United States v. White ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
F I L E D
No. 06-51607
August 22, 2007
Summary Calendar
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLIFFORD WILLIAM WHITE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:06-CR-96-ALL
Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
Clifford William White appeals his conviction on one count of possession
of matter containing visual depictions of minors engaging in sexually explicit
conduct and on one count of producing visual depictions of minors engaging in
sexually explicit conduct. White, who entered a conditional guilty plea, contends
that the district court erred in denying his motion to suppress. The district court
determined that law enforcement officers executing the search warrant had
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
conducted a reasonable search and had acted in objectively reasonable good-faith
reliance on a search warrant issued by a neutral magistrate.
This court’s review of the district court’s denial of a motion to suppress
evidence obtained pursuant to a warrant consists of two steps: “(1) whether the
good-faith exception to the exclusionary rule applies; and (2) whether probable
cause supported the warrant.” United States v. Satterwhite, 980 F.2d 317, 320
(5th Cir. 1992). If the good faith-exception applies, and there is no “novel
question of law whose resolution is necessary to guide future action by law
enforcement officers and magistrates,” the probable cause issue need not be
addressed. Id.
White contends that the affidavit supporting the search warrant did not
state with specificity those facts needed to establish probable cause that he had
taken pornographic photographs of children or to establish probable cause that
his computer contained child pornography. Here, however, the affidavit, which
was based on information supplied by an 11-year-old child, made clear that the
child’s statements about White’s possession of photographs that constituted child
pornography, and White’s storage of such photographs on his computer, were
based on his own observations. “[A]n informant's tip is buttressed by the fact
that it is based on his own personal observation rather than on hearsay.” United
States v. Reyes, 792 F.2d 536, 539 (5th Cir. 1986).
White argues that the affidavit, which was drafted by David Trujillo, an
investigator with the Ector County Sheriff’s Office, omitted facts, known to
certain law enforcement officers, that tended to undermine the credibility of the
child. “Absent evidence of an intentional material misrepresentation or omission
in the affidavit, the warrant will not be invalidated.” United States v. McCarty,
36 F.3d 1349, 1356 (5th Cir. 1994) (citation omitted). White has made no
attempt to show that the district court erred in its determination that the
affiant, Trujillo, was unaware of facts that raised a concern regarding the child’s
credibility.
2
White also contends that the information contained in the affidavit, which
contains no dates, was stale. Our review of the affidavit shows that several of
its statements, which are based on information provided by the child during an
interview, are in the present tense and describe ongoing possession of child
pornography. The omission of dates is not a fatal oversight. See United States
v. Thomas, 973 F.2d 1152, 1157 (5th Cir. 1992).
In view of the statements contained in the affidavit, it cannot be said that
the search warrant was based on an affidavit that is “so lacking in indicia of
probable cause as to render belief in its existence entirely unreasonable.” See
United States v. Cherna, 184 F.3d 403, 407-08 (5th Cir. 1999) (internal quotation
marks and citations omitted). White has not shown that the district court erred
in applying the good faith exception. See id.
The judgment of the district court is AFFIRMED.
3