United States v. Prideaux-Wentz, Gary ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3708
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
G ARY P RIDEAUX-W ENTZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 07 CR 63—Barbara B. Crabb, Chief Judge.
A RGUED A PRIL 7, 2008—D ECIDED S EPTEMBER 12, 2008
Before R IPPLE, W ILLIAMS, and SYKES, Circuit Judges.
W ILLIAMS, Circuit Judge. Gary Prideaux-Wentz was
convicted of possessing child pornography based on
evidence obtained during a search of his home. The
search warrant was supported by an FBI agent’s affidavit,
which described sixty-nine images of child pornogra-
phy/erotica uploaded by Prideaux-Wentz onto eight
Yahoo! e-groups, and the affidavit also contained expert
information regarding general characteristics of child
2 No. 07-3708
pornography collectors. On appeal, Prideaux-Wentz
argues that the search warrant failed to establish probable
cause because there is no information specific to him in
the affidavit but only boilerplate statements about child
pornography collectors. Additionally, he contends that
the information regarding the uploaded pictures was
stale and therefore inadequate to establish probable
cause for the search. We find that the evidence relied on
in the warrant affidavit was stale, but we affirm the
denial of the motion to suppress because the agent acted
in good faith in relying on the search warrant.
I. BACKGROUND
On January 31, 2006, FBI Special Agent Steven Paulson
obtained a federal search warrant for the New Glarius,
Wisconsin residence of the defendant, Gary Prideaux-
Wentz. In requesting the search warrant, Agent Paulson
submitted a 40-page, 66-paragraph affidavit, which
included complaints submitted to the Cyber Tip Line of the
National Center for Missing and Exploited Children
(“NCMEC”) by Yahoo!, an Internet service provider
(“ISP”), regarding pictures containing child pornography
and erotica that were uploaded to eight Yahoo! e-groups.
NCMEC is a national clearinghouse that gathers infor-
mation about missing and exploited children for law
enforcement use and receives information from various
ISPs through the Cyber Tip Line.
In his affidavit, Agent Paulson explained that his investi-
gation was based on complaints from NCMEC and his
own records check. He included general information
No. 07-3708 3
about child pornography, including the relevant statutes
and definitions; background information about his eleven-
year tenure with the FBI and his relevant training and
experience apprehending child pornographers; and expert
information regarding the habits of child pornographers.
Agent Paulson also indicated that, as a result of his training
and experience with the FBI, he knew that computers are
used by individuals who exploit children—including
collectors of child pornography—to correspond with
other like-minded individuals through email, chat rooms,
electronic bulletin boards, and Internet file transfers. He
noted that evidence of an online storage account is often
found on the home computer of a user subscribing to
an Internet service.
Agent Paulson also discussed the structure of Yahoo! e-
groups in his affidavit, explaining that some groups
specialize in child pornography. He then described each
Cyber Tip submitted to NCMEC regarding the Yahoo!
ID “jackinpu lpit2001” and the email address
“jackinpulpit2001@yahoo.com.” The Yahoo! ID is a unique
identifier of a user’s account, and an ID, along with a
password, is required in order to use Yahoo!’s services.
Between August 15, 2003, and January 28, 2004, NCMEC
received nineteen Cyber Tips that the user with the
“jackinpulpit2001” ID uploaded sixty-nine images to
different Yahoo! e-groups, pictures that Agent Paulson
identified as both child pornography and child erotica.
Agent Paulson included descriptions of each image in the
affidavit and information provided by NCMEC Analyst
Lisa Stenzel. Stenzel opined that ten of the nineteen Cyber
Tips contained child pornography, while the other nine
4 No. 07-3708
Cyber Tips constituted “erotica/nudism/BoyLove.” Stenzel
reported that one of the tips contained five images of
previously identified child victims.
The affidavit also contained information regarding the
account and subscriber information for “jackinpulpit2001,”
connecting the Yahoo! ID to Prideaux-Wentz. On Septem-
ber 4, 2003, a subpoena was served on Yahoo! and America
Online (“AOL”), another ISP, requesting account sub-
scriber information for “jackinpulpit2001.” In response
to this request, AOL provided the name “Gary Wentz” and
an address in Belleville, Wisconsin. Agent Paulson later
confirmed that “Gary Wentz” was the same individual as
Gary Prideaux-Wentz, who had resided at the Belleville,
Wisconsin address since 1991. Agent Paulson also deter-
mined that Prideaux-Wentz and Timothy J. Galbraith
moved to New Glarus, Wisconsin in November 2004, and
that both had email accounts and a computer at the
new residence.
In the affidavit, there was also a description of a NCMEC
Cyber Tip that Microsoft/MSN submitted on September 7,
2002, indicating that it had disabled an account because
the account contained child pornography. The screen
name of the user of the account was “Germo” and the
account associated with the email address was
“whuzyurdade@aol.com.” Agent Paulson was able to
trace this account to Prideaux-Wentz.
Agent Paulson also provided information in the affidavit
regarding “child pornography collector characteristics,”
which was based on his own experience along with expert
opinions from other FBI agents in the field. Agent Paulson
No. 07-3708 5
explained that “[c]hild pornography collectors almost
always maintain and possess their material in the privacy
and security of their homes or some other secure location
where it is readily available.” Furthermore, because the
collection reveals the otherwise private sexual desires of
the collector and represents his most cherished sexual
fantasies, “the collector rarely, if ever, disposes of the
collection.” Agent Paulson noted that while collectors
may refine their materials over time, the overall size of
their collections tends to increase.
Based on this information, the magistrate judge issued
a search warrant, which was executed at Prideaux-Wentz’s
residence in New Glarus on February 2, 2006. On April 19,
2007, Prideaux-Wentz was indicted for one count of
possession of child pornography. He filed a motion to
quash the search warrant and to suppress the evidence
seized pursuant to the warrant, requested a hearing
under Franks v. Delaware, 438 U.S. 154 (1978), and claimed
that the good faith exception did not save the warrant. The
magistrate judge recommended that the district court
deny Prideaux-Wentz’s motions, finding that there was
ample probable cause to support the warrant and that the
good faith doctrine applied if there was no probable cause.
Prideaux-Wentz filed timely objections to the magistrate
judge’s recommendation and raised one new argument
based on a non-precedential order, United States v. Doan,
245 Fed. Appx. 550 (7th Cir. 2007) (unpublished order). The
district court distinguished Doan, denied Prideaux-Wentz’s
motions in their entirety, and entered an order adopting
the magistrate judge’s Report and Recommendation.
6 No. 07-3708
On August 15, 2007, Prideaux-Wentz pled guilty to pos-
sessing child pornography in violation of 18 U.S.C.
§ 2252(a)(4), but he reserved the right to appeal the dis-
trict court’s denial of his motion to suppress. He was
sentenced to 72 months in prison and now appeals.
II. ANALYSIS
A. There was no probable cause for the search.
Prideaux-Wentz maintains that the search warrant did
not establish probable cause because Agent Paulson’s
affidavit relied on stale information, was unreliable,
contained only general characteristics of child
pornographers and nothing specific to Prideaux-Wentz,
and did not demonstrate a sufficient nexus between the
alleged criminal activity and his new residence. Prideaux-
Wentz also contends that because the warrant affidavit
lacked probable cause and was based on misleading
information, he was entitled to a hearing pursuant to
Franks v. Delaware, 438 U.S. 154 (1978).
Here, the magistrate, rather than the district court,
determined that probable cause existed to support the
search warrant. Recently, we clarified the appropriate
standard of review that applies in determining the suffi-
ciency of a search warrant issued in these circumstances.
In United States v. McIntire, 516 F.3d 576, 578 (7th Cir.
2008), we held that reviewing the sufficiency of a warrant
“should not take the form of de novo review,” and “on the
mixed question whether the facts add up to ‘probable
cause’ under the right legal standard, we give no weight
No. 07-3708 7
to the district judge’s decision—for the right inquiry is
whether the judge who issued the warrant (rarely the
same as the judge who ruled on the motion to suppress)
acted on the basis of probable cause. On that issue we
must afford ‘great deference’ to the issuing judge’s con-
clusion.” Id. Therefore, since the district court adopted the
magistrate’s findings, we pay “great deference” to the
magistrate’s determination of probable cause. See id.Applying this standard, we find that the warrant lacked
probable cause because the evidence that Agent Paulson
relied on in his warrant affidavit was stale. While “[t]here
is no bright-line test for determining when information
is stale,” United States v. Koelling, 992 F.2d 817, 822 (8th
Cir. 1993), the warrant does not indicate when the pictures
were uploaded to the Yahoo! e-groups, and there is no
way to discern this fact from the record. We have sug-
gested that the staleness argument takes on a different
meaning in the context of child pornography because of the
fact that collectors and distributors rarely, if ever, dispose
of their collections. See United States v. Hall, 142 F.3d 988,
995 (7th Cir. 1998) (citing “expert information” in an
affidavit that “pornographers tend to maintain their
collections of material for long periods, usually at home”).
Nevertheless, there must be some limitation on this
principle. While staleness arguments have been rejected
relative to evidence accumulated more than one year
before the execution of the search warrant, United States
v. Newsom, 402 F.3d 780, 783 (7th Cir. 2005), in Newsom
the government also had other, more recent evidence of
continuing criminal activity to bolster probable cause
8 No. 07-3708
and freshen the older information. 402 F.3d at 783 (where
police did not base the search warrant on the year-old
pornographic images alone but also relied on the recent
discovery by the defendant’s girlfriend of a pornographic
tape of her minor daughter); see also United States v. Harvey,
2 F.3d 1318, 1322-23 (3d Cir. 1993) (evidence defendant
possessed child pornography thirteen to fifteen months
previously not stale where supported by evidence of
additional mailings within two months of warrant’s
execution).
However, the record here suggests that the images could
have been uploaded as many as two years before the Cyber
Tips were received, which would mean that the informa-
tion was at least four years old by the time the government
applied for a warrant. Unlike Newsom, there is no new
evidence to “freshen” the stale evidence. Although we
decline to find that evidence that is two to four years old
is stale as a matter of law, cf. United States v. Irving, 452
F.3d 110, 125 (2d Cir. 2006) (child pornography two years
old not stale); United States v. Riccardi, 405 F.3d 852, 860-61
(10th Cir. 2005) (five years); see also United States v. Peden,
891 F.2d 514, 518-19 (5th Cir. 1989) (finding that a warrant
based on a two-year-old delivery from suspected child
pornographers and an eight-year-old conviction for
solicitation of a minor was not stale), the government’s
failure to find out the dates in which the pictures were
uploaded supports a finding of staleness in this case
because it could have easily obtained this information by
contacting Yahoo!. The government concedes that the
upload information was available for at least two of the
Yahoo! e-groups, information which it could have
accessed following Yahoo!’s Compliance Guide for Law
No. 07-3708 9
Enforcement. The four year gap, without more recent
evidence, undermines the finding that there was probable
cause that the images would be found during the search.
Therefore, we find that the evidence relied on to obtain
the warrant here was stale, and the warrant lacked proba-
ble cause.
B. The warrant is saved by the good faith exception.
Even in the absence of probable cause, a warrant can “be
saved by the good faith exception.” United States v. Olson,
408 F.3d 366, 372 (7th Cir. 2005). “Whether a law enforce-
ment officer reasonably relied upon a subsequently
invalidated search warrant is a legal question which we
review de novo.” United States v. Harju, 466 F.3d 602, 604
(7th Cir. 2006). “An officer’s decision to obtain a warrant is
prima facie evidence that he or she was acting in good
faith.” Olson, 408 F.3d at 372 (citing United States v. Koerth,
312 F.3d 862, 868 (7th Cir. 2002)). However, a defendant
may rebut this evidence, “if the issuing judge ‘wholly
abandoned his judicial role’ and failed to perform his
‘neutral and detached function,’ serving ‘merely as a
rubber stamp for the police’ or . . . the affidavit submitted
in support of the warrant was ‘so lacking in indicia of
probable cause as to render official belief in its existence
entirely unreasonable.’ ” Id. (quoting United States v. Leon,
468 U.S. 897, 914, 923 (1984)).
Prideaux-Wentz argues that a reasonable officer would
have known that the warrant affidavit was lacking in
probable cause because the affidavit establishes that
Agent Paulson was inexperienced in evaluating child
10 No. 07-3708
pornography, there was no foundation to rely on the
behavior profile assertions, the evidence was stale, and
the affidavit omitted material information that would
have led a reasonably well-trained officer to know that
more information was needed to establish probable cause.
Although we have found that the absence of any time
element renders the evidence stale, Prideaux-Wentz has
failed to rebut the presumption that Agent Paulson was
acting in good faith by relying on the warrant. Further-
more, he has not met the high standard required for a
Franks hearing.
1. The warrant affidavit establishes Agent Paulson’s
reliability and expertise in evaluating child pornog-
raphy.
Prideaux-Wentz maintains that the affidavit and warrant
did not establish Agent Paulson’s reliability and expertise
in describing and evaluating pornographic images. To
support this point, Prideaux-Wentz relies on the fact
that Stenzel, the NCMEC expert, disagreed with Agent
Paulson’s classification of some of the images as child
pornography. This argument need not detain us long.
Although Stenzel disagreed with Agent Paulson about
the classification of several of the images, this disagree-
ment was not based on Agent Paulson’s perceived inexpe-
rience, but rather because it is often difficult to distin-
guish between child pornography and child erotica. Since
Agent Paulson included a detailed description of each
image, the magistrate judge was able to make his own
determination about how to classify the images, ultimately
No. 07-3708 11
concluding that eleven of the images constituted child
pornography. See United States v. Lowe, 516 F.3d 580, 586
(7th Cir. 2008) (holding that an issuing court can rely on a
verbal description of images rather than the actual images
to determine whether there is probable cause that the
images constitute child pornography).
Moreover, the warrant affidavit sufficiently established
Agent Paulson’s expertise and reliability because the
affidavit was extremely detailed, explaining the child
pornography and child erotica images in the Cyber Tips,
the relevant statutory provisions, expert opinions regard-
ing the behavior of child pornographers generally, and
Agent Paulson’s experiences with pornography-related
searches. Based on these statements, we find that the
affidavit sufficiently establishes Agent Paulson’s expertise
in evaluating child pornography. See United States v.
Watzman, 486 F.3d 1004, 1008 (7th Cir. 2007) (concluding
that the affidavit sufficiently established the officer’s
expertise where the officer explained, in great detail, his
experience with investigating child pornographers).
2. There was sufficient evidence to link the
b oilerp late statements regard ing ch ild
pornographers to the specific characteristics of
Prideaux-Wentz.
Prideaux-Wentz argues that there was no information in
the affidavit to indicate that he is a collector of child
pornography, only boilerplate statements about child
pornography collectors generally. In order to rely on
profiles, “the affidavit must lay a foundation which shows
12 No. 07-3708
that the person subject to the search is a member of the
class.” United States v. Weber, 923 F.2d 1338, 1345 (9th
Cir. 1990) (holding that the affidavit did not establish
probable cause that the defendant was a child molester
when it was “clear that the ‘expert’ portion of the
affidavit was not drafted with the facts of this case or this
particular defendant in mind”). Furthermore, “ ‘[r]ambling
boilerplate recitations designed to meet all law enforce-
ment needs’ do not produce probable cause.” United States
v. Zimmerman, 277 F.3d 426, 433 n.4 (3d Cir. 2002) (quoting
Weber, 923 F.2d at 1345). Prideaux-Wentz maintains that
the warrant lacked any information that would indicate
that he has the characteristics of a prototypical child
pornography collector, and furthermore, that this gap
renders any probable cause determination entirely unrea-
sonable.
Agent Paulson’s affidavit did include general state-
ments about collectors of child pornography and their
usual behavior, specifically “child pornography collector
characteristics” gleaned from his own experiences, as
well as from consultation with FBI agents who are ex-
perts in the field. He explicitly concluded that “[c]hild
pornography collectors almost always maintain and
possess their material in the privacy and security of their
homes or some other secure location where it is readily
available” and that the size of their collections tends to
increase over time. Prideaux-Wentz maintains, however,
that Agent Paulson did not rely on any of Prideaux-
Wentz’s specific characteristics in concluding that he fits
the profile of a collector of child pornography and was
therefore likely to keep pornography at his residence.
No. 07-3708 13
The Fourth Amendment requires a “fair probability” that
the evidence will be found on the premises, which is
undermined by the need to make inferential steps between
general characteristics and the specific facts of the case. See
Weber, 923 F.2d at 1345 (noting that there was no probable
cause when, following each inferential leap made by
the officer, “virtual certainty became probability, which
merged into possibility, which faded into chance”). Be-
cause the warrant connected Prideaux-Wentz to several
email accounts responsible for uploading or possessing
child pornography, we cannot say that it required too
much of an inferential leap to conclude that Prideaux-
Wentz might be a collector of child pornography. There
was a bridge connecting the general averments contained
in Agent Paulson’s affidavit to Prideaux-Wentz:
jackinpulpit2001. The user name “jackinpulpit2001” was
tied to Prideaux-Wentz and this ID was responsible for
uploading a fair number of child pornography images.
Furthermore, there was also an additional NCMEC Cyber
Tip from Microsoft/MSN supporting Agent Paulson’s
contention that Prideaux-Wentz might be a collector of
child pornography. Thus, despite the general, boilerplate
language contained within the warrant affidavit, there
were enough specifics to suggest that Prideaux-Wentz
might be a collector of child pornography.
3. There was a sufficient nexus between Prideaux-
Wentz’s residence and the alleged criminal activity
that Agent Paulson reasonably relied on the search
warrant.
14 No. 07-3708
Prideaux-Wentz also maintains that there was no nexus
between the illegal activity and the search of his residence
because Yahoo! submitted the last Cyber Tip ten months
before he moved to the New Glarus home in Novem-
ber 2004. He contends that the warrant application did not
assert that he posted any images from his new residence.
We have previously held that “a finding of probable
cause ‘does not require direct evidence linking a crime to
a particular place.’ ” Watzman, 486 F.3d at 1008 (internal
citation omitted). “Judges ‘may draw reasonable infer-
ences from the totality of the circumstances in deter-
mining whether probable cause exists to issue a war-
rant.’ ” United States v. Summage, 481 F.3d 1075, 1078 (8th
Cir. 2007) (quoting United States v. Thompson, 210 F.3d 855,
860 (8th Cir. 2000)).
Agent Paulson reasonably relied on the search warrant
because there was a sufficient nexus between the up-
loaded images and Prideaux-Wentz’s New Glarus home.
Agent Paulson established that Prideaux-Wentz owned a
computer and subscribed to email services in his new
home. The warrant affidavit included subpoenaed informa-
tion from a telecommunications company, indicating
that Prideaux-Wentz opened an Internet account at the
time he moved to New Glarus. His credit card records
also showed that he made regular monthly payments to
America Online. Although the nexus certainly would be
stronger if Yahoo! had submitted a Cyber Tip after
Prideaux-Wentz moved to his New Glarus home, Agent
Paulson still could have reasonably believed, based on
Prideaux-Wentz’s computer usage and the fact that most
child pornographers do not dispose of their collections,
that it was likely that illegal pornographic images would
No. 07-3708 15
be found on Prideaux-Wentz’s computer. See Summage,
481 F.3d at 1078 (upholding a search of the defendant’s
new home, although pornographic photos and videos
were taken at his old home, because it was reasonable to
infer that he would maintain the materials after his move);
see also Newsom, 402 F.3d at 783 (where the affidavit did not
explain that child pornographers tend to hold onto their
stashes but we determined that “it was clear from the
context” that the law enforcement officials seeking the
warrant believed that the defendant was still in posses-
sion of materials that were more than one year old.).
To counter this point, Prideaux-Wentz, relying on United
States v. Greathouse, 297 F. Supp. 2d 1264, 1272 (D. Or. 2003),
contends that the magistrate failed to consider that com-
puters commonly are replaced in short periods of time.
Although the warrant did not indicate whether Prideaux-
Wentz owned the same computer at both residences, the
government is not required to prove that Prideaux-Wentz
owned the same computer between residences in order
to establish probable cause. See United States v. Wiley, 475
F.3d 908, 916 (7th Cir. 2007) (“[p]robable cause does not
require direct evidence linking a crime to a particular
place. Instead, issuing judges are entitled to draw reason-
able inferences about where evidence is likely to be found
given the nature of the evidence and the type of offense.”)
(internal citation omitted). Given Prideaux-Wentz’s con-
nection with two Internet IDs responsible for uploading
and storing child pornography, and the expert testimony
suggesting that he would not discard these photos,
Prideaux-Wentz has not convinced us that Agent Paulson
did not act in good faith reliance on the search warrant.
16 No. 07-3708
C. Prideaux-Wentz was not entitled to a Franks hearing.
Prideaux-Wentz argues that he has met the standards for
a Franks hearing because the warrant affidavit contained
omissions and was misleading. Under Franks, “if a defen-
dant can demonstrate by a preponderance of the evi-
dence that the signatory of the warrant affidavit made a
false statement (or omitted a material fact) either inten-
tionally or with reckless disregard for the truth, then a
court will consider whether the content of the affidavit,
setting aside the false material (or including the omitted
material), is sufficient to establish probable cause.” United
States v. Merritt, 361 F.3d 1005, 1010 (7th Cir. 2004). In
order to receive a Franks hearing, Prideaux-Wentz has to
show that “(1) the warrant affidavit contained a false
statement or omitted a statement; (2) the affiant made or
omitted the statement either intentionally or recklessly;
and (3) the statement was material or necessary to the
finding of probable cause.” Id. at 1010. Prideaux-Wentz
maintains that Agent Paulson omitted certain facts,
including that Prideaux-Wentz’s credit card statements did
not contain charges for access to any Internet sites and that
he never communicated with anyone by any medium
about anything related to child pornography. Prideaux-
Wentz also contends that there are inconsistencies be-
tween Agent Paulson and Stenzel’s evaluations of the
uploaded pictures that raise concerns about the reliability
of the affidavit generally.
We have already rejected the idea that Agent Paulson
and Stenzel’s differing interpretations of the pictures
undermined the reliability of the affidavit, and we also do
No. 07-3708 17
not believe that Agent Paulson’s characterization of the
photos was intentionally misleading, especially given the
somewhat hazy line between child erotica and child
pornography. Even if Agent Paulson should have some-
how been more thorough or careful in his analysis of the
photos, or if, as we determined earlier, he should have
followed-up with Yahoo! to get more information about
the uploaded photos, this failure was, at most, negligent,
which is insufficient to trigger a Franks hearing. See United
States v. Swanson, 210 F.3d 788, 791 (7th Cir. 2000) (rejecting
the defendant’s argument that the officers should have
conducted more investigation and included more infor-
mation with the warrant because their failure to do so
was, at most, negligent and “negligence is no basis for
convening a Franks hearing”).
There is information contained within the warrant to
suggest that Agent Paulson reasonably believed that
Prideaux-Wentz would still be in possession of child
pornography, and that the omissions were not material to
the finding of probable cause. In addition to the general
information about child pornographers contained in the
warrant, the Cyber Tips obtained from August 15, 2003, to
January 28, 2004, indicate that Prideauz-Wentz was
consistently uploading child pornography and engaging
in “ongoing continuous criminal activity.” See United States
v. Pless, 982 F.2d 1118, 1126 (7th Cir. 1992) (“Passage of
time is less critical when the affidavit refers to facts that
indicate ongoing continuous criminal activity.”). Moreover,
there was substantial evidence linking Prideaux-Wentz
to the uploaded images through his Internet IDs.
18 No. 07-3708
This evidence, which is quite compelling, suggests that
the omissions regarding Prideaux-Wentz’s credit card
statements, and the fact that there was no evidence
linking Prideaux-Wentz to other child pornographers, were
not necessary to a finding of probable cause. Thus, while
Agent Paulson’s failure to obtain the dates of the uploaded
pictures is problematic, it is clear that the warrant was
not so facially deficient as to justify a finding that Agent
Paulson omitted information intentionally or recklessly.
We find that Prideaux-Wentz has not shown that he
was entitled to a Franks hearing.
III. CONCLUSION
For the foregoing reasons, we A FFIRM the denial of the
motion to suppress the evidence.
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