U.S. v. Payne

• Decision Date: 31 July 2003
• Docket Number: No. 01-50351.,01-50351.
• Citation: 341 F.3d 393
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lonnie Jearl PAYNE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 393

341 F.3d 393

UNITED STATES of America, Plaintiff-Appellee, v. Lonnie Jearl PAYNE, Defendant-Appellant.

No. 01-50351.

United States Court of Appeals, Fifth Circuit.

July 31, 2003.

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Joseph H. Gay, Jr., Asst. U.S. Atty., Mark Twain Roomberg (argued), San Antonio, TX, for Plaintiff-Appellee.

David Paul Henry (argued), Mark Pryor, Vinson & Elkins, Dallas, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before DUHÉ, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

DUHÉ, Circuit Judge:

Defendant Lonnie Jearl Payne (Payne) appeals his convictions for knowingly receiving child pornography in violation of 18 U.S.C. § 2252A and for possessing a firearm in violation of 18 U.S.C. § 922(g)(1). Specifically, Payne appeals the district court's denial of his motion to suppress and contends that he was prejudiced by duplicity in Count Three of his indictment. Payne also challenges the sufficiency of the evidence supporting his conviction for receiving child pornography. We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

The events leading to Payne's arrest began with the interview of seventeen-year-old Starla Nickels by Investigator Reba Beam of the Midland County Sheriff's Office. During the interview, Nickels reported that she had been bonded out of jail by Lonnie Payne, the owner of Midland Bail Bonds. Because she had no money, Payne required Nickels to pose for nude pictures and have sex with him in lieu of the bond fee. Payne later told Nickels he had posted the nude pictures of her on a sexually explicit website. During another encounter, Payne displayed on his office computer sexually explicit pictures of women and advised Nickels that she should imitate the women's poses the next time he photographed her. Payne also tried to convince Nickels to work in a strip club, offering her alcohol to overcome her reluctance, and explaining that he could get her a job at the club despite her being underage because he knew the owners.

Investigator Beam pursued the investigation with FBI Special Agent David Sutherland and Detective Sheldon Johnson, the primary child pornography investigator for Midland. The investigators searched the trash outside Payne's bail bond office and discovered photographs of unidentified adult women, one of whom was in a "sexy" pose. They interviewed Tracy Massingill, who had introduced Nickels to Payne, and who reported that she, too, had sex with Payne in exchange for a bail bond.

Agent Sutherland was the FBI agent assigned to investigate child pornography and sexual exploitation cases in Midland; however, this case was his first experience investigating child sexual exploitation. He used a form supplied by Detective Johnson, who was experienced in child pornography investigations, to draft the affidavit supporting his request for a search warrant.¹

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After drafting the affidavit, Agent Sutherland consulted with Detective Johnson, Inspector Beam, and a prosecutor with the U.S. Attorney's Office to be sure that the affidavit demonstrated probable cause. All agreed it did. The morning that Agent Sutherland was to present the affidavit to a magistrate, two deputies reported to him that they had received statements from two more women that the women could have sex with Payne to get out of jail. Agent Sutherland handwrote this additional allegation, as well as a correction of Payne's address, on the affidavit. He then presented it to the magistrate, who initialed the handwritten material to validate its inclusion in the affidavit, and, finding probable cause, issued warrants authorizing searches of Payne's home, office, and vehicle.

The search of Payne's home yielded a computer, computer disks, and other items, such as videotapes and undeveloped film. Officers also found several firearms, which they did not seize; instead, they obtained a second warrant for the firearms based on their observation of them during execution of the first warrant. The disks and computer revealed many images of pornography, some of which depicted teenaged children and young children. A disk in the home computer's A drive revealed sexually explicit images of Starla Nickels.

Payne was arrested and indicted in four counts, which charged him with violations of (1) 18 U.S.C. § 2251 (enticing a minor to engage in sexually explicit conduct); (2) 18 U.S.C. § 2252 (producing and transporting through interstate commerce a visual depiction of a minor engaged in sexually explicit conduct); (3) 18 U.S.C. 2252A (knowingly receiving child pornography and knowingly possessing child pornography); (4) and 18 U.S.C. §§ 922(g)(1) (felon in possession of a firearm).

Payne moved to suppress the evidence obtained from his home, arguing that the warrant was issued without probable cause. The district court found both that probable cause supported the warrant and that, even if probable cause were absent, the evidence would be admissible under the good-faith exception to the exclusionary rule.

During the trial, Payne objected to duplicity in Count Three of the indictment. The district court determined that Payne had waived his objection by failing to raise it before trial. Fed. R Crim. Pro. 12(b). After reviewing the indictment to determine the potential prejudice to Payne, the court instructed the jury that Count Three charged two separate offenses and provided the jury a verdict form that allowed for a verdict on each offense. After the close of the government's evidence, the court acquitted Payne of Count Two based on insufficient evidence. The jury acquitted Payne of Count One and convicted him of both offenses charged in Count Three. Payne pled guilty to Count Four.

Payne now asserts that the rulings on his motion to suppress and his objection to the indictment were error. He also challenges sufficiency of the evidence supporting his conviction on Count Three.

II. MOTION TO SUPPRESS

Payne contends that the evidence from home must be suppressed, arguing that (1) the first warrant was issued without probable cause as to his home because the supporting affidavit provided no nexus between the alleged criminal activity and his home; and (2) probable cause for the second warrant was developed during the first, invalid search, therefore requiring suppression of any evidence seized as fruit of the poisonous tree.

When the district court denies a motion to suppress, we review factual findings for clear error and conclusions of law de novo. United States v. Cherna, 184 F.3d 403, 406-07 (5th Cir.1999). For purposes of the good-faith exception, we review the district court's evaluation of officers' objective reasonableness de novo. U.S. v. Pena-Rodriguez, 110 F.3d 1120, 1130 n. 10 (5th Cir.1997) (internal quotations omitted).

We consider probable cause questions in two stages. First we determine whether the good-faith exception to the exclusionary rule, announced in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), applies. See Id. at 1129-30. If it does, we need not reach the question of probable cause for the warrant unless it presents a "novel question of law," resolution of which is "necessary to guide future action by law enforcement officers and magistrates," Id. (citations omitted). We conclude that this case presents no such novel question.

Under the good-faith exception, evidence obtained during the execution of a warrant later determined to be deficient is admissible nonetheless, so long as the executing officers' reliance on the warrant was objectively reasonable and in good faith. Leon, 468 U.S. at 921-25, 104 S.Ct. 3405. "[T]he officer's reliance on the magistrate's probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable, and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued." Id. at 922-23, 104 S.Ct. 3405 (citations omitted). The good faith exception cannot apply if one of four circumstances is present: "(1) If the issuing magistrate/judge was misled by information in an affidavit that the affiant knew was false or would have known except for reckless disregard of the truth; (2) where the issuing magistrate/judge wholly abandoned his or her judicial role; (3) 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 (4) where the warrant is so facially deficient 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." United States v. Webster, 960 F.2d 1301, 1307 n. 4 (5th Cir.1992).

In considering whether the good-faith exception applies, we do not attempt an "expedition into the minds of police officers" to determine their subjective belief regarding the validity of the warrant. Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405 (internal quotations omitted). Rather, our inquiry is "confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization." Id. Whether the exception applies "will ordinarily depend on an examination of the affidavit by the reviewing court," United States v. Gant, 759 F.2d 484, 487-88 (5th Cir.1985), but "all of the circumstances [surrounding issuance of the warrant] may be considered." Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405.

Payne argues that the affidavit is "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." While conceding that the affidavit supported probable cause that evidence of a practice of exchanging bail bonds for sex would be found at his office, Payne argues that it fails to demonstrate any likelihood that child pornography would be found in his home.

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