U.S. v. Grant

• Decision Date: 13 July 2007
• Docket Number: No. 06-3649.,06-3649.
• Citation: 490 F.3d 627
• Parties: UNITED STATES of America, Appellee, v. Gerald GRANT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

490 F.3d 627

UNITED STATES of America, Appellee, v. Gerald GRANT, Appellant.

No. 06-3649.

United States Court of Appeals, Eighth Circuit.

Submitted: March 13, 2007.

Filed: July 13, 2007.

Counsel who presented argument on behalf of the appellant was Michael J. Hansen, AFPD, Lincoln, NE. Appearing on the brief were John C. Vanderslice, AFPD, and Jennifer L. Gilg.

Counsel who presented argument on behalf of the appellee was Steven A. Russell, AUSA, Lincoln, NE.

Before RILEY, BOWMAN, and ARNOLD, Circuit Judges.

BOWMAN, Circuit Judge.

Gerald Grant was charged in a two-count indictment with possessing child pornography, 18 U.S.C. § 2252(a)(4)(B), and criminal forfeiture, id. § 2253. After the District Court¹ denied Grant's motion to suppress evidence obtained pursuant to a search warrant, he entered a conditional guilty plea and reserved the right to appeal the denial of his motion to suppress. The District Court then sentenced Grant to twenty-seven months' imprisonment and three years' supervised release. Grant appeals the denial of his motion to suppress. We affirm.

After the grand jury returned an indictment charging Grant with possession of child pornography, Grant filed a motion to suppress the evidence discovered when a warrant to search his computer was executed. In his motion to suppress, Grant argued that the affidavit in support of the search-warrant application failed to establish probable cause to issue the warrant and that the Leon² good-faith exception to the exclusionary rule did not stretch far enough to encompass this case. The magistrate judge, after considering briefs filed by the parties—but without conducting an evidentiary hearing—recommended to the District Court that Grant's motion to suppress be granted. The government objected to the magistrate judge's recommendation, and the District Court entered an order directing the magistrate judge to conduct an evidentiary hearing and supplement the earlier recommendation. Specifically, the District Court directed the magistrate judge "to make findings under Leon why a reasonable police officer standing in the shoes of [the officer executing the search warrant] would not have reasonably understood that the words `child pornography' . . . referred to `child pornography' within the meaning of" the applicable state statutes. Mem. & Order, March 13, 2006, at 2.

The magistrate judge then held a suppression hearing at which the only witness to testify was Investigator Gary Eng, the Nebraska State Patrol officer who obtained and executed the search warrant. Eng testified that in September 2003, a Deputy Sheriff contacted him to report that the owner of a computer-repair business had telephoned the Sheriff's office to report the discovery of child pornography on a home computer. The next day, Eng met with the business owner, Tracey Sundstrom, who related to Eng that Grant's wife Marshia had delivered the couple's home computer to Sundstrom's business for repair.³ One of Sundstrom's computer technicians, David Lewis, had reported to her that when he began to work on the computer, he discovered what he believed to be child pornography. Lewis was not working on the day Eng interviewed Sundstrom; Sundstrom therefore relayed to Eng the information she had received from Lewis.

Sundstrom told Eng that Lewis had observed pornographic images while repairing other computers, but that Lewis had stated that the images he discovered on the Grants' computer were unusual and disturbing. Specifically, Sundstrom told Eng that "in the past [Lewis] had found adult pornography while repairing other individuals' computers and that this was different. This was ... clearly different; it was child pornography." Ev. Hrg. Tr. at 7. In addition, Sundstrom reported that Grant had informed Lewis that there were "raunchy pictures" on the computer and that Grant wanted those pictures saved. Id. at 13. Sundstrom told Eng that the Grants had telephoned the shop at least once to inquire about progress on the repairs to their computer. Sundstrom also told Eng that she felt a legal obligation to report her suspicions regarding the images on the Grants' computer and that she understood her business could be held liable if she neglected to contact law enforcement to report discovery of suspected child pornography.

Eng further testified at the suppression hearing that he was familiar with the meaning of "child pornography" under Nebraska's Child Pornography Prevention Act, Neb.Rev.Stat. §§ 28-1463.01 to .05 (the Act), and that there was nothing in his conversation with Sundstrom that would have indicated to him that Sundstrom was referring to images that would not be covered under the Act. As far as Eng was concerned, "when [Sundstrom] said child pornography . . . it [met] the definition legally of child pornography under the State statute." Ev. Hrg. Tr. at 26. Eng testified that although he discussed the matter with Sundstrom at some length, Sundstrom did not offer to show Eng any of the images found on the Grants' computer nor did Eng make a specific request to view the images. Rather, Eng believed that he should obtain a search warrant before viewing any of the images on the Grants' computer.

Based on his interview of Sundstrom, Eng was concerned that the Grants could retrieve their computer from the repair shop at any time, and he thus prepared an affidavit and application for a search warrant later that same day. In his affidavit, Eng briefly described his law-enforcement experience and indicated that he was aware that state statutes prohibited the possession of child pornography on home computers. Eng summarized the information he had gathered from Sundstrom, specifically pointing out that Sundstrom had told him that "Lewis had been a Computer technician for a long time and ha[d] worked on several home computer[s]" and that Lewis had "found pornography on several computers but believe[d] that what he found on the [Grants'] computer to be child pornography." Aff. at 1.

Later that day, Eng went to the Lincoln County, Nebraska, courthouse and asked to see Judge Turnbull, a judge from whom Eng had obtained search warrants in past investigations. Eng testified that in one of these earlier investigations, Judge Turnbull had rejected Eng's affidavit and search-warrant application and had requested additional information before issuing the search warrant. On this occasion, however, after Eng was sworn in, Judge Turnbull reviewed Eng's affidavit, obtained confirmation from Eng that the facts as stated in the affidavit were true, and issued the search warrant for the Grants' computer. Judge Turnbull did not inquire about Eng's understanding of the term "child pornography" as used by Eng in his affidavit, nor did Judge Turnbull inquire about the possibility of viewing images taken from the computer before deciding whether or not to grant the search-warrant application. After Eng obtained the search warrant, he returned to the repair shop and seized the Grants' computer.

At the conclusion of the suppression hearing, the magistrate judge issued a supplemental recommendation that the District Court suppress the evidence from the Grants' computer. The government again objected to this recommendation. The District Court rejected the magistrate judge's supplemental recommendation and denied Grant's motion to suppress. In its order, the District Court first observed that Grant had "failed to prove that he had a reasonable expectation of privacy in the images that were viewed by" Lewis.⁴ Mem. & Order, May 24, 2006, at 16. The court also determined that because an experienced computer technician had personally observed the "child pornography" on the Grants' computer and had specifically distinguished those images from the adult pornography he had seen on other computers, the "affidavit was sufficient to establish that there was a fair probability that child pornography would be found" on the Grants' computer. Id. at 19. Accordingly, the District Court determined that Eng's affidavit established the probable cause necessary to support issuance of the warrant to search the Grants' computer. Finally, the District Court noted that even if the affidavit was insufficient to establish probable cause, the good-faith exception described in Leon applied in these circumstances to justify Eng's reliance on the search warrant. After his motion to suppress was denied, Grant entered his conditional guilty plea and was sentenced.

Grant now appeals the District Court's denial of his motion to suppress, arguing that Eng's affidavit in support of the search warrant was insufficient to establish probable cause for Judge Turnbull to issue the warrant. Grant also argues that Judge Turnbull "abandon[ed] his role as a neutral arbiter" by relying on an affidavit that was "wholly lacking in probable cause." Br. of Appellant at 8. Therefore, according to Grant, the Leon good-faith exception cannot save the search of his computer. On appeal from the denial of a motion to suppress, we review a district court's findings of fact for clear error, and we review the court's legal conclusions— including its determination of probable cause and application of the Leon exception—de novo. United States v. McCoy, 483 F.3d 862, 863 (8th Cir.2007).

Grant contends there was not probable cause for Judge Turnbull to issue the search warrant because Eng's affidavit in support of the warrant was factually insufficient and constituted nothing more than a "bare bones affidavit." Br. of Appellant at 8. We disagree. If an affidavit in support of a search warrant "sets forth sufficient facts to lead a prudent person to believe that there is a `fair probability that contraband or evidence of a crime will be found in a particular place,'" probable cause to issue the warrant has been established. United States v. Warford, 439 F.3d 836, 841 (8th Cir.2006) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983))....