U.S. v. Solomon

• Decision Date: 23 December 2005
• Docket Number: No. 04-4089.,04-4089.
• Citation: 432 F.3d 824
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Douglas Dan SOLOMON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

432 F.3d 824

UNITED STATES of America, Plaintiff-Appellee, v. Douglas Dan SOLOMON, Defendant-Appellant.

No. 04-4089.

United States Court of Appeals, Eighth Circuit.

Submitted: June 23, 2005.

Filed: December 23, 2005.

Counsel who presented argument on behalf of the appellant was Alan G. Jontz, Maplewood, Minnesota.

Counsel who presented argument on behalf of the appellee was AUSA Richard Newberry, Minneapolis, Minnesota.

Before RILEY, BRIGHT, and JOHN R. GIBSON, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

A jury found Douglas Dan Solomon guilty of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4), and he was sentenced to 42 months in prison. Solomon appeals the denial of his motion to suppress evidence seized from his home pursuant to a search warrant. We affirm.

On June 8, 2001, Agent Jan May of the Minnesota Bureau of Criminal Apprehension received a telephone call from a woman identifying herself as Laurie Brown, but who was later identified as Patricia Ann Tradup. According to the affidavit in support of the search warrant, Tradup told Agent May that she lived in a house at 3636 14th Avenue South in Minneapolis with Douglas Dan Solomon, whom she had recently learned was a registered sex offender. Tradup told Agent May that she had become concerned for her welfare, so she decided to search Solomon's bedroom for information regarding his sex offense. While in Solomon's room, she discovered printed-out images of children she estimated to be between the ages of three and twelve positioned in such a way as to display their genitals or engaged in sexual activity with what appeared to be an adult male. Tradup confirmed that Solomon has a computer in his bedroom and that she has seen pornography on it. In addition to the printed-out images, Tradup stated that she had found a little girl's swimsuit inside-out under Solomon's pillow and a girl's clothing slip inside his dresser drawer, despite the fact that Solomon does not have any children living at the home.

Following the conversation with Tradup, Agent May checked Solomon's predatory offender file. According to the file, he was convicted of criminal sexual conduct with a two-year-old victim in 1983, but was no longer required to register. Agent May also noticed that the address listed for Solomon in his predatory file was 3636 14th Avenue South in Minneapolis, Minnesota, the same as that supplied by Tradup. Agent May consulted with Sgt. Jane Moore of the Minneapolis Sex Crimes Unit, who is also assigned to the Minnesota Internet Crimes Against Children Task Force. In Sgt. Moore's experience, computer systems and internet access can be both repositories for evidence and instrumentalities of offenses involving child pornography.

On June 12, 2001, Agent May and Sgt. Moore met with Tradup in a park in Minneapolis. During the meeting, Tradup turned over nine images of children exposing their genitals or having sex with adult males that she claimed she had taken from Solomon's bedroom. Sgt. Moore asked Tradup if Solomon had taken any pictures of her; she responded that he had done so with her clothes on, and that it made her feel uncomfortable. After the meeting with Tradup, Agent May and Sgt. Moore drove by the address Tradup had supplied, where they noticed a sign in the front yard with the name "Solomon" printed on it.

As a result of this information, Agent May and Sgt. Moore prepared an affidavit and applied for a search warrant. A Hennepin County Judge issued a warrant to search Solomon's residence, which officers executed on June 20, 2001. The officers recovered a variety of evidence from the home, including a computer hard drive. As a result of this evidence, a federal indictment was returned on December 16, 2003, charging Solomon with one count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b).

Solomon moved to suppress the evidence, arguing that the search warrant was unsupported by probable cause. Following a hearing, the magistrate judge issued a report recommending the motion be denied. The district court¹ adopted the magistrate judge's report and recommendation and denied Solomon's motion to suppress. The case proceeded to trial, where a jury found Solomon guilty of possession of child pornography. The district court sentenced him to 42 months in prison. Solomon appeals the denial of his motion to suppress evidence.

We review the district court's factual findings in support of its denial of a motion to suppress for clear error and its legal determination of probable cause de novo. United States v. Terry, 305 F.3d 818, 822 (8th Cir.2002). "Our role is to ensure that the evidence as a whole provides a substantial basis for finding probable cause to support the issuance of the search warrant." Id. The existence of probable cause depends on whether, in the totality of the circumstances, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Murphy, 69 F.3d 237, 240 (8th Cir.1995) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). "[T]he preference for warrants is most appropriately effectuated by according great deference to a magistrate's determination" as to whether an affidavit establishes probable cause. United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

"When the [issuing judge] relied solely upon the supporting affidavit to issue the warrant, `only that information which is found within the four corners of the affidavit may be considered in determining the existence of probable cause.'" United States v. Etheridge, 165 F.3d 655, 656 (8th Cir.1999) (quoting United States v. Gladney, 48 F.3d 309, 312 (8th Cir.1995)). The affidavit "should be examined under a common sense approach and not in a hypertechnical fashion." United States v. Williams, 10 F.3d 590, 593 (8th Cir.1993). When the affidavit is based on information from an informant, the informant's reliability, veracity, and basis of knowledge are relevant to whether the affidavit provided probable cause to support the search. See United States v. LaMorie, 100 F.3d 547, 553 (8th Cir.1996).

We have no trouble concluding that the information contained in the affidavit provided sufficient probable cause to issue a warrant to search Solomon's home. First, the informant had an exceptionally strong basis of knowledge that child pornography would be found in the home in that she actually lived in the home, she personally discovered the child pornography along with a young girl's clothing in Solomon's bedroom, and she provided law enforcement with a detailed description of her discoveries. See United States v. Ellison, 793 F.2d 942, 946 (8th Cir.1986) (finding it significant that the informants had lived on the premises and personally observed the reported activity); United States v. Jackson, 898 F.2d 79, 81 (8th Cir.1990) (finding adequate basis of informant's knowledge where anonymous informant's tip provided the "richness and detail of a first hand observation"). Likewise, the affidavit demonstrated that Tradup's tip was credible and reliable in that she met with law enforcement, see Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (explaining that "a known informant. . . can be held responsible if her allegations turn out to be fabricated."), Agent May and Sgt. Moore "had an opportunity to assess [her] credibility because [she] gave [her] tip in person," United States v. Gabrio, 295 F.3d 880, 883 (8th Cir.2002); see also LaMorie, 100 F.3d at 553 ("[P]ersonal contact with an informant can strengthen an officer's decision to rely on the information provided. . ."), and she provided the officers with printed-out photos from Solomon's bedroom consistent with the photos she had previously described.²

Significantly, law enforcement was able to corroborate much of the information provided by Tradup. It is well established that "[e]ven `the corroboration of minor, innocent details can suffice to establish probable cause . . .'" United States v. Tyler, 238 F.3d 1036, 1039 (8th Cir.2001) (quoting United States v. Ramos, 818 F.2d 1392, 1397 n. 7 (8th Cir.1987)); see also United States v. Edmiston, 46 F.3d 786, 789 (8th Cir.1995) ("We have held that if some `information from an informant is shown to be reliable because of independent...