United States v. Dumas

20-3408-cr
United States v. Dumas
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
3 New York, on the 8th day of March, two thousand twenty-two.
4
5 PRESENT:
1 PIERRE N. LEVAL,
2 MICHAEL H. PARK,
3 MYRNA PÉREZ,
4 Circuit Judges.
1 _______________________________________
2
3 UNITED STATES OF AMERICA,
4
5 Appellee,
6
7 v. 20-3408
8
9 BRANDON L. DUMAS,
10
11 Defendant-Appellant.
12 _______________________________________
13
14 FOR DEFENDANT-APPELLANT: ANDREW R. SAFRANKO, Lamarche Safranko
15 Law PLLC, Albany, NY.
16
17 FOR APPELLEE: ELIZABETH C. COOMBE (Steven D. Clymer,
18 on the brief), for Antoinette T. Bacon, Acting
19 United States Attorney for the Northern
20 District of New York, Albany, NY.
1
2
3 Appeal from a judgment of the United States District Court for the Northern District of
4 New York (Mordue, J.).
5 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
6 DECREED that the judgment of the district court is AFFIRMED.
7 On September 29, 2017, an acquaintance of Defendant Brandon L. Dumas (“witness”)
8 made a report to the Federal Bureau of Investigation (“FBI”) concerning exploitation of a minor
9 by Dumas. That day, the witness had received from Dumas over Facebook messenger a picture
10 of Dumas’s face covered in feces and a picture of a boy wearing only a shirt sitting on the chest of
11 an unidentifiable adult male, along with messages suggesting that he was sexually abusing the
12 child. Christopher R. Smith, an Investigator with the Colonie Police Department and Task Force
13 Officer with the FBI, verified the report and submitted a search warrant application. On October
14 5, the local criminal court in Colonie issued a search warrant authorizing the seizure of property
15 “believed to contain evidence that will constitute, substantiate or support violations of Articles
16 130/235/263/260 of the Penal Law of the State of New York.” App’x at 96. The search warrant
17 was executed the following day by members of the Albany FBI Child Exploitation Task Force,
18 including Smith, and they seized Dumas’s cell phone and laptop, which both contained images
19 and videos of child pornography.
20 Dumas was indicted on two counts of distribution of child pornography, 18 U.S.C.
21 § 2252A(a)(2)(A), one count of receipt of child pornography, 18 U.S.C. § 2252A(a)(2)(A), and
22 two counts of possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B). Dumas moved to
23 suppress physical evidence seized during the warrant execution, arguing that the warrant was
24 overbroad and not sufficiently particular, that the good-faith exception to the exclusionary rule
25 should not apply, and alternatively, that he was entitled to a Franks hearing. The district court
2
26 found that the warrant was insufficiently particular but denied the motion, concluding that the
27 good-faith exception to the exclusionary rule applied. Dumas entered a conditional guilty plea to
28 all counts in the indictment, preserving his right to appeal the district court’s application of the
29 good-faith exception. Dumas timely appealed. We assume the parties’ familiarity with the
30 underlying facts, the procedural history of the case, and the issues on appeal.
31 The government does not dispute that the warrant was insufficiently particular to satisfy
32 the Fourth Amendment because the warrant allowed officers to seize evidence of 47 different
33 crimes within Articles 130, 235, 260, 263 of the New York Penal Law, many of which were
34 unrelated to the evidence in the warrant application. The parties dispute only whether the district
35 court erred by applying the good-faith exception to the exclusionary rule, which we review de
36 novo. See United States v. Caraher, 973 F.3d 57, 61 (2d Cir. 2020).
37 Although exclusion of evidence is the typical remedy for a Fourth Amendment violation,
38 the Supreme Court has recognized a good-faith exception when law enforcement officers act in
39 objectively reasonable reliance on a warrant that is later invalidated. See United States v. Leon,
40 468 U.S. 897, 922 (1984). The Court identified four circumstances where the good-faith
41 exception would not apply:
42 (1) where the issuing magistrate has been knowingly misled; (2) where the issuing
43 magistrate wholly abandoned his or her judicial role; (3) where the application is
44 so lacking in indicia of probable cause as to render reliance upon it unreasonable;
45 and (4) where the warrant is so facially deficient that reliance upon it is
46 unreasonable.
47
48 United States v. Moore, 968 F.2d 216, 222 (2d Cir. 1992) (citing Leon, 468 U.S. at 923). Dumas
49 argues that the first, third, and fourth circumstances apply here.
50 First, Dumas argues that Smith knowingly misled the magistrate in his warrant application
51 by (1) stating that Dumas was the unidentifiable male in the picture with the boy; (2) redacting the
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52 photo of the boy and stating that the boy’s buttocks was “exposed,” suggesting the photo was more
53 explicit than it actually was; and (3) omitting Dumas’s statement “Jk just messing w you” in
54 Smith’s description of the investigation. App’x at 105, 111. We are unpersuaded. Although
55 the government acknowledges that Dumas cannot be positively identified in the picture with the
56 boy, it was reasonable to infer that Dumas was the adult male in the picture based on his messages.
57 Dumas had just stated that he was “spending tons of time with” his friend’s ten-year-old son;
58 Dumas sent the photo with the message, “Today”; and after sending the picture, Dumas stated,
59 “It’s the fact that it ain’t right which is so hot[.] Like playin w him for example.” App’x at 110–
60 11. Nor was it misleading to describe the boy’s buttocks as “exposed”—the boy in the photo is
61 wearing only a shirt and the side of his buttocks is visible. And Smith attached a copy of the
62 entire Facebook messenger conversation, which included the “Jk just messing w you” message, to
63 the warrant application.
64 Dumas also contends that although his messages might be sufficient for probable cause of
65 child abuse, they were not sufficient for probable cause of child pornography. We disagree.
66 Through his messages, Dumas not only described sexual abuse of a minor, but he also sent
67 pictures—one of which depicted a boy wearing only a shirt—documenting his behavior. Based
68 on this information, it was reasonable to infer that Dumas had taken additional pictures of the boy
69 that would constitute child pornography. 1
1
Dumas also claims that describing the boy’s buttocks as “exposed” and redacting the photo made
it seem like an example of child pornography when it was not. As explained above, the warrant application
was not misleading, and even if the photo was unredacted and Smith decided to use a different description,
Dumas’s messages would still be sufficient to establish probable cause of child pornography. See United
States v. Canfield, 212 F.3d 713, 718 (2d Cir. 2000) (“The ultimate inquiry is whether, after putting aside
erroneous information and material omissions, there remains a residue of independent and lawful
information sufficient to support probable cause.” (cleaned up)).
4
70 Finally, Dumas argues that the warrant was so facially deficient that reliance upon it was
71 unreasonable. He attempts to distinguish this case from United States v. Rosa, in which we held
72 that the good-faith exception applied. 626 F.3d 56, 64–66 (2d Cir. 2010). We are unconvinced.
73 Here, the warrant, though deficient, was more specific than the one in Rosa, which permitted police
74 to seize and search items “which would tend to identify criminal conduct.” Id. at 58. And, as in
75 Rosa, “[t]he search warrant application” here “ma[de] clear that the purpose of the search was to
76 obtain evidence of child pornography and child [sexual abuse]” where it stated:
77 there is cause to believe that there is sexual abuse of a minor by Brandon L. Dumas
78 and that [his] computer or computers . . . may contain images of child pornography,
79 and that Brandon L. Dumas . . . has made these images of child pornography
80 available for distribution via the Internet, in violation of Articles 130/235/263/260
81 of the New York State Penal Law.
82
83 Id. at 65; App’x at 105.
84 Additionally, Smith was the affiant in the application and was involved in the
85 execution of the search warrant, and thus “was intimately familiar with the contemplated
86 limits of the search.” Rosa, 626 F.3d at 65; cf. In re 650 Fifth Ave., 934 F.3d 147, 163 (2d
87 Cir. 2019) (holding that the good-faith exception did not apply in part because “there [was]
88 no evidence that anyone on the search team reviewed the [agent’s] affidavit before the
89 search or heard from [the agent] during the operations briefing”). And the agents seized
90 only Dumas’s phone and laptop, so there was “no evidence that the team of officers
91 searched for, or seized, any items that were unrelated to the crimes for which probable
92 cause had been shown.” Rosa, 626 F.3d at 65; cf. In re 650 Fifth Ave., 934 F.3d at 164
93 (government “seized over two hundred boxes of evidence and several computers”).
94 In sum, what occurred here was not the “deliberate, reckless, or grossly negligent
95 conduct” or “recurring or systemic negligence” that the exclusionary rule is meant to deter,
5
96 and law enforcement’s conduct was not sufficiently culpable or deliberate to make
97 deterrence “worth the price paid by the justice system.” Herring v. United States, 555
98 U.S. 135, 144 (2009).
99 We have considered the remainder of Dumas’s arguments and find them to be without
100 merit. 2 Accordingly, we affirm the judgment of the district court.
101 FOR THE COURT:
102 Catherine O’Hagan Wolfe, Clerk of Court
2
Dumas waived his Franks hearing claim by failing to preserve this issue in his conditional plea
agreement. See United States v. Coffin, 76 F.3d 494, 497 (2d Cir. 1996) (“The issues preserved for appeal
must be framed with precision and stated with specificity.”). In any event, as explained above, Dumas’s
claim fails on the merits because he has not shown that Smith “intentionally or recklessly” included a “false
statement . . . integral to the probable cause finding.” Caraher, 973 F.3d at 62.
6