U.S. v. Newsom, 03-3366.

• Decision Date: 01 April 2005
• Docket Number: No. 03-3366.,03-3366.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ernest NEWSOM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 780

402 F.3d 780

UNITED STATES of America, Plaintiff-Appellee, v. Ernest NEWSOM, Defendant-Appellant.

No. 03-3366.

United States Court of Appeals, Seventh Circuit.

Argued April 5, 2004.

Decided April 1, 2005.

Gayle Helart (argued), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

William E. Marsh (argued), Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Defendant-Appellant.

Before BAUER, POSNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

Ernest Newsom was caught with child pornography on his computer, including pictures of his own daughter and his ex-girlfriend's daughter. He was charged and found guilty of receipt, possession, and production of child pornography. Newsom appeals from the district court's denial of his motion to suppress evidence recovered from his home and computer and from two sets of sentencing enhancements. We affirm the district court's denial of his motion to suppress and the sentencing enhancements. We order a limited remand to the district court for consideration whether Newsom's sentence would be different in light of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), in keeping with the procedure established in United States v. Paladino, 401 F.3d 471, 2005 WL 435430 (7th Cir. Feb.25, 2005). In order to allow the court to take into account the sentence that the Guidelines would advise, along with other pertinent factors, we discuss Newsom's Guidelines arguments in this opinion.

I

From 1996 until 2001, Audry Edwards lived with Newsom at his Lawrence, Indiana, home. Edwards's daughter, Jane Doe # 1, and Newsom's daughter, Jane Doe # 2, also lived with the couple. In July 2001, Edwards found images of nude and partially nude children engaged in sexually explicit acts on Newsom's computer. She confronted Newsom but did not alert the police. She moved out, taking her daughter with her.

Despite Edwards's disturbing discovery, she remained in contact with Newsom. A year later, in July 2002, Edwards was watching Newsom's house while he was out of town. She looked on Newsom's computer and discovered two video clips of her daughter, Jane Doe # 1, getting out of the shower with a towel wrapped around her and then dropping the towel. Edwards recognized the room Jane Doe # 1 was in as her former bedroom in the house.

With the help of some neighbors, Edwards copied the video clips onto a CD and brought the disk to the Lawrence Police Department. She filed a report about the video clips and also reported finding the child pornography the previous year. Based on that information, Sergeant Miller obtained a search warrant to search Newsom's house and computer equipment. The searches turned up compromising videotapes of both Jane Doe # 1 and Jane Doe # 2 as well as other children; a video camera and a television that Newsom had rigged to tape the girls; a pair of Jane Doe # 1's underwear from Newsom's briefcase; and numerous images of child pornography.

On March 12, 2003, Newsom was charged by superseding indictment with one count of producing child pornography, in violation of 18 U.S.C. § 2251(a); one count of possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B); and 23 counts of receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2). Newsom moved to suppress the evidence seized in the search, arguing that the information on which the warrant was based was too old to furnish probable cause to search. The district court denied the motion on April 2, 2003. Newsom also waived his right to a jury trial at that time.

After a bench trial on April 9 and 10, 2003, the district court found Newsom guilty of the production and possession counts and 22 of the 23 receiving counts. The court sentenced Newsom to 324 months' imprisonment and 3 years' supervised release. Newsom appeals from the denial of his motion to suppress and challenges two specific aspects of his Guidelines sentence as well as the sentence as a whole.

II

The Fourth Amendment permits a search of a person's home only if there is probable cause to believe that the authorities will recover the items subject to seizure at the time they execute the warrant. United States v. Rambis, 686 F.2d 620, 622 (7th Cir.1982). "The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)). In reviewing de novo a magistrate's issuance of a search warrant based on probable cause, the magistrate's decision will be upheld "so long as the magistrate had a `substantial basis for ... conclud[ing]' that a search would uncover evidence of wrongdoing." Id. at 236, 103 S.Ct. 2317 (quoting Jones, 362 U.S. at 271, 80 S.Ct. 725). A magistrate's determination of probable cause "is to be given considerable weight and should be overruled only when the supporting affidavit, read as a whole in a realistic and common sense manner, does not allege specific facts and circumstances from which the magistrate could reasonably conclude that the items sought to be seized are associated with the crime and located in the place indicated." United States v. Spry, 190 F.3d 829, 835 (7th Cir.1999) (citations omitted). When considering whether information is stale, our circuit has held "that the age of inculpatory information is only one factor that magistrates should consider in determining whether probable cause exists, and if other factors indicate that the information is reliable the magistrate should not hesitate to issue the warrant." Id. at 836 (citations omitted).

The state court judge who issued the warrant here had two relevant pieces of information before him. The first was the fact that Edwards had seen pornographic images of very young children in that location a year earlier. Second, the judge knew that Edwards recently had discovered videos of her daughter, apparently taped with a hidden camera. The affidavit also stated that computers provide ample storage space for hundreds or thousands of images, that computers make it easier to make and swap images, and, at least by implication, that one could hold on to these images for long periods of time because of the immense amount of storage space provided on newer machines.

Information a year old is not necessarily stale as a matter of law, especially where child pornography is concerned. United States v. Lacy, 119 F.3d 742, 745 (9th Cir.1997) (upholding search warrant based on information ten months old because "the [agent] explained that collectors and distributors of child pornography value their sexually explicit materials highly, `rarely if ever' dispose of such material, and store it `for long periods' in a secure place, typically in their homes."); United States v. Harvey, 2 F.3d 1318, 1322-23 (3d Cir.1993) (concluding that a warrant was not based on stale information, in part because those who collect child pornography tend to keep it); United States v. Ricciardelli, 998 F.2d 8, 12 n. 4 (1st Cir.1993) (stating, "history teaches that [pornography] collectors prefer not to dispose of their dross, typically retaining obscene materials for years"); United States v. Rabe, 848 F.2d 994, 996 (9th Cir.1988) (upholding warrant despite two-year delay between original seizures and warrant because more recent letters indicated that pornographic material was still being kept by the defendant).

In this case, although the affidavit before the judge did not explain specifically that collectors of child pornography tend to hold onto their stash for long periods of time, it was clear from the context that the police believed that Newsom probably still had the year-old images or something similar on his computer. Also, the police did not base the search warrant on the year-old pornographic images alone; they also relied on Edwards's recent discovery of the tape of her daughter. Newsom points out that the images of Jane Doe # 1 were not themselves pornographic, as they "only" showed Doe # 1 naked. Even so, it was reasonable for the police to regard this video clip as an ominous hint of what might be found in Newsom's home.

Edwards had seen child pornography on Newsom's computer. She also had seen videos suggesting that Newsom secretly was taping her daughter. Reading the affidavit as a whole and taking the two discoveries of Edwards together, it was reasonable for the judge to conclude that probable cause existed to believe that Newsom had child pornography in his home.

III

Before turning to Newsom's sentencing arguments, a word about the applicable standard of review and the procedure we have adopted is in order. Newsom concedes that he never raised any argument to the effect that the Sentencing Guidelines were unconstitutional before the district court, or indeed in this court before the Supreme Court decided Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In a supplemental filing lodged with this court after Booker was handed down, however, he urges us to remand his case for re-sentencing, with or without a finding of plain error.

Because Newsom never raised this point before the district court, we conclude (consistent with our ruling in Paladino) that he is subject to the plain error standard of review. He is therefore not entitled to have his sentence vacated at this point; instead, we will follow the procedure outlined in Paladino by ordering a limited remand to the district court, while retaining jurisdiction over the appeal, to see whether the district court is inclined to stay with the original sentence or to...