Arkansas Chronicle v. Murphy , 183 F. App'x 300 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1822
ARKANSAS CHRONICLE, a division of Sienna
Broadcasting Corp.; JOHN CULBERTSON,
Plaintiffs - Appellees,
versus
ROBERT J. MURPHY; STEVE MILEFSKY,
Defendants - Appellants,
and
R. MARK EASLEY; SUZANNE G. DEVLIN, Acting
Police Chief of Fairfax County; JOHN T. FREY,
Clerk, Circuit Court of Fairfax County;
FAIRFAX COUNTY BOARD OF SUPERVISORS; COUNTY OF
FAIRFAX, VIRGINIA,
Defendants,
and
CITY OF OKLAHOMA CITY,
Party in Interest.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (CA-04-110)
Argued: March 15, 2006 Decided: May 30, 2006
Before WIDENER and WILLIAMS, Circuit Judges, and William L. OSTEEN,
Senior United States District Judge for the Middle District of
North Carolina, sitting by designation.
Reversed by unpublished opinion. Judge Williams wrote the opinion.
Judge Widener wrote a separate opinion concurring in part and
concurring in the result. Senior Judge Osteen wrote a dissenting
opinion.
ARGUED: Robert Marvel Ross, COUNTY ATTORNEY’S OFFICE FOR THE COUNTY
OF FAIRFAX, Fairfax, Virginia, for Appellants. Benjamin Gaillard
Chew, PATTON BOGGS, L.L.P., Washington, D.C., for Appellees. ON
BRIEF: David P. Bobzien, County Attorney, Peter D. Andreoli, Jr.,
Deputy County Attorney, Ann Gouldin Killalea, Assistant County
Attorney, Fairfax, Virginia, for Appellants. Catherine Sun Wood,
PATTON BOGGS, L.L.P., Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
WILLIAMS, Circuit Judge:
This case stems from the 2004 trial of Terry Nichols for the
bombing of the Alfred P. Murrah Federal Building in Oklahoma City.
Prior to the start of that trial, two Virginia police officers
obtained and executed a search warrant at the home of John
Culbertson, seizing computers and files belonging to Culbertson and
his employer, the Arkansas Chronicle. The target of the search
warrant was a video and still photographs of the bombing that were
last seen in electronic format. Culbertson and the Arkansas
Chronicle filed this 42 U.S.C.A. § 1983 (West 2003) suit against
Robert Murphy and Steve Milefsky, the two police officers who
executed the search, claiming violations of their constitutional
rights. Officers Milefsky and Murphy moved for summary judgment on
the grounds of qualified immunity, which motion the district court
denied. Officers Milefsky and Murphy now appeal. While the
underlying facts of this case are unique, the legal principles
guiding our decision are well established and lead to a result
opposite of that reached by the district court. For the following
reasons, we reverse the district court’s denial of qualified
immunity to Officers Milefsky and Murphy.
I.
In 2004, prior to the start of Nichols’s trial in Oklahoma
state court, one of Nichols’s attorneys spoke with attorney Thomas
3
W. Mills of Dallas, Texas. Based on this conversation, Nichols’s
defense attorney filed an “Ex Parte Sealed Emergency Motion for
Order to Preserve Evidence and for Subpoena Duces Tecum” with the
Oklahoma trial court. (J.A. at 193.) In the motion, Nichols’s
defense attorney alleged that Mills informed him that in August
1998 Culbertson had shown him a video and still photographs on
Culbertson’s laptop computer depicting the Murrah Building right
before and after the bombing and that the images showed a Ryder
truck.1 The motion further alleged that Culbertson had shown Mills
the video and photographs in the congressional offices of
Congressman James Traficant (D-Ohio). At that time, Culbertson was
serving as a legislative aid to Traficant. Nichols’s motion also
cited Culbertson’s testimony before a House subcommittee, in which
Culbertson stated that he had a video of a law enforcement officer
describing the video images and photographs the officer had seen of
the Oklahoma City bombing. Nichols’s defense team believed that
these photographs could be crucial to Nichols’s defense. After
receiving Nichols’s motion, the Oklahoma trial court held an in
camera hearing and indicated that “if you came to me with this
information and asked me as a judge to issue a search warrant, I
probably would do it.” (J.A. at 256.) After the hearing, the
1
A Ryder truck is believed to have carried the bomb to the
Murrah Building.
4
Oklahoma City prosecutor began the process of obtaining a search
warrant in Virginia where Culbertson resided.
To confirm the statements made by Nichols’s defense attorneys,
on January 28, 2004, Oklahoma City Detective Mark Easley traveled
to Dallas and spoke with attorney Mills. Mills confirmed to
Detective Easley that Culbertson had shown him, on Culbertson’s
laptop computer at Congressman Traficant’s office, a video of the
Murrah Building “that was taken within minutes of when the bomb
went off.” (J.A. at 55.) Mills said that the first frame showed
the building, the next frame showed a glow at the bottom, the next
frame showed the glowing ball going up the building, and the final
frame showed the building collapsed. Mills also said that
Culbertson told him that an Alcohol, Tobacco and Firearms (ATF)
agent had given him the video. Mills further said that Culbertson
refused to go to the ATF or the FBI with the video tape because
Culbertson needed to protect his source and the FBI did not want
the video disclosed. During Detective Easley’s conversation with
Mills, Mills informed Detective Easley that he had spoken with
Culbertson after Nichols’s “defense attorneys had learned about his
‘secret’ video and pictures.” (J.A. at 68.) In response to
Mills’s comments, Culbertson told Mills that it was going to be a
“tight rope for me to walk.” (J.A. at 68.)
Having received confirmation from Mills about the existence
of the images, on January 30, 2004, Detective Easley traveled to
5
Fairfax County, Virginia to speak with Culbertson. From the
Fairfax County Police Department, Detective Easley placed a phone
call to Culbertson. The phone call was tape recorded. Easley
asked Culbertson if the images and video were still available and
Culbertson responded
Well, I’m going to tell you the same thing I told
Nichols’s attorneys. Because of a variety of complex
legal issues, there is some journalistic law involved,
there is legislative privilege involved with respect to
the Congress and so forth. I’m just not at liberty to
divulge whether it exists, where it’s at, whatever, until
I’ve got guidance from appropriate counsel.
(J.A. at 97.) Culbertson informed Easley that he had worked for
the Washington Bureau of the Arkansas Chronicle, a publishing
entity since 1996, and that he maintained a home office. Easley
further pressed Culbertson for information on the images, and
Culbertson stated, “Well, what I can tell you is the stuff was
turned over, you know, there’s public stuff on it that was turned
over to the House Judiciary [Committee]. And that might be the
place to look, uh, for these things.” (J.A. at 97.) Culbertson
also informed Easley that he testified before the House Judiciary
Contract Law Subcommittee on matters related to the Oklahoma City
bombing in either 1999 or 2000. The House report confirms that
Culbertson testified that “photos and video of the explosions at
the Murrah Building” do exist and that Culbertson submitted images
along with his report in 2000. See Fair Justice Act of 2000:
Hearing on H.R. 4105 Before the Subcomm. on Commercial and Admin.
6
Law of the H. Comm. on the Judiciary, 106 Cong. 60-61 (2000)
(statement of John Culbertson, Director, Center for Reform).
Culbertson also denied to Detective Easley that he had seen a video
showing a Ryder truck at the Murrah Building, and he then said that
the video he submitted to the House subcommittee was the Sheriff’s
Department video “that you guys probably already have.” (J.A. at
101.) Culbertson next informed Easley that he no longer had the
computer on which he showed Mills the video. Culbertson ended the
conversation by telling Detective Easley that after he had spoken
with his attorney, he would call Easley. Less than an hour later,
Culbertson called Detective Easley and told him that he could not
speak with him because of journalistic privilege stemming from his
production of the show African Lifestyles, legislative privilege
because he formerly worked for a congressman, and a third privilege
relating to his position as a “consultant to the Philippines.”
(J.A. at 104.)
Based on the information received from Mills and Culbertson’s
refusal voluntarily to disclose his knowledge of the status of the
video, Detective Easley sought a search warrant from a Fairfax
County Circuit Court. The search warrant stated that Easley wanted
to search Culbertson’s house to seize
any and all computer equipment, hard disk drives, compact
disks, floppy disks, magnetic tapes or other magnetic or
optical media capable of storing information in an
electronic, magnetic, or optical format. This
information may include, but it is not limited to
letters, correspondence, memoranda, journals, electronic
7
mail, image files, database files, deleted files, partial
files or other types of files found in the media or
computer.
(J.A. at 65.) Detective Easley also filed a detailed affidavit
setting forth the relevant facts in support of the search warrant
and explaining that the officers were looking for a video and still
images of the Oklahoma bombing. Detective Easley’s supporting
affidavit described his conversations with attorney Mills and
Culbertson. Detective Easley’s affidavit noted that Mills
confirmed that he had seen images of the bombing, but that Mills
could not recall whether he saw a Ryder truck depicted in the
images and correspondingly that he did not tell Nichols’s attorney
that he had seen a Ryder truck. Detective Easley also stated that
in his experience “as a law enforcement investigator . . . a person
in possession of items of this magnitude and uniqueness is unlikely
to dispose of or destroy the information. Instead, he is more
likely to leave it on the computer or copy it to a disc of some
sort or both.” (J.A. at 69.) A Fairfax County magistrate judge
signed the search warrant and Fairfax County police officers Murphy
and Milefsky executed the search at Culbertson’s house. On January
30, 2004, Officers Murphy and Milefsky seized the following items
from Culbertson’s home: eight desktop computers, two laptops, 454
diskettes, 170 CD-ROMS, 8 mini CD-ROMS, four zip disks, one hard
drive, fourteen VHS tapes, four notebook binders, and one manilla
folder containing documents. Officers Murphy and Milefsky then
8
shipped the seized items to the Oklahoma City Police Department.
Upon receipt of the boxes, the Oklahoma City police department
withheld opening the boxes or examining the contents until it
received judicial instructions. Ultimately, the alleged video and
still photographs were not found.
Culbertson and the Arkansas Chronicle then filed this suit in
federal court against Officers Milefsky and Murphy alleging
constitutional violations pursuant to § 1983. Officers Milefsky
and Murphy moved for summary judgment on the basis of qualified
immunity. The district court denied qualified immunity finding
that Culbertson’s Fourth Amendment rights were violated and that
Officers Milefsky and Murphy should have known that the search
warrant was unconstitutionally overbroad and lacking in probable
cause. Officers Milefsky and Murphy timely filed an interlocutory
appeal. We have jurisdiction over their legal challenge to the
district court’s denial of their motion for summary judgment under
28 U.S.C.A. § 1291 (West 1993). Washington v. Wilmore, 407 F.3d
274, 281 (4th Cir. 2005). “To the extent that the denial of
qualified immunity rests on a question of law, the decision is
final pursuant to the collateral order doctrine” and subject to de
novo review. Id.9
II.
“Qualified immunity shields government officials from civil
liability ‘insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.’” Trulock v. Freeh, 275 F.3d
391, 399 (4th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). “In considering an appeal from the rejection of
a qualified immunity defense, our first task is to determine
whether a constitutional right would have been violated on the
facts alleged.” Wilmore, 407 F.3d at 281. If no rights have been
violated, then the inquiry ends. If a violation has occurred, then
the court must determine whether the right violated was clearly
established at the time of the violation, here the search and
seizure, and “[o]nly where the warrant application is so lacking in
indicia of probable cause as to render official belief in its
existence unreasonable,” Malley v. Briggs, 475 U.S. 335, 344-45
(1986) (internal citation omitted), or where the overbreadth of the
search warrant is apparent to a reasonable police officer, Anderson
v. Creighton, 483 U.S. 635, 640-41 (1987), will we deny qualified
immunity.
The district court denied Officers Milefsky and Murphy
qualified immunity, concluding that the search warrant was
overbroad and lacked probable cause and that it would have been
unreasonable for Murphy and Milefsky to believe that the search
10
warrant was not overbroad or was supported by probable cause. We
will address each of the district court’s conclusions in turn.
A. Overbreadth
The “[F]ourth [A]mendment prohibits general warrants and
general searches.” United States v. Fawole, 785 F.2d 1141, 1144
(4th Cir. 1986). To prevent a general rummaging through a
person’s personal belongings, a search warrant should remove “from
the officer executing the warrant all discretion as to what is to
be seized.” United States v. Torch, 609 F.2d 1088, 1089 (4th Cir.
1979). Nevertheless, the specificity required for a warrant
“varies with the circumstances within a practical margin of
flexibility.” United States v. Shilling, 826 F.2d 1365, 1369 (4th
Cir. 1987), abrogated on other grounds by Staples v. United States,
511 U.S. 600 (1994). For example, in a search warrant for business
records, it is acceptable for the warrant to use generic terms
(“such as books, records, bank statements, etc.”) without detailed
descriptions because the Government is unlikely to know in detail
how the records are maintained. Id.Culbertson and the Arkansas Chronicle argue that a heightened
standard of particularity is required in this case because the
items seized were protected by the First Amendment and “the
particularity requirement is even more stringent where the things
to be seized have the presumptive protection of the First
11
Amendment.” Torch, 609 F.2d at 1089. To be sure, “the
constitutional requirement that warrants must particularly describe
the ‘things to be seized’ is to be accorded the most scrupulous
exactitude when the ‘things’ are books, and the basis for their
seizure is the ideas which they contain.” Stanford v. Texas, 379
U.S. 476, 485 (1965); see also New York v. P.J. Video, Inc., 475
U.S. 868, 873 (1986)(noting that “the seizure of films or books on
the basis of their content implicates First Amendment concerns not
raised by other kinds of seizures” (emphasis added)). Although
Culbertson was employed part-time by a news media organization and
some of the items seized by the officers belonged to the Arkansas
Chronicle, we agree with the district court that the heightened
specificity standard for items protected by the First Amendment
does not apply in this case.
Here, the basis of the seizure was an attempt to shed
evidentiary light on one of the most heinous crimes in this
country’s history, not to suppress the ideas contained in the
documents. See Stanford, 379 U.S. at 485 n.16 (noting that had the
Communist books at issue been ledgers of illegal activity or stolen
goods, such books “might stand on a quite different constitutional
footing from the [Communist] books” sought in the case). The
search warrant here was incidental to any alleged First Amendment
activity and was not used as “an instrument for stifling liberty of
expression,” which is the evil that the heightened particularity
12
standard is designed to combat. Zurcher v. Stanford Daily, 436
U.S. 547, 564 (1978). Thus, because “[t]he items named in this
warrant were evidentiary materials, and their seizure did not
threaten to deprive the public of access to protected material,” we
decline to apply any heightened specificity.2 Torch, 609 F.2d at
1090 (internal quotation marks omitted).
Having rejected the application of the heightened specificity
standard, we now turn to the merits of the overbreadth argument,
applying a standard that recognizes that the necessary
particularity for a search warrant varies “according to the
circumstances and type of items involved.” Id. Also, built into
this standard is “a practical margin of flexibility.” Id. The
district court’s conclusion that the search warrant was limitless
because it authorized Officers Milefsky and Murphy to seize “every
piece of computer equipment and every type of document that might
be stored on such equipment,” (J.A. at 385), failed to equate the
2
We note, however, that even if the heightened standard
applied, we would reach the same result. The Supreme Court has
held that the “particular exactitude” requirement is satisfied when
it leaves “as little as possible to the discretion or whim of the
officer in the field.” Zurcher v. Stanford Daily, 436 U.S. 547,
564 (1978). For the reasons set forth in this section, infra, the
search warrant left little to no discretion to the executing
officers. For example, Officers Milefsky and Murphy did not have
to determine anything as difficult as whether the electronic
material they seized was “obscene” or related to Communist
thoughts, as other search warrants held to be invalid have
required. See id. Officers Milefsky and Murphy only had to
determine whether an item could store electronic, magnetic, or
optical data. Thus, the search warrant described with “particular
exactitude” the things to be seized.
13
circumstances of the targeted items with the language of the search
warrant. Because the video and photographs were already in
electronic form, they could be transferred to numerous other
electronic devices and put into countless types of formats. See
United States v. Reyes, 798 F.2d 380, 383 (10th Cir. 1986) (holding
that “in the age of modern technology and commercial availability
of various forms of items, a [search] warrant could not be expected
to describe with exactitude the precise form the records would
take”). We cannot and should not tie the hands of law enforcement
by expecting an investigative officer to know the exact format
electronically stored evidence will take. Notably, the district
court did not suggest a method for narrowing or describing with
increased specificity the items to be seized, and we also cannot
discern a more precise way to describe items stored in electronic
format. Culbertson and the Arkansas Chronicle, however, suggest
that the search warrant could have limited the electronic items to
be seized by specifying that only “image” files such as .jpg, .tip,
.bmp, or .gif files could be searched. (Appellee’s Br. at 24.)
Although we recognize that image files are usually stored and
labeled as such, this proposal ignores the fact that a warrant that
authorized the seizure of any device “capable of storing” .jpg,
.tip, .bmp, or .gif files would still authorize officers to seize
“computer equipment, hard disk drives, compact disks, floppy disks,
magnetic tapes or other magnetic or optical media” to allow the
14
officers to search for the .gif, .tip, .bmp, or .jpg files.
Furthermore, it is possible to embed an electronic image into a
word processing file or convert the image into .pdf format and
still have the document labeled as a .wpd, .doc, or .pdf file, as
opposed to .jpg, .gif, .tif, or .bmp. Therefore, because the
search warrant and supporting affidavit described with sufficient
particularity the items to be seized “within a practical margin of
flexibility,” we must reject Culbertson’s argument that the search
warrant was a general warrant. Shilling, 826 F.2d at 1369.
Next, we turn to the district court’s conclusion that the
search warrant was overbroad because the warrant sought images that
were last seen electronically, while the warrant allowed for the
seizure of “letters, correspondence, memoranda, [and] journals.”
(J.A. at 385.) The district court concluded that “a search warrant
that allowed the police to seize letters, correspondence,
memoranda, and journals in order to find a video and three still
photographs is patently overbroad.” (J.A. at 386.) Culbertson and
the Arkansas Chronicle argue that the search warrant only provided
for the seizure of electronic forms of letters, correspondence,
journals, and memoranda, and thus the seizure of hard copies of
such items was outside the scope of the search warrant. The search
warrant references information stored in “electronic, magnetic, or
optical format” and then further states that “this information may
include . . . letters, correspondence, memoranda [and] journals.”
15
(J.A. at 65 (emphasis added).) We agree that the most natural,
close reading of the search warrant is that only electronic,
magnetic, or optical forms of “letters, correspondence, memoranda
[and] journals” could be searched. Thus, the search warrant cannot
be overbroad for this reason.3
Finally, the district court concluded that the search warrant
was overly broad because it allowed for the seizure of Culbertson’s
son’s computer. The seizure of the son’s computer does not render
the search warrant overly broad because the images could have been
stored on any computer within Culbertson’s home to which he
presumably had access, including his son’s computer. Also, parents
frequently pass down to their children their old computers, and
because the officers were searching for old images, it would have
been reasonable to search the son’s computer. Moreover, to hold
search warrants that allow for the search of a parent’s belongings
as necessarily overbroad because they also allow for the search of
the belongings of a child residing with a parent would prove
unworkable for investigating officers. For example, if police were
searching for a stolen handgun or drugs, and the search warrant
allowed for the search of the parent’s home, it is unlikely that we
3
The conclusion that the search warrant did not explicitly
allow for the seizure of hard documents, such as the four notebooks
and one manilla folder, forces us to address whether the seizure of
these items outside of the search warrant violated the Fourth
Amendment rights of Culbertson and the Arkansas Chronicle. We will
return to this point in section C in the text infra.
16
would not allow the police to search a minor child’s room within
the parent’s home. See United States v. Diprima, 472 F.2d 550, 551
(1st Cir. 1973) (“[E]ven if a minor child, living in the bosom of
a family, may think of a room as ‘his,’ the overall dominance will
be in his parents.”). A rule barring the search of a minor child’s
property that lies within a parent’s home simply would encourage a
parent to hide contraband with his child.
The supporting affidavit, describing the alleged video and
still images and the search warrant’s focus on electronic, magnetic
or optical storage forms that could contain the images, “served to
limit the discretion of the officers who conducted the search.”
Torch, 609 F.2d at 1090. The area to be searched was confined to
Culbertson’s home and the items to be seized were those capable of
storing electronic, magnetic, or optical data. For these reasons,
we conclude that this search warrant “falls within the practical
margin of flexibility.” Id.B. Probable Cause
We now turn to the issue of probable cause. “Probable cause
deals with probabilities. These are not technical; they are the
factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians act.” Illinois
v. Gates, 462 U.S. 213, 241 (1983) (internal quotation marks
omitted). “The task of the issuing magistrate is simply to make a
17
practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him, including the
‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay
information, there is a fair probability that contraband or
evidence of a crime will be found in a particular place.” Id. at
238. “Reasonable minds frequently may differ on the question
whether a particular affidavit establishes probable cause, and we
have thus concluded that the preference for warrants is most
appropriately effectuated by according great deference to a
magistrate’s determination.” United States v. Leon, 468 U.S. 897,
914 (1984) (internal quotation marks omitted). However, “reviewing
courts will not defer to a warrant based on an affidavit that does
not provide the magistrate with a substantial basis for determining
the existence of probable cause.” Id. at 915.
The affidavit given to the magistrate provided the following
pertinent statements: (1) Detective Easley, the affiant, had been
an Oklahoma police officer for twelve years and had been
investigating the Oklahoma City bombing for five years; (2) in
1998, Culbertson showed Mills a video and photographs of the Murrah
Building before and after the bombing on a laptop computer; (3)
Mills said he viewed images on Culbertson’s laptop; (4) Mills said
that he could not recall whether the images shown by Culbertson
contained a picture of a Ryder truck as Nichols’s defense attorney
alleged; (5) Mills said an ATF agent gave Culbertson the video; (6)
18
Culbertson told Mills that Nichols’s attorneys’ knowledge about the
video and photographs was “going to be a tight rope for [him] to
walk”; (7) Culbertson admitted to Detective Easley that he had
shown Mills a video and photographs; (8) Culbertson stated that the
video and photographs were provided to the House Judiciary
Committee several years ago; (9) Culbertson refused to say whether
he still had copies of the video and photographs; and (10)
Detective Easley’s professional opinion that an individual in
possession of “items of such magnitude and uniqueness [would be]
unlikely to dispose of or destroy the information.” (J.A. at 67-
69.) The affidavit omitted the following facts known to Detective
Easley: (1) Culbertson said he had shown Mills the video on a
government computer; (2) Culbertson was employed by former
Congressman James Traficant at the time he showed the video to
Mills; and (3) Culbertson testified before the House subcommittee
in 2000 and submitted a tape along with his testimony.
Although Culbertson’s submission of images to the House
subcommittee and the fact that Mills viewed the images on a
government computer could support an inference that Culbertson no
longer had the video and photographs, the remaining facts are
sufficient to demonstrate a fair probability that Culbertson still
possessed the video and photographs or copies thereof. Namely,
Culbertson’s admission to Detective Easley that he had shown Mills
a video of the bombing and Culbertson’s statement that he would
19
have to walk a “tight rope” because of the video and photographs
are strong evidence that Culbertson still possessed the video or a
copy thereof. As his congressional testimony indicates, Culbertson
still had the video two years after showing it to Mills and at that
point he was no longer working for the government, further
suggesting that Culbertson valued the video and would have
maintained copies of it. Also, Culbertson’s evasive statement that
journalistic and other irrelevant privileges prevented him from
divulging to Detective Easley whether or not he held a copy of the
video provides additional support for probable cause.4 And
finally, we find particularly astute Detective Easley’s statement
that an individual with possession of such a highly sought after
video is likely to maintain possession of it; Culbertson was a
journalist, and such information is the bread and butter of his
work. A cumulative reading of the affidavit suggests that
Culbertson did have a copy of the video and images, even if he had
already turned over a copy of some video to the House
subcommittee.5 It is then a short, logical step to surmise that
4
As pointed out by our good dissenting colleague, the mere
refusal to cooperate cannot alone support a finding of probable
cause, however, the refusal to cooperate may be considered along
with other supporting facts in evaluating a search warrant for
probable cause. See Florida v. Bostick, 501 U.S. 429, 437 (1991)
(noting that a “refusal to cooperate, without more, does not
furnish the minimal level of objective justification for a
detention or seizure” (emphasis added)).
5
It is unclear from the record whether the video allegedly
submitted to the House subcommittee is, in fact, the video
20
Culbertson would have a copy of the video and images at his house
or at his home office. This is a logical inference due, in part,
to the nature of electronic, magnetic, and optical items because,
as discussed in subsection A, such materials can be copied and
stored, the video and images could easily be stored in multiple
locations, including Culbertson’s home. See United States v.
Anderson, 851 F.2d 727, 729 (4th Cir. 1988) (adopting the view that
“the nexus between the place to be searched and the items to be
seized may be established by the nature of the item and the normal
inferences of where one would likely keep such evidence”). We
recognize that some of the individual facts alleged in the
affidavit may be read to support other inferential ends, see infra
dissent at pages 33-35, but we believe that the affidavit provides
a substantial basis for the magistrate’s determination that
Culbertson retained possession of the video and images and that
they would likely be found at his home. See Gates, 462 U.S. at 240(noting that a magistrate can “draw such reasonable inferences as
he will from the material supplied to him by applicants for a
warrant”).
Having concluded that the facts alleged in the affidavit
support a finding of probable cause, we address Culbertson’s and
Detective Easley was seeking. This is particularly important
because Culbertson told Detective Easley that anything public he
turned over to the House subcommittee. Detective Easley was not
looking for “public” information, but for a secret, never publicly
disclosed video of the bombing.
21
the Arkansas Chronicle’s contentions that those facts were stale.
“A valid search warrant may issue only upon allegations of facts so
closely related to the time of the issue of the warrant as to
justify a finding of probable cause at that time. Whether the
proof meets this test must be determined by the circumstances of
each case.” United States v. McCall, 740 F.2d 1331, 1335-36 (4th
Cir. 1984) (internal quotation marks omitted). At the outset, we
note that “[t]he validity of probable cause cannot be quantified by
simply counting the number of days between the occurrence of the
facts supplied and the issuance of the affidavit,” United States v.
Farmer, 370 F.3d 435, 439 (4th Cir. 2004) (internal quotation marks
omitted), and “[m]any courts have found probable cause to exist
despite substantial gaps between the observation of the evidence at
a particular premises and the issuance of a search warrant,”
McCall, 740 F.2d at 1336.
Stale search warrants arise in two situations: (1) the
government waits an extended period of time between the information
provided and the execution of the warrant and (2) “the information
on which [the search warrant] rested was arguably too old to
furnish ‘present’ probable cause.” Id. The district court found
that this case fell into the latter category because Mills viewed
the tape in the presence of Culbertson almost six years prior to
the issuance of the search warrant.
22
Mills’s viewing of the video and three still images six years
prior is but one piece of the puzzle. And the probable cause
analysis requires that we examine the totality of the
circumstances. See Farmer, 370 F.3d at 439 (“[W]e must look to all
the facts and circumstances of the case, including the nature of
the unlawful activity alleged, the length of the activity, and the
nature of the property to be seized.” (internal quotation marks
omitted)). Viewing all of the evidence set forth in the affidavit
demonstrates that the search warrant was not stale. Except for
Mills’s undisputed viewing of the video in 1998, all other evidence
contained in the affidavit was obtained in close proximity to the
issuance of the search warrant. For example, on January 28, 2004,
a mere two days before the search, Mills told Detective Easley that
Culbertson told him that he was having to walk a “tight rope” with
Nichols’s defense attorneys. Also, Culbertson’s own statements to
Detective Easley, confirming that he had shown Mills a video and
photographs, occurred within twenty-four hours of the issuance and
execution of the search warrant. And Detective Easley’s
observation that no one would discard such evidence was timely and
credible. See McCall, 740 F.2d at 1336 (“In some circumstances,
the very nature of the evidence sought may suggest that probable
cause is not diminished solely by the passage of time.”).
Culbertson and the Arkansas Chronicle further argue that,
because no “continuing crime” was involved, the lack of temporal
23
proximity between Mills’s viewing of the video in 1998 and the
issuance of the search warrant renders the search warrant stale.
As previously discussed, the viewing of the video by Mills was but
one supporting piece of the puzzle and, contrary to Culbertson and
the Arkansas Chronicle’s suggestion, the presence of a “continuing
crime” is not a requirement for justifying a search warrant when a
period of years lapses between one of the factual predicates and
the issuance of the search warrant. See Id. at 1337 (finding
search warrant not stale even though “the criminal activity alleged
in the warrant is not ongoing in nature, nor the evidence sought
intrinsically likely to remain at the location where it was
originally observed”). In addition, the alleged video related to
a report that Culbertson authored and to his testimony before the
House subcommittee in July 2000-two years after Culbertson showed
Mills the video. Thus, as part of Culbertson’s lengthy research
into the Oklahoma City bombing, it is likely that Culbertson would
have kept copies of all relevant material supporting such a
substantial report. To accept Culbertson’s argument, we would have
to assume that Culbertson, after intensely researching the Oklahoma
City bombing and compiling extensive documentation, including video
footage of the bombing, would have relinquished all copies of all
documentation to another person or simply destroyed all such
information. In light of Culbertson’s statements to Detective
Easley and his position as a journalist, we find this is highly
24
unlikely. Finally, a secret video of a historic event is likely to
be very valuable. See, e.g., Film of JFK killing valued at $16
m i l l i o n , C N N . c o m , A u g . 3 , 1 9 9 9
http://www.cnn.com/US/9908/03/zapruder.02/ (noting that Abraham
Zapruder’s film of the Kennedy assassination was valued at $16
million). Having examined all the relevant evidence set forth in
the affidavit, along with the nature of the evidence sought, we
conclude that the search warrant was not based on stale
information.
C. Reasonable Officer’s View of the Search Warrant
We now return to the issue of whether the seizure of items
outside of the search warrant violated Culbertson’s and the
Arkansas Chronicle’s constitutional rights. At the outset we
readily acknowledge that “[i]f the scope of the search exceeds that
permitted by the terms of a validly issued warrant or the character
of the relevant exception from the warrant requirement, the
subsequent seizure is unconstitutional without more.” Horton v.
California, 496 U.S. 128, 140 (1990). However, even when a
constitutional violation is found, qualified immunity may still
attach if a reasonable officer would not have realized that he was
exceeding the scope of the search warrant. Saucier v. Katz, 533
U.S. 194, 202 (2001). This inquiry “must be undertaken in light of
the specific context of the case, not as a broad general
25
proposition.” Id. at 201. To put it more concisely “the
unlawfulness must be apparent.” Anderson, 483 U.S. at 640-41.
We begin our analysis by noting that the search warrant
clearly authorized the seizure of items in “electronic, magnetic,
or optical format.” Our conclusion that the search warrant did not
authorize the seizure of paper forms of “letters, correspondence,
memoranda, [and] journals” came only after carefully examining the
sentence structure of the search warrant. We believe it would not
have been unreasonable for a police officer to interpret the words
“letters, correspondence, memoranda, [and] journals” as allowing
for the seizure of paper copies of these items-one typically thinks
of these items in their physical format, as opposed to their
electronic, magnetic, or optical format. See Mazuz v. Maryland,
442 F.3d 217, 225 (4th Cir. 2006) (“In order to satisfy the
reasonableness requirement of the Fourth Amendment, what is
generally demanded of the many factual determinations that must
regularly be made by agents of the government is not that they
always be correct, but that they always be reasonable.” (internal
quotation marks and alterations omitted)). For example, the word
“letter” is often used to describe the physical paper used for
communication, whereas, the word “email” is most often associated
with electronic communication that remains in electronic form. We
further recognize that Officers Milefsky and Murphy knew by way of
the attached affidavit that they were searching for a video and
26
still photographs and common sense stands to reason that
electronically stored images, such as the still photographs, could
be printed out and stored in physical form amongst “letters,
correspondence, memoranda, [and] journals.” It is also worth
noting that the four notebook binders and one manilla envelope
contained information related to Culbertson’s research on the
Oklahoma City bombing. This information coupled with the common
perception that “letters, correspondence, memoranda, and journals”
typically reference hard copies may not have placed a reasonable
officer on notice that the seizure of the notebooks and manilla
folder was outside the scope of the search warrant and possibly
violated constitutional rights. Moreover, the fact that the four
notebooks and one folder were the only items seized outside of the
scope of the search warrant also suggests that the mistake was a
reasonable one. We, therefore, cannot say that the unlawfulness of
the seizure of the notebooks and folder was apparent. Officers
Milefsky and Murphy are entitled to qualified immunity.
III.
In summary, we conclude that the search warrant properly
described with sufficient particularity the items to be seized,
that probable cause existed to support the issuance of the search
warrant, and that qualified immunity shields Officers Milefsky and
Murphy from any constitutional violations resulting from the
27
seizure of the notebooks and manilla folder. Accordingly, the
district court’s order is
REVERSED.
28
WIDENER, Circuit Judge, concurring:
I concur in the result and in large part with the opinion of
the court. However, the search warrant is perfectly plain to me.
It states in terms that the officers might:
search for . . . magnetic or optical materials . . .
capable of storing information in electrical or optical
format.
The record in this case shows the officers neither searched
for, nor took, nor stored anything else. So I think that it is
patent from the record and the face of the warrant that no
unlawfulness was apparent.
29
OSTEEN, Senior District Judge, dissenting:
I agree with the majority opinion that the warrant was not
overbroad. I disagree with the conclusion that there was probable
cause to support the issuance of a search warrant. Because the
link between Culbertson’s possession of the images in the late
1990’s and the possibility of the presence of the images in
Culbertson’s home in 2004 is too speculative, I respectfully
dissent from the majority’s conclusion that Officers Murphy and
Milefsky are entitled to qualified immunity.
The first step in determining whether a defendant is entitled
to qualified immunity is a determination of whether a right has
been violated. Washington v. Wilmore, 407 F.3d 274, 281 (4th Cir.
2005). Although the majority found no such violation, I disagree
because the search warrant was not supported by probable cause. To
determine whether a search warrant is supported by probable cause,
the magistrate issuing the warrant must “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). “When
reviewing the probable cause supporting a warrant, a reviewing
court must consider only the information presented to the
magistrate who issued the warrant.” United States v. Wilhelm, 80
F.3d 116, 118 (4th Cir. 1996).
30
I begin with the observation that the affidavit contained no
direct evidence that Culbertson had the sought-after images in his
home in 2004 or at any other time, and the record indicates that
there is no such evidence. No one involved in the matter ever saw
the images at the home or learned that they were there. Instead,
to conclude that there was probable cause that Culbertson had the
images in his home in 2004, the majority relies on three items of
information: (1) the fact that Culbertson retained the images
between 1998, when he showed them to Mills, and the time he
testified before a House of Representatives subcommittee in 2000;
(2) statements made by Culbertson that the request for the images
put him in a bad position and that he could not disclose whether he
remained in possession of them; and (3) Detective Easley’s
statement that an individual in possession of such unique items was
unlikely to give up possession. These items, either alone or in
combination, are far too speculative to support a finding of
probable cause that Culbertson had possession of the images in
2004, and they provide nothing to link the images to Culbertson’s
home.
The fact that Culbertson had retained the images between 1998
and his testimony before the congressional committee does not
support such an inference. The affidavit contains very little
detail on the matter. Although the record now shows that
Culbertson testified in 2000, the affidavit indicates only that
31
Easley saw the images on August 26, 1998, and that Culbertson had
turned a copy over to the House Judiciary Committee several years
before the affidavit was produced. These two facts give rise to
the inference that Culbertson retained the images for an
unspecified period of time under unspecified conditions, but they
do not support the inference that Culbertson continued to possess
the images anywhere, much less at his home, for another unspecified
period of time under other unspecified circumstances.
I turn next to Easley’s statement that, in his experience, “a
person in possession of items of this magnitude and uniqueness is
unlikely to dispose of or destroy the information.” This statement
is less a piece of information that supports a finding of probable
cause than a conclusion that, in Easley’s opinion, the other facts
support such a finding. Easley’s statement is unhelpful for two
reasons.
To the extent that the statement is relevant because of
Easley’s status as a law enforcement officer, it adds no
evidentiary weight for the required finding. There is no question
that in many situations a law enforcement officer’s experience is
highly relevant to a determination of probable cause. See, e.g.,
United States v. Collins, 412 F.3d 515, 518 (4th Cir. 2005)
(finding that officers had probable cause to make an arrest when,
in light of their experience, the defendant’s behavior suggested he
possessed illegal drugs). An officer’s experience with criminal
32
activity, such as drug dealing, will provide him with insight
unavailable to even experienced individuals outside the profession.
This case, however, provides a unique situation that involved no
criminal activity, and it is not obvious how an officer’s
experience might be more valuable than that of someone in a
different profession. It is unlikely that Easley, in his law
enforcement experience, had ever encountered a situation similar to
this one. If he had, he should have provided more detail to allow
the magistrate to evaluate the strength of his statement. If he
had no special experience, his statement is one of opinion and
should not weigh in favor of a finding of probable cause. See
Gates, 462 U.S. at 239 (“[A magistrate’s] action cannot be a mere
ratification of the bare conclusions of others.”). A reasonable
magistrate cannot, without further information, assume that a law
enforcement officer has specialized experience with matters outside
the limits of ordinary law enforcement experience and training.
To the extent that the information is evaluated independently
of Easely’s experience, it is not an inference from facts but mere
speculation. “[A] guess, based not on specific and reliable facts
but on a broad generalization” is insufficient to support the
issuance of a search warrant. Doe v. Broderick, 225 F.3d 440, 452
(4th Cir. 2000). It may well be true that many people retain
unique things, but it is also true that many people do not make an
effort to retain, on their home computers, computer files from jobs
33
they held years before. There is no evidence in the affidavit
suggesting that Culbertson did, in fact, perceive the images as
something he personally wanted to retain indefinitely. There is no
evidence that he attached particular value to them.1 There is no
evidence in the affidavit that Culbertson was still involved in
investigating the Oklahoma City bombing or that these images were
of particular use in that investigation. In short, even assuming
that Easley may have made a true statement about the way some
people behave, it is only speculation that Culbertson behaved that
way in this instance, and such speculation is insufficient to
support a finding of probable cause.
Finally, the statements made by Culbertson provide no probable
cause that Culbertson possessed the images at his home in 2004.
The majority refers to two statements Culbertson made to different
people.2 The first is Culbertson’s statement to Easley that “it
was going to be a ‘tight rope for [Culbertson] to walk.’” The
second is Culbertson’s refusal to confirm or deny his possession of
1
While I agree with the majority that historical film may be
valuable, there is no evidence that the three digital still images
here have any particular value. The value of the Zapruder film is
probably not a good indicator of the value of these images.
Further, even assuming substantial value in the images, such value
does not permit an inference that the valuable property would have
been kept at Culbertson’s home. On the contrary, value may import
the opposite inference: that they would have been kept in a safer
place.
2
A third statement found in the affidavit, made by Culbertson
to defense attorney Mark Earnest, is subject to the same analysis
as these two statements.
34
the images during his telephone conversation with Easley. These
statements are of very low probativity regarding Culbertson’s
possession of the images.
For both statements, there are many ways that they could be
interpreted. The majority’s interpretation is that Culbertson had
the images and did not want to give them to Nichols’s attorneys.
Even under that interpretation, the statements contain nothing to
link the images to Culbertson’s home. A more plausible
interpretation of the statements is that Culbertson did not want to
be placed in the position of having to reveal information about the
source of the photographs, regardless of whether they were in his
possession at that time. Another plausible interpretation is that
Culbertson did not want to have any further connection with the
Nichols trial but was afraid that he would be forced in by
circumstances beyond his control. Both of these alternatives are
supported by the facts available to Easley, though, for some
reason, not provided to the magistrate. They are offered here only
as examples of ways those statements could be understood, and there
are many other possibilities. It would not have been possible
for Easley to produce information suggesting that all of the
possible innocent interpretations of Culbertson’s ambiguous
statements were false. Nonetheless, because the statements were so
readily subject to various interpretations, Easley should have
offered an explanation of why his preferred interpretation was in
35
some way better than the alternatives. To be fair to Easley, he
did not, in the affidavit, explicitly state that he personally
believed those statements indicated that Culbertson still had
possession of the images. In fact, he offered very little context
for the statements.3 Without such context, no reasonable,
disinterested magistrate could conclude that the statements were
likely to mean that Culbertson had the images. They do not create
a “fair probability” that the images would be found in Culbertson’s
home.
Even if the magistrate read the statements to indicate that
Culbertson likely possessed the images, such a reading would not
support a finding of probable cause. The Supreme Court has stated
that “a refusal to cooperate, without more, does not furnish the
minimal level of objective justification needed for a detention or
seizure.” Florida v. Bostick, 501 U.S. 429, 437 (1991); see also
United States v. Alexander, 835 F.2d 1406, 1409 n.3 (11th Cir.
1988) (“[A] defendant’s refusal to consent to a search cannot
establish probable cause to search.”). Culbertson’s statement
3
Among the information not included in the affidavit was a
portion of the conversation between Easley and Culbertson in which
Culbertson affirmatively stated that the images were not on his
computer. He also indicated that the images probably did not exist
anymore, but, if they did, they would be in an archive belonging to
a former member of Congress. Although there is no evidence that
these statements were intentionally and wrongfully omitted, it is
difficult to understand why they would not have been included,
since they would have been valuable information for the magistrate
to consider.
36
about a tightrope is no more than an expression that he did not
want to cooperate with the investigation, and his statement to
Easley was clearly such an assertion. Furthermore, these
statements are the only pieces of information in the affidavit
dating from 2004. Thus, the information in the affidavit can be
summarized as asserting that Culbertson had the images in the late
1990’s and refused to cooperate in 2004. Just as Culbertson’s
refusal to cooperate could not serve as a basis for a finding of
probable cause that he was subject to seizure, it should not serve
as a basis for a finding of probable cause to search his home in
2004.
The purpose of the analysis is not to dissect the information
in the affidavit by showing that each of the statements has a
potentially innocent interpretation. “[I]nnocent behavior
frequently will provide the basis for a showing of probable cause
. . . .” Gates, 462 U.S. at 245 n.13. Nonetheless, when viewed in
light of the totality of the circumstances, the information suffers
from the same deficiency suffered by each individual part. There
is no specific or reliable fact that could empower an impartial
observer to do more than conjecture on the meaning of the rest of
the available information. After examining the evidence provided
by Easley to the magistrate in his affidavit, I conclude that it
was certainly possible that Culbertson had the images in his home
in 2004. Nonetheless, that conclusion relies entirely on a
37
particular interpretation of ambiguous statements and speculation
about human nature. Although the standard of probable cause is not
a high one, it calls for more than was provided to the magistrate.
Having concluded that the warrant was invalid, I would further
conclude that Officers Murphy and Milefsky were in possession of
sufficient information to know that the warrant lacked probable
cause. The second step in determining whether a defendant is
entitled to qualified immunity is whether the right violated was
clearly established at the time of the violation. Wilmore, 407
F.3d at 281. As applied to warrants, qualified immunity should be
denied when “the warrant application is so lacking in indicia of
probable cause as to render official belief in its existence
unreasonable.”4 Malley v. Briggs, 475 U.S. 335, 344-45 (1986).
Clearly, the affidavit lacked any direct evidence that the images
were in Culbertson’s home. Any conclusion to that effect drawn
from the information in the affidavit was only speculation. Thus,
it is a necessary conclusion that the affidavit is completely
lacking in indicia of probable cause for Culbertson’s home to be
searched. Murphy and Milefsky, who were familiar with the details
of the investigation and fully informed about the contents of the
warrant application, should have been objectively aware that the
4
This is not to exclude the possibility that some officers
participating in such a search under an invalid warrant may be
entitled to qualified immunity by reason of their limited
participation in the execution of the warrant.
38
level of speculation involved in the warrant could not support a
finding of probable cause, even if a magistrate issued the warrant.
They did have a subjective belief that it was likely Culbertson was
in possession of the images, but the lack of a factual basis for
such a belief, especially with respect to the location of the
images, renders it unreasonable. As a result, qualified immunity
should be denied. I would therefore affirm the trial court’s
opinion.
39