United States v. Charles R. Vanbrackle

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15024 ELEVENTH CIRCUIT
SEPTEMBER 23, 2010
Non-Argument Calendar
________________________ JOHN LEY
CLERK
D. C. Docket No. 08-00042-CR-WCO-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES R. VANBRACKLE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 23, 2010)
Before BARKETT, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Charles R. Vanbrackle appeals his conviction for receiving child
pornography, in violation of 18 U.S.C. §§ 2252(a)(2)(A) and 2256(8)(A). On
appeal, Vanbrackle argues that (1) the search of his home was illegal because the
search warrant lacked probable cause, as the supporting affidavit failed to identify
a nexus between the criminal activity and Vanbrackle’s home; (2) if the search
warrant affidavit was deficient, the good faith exception to the exclusionary rule
could not be applied because the deficiency in the search warrant affidavit was
known to the agent who applied for and executed the search warrant; and
(3) Vanbrackle’s statements to law enforcement officers during the execution of
the search warrant were involuntary and, thus, inadmissible.
Notably, neither the magistrate judge nor the district court addressed
whether the search warrant established probable cause that a search of
Vanbrackle’s residence would result in discovery of evidence that he had received
child pornography. Rather, both presumed that the supporting affidavit failed to
identify a nexus between the criminal activity and the residence to be searched but
found that the good faith exception to the exclusionary rule applied. Therefore,
like the district court, we decline to address whether the affidavit established
probable cause for the search warrant and instead address only the good faith
exception to the exclusionary rule and the voluntariness of Vanbrackle’s
statements to law enforcement.
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I. Good Faith Exception to the Exclusionary Rule
We review de novo the legal issue of whether the good faith exception to
the exclusionary rule, as articulated in United States v. Leon, 468 U.S. 897, 104 S.
Ct. 3405 (1984), applies to a search, but “the underlying facts upon which that
determination is based are binding on appeal unless clearly erroneous.” United
States v. Robinson, 336 F.3d 1293, 1295 (11th Cir. 2003) (quotation omitted).
The Fourth Amendment provides for the right to be free of unreasonable
searches and seizures, and mandates that “no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.” U.S. Const. amend.
IV. In order to establish probable cause, the affidavit supporting the search
warrant must “state facts sufficient to justify a conclusion that evidence or
contraband will probably be found at the premises to be searched.” United States
v. Martin, 297 F.3d 1308, 1314 (11th Cir. 2002) (quotation omitted). “Evidence
seized as the result of an illegal search may not be used by the government in a
subsequent criminal prosecution.” Id. at 1312. “The exclusionary rule, as it is
known, is a judicially created remedy designed to safeguard Fourth Amendment
rights generally through its deterrent effect.” Id. (quotation omitted).
In Leon, the Supreme Court explained that the good faith exception to the
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exclusionary rule “stands for the principle that courts generally should not render
inadmissible evidence obtained by police officers acting in reasonable reliance
upon a search warrant that is ultimately found to be unsupported by probable
cause.” Id. at 1313. The exception applies in all but four circumstances, two of
which Vanbrackle relies upon in the instant case: (1) where the warrant is based
on an affidavit “so lacking in indicia of probable cause as to render official belief
in its existence entirely unreasonable,” and (2) where the “warrant is so facially
deficient—i.e., in failing to particularize the place to be searched or the things to
be seized—that the executing officers cannot reasonably presume it to be valid.”
Id. (quotations omitted). In determining whether these exceptions apply, we
consider the totality of the circumstances surrounding issuance of the warrant.
United States v. Accardo, 749 F.2d 1477, 1481 (11th Cir. 1985).
“The Leon good faith exception requires suppression only if the officers
were dishonest or reckless in preparing their affidavit or could not have harbored
an objectively reasonable belief in the existence of probable cause.” Martin, 297
F.3d at 1313 (quotation omitted). “The purpose of the exclusionary rule is to deter
unlawful police misconduct; therefore, when officers engage in objectively
reasonable law enforcement activity and have acted in good faith when obtaining a
search warrant from a judge or magistrate, the Leon good faith exception applies.”
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Id. (quotation omitted). “It is necessary to consider the objective reasonableness,
not only of the officers who eventually executed a warrant, but also of the officers
who originally obtained it or who provided information material to the probable-
cause determination.” Leon, 468 U.S. at 923 n.24, 104 S. Ct. at 3420 n. 24. Thus,
the good faith inquiry asks whether a reasonably well-trained officer would have
known that the search was illegal because his affidavit failed to establish probable
cause. Malley v. Briggs, 475 U.S. 335, 345, 106 S. Ct. 1092, 1098 (1986).
We agree with the district court that the good faith exception to the
exclusionary rule applies to the affidavit underlying the search warrant of
Vanbrackle’s residence. First, the affidavit was not “so lacking in indicia of
probable cause as to render official belief in its existence entirely unreasonable.”
See Martin, 297 F.3d at 1313. To the contrary, it was reasonable for Agents
Blackwell and Witrick to believe that the information contained in the affidavit
was sufficient to support a finding of probable cause that evidence of the unlawful
receipt of child pornography would be found at Vanbrackle’s residence. The facts
alleged within the search warrant affidavit indicate that (1) screen names
registered to Vanbrackle at 253A Little River Lane, Rabun Gap, Georgia, were
implicated in four other cases involving the transmission or solicitation of child
pornography over the internet; (2) Vanbrackle continued to reside at 253A Little
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River Lane, Rabun Gap, Georgia; (3) Vanbrackle was believed to be a collector of
child pornography based on his activities of sending and receiving child
pornography and requests to exchange pictures of skimpily dressed children with
other AOL users; and (4) the tendency of collectors of child pornography, such as
Vanbrackle, was to retain and store images of child pornography on their
computers. Further, at the suppression hearing, Jim Persinger, a computer forensic
cybercrimes specialist, testified that people who collect child pornography do not
normally download child pornography at a public place, but typically view it at
their residence or place of employment.
While Vanbrackle argues that this evidence failed to establish that unlawful
e-mail transmissions were sent or received by him at his residence, he provides no
legal citation to support his contention that IP address information is required to
establish a link between an individual’s electronic transmission of child
pornography and that same individual’s personal residence. Cf. United States v.
Bach, 400 F.3d 622, 627–28 (8th Cir. 2005) (rejecting appellant’s assertion that a
valid warrant for searching his home computer could not have been obtained
without cross references between his telephone records and IPs provided by his
service provider). Although IP address information could have definitively shown
that a computer used at Vanbrackle’s home received the images in question, see
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United States v. Perrine, 518 F.3d 1196, 1202–03, 1205 (10th Cir. 2008) (holding
that the search warrant affidavit established probable cause to search the
appellant’s home in part because it included IP address information associated
with the appellant’s screen name), Agent Blackwell was only obligated to provide
enough facts to show a fair probability that evidence of a crime would be found at
Vanbrackle’s residence. Illinois v. Gates, 462 U.S. 213, 235, 103 S. Ct. 2317,
2330 (1983) (stating that “only the probability, not a prima facie showing, of
criminal activity is the standard of probable cause (quotation omitted)). Agent
Blackwell satisfied this obligation, and it was not unreasonable for Agents
Blackwell or Witrick to conclude that someone who was connected, by use of
screen names registered to him at his personal residence, with four other
investigations involving the transmission or solicitation of child pornography over
the internet, was a collector of child pornography. Further, based on the profile
information that collectors of child pornography retained and organized their
collections on their personal computers and the fact that Vanbrackle continued to
reside at 253A Little River Lane, Rabun Gap, Georgia, the agents could have
reasonably inferred that Vanbrackle stored his collection of child pornography on
a home computer. See Perrine, 518 F.3d at 1206–07 (“The observation that
images of child pornography are likely to be hoarded by persons interested in
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those materials in the privacy of their homes is supported by common sense and
the cases.” (quotation omitted)); United States v. Chrobak, 289 F.3d 1043, 1046
(8th Cir. 2002) (holding that an affidavit established a sufficient nexus between
the defendant’s residence and the transfer of child pornography because it
provided “evidence that he lived there and that, in her experience, pedophiles
maintain their child pornography in a secure place”).
Moreover, we reject Vanbrackle’s suggestion that the search warrant was
deficient because Blackwell failed to reference in the affidavit the absence of IP
addressees or the fact that no wireless network connection was found at his home.
Vanbrackle has not alleged that these omissions were deliberately false or
reckless. See Madiwale v. Savaiko, 117 F.3d 1321, 1326–27 (11th Cir. 1997)
(“[A] warrant affidavit violates the Fourth Amendment when it contains omissions
made intentionally or with a reckless disregard for the accuracy of the affidavit.”
(quotation omitted)). In any event, the exclusion of IP address information is not
dispositive of the probable cause determination, see Bach, 400 F.3d at 627–28, nor
would the absence of a wireless internet network have prevented a finding of
probable cause, given the existence of other means of accessing the internet, see
Madiwale, 117 F.3d at 1327 (stating that “even intentional or reckless omissions
will invalidate a warrant only if inclusion of the omitted facts would have
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prevented a finding of probable cause”).
In sum, Vanbrackle has failed to establish that Agent Blackwell was
“dishonest or reckless in preparing [his] affidavit” or that Blackwell and Witrick
could “not have harbored an objectively reasonable belief in the existence of
probable cause” on the affidavit’s facts. Martin, 297 F.3d at 1313 (quotation
omitted). Accordingly, the affidavit was not “so lacking in indicia of probable
cause as to render official belief in its existence entirely unreasonable.” Id.We also reject Vanbrackle’s second claim that the “warrant is so facially
deficient—i.e., in failing to particularize the place to be searched or the things to
be seized—that the executing officers cannot reasonably presume it to be valid.”
Id. Vanbrackle has not shown that the warrant lacked particularity in terms of the
place to be searched or items to be seized. To the contrary, the warrant described
and provided directions to the residence at 253A Little River Lane, Rabun Gap,
Georgia, and the warrant identified eleven particular categories of evidence that
could be seized. Rejecting both of Vanbrackle’s challenges, we conclude that the
district court did not err in determining that the Leon good faith exception to the
exclusionary rule applied.
II. Admissibility of Vanbrackle’s Statements
Vanbrackle next argues that his statements during the search were
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inadmissible because the circumstances under which he made the statements were
inherently coercive. The district court’s ultimate conclusion on the voluntariness
of a confession, or the waiver of rights under Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602 (1966), “raises questions of law to be reviewed de novo.” United
States v. Barbour, 70 F.3d 580, 584 (11th Cir. 1995) (quotation omitted). We
determine whether a statement was made voluntarily, and thus was “the product of
an essentially free and unconstrained choice,” by examining the totality of the
circumstances. Hubbard v. Haley, 317 F.3d 1245, 1252 (11th Cir. 2003).
Under Miranda, officers must advise an individual who is in custody of the
following: (1) his right to remain silent; (2) that, if he chooses to speak, anything
he says can be used against him in court; (3) his right to consult with a lawyer and
have his lawyer be present during interrogation; and (4) an explanation that, if he
is indigent, a lawyer will be appointed to represent him. 384 U.S. at 467–73, 86 S.
Ct. at 1624–27. An individual may effectively waive these rights “provided the
waiver is made voluntarily, knowingly and intelligently.” Id. at 444, 86 S. Ct.
at 1612. For inculpatory statements to be constitutionally admissible against a
defendant, the waiver must have been (1) “voluntary in the sense that it was the
product of a free and deliberate choice rather than intimidation, coercion, or
deception”; and (2) “made with a full awareness of both the nature of the right
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being abandoned and the consequences of the decision to abandon it.” Barbour,
70 F.3d at 585 (quotation omitted). Statements obtained in violation of Miranda,
whether exculpatory or inculpatory, are not admissible at trial. Miranda, 384 U.S.
at 444, 86 S. Ct. at 1612.
The government must “prove by a preponderance of the evidence that the
defendant voluntarily, knowingly, and intelligently waived his Miranda rights.”
United States v. Bernal-Benitez, 594 F.3d 1303, 1318 (11th Cir. 2010), cert.
denied, Cervantes-Guzman v. United States, 130 S. Ct. 2121, and cert. denied, 130
S. Ct. 2123, and petition for cert. filed, (U.S. Jun 02, 2010) (No. 10-5530).
Moreover, “the standard for evaluating the voluntariness of a confession is
whether a person made an independent and informed choice of his own free will,
possessing the capability to do so, his will not being overborne by the pressures
and circumstances swirling around him.” United States v. Castaneda-Castaneda,
729 F.2d 1360, 1362 (11th Cir. 1984) (quotation and citation omitted).
“Voluntariness depends on the totality of the circumstances and must be evaluated
on a case-by-case basis.” Id. Among the factors we consider are “the defendant’s
intelligence, the length of his detention, the nature of the interrogation, the use of
any physical force against him, or the use of any promises or inducements by
police.” Hubbard, 317 F.3d at 1253. Further, “a signed Miranda waiver form is
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usually strong proof that a suspect voluntarily waived his rights, [but] it is not
conclusive on this issue.” Hart v. Att’y Gen. of State of Fla., 323 F.3d 884, 893
(11th Cir. 2003) (quotation omitted).
We agree with the district court that the totality of the circumstances
demonstrate that Vanbrackle’s statements to law enforcement officers were
voluntary. Before Blackwell and Witrick proceeded with any questioning,
Vanbrackle affirmed that he was willing to speak with the agents, and the agents
advised him of his rights and the nature of their investigation. Both an audio
recording and a signed waiver form document that Vanbrackle had been informed
of his Miranda rights before he consented to be interviewed. See id. Vanbrackle
indicated on the waiver-of-rights form that he had obtained four years of college
education. See Hubbard, 317 F.3d at 1253. While approximately eight law
enforcement officers participated in the execution of the search warrant, some of
whom had their guns drawn upon entry, neither Blackwell nor Witrick drew their
guns during the interview, and no one stood guard over Vanbrackle. Witrick and
Blackwell interviewed Vanbrackle at his kitchen table, while other law
enforcement officers physically searched the home and conducted a forensic
search of his computer. During the interview, Vanbrackle was not handcuffed,
and he did not at any point ask to stop the questioning, nor did he request an
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attorney. Further, there is no evidence that the agents made any promises or
threats to induce his statements. See id. In sum, Vanbrackle’s post-Miranda
statements were not involuntary in that they were not the product of “intimidation,
coercion, or deception.” Barbour, 70 F.3d at 585. Thus, the district court did not
err in denying Vanbrackle’s motion to suppress his statements, and we affirm
Vanbrackle’s conviction.
AFFIRMED.1
1
Appellant’s request for oral argument is denied.
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