United States v. Edward Wright

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 6 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10303
Plaintiff-Appellee, D.C. No. 3:19-cr-00012-MMD-
WGC-1
v.
EDWARD WRIGHT, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Argued and Submitted November 15, 2021
San Francisco, California
Before: PAEZ and FRIEDLAND, Circuit Judges, and KORMAN,** District Judge.
On January 28, 2019, Timothy Bennett (“Bennett”) told Detective Laura
Thomsen (“Thomsen”) that he had found about twenty images of child pornography
on Edward Wright’s (“Wright”) tablet depicting children ranging from about four to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
ten years old. Bennett said he had seen these when Wright loaned him the tablet and
described some of the images as displaying girls’ private areas in sexually graphic
ways.
Bennett explained to Thomsen how he knew Wright. Specifically, Bennett
lived in a studio apartment in subsidized housing and had permitted Wright (who
was homeless) to move in a few months earlier. Bennett also told Thomsen that he
and Wright did not get along as roommates and described an incident where Bennett
attempted to choke Wright. Bennett additionally stated that he wanted to kick Wright
out of his apartment by February 1, 2019 because Wright did not have money to pay
rent. Bennett also mentioned that he (Bennett) had a prior felony conviction from
2007.
The next morning, Thomsen arrested Wright for failure to update his sex
offender registration and seized his electronic devices, including his phone, watch,
and tablet. Thomsen then obtained a search warrant to examine Wright’s tablet, the
contents of which Bennett had described, as well as his other electronic devices. The
warrant application explained that Wright had previously been convicted of
possessing child pornography, that he had a history of failing to update his
registration as a sex offender, that he was under investigation as a suspect for the
sexual abuse of a four-year-old girl, and that he had failed to show up for a polygraph
related to those allegations. Thomsen’s warrant application also relayed much of the
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information that she had received from Bennett. Nevertheless, it omitted
information, including that: (1) Bennett and Wright got into a physical altercation,
(2) Bennett allowed Wright to stay with him in his apartment in violation of the rules
for Bennett’s subsidized housing, (3) Bennett wanted Wright out of his apartment
and arrested, (4) Bennett had passwords to Wright’s electronic devices and had
accessed them without Wright’s permission at least once, and (5) Bennett had a 2007
felony conviction for obtaining money by false pretenses and grand larceny.
The search of Wright’s tablet revealed approximately 250 to 300 images of
child pornography, including images involving sexual violence. After Wright was
indicted for receiving and possessing child pornography in violation of 18 U.S.C.
§ 2256(8), he moved to suppress this evidence, arguing that Thomsen had
deliberately omitted information from the warrant application that cast doubt on
Bennett’s credibility. While the district judge was critical of Thomsen for failing to
disclose Bennett’s potential motives for reporting Wright’s crimes, she nevertheless
concluded that the issuing judge “still could have found Bennett sufficiently credible
even with the [omissions] added back in.” The district court then explained that the
application included enough other information to establish probable cause even in
light of Bennett’s diminished credibility. First, the warrant application disclosed that
Wright had previously pled guilty to possessing child pornography, which “made it
somewhat more likely that his electronic devices contained child pornography.”
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Second, the application stated that Thomsen had been investigating and had arrested
Wright for failure to update his sex offender registration. Third, the warrant
application explained that Wright was the suspect in the sexual assault of a four-
year-old child and had failed to appear for a polygraph associated with the
investigation. The district judge explained that these facts made it easier to draw the
inference that Wright’s devices contained child pornography, that he was on the run
from law enforcement, and that he had something to hide. The court held that these
three sets of facts, together with Bennett’s report, supported a finding of probable
cause.
Wright entered a conditional guilty plea to one count of possessing child
pornography in violation of 18 U.S.C. § 2256(8) that preserved his right to appeal
the denial of his suppression motion. In this appeal, which followed the entry of a
final judgment of conviction, Wright argues that the evidence obtained from the
search of his tablet should have been suppressed. We review de novo a district
court’s denial of a motion to suppress. United States v. Zapien, 861 F.3d 971, 974
(9th Cir. 2017). Because it is not disputed that Thomsen omitted information related
to Bennett from the search warrant affidavit, “[t]he key inquiry is whether probable
cause remains once the evidence presented to the magistrate judge is supplemented
with the challenged omissions.” United States v. Perkins, 850 F.3d 1109, 1119 (9th
Cir. 2017) (internal quotations marks and citation omitted). It does.
4
The omissions in Thomsen’s affidavit undermined Bennett’s credibility as an
informant, but they did not render his statements entirely untrustworthy. See United
States v. Meling, 47 F.3d 1546, 1555 (9th Cir. 1995) (“[T]he fact that an informant
has an ulterior or impure motive in coming forward to provide information to the
police does not preclude a finding that the informant is nevertheless credible.”).
Indeed, aside from the specific information he provided, Bennett disclosed the facts
that suggested he had a motive to report Wright. These disclosures are not of the
kind that would be made by a person providing false information. They enhance
rather than undermine Bennett’s credibility. So too does the fact that Bennett
subjected himself to possible criminal prosecution for making false or misleading
statements to a public officer. See Nev. Rev. Stat. § 197.190; see also Adams v.
Williams, 407 U.S. 143, 146–47 (1972) (recognizing the significance of exposure to
criminal prosecution for false statements as a factor in evaluating an informant’s
credibility).
The allegations in the affidavit, even without the information Bennett
provided, demonstrated that Wright had acted in a manner consistent with “an
abnormal sexual attraction to children.” Pedophilia, Stedman’s Medical Dictionary
for the Health Professions and Nursing (7th ed. 2012). He had a previous conviction
for possessing child pornography, was under investigation for failing to update his
sex offender registration, was suspected of sexually assaulting a four-year-old child,
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and failed to appear for a polygraph related to that allegation. Although such a
history does not, by itself, “establish probable cause to search a suspected child
molester’s home for child pornography,” United States v. Needham, 718 F.3d 1190,
1195 (9th Cir. 2013), it may support an inference that the suspect possesses
additional child pornography, see Perkins, 850 F.3d at 1119–20. See also Jones v.
United States, 362 U.S. 257, 271 (1960) (noting that evidence that the defendant
“was a known user of narcotics made the [narcotics] charge against him much less
subject to scepticism than would be such a charge against one without such a
history”), overruled on other grounds by United States v. Salvucci, 448 U.S. 83(1980).
Against this backdrop, the information that Bennett provided appears
plausible and credible. All of these facts, together, were sufficient to establish
probable cause. In sum, Wright’s motion to suppress was properly denied.1
1
Contrary to Wright’s argument, the officers’ biometric scan of his
face to unlock his phone—which contained no child pornography—does not
amount to “flagrant disregard” of his Fifth Amendment rights such that it could
justify suppressing the evidence lawfully obtained from his tablet. United States v.
Chen, 979 F.2d 714, 717 (9th Cir. 1992). Nor did the prosecution’s delay in
providing discovery material “result[] in prejudice to substantial rights” such that
Wright would be entitled to suppression to remedy any violation. United States v.
Amlani, 111 F.3d 705, 712 (9th Cir. 1997) (internal quotation marks and citation
omitted).
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Finally, Wright challenges four conditions of his supervised release. Because
Wright signed a valid appeal waiver, he may argue on appeal only that those
conditions “exceed[] the permissible statutory penalty [for the crime] or violate[]
the Constitution.” United States v. Watson, 582 F.3d 974, 981 (9th Cir. 2009). Yet
our precedents establish the legality of all the challenged conditions. See United
States v. Gibson, 998 F.3d 415, 422–23 (9th Cir. 2021) (risk notification), petition
for cert. docketed, No. 21-6465 (Dec. 1, 2021); United States v. Ochoa, 932 F.3d
866, 869–71 (9th Cir. 2019) (prohibiting access to material depicting sexually
explicit conduct involving adults to defendant convicted of child pornography
offense); United States v. Quinzon, 643 F.3d 1266, 1271–75 (9th Cir. 2011)
(computer monitoring for defendant convicted of child pornography offense);
United States v. Stoterau, 524 F.3d 988, 1003–04 (9th Cir. 2008) (polygraph
testing).
AFFIRMED.
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