U.S. v. Koelling

• Decision Date: 07 May 1993
• Docket Number: No. 92-3574,92-3574
• Citation: 992 F.2d 817
• Parties: UNITED STATES of America, Appellee, v. Dale A. KOELLING, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 817

992 F.2d 817

UNITED STATES of America, Appellee, v. Dale A. KOELLING, Appellant.

No. 92-3574.

United States Court of Appeals,

Eighth Circuit.

Submitted April 15, 1993.

Decided May 7, 1993.

Larry Dean Kissee, Ash Flat, AR, argued, for appellant.

Lesa Bridges Jackson, Asst. U.S. Atty., Little Rock, AR, argued, for appellee.

Before WOLLMAN, Circuit Judge, ROSS, Senior Circuit Judge and KOPF, ^* District Judge.

KOPF, District Judge.

After a jury found Defendant Dale A. Koelling (Koelling) guilty of producing and receiving "child pornography" in violation of 18 U.S.C. §§ 2251(a) and 2252(a)(2) (1988), he was sentenced ¹ to concurrent prison terms of 78 months. He appeals, claiming that: (1) the search warrant, the execution of which resulted in the seizure of evidence used at trial, was defective for lack of particularity, (2) the search warrant was defective because it was based upon stale information, and (3) the search warrant was defective because it was anticipatory in nature. Although concerned about the government's conduct in procuring and executing a search warrant when it had ample evidence of a crime in its possession, ² we affirm.

I.

On July 30, 1991, postal inspectors learned from a mail-order photo-finishing business in Missouri that the company had received film for processing which it suspected was child pornography. The developed photographs displayed a young male sitting in a chair with his legs spread and underwear exposed, together with shots of an erect penis and buttocks. Pictured with the boy was an adult male who appeared to be 40 years of age. The return mailer indicated that a "Mrs. Dale Koelling," Route 1, Box 511, Mammoth Springs, Arkansas, had submitted the film.

Armed with this information, a postal inspector began an investigation of "Mrs. Koelling." Among other things, the inspector was able to determine that: (1) there was no "Mrs. Koelling" residing at the address given on the mailer, (2) there was an unmarried man named Dale Koelling living at the return address noted on the mailer, (3) as a result of prior investigations, Dale Koelling was known to have a "preference for young boys," (4) a school principal identified the boy in the photos by name and knew him to be a 14-year-old 7th grade student, (5) the boy lived with his parents, and (6) the boy and his parents lived near Koelling's residence.

Nine days after learning of the photos, the postal inspector submitted the following affidavit for search warrant to the Honorable Henry L. Jones, United States Magistrate Judge:

I, C.E. Gholson, being duly sworn, do hereby depose and state the following:

1. I am employed as a Postal Inspector, with the U.S. Postal Inspection Service, and assigned to Little Rock, AR. I have been employed as a Postal Inspector for more than 22 years. Over the past years, I have been involved in many investigations of violations of the protection of Children Against Sexual Exploitation Act, USC Sections 2252(a)(1) and (a)(2), and Illegal Mailings of Obscene Matter (18 USC, Section 1461).

2. I am personally familiar with the facts and circumstances surrounding this investigation, both from my own investigative activity, commencing on or about July 30, 1991, and from information obtained from other law enforcement officers who have communicated results of their investigations to me.

3. On July 30, 1991, officials with the Fo-Jo film processing company, 1812 Rock Rd., DeSoto, MO 63020 referred some photos of suspected child pornography to the Postal Inspection service for investigation. Fo-Jo is a large mail order photographic film processing company. They receive undeveloped film from customers, develop the film and mail the photos back to the customers. When employees of Fo-Jo detect what they suspect to be child pornography, they routinely refer the photos to the Postal Inspection Service for investigation.

4. The envelope/photo mailer referred on July 30, 1991 was addressed by the customer for delivery to Mrs. Dale Koelling, Rt. 1 Box 511, Mammoth Springs, AR 72554. The envelope contained negatives developed from the film submitted by the customer and twenty one (21) separate images, 2 copies of each image. One photo depicts a male approximately 40 years old and a young male approximately 15 years old with their faces side to side. Two other photos depict this older male alone. Most of the remaining photos are of the younger male, two of them are close-ups of the erect penis of the younger male. Three other photos are of the nude buttocks of the younger male. Others depict lascivious poses such as the younger male wearing shorts, reclining on a chair with his legs spread and underwear visible.

5. On August 6, 1991, I met with Fulton County, AR Sheriff Paul Martin and Deputy Sheriff Carrol Traw. They advised me that Dale Koelling lives alone at Rural Route 1, Box 511, Mammoth Springs, AR and that Dale Koelling has never been married and they have never heard of a Mrs. Dale Koelling. They further advised me that based on their knowledge gained through prior investigations, they believe Dale Koelling to be a homosexual with a preference for young boys. Both the sheriff and the deputy sheriff identified the older male in the photos I received from Fo-Jo to be Dale Koelling. Sheriff Martin took one photo of the young male which I received from Fo-Jo to the school in Salem, AR, the county seat. The school principal identified the boy in the photo as a seventh grade student, * * *, DOB * * *. ³ Sheriff Martin advised that he knows the parents of * * * and the family lives approximately 1-1 1/2 miles from Dale Koelling.

6. Based on my training and previous experience, I know that Mr. Koelling exhibits the traits common to many pedophiles. I further know from this training and previous experience that pedophiles or collectors of this matter keep these materials for many months and years, and rarely, if ever, dispose of their collections. They do, at times, trade this material with other persons with similar interests. This behavior has been documented by other investigators and experts in the field throughout the country.

7. On or about August 13, 1991 I will personally transport these photos to the post office at Mammoth Springs, AR. They will be given to the rural mail carrier for delivery, as addressed, to Dale Koelling. Mr. Koelling's rural mailbox will be kept under surveillance until he gets his mail and returns to his residence. The search warrant sought pursuant to this supporting affidavit will then be executed.

8. Based on the above, I have probable cause to believe that on the premises described above in the Application and Affidavit for Search Warrant, will be located property which constitutes evidence of the commission of a criminal offense in violation of 18 U.S.Code, Section 2252(a)(1) and (a)(2); contraband or things otherwise criminally possessed, specifically child pornography, as herein defined; and property designed or intended for use and which has been used as the means of committing criminal offenses in violation of 18 U.S. Code, Section 2252(1)(1) and (1)(2).

Judge Jones issued a warrant to search for and seize the following:

(1) an envelope/photo mailer bearing the return address of Fo-Jo, 1812 Rock Road, DeSoto, MO 63020, bearing a postage meter strip dated July 30, 1991, addressed for delivery to Mrs. Dale Koelling, Rt. 1, Box 511, Mammoth Springs, AR 72554 and containing a number of photos, some of which depict a male, approximately 15 years old in lewd and lascivious poses.

(2) pictures, magazines and videocassette records, depicting minors engaged in sexually explicit conduct as defined in Title 18, United States Code, Section 225 [sic ], that is actual or simulated:

(a) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(b) bestiality;

(c) masturbation;

(d) sadistic or masochistic abuse; or

(e) lascivious exhibition of the genitals or pubic area of any person; hereinafter defined as "child pornography;"

(3) envelopes, letters and other correspondence constituting orders to buy or trade child pornography;

(4) books, documents, and records reflecting the producing, making, receipt or acknowledgment, shipping, billing or payment of orders to purchase, offers to purchase, or offers to trade child pornography;

(5) address books, mailing lists, supplier lists, advertising brochures or materials, and documents pertaining to the preparation, purchase or acquisition of names or lists used in connection with the purchase or trade of child pornography.

Armed with the warrant, the postal inspector used a mail carrier to make a controlled delivery of the packet of photos to Koelling's residence. Someone was observed retrieving the photo packet from the mailbox and entering the Koelling residence. After waiting a brief period of time, the authorities proceeded to execute the warrant and found Koelling and the boy pictured in the photos inside the residence. Koelling tried to destroy the photographs that were the subject of the controlled delivery, but he was stopped by the authorities before he could do so.

During a search of Koelling's home, the following items were found and seized:

Packet of photos from Fo-Jo, DeSoto, MO and mailed to Dale Koelling, Rt. 1, Box 511, Mammoth Springs AR.

Four black and white photos which appear to be of a young males [sic ] genitals and buttock [sic ].

Empty certified mail envelope addressed to Dale Koelling and bearing the return address of Nora Crick, 1316 170th St., Hammond, IN.

Two empty envelopes from Fo-Jo, DeSoto, MO and addressed for delivery to Dale Koelling.

Book entitled "Homosexual Incest."

Booklet entitled "A Hundred Naked Rebels."

Booklet entitled "Patio Studs."

Before trial, Koelling moved to suppress all of the items seized during the search of his house. Koelling's motion was denied. During trial, two of the...