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United States v. Lowe

February 15, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JODY W. LOWE, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Western District of Wisconsin. No. 06-CR-122-C-Barbara B. Crabb, Chief Judge.

The opinion of the court was delivered by: Flaum, Circuit Judge.

ARGUED OCTOBER 24, 2007

Before FLAUM, MANION, WILLIAMS, Circuit Judges.

Jody Lowe pled guilty to distributing images of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2) while reserving the right to challenge the lawfulness of the search warrant that led to his arrest. Lowe argues that the affidavit in support of the search warrant contained material false statements, and that probable cause to issue the warrant did not exist. The district court denied his motion to quash the search warrant and suppress the evidence seized during the execution of the warrant, and we affirm.

Background

Tim Schultz, a special agent with the Wisconsin Department of Justice, specializes in internet crimes against children. In January 2006, Schultz received information from Detective Dale Williams of the Seattle, Washington Police Department regarding Jody Lowe. This information related to images of child pornography exchanged between an individual in Washington and Lowe. Soon thereafter, on January 26, 2006, Schultz received a package of information from Williams detailing the investigation. He also researched Wisconsin Department of Transportation records to learn that Lowe resided with his wife and children at 654 Park Ridge Drive in Eau Claire, Wisconsin. Schultz conducted surveillance of the premises and observed the home, a van registered to the Lowes, a motor home, and a semi-tractor.

Paul Becker, an investigator in the Eau Claire Police Department's Juvenile Crimes Division, was assigned to assist Schultz's investigation. Schultz provided Becker with the packet of information that he had received from Williams in Seattle. On February 2, 2006, the two officers met with Eau Claire County Assistant District Attorney Emily Long and presented her with a draft of an affidavit for a search warrant that Schultz had prepared. They submitted the affidavit so that the District Attorney's Office could convert it to the office's format for search warrant applications. At the meeting, Schultz and Becker discussed their investigation with Long and indicated that they wished to search Lowe's residence. Between February 2 and February 7, the two officers together conducted surveillance of Lowe's residence in preparation for the execution of the search warrant. There was an element of deja vu here for Becker, because he had already been to Lowe's residence and spoke with him in 2002 regarding an investigation into allegations that he might possess child pornography.

Long edited the affidavit to comply with office formatting, but at the last minute, because Schultz was not able to sign the document that day, Becker was substituted as the affiant. Becker did not play a role in revising the affidavit and relied on Long to draft it correctly. Becker read the affidavit before swearing to it before an Eau Claire County Circuit judge on February 7, 2006. The next day, Becker recognized that the face sheet of the warrant did not include all of the places to be searched,*fn1 so the detectives acquired a new face sheet. Becker read the new warrant, did not notice any mistakes, and swore it out before a different Eau Claire Circuit Court judge. Schultz also read both affidavits and did not notice any mistakes.

Unfortunately, the affidavit was sloppily edited, and contained a number of attribution errors. The last minute switch from Schultz to Becker as the affiant required a little more effort than simply using the "find and replace" function on a word processor. In particular, there were four errors. First, the affidavit stated that Becker conducted the surveillance of Lowe's residence on January 26th when it was in fact Schultz. Nevertheless, we know that Becker did accompany Schultz on a subsequent surveillance operation soon thereafter. Second, the affidavit indicated that Becker received information from Williams in Seattle when in reality Schultz was the true recipient. However, it is true that Schultz did then forward this packet of information on to Becker. Third, the affidavit suggested that Becker, not Schultz, had personally researched the Wisconsin Department of Transportation records to determine where Lowe lived. Fourth, the "summary of experience and training" section of the affidavit referred to Schultz's experience and training, though Becker's background is in fact substantially similar. Thus while these errors erroneously attributed knowledge and acts to Becker, in each instance, what was true for Schultz was ultimately, in some way, also true for Becker.

The search warrant based on this affidavit was executed on February 8, 2006. Police uncovered deleted images of child pornography on one computer and three CDs containing 1,397 images of children being sexually exploited. Lowe waived his Miranda rights and admitted that he had received all of the sexually explicit images attached to various e-mails. In addition, Lowe was not surprised when investigators located approximately 6,500 images of child pornography and/or child erotica on his computer.

On May 31, 2006, the grand jury indicted him with two counts, alleging that he distributed images of children engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a), and that he possessed a CD containing images of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B). Lowe filed a motion to suppress under Franks v. Delaware, 438 U.S. 154 (1978), where he argued that Becker made several material false statements with reckless disregard for the truth in his affidavit, and that the warrant failed to establish probable cause. Lowe subsequently pled guilty to one count, conditional on his right to challenge the lawfulness of the search warrant. Magistrate Judge Stephen L. Crocker issued a report recommending denial of Lowe's motion, which the district court adopted in its order on November 30, 2006. On that day, Lowe was sentenced to 144 months in prison to be followed by twenty years of supervised release.

Discussion

On appeal, Lowe raises the same issues that he presented below regarding the lawfulness of the search warrant. First, he argues that Becker exhibited reckless disregard for the truth when he swore to the truth of the affidavit. Second, he contends that the district court erred in determining that the search warrant affidavit ...


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