 2252(a)(4)(B), and one count of possessing a gun after a felony conviction, id. § 922(g)(1).
Each production count rests on a separate series of photos first discovered during the
August 2008 forensic analysis of Shelton’s computer. The photos in each series depict the
12‐year‐old girl seen previously; she is lying on a bed or the floor, in various poses, with the
camera focused on her nude genitals. Shelton moved to suppress the fruits of the search
warrant. He argued that the affidavit submitted in support of the warrant did not establish
probable cause to search his computer or residence because, he insists, its description of the
videos does not provide enough information to allow a conclusion that they are lascivious
or pornographic. He also argued that the good‐faith exception should not apply because, in
his view, the affidavit is so deficient that no judge could have found probable cause without
abdicating his role as a neutral arbiter and no police officer could reasonably have relied on
the warrant. The parties briefed the merits, and the district court conducted an evidentiary
hearing.
At the hearing, Detective Meyerrose, the only witness, testified that the prosecutor
always writes his probable‐cause affidavits, including the affidavit in this case. He insisted
that he believed that the affidavit established probable cause to seize and search the
computer and to search Shelton’s residence and that he had no reason to doubt the
information provided by the technician. The government presented no evidence that the
issuing judge questioned Meyerrose about his investigation and agreed with Shelton that
the district court was limited to evaluating the “four corners” of the affidavit in deciding
whether it established probable cause.
The district court granted Shelton’s motion in part and denied it in part. The court
rejected his argument that the affidavit fails to establish probable cause to seize and search
the computer for evidence of child pornography. The court concluded that, as a matter of
common sense, it is reasonably probable that videos of a 12‐year‐old girl depicted alone in a
bedroom undressing to a state of complete nudity were recorded for the improper purpose
of arousal and were evidence of a crime. The court also noted that, even if the affidavit was
deemed too terse to establish probable cause to seize and search the computer, the officers
would be found to have justifiably relied on the search warrant and so the fruits of the
search would remain admissible under the good‐faith exception articulated in United States
v. Leon, 468 U.S. 897, 922 (1984). The court agreed with Shelton, however, that the search of
his house could not be sustained, even under the good‐faith exception, because the affidavit
No. 10‐2157 Page 4
conveys no information at all about the house. The court thus suppressed the evidence
seized from Shelton’s home.
Shelton entered a conditional guilty plea to one count of producing child
pornography, 18 U.S.C. § 2251(a), reserving the right to challenge on appeal the partial
denial of his motion to suppress. As part of the sentencing process, including conversations
with police and other correspondence (including a letter to his father), Shelton admitted that
he filmed and photographed the girl, a relative of his wife’s, sometimes giving her a mixture
of whiskey, cough syrup, and water to overcome resistance. In her interviews with police,
the girl recounted that Shelton had posed her naked and, at least once, had touched her
genital area. The district court sentenced Shelton to a term of 192 months.
On appeal Shelton renews his arguments that the affidavit supporting the search
warrant is so terse and poorly drafted that it fails to establish probable cause, and that the
good‐faith exception should not apply. He insists that (1) the affidavit does not actually
conclude that any crime was committed (and states only that there is possible evidence of
child pornography on the computer), (2) the video images of the girl, as described in the
affidavit, do not “rise to the level” of child pornography, and (3) the affidavit discloses
nothing about the technician beyond his name and fails to identify his qualifications to
evaluate the difference between child erotica and child pornography or the apparent age of
the person depicted.
As an initial matter, we note that the police officers did not violate the Fourth
Amendment by looking at what the technician showed them before securing a warrant. The
technician’s initial search of the computer was conducted without police involvement, and
under the private‐search doctrine, the Fourth Amendment is inapplicable to a search or
seizure effected by a private party. United States v. Jacobsen, 466 U.S. 109, 113‐16 (1984);
United States v. Hall, 142 F.3d 988, 993 (7th Cir. 1998). As long as police officers do not
exceed the scope of the private search, they may view or replicate the results of that search
without violating the Fourth Amendment. See Jacobsen, 466 U.S. at 117‐18; Walter v. United
States, 447 U.S. 649, 656 (1980); Hall, 142 F.3d at 995. The officers did not expand the
technician’s private search before securing a warrant; Shelton cannot (and does not) contend
that their duplication of the technician’s search violated the Fourth Amendment.
Turning to Shelton’s arguments, when a defendant challenges a search warrant,
courts afford great deference to the probable‐cause determination of the issuing judge, see
United States v. Dismuke, 593 F.3d 582, 586 (7th Cir. 2010); United States v. McIntire, 516 F.3d
576, 577‐78 (7th Cir. 2008), and employ a commonsense, totality‐of‐the‐circumstances
analysis that focuses on whether the supporting affidavit established a fair probability that
investigators would find contraband or evidence of a crime in the place specified. Illinois v.
No. 10‐2157 Page 5
Gates, 462 U.S. 213, 238‐39 (1983); United States v. Curry, 538 F.3d 718, 729‐30 (7th Cir. 2008).
And where, as here, the issuing judge relied only on the affidavit, courts review the
determination of probable cause by looking only at the “four corners” of the affidavit.
United States v. Orozco, 576 F.3d 745, 748 (7th Cir. 2009); United States v. Peck, 317 F.3d 754,
755 (7th Cir. 2003).
Both Indiana and federal law define child pornography, if nudity but not sexual
conduct is depicted, in terms of whether the image is lascivious. See 18 U.S.C. § 2256(8),
2256(1)(B)(iii) (defining “child pornography” as visual depiction of “sexually explicit
conduct” and the latter, in turn, to include “lascivious exhibition of the genitals or pubic
area of any person”); IND. CODE § 35‐42‐4‐4 (criminalizing producing and possessing images
or other media depicting “sexual conduct,” which includes “exhibition of the uncovered
genitals intended to satisfy or arouse the sexual desires of any person”). Here, the affidavit
leaves out details that would have made the issuing judge’s decision about the lascivious
nature of the videos straightforward. The appellate record clarifies that the omission was
not for lack of information; the police investigation, by all accounts both quick and
thorough, turned up substantial evidence establishing probable cause to search the
computer and Shelton’s home for evidence of child‐pornography crimes as well as related
offenses. The affidavit could have included details police learned by watching the videos.
For example, had the affidavit revealed that the videos focused on the girl’s genitals, the
issuing judge’s decision would be more clearly supported. And if the prosecutor had
disclosed that the girl appeared to be unaware of the camera or that Shelton was her legal
guardian, the videos would have supported a search of the computer for evidence of a
violation of Indiana’s voyeurism statute, see IND. CODE § 35‐45‐4‐5; Johnson, 427 F.3d at 425‐
26, or sexual misconduct with a minor, see IND. CODE § 35‐42‐4‐9.
But an affidavit is not defective simply because it could have been better, and we
conclude that the affidavit Meyerrose presented was sufficient to establish probable cause.
The affidavit identifies the suspected crime, here a violation of the Indiana child‐
pornography statute, IND. CODE § 35‐42‐4‐4, and states that evidence of that crime may be
found on the computer. Issuing judges frequently must rely on written descriptions of
images when determining whether evidence of child pornography is likely present. See, e.g.,
United States v. Griesbach, 540 F.3d 654, 656 (7th Cir. 2008); United States v. Lowe, 516 F.3d 580,
586 (7th Cir. 2008); United States v. Brunette, 256 F.3d 14, 18 (1st Cir. 2001). And the
description provided—a 12‐year‐old girl undressing to a state of complete nudity in a
bedroom—provides commonsense support that the computer might contain child
pornography. See, e.g., Griesbach, 540 F.3d at 656 (20‐word description was sufficient to
“justify an inference that a search of the defendant’s computer files would turn up
pornographic images”); United States v. Hill, 459 F.3d 966, 970‐72 (9th Cir. 2006). The
probable‐cause inquiry is a fluid one, requiring an issuing judge to assess “probabilities in
No. 10‐2157 Page 6
particular factual contexts.” Gates, 462 U.S. at 232. Though an allegation of focus on the
victim’s genital area would have clarified matters, it is not required where the totality of the
circumstances otherwise support a finding of lascivious or prurient content. See, e.g., United
States v. Knox, 32 F.3d 733, 747 (3d Cir. 1994) (“‘[Lascivious exhibition of the genitals or
pubic area’ of a minor necessarily requires only that the material depict some ‘sexually
explicit conduct’ by the minor subject which appeals to the lascivious interest of the
intended audience.”). It was reasonable for the issuing judge to conclude from the affidavit
that the technician found the circumstances depicted in the video files (the bedroom setting,
the depicted girl’s undressing to a state of total nudity, and the relative age of the
subject—too old for nudity to be commonplace and too young for the technician to be
reasonably mistaken regarding her status as a minor) rendered the images lascivious or
prurient; in fact, so concerned was he that he immediately reported what he saw to the
police. It was similarly reasonable for the issuing judge to conclude that a forensic search of
the computer would turn up evidence of child pornography.
Shelton’s additional criticism of the affidavit—that it provides insufficient
information to establish the technician’s reliability or qualifications—is unpersuasive.
Courts do require indicia of reliability from witness statements offered in support of
probable cause, see United States v. Koerth, 312 F.3d 862, 867‐68 (7th Cir. 2002), but a history
of reliability is not necessary to establish probable cause, United States v. Wooden, 551 F.3d
647, 649 (7th Cir. 2008). And statements from an informant of unknown reliability may
support a finding of probable cause if a reasonable person might consider them credible
under the totality of the circumstances. See Koerth, 312 F.3d at 868. For the sort of detail
necessary here—including the age of the minor depicted—lay witnesses are enough. See
United States v. Battershell, 457 F.3d 1048, 1054 (9th Cir. 2006); Hall, 142 F.3d at 995. The
affidavit supplies enough detail (including detail about the nature of the computer in
question) for the issuing judge to reasonably infer that police officers had interviewed the
technician before seeking a warrant. Nothing in the affidavit suggests that the technician
might have misguided the police, and Shelton has not argued in favor of such an inference.
And, as the district court noted, the affidavit identifies the technician by name, so the
issuing judge could reasonably infer that his identity was known to police. Wooden, 551 F.3d
at 649 (“Knowing a tipster’s name increases the chance that he can be held accountable.”).
And even if we were wrong about all of this, the good‐faith exception would prevent
the application of the exclusionary rule to this case. See Leon, 468 U.S. at 922; Curry, 538 F.3d
at 730. That exception provides that evidence recovered under a later‐invalidated search
warrant is nonetheless admissible if the police reasonably relied on the warrant. Curry, 538
F.3d at 730. An officer’s decision to seek a warrant is prima facie evidence of good faith, id.;
United States v. Mykytiuk, 402 F.3d 773, 777 (7th Cir. 2005), and is bolstered where, as here,
the officer consults a prosecutor before seeking a warrant, United States v. Pappas, 592 F.3d
No. 10‐2157 Page 7
799, 802 (7th Cir. 2010); Sornberger v. City of Knoxville, Ill., 434 F.3d 1006, 1016 (7th Cir. 2006);
United States v. Bynum, 293 F.3d 192, 198 (4th Cir. 2002). Defendants may rebut this
presumption by showing that (1) the issuing judge abandoned the role of a detached,
neutral arbiter and acted as a “rubber stamp” or (2) the affidavit was so lacking that the
officer’s belief in the warrant’s validity was objectively unreasonable. See United States v.
Woolsey, 535 F.3d 540, 546 (7th Cir. 2008).
Shelton reiterates his position that the affidavit is fatally deficient. He argues that the
issuing judge’s approval of the warrant after brief review and without hearing further
evidence proves that he abdicated his role as a neutral arbiter. But as we conclude that the
admittedly terse affidavit nonetheless contains sufficient detail to establish probable cause,
this contention is without merit. Officers are not generally expected to question the decision
of an issuing judge, Curry, 538 F.3d at 730, and there is no indication that the deterrence
concerns operative in Leon, see 468 U.S. at 920‐21, are present here.
For these reasons, the order denying Shelton’s motion to dismiss, and thus the
judgment of the district court, is AFFIRMED.
