United States v. Rees

• Decision Date: 30 April 2020
• Docket Number: No. 19-2230,19-2230
• Citation: 957 F.3d 761
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael REES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

957 F.3d 761

UNITED STATES of America, Plaintiff-Appellee,

v.Michael REES, Defendant-Appellant.

No. 19-2230

United States Court of Appeals, Seventh Circuit.

Argued February 12, 2020

Decided April 30, 2020

W. Scott Simpson, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Springfield, IL, for Plaintiff - Appellee.

Charles Schierer, Attorney, SCHIERER & RITCHIE, LLC, East Peoria, IL, for Defendant - Appellant.

Before Bauer, Kanne, and Barrett, Circuit Judges.

Kanne, Circuit Judge.

An investigation into online sharing of child pornography led law-enforcement officers to Michael Rees’s residences and vehicle, where they executed search warrants and found child pornography. Charged with federal crimes, Rees moved to suppress the evidence found in the searches. A district court denied his motion, and Rees then pled guilty to the charges but reserved his right to appeal the suppression decision. Appealing that decision, Rees argues that the evidence was inadmissible because the warrants were invalid and the officers could not reasonably rely on them to conduct the searches.

We affirm for two reasons. First, the warrant-issuing judge had a substantial basis for concluding that there was a fair probability evidence of child-pornography crimes would be uncovered in the searches. And second, even if the warrants were invalid, the officers executed them in objective good faith.

I. BACKGROUND

In 2017 and 2018, FBI Child Exploitation Task Force Officer William Lynn was investigating the sharing of child pornography through online, peer-to-peer networks. Over the course of six months, his investigation led him to believe child pornography would be found in the college apartment, house, and pickup truck of 40-year-old Michael Rees.

Seeking warrants to search these places, Officer Lynn gave a magistrate a seventeen-page probable-cause affidavit, which described the officer’s training and experience, law-enforcement methods for tracking child pornography on peer-to-peer networks, and the specific investigation that steered him toward Rees’s residences and vehicle.

Based on Officer Lynn’s affidavit alone, the magistrate issued the requested warrants. When officers executed them, they found thousands of still images and almost 200 videos of child pornography on Rees’s computer. A grand jury charged Rees with four counts of receiving, and one count of possessing, child pornography, 18 U.S.C. § 2252A(a)(2)(A), (5)(B).

Initially pleading not guilty, Rees moved to suppress the evidence found in the searches. He argued that the warrants were invalid for want of probable cause and the officers could not rely on them in good faith. Unconvinced after a hearing, the district court denied Rees’s motion. Rees then pled guilty to all five charges while reserving his right to appeal the suppression decision. The district court accepted Rees’s guilty plea, entered a judgment of conviction, and sentenced Rees to 97 months’ imprisonment—a sentence Rees does not contest.

On appeal, Rees maintains that the warrants were unsupported by probable cause and could not be relied upon in good faith.

II. ANALYSIS

Rees’s appeal challenges only the admissibility of evidence obtained from warrant-authorized searches. Our review of warrant-authorized searches involves a complex standard. See United States v. McIntire , 516 F.3d 576, 578 (7th Cir. 2008).¹ But it is simplified in this case because the district court did not make credibility determinations or findings of historical fact based on evidence received during the suppression hearing. See id. ; United States v. Koerth , 312 F.3d 862, 865 (7th Cir. 2002). Indeed, the district court confirmed at the suppression hearing that it would be receiving no evidence, only argument. As a result, we face just two questions, each involving a single standard.

The first question is, did the warrant-issuing judge act on the basis of probable cause? See United States v. Aleshire , 787 F.3d 1178, 1178–79 (7th Cir. 2015). On this question, we up-hold the magistrate’s finding of probable cause so long as that judge "had a ‘substantial basis for ... conclud[ing]’ that a search would uncover evidence of wrongdoing." Illinois v. Gates , 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (alteration in original) (quoting Jones v. United States , 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) ).

The second question is, if the warrants were invalid, was the evidence obtained from the searches nevertheless admissible because the officers relied on the warrants in objective good faith? See United States v. Leon , 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). On this question, our review is de novo —again, because the district court drew only a legal conclusion, without finding facts or determining credibility. See United States v. Mitten , 592 F.3d 767, 770–71 (7th Cir. 2010).

A. Probable Cause

The Fourth Amendment guarantees that "no Warrants shall issue, but upon probable cause." U.S. Const. amend. IV. Rees contends that the warrants here were not issued upon a proper probable-cause decision, for three reasons: first, when ruling on the motion to suppress, the district court inappropriately relied on a demonstrative aid that supplied new inculpatory information; second, Officer Lynn’s affidavit exposed fatal gaps in his investigation; and third, key information in the affidavit was stale.

We first dispense with Rees’s demonstrative-aid argument. During the suppression hearing, the government presented the district court with a two-and-one-third-page document condensing the information in Officer Lynn’s seventeen-page affidavit. Rees argues that this "complex demonstrative aid" did not merely summarize the affidavit but added inculpatory information to it. He surmises that the district court relied on that new information when denying Rees’s motion to suppress, and that without the additional information, the magistrate (the warrant-issuing judge) could not have based the warrants on a finding of probable cause.

This argument reaches outside the scope of our review. Our task is to determine whether the magistrate had a substantial basis to conclude that probable cause existed. To do this, we look only at the information the magistrate had. See Rainsberger v. Benner , 913 F.3d 640, 650 (7th Cir. 2019) ; United States v. Harris , 464 F.3d 733, 739 (7th Cir. 2006). The magistrate here had only Officer Lynn’s affidavit. So, our review does not encompass the later-made demonstrative aid or the district court’s alleged misuse of it.

We emphasize an important qualification: the demonstrative aid was not evidence of falsities in the affidavit. Cf., e.g. , United States v. Roth , 391 F.2d 507, 509 (7th Cir. 1967) (suppression hearing included testimony exposing a fatal flaw in the affidavit). This is germane because—while a district court may not consider new inculpatory information supporting a finding of probable cause—the court may (and at times must) consider new information attacking the veracity of the warrant affidavit or on issues outside whether probable cause existed. See Rainsberger , 913 F.3d at 650 n.5 ; Harris , 464 F.3d at 738–39. But Rees does not contend that the district court received exculpatory evidence. He argues only that the demonstrative aid included inculpatory information outside the affidavit’s four corners and that the added information should not have contributed to the district court’s decision that the warrants were valid.

Whether the demonstrative aid included new inculpatory information, and whether the district court improperly relied on it when concluding the warrants were proper, are both be-side the probable-cause inquiry we face today. Our review concerns only whether the affidavit, alone—the sole basis on which the magistrate issued the warrants—was enough for the magistrate to decide that probable cause existed. In other words, the affidavit’s four corners bound our review. See United States v. Bell , 585 F.3d 1045, 1049 (7th Cir. 2009) ("When, as here, the affidavit is the only evidence provided to the judge in support of the search warrant, the validity of the warrant rests solely on the strength of the affidavit.").²

We turn now to the question at hand: whether the warrant-issuing judge had a substantial basis for its probable-cause determination. The magistrate’s task was "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. Probable cause does not require a showing of criminal activity, as it rides on "the degree of suspicion that attaches to particular types of noncriminal acts." Id. at 243, n.13, 103 S.Ct. 2317. It also depends on the totality of the circumstances—"the whole picture"—not each fact in isolation. District of Columbia v. Wesby , ––– U.S. ––––, 138 S. Ct. 577, 588, 199 L.Ed.2d 453 (2018) (quoting United States v. Cortez , 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ).

Ultimately, the magistrate had to decide whether Officer Lynn’s affidavit provided enough information to warrant a prudent person to believe that criminal conduct has occurred and that evidence of it would be found in Rees’s residences and truck. See Gates , 462 U.S. at 238, 103 S.Ct. 2317 ; Whitlock v. Brown , 596 F.3d 406, 411 (7th Cir. 2010). Rees argues that gaps and staleness in Officer Lynn’s affidavit required a negative answer. We disagree. To explain why, we will recapitulate portions of Officer Lynn’s affidavit, though we will not provide the same depth and detail. We will then address Rees’s arguments.

1. Officer Lynn’s Affidavit

Officer Lynn first gave background information about peer-to-peer file-sharing networks and his law-enforcement experience with them. He recounted some of his and other officers’ knowledge about how digital media, including child...