United States v. Jacob Blanco ( 2023 )

FILED
NOT FOR PUBLICATION
MAY 2 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10301
Plaintiff-Appellee, D.C. No. 1:17-cr-00140-DAD-
SKO-1
v. Eastern District of California,
Fresno
JACOB BLANCO,
Defendant-Appellant. MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Argued and Submitted March 29, 2023
San Francisco, California
Before: GOULD, BERZON, and IKUTA, Circuit Judges.
Jacob Blanco pleaded guilty to five counts of sexual exploitation of children,
in violation of 18 U.S.C. § 2251(a) and (e), and one count of receipt and
distribution of material involving the sexual exploitation of children, in violation of
18 U.S.C. § 2252(a)(2) and (b)(1). Blanco appeals the district court’s denial of his
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
motion to suppress evidence and request for an evidentiary hearing under Franks v.
Delaware, 438 U.S. 154 (1978). We have jurisdiction under 28 U.S.C. § 1291 and
we affirm.
The district court did not err in denying Blanco’s motion to suppress the
evidence obtained from 369 West Lexington Avenue, #204 in Fresno, California
because the search warrant authorizing the search was supported by probable
cause.1 The affidavit supporting the search warrant established that the
@summerme001 Musical.ly account which victimized a six-year-old girl on March
28 and 29, 2017, was associated with internet protocol (IP) address 73.192.178.95,
which in turn was associated with the 369 West Lexington address and the email
address “Jacob_blanco@comcast.net.” The affidavit provided further evidence
confirming that Blanco was a resident of that address, including that a car
registered to Blanco was parked outside. This evidence is sufficient to establish a
“fair probability” that evidence of a crime would be found at the 369 West
Lexington residence. Illinois v. Gates, 462 U.S. 213, 238 (1983). Because a
Musical.ly account holder could use multiple internet service providers (or
1
Because Blanco’s voluntary confession was made before the warrant was
executed, it was not “fruit of the poisonous tree,” Wong Sun v. United States, 371
U.S. 471, 488 (1963), and therefore the confession is admissible regardless of the
validity of the search warrant.
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multiple IP addresses from the same internet service provider) to access an
account, the absence of evidence that the @summerme001 account accessed
Musical.ly using IP address 73.192.178.95 on March 28 or 29, 2017, does not
undermine probable cause for the search. See D.C. v. Wesby, 138 S. Ct. 577, 588
(2018) (holding that probable cause does not require ruling out “innocent
explanation[s] for suspicious facts”).
The district court did not err in denying Blanco’s request for a Franks
hearing. The affidavit’s inclusion of a one-number typographical error in one of
the IP addresses that had been used by the @summerme001 account to access
Musical.ly was not an “intentionally or recklessly false statement[] or misleading
omission[].” United States v. Reeves, 210 F.3d 1041, 1044 (9th Cir. 2000).
Moreover, neither this typographical error nor the omission of the fact that there
was no evidence that the @summerme001 account accessed Musical.ly using IP
address 73.192.178.95 on March 28 or 29, 2017, were necessary to the finding of
probable cause. See id.2 Further, the omitted evidence regarding the access
activity of IP address 73.192.178.95 demonstrated that the address was used to
2
Because we conclude that the challenged search warrant was supported by
probable cause, we do not reach the government’s argument that the exclusionary
rule should not be applied because the search of the 369 West Lexington address
was conducted in good faith reliance on an objectively reasonable search warrant.
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access the @summerme001 account five times over the span of five days,
beginning on March 30, 2017, just one day after the incidents at issue occurred.
Had those omitted facts from the government’s investigation been included in the
affidavit, the evidence would have bolstered, not detracted from, the finding of
probable cause.
Finally, the district court’s order did not violate Rule 12(d) of the Federal
Rules of Criminal Procedure because Blanco’s motion to suppress and request for a
Franks hearing did not raise any factual disputes that the district court was required
to resolve. The topics that Blanco asserts the district court omitted are legal
conclusions, not essential factual findings, and thus did not have to be stated on the
record. See United States v. Prieto-Villa, 910 F.2d 601, 610 (9th Cir. 1990).
AFFIRMED.
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