U.S. v. Rugh
| Citation | 968 F.2d 750 |
| Decision Date | 07 July 1992 |
| Docket Number | No. 92-1114,92-1114 |
| Parties | UNITED STATES of America, Appellee, v. Geoffrey Richard RUGH, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Douglas B. Altman, Minneapolis, Minn., argued, for appellant.
Jeffrey S. Paulsen, Minneapolis, Minn., argued, for appellee.
Before McMILLIAN, JOHN R. GIBSON, and MAGILL, Circuit Judges.
Geoffrey Richard Rugh appeals his sentence, and challenges the district court's 1 refusal to suppress evidence found at his home linking him to the receipt of child pornography through the mail in violation of 18 U.S.C. § 2252(a)(2) (1988). We affirm the district court's determination that search warrant information was stale, but the Leon good-faith exception to the exclusionary rule applies. We further affirm the trial court's refusal to "group" the child pornography counts in sentencing.
Sergeant John Talbot of the South Lake Minnetonka, Minnesota, Police Department opened an investigation on Rugh on May 8, 1990. The investigation was prompted by a call from Detective Bob Nalett of the San Jose, California, Police Department, who informed Talbot that a search in San Jose revealed child pornography at the home of Damien Derringer. The items found at Derringer's home included letters from an Excelsior, Minnesota, address indicating that a resident at that address was engaged in producing and distributing child pornography, and was sexually abusing a thirteen-year-old boy.
Specifically, Nalett reported finding envelopes bearing a return address of 25695 Wildrose Lane, Excelsior. Those envelopes--the most recent of which was postmarked in 1988--contained letters indicating that thirteen-year-old Tommy Howitz resided at the Excelsior residence and was being molested by his father "Roger Howitz" 2 and others. The letters stated that Roger Howitz was planning to send his thirteen-year-old son to San Jose to become a sexual partner for Derringer. The letters also indicated that Roger Howitz was engaged in a profitable, nationwide child pornography distribution business. Finally, the envelopes contained photographs of prepubescent boys exposing their genitals, and twelve- to thirteen-year-old boys engaged in sodomy, masturbation, and oral copulation of the anus. Nalett told Talbot that he believed letters purportedly written by Tommy Howitz and Roger Howitz were written by the same person, an adult. Detective Nalett further informed Talbot that a check of postal records revealed that a person named Howitz lived at 25695 Wildrose Lane.
Police conducted further investigation before seeking a search warrant for Rugh's home that same day. South Lake Minnetonka police ran checks on the license plates of two vehicles parked at the Wildrose Lane address. The vehicles were registered to Thomas Russell Howitz and Rugh. Property records revealed the home was owned by Rugh and the phone book listed the residence as Rugh's. A check of the Minnetonka School District records, however, revealed no teenage children named Howitz registered in the schools. In his investigatory report, Talbot said he believed there were no children at the Wildrose address.
In his search warrant affidavit, Talbot requested permission for a nighttime search because "there could be a child involved and that child could be in danger if this warrant is not served as soon as possible." Later the night of May 8, 1990, South Lake Minnetonka police, joined by a federal postal inspector, executed a search warrant at the Wildrose Lane address. The search uncovered a large quantity of child pornography, including photographs and videotapes, a video camera with a zoom lens, correspondence with other pedophiles, and approximately $36,000 in cash. 3 The search also uncovered records linking Rugh with the falsification of social security information.
Correspondence found at Rugh's home included letters from Randy Anderson of Aurora, Illinois, that contained child pornography and statements that Anderson had sexually abused a fourteen-year-old boy. While executing a search warrant at Anderson's apartment in Illinois, officers encountered a fourteen-year-old boy who was the subject of some of the pictures found in Rugh's apartment. Anderson admitted sexually abusing the boy and sending pictures of the boy to Rugh.
Rugh was charged with two counts of receiving child pornography through the mail in violation of 18 U.S.C. § 2252(a)(2) (1988), and four counts of social security fraud. The social security fraud counts stemmed from a scheme by Rugh and his roommate to use each other's names and social security numbers at their respective jobs.
Rugh moved to suppress the evidence seized during the search of his home, claiming information in the search warrant was stale. The district court agreed the information was stale, but refused to suppress the evidence, concluding that officers acted in good-faith reliance on a facially valid warrant. Rugh subsequently pleaded guilty to all six counts, reserving the right to appeal the district court's denial of his motion to suppress.
On appeal, Rugh contends the district court erred in applying the good-faith exception to the exclusionary rule enunciated in United States v. Leon, 468 U.S. 897, 913, 104 S.Ct. 3405, 3415, 82 L.Ed.2d 677 (1984). Rugh also challenges the district court's refusal to group the two § 2252(a)(2) counts for sentencing purposes.
The district court ruled the search warrant invalid, finding that probable cause to search Rugh's home was lacking because police failed to freshen the sixteen-month-old information found in San Jose. United States v. Rugh, Nos. 3-91-70 and 3-91-71(1), slip op. at 3-4 (D.Minn. Aug. 12, 1991). The government does not challenge this finding on appeal. The district court determined that evidence seized during the search should not be suppressed, however, because officers executing the warrant acted in good-faith reliance on a facially valid warrant. Id. at 4 (citing Leon, 468 U.S. at 919-20, 104 S.Ct. at 3418-19).
When police objectively and reasonably believe that probable cause exists to conduct a search based on an issuing judge's determination of probable cause, evidence seized pursuant to the ultimately invalid search warrant need not be suppressed. United States v. Simpkins, 914 F.2d 1054, 1057 (8th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 997, 112 L.Ed.2d 1081 (1991). In assessing the good faith of officers in conducting a search, the court must look at the totality of the circumstances, including information known by officers but not presented to the issuing judge. Id. The district court's determination that police officers acted in good faith on a facially valid warrant is a mixed question of law and fact. We therefore review this finding de novo. Id. at 1057-58.
Rugh contends officers executing the search warrant could not have believed in good faith that probable cause for the warrant existed because their investigation was inadequate. Specifically, Rugh asserts that officers concluded before the search that no child was present at the home. Therefore, since no child was present, there was no rationale for the immediate search and police should have been required to update the evidence that child pornography remained at the home sixteen months after Rugh mailed the letters found in San Jose.
The district court found that the officers executing the search of Rugh's home acted in good faith because: (1) officers reasonably could have believed a child was being abused at the home and, therefore, time was crucial in executing the search warrant; (2) the officers could have reasonably believed a nationwide child pornography distribution ring was being run from the home; and (3) the officers reasonably could have believed the material from 1988 would still be present because pedophiles typically retain child pornography for a long time. United States v. Rugh, Nos. 3-91-70 and 3-91-71(1), slip op. at 4-5 (D.Minn. Aug. 12, 1991). We agree.
The affidavit supporting the search warrant as well as Talbot's testimony during the suppression hearing provide numerous facts to support an objective belief that probable cause existed to search Rugh's home. First, while Talbot thought that Rugh's child was not present at the home he could not be certain that the child, who would have been about fifteen at the time of the search, was not in the residence and subject to further abuse. United States v. Rugh, Nos. 3-91-70 and 3-91-71(1), tr. of motion proceedings at 9 (D.Minn. July 29, 1991). Rugh's letters stated that he and others had been abusing the boy since the age of five and that Rugh planned to send the boy to California to become a sexual partner for Derringer.
Second, Rugh's letters indicated that he was conducting a successful, nationwide distribution ring for child pornography. Where the affidavit recites facts indicating the presence of an ongoing, continuous criminal enterprise, the passage of time between the receipt of information and the search becomes less critical in assessing probable cause. United States v. Jones, 801 F.2d 304, 314 (8th Cir.1986); United States v. Williams, 897 F.2d 1034, 1039 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2064, 114 L.Ed.2d 469 (1991). Finally, Talbot stated it was his expert opinion that pedophiles retain child pornography for a long time. The information provided by Talbot supports the finding that Talbot believed Rugh to be a pedophile and that Talbot believed Rugh would have retained child pornography at his home some sixteen months after the latest evidence linking him to distribution of the material.
Rugh cites United States v. Weber, 923 F.2d 1338 (9th Cir.1991), in support of his argument that the police information was fatally stale, and that generalized beliefs about tendencies of pedophiles to retain literature are not sufficient to foster a good-faith...
To continue reading
Request your trial
-
U.S. v. Winningham
...[b]ut the lapse of time is not always the controlling factor." United States v. Maxim, supra at 397, quoting United States v. Rugh, 968 F.2d 750, 754 (8th Cir.1992); see also, United States v. Macklin, 902 F.2d 1320, 1326 (8th Cir.1990), cert. denied, 498 U.S. 1031, 111 S.Ct. 689, 112 L.Ed.......
-
U.S. v. Person, CR0609(01-02)RHK/RLE.
...are also relevant to the inquiry. Id., quoting United States v. Koelling, 992 F.2d 817, 822 (8th Cir. 1993); United States v. Rugh, 968 F.2d 750, 754 (8th Cir. 1992); see also, United States n. Kennedy, supra at 1141; United States v. Chrobak, 289 F.3d 1043, 1046 (8th Cir. 2002). As but one......
-
Anzualda v. Com.
...expected to note the particular time frame of the many facts alleged"); see also Bynum, 293 F.3d 192 (three-month gap); United States v. Rugh, 968 F.2d 750 (8th Cir.1992) (sixteen-month gap); United States v. Kleinebreil, 966 F.2d 945 (5th Cir.1992) (one-year 7. We further note that United ......
-
U.S. v. McElheney, 1:06-CR-113.
...that defendants guilty of receiving child pornography victimize the children depicted in the pictures. See United States v. Rugh, 968 F.2d 750, 756 (8th Cir.1992) (deciding that the primary victims in a receipt of child pornography case were the identifiable children in the images, not only......