Appeal from the United States District Court for the Western District of Wisconsin. No. 07 CR 63-Barbara B. Crabb, Chief Judge.
The opinion of the court was delivered by: Williams, Circuit Judge
Before RIPPLE, WILLIAMS, and SYKES, Circuit Judges.
Gary Prideaux-Wentz was convicted of possessing child pornography based on evidence obtained during a search of his home. The search warrant was supported by an FBI agent's affidavit, which described sixty-nine images of child pornography/erotica uploaded by Prideaux-Wentz onto eight Yahoo! e-groups, and the affidavit also contained expert information regarding general characteristics of child pornography collectors. On appeal, Prideaux-Wentz argues that the search warrant failed to establish probable cause because there is no information specific to him in the affidavit but only boilerplate statements about child pornography collectors. Additionally, he contends that the information regarding the uploaded pictures was stale and therefore inadequate to establish probable cause for the search. We find that the evidence relied on in the warrant affidavit was stale, but we affirm the denial of the motion to suppress because the agent acted in good faith in relying on the search warrant.
On January 31, 2006, FBI Special Agent Steven Paulson obtained a federal search warrant for the New Glarius, Wisconsin residence of the defendant, Gary PrideauxWentz. In requesting the search warrant, Agent Paulson submitted a 40-page, 66-paragraph affidavit, which included complaints submitted to the Cyber Tip Line of the National Center for Missing and Exploited Children ("NCMEC") by Yahoo!, an Internet service provider ("ISP"), regarding pictures containing child pornography and erotica that were uploaded to eight Yahoo! e-groups. NCMEC is a national clearinghouse that gathers information about missing and exploited children for law enforcement use and receives information from various ISPs through the Cyber Tip Line.
In his affidavit, Agent Paulson explained that his investigation was based on complaints from NCMEC and his own records check. He included general information about child pornography, including the relevant statutes and definitions; background information about his eleven-year tenure with the FBI and his relevant training and experience apprehending child pornographers; and expert information regarding the habits of child pornographers. Agent Paulson also indicated that, as a result of his training and experience with the FBI, he knew that computers are used by individuals who exploit children-including collectors of child pornography-to correspond with other like-minded individuals through email, chat rooms, electronic bulletin boards, and Internet file transfers. He noted that evidence of an online storage account is often found on the home computer of a user subscribing to an Internet service.
Agent Paulson also discussed the structure of Yahoo! e-groups in his affidavit, explaining that some groups specialize in child pornography. He then described each Cyber Tip submitted to NCMEC regarding the Yahoo! ID "jackinpulpit2001" and the email address "email@example.com." The Yahoo! ID is a unique identifier of a user's account, and an ID, along with a password, is required in order to use Yahoo!'s services. Between August 15, 2003, and January 28, 2004, NCMEC received nineteen Cyber Tips that the user with the "jackinpulpit2001" ID uploaded sixty-nine images to different Yahoo! e-groups, pictures that Agent Paulson identified as both child pornography and child erotica. Agent Paulson included descriptions of each image in the affidavit and information provided by NCMEC Analyst Lisa Stenzel. Stenzel opined that ten of the nineteen Cyber Tips contained child pornography, while the other nine Cyber Tips constituted "erotica/nudism/BoyLove." Stenzel reported that one of the tips contained five images of previously identified child victims.
The affidavit also contained information regarding the account and subscriber information for "jackinpulpit2001," connecting the Yahoo! ID to Prideaux-Wentz. On September 4, 2003, a subpoena was served on Yahoo! and America Online ("AOL"), another ISP, requesting account subscriber information for "jackinpulpit2001." In response to this request, AOL provided the name "Gary Wentz" and an address in Belleville, Wisconsin. Agent Paulson later confirmed that "Gary Wentz" was the same individual as Gary Prideaux-Wentz, who had resided at the Belleville, Wisconsin address since 1991. Agent Paulson also determined that Prideaux-Wentz and Timothy J. Galbraith moved to New Glarus, Wisconsin in November 2004, and that both had email accounts and a computer at the new residence.
In the affidavit, there was also a description of a NCMEC Cyber Tip that Microsoft/MSN submitted on September 7, 2002, indicating that it had disabled an account because the account contained child pornography. The screen name of the user of the account was "Germo" and the account associated with the email address was "firstname.lastname@example.org." Agent Paulson was able to trace this account to Prideaux-Wentz.
Agent Paulson also provided information in the affidavit regarding "child pornography collector characteristics," which was based on his own experience along with expert opinions from other FBI agents in the field. Agent Paulson explained that "[c]hild pornography collectors almost always maintain and possess their material in the privacy and security of their homes or some other secure location where it is readily available." Furthermore, because the collection reveals the otherwise private sexual desires of the collector and represents his most cherished sexual fantasies, "the collector rarely, if ever, disposes of the collection." Agent Paulson noted that while collectors may refine their materials over time, the overall size of their collections tends to increase.
Based on this information, the magistrate judge issued a search warrant, which was executed at Prideaux-Wentz's residence in New Glarus on February 2, 2006. On April 19, 2007, Prideaux-Wentz was indicted for one count of possession of child pornography. He filed a motion to quash the search warrant and to suppress the evidence seized pursuant to the warrant, requested a hearing under Franks v. Delaware, 438 U.S. 154 (1978), and claimed that the good faith exception did not save the warrant. The magistrate judge recommended that the district court deny Prideaux-Wentz's motions, finding that there was ample probable cause to support the warrant and that the good faith doctrine applied if there was no probable cause.
Prideaux-Wentz filed timely objections to the magistrate judge's recommendation and raised one new argument based on a non-precedential order, United States v. Doan, 245 Fed. Appx. 550 (7th Cir. 2007) (unpublished order). The district court distinguished Doan, denied Prideaux-Wentz's motions in their entirety, and entered an order adopting the magistrate judge's Report and Recommendation.
On August 15, 2007, Prideaux-Wentz pled guilty to possessing child pornography in violation of 18 U.S.C. § 2252(a)(4), but he reserved the right to appeal the district court's denial of his motion to suppress. ...