751 Fed.Appx. 799 (6th Cir. 2018), 17-4251, United States v. Sullivan

Docket Nº:17-4251
Citation:751 Fed.Appx. 799
Opinion Judge:COOK, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James D. SULLIVAN, Defendant-Appellant.
Attorney:Matthew B. Kall, Assistant U.S. Attorney, Office of the U.S. Attorney, Cleveland, OH, for Plaintiff-Appellee Steven D. Jaeger, The Jaeger Firm, Erlanger, KY, for Defendant-Appellant James D. Sullivan, Pro Se
Judge Panel:BEFORE: MERRITT, COOK, and LARSEN, Circuit Judges.
Case Date:October 24, 2018
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 799

751 Fed.Appx. 799 (6th Cir. 2018)

UNITED STATES of America, Plaintiff-Appellee,

v.

James D. SULLIVAN, Defendant-Appellant.

No. 17-4251

United States Court of Appeals, Sixth Circuit

October 24, 2018

UNPUBLISHED

Editorial Note:

Please Refer Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 6th Cir. Rule 32.1.

Page 800

[Copyrighted Material Omitted]

Page 801

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

Matthew B. Kall, Assistant U.S. Attorney, Office of the U.S. Attorney, Cleveland, OH, for Plaintiff-Appellee

Steven D. Jaeger, The Jaeger Firm, Erlanger, KY, for Defendant-Appellant

James D. Sullivan, Pro Se

BEFORE: MERRITT, COOK, and LARSEN, Circuit Judges.

OPINION

COOK, Circuit Judge.

Page 802

The district court denied Defendant James Sullivan’s motion to suppress, motion in limine, and motion to withdraw his guilty plea. It then varied upward from the advisory Guidelines range and sentenced Sullivan to twenty years in prison. Sullivan appeals each of those decisions. We AFFIRM.

I.

Sullivan served approximately thirty years for attempted rape and gross sexual imposition of four children. In 2014, he left prison a convicted sex offender. Less than a year later, a woman showering at a state park observed a camera protruding from a displaced ceiling tile and alerted the police; the Ohio State Highway Patrol identified Sullivan as a suspect. Trooper Eric Souders executed several search warrants that permitted him to obtain a DNA sample from Sullivan, search Sullivan’s vehicle and apartment, and seize and search electronic devices found there. The searches revealed that (1) Sullivan’s DNA matched semen found on a ceiling tile in the attic above the state park shower, (2) Sullivan owned a camera matching the description given by the showering woman, and (3) a laptop found in Sullivan’s apartment contained dozens of child pornography images.

A grand jury later charged Sullivan with knowingly accessing with intent to view child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), and attempted production of child pornography, in violation of 18 U.S.C. § 2251(a). Sullivan moved to suppress, challenging probable cause and particularity for the searches of his vehicle, apartment, and laptop. He also moved to exclude evidence of his prior child molestation offenses. At the final pretrial hearing, the district court heard oral argument and denied both of Sullivan’s motions.

After the district court denied his motions, Sullivan agreed to plead guilty. A magistrate judge duly administered the plea proceedings, in which Sullivan pleaded guilty to Count One of the indictment— knowingly accessing with intent to view child pornography. Two months later, on July 3, 2017, the district court approved and filed the written plea agreement. On July 5, the district court adopted the magistrate’s report without objection.

Over a week later, the district court received a letter from Sullivan, dated July 5, purporting to withdraw his guilty plea. The district court held a hearing and denied Sullivan’s motion to withdraw the plea based on our decision in United States v. Bashara, 27 F.3d 1174 (6th Cir. 1994).

At sentencing, the district court calculated an advisory Guidelines range of 135 to 168 months in prison, but varied upward and imposed the statutory maximum sentence of 240 months.

II.

A. Motion to suppress

When a district court denies a motion to suppress, we review factual findings for clear error and legal conclusions de novo. United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005). On appeal, Sullivan challenges two aspects of the district court’s denial of his motion to suppress: (1) probable cause supporting the search warrants executed on his vehicle, apartment, and

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computer, and (2) the particularity of these warrants.

Probable cause

"[N]o [w]arrants shall issue, but upon probable cause, supported by [o]ath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. An affidavit demonstrates probable cause when it contains facts establishing "a ‘fair probability’ that evidence of a crime will be located on the premises of the proposed search." United States v. Jenkins, 396 F.3d 751, 761 (6th Cir. 2005) (quoting United States v. Bowling, 900 F.2d 926, 930 (6th Cir. 1990) ). This conclusion depends on the totality of the circumstances, a "practical, nontechnical conception" dealing with the "factual and practical considerations of everyday life." Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (quotations omitted).

The affidavits supporting the searches of Sullivan’s apartment and vehicle overwhelmingly established probable cause to believe that Sullivan committed voyeurism, burglary, and possession of criminal tools. They stated that Sullivan’s DNA profile matched semen found in the attic of the park shower, he had downloaded software and a user’s manual for a camera matching the description given by the showering victim, he was a convicted sex offender, and when questioned, he admitted to visiting the county in which the park sits. These facts established a "fair probability" that investigators would find evidence related to the state park incident in Sullivan’s vehicle and apartment. See

Jenkins, 396 F.3d at 761. Moreover, the file names uncovered by the preliminary analysis of Sullivan’s laptop established a fair probability that additional evidence relating to child pornography would be found on the laptop. See id.

Sullivan cites a Third Circuit case for the argument that the sexually explicit file names found in relation to his laptop were insufficient to support probable cause for a search. See United States v. Miknevich, 638 F.3d 178, 185 (3rd Cir. 2011). But Miknevich says quite the opposite. It makes clear that a magistrate can determine probable cause by relying on a computer file’s highly suggestive name without viewing its contents. Id. at 183-84. The file names discovered in the preliminary search of Sullivan’s laptop here, such as one named "littlegirl uncensored porn," plainly satisfied this standard.

Sullivan makes much of the fact that Trooper Souders could not determine precisely when he left his semen in the attic of the state park shower, arguing that "at least some temporal reference point is necessary" to ascertain probable cause. See United States v. Hython, 443 F.3d 480, 486 (6th Cir. 2006). But the totality of the circumstances— Sullivans semen on the ceiling tile, his ownership of a users manual for a camera matching the one described by the victim, and his criminal past— made it reasonable to conclude that Sullivan...

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