United States v. Kinison

• Decision Date: 19 April 2013
• Docket Number: No. 12–5997.,12–5997.
• Citation: 710 F.3d 678
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Charles Arthur KINISON, Jr., Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

710 F.3d 678

UNITED STATES of America, Plaintiff–Appellant,

v.Charles Arthur KINISON, Jr., Defendant–Appellee.

No. 12–5997.

United States Court of Appeals, Sixth Circuit.

March 19, 2013.

Rehearing and Rehearing En Banc Denied April 19, 2013.

ON BRIEF:Charles P. Wisdom, Jr., United States Attorney's Office, Lexington, Kentucky, Jason A. Denney, United States Attorney's Office, Ft. Mitchell, Kentucky, for Appellant. Rachel D. Yavelak, Anggelis & Gordon, PLLC, Lexington, Kentucky, for Appellee.

Before: MARTIN, GUY, and McKEAGUE, Circuit Judges.

OPINION

McKEAGUE, Circuit Judge.

Charles Kinison Jr. was indicted for receiving and possessing child pornography in violation of 18 U.S.C. § 2252(a)(2) and § 2252(a)(4)(B) after a search of his home turned up over 300 images and 40 videos of child pornography. The district court granted Kinison's motion to suppress this evidence on the ground that the magistrate did not have a substantial basis for concluding that the search would uncover evidence of wrongdoing. The court also concluded that police could not have had an objectively reasonable good faith belief that the magistrate's probable cause determination was proper. The government appealed. For the following reasons, we reverse.

I.

On August 9, 2011, Lauren Omstott told the Lexington, Kentucky police that she believed her boyfriend, Charles Kinison, was potentially involved in criminal sexual activity with children. Omstott initially spoke with Detective David Flannery. Detective Flannery sought assistance in the investigation from Special Agent Kimberly Kidd with the Federal Bureau of Investigations. On August 11, 2011, Agent Kidd interviewed Omstott. Omstott stated that Kinison had been sending her disturbing text messages, and that the messages detailed his desire to get them both involved with a group in Savannah, Georgia that allegedly adopts children and then allows people in the group to engage in sex with those children. Agent Kidd directed Omstott to the Lexington computer forensics unit in order to extract the text messages from her phone.

On August 12, 2011, Omstott met with Detective Jim Barber and consented to Barber's search of Omstott's phone. Barber downloaded 1,646 pages of text messages. Ultimately, several pages of excerpts from the messages, along with a disc containing the entirety of the messages, were included in the warrant affidavit.The extracted messages corroborated Omstott's claims as to their content.¹

Kinison's messages stated that he saw pictures of one of the adults in the Savannah group performing oral sex on a four-year-old boy. Kinison also stated his desire that he and Omstott, who he referred to numerous times in the messages as “Babe,” join the group. Omstott replied in several messages that she would be interested in joining the group, wanted to know when they would be going to Savannah, and stated that not joining would be “like canceling Christmas!” Kinison instructed her that “[t]he new family must truely [sic] want to join ...,” and that prior to joining the group, they would have to be approved by providing “evidence of [their] sincerity” by taking pictures of themselves having a sexual encounter with a child. Kinison suggested that they could babysit a child under two-years-old that would not be able to talk so that they could perform sexual acts on the child and take photos and videos to send to the group. Kinison also stated that he “found a web site with naked kid pics,” and “[f]ound some pics of a 5 yr old girl getting f—ked.” Omstott replied, “How did you find a site with that?” Kinison answered, “Just surfing. It's a video clip.”

Two weeks later, on August 25, 2011, Agent Kidd again interviewed Omstott. She asked Omstott where Kinison was viewing the child pornography described in his texts to her. Omstott claimed Kinison was viewing the videos on his home computer. Detective Flannery showed Omstott a photo of Kinison, and she verified that he was the one that sent her the text messages from the phone number she identified to Agent Kidd. Flannery also conducted a records check on Kinison and verified his address.

On August 31, 2011, based on the information outlined above, Detective Flannery sought and received a warrant to search Kinison's house. On September 1, 2011, Flannery and at least ten other officers, executed the warrant. While they were executing the warrant, Kinison arrived in his car. Officers saw Kinison's cell phone in plain view in the middle of the vehicle's console. Detective Flannery then sought and received a search warrant for the car based on his prior affidavit and the plain view of Kinison's phone. Officers seized a computer and a cell phone from Kinison's house and the phone from his car. A forensic examination of Kinison's computer revealed over 300 images and 40 videos of child pornography. He was arrested and later indicted for receiving and possessing child pornography in violation of 18 U.S.C. § 2252(a)(2) and § 2252(a)(4)(B).

Kinison moved to suppress the evidence seized during the search. He argued that the warrant affidavit submitted by Detective Flannery failed to establish probable cause to search Kinison's house and car, and that the police could not have acted with an objectively reasonable good faith belief that the magistrate's determination was proper. The district court granted Kinison's motion. The government appealed that decision. We now reverse.

II.

In reviewing a district court's decision to grant a motion to suppress, findings of fact are reviewed for clear error, and conclusions of law are reviewed de novo. United States v. Berry, 565 F.3d 332, 338 (6th Cir.2009). Importantly, however, “when judging the sufficiency of an affidavit to establish probable cause in support of a search warrant, the Supreme Court has ‘repeatedly said that after-the-fact scrutiny ... should not take the form of de novo review.’ Rather, reviewing courts are to accord the magistrate's determination ‘great deference,’ ” United States v. Terry, 522 F.3d 645, 647 (6th Cir.2008) (quoting Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (quotations and alterations omitted)), and should avoid “line-by-line scrutiny [of the underlying affidavit]....” Gates, 462 U.S. at 246 n. 14, 103 S.Ct. 2317. Thus, “[s]o long as the magistrate had a ‘substantial basis for ... conclud[ing]’ that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.” Gates, 462 U.S. at 236, 103 S.Ct. 2317 (quotations omitted). We have “long held that an issuing magistrate's discretion should only be reversed if it was arbitrarily exercised.” United States v. Allen, 211 F.3d 970, 973 (6th Cir.2000).

III.

In this appeal, we address whether Detective Flannery's affidavit provided the magistrate with a substantial basis for concluding the search here would uncover evidence of wrongdoing. We also assess whether, absent a substantial basis for the magistrate's decision, the officers nevertheless acted on an objectively reasonable good faith belief that the magistrate's determination was proper. We take each issue in turn.

A.

The Supreme Court has recently reaffirmed that the test for probable cause is not reducible to “ ‘precise definition or quantification.’ ” Florida v. Harris, ––– U.S. ––––, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (quoting Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003)). And that “ ‘[f]inely tuned standards ... have no place in the [probable-cause] decision.’ ” Id. (quoting Gates, 462 U.S. at 235, 103 S.Ct. 2317). Accordingly, the Court has “consistently looked to the totality of the circumstances” to determine “whether the State has met this practical and common-sensical standard,” and has “rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach.” Id.

Under this standard, when presented with a warrant application, a magistrate judge must “make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238, 103 S.Ct. 2317. While the supporting affidavit must contain adequate facts about the underlying circumstances to show that probable cause exists, “[t]hese supporting facts need not be based on the direct knowledge and observations of the affiant, but may also come from hearsay information.” United States v. Weaver, 99 F.3d 1372, 1377 (6th Cir.1996) (citing Jones v. United States, 362 U.S. 257, 269–70, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)). Further, an “affidavit is judged on the adequacy of what it does contain, not on what it lacks, or on what a critic might say should have been added.” Allen, 211 F.3d at 975.

Against the advice in Allen, the district court here concluded that Omstott's statement to police was insufficient and that police should have corroborated several additional details in order for her statement to be credible and the affidavit to be sufficient. But we have clearly held that a known informant's statement can support probable cause even though the affidavit fails to provide any additional basis for the known informant's credibility and the informant has never provided information to the police in the past. United States v. Miller, 314 F.3d 265, 270 (6th Cir.2002). (“The simple fact is that the informant, Haas, was named in the affidavit in question. Sheriff Fee spoke to Haas on two occasions over the telephone. Shortly after one of those calls, Sheriff Fee and Haas drove together to the location of Miller's mobile home.... Moreover, with Haas's identity secured, Haas himself was subject to prosecution if this information was fabricated.”).

As we noted in Miller, this conclusion is even clearer when the known informant's decision to go to police has also subjected her to potential prosecution. See ...