685 F.3d 72 (1st Cir. 2012), 11-1479, United States v. Clark

Docket Nº:11-1479.
Citation:685 F.3d 72
Opinion Judge:SELYA, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. Matthew CLARK, Defendant, Appellant.
Attorney:James H. Budreau for appellant. Margaret D. McGaughey, Assistant United States Attorney (Appellate Chief), with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.
Judge Panel:Before LYNCH, Chief Judge, BOUDIN and SELYA, Circuit Judges.
Case Date:July 16, 2012
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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685 F.3d 72 (1st Cir. 2012)

UNITED STATES of America, Appellee,


Matthew CLARK, Defendant, Appellant.

No. 11-1479.

United States Court of Appeals, First Circuit.

July 16, 2012

Heard May 10, 2012.

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James H. Budreau for appellant.

Margaret D. McGaughey, Assistant United States Attorney (Appellate Chief), with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

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Before LYNCH, Chief Judge, BOUDIN and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Matthew Clark was convicted on two counts of possessing child pornography. He now challenges the propriety of the search that uncovered his pornography collection and ultimately led to his conviction. He also challenges the 210-month sentence imposed by the court below. Concluding, as we do, that the defendant's arguments are without merit, we affirm.


The facts relevant to this appeal are essentially undisputed. On January 19, 2008, officers from Maine's Animal Welfare Program (AWP) and the local sheriff's department executed a search of a home in Somerville, Maine, inhabited by Fern Clark and her adult son, Matthew. The officers conducted this search pursuant to a warrant issued by a state magistrate the previous day (the first warrant), which authorized a search for evidence of animal cruelty and the unlicensed operation of a breeding kennel.

During their search, the officers entered the defendant's bedroom. Near a computer work station, they saw a handwritten list of web sites with titles suggestive of child pornography together with nude photographs appearing to depict underage males.

The officers immediately halted their search and approached the local magistrate for a supplementary search warrant (the second warrant).1 The second warrant authorized a search of the Clark household for child pornography. While executing this warrant, officers seized evidence that subsequently formed the basis for a federal indictment against the defendant for two counts of possessing child pornography.2 See 18 U.S.C. § 2252A(a)(5)(B).

Prior to trial, the defendant moved to suppress evidence seized during the second search. Pertinently, he argued that the first warrant was defective (and, therefore, that the original search was illegal) because the affidavit submitted in support of the warrant application did not make out probable cause to believe that evidence of either animal cruelty or an unlicensed kennel operation would be found. Building on this foundation, he argued that the second search would not have come to pass but for the evidence of child pornography uncovered during the initial (illegal) search. He concluded, therefore, that the items seized during the second search were the fruit of the poisonous tree, see Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and should have been excluded when offered by the government at trial.3

The district court refused to suppress the evidence. It held that the first warrant was supported by probable cause and, in all events, the searching officers had relied upon it in good faith, see

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United States v. Leon, 468 U.S. 897, 918-25, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Because the court found no constitutional flaw in the first search, there was no basis for suppressing the items seized during the second search.

After a bench trial, the district court found the defendant guilty on both of the possession counts.4 At the disposition hearing, the district court, over objection, relied on the defendant's two prior convictions for indecent acts involving children as a basis for an offense-level enhancement related to " a pattern of activity involving the sexual abuse or exploitation of a minor." USSG § 2G2.2(b)(5). With this enhancement in place, the court sentenced the defendant to a 210-month incarcerative term (the bottom of the guideline sentencing range). This timely appeal ensued.


On appeal, the defendant challenges both the denial of his motion to suppress and the application of the " pattern of abuse" enhancement. We bifurcate our discussion accordingly.

A. The Motion to Suppress.

When reviewing a denial of a motion to suppress, we assay a district court's legal conclusions, including its conclusion regarding the existence of probable cause, de novo. United States v. Kearney, 672 F.3d 81, 88 (1st Cir.2012); United States v. Schaefer, 87 F.3d 562, 565 & n. 2 (1st Cir.1996). We must, however, credit the district court's findings of fact unless they are clearly erroneous. United States v. Hughes, 640 F.3d 428, 434 (1st Cir.2011). Thus, we will uphold a denial of a suppression motion as long as " any reasonable view of the evidence supports the decision." United States v. Woodbury, 511 F.3d 93, 96-97 (1st Cir.2007) (internal quotation marks omitted).

In the case at hand, the defendant's suppression argument hinges entirely on the supposed invalidity of the first warrant (which, in his view, was issued in the absence of probable cause). Mindful that inquiries into the existence vel non of probable cause are normally factbound, see Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 8 (1st Cir.2004), we carefully examine the contents of the affidavit that accompanied the application for the first warrant. The test is whether the sworn allegations are...

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