United States v. Kevin Darcy Golden

Case: 13-10983 Date Filed: 11/20/2013 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10983
Non-Argument Calendar
________________________
D.C. Docket No. 3:12-cr-00083-MHT-SRW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN DARCY GOLDEN,
a.k.a. Kevin Golden,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(November 20, 2013)
Case: 13-10983 Date Filed: 11/20/2013 Page: 2 of 5
Before HULL, JORDAN and BLACK, Circuit Judges.
PER CURIAM:
Kevin Golden appeals the district court’s denial of his motion to suppress
evidence that led to him entering a guilty plea to 2 of 16 counts of production of
child pornography. Golden received 360-months imprisonment while retaining his
right to appeal the district court’s denial of his motion to suppress evidence. The
evidence Golden seeks to suppress is a warrant affidavit, which led to the
discovery of the pornographic materials in question. The warrant was issued with
the intent of collecting evidence of sexual abuse of a child less than 12 years of
age. See Ala. Code § 13A-6-69.1 (1975). The affidavit mainly relied on statements
from the victim of the aforementioned crime along with additional facts
supplemented by the child’s father. The crucial facts alleged Golden took pictures
of the then 11-year-old victim while simultaneously removing the child’s clothing.
Golden argues on appeal that (1) the affidavit did not establish the reliability and
credibility of the statements of the minor victim because the statements of the child
were uncorroborated and inherently unreliable and (2) there was an insufficient
nexus between the suspected offense in the affidavit and the evidence sought to be
2
Case: 13-10983 Date Filed: 11/20/2013 Page: 3 of 5
seized. After review, 1 we affirm the district court’s denial of Golden’s motion to
suppress.
Probable cause for a search warrant is established when the “totality of the
circumstances” creates a “fair probability” that “evidence of a crime will be found
in a particular place.” United States v. Lopez, 649 F.3d 1222, 1245 (11th Cir.
2011) (citations omitted) (internal quotation marks omitted). Such a probability
exists when, under the circumstances, a reasonably prudent person would believe
that the place contains evidence of a crime. Id. When a warrant is sought based on
information provided by an informant, the issuing court engages in a “balanced
assessment of the relative weights of all the various indicia of reliability (and
unreliability) attending an informant’s tip.” Illinois v. Gates, 462 U.S. 213, 234
(1983). While “an informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ are
all highly relevant in determining the value of his report,” they are not “entirely
separate and independent requirements to be rigidly exacted in every case.” Id. at
230.
When a warrant was issued based on the statement of a victim, this Court
views the warrant with considerably less skepticism than one based on the
1
“We review a district court's denial of a defendant's motion to suppress under a mixed
standard of review, examining the district court's findings of fact for clear error and the district
court's application of law to those facts de novo.” United States v. King, 509 F.3d 1338, 1341
(11th Cir. 2007) (citations omitted). Specifically, “[w]e review de novo whether the facts set
forth in an affidavit constitute a sufficient basis for a finding of probable cause.” United States v.
Lopez, 649 F.3d 1222, 1245 (11th Cir. 2011) (citations omitted).
3
Case: 13-10983 Date Filed: 11/20/2013 Page: 4 of 5
statement of an anonymous informant. United States v. Martinelli, 454 F.3d 1300,
1307 (11th Cir. 2006). In the distinguishable context of a civil suit, this Court
previously opined that statements of minor victims are not categorically unreliable
or incredible, and that officers may seek a warrant based on the uncorroborated
statement of a minor victim. See Lowe v. Aldridge, 958 F.2d 1565, 1567, 1571
(11th Cir. 1992).
Golden has failed to prove the statements in the affidavit were in any way
unreliable or lacked credibility. The information provided by the victim in this case
was detailed, prompt, and certain facts were corroborated by the victim’s father.
Further, the victim was not a young child but rather an 11-year-old fully capable of
understanding the gravity of the situation. The child and child’s parents had no
motive to falsify any information contained in the affidavit and rapidly reported the
incident to police. Finally, the uncorroborated statements of the victim, despite
being 11 years old, is more than sufficient to justify a finding of probable cause,
especially when considering the child’s level of specificity and timeliness in
reporting.
Golden’s argument that there was an insufficient nexus between the conduct
alleged in the affidavit and the evidence sought to be seized is unpersuasive. The
Fourth Amendment requires a nexus between the item seized and the suspected
criminal behavior. Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 307 (1967).
4
Case: 13-10983 Date Filed: 11/20/2013 Page: 5 of 5
The nexus is clearly established in this case. The search warrant authorized officers
to search Golden’s residence for evidence of sexual abuse of a child less than 12
years of age. See Ala. Code § 13A-6-69.1. Investigators were authorized to seize
“any electronic device capable of storing, capturing, recording, or viewing digital
images” for evidence of “sexual contact” with the victim. See id. Sexual contact is
defined as “[a]ny touching of the sexual or other intimate parts of a person not
married to the actor, done for the purpose of gratifying the sexual desire of either
party.” Ala. Code § 13A-6-60(3). Since the victim believed pictures were taken
after hearing clicking noises and seeing flashes of light while being inappropriately
touched by Golden, a search for electronic devices capable of storing visual
evidence of his illicit conduct constitutes more than a sufficient nexus between the
allegation and the electronic evidence sought to be seized. Therefore, Golden’s
motion to suppress was properly denied.
AFFIRMED.
5