United States v. Brunette

• Decision Date: 12 July 2001
• Docket Number: No. 00-2194,00-2194
• Citation: 256 F.3d 14
• Parties: (1st Cir. 2001) UNITED STATES OF AMERICA, APPELLEE, v. DAVID J. BRUNETTE, DEFENDANT, APPELLANT
• Court: U.S. Court of Appeals — First Circuit

Page 14

256 F.3d 14 (1st Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE, v. DAVID J. BRUNETTE, DEFENDANT, APPELLANT.

No. 00-2194

United States Court of Appeals For the First Circuit

Submitted May 2, 2001

Decided July 12, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Gene Carter, U.S. District Judge] Jeffrey W. Langholtz, by Appointment of the Court, on brief for appellant.

Margaret D. McGaughey, Assistant United States Attorney, and Jay P. McCloskey, United States Attorney, on brief for appellee.

Before Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Lynch, Circuit Judge.

Coffin, Senior Circuit Judge

Defendant conditionally pleaded guilty to various counts of possessing and transporting child pornography, reserving his right to challenge the validity of a search warrant used to seize evidence from his home. He claims that the warrant application failed to establish probable cause to search because it did not include copies or descriptions of the allegedly pornographic images to justify the search. The district court refused to suppress the evidence seized pursuant to the warrant, relying on the affidavit of a U.S. Customs agent who had viewed the images and averred that "all" appeared to be within the statutory definition of child pornography, specifically, "photographs of a pre-pubescent boy lasciviously displaying his genitals." United States v. Brunette, 76 F. Supp. 2d 30, 37 (D. Me. 1999). Because neither the magistrate judge nor the district court judge independently viewed the images -- which were not made part of the record on appeal -- and because the affidavit did not adequately describe them, we conclude that the warrant was not supported by probable cause. We nevertheless affirm under the Leon good faith exception.

BACKGROUND

On the first of January 1999, 79 allegedly pornographic images of prepubescent boys were posted on the Internet to the site . A consumer watchdog group alerted the Internet service provider, Concentric Network Corporation (CNC), to the posting. An investigator from CNC traced the source of the posting to the defendant's account, which was opened with CNC a few months earlier. CNC, in turn, copied 33 of the images onto a disk, which it forwarded to the U.S. Customs Service.

Agent Richard Jereski, who had some 18 months of experience investigating child pornography crimes, viewed those 33 images and concluded that they were pornographic. Jereski applied for a warrant to search defendant's home, but he did not append any of the allegedly pornographic images to the warrant application. Nor did his affidavit contain a description of them; instead, he merely asserted that they met the statutory definition of child pornography. After the magistrate judge determined that there was probable cause, the warrant was issued, the defendant's home was searched, and his computers were seized. Other allegedly pornographic images of children were found on those computers.

Defendant was charged with transportation and possession of child pornography. See 18 U.S.C. §§ 2255A(a)(1) & (a)(5)(B). He moved to suppress the images contained on the computers seized under the warrant, arguing that the warrant was facially invalid because the affiant's "nondescript legal conclusion" was insufficient to support probable cause. He also argued that the good faith exception to the Fourth Amendment exclusionary rule, see United States v. Leon, 468 U.S. 897 (1984), did not apply because the affidavit falsely asserted that "all" of the images were pornographic. At the suppression hearing, Agent Jereski conceded that some of the images might not have pictured a lascivious display of boys' genitals, and thus, not "all" met the statutory definition of child pornography.

Without viewing the images, the district court ruled that, although a factual description of the images would have been desirable, see Brunette, 76 F. Supp. 2d at 40 n.4, the agent's training and experience qualified him to make the legal determination that there was probable cause to believe the images were pornographic, id. at 39 ("[B]ecause the facts indicate that Jereski was familiar with child pornography investigations, it is reasonable to draw the logical inference that Jereski was also familiar with the identification of pornographic materials."). The court also found that the use of "all" in Agent Jereski's affidavit was a material misstatement of fact, but that this overstatement was the result of "inadvertence and inattention to detail," not a deliberate attempt to mislead the magistrate judge. Id. at 41. Accordingly, the court denied the motion to suppress.

On appeal, defendant presses the same two points: first, that the affidavit was insufficient to show probable cause for the search; and second, that the false assertion in the affidavit makes the good faith exception to the Fourth Amendment exclusionary rule inapplicable. The government counters that probable cause supported the warrant despite the lack of pictures or descriptions, and that even if it did not, the omissions or inaccuracies did not destroy the officers' good faith reliance on the defective warrant.

STANDARD OF REVIEW

We review probable cause determinations de novo. United States v. Vigeant, 176 F.3d 565, 569 (1st Cir. 1999) (citing Ornelas v. United States, 517 U.S. 690, 699 (1996)). Our task, like that of the magistrate judge and district court, "is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit[,] . . . 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 (1983). This assessment is no different where First Amendment concerns may be at issue. See New York v. P.J. Video, Inc., 475 U.S. 868, 875 (1986) ("[A]n application for a warrant authorizing the seizure of materials presumptively protected by the First Amendment should be evaluated under the same standard of probable cause used to review warrant applications generally."). ¹

We are also obligated, where possible, ² to review de novo the legal determination that a given image depicts a "lascivious exhibition of the genitals." Amirault, 173 F.3d at 32-33 ("[W]e must review the district court's determination de novo to ensure that the First Amendment has not been improperly infringed."); see also United States v. Horn, 187 F.3d 781, 789 (8th Cir. 1999) (applying de novo review); United States v. Knox, 32 F.3d 733, 744 (3d Cir. 1994) (same); but see United States v. Boudreau, 250 F.3d 282-83 (5th Cir. 2001) (applying clear error review).

Our review of Leon determinations is de novo as well. See United States v. Shea, 211 F.3d 658, 666 (1st Cir. 2000). The government bears the burden of showing that its officers acted with objective good faith. Vigeant, 176 F.3d at 572. To make this assessment, we evaluate all of the attendant circumstances at the time of the warrant application and its execution. United States v. Ricciardelli, 998 F.2d 8, 15-16 (1st Cir. 1993).

DISCUSSION

We first discuss why the government's showing of probable cause was inadequate, and then explain why suppression was nevertheless unwarranted.

A. Probable Cause

Our assessment of probable cause focuses on Jereski's affidavit, which was the only evidence presented to the magistrate judge in support of the search warrant. Although the affidavit included sufficient indicia to link the images to defendant, i.e., that the postings originated from defendant's CNC Internet access account, it did not specify with any detail the basis for believing that those images were pornographic. The evidence on the nature of the images consisted solely of Jereski's legal conclusion parroting the statutory definition. See Brunette, 76 F. Supp. 2d at 37 ("[I]t appears that Jereski's assertion in his warrant affidavit that the images depicted 'a prepubescent boy lasciviously displaying his genitals,' was an attempt on his part to mirror the language of 18 U.S.C. §§ 2256(2)(E) . . . ."). ³ This bare legal assertion, absent any descriptive support and without an independent review of the images, was insufficient to sustain the magistrate judge's determination of probable cause.

In Amirault, we set forth the legal standards for evaluating whether a photograph depicts a lascivious exhibition of genitals and identified six factors to guide the inquiry. 173 F.3d at 31-32 (adopting factors first articulated in United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff'd sub nom., United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987)). ⁴ Although in Amirault we applied those factors in the context of reviewing a sentencing enhancement, the analysis here is the same: does a given image fall within the statutory definition of child pornography? Only if there is probable cause to believe so may a search warrant issue. A judge cannot ordinarily make this determination without either a look at the allegedly pornographic images, or at least an assessment based on a detailed, factual description of them. Cf. P.J. Video, 475 U.S. at 874 n.5. Indeed, our de novo standard of review anticipates that judicial officers at each stage of the process will consider whether the images at issue are pornographic within the meaning of the statute.

The district court excused the absence of descriptive evidence by relying on Agent Jereski's representation that the images were pornographic, finding that his training and experience qualified him to determine they met the statutory definition. But probable cause to issue a warrant must be assessed by a judicial officer, not an investigating agent. See Gates, 462 U.S. at 239 ("Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others."); see also Vigeant, 176 F.3d at 571 ("[U]nsupported conclusions...