United States v. Jeffrey Morrow ( 2019 )

Case: 19-50112 Document: 00515141303 Page: 1 Date Filed: 10/02/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 19-50112 Fifth Circuit
FILED
October 2, 2019
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
JEFFREY CRAIG MORROW, also known as Jeffrey Morrow, also known as
Jeffrey C. Morrow,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:17-CR-626-1
Before CLEMENT, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:*
Jeffery Morrow was convicted of seven counts of receipt, possession, and
distribution of child pornography based on evidence seized during a search of
his home. He claims that this evidence was seized in violation of his Fourth
Amendment rights. Because the good-faith exception to the Fourth
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 19-50112 Document: 00515141303 Page: 2 Date Filed: 10/02/2019
No. 19-50112
Amendment’s exclusionary rule applies, we AFFIRM the district court’s denial
of his suppression motion.
I
Between August 2015 and February 2016, federal investigators used
peer-to-peer file-sharing software to download child-pornography images and
videos from a network Internet Protocol (IP) address. Investigators contacted
the internet service provider and learned that Jeffery Morrow was associated
with the subscriber account for that IP address during those dates and that
the account was registered to his residence in San Antonio, Texas.
Based on this information—contained in Special Agent A. Juarez’s
affidavit—a magistrate judge issued a search warrant in August 2016 to search
the San Antonio residence. During the search, law-enforcement officers seized
computers and electronic storage devices containing child pornography.
Morrow was charged with seven counts of receipt, possession, and distribution
of child pornography.
Morrow moved to suppress this evidence. He argued that the download
information could not support probable cause for the search because the
information was outdated, and that Special Agent Juarez’s affidavit misled the
magistrate judge by erroneously referring to “a computer” instead of a network
when discussing the IP address and by not explaining that electronic devices
are mobile and interchangeable. The magistrate judge disagreed. In a report
and recommendation, the magistrate judge found that the good-faith exception
applied and that, “[g]iven the totality of [the] circumstances, including all the
investigative evidence connecting the target IP address with child pornography
and Morrow,” a “sufficient basis” existed “to find probable cause for the search,
notwithstanding any error or omission in the affidavit involving how
investigators came upon Morrow’s IP address.” The district court adopted the
2
Case: 19-50112 Document: 00515141303 Page: 3 Date Filed: 10/02/2019
No. 19-50112
report and recommendation. The court found that the information in the
warrant affidavit was not stale, and that neither the statements about a
“computer” nor the allegedly omitted details misled the magistrate judge. The
district court therefore found that the magistrate judge rightly concluded that
the good-faith exception applied. Accordingly, the district court denied
Morrow’s motion to suppress. Morrow appeals.
II
We review the district court’s factual findings for clear error and
questions of law de novo. United States v. Payne, 341 F.3d 393, 399 (5th Cir.
2003). When reviewing the denial of a suppression motion, we view the record
evidence in the light most favorable to the prevailing party below, United
States v. Massi, 761 F.3d 512, 520 (5th Cir. 2014), and will affirm that court’s
decision if “any reasonable view of the evidence” supports it. United States v.
Michelletti, 13 F.3d 838, 841 (5th Cir. 1994) (en banc) (quoting United States
v. Register, 931 F.2d 308, 312 (5th Cir. 1991)).
III
To determine whether the Fourth Amendment’s exclusionary rule
applies, we ask whether the good-faith exception applies, and if not, whether
the warrant was supported by probable cause. United States v. Mays, 466 F.3d
335, 342–43 (5th Cir. 2006) (citing United States v. Laury, 985 F.2d 1293, 1311
(5th Cir. 1993)). If it applies, that usually ends the inquiry—we need not
address whether probable cause existed unless the case presents a “novel
question of law,” the resolution of which will guide future law-enforcement
officers and magistrate judges. Laury, 985 F.2d at 1311 (quoting Illinois v.
Gates, 462 U.S. 213, 264 (1983) (White, J., concurring)).
Under the good-faith exception, “where probable cause for a search
warrant is founded on incorrect information, but the officer’s reliance upon the
3
Case: 19-50112 Document: 00515141303 Page: 4 Date Filed: 10/02/2019
No. 19-50112
information’s truth was objectively reasonable, the evidence obtained from the
search will not be excluded.” United States v. Cavazos, 288 F.3d 706, 709 (5th
Cir. 2002). This is so unless one of four conditions is met: (1) the magistrate
judge “was misled by information in an affidavit that the affiant knew was
false or would have known was false except for his reckless disregard of the
truth”; (2) the magistrate judge “wholly abandoned his judicial role” such that
“no reasonably well[-]trained officer should [have] rel[ied] on the warrant”; (3)
the affidavit underlying the warrant was “bare bones”—i.e., it was “so lacking
in indicia of probable cause as to render official belief in its existence entirely
unreasonable”—or (4) the warrant was so facially deficient that the executing
officers could not have reasonably presumed it was valid. United States v.
Gibbs, 421 F.3d 352, 358 (5th Cir. 2005) (quoting United States v. Leon, 468
U.S. 897, 923 (1984)).
Morrow argues that the first and third conditions apply here. He argues
that (1) the information supporting the warrant had become stale; (2) Special
Agent Juarez’s statements in the warrant affidavit about “a computer” misled
the magistrate judge; (3) Special Agent Juarez misled the magistrate judge by
omitting information about the “fungibility, mobility, and interchangeability
of devices” used to download files from the internet; and (4) absent these
intentional or reckless errors, the affidavit was “bare bones” such that the
magistrate judge would not have had probable cause to issue the search
warrant. These arguments are unavailing.
A
The six-month gap between when investigators downloaded the illicit
files from Morrow’s IP address and when the warrant issued does not make
that information stale. We have allowed much longer delays in similar cases.
See, e.g., United States v. Allen, 625 F.3d 830 (5th Cir. 2010) (holding that
4
Case: 19-50112 Document: 00515141303 Page: 5 Date Filed: 10/02/2019
No. 19-50112
eighteen-month-old information was not stale in child-pornography case). This
is because child-pornography crimes are “generally carried out in the secrecy
of the home and over a long period [of time]; therefore[,] the same time
limitations that apply to more fleeting crimes [like selling illegal drugs] do not
apply.” Id. at 843 (citing United States v. Frechette, 583 F.3d 374, 378 (6th Cir.
2009)). The information is, therefore, not stale.
Morrow identifies nothing to make us doubt this. He complains that the
affidavit incorrectly classified him as someone who collects child pornography
and is sexually attracted to children even though he does not own a
subscription to a child-pornography service and is not a “hoarder” of such
material. This classification, he claims, misled the magistrate judge because,
presumably, the magistrate judge would have otherwise thought the
information was stale. We disagree. He is quibbling with what volume or
frequency someone must amass child pornography before they are deemed to
“collect” it. But our staleness rules for child-pornography cases do not except
dabblers. Thus, this argument fails.
B
Even if Special Agent Juarez’s affidavit incorrectly describes “a
computer” or leaves out a detail about the nature and mobility of electronic
devices, Morrow fails to show that Special Agent Juarez included these
statements intentionally or with reckless disregard for the truth. But more
importantly, Morrow fails to show that they misled the magistrate judge. The
affidavit stated that files were downloaded from the network IP address for a
specific residence. Investigators confirmed that Morrow was associated with
the internet account for that IP address and that Morrow lived at that
residence. Based on that information, investigators obtained a warrant to
search Morrow’s residence for evidence of child pornography. They
5
Case: 19-50112 Document: 00515141303 Page: 6 Date Filed: 10/02/2019
No. 19-50112
unsurprisingly found such evidence. The alleged errors do not affect the
legitimacy of this process.
The magistrate judge did not need to be told that electronic devices are
often small and portable or that they might have been moved from the
residence. An affidavit that fails to point out the obvious is not misleading.
This information was unnecessary to the magistrate judge’s probable-cause
finding for the same reason that the information of these downloads is not
stale—child-pornography crimes often occur over a long period of time, and as
the affidavit points out, those who download such material often keep it for
many years. The affidavit did not need to state obvious facts for the magistrate
judge to find probable cause for the search.
Morrow’s claim that the affidavit misleadingly conflates a computer IP
address with a network IP address is a distinction without a difference.
Whether the affidavit stated that investigators knew that Morrow’s home
network shared illegal pornographic files or that they knew which device
shared such files, the import of this information is the same: child pornography
was downloaded from a device at Morrow’s residence. Morrow has not shown
that whether the downloads were associated with a network or a particular
device had any effect on the magistrate judge’s probable-cause finding. Indeed,
it would not. Thus, these arguments fail.
C
The warrant was not based on a bare-bones affidavit. Morrow argues
that, absent the alleged errors, the affidavit made only “conclusory statements”
and “did not provide any facts to show that [Morrow] had child pornography
on a device within his home.” That is not true. We have already rejected
Morrow’s arguments that any errors misled the magistrate judge, and as
already explained, the affidavit provided specific information about child
6
Case: 19-50112 Document: 00515141303 Page: 7 Date Filed: 10/02/2019
No. 19-50112
pornography downloaded from a specific residence. Nothing about that is
conclusory. Thus, this argument fails.
IV
Morrow has not shown that the information supporting the warrant was
stale, that the alleged errors in the affidavit misled the magistrate judge, or
that the warrant was based on a bare-bones affidavit. Because of this, the
district court correctly held that the good-faith exception to the Fourth
Amendment’s exclusionary rule applies and, based on that, correctly denied
Morrow’s motion to suppress. Accordingly, we AFFIRM.
7