U.S. v. Weber

• Decision Date: 15 January 1991
• Docket Number: No. 89-10096,89-10096
• Citation: 923 F.2d 1338
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Peter John WEBER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1338

923 F.2d 1338

UNITED STATES of America, Plaintiff-Appellee, v. Peter John WEBER, Defendant-Appellant.

No. 89-10096.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 17, 1990.

Decided Sept. 28, 1990.

As Amended on Denial of Rehearing

and Modification Jan. 15, 1991.

Paul B. Meltzer, Peter A. Leeming, Santa Cruz, Cal., for defendant-appellant.

Rory Litte, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before LIVELY, ^* FLETCHER, and REINHARDT, Circuit Judges.

FLETCHER, Circuit Judge:

Peter John Weber appeals his conviction based on a conditional guilty plea in which Weber reserved the right to appeal the district court's denial of his motion to suppress evidence. Weber argues that the warrant issued to search his house lacked particularity and was not based on probable cause. We reverse the district court.

I. FACTS

On June 11, 1987 United States Customs Service Special Agent Trevor Burke presented a sworn affidavit to the district court requesting that a warrant be issued to search the house of defendant Weber.

At the time Agent Burke requested the warrant, he knew the following information about Weber: On August 12, 1985, almost two years prior to the date of the warrant, an unknown customs inspector seized a parcel addressed to "P. Webber" at the same address where the defendant resided on the day the warrant was requested. The parcel contained two pieces of advertising material, which the customs inspector concluded "apparently depict[ed] the sexual exploitation of children." Customs notified Weber of the seizure of the parcel via certified mail. Weber acknowledged receipt of the notice but did not attempt to claim the material. ¹ Customs made no determination as to whether Weber had ordered the advertising material or whether the advertisements had been sent unsolicited.

On the basis of this "apparently" pornographic set of advertising materials, Customs targeted Weber for investigation. Approximately 20 months later, on March 9, 1987, Customs sent Weber an undercover test advertisement containing the name and address of a purported distributor of sexually explicit materials in Canada. The purported distributor was, in fact, a fictitious creation of the United States and Canada Customs Services set up as part of a reverse "sting" operation. The advertisement contained a list of photographs for sale, including, among others, "Piccolo" and "Chicken." The ad said the pictures featured "boys and girls in sex action."

On April 6, 1987, Weber, having seen only the advertisement, and not the pictures themselves, placed an order for four sets of pictures (Piccolo # 16, Piccolo # 31, Piccolo # 37, and Chicken # 11 ). The pictures the government intended to send depicted minors displaying their genitals or engaging in various sexual acts such as fondling, masturbation, and oral and anal sex. The pictures were to be delivered to Weber's house on June 12, 1987 by Agent Burke, who would be wearing the uniform of a delivery man employed by DHL Courier.

Based on these facts--and a general description of the proclivities of pedophiles, which description we discuss momentarily--Burke stated he believed that on June 12, agents would find at Weber's house not only the four sets of photographs which would arrive as a result of the "controlled delivery" and which were described in the warrant's first paragraph, ² but also the following items, set forth in paragraphs two, three, and four:

2. Books, magazines, pamphlets, photographs, negatives, films, video tapes and undeveloped films depicting minors under the age of 18 years engaged in sexually explicit conduct as defined in 18 U.S.C. 2256; video cameras and recorders, still cameras, movie projectors and screens, enlargers, and developing equipment and photographic paper, all used for the taking, producing, and reproducing of visual depictions of minors engaged in sexually explicit conduct;

3. Phone books and address books, diaries, correspondence or papers containing names, addresses and telephone numbers which would tend to identify other persons who deal in material depicting minors engaged in sexually explicit conduct or identify minors who may be victims;

4. Correspondence, order blanks, and records of any kind reflecting the ordering, receipt, shipping and payment for materials depicting minors engaged in sexually explicit conduct.

For purposes of this search warrant, the attached definitions apply (18 U.S.C. Sec. 2256).

To attempt to establish probable cause that the items in paragraph 2 would be found in Weber's house, Burke set forth in his affidavit a general description of the proclivities of pedophiles. The description was based on Burke's experience and training in child pornography investigations and his discussions with other law enforcement agents--in particular Los Angeles Police Detective Dworin, who had more training and experience than Burke.

The description consumes several pages of the affidavit. It reports Dworin's conclusions based on Dworin's knowledge of three different kinds of suspects, "child molesters," "pedophiles," and "child pornography collectors." These terms are not defined. For example, nowhere in the affidavit does it say how many purchases of child pornography it takes for a person to be deemed a "collector" or "pedophile." Agent Burke does not state that Dworin is familiar with Weber's case, nor does Burke himself opine that Weber probably is a "child molester," "pedophile," or "collector of pornography" based on what he knows of Weber.

The affidavit recites Dworin's belief that a pedophile "typically" uses sexually explicit materials to show to children to lower their inhibitions so that the pedophile may molest them. Dworin says that pedophiles "often" take photographs of their victims and develop the pictures with their own developing equipment. He says further that they "may" use sexual aids sold in adult bookstores to stimulate their victim or themselves.

The affidavit also contains Dworin's opinion that "pedophiles and/or child pornography collectors" do not destroy photographs but retain them for "many years." Agent Burke says in the affidavit that such materials are sometimes "concealed in safety deposit boxes, private commercial storage spaces, beneath homes, buried, in automobiles, hidden inside of legitimate books, at work places, etc." Burke also says that "Dworin is ... aware that such material is kept in the pedophile's and/or child pornography collector's residence or other secure convenient locations to ensure ready availability."

It is important to note that nowhere in Burke's affidavit is there even a conclusory recital that the evidence of Weber's demonstrated interest in child pornography--consisting of one proven order--places him in the category of those pedophiles, molesters, and collectors about whom Dworin has expertise.

The warrant was signed by the district judge on June 11 and executed on June 12, shortly after Burke, dressed as a DHL employee, delivered the four picture sets. Government agents quickly found the unopened package containing the pictures on Weber's kitchen counter. Pursuant to the warrant, they continued to search the rest of Weber's house, finding two plastic bags between the mattress and box springs of his bed. The agents opened the bags, which contained 16 magazines in addition to advertising brochures from overseas child pornography suppliers.

II. PROCEDURAL HISTORY

Weber's indictment charged two counts of violating 18 U.S.C. Sec. 2252(a)(2), (b), which prohibits the receiving of visual depictions of minors engaged in sexually explicit conduct. Count I charged him with receiving the materials sent to him by Customs (and specified in the first paragraph in the warrant). Count II charged him with receiving the other materials, which were seized on the authority of the contested second paragraph of the warrant. The government conceded to the trial court that the third paragraph of the warrant was invalid, but no materials were seized pursuant to that paragraph.

Weber made a motion in the district court to suppress the materials seized pursuant to the second paragraph. He argued that the warrant was not based on probable cause and that it lacked particularity. The district court judge, the same judge who had initially signed the warrant, denied the motion. Weber also argued that the government entrapped him as a matter of law and that the indictment should be dismissed on the ground that the investigation of him constituted "outrageous conduct" in violation of the Fifth Amendment. The court ruled that the entrapment defense should go to the jury, but rejected the outrageous conduct defense.

Before trial, Weber and the prosecution entered into a plea agreement. Weber conditionally pled guilty to Count II and Count I was dropped. Count II was based on the materials seized pursuant to the controversial second paragraph of the warrant. ³ As a condition to his plea, Weber reserved the right to appeal the suppression motion. He does not appeal the outrageous conduct ruling.

III. DISCUSSION

The Warrant Clause of the Fourth Amendment provides:

No Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

The Supreme Court has stated time and again that this clause prohibits the "general warrant." Boyd v. United States, 116 U.S. 616, 625, 6 S.Ct. 524, 529, 29 L.Ed. 746 (1886); Andresen v. Maryland, 427 U.S. 463, 478, 96 S.Ct. 2737, 2747, 49 L.Ed.2d 627 (1976). And we have held, "The requirement that a warrant not be a general one is in part a function of the probable cause rule and is in part derived from the fourth amendment requirement that warrants be ones 'particularly describing the place to be searched, and the persons or...