United States v. Clark , 685 F.3d 72 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1479
UNITED STATES OF AMERICA,
Appellee,
v.
MATTHEW CLARK,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Selya, Circuit Judges.
James H. Budreau for appellant.
Margaret D. McGaughey, Assistant United States Attorney
(Appellate Chief), with whom Thomas E. Delahanty II, United States
Attorney, was on brief, for appellee.
July 16, 2012
SELYA, Circuit Judge. Defendant-appellant Matthew Clark
was convicted on two counts of possessing child pornography. He
now challenges the propriety of the search that uncovered his
pornography collection and ultimately led to his conviction. He
also challenges the 210-month sentence imposed by the court below.
Concluding, as we do, that the defendant's arguments are without
merit, we affirm.
I. BACKGROUND
The facts relevant to this appeal are essentially
undisputed. On January 19, 2008, officers from Maine's Animal
Welfare Program (AWP) and the local sheriff's department executed
a search of a home in Somerville, Maine, inhabited by Fern Clark
and her adult son, Matthew. The officers conducted this search
pursuant to a warrant issued by a state magistrate the previous day
(the first warrant), which authorized a search for evidence of
animal cruelty and the unlicensed operation of a breeding kennel.
During their search, the officers entered the defendant's
bedroom. Near a computer work station, they saw a handwritten list
of web sites with titles suggestive of child pornography together
with nude photographs appearing to depict underage males.
The officers immediately halted their search and
approached the local magistrate for a supplementary search warrant
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(the second warrant).1 The second warrant authorized a search of
the Clark household for child pornography. While executing this
warrant, officers seized evidence that subsequently formed the
basis for a federal indictment against the defendant for two counts
of possessing child pornography.2 See 18 U.S.C. § 2252A(a)(5)(B).
Prior to trial, the defendant moved to suppress evidence
seized during the second search. Pertinently, he argued that the
first warrant was defective (and, therefore, that the original
search was illegal) because the affidavit submitted in support of
the warrant application did not make out probable cause to believe
that evidence of either animal cruelty or an unlicensed kennel
operation would be found. Building on this foundation, he argued
that the second search would not have come to pass but for the
evidence of child pornography uncovered during the initial
(illegal) search. He concluded, therefore, that the items seized
during the second search were the fruit of the poisonous tree, see
1
During this hiatus, some officers remained at the scene to
ensure that the premises would not be disturbed.
2
Fern Clark was not prosecuted federally. However, relying
in part on evidence seized during the first search, local
authorities brought charges of animal cruelty against her in a
Maine state court. See Me. Rev. Stat. tit. 17, § 1031(1)(E). She
was convicted of those charges, and her conviction was affirmed on
appeal. See State v. Clark, No. 09-375 (Me. May 18, 2010) (per
curiam).
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Wong Sun v. United States, 371 U.S. 471, 484-85 (1963), and should
have been excluded when offered by the government at trial.3
The district court refused to suppress the evidence. It
held that the first warrant was supported by probable cause and, in
all events, the searching officers had relied upon it in good
faith, see United States v. Leon, 468 U.S. 897, 918-25 (1984).
Because the court found no constitutional flaw in the first search,
there was no basis for suppressing the items seized during the
second search.
After a bench trial, the district court found the
defendant guilty on both of the possession counts.4 At the
disposition hearing, the district court, over objection, relied on
the defendant's two prior convictions for indecent acts involving
children as a basis for an offense-level enhancement related to "a
pattern of activity involving the sexual abuse or exploitation of
a minor." USSG §2G2.2(b)(5). With this enhancement in place, the
court sentenced the defendant to a 210-month incarcerative term
(the bottom of the guideline sentencing range). This timely appeal
ensued.
3
In the court below, the defendant advanced additional
arguments in support of suppression. Without exception, those
arguments have been abandoned on appeal.
4
The defendant has not challenged the splitting of the
indictment into two counts, and we do not comment further on that
circumstance.
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II. ANALYSIS
On appeal, the defendant challenges both the denial of
his motion to suppress and the application of the "pattern of
abuse" enhancement. We bifurcate our discussion accordingly.
A. The Motion to Suppress.
When reviewing a denial of a motion to suppress, we assay
a district court's legal conclusions, including its conclusion
regarding the existence of probable cause, de novo. United States
v. Kearney, 672 F.3d 81, 88 (1st Cir. 2012); United States v.
Schaefer, 87 F.3d 562, 565 & n.2 (1st Cir. 1996). We must,
however, credit the district court's findings of fact unless they
are clearly erroneous. United States v. Hughes, 640 F.3d 428, 434
(1st Cir. 2011). Thus, we will uphold a denial of a suppression
motion as long as "any reasonable view of the evidence supports the
decision." United States v. Woodbury, 511 F.3d 93, 96-97 (1st Cir.
2007) (internal quotation marks omitted).
In the case at hand, the defendant's suppression argument
hinges entirely on the supposed invalidity of the first warrant
(which, in his view, was issued in the absence of probable cause).
Mindful that inquiries into the existence vel non of probable cause
are normally factbound, see Acosta v. Ames Dep't Stores, Inc., 386
F.3d 5, 8 (1st Cir. 2004), we carefully examine the contents of the
affidavit that accompanied the application for the first warrant.
The test is whether the sworn allegations are sufficient "to
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warrant a man of reasonable caution in the belief that an offense
has been or is being committed and that evidence bearing on that
offense will be found in the place to be searched." Safford
Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633, 2639 (2009)
(citation and internal quotation marks omitted); see U.S. Const.
amend. IV (stating that no search "[w]arrants shall issue, but upon
probable cause, supported by Oath or affirmation").
Christine Fraser, an AWP veterinarian, swore out the
affidavit supporting the application for the first warrant. She
explained that on January 16, 2008 (three days before the searches
in question took place), police in Salem, New Hampshire, had
discovered 22 dogs locked inside a car. The dogs were in poor
condition (indeed, three of them were dead) and were covered in
fleas and feces. The car's owner, Amy Moolic, told the police that
she had rescued the dogs from a "puppy mill" in Somerville, Maine,
where the conditions were "filthy." After the Salem police
obtained paperwork (not specifically identified) indicating that
the dogs had come from the home of Fern Clark, they informed AWP
officials about what they had learned.
This was not the first time that Fern Clark had appeared
on the AWP's radar screen. Fraser's affidavit noted that animals
had been seized from Fern Clark's home kennel in the 1990s
(although she was ultimately acquitted of animal cruelty). Between
2005 and 2007, the AWP received three separate complaints about
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sick animals and squalid conditions at the Clark residence. In
response to each of these complaints, Fraser sought to inspect the
premises; each time, she was turned away. On one of these
occasions, the Clarks barred Fraser from entering their home but
permitted a relatively inexperienced local animal control officer
to inspect the premises. He concluded that the conditions inside
the home were "borderline but ok."
By statute, Maine requires that all breeding kennels be
licensed. See Me. Rev. Stat. tit. 7, § 3931-A(1). A breeding
kennel is defined alternatively as either any location that has at
least five adult female animals capable of breeding and where at
least some of the offspring are sold or any location where more
than 16 dogs or cats raised on the premises are sold in any given
calendar year. Id. § 3907(8-A). The Fraser affidavit related that
Fern Clark's license to operate a breeding kennel had expired in
2005 and had not been renewed. Nevertheless, Fern Clark had
admitted to Fraser that, even after her license for a breeding
kennel had expired, she had approximately 50 dogs on her property.
Moreover, the AWP had continued to receive complaints from
customers who claimed to have purchased puppies and kittens from
her.
Based on these averments, we have little difficulty in
concluding that probable cause existed to search the Clark home for
evidence of animal cruelty and the unlicensed operation of a
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breeding kennel. Probable cause exists whenever the circumstances
alleged in a supporting affidavit, viewed as a whole and from an
objective vantage, suggest a "fair probability" that evidence of a
crime will be found in the place to be searched. Illinois v.
Gates, 462 U.S. 213, 238 (1983); see United States v. Sanchez, 612
F.3d 1, 5 (1st Cir. 2010). Probable cause does not require either
certainty or an unusually high degree of assurance. See United
States v. Winchenbach, 197 F.3d 548, 555-56 (1st Cir. 1999). All
that is needed is a "reasonable likelihood" that incriminating
evidence will turn up during a proposed search. Valente v.
Wallace, 332 F.3d 30, 32 (1st Cir. 2003). The Fraser affidavit
easily satisfies this standard.
The centerpiece of Fraser's affidavit is Moolic's
statement that many of the bedraggled dogs found in her car had
been rescued from a "puppy mill" in Somerville, Maine, where the
conditions were "filthy." Salem police, following up on Moolic's
statement, obtained paperwork that linked these dogs to Fern Clark
— a woman who previously had operated a licensed breeding kennel in
Somerville, Maine. In addition, the affiant reported that, even
after Fern Clark's license had expired, she harbored a large number
of dogs on her premises and continued to be the subject of
complaints from putative purchasers. These facts formed the basis
for a reasonable belief that Fern Clark, at or near the time of the
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application for the first warrant, was illegally kenneling animals
in inhumane conditions.
The fact that Fraser's affidavit relies in part on
matters not within her firsthand knowledge does not destroy its
force. An affidavit supporting a warrant application may rely upon
information provided by a third-party source as long as the affiant
gives the issuing magistrate a sufficient basis for crediting that
source. See United States v. McFarlane, 491 F.3d 53, 57 (1st Cir.
2007). In evaluating whether a particular affidavit crosses this
threshold, we may consider, among other things, whether the
affidavit establishes the source's veracity, whether the source's
statement derives from firsthand knowledge, and whether all or any
portion of the source's statement is corroborated. United States
v. Tiem Trinh, 665 F.3d 1, 10 (1st Cir. 2011). We also may
consider "whether a law enforcement affiant assessed, from his
professional standpoint, experience, and expertise, the probable
significance of the informant's provided information." Id. None
of these factors is singularly dispositive, and a stronger showing
on one may offset a weaker showing on another. United States v.
Zayas-Diaz, 95 F.3d 105, 111 (1st Cir. 1996).
Here, all of the aforementioned factors militate in favor
of a finding that Moolic's statement was worthy of credence.
First, the record does not indicate any reason to question Moolic's
veracity; for aught that appears, she was a neutral party who had
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nothing to gain by pointing the finger at an unnamed kennel in a
neighboring state. The fact that the Salem police credited
Moolic's statement following a face-to-face encounter with her
bolsters her overall credibility. See United States v. Croto, 570
F.3d 11, 14 (1st Cir. 2009) (noting that sources who meet with
police are inherently more credible). What is more, lying to the
police could have had serious repercussions for her. See N.H. Rev.
Stat. Ann. § 641:4 (criminalizing the making of a false statement
to law enforcement officials that implicates another in a crime).
Second, Moolic — who claimed to have rescued the dogs herself — had
firsthand knowledge of the conditions at the "puppy mill." And the
Salem police were able to obtain paperwork that tied the dogs to
Fern Clark, whose operation was located where Moolic had placed the
"puppy mill." Similarly, Moolic's statement jibed both with other
complaints that Fraser had heard over the years and with her own
concerns. These data points partially corroborated Moolic's
statement and, thus, reinforced it. See United States v. Sclamo,
578 F.2d 888, 890 (1st Cir. 1978); see also United States v. One
1986 Ford Pickup, 56 F.3d 1181, 1188 (9th Cir. 1995) (per curiam)
(stating that "'[i]nterlocking' information from multiple
informants may enhance the credibility of each").
The defendant labors to discount the force of Moolic's
allegations on the ground that the Fraser affidavit does not state
when Moolic rescued the dogs from Fern Clark's home. The rescue,
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he says, could have occurred years earlier, and the poor condition
of the dogs could thus have been entirely Moolic's fault. This
pettifoggery defies logic. After all, "[s]earch warrants and
affidavits should be considered in a common sense manner, and
hypertechnical readings should be avoided." United States v.
Syphers, 426 F.3d 461, 465 (1st Cir. 2005) (internal quotation
marks omitted). While Fraser does not mention the exact date when
Moolic rescued the dogs, the common sense inference is irresistible
that Moolic was discussing recent events when she spoke with the
Salem police. See Zayas-Diaz, 95 F.3d at 115-16 (stating that an
affiant's failure to provide precise temporal references is not
fatal when the relevant time frame can be inferred).
The defendant also argues that the "paperwork" allegedly
linking Moolic's dogs to Fern Clark was entitled to no weight
because Fraser's affidavit did not specifically identify the
components that collectively comprised the "paperwork." We do not
agree. In the search-warrant context, it is not necessary for an
affiant, in describing supporting evidence, to be precise to the
point of pedantry. See Gates, 462 U.S. at 235 (explaining that
"elaborate specificity" has no role in the probable cause context).
The affidavit makes clear that the Salem police unearthed
documentation that they thought reliably indicated Fern Clark's
connection to the dogs. The fact that the police saw fit to pass
along this documentation to the AWP is itself indicative of their
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belief in its trustworthiness. Cf. Estrada v. Rhode Island, 594
F.3d 56, 65 (1st Cir. 2010) (explaining that police may draw upon
their experience and expertise in evaluating probable cause). No
more was exigible.
Relatedly, the defendant beseeches us to disregard the
past complaints against Fern Clark because those complaints were
never corroborated. Indeed, in one instance Fern Clark was
acquitted, and in another instance a home inspection (albeit by a
relatively inexperienced inspector) found "borderline" compliance.
But this argument goes only to the weight to be given to the past
complaints in the calculus of probable cause. Independent sources
that provide the same information are "mutually corroborating."
Wood v. Clemons, 89 F.3d 922, 930-31 (1st Cir. 1996). In this
case, several sources over the years identified Fern Clark as an
abuser of animals. These past complaints (even if not especially
probative in and of themselves) and Moolic's allegations reinforce
each other.
We need not tarry over the defendant's plaint that the
Fraser affidavit was tainted because Fraser had an axe to grind
over the Clarks' past refusals to allow her to inspect their home.
It is settled beyond peradventure that "[a] police officer's
subjective motive, even if improper, cannot sour an objectively
reasonable search." Spencer v. Roche, 659 F.3d 142, 149 (1st Cir.
2011). Here, the facts contained in the Fraser affidavit, viewed
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in their totality and from a vantage point of objective
reasonableness, establish probable cause.
It is a rare case in which every jot and tittle in an
affidavit filed in support of an application for a search warrant
will argue persuasively for a finding of probable cause. More
often, there will be some facts and circumstances that paint the
picture not in black and white, but in varying shades of gray. The
task of the issuing magistrate is to make certain that she focuses
on the forest — not on the individual trees. See United States v.
Carson, 582 F.3d 827, 832 (7th Cir. 2009). The ultimate question
is not whether there is some doubt but, rather, whether the
totality of the facts and circumstances described in the affidavit,
viewed objectively, gives rise to a fair probability that a crime
has been committed and that the search, if allowed, will reveal
evidence of it. See, e.g., United States v. Morales-Aldahondo, 524
F.3d 115, 119 (1st Cir. 2008); United States v. Barnard, 299 F.3d
90, 93 (1st Cir. 2002).
Silhouetted against this backdrop, the outcome is clear.
"A magistrate's determination of probable cause should be paid
great deference by reviewing courts." Gates, 462 U.S. at 236(internal quotation marks omitted). Given the trappings of
credibility that surround Moolic's statement and the other facts
limned in Fraser's affidavit, we cannot fault the magistrate's
decision to issue the first warrant. The Supreme Judicial Court of
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Maine, reviewing Fern Clark's conviction in the animal cruelty case
brought by state authorities, determined that the Fraser affidavit
demonstrated probable cause to believe that a search of the Clark
household would turn up incriminating evidence. State v. Clark,
No. 09-375 (Me. May 18, 2010) (per curiam). We agree.
That ends this aspect of the matter. Because the first
warrant was supported by probable cause and the defendant has made
no independent challenge to the issuance of the second warrant, the
district court did not err in denying the defendant's motion to
suppress.
B. The Sentencing Enhancement.
The defendant's remaining claim of error relates to the
district court's decision to apply a five-level guideline
enhancement for "a pattern of activity involving the sexual abuse
or exploitation of a minor." USSG §2G2.2(b)(5). In this regard,
the court relied on the defendant's two predicate convictions (in
1979 and 1984, respectively) for indecent acts involving minors.
The defendant asserts that those predicate convictions were too
remote in time to demonstrate a "pattern" of abuse under section
2G2.2(b)(5). This is a challenge to the district court's
application of the sentencing guidelines, which engenders de novo
review. See United States v. Walker, 665 F.3d 212, 232 (1st Cir.
2011).
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In this instance, the defendant's challenge is foreclosed
by circuit precedent. In United States v. Woodward, we held that
"previous sexual assaults, although occurring long ago, could be
considered" when applying a section 2G2.2 "pattern of abuse"
enhancement.5 277 F.3d 87, 90-92 (1st Cir. 2002) (internal
quotation marks omitted). We are firmly bound by this prior panel
holding. See United States v. Pires, 642 F.3d 1, 9 (1st Cir. 2011)
(holding that, with only narrow exceptions, "newly constituted
panels in a federal appellate court are bound by prior panel
decisions closely on point"); United States v. Wogan, 938 F.2d
1446, 1449 (1st Cir. 1991) (similar). Consequently, we reject the
defendant's sentencing challenge.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we uphold the defendant's conviction and sentence.
Affirmed.
5
Our holding in Woodward accords with the views of our sister
circuits. See United States v. Bacon, 646 F.3d 218, 220-21 (5th
Cir. 2011) (per curiam) (collecting cases from several circuits).
By the same token, it comports with the views of the Sentencing
Commission. See USSG §2G2.2, comment. (n.1) (explaining that "any
combination of two or more separate instances of the sexual abuse
or sexual exploitation of a minor" constitutes a pattern of abuse
(emphasis supplied)).
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