U.S. v. Terry

• Decision Date: 15 April 2008
• Docket Number: No. 07-3757.,07-3757.
• Citation: 522 F.3d 645
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brent TERRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

522 F.3d 645

UNITED STATES of America, Plaintiff-Appellee, v. Brent TERRY, Defendant-Appellant.

No. 07-3757.

United States Court of Appeals, Sixth Circuit.

Argued: March 17, 2008.

Decided and Filed: April 15, 2008.

ARGUED: Richard W. Smith-Monahan, Office of the Federal Public Defender, Cincinnati, Ohio, for Appellant. Christopher K. Barnes, Assistant United States Attorney, Cincinnati, Ohio, for Appellee. ON BRIEF: Richard W. Smith-Monahan, Office of the Federal Public Defender, Cincinnati, Ohio, for Appellant. Jeb T. Terrien, Assistant United States Attorney, Cincinnati, Ohio, for Appellee.

Before BOGGS, Chief Judge; ROGERS, Circuit Judge; and SHADUR, District Judge.^*

OPINION

BOGGS, Chief Judge.

Brent Terry entered a conditional guilty plea to one count of possession of images of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B), reserving his right to appeal the district court's denial of his motion to suppress. Terry argues that the search warrant permitting federal agents to search his home was not grounded upon probable cause, and that the search therefore violated the Fourth Amendment. For the following reasons, we affirm the judgment of the district court.

I

The facts of this case are undisputed. In the early morning hours of October 14, 2004, Internet service provider AOL (formerly known as America Online) intercepted two e-mail messages containing a known child pornography image. These messages were sent from the e-mail address "skippie4u@aol.com" to an unknown recipient (or recipients) at 2:35 a.m. and again at 2:36 a.m. The following day, AOL forwarded the image, along with the screen name, e-mail address, and zip code of the user, to the National Center for Missing and Exploited Children (NCMEC), which in turn forwarded the information to Immigration and Customs Enforcement (ICE) officers. Upon issuance of a summons, AOL provided ICE more information on the "skippie4u" screen name, which revealed that "skippie4u" was one of three screen names assigned to a master AOL account registered to Roy Terry, who lived at 10 Township Avenue in Cincinnati, Ohio. Defendant Brent Terry (Roy's son) was the registered user of the "skippie4u" screen name. ICE confirmed through the Postal Service that both Roy and Brent Terry received mail at 10 Township Avenue.

Based on this information, ICE obtained a search warrant for the Township Avenue address and executed it on March 21, 2005. The record does not reveal what, if anything, was searched and/or seized from the Township Avenue residence. It appears, however, that ICE was most interested in Brent Terry, not his father, because the e-mail account used to send the image was registered specifically to the younger Terry. During the search, ICE reported that Roy Terry

was interviewed at which time he stated that he has an Internet account through America Online (AOL), which is utilized, by himself, Brenda TERRY and Brent TERRY. Roy TERRY stated that Brent TERRY lives at 16 Walnut St. Cincinnati, OH and has access to the aforementioned AOL account from that address. Roy TERRY also stated that Brent TERRY has a computer that he uses at that address to access the account. Furthermore, Roy TERRY informed [ICE] that Brent TERRY utilizes the screen name Skippie 4U when accessing the aforementioned AOL account from his address 16 Walnut St. Cincinnati, OH.

Application and Affidavit for Search Warrant at 8 (capitalization in original). Roy also told ICE that Brent had lived at the Walnut Street address, which he rented from Roy, for approximately one and a half years. Thus, he was living in the Walnut Street residence at the time his e-mail account was used to send the illegal image.

ICE then obtained the search warrant for 16 Walnut Street that is the subject of this appeal. That warrant was executed on the same day, and agents recovered a laptop computer, three hard drives, and various external media from the residence, which were found to contain a total of 123 images and eight videos of minors engaged in sexually explicit conduct. Terry later moved to suppress this evidence, which motion the district court denied. Thereafter Terry entered a conditional guilty plea pursuant to Federal Rule of Criminal Procedure 11(a)(2) and appealed the denial of his suppression motion to this court.

II

"When reviewing the denial of a motion to suppress, we review the district court's findings of fact for clear error and its conclusions of law de novo." United States v. Foster, 376 F.3d 577, 583 (6th Cir.2004) (quoting United States v. Hurst, 228 F.3d 751, 756 (6th Cir.2000)). However, when judging the sufficiency of an affidavit to establish probable cause in support of a search warrant, the Supreme Court has "repeatedly said that after-the-fact scrutiny . . . should not take the form of de novo review. . . . Rather, reviewing courts are to accord the magistrate's determination 'great deference.'" United States v. Allen, 211 F.3d 970, 973 (6th Cir.2000) (en banc) (quoting Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). This means that "so long as the magistrate had a `substantial basis for . . . conclud[ing]' that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more." Ibid. (quoting Gates, 462 U.S. at 236, 103 S.Ct. 2317). Accordingly, "[t]his circuit has long held that an issuing magistrate's discretion should only be reversed if it was arbitrarily exercised." Ibid.

In deciding whether to issue a search warrant, the Fourth Amendment requires "the issuing magistrate . . . simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238, 103 S.Ct. 2317; see also United States v. Smith, 510 F.3d 641, 652 (6th Cir.2007) (referring to this as a "totality of the circumstances" approach). A "fair probability" is not interpreted as connoting any particular mathematical degree of probability. See Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) ("The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances. . . . Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence . . . have no place in the probable-cause decision.") (internal quotation omitted).

Terry asserts that there was an insufficient nexus to connect the intercepted child pornography image to his home computer, arguing that the AOL e-mail account used to send the illicit image could have been accessed from any computer with an Internet connection. We certainly agree that to establish probable cause to support a search warrant, there must be some nexus between the illegal activity suspected and the property to be searched. See United States v. McPhearson, 469 F.3d 518 (6th Cir.2006) (mere fact that man arrested for non-drug offense had drugs on his person did not establish the requisite nexus to search his home for drugs); United States v. Carpenter, 360 F.3d 591, 594 (6th Cir.2004) (en banc) (fact that marijuana was found growing near a residence, by itself, "f[e]ll short of establishing the required nexus between the . . . residence and evidence of marijuana manufacturing"). We do not agree, however, that such a nexus was lacking in this case.

The government's affidavit established that (1) the AOL e-mail account belonging to the "skippie4u" screen name sent two e-mail messages at approximately 2:30 a.m. containing a known child pornography image; (2) Brent Terry was the registered user of the "skippie4u" screen name; (3) Brent Terry lived at 16 Walnut Street at the time the e-mail messages were sent; and (4) Brent Terry had a computer at that address through which he accessed the "skippie4u" e-mail account used to send the messages. It requires no great leap of logic to conclude that the computer in Terry's home was probably used to send the intercepted messages. Given that the probable cause standard deals with "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act," Gates, 462 U.S. at 231, 103 S.Ct. 2317 (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)), the district court did not err in concluding that "as a matter of plain common sense, if . . . a pornographic image has originated or emanated from a particular individual's email account, it logically follows that the image is likely to be found on that individual's computer or on storage media associated with the computer." Dist. Ct. Order at 7. There are other possibilities, of course—a hacker illicitly using Terry's e-mail account, for example—but probable cause does not require "near certainty," only a "fair probability." See United States v. Martin, 289 F.3d 392, 400 (6th Cir.2002) ("Although innocent explanations for some or all of these facts may exist, this possibility does not render the . . . determination of probable cause invalid.").¹

In a similar case, this court upheld probable cause to search a home where the defendant had purchased subscriptions to known child pornography websites, but where it was unknown precisely which computer he had used to access those sites. See United States v. Wagers, 452 F.3d 534 (6th Cir.2006). In Wagers, the defendant used a business-based checking card to subscribe to two websites that made available both legal and illegal pornography. He argued that since "his subscriptions were connected only to his business office, not to his home," there was "nothing . . . [to] connect[ ] the residence to the alleged child pornography offenses." Id. at 539. We rejected this "feeble" argument, observing that the affidavit "aver[red] that...