U.S. v. Henderson

• Decision Date: 17 February 2010
• Docket Number: No. 09-8015.,09-8015.
• Citation: 595 F.3d 1198
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harold G. HENDERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

595 F.3d 1198

UNITED STATES of America, Plaintiff-Appellee, v. Harold G. HENDERSON, Defendant-Appellant.

No. 09-8015.

United States Court of Appeals, Tenth Circuit.

February 17, 2010.

John H. Robinson, Jamieson & Robinson, LLC, Casper, WY, for the Defendant-Appellant.

Stephanie I. Sprecher, Assistant United States Attorney (Kelly H. Rankin, United States Attorney, with her on the briefs), Casper, WY, for the Plaintiff-Appellee.

Before TACHA, SEYMOUR, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

While executing a warrant to search Harold Henderson's home, law enforcement officers discovered child pornography on Henderson's computer. Henderson filed a motion to suppress this evidence, arguing that it was obtained in violation of his Fourth Amendment rights and, therefore, that the exclusionary rule should preclude its introduction. On denial of his motion, Henderson conditionally pled guilty to receipt of child pornography, preserving his right of review. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the denial of Henderson's motion to suppress.

I

In June 2005, Special Agent Robert Leazenby of the Wyoming Division of Criminal Investigation conducted a state-wide digital child pornography probe. He received information that a computer with a particular internet protocol ("IP") address downloaded and shared two videos.¹ Each video had a secure hash algorithm ("SHA") value associated with child pornography.² Leazenby confirmed that videos with the relevant SHA values depicted children engaging in sexual activity. He also received information from Bresnan Communications, an internet service provider, that the relevant IP address had been assigned to a computer located at 3824 Gregg Way, Apartment C, in Cheyenne, Wyoming.

Based in part on this information, Leazenby applied for and received a warrant to search the Gregg Way apartment. Leazenby's supporting affidavit provides his professional background; describes the general protocol investigating officers use to identify distributors of child pornography, including how officers usually determine that a computer at a given IP address has transferred a video with a particular SHA value; and states that Leazenby "learned" that a computer with the relevant IP address had shared videos with child-pornography-related SHA values.³ His affidavit, however, does not identify: (1) who informed Leazenby that a computer with the relevant IP address had transferred child pornography; or (2) the method used in this case to establish that a computer at the specified IP address transferred videos with child-pornography-associated SHA values.

Upon executing the search warrant, law enforcement discovered that three individuals, including Henderson, lived in the Gregg Way apartment. The apartment also contained three computers. Agents conducted a forensic review of the three computers and found child pornography on Henderson's computer. Coincidentally, Henderson's computer was actually in the process of downloading child pornography while the agents conducted the search. This led to the seizure of Henderson's hard drive and related computer items.

Henderson was indicted for receipt and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A), (a)(5)(B), (b)(1), and (b)(2). He initially pled guilty, but his resulting conviction and sentence were vacated because he had been erroneously advised regarding the mandatory minimum sentence for his crimes.

After his case was set for a new trial, Henderson filed a motion to suppress evidence resulting from the search of his apartment. He argued that the warrant was not supported by probable cause and that police could not have reasonably relied on the warrant in good faith. In assessing probable cause, the district court noted that "the reliability of matching the SHA[] values and IP numbers cannot be disputed with any merit. The science behind `fingerprinting' these computers . . . appears rock solid. . . ." Nevertheless, the court determined "the reliability of the information [is], in this case, insufficient to establish probable cause" because Leazenby's affidavit did not indicate the source of the listed IP address and SHA values. Despite this lack of probable cause, the court found that a reasonable officer could have relied upon the warrant in good faith; hence the evidence was admissible.

After this ruling, Henderson entered a conditional guilty plea to the receipt charge, and the possession charge was dismissed. The court sentenced Henderson to sixty-three months' imprisonment, followed by a life term of supervised release. Henderson timely appealed.

II

Under the exclusionary rule, the government may not introduce into evidence "tangible materials seized during an unlawful search [or] ... testimony concerning knowledge acquired during an unlawful search." Murray v. United States, 487 U.S. 533, 536, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) (citations omitted). However, exclusion is far from assured if law enforcement has obtained a warrant, but the warrant is later determined to be unsupported by probable cause. If law enforcement could have acted in objective good faith in executing a warrant—that is, if an officer could have acted in objectively reasonable reliance on a magistrate's determination of probable cause—the exclusionary rule does not apply. United States v. Leon, 468 U.S. 897, 921-23, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

The government wisely conceded at oral argument that Leazenby's affidavit is insufficient to establish probable cause. Notably, the affidavit fails to identify how Leazenby's source determined that a computer with the relevant IP address—rather than some other computer—shared videos with child-pornography-related SHA values.⁴ Accordingly, the sole issue before us is whether the district court properly determined that evidence resulting from this unlawful search was nonetheless admissible due to the good faith exception. We review this question de novo. United States v. Vanness, 342 F.3d 1093, 1097 (10th Cir.2003).

A

In Leon, the Supreme Court applied the good faith exception to a case in which "the affidavit included no facts indicating the basis for the informants' statements concerning [the defendant's] criminal activities and was devoid of information establishing the informants' reliability." 468 U.S. at 905, 104 S.Ct. 3405. We are faced with a similar situation. This affidavit fails to disclose the source of Leazenby's information and does not contain any information establishing the source's reliability. Further, the affidavit does not establish the method Leazenby's source used to match the illegal videos with the relevant IP address; consequently, it does not adequately indicate the basis for the source's statements that a computer at that IP address transferred child pornography. Although these errors make the search illegal, Leon counsels that they do not necessarily require application of the exclusionary rule.

We presume an officer's acts to be in objective good faith when supported by a warrant. United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir.1985). This presumption, however, is not absolute; it can be overcome by demonstrating that a warrant was "based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Leon, 468 U.S. at 923, 104 S.Ct. 3405 (quotation...