42 F.3d 1389 (6th Cir. 1994), 94-5117, U.S. v. Long

Citation42 F.3d 1389
Party NameUNITED STATES of America, Plaintiff-Appellant, v. Clay William LONG, Defendant-Appellee.
Case DateNovember 29, 1994
CourtUnited States Courts of Appeals, U.S. Court of Appeals — Sixth Circuit

Page 1389

42 F.3d 1389 (6th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellant,

v.

Clay William LONG, Defendant-Appellee.

No. 94-5117.

United States Court of Appeals, Sixth Circuit

November 29, 1994

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)

On Appeal from the United States District Court for the Western District of Kentucky; No. 92-00139, Simpson, J.

W.D.Ky.

REVERSED AND REMANDED.

Before: MILBURN and DAUGHTREY, Circuit Judges; and WEIS, Senior Circuit Judge. [*]

MILBURN, Circuit Judge.

Plaintiff United States of America appeals the order of the district court granting in part and denying in part defendant Clay William Long's motion to suppress evidence. On appeal, the issue is whether the district court erred in suppressing certain child pornographic evidence seized pursuant to a search warrant. For the reasons that follow, we reverse and remand.

I.

A.

In early August 1991, a video tape depicting child pornography was discovered at the International Mail Facility in Chicago, Illinois. The video tape was subsequently seized by United States Customs Inspectors and then forwarded to Special Agent Donald Obermiller of the United States Customs Service. On August 13, 1991, after being notified by Special Agent Obermiller of the discovery, Special Agent Brian H. Falvey, also of the United States Customs Service, took possession of the video tape.

The envelope containing the video tape was addressed to defendant at his residence, 5018 Marina Cove in Prospect, Kentucky, and revealed that the video tape was mailed from Amsterdam, The Netherlands. The tape itself was electronically formatted to be played on European VCR units only and was incompatible with American VCR units. On the front outer casing of the tape was the title: "Keyhole Teens." The name, "Seventeen," was printed on the top left side of the outer casing. Printed on the bottom of the front outer casing were the words, "Your Key to 14 Candid Amateur Teenies, Volume 3." J.A. 45. On the front casing was the picture of two young females, allegedly with their breasts and genitalia exposed. On the back side of the outer casing were nine photos of nude, or partially nude, young females, along with the following text:

Peer into a forbidden teenage world: twelve very young, but extremely randy girls show themselves for the first time in front of the camera. Real amateur items, full of candid camera shots of real school girls who send their little cunts from one orgasm to the other using fingers, vibrators and sexy toys. You won't keep your pants dry!

J.A. 61.

Included within the tape casing was a Club 17 order form which listed the titles of several magazines offered for sale, including: "Seventeen Special," "Seventeen's Teenager," "Seventeen's School Girl," and "Teeners from Holland." Along with these magazine titles, the order form also offered videos for sale, including: "Love Game," "Anal Teeners," "Teenage Love," "Hot Teeners," "Teenage Lessons," "Teenage Sex Sport," "Teenage Pleasure," "Anal Lust," "Teenage Extreme," "Teeners 1-2," "Channel 17 1-9," "School Girl 1-8," "Summer Camp/Zomer Camp," "Teeners from Holland 1-2," "Keyhole Teens 1-3," "Teenage Perversions 1-2," "Telephone Teens," "Teen World," and "Russian Teens." On the bottom of the order form was the disclaimer:

Please note that Seventeen does not take any responsibility in [sic] case sendings are captured by police or customs officials! PAYMENT: In cash (via registered mail!) or by Euro Cheque if amount is over Dfl. 100. Please write cheque in Dutch currency and send it to:

CLUB SEVENTEEN

P.O. Box 10979

1001 EZ Amsterdam

J.A. 46-47.

On August 15, 1991, Special Agent Falvey was notified that customs inspectors at the International Mail Facility in Chicago had discovered another child pornography tape addressed to defendant at his residence in Prospect, Kentucky. This tape, entitled "Teenage Pleasure," was, just as with the first tape, electronically formatted to be played on European VCR units, was incompatible with American VCR units and was sent from Amsterdam, The Netherlands. The front casing on the tape contained the word, "Seventeen," on the top. Beneath the word "Seventeen" was a picture of allegedly young male and female models engaged in masturbation, oral sodomy and anal intercourse. Beneath the picture on the front outer casing were the captions, "7 Teenagers in Horny Action!," "Lesbian Sex," and "Anal Sex." The back side of the outer casing allegedly depicted male and female models engaged in oral sodomy, anal intercourse, masturbation and lesbianism, with the caption:

Take a peek into the erotic world of teenagers. A sparkling teenager film of horny action. Lustfully, young teenagers [sic] girls turn their boyfriends on, leading them to explosive orgasms!

J.A. 62.

On August 16, 1991, Special Agent Falvey met with Dr. Ken Schikler, a pediatrician employed at the University of Louisville Medical School. After reviewing the two video tapes, Dr. Schikler opined that several of the models appeared to be under 18 years of age, some as young as 14 years old. Special Agent Falvey also viewed the video tapes and described the tapes as depicting genital-genital, oral-genital, and anal-genital intercourse between persons of the same and opposite sex, masturbation, sadistic or masochistic sexual abuse, and lascivious exhibition of the genitals or pubic areas.

On October 2, 1991, Special Agent Falvey submitted to the district court an application and affidavit for a search warrant to search defendant's residence at 5018 Marina Cove, Prospect, Kentucky. In his affidavit, Special Agent Falvey averred that based on his experience as an investigator of child pornography, and what he learned from experts in the field, persons having sexual interest in children commonly:

(a) receive sexual gratification from physical conduct with and fantasies involving children in sexual activities; (b) collect sexually explicit materials for their sexual arousal; (c) rarely dispose of these sexually explicit materials; (d) correspond with other persons having sexual interest in children; (e) prefer with [sic] contact with children of a particular gender or age; (f) collect and retain photographs of children with whom they have been involved; (g) maintain collections of books, magazines and other writings of sexual activities with children; (h) own and operate photographic reproduction equipment; (i) are very concerned with the security of their collection of illicit materials and commonly secret their collection within their residence or safety deposit boxes; (j) keep names, addresses and telephone numbers of children with whom they have been involved; (k) keep a diary containing records of their sexual activities with children.

J.A. 63-64. Based upon his experience and information from experts, Special Agent Falvey stated in the application for a search warrant that he had reason to believe defendant's residence contained:

a). VHS video cassette tapes labeled "KEYHOLE TEENS" and "TEENAGE PLEASURE", to include mailing containers bearing international registry numbers 2322 and 1581, respectively, and addressed to Clay W. Long, 5018 Marina Cove, Prospect, Kentucky 40089.

b). Films and video cassette tapes containing visual depictions of minors or prepubescent children engaged in sexually explicit conduct, as defined in Title 18, United States Code, Section 2256.

c). Still camera, video cameras, camcorders, American and/or European video cassette recorders, and other photographic and video recording equipment used or capable of use to produce, play or reproduce video cassettes, photographs, or films depicting minors or prepubescent children engaged in sexually explicit conduct, as defined in Title 18, United States Code, Section 2256.

d). Books and magazines containing visual depictions of minors engaged in sexually explicit conduct, as defined in Title 18 United States Code, Section 2256.

e). Originals, copies and negatives of visual depictions of minors engaged in sexually explicit conduct, as defined in Title 18 United States Code, Section 2256.

f). Envelopes, letters and correspondence offering to buy, sell or otherwise transmit through the United States Mails, visual depictions of minors engaged in sexually explicit conduct, as defined in Title 18, United States Code, Section 2256.

g). Envelopes, letters and other correspondence containing information and intelligence concerning the transmission through the United States Mails of visual depictions of minors engaged in sexually explicit conduct, as defined by Title 18, United States Code, Section 2256.

h). Diaries, notebooks and any other records reflecting contact and other activities with minors or prepubescent children visually depicted while engaged in sexually explicit conduct, as defined in Title 18, United States Code, Section 2256.

J.A. 43. These items were listed in a separate document titled "Attachment A," which accompanied the application for the search warrant.

On the same day that Special Agent Falvey submitted his application and affidavit, a United States Magistrate Judge issued a search warrant. In the search warrant, the magistrate judge stated that evidence presented established probable cause to believe that the items described in "Attachment A" were being concealed in defendant's residence in Prospect, Kentucky. Accordingly, the magistrate judge commanded Special Agent Falvey and others to search the premises before October 12, 1991.

On October 3, 1991, a controlled delivery of the two video tapes was made to defendant's residence. That same day, Special Agent Falvey, Postal Service Inspector Brad Reeves, and Special Agent Obermiller, executed the search warrant...

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