U.S. v. Wagers, 05-5296.

• Decision Date: 27 June 2006
• Docket Number: No. 05-5296.,05-5296.
• Citation: 452 F.3d 534
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lyman WAGERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

452 F.3d 534

UNITED STATES of America, Plaintiff-Appellee, v. Lyman WAGERS, Defendant-Appellant.

No. 05-5296.

United States Court of Appeals, Sixth Circuit.

Argued: January 24, 2006.

Decided and Filed: June 27, 2006.

COPYRIGHT MATERIAL OMITTED

ARGUED: H. Louis Sirkin, Sirkin, Pinales & Schwartz, Cincinnati, Ohio, for Appellant. John Patrick Grant, Assistant United States Attorney, Lexington, Kentucky, for Appellee. ON BRIEF: H. Louis Sirkin, Jennifer M. Kinsley, Sirkin, Pinales & Schwartz, Cincinnati, Ohio, for Appellant. John Patrick Grant, Assistant United States Attorney, Lexington, Kentucky, for Appellee.

Before: BOGGS, Chief Judge; BATCHELDER, Circuit Judge; and WEBER, District Judge.^*

OPINION

BOGGS, Chief Judge.

Lyman Wagers pleaded guilty to receiving and possessing child pornography. On February 11, 2005 he was sentenced to 180 months in prison. The sentence conformed to the 15-year mandatory minimum for second offenders under 18 U.S.C. § 2252(b)(1). Arguing that the three search warrants leading to evidence incriminating him were not supported by probable cause, he appeals the trial court's denial of his motion to suppress evidence seized pursuant to the warrants. See United States v. Wagers, 339 F.Supp.2d 934, 940 & n. 1 (E.D.Ky.2004). We affirm.

I

This is Wagers's second conviction on child pornography charges. He was convicted in 1997 of one count of possession of child pornography and sentenced in the United States District Court for the Eastern District of Kentucky to 366 days in prison, plus three years of supervised release. In the case now before us, Wagers, a 57-year-old erstwhile lawyer and C.P.A., pleaded guilty to one count of conspiracy to receive child pornography, nineteen counts of receiving child pornography, and one count of possession of child pornography. The terms of his guilty plea allowed him to appeal the conviction on the grounds that the search warrants used in the investigation were not supported by probable cause.

A Homeland Security sting operation led to Wagers's arrest. From March to August 2003, federal agents purchased subscriptions to and visited websites available at redlagoon.com, video2000.com, and darkfeeling.com. While visiting these sites, the agents found images of child pornography. They obtained records from the billing services of these sites. These records revealed that Wagers had purchased subscriptions to redlagoon.com on June 30, 2002; to video2000.com on March 22, 2003 and again on June 3, 2003; and to darkfeeling.com on April 15, 2003. Though the lengths of Wagers's subscriptions are not clear from the record, based on the prices he paid for his subscriptions, as compared to the prices the agents paid for one-month subscriptions, it appears that each of Wagers's subscriptions was for between one and two months of membership. This inference has been offered by Wagers and is not contested by the government. The agents who examined the websites did so by purchasing one-month subscriptions on March 26, 2003, August 1, 2003, and July 21, 2003, respectively.

On April 5, 2004, federal agents executed a search warrant at the home of Lyman Wagers ("Mimosa Lane" or "home"). After finding child pornography on Wagers's home computer, agents swore out another affidavit for his office. On April 7, 2004, agents obtained a separate warrant for his office ("Harrodsburg Rd." or "office"). The same day, he was arrested for possession of child pornography. The following day, agents obtained a third search warrant, directed to America Online, the company supporting Wagers's email account ("AOL" or "email"). Wagers's guilty plea and conviction are based on images found on his home computer, at least some of which, he concedes, were transmitted via his American Online account.

The home and office affidavits were both more than thirty pages long and quite detailed. The AOL affidavit is seven pages and less detailed, but it states that agents had connected Wagers's AOL email address to his home address and to the purchase of subscription memberships to all of the websites containing offending material. It further states that the affiant's "experience and training" lead him to believe that Wagers uses his AOL account to "order, arrange for the payment of, and arrange for the receipt of child pornography...." Id. at 162. The warrants and their supporting affidavits alleged that Wagers had bought subscriptions to websites that were found at a later date to display child pornography. They did not specifically allege that Wagers had viewed the sites or that he had accessed unlawful content on them.

A federal grand jury indicted Wagers on May 6, 2004. He moved to suppress the evidence seized at his home and office. The district court denied the motion without a hearing. Wagers pleaded guilty to all counts, conditioning the plea on his right to appeal the ruling on the motion to suppress.

The district court sentenced Wagers to 180 months in prison on February 11, 2005. The guidelines range was 97 to 121 months, but the sentence conformed to the 15-year mandatory minimum for second offenders required by 18 U.S.C. § 2252(b)(1).

Wagers timely appealed his conviction, challenging the district court's denial of his motion to suppress.

II

This court reviews a district court's factual findings supporting its denial of a motion to suppress for clear error. It reviews de novo the district court's determination as to the reasonableness of the search as a question of law. United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc); United States v. Harris, 255 F.3d 288, 291-92 (6th Cir.2001). The "appellate court must consider the evidence in the light most favorable to the government" when reviewing a denial of a motion to suppress. United States v. Herndon, 393 F.3d 665, 667 (6th Cir.2005) (quoting United States v. Erwin, 155 F.3d 818, 822 (6th Cir.1998) (en banc)). "Probable cause exists where there is a fair probability, given the totality of the circumstances, that contraband or evidence of a crime will be found in a particular place." United States v. Helton, 314 F.3d 812, 819 (6th Cir.2003) (quoting United States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991)).

III

Wagers's first major argument is that the affidavits were not supported by probable cause for three reasons:

1) the affidavits supporting the search warrants did not allege that he had owned website memberships at a time when illegal images were mounted on the sites or that he had accessed the sites during the times when illegal images were available;

2) the affidavits do not adequately connect the illicit activity to his home, office, or AOL account; and

3) the affidavit for the home warrant improperly relied on the fact of Wagers's prior conviction.

In this section, we address each component of this argument in turn. In section IV of this opinion we address the second major argument of Wagers's appeal.

Wagers notes that the agents' subscriptions post-dated the expiration of all but possibly one of his own subscriptions. He argues that the affidavits supporting the search warrants merely infer that there were unlawful images on those sites at the time of his earlier subscriptions.

To assess how much of an inference was made in issuing the search warrants, it is useful to observe that roughly five months elapsed between the end of Wagers's subscription to redlagoon.com and the commencement of the agents' subscription. Approximately one month passed before their subscriptions to darkfeeling.com. And it is possible that only a few days elapsed between the end of Wagers's second subscription to video2000.com and the government's. Indeed, if Wagers's subscription was for two months (which, according to his own brief's uncontested calculation of "between one and two months," is possible), there would be a short overlap between the end of his second subscription and the government's subscription. Whether or not there was an actual overlap between subscriptions, an inference based on the difference of a few days-in the case of video2000.com-or of roughly 30 days-in the case of darkfeeling.com-is not very hard to make, even setting aside the perhaps more tenuous inference based on research on redlagoon.com that was five months after Wagers's known use.

Wagers claims in his brief (Appellant's Brief, 12) that these three websites contained both legal and illegal images. The government claims this assertion is false. (Appellee's Brief, 12) Wagers does not offer clear support for his statement in the record. Neither, for that matter, does the United States. The government points only to two printouts in the Joint Appendix submitted to this court, of the homepages of darkfeeling.com and redlagoon.com, both of which announce that all models featured on the sites are "14 or younger." (JA 195-96) These homepage reproductions are highly suggestive but not conclusive. Advertisers have been known to mislead before. Wagers rebuts, moreover, that the affidavits never state that the sites offer exclusively illegal content. Appellant's Reply Brief, 7. Neither party's view is definitive. But the district court was correct in concluding that this question is not dispositive. Probable cause to search for illicit pornography in Wagers's home, office, and email account existed even without a statement that these three websites contained only illegal images. See 339 F.Supp.2d at 940 & n. 1 The district court's conclusion is especially strong in light of the temporal analysis: based on the proximity in time between their subscriptions and his, the agents were justified in averring the essential similarity of the websites at the time Wagers had subscribed to them to the sites as they appeared during the sting operation's subscriptions.

Wagers argues that the affidavits do not connect the alleged crime to the places searched. For a search warrant to be valid, the place to be searched must be connected to the crime...