United States v. Testerman , 263 F. App'x 328 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4558
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANIEL WILSON TESTERMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Irene M. Keeley, Chief
District Judge. (1:05-cr-00004-IMK-AL)
Submitted: December 21, 2007 Decided: January 30, 2008
Before TRAXLER and DUNCAN, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Dean M. Boland, Lakewood, Ohio, for Appellant. Sharon L. Potter,
United States Attorney, Sherry L. Muncy, Assistant United States
Attorney, Clarksburg, West Virginia, David J. Perri, Assistant
United States Attorney, Wheeling, West Virginia for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel Wilson Testerman was convicted of one count of
knowingly possessing child pornography, in violation of 18 U.S.C.
§ 2256 (2000), and three counts of knowingly receiving child
pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) (2000). He
was sentenced to 108 months of imprisonment. Testerman appeals his
convictions, arguing the district court erred by denying his motion
to suppress evidence seized pursuant to two search warrants issued
without probable cause and abused its discretion by disallowing
testimony under Fed. R. Evid. 701 concerning the alteration of
digital photographs, and that trial counsel provided ineffective
assistance. For the reasons that follow, we affirm.
I.
Testerman argues that the district court erred in denying
his motion to suppress evidence seized as a result of two search
warrants. This court reviews the district court’s factual findings
underlying a motion to suppress for clear error, and the district
court’s legal determinations de novo. Ornelas v. United States,
517 U.S. 690, 699 (1996); United States v. Rusher, 966 F.2d 868,
873 (4th Cir. 1992). The evidence is construed in the light most
favorable to the prevailing party below. United States v. Seidman,
156 F.3d 542, 547 (4th Cir. 1998).
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In reviewing the propriety of issuing a search warrant, the
relevant inquiry is whether, under the totality of the
circumstances, the issuing judge had a substantial basis for
concluding that there was probable cause to issue the warrant.
Illinois v. Gates, 462 U.S. 213, 238 (1983). The facts presented
to the issuing judge need only convince a person of reasonable
caution that contraband or evidence of a crime will be found at the
place to be searched. Texas v. Brown, 460 U.S. 730, 742 (1983).
Appellate courts pay great deference to the district court’s
findings of probable cause in relation to warrants. Gates, 462
U.S. at 236.
Testerman argues on appeal both that the search warrants were
not supported by probable cause and the evidence was not admissible
under the good faith exception to the exclusionary rule. When a
party challenges both the probable cause determination and the
application of the good faith rule, we address the good faith
determination first. See United States v. Legg, 18 F.3d 240, 243
(4th Cir. 1994). If a warrant is found to be defective, the
evidence obtained from the warrant should be suppressed “only on a
case-by-case basis and only in those unusual cases in which
exclusion will further the purposes of the exclusionary rule.”
United States v. Leon, 468 U.S. 897, 918 (1984).
Evidence seized pursuant to a defective warrant will not be
suppressed unless: (1) the affidavit contains knowing or reckless
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falsity; (2) the magistrate acts as a rubber stamp for the police;
(3) the affidavit does not provide the magistrate with a
substantial basis for determining the existence of probable cause;
or (4) the warrant is so facially deficient that an officer could
not reasonably rely on it. See United States v. Wilhelm, 80 F.3d
116, 121 (4th Cir. 1996); United States v. Hyppolite, 65 F.3d 1151,
1156 (4th Cir. 1995). The crucial element in determining probable
cause is “whether it is reasonable to believe that the items to be
seized will be found in the place to be searched.” United States
v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993). Information must
link criminal activity to the place to be searched. Id. at 1583.
Testerman first contends that the good faith exception should
not apply in this case because the issuing magistrate did not make
the required determination of obscenity. Testerman’s reliance on
Marcus v. Search Warrants, 367 U.S. 717 (1961), and its progeny, is
misplaced. The Marcus line of cases involved seizure of allegedly
obscene materials to remove them from commercial circulation.
However, seizure of obscene material for the purpose of preserving
evidence for a subsequent criminal trial does not require such a
finding. See Heller v. New York, 413 U.S. 483, 492 (1973); Fort
Wayne Books, Inc. v. Indiana, 489 U.S. 46, 63 (1989) (“[A] single
copy of a book or film may be seized and retained for evidentiary
purposes based on a finding of probable cause.”). Thus, a judicial
finding of obscenity was not required for a probable cause
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determination before the issuance of valid search warrants in this
case.
Testerman next alleges the good faith exception under Leon
should not apply because the affidavit supporting the search
warrants was so lacking in indicia of probable cause as to render
the belief in it objectively unreasonable. We find there was
substantial evidence supporting the magistrate’s decision to issue
the warrant. Sheriff’s Deputy Kelly prepared the affidavit with
information obtained from his interviews of and sworn statements
given by the victim, and after viewing the photographs of the naked
male the victim had received. Further, Deputy Kelly consulted with
the acting prosecutor for advice on how to proceed in obtaining
evidence in the area of computer crimes, an area in which he was
unfamiliar.
The affidavit supporting the first search warrant indicated
the reason for the search was that obscene photographs were
received by the victim by e-mail and she “recognized the person
depicted in said obscene photographs as being DANIEL TESTERMAN.”
The affidavit also contained a detailed description of the place to
be searched and indicated the search was for “any and all records
contained within any personal computer’s hard drive and memory as
well as software which may have been used in connection with and to
facilitate the above crimes.” We find the first search warrant
contained significant indicia of probable cause for the crime
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charged and provided an adequate description of the place to be
searched and things to be seized. The search warrant therefore was
not so facially deficient that it would be unreasonable for the
deputies to presume its validity.
Similarly, the second search warrant contained a description
of the alleged crime and stated the evidence sought:
relat[ed] to children engaged in sexual activity or any
other crime and that the facts for such belief are that
after obtaining a Search Warrant to search for
photographs e-mailed to [the victim], [she] identified
her [daughter] as one of the images depicted on the
computer engaged in sexual activity with an adult male.
In addition, the second search warrant provided a sufficient
description of the things to be seized and detailed the place to be
searched. We find the exemptions to the good faith exception to
the exclusionary rule do not apply to the first or second search
warrants in this case and thus the evidence was admissible under
the good faith exception. The district court therefore did not err
in affirming the magistrate judge’s report and recommendation and
denying Testerman’s motion to suppress the relevant evidence seized
as a result of the search warrants.
II.
Testerman next contends the district court erred by refusing
to allow the testimony of his brother, Jonathan Black, a purported
“self taught computer geek,” concerning the methodologies for
altering digital photographs. The district court has discretion
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generally to conduct a trial, including the presentation of
evidence, in whatever manner the court deems appropriate, and the
district court’s evidentiary rulings are entitled to substantial
deference and will not be reversed absent a clear abuse of
discretion. See United States v. Moore, 27 F.3d 969, 974 (4th Cir.
1994). Federal Rule of Evidence 701 allows lay opinion testimony
as long as it is based on the witness’ own perception, helpful to
the jury in understanding facts at issue, and “not based on
scientific, technical, or other specialized knowledge.” Fed. R.
Evid. 701.
On appeal, Testerman addresses only the district court’s
finding that Testerman had not disclosed that Black intended to
testify as to digital photographs. We find the court properly
disallowed the testimony because Testerman failed to disclose the
substance of this testimony, even though defense counsel knew of
the evidence beforehand, until near the end of trial, after the
Government rested and Testerman had testified on his own behalf.
The evidence, consisting of alleged special computer knowledge,
further was properly excluded under Rule 701, which “forbids the
admission of expert testimony dressed in lay witness clothing.”
United States v. Perkins, 470 F.3d 150, 156 (4th Cir. 2006).
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III.
Finally, Testerman alleges claims of ineffective
assistance of counsel. “Ineffective assistance claims are not
cognizable on direct appeal unless counsel’s ineffectiveness
conclusively appears on the record.” United States v. James, 337
F.3d 387, 391 (4th Cir. 2003). We find the record does not contain
any evidence that is sufficient on its face to satisfy both prongs
of Strickland v. Washington, 466 U.S. 668, 688, 694 (1984), and
thus Testerman’s ineffective assistance of counsel claims are not
cognizable on direct appeal.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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