United States v. Clark

• Decision Date: 16 July 2012
• Docket Number: No. 11–1479.,11–1479.
• Citation: 685 F.3d 72
• Parties: UNITED STATES of America, Appellee, v. Matthew CLARK, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

685 F.3d 72

UNITED STATES of America, Appellee,

v.Matthew CLARK, Defendant, Appellant.

No. 11–1479.

United States Court of Appeals,First Circuit.

Heard May 10, 2012.

Decided July 16, 2012.

James H. Budreau for appellant.

Margaret D. McGaughey, Assistant United States Attorney (Appellate Chief), with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

Before LYNCH, Chief Judge, BOUDIN and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Matthew Clark was convicted on two counts of possessing child pornography. He now challenges the propriety of the search that uncovered his pornography collection and ultimately led to his conviction. He also challenges the 210–month sentence imposed by the court below. Concluding, as we do, that the defendant's arguments are without merit, we affirm.

I. BACKGROUND

The facts relevant to this appeal are essentially undisputed. On January 19, 2008, officers from Maine's Animal Welfare Program (AWP) and the local sheriff's department executed a search of a home in Somerville, Maine, inhabited by Fern Clark and her adult son, Matthew. The officers conducted this search pursuant to a warrant issued by a state magistrate the previous day (the first warrant), which authorized a search for evidence of animal cruelty and the unlicensed operation of a breeding kennel.

During their search, the officers entered the defendant's bedroom. Near a computer work station, they saw a handwritten list of web sites with titles suggestive of child pornography together with nude photographs appearing to depict underage males.

The officers immediately halted their search and approached the local magistrate for a supplementary search warrant (the second warrant).¹ The second warrant authorized a search of the Clark household for child pornography. While executing this warrant, officers seized evidence that subsequently formed the basis for a federal indictment against the defendant for two counts of possessing child pornography.²See18 U.S.C. § 2252A(a)(5)(B).

Prior to trial, the defendant moved to suppress evidence seized during the second search. Pertinently, he argued that the first warrant was defective (and, therefore, that the original search was illegal) because the affidavit submitted in support of the warrant application did not make out probable cause to believe that evidence of either animal cruelty or an unlicensed kennel operation would be found. Building on this foundation, he argued that the second search would not have come to pass but for the evidence of child pornography uncovered during the initial (illegal) search. He concluded, therefore, that the items seized during the second search were the fruit of the poisonous tree, see Wong Sun v. United States, 371 U.S. 471, 484–85, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and should have been excluded when offered by the government at trial.³

The district court refused to suppress the evidence. It held that the first warrant was supported by probable cause and, in all events, the searching officers had relied upon it in good faith, see United States v. Leon, 468 U.S. 897, 918–25, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Because the court found no constitutional flaw in the first search, there was no basis for suppressing the items seized during the second search.

After a bench trial, the district court found the defendant guilty on both of the possession counts.⁴ At the disposition hearing, the district court, over objection, relied on the defendant's two prior convictions for indecent acts involving children as a basis for an offense-level enhancement related to “a pattern of activity involving the sexual abuse or exploitation of a minor.” USSG § 2G2.2(b)(5). With this enhancement in place, the court sentenced the defendant to a 210–month incarcerative term (the bottom of the guideline sentencing range). This timely appeal ensued.

II. ANALYSIS

On appeal, the defendant challenges both the denial of his motion to suppress and the application of the “pattern of abuse” enhancement. We bifurcate our discussion accordingly.

A. The Motion to Suppress.

When reviewing a denial of a motion to suppress, we assay a district court's legal conclusions, including its conclusion regarding the existence of probable cause, de novo. United States v. Kearney, 672 F.3d 81, 88 (1st Cir.2012); United States v. Schaefer, 87 F.3d 562, 565 & n. 2 (1st Cir.1996). We must, however, credit the district court's findings of fact unless they are clearly erroneous. United States v. Hughes, 640 F.3d 428, 434 (1st Cir.2011). Thus, we will uphold a denial of a suppression motion as long as “any reasonable view of the evidence supports the decision.” United States v. Woodbury, 511 F.3d 93, 96–97 (1st Cir.2007) (internal quotation marks omitted).

In the case at hand, the defendant's suppression argument hinges entirely on the supposed invalidity of the first warrant (which, in his view, was issued in the absence of probable cause). Mindful that inquiries into the existence vel non of probable cause are normally factbound, see Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 8 (1st Cir.2004), we carefully examine the contents of the affidavit that accompanied the application for the first warrant. The test is whether the sworn allegations are sufficient “to warrant a man of reasonable caution in the belief that an offense has been or is being committed and that evidence bearing on that offense will be found in the place to be searched.” Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 2639, 174 L.Ed.2d 354 (2009) (citation and internal quotation marks omitted); seeU.S. Const. amend. IV (stating that no search “[w]arrants shall issue, but upon probable cause, supported by Oath or affirmation”).

Christine Fraser, an AWP veterinarian, swore out the affidavit supporting the application for the first warrant. She explained that on January 16, 2008 (three days before the searches in question took place), police in Salem, New Hampshire, had discovered 22 dogs locked inside a car. The dogs were in poor condition (indeed, three of them were dead) and were covered in fleas and feces. The car's owner, Amy Moolic, told the police that she had rescued the dogs from a “puppy mill” in Somerville, Maine, where the conditions were “filthy.” After the Salem police obtained paperwork (not specifically identified) indicating that the dogs had come from the home of Fern Clark, they informed AWP officials about what they had learned.

This was not the first time that Fern Clark had appeared on the AWP's radar screen. Fraser's affidavit noted that animals had been seized from Fern Clark's home kennel in the 1990s (although she was ultimately acquitted of animal cruelty). Between 2005 and 2007, the AWP received three separate complaints about sick animals and squalid conditions at the Clark residence. In response to each of these complaints, Fraser sought to inspect the premises; each time, she was turned away. On one of these occasions, the Clarks barred Fraser from entering their home but permitted a relatively inexperienced local animal control officer to inspect the premises. He concluded that the conditions inside the home were “borderline but ok.”

By statute, Maine requires that all breeding kennels be licensed. SeeMe.Rev.Stat. tit. 7, § 3931–A(1). A breeding kennel is defined alternatively as either any location that has at least five adult female animals capable of breeding and where at least some of the offspring are sold or any location where more than 16 dogs or cats raised on the premises are sold in any given calendar year. Id. § 3907(8–A). The Fraser affidavit related that Fern Clark's license to operate a breeding kennel had expired in 2005 and had not been renewed. Nevertheless, Fern Clark had admitted to Fraser that, even after her license for a breeding kennel had expired, she had approximately 50 dogs on her property. Moreover, the AWP had continued to receive complaints from customers who claimed to have purchased puppies and kittens from her.

Based on these averments, we have little difficulty in concluding that probable cause existed to search the Clark home for evidence of animal cruelty and the unlicensed operation of a breeding kennel. Probable cause exists whenever the circumstances alleged in a supporting affidavit, viewed as a whole and from an objective vantage, suggest a “fair probability” that evidence of a crime will be found in the place to be searched. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); see United States v. Sanchez, 612 F.3d 1, 5 (1st Cir.2010). Probable cause does not require either certainty or an unusually high degree of assurance. See United States v. Winchenbach, 197 F.3d 548, 555–56 (1st Cir.1999). All that is needed is a “reasonable likelihood” that incriminating evidence will turn up during a proposed search. Valente v. Wallace, 332 F.3d 30, 32 (1st Cir.2003). The Fraser affidavit easily satisfies this standard.

The centerpiece of Fraser's affidavit is Moolic's statement that many of the bedraggled dogs found in her car had been rescued from a “puppy mill” in Somerville, Maine, where the conditions were “filthy.” Salem police, following up on Moolic's statement, obtained paperwork that linked these dogs to Fern Clark—a woman who previously had operated a licensed breeding kennel in Somerville, Maine. In addition, the affiant reported that, even after Fern Clark's license had expired, she harbored a large number of dogs on her premises and continued to be the subject of complaints from putative purchasers. These facts formed the basis for a reasonable belief that Fern Clark, at or near the time of the application for the first warrant, was illegally kenneling animals in inhumane conditions.

The fact that Fraser's affidavit relies in part on matters not within her firsthand knowledge does not destroy its force. An affidavit supporting a warrant...