United States v. Kenneth Elbe

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0872n.06
Case No. 13-6571
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Nov 20, 2014
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
KENNETH ELBE, ) DISTRICT OF KENTUCKY
)
Defendant-Appellant. )
)
)
OPINION
BEFORE: McKEAGUE and KETHLEDGE, Circuit Judges; BERTELSMAN, District
Judge. *
McKEAGUE, Circuit Judge. Someone going by the username “jessiecash” logged
onto a peer-to-peer file sharing network from a hotel in South Dakota and shared 16 child
pornography images with an FBI agent. Two months later, agents again noticed jessiecash
online from another hotel in Iowa. A simple cross reference of the guest lists resulted in one
overlap: “Ken Elbe.” Over the next several months, agents monitored jessiecash’s online
activity and investigated Kenneth Elbe’s home in Central City, Kentucky. They applied for and
were granted a warrant to search his residence. The search resulted in over 130,000 seized child
*
The Honorable William O. Bertelsman, Senior United States District Judge for the Eastern
District of Kentucky, sitting by designation.
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pornography images and videos. Elbe was charged under the Child Pornography Protection Act,
and he filed a motion to suppress the evidence seized. The district court denied the motion and
Elbe pleaded guilty to five counts. He now appeals the district court’s denial of his motion to
suppress the evidence. Because there was sufficient evidence for a magistrate judge to find
probable cause, we affirm.
I.
On November 23, 2010, FBI Special Agent David Fallon logged onto a peer-to-peer
network and downloaded 16 child pornography files from username “jessiecash.” The user’s IP
address was traced to a Red Roof Inn in Sioux Falls, South Dakota. On January 18, 2011, Agent
Fallon again encountered jessiecash, but Agent Fallon did not find or download any images.
This time, the user’s IP address was traced to a Motel 60 in Centerville, Iowa. Agent Fallon
obtained guest lists from both hotels and “Ken Elbe” was the only overlapping guest. About
three months later, on April 26, 2011, jessiecash logged on a third time and the IP address was
traced to Heather Leaton’s residence in Central City, Kentucky. On this occasion, Agent Fallon
did not find or download any images, but jessiecash was sharing a text file, stating, “my
preference, girls only! I try to have for all users. Guys—if no girlie and all boy pics—then jump
off my list.” R. 25-2 at 14. Agents searched public records and found that Elbe and Leaton had
previously shared an address in Austin, Pennsylvania and that utility company records for the
Central City residence were in Elbe’s name. On June 14, 2011, Special Agent David McClelland
drove by the residence in Central City and recognized a person matching Elbe’s driver’s license
photograph sitting on the porch using a laptop computer. Also on the porch, Agent McClelland
observed a twelve-year-old child, a stroller, and children’s toys.
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Agent McClelland obtained a search warrant on June 27, 2011, for the Central City
residence. The affidavit alleged violations of 18 U.S.C § 2252A and included a background on
child pornography and how computers have “revolutionized the manner in which child
pornography is produced and distributed.” R. 25-2 at 7. It outlined the agents’ factual
observations of Elbe over the last several months. And finally, the affidavit described
characteristics common to individuals involved in child pornography. It is common, the affidavit
stated, for individuals interested in child pornography to keep hard copies in their homes and
close by, to maintain copies for several years, and to keep correspondence lists.
The magistrate judge granted the warrant and agents conducted the search on June 29,
2011. They removed from the residence computers, hard drives, photographs, undeveloped film,
and CDs. Agents seized 130,000 child pornography images and videos, including 126,106
known images and 2,407 known videos.
A grand jury indicted Elbe on five counts of child pornography offenses, and he filed an
unsuccessful motion to suppress the evidence. Elbe reserved the right to appeal the denial of his
motion and pleaded guilty to one count of using a facility in interstate commerce to transmit a
notice offering to receive, exchange, buy, produce, display, distribute and reproduce a visual
depiction of a minor engaging in sexually explicit conduct, in violation of 18 U.S.C.
§ 2251(d)(1)(A); and four counts of knowingly receiving child pornography that had been
transported in interstate commerce by means including a computer, violations of 18 U.S.C.
§ 2252(a)(2)(B). He was sentenced to 180 months’ imprisonment.
Elbe appeals the district court’s denial of his motion to suppress, claiming that probable
cause was lacking because the affidavit used boilerplate language, it did not establish a nexus
between the place to be searched and the evidence sought, and the information was stale. He
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also argues that the good faith exception to the exclusionary rule under United States v. Leon,
468 U.S. 897, 922 (1984), does not apply.
II.
Probable cause justifying the issuance of a search warrant is established if the affidavit
contains “particularized facts demonstrating ‘a fair probability that evidence of a crime will be
located on the premises of the proposed search.’” United States v. McPhearson, 469 F.3d 518,
524 (6th Cir. 2006) (quoting United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005)). We
“give great deference to a magistrate judge’s probable cause determination and reverse that
decision only if it was arbitrarily made.” United States v. Frechette, 583 F.3d 374, 379 (6th Cir.
2009) (citing United States v. Terry, 522 F.3d 645, 647–48 (6th Cir. 2008); see also Frazier,
423 F.3d at 531). Whether this standard is met “depends on the totality of the circumstances,”
including “factual and practical considerations of everyday life.” United States v. Brooks,
594 F.3d 488, 492 (6th Cir. 2010) (internal quotation marks and citations omitted).
The search warrant affidavit must establish a nexus between the place to be searched and
the evidence sought. United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc).
Stale information may not be used as a basis for probable cause. Frechette, 583 F.3d at 377–78
(citing United States v. Spikes, 158 F.3d 913, 923 (6th Cir. 1998)). Whether the information is
stale depends on the “inherent nature of the crime.” Spikes, 158 F.3d at 923.
A.
First, Elbe objects to the affidavit’s use of boilerplate language describing characteristics
common to individuals involved with child pornography and the impact of computers on child
pornography. Boilerplate language, he claims, does not constitute “particularized facts” required
by McPhearson, 469 F.3d at 524. But we have approved of the use of boilerplate language so
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long as the information contained in the affidavit provided sufficient probable cause. See United
States v. Hampton, 504 F. App’x 402, 405 (6th Cir. 2012) (per curiam); United States v. Long,
No. 94-5117, 1994 WL 669538 (6th Cir. Nov. 29, 1994). This approach is consistent with other
circuits. See United States v. Clark, 668 F.3d 934, 939 (7th Cir. 2012) (“Boilerplate language
about the tendencies of child pornography collectors supports probable cause for a search when
the affidavit also includes facts that suggest the target of the search has the characteristics of a
prototypical child pornography collector.”) (internal quotation marks and citations omitted);
United States v. Richardson, 607 F.3d 357, 371 (4th Cir. 2010) (same); United States v. Gourde,
440 F.3d 1065, 1072 (9th Cir. 2006) (en banc) (same).
In addition to boilerplate language regarding the characteristics of those interested in
child pornography, the affidavit had plenty of details. It included evidence of (1) jessiecash
sharing child pornography images from a hotel in South Dakota on November 23, 2010, and a
confirmation from the hotel manager that Elbe used the hotel’s internet services that day;
(2) observations of jessiecash logged onto the network, but not sharing, at another hotel on
January 18, 2011; (3) guest lists from both hotels confirming that Elbe was the only overlapping
guest; (4) observations of jessiecash logged on and sharing a text file regarding his picture
preferences from an IP address traced to one of Elbe’s associates in Central City, Kentucky on
April 26, 2011; and (5) physical observations of Elbe with a laptop on the porch of the residence
in Central City on June 14, 2011. The information in the affidavit, including the facts and
observations of the agents and information regarding the characteristics of individuals interested
in child pornography, provided sufficient probable cause to believe that Elbe had violated
§ 2252A. See United States v. Wagers, 452 F.3d 534, 540 (6th Cir. 2006) (“[E]vidence that a
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person has visited or subscribed to websites containing child pornography supports the
conclusion that he has likely downloaded, kept, and otherwise possessed the material.”).
B.
Next, Elbe makes a nexus argument. There must be a “‘nexus between the place to be
searched and the evidence sought.’” United States v. Brooks, 594 F.3d 488, 492 (6th Cir. 2010)
(quoting United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004)). That nexus can be
inferred from “the type of crime being investigated, the nature of things to be seized, the extent
of an opportunity to conceal the evidence elsewhere and the normal inferences that may be
drawn as to likely hiding places.” United States v. Williams, 544 F.3d 683, 687 (6th Cir. 2008)
(internal quotation marks and citations omitted). Elbe argues that the affidavit does not establish
a nexus between the residence in Central City and his computer usage. He claims that the only
information in the affidavit connecting the residence to illegal activity was Agent Fallon’s
November 23, 2010 observations, which took place seven months before the search warrant and
over 850 miles away from Central City.
Elbe’s arguments fail. We have held in the context of child pornography that an affidavit
including both information connecting the defendant to the offending username and information
about where the defendant lived established probable cause to search the defendant’s residence.
United States v. Lapsins, 570 F.3d 758, 766 (6th Cir. 2009). This inference is permitted in the
child pornography context, we have explained, because these crimes are committed in a private
place with high-speed Internet. Id. (citing Wagers, 452 F.3d at 540). The agents established that
Elbe’s jessiecash account was associated with his residence. They did so by tying jessiecash to
Elbe with evidence of IP addresses from two hotels. And a few months later, agents tied
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jessiecash to a residence in Central City with high-speed Internet, where agents observed Elbe,
and where Elbe paid utility bills. That is a sufficient nexus.
Elbe’s reliance on United States v. Green, 634 F.2d 222 (5th Cir. 1981), does not change
this conclusion. In that case, involving a firearm conviction, the affidavit alleged criminal
activity in California, and the magistrate judge granted a search warrant on defendant’s Florida
residence without evidence to connect the two locations. Id. at 226. But here, there is sufficient
evidence tying the activity at the Red Roof Inn in South Dakota with his username and with his
residence in Central City. This evidence, combined with the nature of the crime, established a
nexus.
C.
Finally, Elbe argues that the information in the affidavit was stale. The point of the
expiration of probable cause is determined by the nature of the crime and the circumstances of
that case. United States v. Lewis, 605 F.3d 395, 402 (6th Cir. 2010). Rather than focusing on the
timeline of the evidence, we look to four factors to measure staleness:
(1) the character of the crime (chance encounter in the night or regenerating
conspiracy?), (2) the criminal (nomadic or entrenched?), (3) the thing to be
seized (perishable and easily transferrable or of enduring utility to its
holder?), and (4) the place to be searched (mere criminal forum of
convenience or secure operational base?).
Frechette, 583 F.3d at 378 (quoting United States v. Abboud, 438 F.3d 554, 572–73 (6th Cir.
2006)).
Under these factors, the information in the affidavit was not stale. For the first factor, we
have held that “child pornography is not a fleeting crime” and it is a crime that is “generally
carried out in the secrecy of the home and over a long period.” Id. As a result, the time
limitations applied to more fleeting crimes do not control. Id. With child pornography, as
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recognized in the search warrant affidavit here, agents can recover erased, hidden, or encrypted
files from hard drives. Terry, 522 F.3d at 650 n.2; see also Lewis, 605 F.3d at 402. Our “relaxed
approach” towards these temporal requirements in child pornography cases comports with the
practice of other circuits. See United States v. Paull, 551 F.3d 516, 522 (6th Cir. 2009) (citing
cases).
For the second factor, the defendant may be considered nomadic when the person moves
“from place to place, so as to decrease the probability of finding evidence at a given location.”
Abboud, 438 F.3d at 573. Here, Elbe was entrenched. He lived in the Central City residence
where he paid utilities. The fact that he logged onto the peer-to-peer network from hotels on two
occasions does not constitute moving “from place to place.”
For the third factor, child pornography has a potentially infinite life span because files
“can be easily duplicated and kept indefinitely even if they are sold or traded.” Frechette,
583 F.3d at 379. And, as the search warrant recognized, child pornography can be uncovered on
a hard drive even if those images have been deleted. Terry, 522 F.3d at 650 n.2.
Finally, for the fourth factor, the place to be searched in this case was Elbe’s residence, a
“secure operational base.” See Frechette, 583 F.3d at 379; Paull, 551 F.3d at 522 (“[T]he crime
[of child pornography] is generally carried out in the secrecy of the home and over a long
period.”). Given the nature of child pornography, the evidence of ongoing criminal activity, and
our precedent upholding similar delays, the information in the affidavit was not stale. See Paull,
551 F.3d at 522 (thirteen months); Lewis, 605 F.3d at 402 (seven months); Lapsins, 570 F.3d at
767 (nine months); Frechette, 583 F.3d at 378–79 (sixteen months).
Elbe asks us to reconsider Frechette. He claims that applying the four factors in the child
pornography context renders the staleness determination obsolete because it alters the usual
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temporal requirements and because the defendant, committing the crime from a permanent or
semi-permanent residence, is always entrenched. A panel of this court may not overturn binding
precedent because a published prior panel decision “remains controlling authority unless an
inconsistent decision of the United States Supreme Court requires modification of the decision or
this Court sitting en banc overrules the prior decision.” Salmi v. Sec’y of Health & Human
Servs., 774 F.2d 685, 689 (6th Cir. 1985). Thus, we cannot overrule Frechette.
III.
The information set forth in the affidavit was sufficient for a magistrate judge to find
probable cause. The affidavit included particularized facts and it established a nexus between
the place to be searched and the evidence sought. And the information was not stale. Because
we find there was sufficient probable cause, it is not necessary to address the good faith
exception. For these reasons, we affirm.
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