U.S.A v. Colbert

• Decision Date: 20 May 2010
• Docket Number: No. 08-3243.,08-3243.
• Citation: 605 F.3d 573
• Parties: UNITED STATES of America, Appellee,v.Donald Gene COLBERT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

605 F.3d 573

UNITED STATES of America, Appellee,v.Donald Gene COLBERT, Appellant.

No. 08-3243.

United States Court of Appeals,

Eighth Circuit.

Submitted: May 15, 2009.

Filed: May 20, 2010.

Rehearing and Rehearing En Banc Denied June 23, 2010.

COPYRIGHT MATERIAL OMITTED

John P. Messina, AFPD, argued, Des Moines, IA, for appellant.

Richard D. Westphal, AUSA, argued, Davenport, IA, for appellee.

Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.

WOLLMAN, Circuit Judge.

Donald Gene Colbert conditionally pleaded guilty to possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and was sentenced to 120 months' imprisonment. He appeals, arguing that the district court ¹ erred in denying his motion to suppress evidence because the search warrant was not supported by probable cause. We affirm.

I.

On June 7, 2006, Detectives Kelly Myers and Mike Martin of the Davenport, Iowa, Police Department drove to Vandeveer Park to investigate a complaint of suspicious activity related to a young child. Upon arriving at the park, the detectives spoke with the child's uncle, who informed them that he had become concerned after observing a man interacting with the uncle's five-year-old niece, pushing her on a swing and talking about movies and videos the man had at his home. The detectives spoke with the child and two other witnesses and obtained a description of what was later determined to be Colbert's vehicle: a blue sedan with rear antennas resembling those of a police cruiser.

While Detectives Myers and Martin were still at the park, two patrol officers identified the vehicle and stopped Colbert. Colbert consented to a search of his vehicle and agreed to speak with Myers and Martin, who had arrived at the scene of the traffic stop. Inside Colbert's car the detectives found a police scanner, handcuffs, and a hat bearing the phrase “New York PD.” Colbert told the officers that he had the handcuffs because he had been employed as a security guard four years earlier, and he admitted speaking to the girl about movies that he had at his apartment. Colbert was then taken to the police station for questioning.

Detective Myers meanwhile relayed information from the investigation to Detective Mark Dinneweth, who drafted a warrant application seeking permission to search Colbert's residence for books, photos, videos, and other electronic media depicting “minors engaged in a prohibited sexual act or in the simulation of a prohibited sexual act.” In support of the warrant, Detective Dinneweth set forth the following summation of the investigation:

On 06-07-06 officers responded to Vandeveer Park reference a suspicious subject.

During the course of the investigation it was determined Donald Colbert 512 E Locust St Apt # 3 attempted to lure a five year old female to go to his apartment.

Colbert conducted a conversation with the girl for approximately forty minutes telling his apartment had movies and videos she would like to watch and other things for the girl to do.

Colbert's license plate IA 510NYF was provided by a witness and the vehicle was located by officers at Colbert's apartment.

Colbert gave consent to search his vehicle where officers observed a police scanner, binoculars, a police type hat, handcuffs, and the vehicle was equipped with CB antennas making it similar to a police vehicle.

An Iowa state district judge issued a search warrant for Colbert's apartment. The subsequent search resulted in the discovery of a number of children's movies, a computer, and numerous compact discs containing child pornography.

II.

On an appeal of a denial of a motion to suppress evidence, we review the district court's factual findings for clear error and its legal conclusions de novo. United States v. Lemon, 590 F.3d 612, 614 (8th Cir.2010).

Colbert argues that the evidence seized from his apartment should have been excluded because the search warrant was not supported by probable cause. “Probable cause means a fair probability that contraband or evidence of a crime will be found in a particular place, given the circumstances set forth in the affidavit.” Id. (quoting United States v. Horn, 187 F.3d 781, 785 (8th Cir.1999)). Probable cause is a fluid concept that focuses on “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (internal quotation omitted). Determining whether probable cause exists requires a commonsense analysis of the facts available to the judicial officer who issued the warrant. See id. at 230, 238, 103 S.Ct. 2317. We accord great deference to the judicial officer's initial, on-the-scene determination that probable cause has been established. United States v. Maxim, 55 F.3d 394, 397 (8th Cir.1995).

Colbert first objects to the affidavit on the ground that it was conclusory in nature, failing to specify the source of the information that it contained. Colbert cites Illinois v. Gates, in which the Supreme Court explained that an affidavit that is “wholly conclusory” cannot establish probable cause. 462 U.S. at 239, 103 S.Ct. 2317. As examples of affidavits in this category, the Court cited cases in which law enforcement officers simply stated that they believed or had a credible reason to believe that a search would yield evidence of criminal conduct. Id. The Court explained that such affidavits are insufficient because they provide the issuing magistrate with no independent basis for making the probable cause determination. Id. That is not the type of affidavit we have here.

Although the affidavit in this case may not be a model of detailed police work, it sets forth a number of specific facts and explains the investigation that took place. As Colbert points out, Detective Dinneweth did not word the affidavit in the first person. But his statements supported a fair inference that the police officers were the source of the information and that Dinneweth had firsthand knowledge of the investigation. Accordingly, we reject the argument that the affidavit was too conclusory to establish probable cause. See United States v. Summage, 481 F.3d 1075, 1078 (8th Cir.2007) (holding as not fatally conclusory an affidavit that contained a statement that lent itself to a fair inference about the source of the information).

Colbert next contends that the facts set forth in the affidavit failed to establish probable cause to search his apartment for child pornography. He argues that the affidavit did not establish a link between the evidence of enticement at the park and child pornography in his home. Although this issue presents a closer question, we conclude that the affidavit established probable cause.

The affidavit included evidence that Colbert had attempted to lure a five-year-old girl to his apartment. Colbert had a vehicle and clothing that made him look like a police officer, suggesting that he was attempting to appear as an authority figure. The affidavit also related that Colbert possessed handcuffs and a pair of binoculars, which could reasonably give rise to the inference that he was surveilling the area, looking for opportune targets. For no apparent reason, Colbert approached a five-year-old girl and spoke with her for approximately forty minutes. Finally, the affidavit explained that Colbert attempted to convince the girl to accompany him to his apartment, where he claimed to have movies for her to watch and other things for her to do. Taken together, those facts tend to paint a picture of an older male attempting to entice a young girl into sexual activity.

The district court concluded that this information established probable cause to search Colbert's apartment because “individuals sexually interested in children frequently utilize child pornography to reduce the inhibitions of their victims.” The court found that sexual depictions of minors could be logically related to the crime of child enticement, particularly under the facts of this case, in which Colbert had referred to movies and videos that he wanted the child to view at his apartment. We agree. Notwithstanding the affidavit's admitted lack of detail, the reviewing magistrate could have reasonably concluded that the search of Colbert's apartment was justified on this basis.

Other circuits have dealt with the question whether evidence of child molestation or pedophilic tendencies can support probable cause to search for child pornography. In United States v. Hodson, the Sixth Circuit held that a search for child pornography was not supported by probable cause where the affidavit was based on the defendant's online confession to an undercover officer that he had an attraction to children and had sexually molested a seven-year-old boy. 543 F.3d 286, 292 (6th Cir.2008). Noting the lack of expert testimony in the affidavit about the relationship between molestation and child pornography, the court found the affidavit lacking because it “established probable cause for one crime (child molestation) but designed and requested a search for evidence of an entirely different crime (child pornography).” Id. A divided panel of the Second Circuit reached a similar conclusion in United States v. Falso, invalidating a search warrant for child pornography that was based in part on evidence that the defendant had previously been arrested for sexually abusing a minor. 544 F.3d 110, 124 (2d Cir.2008). The court stated that the fact that “the law criminalizes both child pornography and the sexual abuse (or endangerment) of children cannot be enough. They are separate offenses and ... nothing in the affidavit draws a correlation between a person's propensity to commit both types of crimes.” Id. at 123. But see id. at 132 (Livingston, J., concurring in part) (“Given the evidence ... that child pornography is often used by pedophiles and child sexual abusers to stimulate themselves and to entice young victims, a...