United States v. Alex Bursch , 545 F. App'x 652 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 19 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-10623
Plaintiff - Appellee, D.C. No. 4:11-cr-00644-PJH-1
v.
MEMORANDUM*
ALEX EYE BURSCH,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California,
Phyllis J. Hamilton, District Court Judge, Presiding
Argued and Submitted on October 16, 2013
San Francisco, California
Before: THOMAS and MCKEOWN, Circuit Judges, and BENNETT, District
Judge.**
Appellant Alex Eye Bursch was convicted, on stipulated facts at a bench
trial, of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B),
and sentenced to 57 months of imprisonment. On this direct appeal, Bursch asserts
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Mark W. Bennett, District Judge for the U.S. District
Court for the Northern District of Iowa, sitting by designation.
that the district judge (1) should have granted his motion to suppress the search
warrant leading to his arrest for lack of probable cause; (2) should have granted
him a hearing, pursuant to Franks v. Delaware, 438 U.S. 154 (1978), on his
allegations of intentionally or recklessly false statements in the warrant; and
(3) failed to sentence him to either probation or a much lower sentence, because
she gave excessive weight to the flawed child pornography sentencing guidelines
and insufficient weight to other sentencing factors under 18 U.S.C. § 3553(a). We
have jurisdiction over Bursch’s appeal of the district court’s denial of his motion to
suppress and failure to hold a Franks hearing pursuant to 28 U.S.C. § 1291 and
over Bursch’s appeal of his sentence pursuant to 18 U.S.C. § 3742(a). We affirm.
1.a. We reject Bursch’s challenges to the sufficiency of the warrant. File
names and opinions of qualified investigating officers that images downloaded
from a suspect’s computer are “child pornography,” even without a factual
description of the images downloaded, may establish probable cause that child
pornography will be found. United States v. Krupa, 658 F.3d 1174, 1178 (9th Cir.
2011); United States v. Borowy, 595 F.3d 1045, 1049 & n.3 (9th Cir. 2010).
Bursch’s reliance on United States v. Battershell, 457 F.3d 1048 (9th Cir. 2006), is
unavailing. In Battershell, we did not hold that a copy of an image or a factual
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description of an image is required to establish probable cause that child
pornography may be found. Id. at 1051-52.
Also, unsworn statements that are submitted with and that are, as a matter of
common sense and realistic construction, considered part of the affidavit of a
search warrant application may be considered as support for a magistrate’s
probable cause determination. United States v. Lingenfelter, 997 F.2d 632, 639
(9th Cir. 1993). When requesting a search warrant, an officer may also rely on
hearsay statements and the “collective knowledge” of other officers involved in the
investigation in support of probable cause for the warrant. Dubner v. City and
County of San Francisco, 266 F.3d 959, 966 (9th Cir. 2001); United States v.
Guerrero, 756 F.2d 1342, 1348-49 (9th Cir. 1984) (per curiam). In United States
v. Luong, 470 F.3d 898, 902-05 (9th Cir. 2006), on which Bursch relies, we
rejected reliance on “an unsworn, unrecorded oral colloquy” between an applicant
and an issuing magistrate as the basis for determining whether the applicant acted
in “good faith” in relying on the warrant; we said nothing whatsoever about
whether a determination of “probable cause” can be based, in part, on a
purportedly unsworn narrative or other written statement by another officer
expressly incorporated into the warrant application by the requesting officer.
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Next, we conclude that “there [wa]s a fair probability that contraband or
evidence of a crime w[ould] be found” at Bursch’s address, see Krupa, 658 F.3d at
1177 (stating the standard for probable cause for a search warrant),
notwithstanding the mismatch between the address identified in the narrative
statement establishing probable cause and the address identified on the face of the
warrant. The misidentification of the address in the narrative statement was a
typographical or scrivener’s error, while “the warrant describe[d] the place to be
searched with sufficient particularity to enable law enforcement officers to locate
and identify the premises with reasonable effort,” and no “reasonable probability
exist[ed] that the officers [would] mistakenly search another premise.” United
States v. Brobst, 558 F.3d 982, 992 (9th Cir. 2009) (internal quotation marks and
citations omitted) (stating the test for sufficient “particularity” of a warrant). Here,
the address to be searched was correctly identified on the face of the warrant, by
address and description, and the officer who executed the warrant knew what
address was intended. See id.
Even assuming, without deciding, that there was no probable cause to
support the warrant, we conclude that the good faith exception to the exclusionary
rule applies. See United States v. Leon, 468 U.S. 897, 922–23 (1984). Good faith
reliance exists where, as here, “the agents’ affidavit establishes at least a colorable
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argument for probable cause, and the agents relied on the search warrant in an
objectively reasonable manner.” Krupa, 658 F.3d at 1179 (internal quotation
marks omitted). There was a “colorable” argument “that contraband or evidence of
a crime w[ould] be found” at Bursch’s address, see Krupa, 658 F.3d at 1177,
notwithstanding a typographical error in the identification of his address, and it
was objectively reasonable, here, for the officers to rely on a warrant approved by a
neutral magistrate. See Messerschmidt v. Millender, 132 S. Ct. 1235, 1249-50
(2012). Accordingly, we affirm the district court’s denial of Bursch’s motion to
suppress on this alternative basis, as well.
b. We also reject Bursch’s contention that the district court erred by failing
to hold a Franks hearing. Bursch has made no “detailed offer of proof” to support
his claims that purportedly false or misleading statements were included in the
affidavit for the warrant in question. United States v. Craighead, 539 F.3d 1073,
1080 (9th Cir. 2008). Rather, he offers only conclusory allegations or bare
assertions, which fall short of the showing required for an evidentiary Franks
hearing. See United States v. Chavez-Miranda 306 F.3d 973, 979 (9th Cir. 2002).
Furthermore, two of the three statements that Bursch asserts were “false” simply
were not false. A third statement, that a different magistrate had previously issued
the “same” warrant, may have been technically untrue, but Bursch has not pointed
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to the merest hint that the statement was deliberately or recklessly made, rather
than simply “sloppy,” and the statement was not material to the determination of
probable case. United States v. Gonzalez, Inc., 412 F.3d 1102, 1110 (9th Cir.
2005) (explaining that the offer of proof must be sufficient to demonstrate that the
challenged warrant affidavit contained material false or misleading statements).
2. We also reject Bursch’s challenge to his sentence. Although a district
judge may vary from the guidelines based on a policy disagreement with them,
there is no obligation for a district court to do so. United States v. Carper, 659
F.3d 923, 925 (9th Cir. 2011). Here, the district judge did not give excessive
weight to the child pornography sentencing guidelines, rather than other 18 U.S.C.
§ 3553(a) factors. Rather, the district judge imposed a sentence below the
applicable child pornography guidelines range because she found that the low end
of the guidelines range, 87 months, was “greater than necessary, to comply with
the purposes” of sentencing and, specifically, “to afford adequate deterrence to
criminal conduct.” 18 U.S.C. § 3553(a), (a)(2)(B). Thus, “the district court
presented a balanced account of both positive and negative [statutory] factors,” as
well as the child pornography guidelines, “and provided sufficient explanation for
why it denied [Bursch] a [further] reduced sentence.” United States v. Dunn, 728
F.3d 1151, 1159 (9th Cir. 2013).
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AFFIRMED.
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