U.S. v. Perez

• Decision Date: 11 April 2007
• Docket Number: No. 06-50041.,06-50041.
• Citation: 484 F.3d 735
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Javier PEREZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

484 F.3d 735

UNITED STATES of America, Plaintiff-Appellee, v. Javier PEREZ, Defendant-Appellant.

No. 06-50041.

United States Court of Appeals, Fifth Circuit.

April 11, 2007.

Joseph H. Gay, Jr., Asst. U.S. Atty., San Antonio, TX, for U.S.

Joseph Andrew Turner, Christopher Michael Perri, Law Office of Joseph A. Turner, Austin, TX, for Perez.

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

Before KING, GARZA and PRADO, Circuit Judges.

PRADO, Circuit Judge:

Defendant-Appellant Javier Perez ("Perez") was convicted of possession of child pornography and sentenced to fifty-seven months imprisonment. Perez appeals the district court's order denying his motion to suppress evidence acquired in a search of his premises on June 9, 2004. Perez also appeals the enhancement of his sentence based on his possession of images depicting prepubescent minors and images depicting sadistic/masochistic conduct. For the reasons that follow, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In March 2004, a woman in Jamestown, New York, complained to the police that she had received an internet message from someone with the Yahoo ID "famcple," who proceeded to show her images of young children engaged in sexual acts. This complaint was forwarded to the Buffalo, New York division of the Federal Bureau of Investigation ("FBI"). The FBI sent a subpoena to Yahoo! Incorporated ("Yahoo") seeking information regarding the user of Yahoo ID "famcple." Yahoo responded with information that the user's login name was "stephenmee2003," that the user's full name was "Mr. Rob Ram," and that on the dates when the child pornography was transmitted, the user had been using the IP address 24.27.21.6.

The FBI determined that the owner of the IP address 24.27.21.6 was Time Warner Cable ("Time Warner"). After being served with a subpoena, Time Warner informed the FBI that the IP address in question was assigned to Javier Perez, residing at 7608 Scenic Brook Drive, Austin, Texas 78736. The FBI performed a public records check, a utilities company check, and an internet white pages check, all of which indicated that there was a Javier Perez living at 7608 Scenic Brook Drive, Austin, Texas 78736. Special Agent Robert W. Britt ("Britt") of the FBI sought a warrant to search that address. On June 1, 2004, a United States Magistrate Judge issued a warrant authorizing the search of the "residence, business, outbuildings, and motor vehicles on the curtilage located at: 7608 Scenic Brook Drive, Austin, TX 78736."

On June 9, 2004, Britt and other officers executed the search warrant. When the officers arrived at the front door of 7608 Scenic Brook Drive, they were met by Edwin Atterbury ("Atterbury"), who explained that he was a housemate of Perez and that a third person also resided in the house.¹ Britt proceeded with the search but confined it to Perez's room and the common areas of the house. After the officers searched Perez's room, in which they located compact discs containing child pornography, Perez, who was present during the search, directed the officers to storage bins in the garage, where more such compact discs were found. In total, approximately 4000 compact discs containing thousands of images of child pornography were seized by the officers.

A grand jury indictment returned on July 19, 2005, charged Perez with one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). Perez moved to suppress the evidence seized from his premises during the June 9, 2004 search. After a hearing on September 15, 2005, the district court denied Perez's motion. Perez then entered a conditional guilty plea, retaining his right to appeal the district court's ruling on his motion to suppress. On December 9, 2005, the district court sentenced Perez to fifty-seven months in federal prison followed by seven years of supervised release. Perez now appeals.

II. JURISDICTION

This is an appeal from a final judgment of a district court in a criminal case. This court has jurisdiction pursuant to 28 U.S.C. § 1291.

III. ANALYSIS

A. The district court did not err in denying Perez's motion to suppress

1. Standard of Review

When reviewing the denial of a motion to suppress evidence, this court reviews the district court's factual findings for clear error and the district court's conclusions regarding the sufficiency of the warrant and the constitutionality of law enforcement action de novo. United States v. Cherna, 184 F.3d 403, 406 (5th Cir.1999).

2. Perez's Arguments

Perez argues that the district court should have granted his motion to suppress the evidence seized during the search of his premises on June 9, 2004. Perez first insists that there was insufficient probable cause to support the issuance of a search warrant. Perez alleges that "mere association between an IP address and a physical address is insufficient to establish probable cause." Even if the initial determination that probable cause existed was reasonable, however, Perez argues that "[t]he discovery that multiple people resided at Perez's residence undermined the basis for the magistrate's probable-cause determination." Perez argues that the officers' discovery of Perez's housemates should have indicated to them that there was no longer probable cause to believe that Perez was the source of the unlawful transmissions. He further argues that the existence of these two housemates was material information that the officers had a duty to report to the issuing magistrate. Finally, Perez argues that the good-faith exception does not apply because the officers' reliance on the warrant was no longer objectively reasonable once they discovered that two other persons lived with Perez at 7608 Scenic Brook Drive.

3. Guiding Supreme Court Precedent

Like this case, Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987), involved the constitutionality of a search executed pursuant to a warrant authorizing the search of a structure that turned out to contain more individual residences than was believed at the time the warrant was issued. In Garrison, Baltimore police obtained a warrant to search the "third floor apartment" of 2036 Park Avenue. Id. at 80, 107 S.Ct. 1013. When applying for the warrant and when executing it, police reasonably believed that the third floor of that address had only one apartment and that this apartment was occupied by the suspect McWebb. Id. at 81, 107 S.Ct. 1013. In the course of their search, the police realized that the third floor actually contained two apartments, and that they were in the process of searching the apartment of Garrison. Id. The officers ceased their search of Garrison's quarters, but the contraband they had discovered before doing so became the basis for Garrison's conviction. Id. at 80-81, 107 S.Ct. 1013. The Supreme Court held that under the circumstances presented, the seizure of contraband from Garrison's apartment did not violate the Fourth Amendment. Id. at 88, 107 S.Ct. 1013.

While the instant case is not identical to Garrison in all relevant particulars, Garrison does lay out a framework for how the analysis of this case should proceed. There, the Supreme Court stated that "[i]n our view, the case presents two separate constitutional issues, one concerning the validity of the warrant and the other concerning the reasonableness of the manner in which it was executed." Id. at 84, 107 S.Ct. 1013. Perez's appeal presents the same two overarching issues.

4. Validity of Warrant to Search 7608 Scenic Brook Drive

A valid search warrant may be issued only upon a finding of probable cause. United States v. Brown, 941 F.2d 1300, 1302 (5th Cir.1991). The information necessary to show probable cause must be contained within a written affidavit given under oath. Id. Probable cause does not require proof beyond a reasonable doubt; a magistrate need only have a substantial basis for concluding that a search would uncover evidence of wrongdoing. Id. A magistrate's determination is entitled to deference by reviewing courts. Id.

In this case it is clear that there was a substantial basis to conclude that evidence of criminal activity would be found at 7608 Scenic Brook Drive. The affidavit presented to the magistrate included the information that the child pornography viewed by the witness in New York had been transmitted over the IP address 24.27.21.6, and that this IP address was assigned to Javier Perez, residing at 7608 Scenic Brook Drive, Austin, Texas 78736. Perez argues that the association of an IP address with a physical address does not give rise to probable cause to search that address. He argues that if he "used an unsecure wireless connection, then neighbors would have been able to easily use [Perez's] internet access to make the transmissions." But though it was possible that the transmissions originated outside of the residence to which the IP address was assigned, it remained likely that the source of the transmissions was inside that residence. See United States v. Grant, 218 F.3d 72, 73 (1st Cir.2000) (stating that "even discounting for the possibility that an individual other than [defendant] may have been using his account, there was a fair probability that [defendant] was the user and that evidence of the user's illegal activities would be found in [defendant's] home") (emphasis in original).² "[P]robable cause does not require proof beyond a reasonable doubt." Brown, 941 F.2d at 1302.

Perez also argues that evidence that illicit transmissions were made does not give rise to probable cause that physical evidence would be located at the residence. However, the New York witness stated that the images she observed appeared to be videos played on a television screen transmitted via a web cam. There was therefore a basis to believe that the suspect would have such videos in his residence. Moreover, Britt stated in his affidavit that, in his experience, persons interested in...