United States v. Stein ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 28, 2020
Christopher M. Wolpert
_________________________________ Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-3043
(D.C. No. 6:17-CR-10045-EFM-1)
PATRICK STEIN, (D. Kan.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, EBEL, and MATHESON, Circuit Judges.
_________________________________
In this direct criminal appeal, Defendant Patrick Stein challenges his
conviction for possession of child pornography, arguing the Government unlawfully
obtained the evidence on which this charge was based using a defective search
warrant. Having jurisdiction under 28 U.S.C. § 1291, we reject Stein’s arguments
and AFFIRM his conviction.
I. BACKGROUND
After an eight-month investigation, the Federal Bureau of Investigation
(“FBI”), in October 2016, arrested Stein and two other members of a militia group
*
This order and judgment is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
for conspiring to use a weapon of mass destruction against Muslim Somali
immigrants living in southwestern Kansas. Agents then obtained a warrant to search
Stein’s home, where they seized, among other things, a computer and several thumb
drives. While going through the contents of those electronic devices, agents came
across images of child pornography. They stopped their search, obtained a second
warrant authorizing the agents to search for child pornography and, in executing that
second warrant, discovered up to 149 images of child pornography on the computer
and two of the thumb drives seized from Stein’s home.
Based on those images, the United States charged Stein in this case with one
count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B)
and (b)(2). Stein unsuccessfully moved in this case to suppress the evidence seized
during the search of his home conducted pursuant to the first search warrant. He then
conditionally pled guilty to possession of child pornography, reserving his right to
appeal the denial of his suppression motion. See Fed. R. Crim. P. 11(a)(2). The
district court sentenced Stein to forty-four months in prison on the child pornography
conviction, to run consecutively to the 360-month sentence Stein received for his
convictions stemming from the conspiracy to use a weapon of mass destruction.
II. DISCUSSION
The focus of this appeal, then, is the validity of the warrant the FBI obtained to
search Stein’s home for evidence of the conspiracy to use a weapon of mass
destruction. Summarizing, that warrant authorized FBI agents to search for and seize
several categories of “fruits, evidence, and/or instrumentalities” of that criminal
2
activity, including tools and materials that could be used to make bombs, receipts for
the purchase of bomb-making materials, bomb-making instructions, including those
that are “computer-generated or stored,” “[a]ny writing or printed word items or
computer files . . . that may relate to terrorist individuals, explosives, bombs,
terrorism, or terrorist attacks,” information on individuals who may have contacted
Stein and his co-defendants “by use of the computer or by other means for the
purpose of conspiring to commit an act of terrorism,” computers, electronic storage
devices, and cell phones. (I R. 72-74.) In this appeal, Stein specifically challenges
the warrant’s authorization for agents to seize the computer and thumb drives on
which the FBI discovered images of child pornography.
A. Probable cause
The Fourth Amendment provides that “no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV.
Stein first contends that there was no probable cause to support the search warrant’s
authorization to search his home for computers and other electronic storage devices
in connection with the conspiracy to use a weapon of mass destruction.
1. Probable cause existed to believe Stein had a computer, it would be
found in his home, and it would contain evidence related to the conspiracy
to use a weapon of mass destruction
Stein asserts that the affidavit the FBI submitted to obtain the search warrant
for Stein’s home lacked sufficient information from which the magistrate judge
issuing the warrant could have concluded that there was probable cause to believe
3
Stein possessed a computer or other electronic storage device, such devices would be
found in his home, and they would contain information regarding the conspiracy to
use a weapon of mass destruction.1 See Wayne R. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment § 3.7(d) (5th ed. updated Oct. 2019) (noting
probable cause to support a search warrant requires that there be “a sufficient nexus
between (1) criminal activity, and (2) the things to be seized, and (3) the place to be
searched”); see also United States v. Knox, 883 F.3d 1262, 1277 (10th Cir. 2018) (“In
order for an affidavit to establish probable cause there must be a nexus between the
[item] to be seized and the place to be searched” (internal quotation marks, alteration
omitted)).
The magistrate judge’s probable cause determination involved “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.” Illinois v. Gates, 462 U.S. 213, 238 (1983). We review de
novo the district court’s decision rejecting Stein’s challenge to the search warrant.
See United States v. Wagner, 951 F.3d 1232, 1246 (10th Cir. 2020). However, “we
afford great deference” to the issuing magistrate judge’s determination that there was
probable cause to support the search warrant, asking on appeal “only whether, under
the totality of the circumstances presented in the affidavit, the judge had a substantial
1
In the district court, Stein characterized this problem, not as a lack of probable
cause, but instead as the search warrant being overly broad. The district court,
however, treated this issue as one involving probable cause. So does Stein on appeal.
4
basis for determining that probable cause existed.” Id. (internal quotation marks,
alteration omitted). In making that determination on appeal, we view the evidence in
the light most favorable to the Government. See id. at 1243.
Doing so here, we conclude there was a substantial basis included in the
supporting affidavit for the magistrate judge issuing the search warrant for Stein’s
home to determine that there was a fair probability that digital evidence of the
conspiracy—including computer-generated or stored bomb-making instructions,
computer files related to terrorist individuals, explosives, bombs, terrorism or
terrorist attacks, and information on individuals who may have contacted Stein and
his co-defendants for the purpose of conspiring to commit an act of terrorism—would
be found in Stein’s home.
The affidavit indicated that Stein’s co-conspirators downloaded bomb-making
instructions from the internet, watched bomb-making videos on YouTube, and used
computers to research targets for their bombs. In addition, Stein procured fertilizer
for the bomb and was assigned the task of acquiring a rock tumbler which was
needed for the bomb-making. These activities could be expected to produce a digital
trail. So, too, could Stein’s surveillance of several possible targets, in light of the
group’s desire “to get photos and videos of the” possible target locations. (I R. 63
¶ 23.)
The affidavit further indicated that Stein and his co-conspirators
communicated by cell phones, often using the “phone-based application” Zello,
which allowed the conspirators to speak to one another “as if their cellular telephones
5
were push-to-talk walkie-talkies.” (I R. 51 ¶ 2 & n.1.) Further, in September 2016,
Stein indicated that the group should “begin discussing project strategies via an
encrypted mobile messaging application.” (I R. 66 ¶ 29.)
As the district court noted, the FBI’s affiant
identified many instances where Stein used electronic devices to
communicate with his co-conspirators via the internet. While much of this
activity was conducted on Stein’s phone, it was reasonable to infer that
some of the online activity could have been done on a computer, as well.
Furthermore, the affidavit established that, based on the affiant’s training
and experience, such electronic communications are sometimes
automatically downloaded to electronic devices with internet access and
can be recovered from the device’s “cache.”
(I R. 407.) That might also be true of any digital surveillance photos Stein may have
taken. See United States v. Reichling, 781 F.3d 883, 887 (7th Cir 2015) (recognizing
that it is “common knowledge . . . that images sent via cell phones . . . may be readily
transferred to other storage devices”).
This information, viewed in the light most favorable to the Government, see
Wagner, 951 F.3d at 1243, provided a substantial basis for the magistrate judge
issuing the search warrant to determine that there was probable cause—a fair
possibility—that Stein had digital evidence of the conspiracy. Furthermore, it was
reasonable for the magistrate judge to infer, from this information, that there was a
fair possibility that this digital evidence would be on electronic devices found in
Stein’s home. Cf. Peffer v. Stephens, 880 F.3d 256, 272 (6th Cir. 2018) (noting
computers “are personal possessions often kept in their owner’s residence and
therefore subject to the [Sixth Circuit’s] presumption that a nexus exists between an
6
object used in a crime and the suspect’s current residence”). See generally United
States v. Biglow, 562 F.3d 1272, 1279 (10th Cir. 2009) (considering “the nature of
the evidence sought” and “all reasonable inferences as to where a criminal would
likely keep such evidence”).
The Government asks, in the alternative, that we affirm by applying United
States v. Leon, 468 U.S. 897 (1984)’s good-faith exception. We do so, ruling that
even if the magistrate judge’s probable cause determination was wrong, an objective
officer could still have relied in good faith on that probable cause determination. See
id. at 922. In reaching that conclusion, we reject Stein’s characterization of the
warrant as “so lacking in indicia of probable cause to search for computers and other
electronic storage devices as to render official belief in its existence entirely
unreasonable.” (Aplt. Br. 27).
2. Franks issue
Invoking Franks v. Delaware, 438 U.S. 154 (1978), Stein next argues that the
FBI was able to obtain the search warrant authorizing the search of Stein’s home for
computers and other electronic devices only by intentionally or recklessly omitting
four material facts from the affidavit submitted in support of the search warrant
application.2 See Harte v. Bd. of Comm’rs, 864 F.3d 1154, 1162 (10th Cir. 2017)
(per curiam) (recognizing Franks applies to deliberate or reckless material omissions
2
On the basis of this argument, the district court granted Stein a Franks hearing and,
at Stein’s suggestion, took judicial notice of the transcripts of the Franks hearing
conducted in the weapons-of-mass-destruction prosecution.
7
in affidavit for search warrant, as well as deliberately or recklessly false statements
included in affidavit). Those four omitted facts, Stein contended, show that he did
not own or use a computer. Reviewing de novo, see United States v. Garcia-
Zambrano, 530 F.3d 1249, 1254 (10th Cir. 2008), we conclude, as did the district
court, that the four omitted facts were not material because, even considering the
omitted information, there remained probable cause to believe digital evidence of the
conspiracy to use a weapon of mass destruction would be found on electronic devices
in Stein’s home. See United States v. Herrera, 782 F.3d 571, 575 (10th Cir. 2015)
(“If . . . the affidavit contains intentional, knowing, or reckless omissions, a court
must add in the omitted facts and assess the affidavit in that light.”).
The first omitted fact—that Stein told an FBI informant, in April 2016, that the
informant should not make any plans on a computer because Stein did not want there
to be any record—indicated only that, at least early in the conspiracy, Stein did not
want the informant to use a computer to make a record of the conspiracy’s plans, not
that Stein was not himself using a computer. Furthermore, later in the conspiracy,
Stein’s two co-defendants, with his knowledge, used computers and accessed the
internet to research bomb making and to look for possible targets for the
conspirators’ bombs.
The second and third omitted facts indicated that, in August 2016, Stein asked
the informant if he knew anyone who had a “decent laptop they wanna get rid of”
and, three days later, Stein told the informant that he had “been in desperate need of a
computer for some time,” because he was having to conduct all his online activity on
8
his phone. (I R. 35-36.) Stein argues that these two omitted statements established
that he had no computer. But, as the district court recognized, these statements
indicated that Stein was actively seeking to obtain a computer at that time, two
months before his arrest and the search of his home. These two omitted facts, then,
further support probable cause to believe that, by the time of his arrest, two months
later, there was a fair probability that Stein had obtained the computer he desperately
needed.
The fourth omitted fact was that, three weeks before Stein was arrested, the
informant, in September 2016, while discussing with a third person the best way to
contact Stein, stated that Stein does everything on his phone because he does not
have a computer or internet. There is no indication, however, that this statement by
the informant was based on anything other than what Stein had told the informant
over one month earlier, in August 2016. This omitted fact did little to establish that
Stein still had no computer at that time, three weeks before his arrest.
For these reasons, then, we agree with the district court that, even if the FBI
had included these four omitted facts in its affidavit submitted in support of the
search warrant, there was still probable cause to believe there would be digital
evidence of the conspiracy on a computer or some other electronic storage device
found in Stein’s home in October 2016.
B. Stein waived his challenges to the particularity of the warrant
For the first time on appeal, Stein argues that the search warrant failed to state
with sufficiently particularity “the types of electronic media or computer files that
9
fall within its scope,” and failed “to limit the scope of the search for electronic
devices and files to the crime charged,” the conspiracy to use a weapon of mass
destruction. (Aplt. Br. 19, 22.) Stein, however, never made these arguments to the
district court.
Stein contends that he did preserve these arguments for appeal because he
made a broad particularity argument in the district court. But in the district court,
Stein argued instead that the search warrant was too broad because it allowed agents
to seize all sorts of common household items that could be used to make a bomb,
including, for example, glassware, stirring sticks, hammers, drill bits, staplers,
batteries, screws, nails, staples and the like. That is substantively different than the
particularity argument Stein now asserts for the first time on appeal, challenging the
breadth of the search that the warrant permitted of the seized computers and other
electronic devices. See United States v. Warwick, 928 F.3d 939, 944-45 (10th Cir.
2019) (rejecting contention that argument first raised on appeal was preserved by a
broad reading of the suppression motion before the district court).
Rule 12, Fed. R. Crim. P., provides that a motion to suppress evidence must be
made prior to trial, or it is waived, absent the defendant showing good cause for his
failure to raise the issue pretrial in the district court. See Rule 12(b)(3)(C), (c)(3).
That waiver rule also applies when, as here, a defendant makes a motion to suppress
to the district court, but then raises a new suppression argument for the first time on
appeal. See Warwick, 928 F.3d at 944. Here, Stein does not attempt to show good
cause why he failed to make in the district court the particularity argument he now
10
asserts on appeal, challenging the breadth of the search of the seized electronic
devices the warrant permitted. See id. We, therefore, cannot consider that new
argument. See United States v. Bowline, 917 F.3d 1227, 1229-37 (10th Cir. 2019),
cert. denied, 140 S. Ct. 1129 (2020).3
III. CONCLUSION
For the foregoing reasons, then, we reject Stein’s challenges to the search
warrant that led FBI agents to discover child pornography on Stein’s computer and
thumb drives and AFFIRM his conviction for possession of that child pornography.
Entered for the Court
David M. Ebel
Circuit Judge
3
A second reason why we cannot address Stein’s particularity argument raised for
the first time on appeal is that Stein entered a conditional guilty plea, see Fed. R.
Crim. P. 11(a)(2), preserving only his right to appeal the denial of the suppression
motion that he made to the district court and otherwise waiving his right to appeal.
See United States v. White, 584 F.3d 935, 946-48 (10th Cir. 2009); United States v.
Anderson, 374 F.3d 955, 957-58 (10th Cir. 2004).
11