                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-2111
                                   ___________

United States of America,               *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Southern District of Iowa.
Kerwin Lamont Summage,                  *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: October 16, 2006
                                Filed: April 10, 2007
                                 ___________

Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
                           ___________

WOLLMAN, Circuit Judge.

     The government appeals from the district court’s order granting the defendant’s
motion to suppress evidence seized during the search of his home. We reverse and
remand.

                                         I.

      In July 2004, an alleged victim (whom we shall refer to as Doe), along with his
mother and sister, went to the police station in Davenport, Iowa, to report what they
believed to be a crime involving Doe, an unidentified female, and Kerwin Summage,
Doe’s cousin. There, they spoke with Detective Brandon Noonan. The sister
explained to Noonan that Doe was a low-functioning, mentally retarded individual
who worked at a handicap development center and feared Summage. Doe then
recounted to Noonan an incident that had reportedly occurred sometime after his
birthday. According to Doe, he and Summage were supposed to go can-collecting on
the day of the incident. Instead, Summage took Doe to his apartment. There,
Summage offered Doe compensation if he would have sex with a woman that was
waiting naked in Summage’s bedroom. The woman undressed Doe, had him lie down
on the bed, and then performed oral sex on him while Summage videotaped and took
photographs of the encounter.

       After further investigation, Noonan learned that Summage had subsequently
moved to a different residence. Noonan prepared an application for a warrant to
search Summage’s new residence and submitted it to an Iowa district court judge.
Included in the application was an affidavit, prepared and sworn to by Noonan, which
stated:


      Kerwin Summage, the renter of the apartment at 1825 W 40th St # 7 did
      make video recordings of a mentally handicapped male having sex with
      a female. Summage offered the victim money to have sex with this
      unknown female. Summage picked up the victim at his residence. He
      then took the victim to the residence he was staying at on 13th St, at the
      time of the incident. Summage did this with the intent to have the victim
      have a sexual encounter with a female so he could video tape it. Since
      the incident has happened Summage has been kicked out of the residence
      he was staying at on 13th St and is currently living at the address on W
      40th St. Detectives were able to confirm that Kerwin is renting this
      apartment through the utility company and relitives (sic)[.]

      When Kerwin and the victim arrived at his apartment, he offered the
      victim who has a mental handicap money to have sex with a female. The
      female was in his bedroom, naked, waiting for Kerwin and the victim to
      arrive. The female then undressed the victim and performed oral sex
      upon the victim as Summage video taped the encounter. The victim also

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      reports that Summage has taken photographs of the (sic) him. It is
      believed that Summage is currently in possession of these items.

        After asking Noonan for Doe’s age, the district judge wrote on the affidavit,
“The alleged victim is in his mid to late 20's.” The district judge then approved the
application and issued a search warrant for Summage’s residence. The warrant
listed the following as items to be seized:

      1. Indicia of occupancy, residency, rental and/or ownership of the
      premises described herein, including, but not limited to, utility and
      telephone bills, canceled envelopes, rental, purchase or lease agreements,
      and keys.
      2. All video tapes and DVD's (sic)
      3. pronographic (sic) pictures
      4. All video and/or digital recording devices and equipment
      5. All equipment that is used to develope (sic) and/or upload/download
      photographs and/or movies
      6. computer(s)


       Noonan executed the warrant the following day. During the search of
Summage’s residence, the police found and seized at least two recordings containing
child pornography. Summage was subsequently indicted for the offenses of producing
child pornography and possessing child pornography.


       Summage moved to suppress the evidence found during the search of his home,
arguing that the affidavit failed to establish probable cause, that the warrant lacked
particularity, and that the good faith exception to the exclusionary rule did not apply.
The district court granted the motion, concluding that the affidavit did not establish
probable cause because it consisted of conclusory statements, failed to adequately
state a crime, contained no time frame for the alleged criminal activity, and failed to
show the requisite nexus between the alleged criminal activity and the place to be


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searched. Further, the court found that the warrant lacked sufficient particularity and
concluded that the good faith exception to the exclusionary rule did not apply.

                                          II.

      “When reviewing a district court’s grant of a motion to suppress, we review its
factual findings for clear error and its application of law de novo.” United States v.
Andrews, 454 F.3d 919, 921 (8th Cir. 2006).

                                 A. Probable Cause

       To be valid under the Fourth Amendment, a search warrant must be supported
by a showing of probable cause. United States v. Underwood, 364 F.3d 956, 963 (8th
Cir. 2004). “Probable cause exists, if under the totality of the circumstances, a
showing of facts can be made ‘sufficient to create a fair probability that evidence of
a crime will be found in the place to be searched.’” Id. (quoting United States v.
Gabrio, 295 F.3d 880, 883 (8th Cir. 2002)).

      As noted by the district court, the affidavit is conclusory in nature. The only
indication of a source for any of the information appears towards the end of the
affidavit, where Noonan states “The victim also reports that Summage had taken
photographs of . . . him.”

       Conclusory statements made by affiants fail to give the issuing magistrate a
substantial basis for determining that probable cause exists. United States v. Caswell,
436 F.3d 894, 897-98 (8th Cir. 2006). It is the magistrate, and not the affiant, that is
responsible for making this determination. Illinois v. Gates, 462 U.S. 213, 239
(1983). “Sufficient information must be presented to the magistrate to allow that
official to determine probable cause; his action cannot be a mere ratification of the
bare conclusions of others.” Id. The question, then, is whether Noonan’s statement

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“The victim also reports that Summage had taken photographs of . . . him” lends itself
to a fair inference that the victim was also the source of the earlier set-forth account
of what had occurred on the day in question. We conclude that it does, for any other
reading would render the words “also reports” superfluous.

       The district court also found the affidavit deficient in its failure to set forth the
date of the alleged incident.1 The date of the occurrence of the facts relied upon in an
affidavit is of importance in the determination of probable cause because untimely
information may be deemed stale. See, e.g., United States v. Gettel, 474 F.3d 1081,
1086 (8th Cir. 2007); United States v. LaMorie, 100 F.3d 547, 554 (8th Cir. 1996)
(“Probable cause must exist when a warrant is issued, not merely at some earlier
time.”). “There is no bright-line test for determining when information is stale. . . .
Time factors must be examined in the context of a specific case and the nature of the
crime under investigation.” United States v. Koelling, 992 F.2d 817, 822 (8th Cir.
1993). Here, as was true in Koelling, we conclude that it could be presumed that
Summage would maintain in his possession the video and photographs that he made
of the sexual encounter between Doe and the waiting woman. Thus, the affidavit’s
failure to include the date of that encounter is not fatal to a determination that probable
cause existed for a search of Summage’s new residence.

       We turn next to the question of the nexus between the evidence to be searched
for and the place to be searched. See United States v. Tellez, 217 F.3d 547, 550 (8th
Cir. 2000) (“[T]here must be evidence of a nexus between the contraband and the
place to be searched before a warrant may properly issue . . . .”). For the same reason
set forth above regarding the timeliness of the information, we conclude that the
district court erred in finding the lack of such nexus. Judges “may draw reasonable
inferences from the totality of the circumstances in determining whether probable

       1
       While the issuing judge apparently asked Noonan about the timing of the
events contained in the affidavit, Noonan’s answers are not documented within the
affidavit.

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cause exists to issue a warrant . . . .” United States v. Thompson, 210 F.3d 855, 860
(8th Cir. 2000). Given the circumstances here, we think it would be reasonable to
infer that Summage would have the video and photographs at his new residence.

       The district court faulted the affidavit for its lack of specificity in describing the
offense giving rise to the request for the warrant. We disagree. It is not necessary for
an affidavit to include the name of the specific crime alleged. United States v.
Koyomejian, 970 F.2d 536, 548 (9th Cir. 1992) (Kozinski, J., concurring); 2 WAYNE
R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 3.1,
at 9 n.28 (4th ed. 2004) (“It need not be certain precisely what crime was
committed.”). Rather, “‘only a probability of criminal conduct need be shown.’”
United States v. Koonce, 485 F.2d 374, 380 (8th Cir. 1973) (quoting McCreary v.
Sigler, 406 F.2d 1264, 1268 (8th Cir. 1969)); Gates, 462 U.S. at 235 (“[I]t is clear that
‘only the probability, and not a prima facie showing, of criminal activity is the
standard of probable cause.’” (quoting Spinelli v. United States, 393 U.S. 410, 419
(1969))). Although the affidavit did not specifically name the crime that had been
committed, the alleged facts support a finding of probable cause to believe that
Summage's actions constituted criminal conduct – specifically the solicitation of
prostitution2 or pandering3 – given the fact that Summage had offered money in
exchange for Doe’s services in a sex act.

       2
        Iowa’s solicitation statute, in relevant part, provides: “Any person who
commands, entreats, or otherwise attempts to persuade another to commit a particular
felony or aggravated misdemeanor . . . solicits such other to commit that felony or
aggravated misdemeanor.” IOWA CODE § 705.1 (2003). Iowa’s prostitution statute
provides: “A person who sells or offers for sale the person’s services as a partner in
a sex act, or who purchases or offers to purchase such services, commits an aggravated
misdemeanor.” IOWA CODE § 725.1 (2003).
       3
         Iowa’s pandering statute, in relevant part, provides: “A person who persuades,
arranges, coerces, or otherwise causes another, not a minor, to become a prostitute .
. . or keeps or maintains any premises for the purposes of prostitution . . . commits a
class ‘D’ felony.” IOWA CODE § 725.3(1) (2003).

                                            -6-
                                   B. Particularity

      We turn, then, to the district court’s finding that the warrant was over-broad and
lacking in particularity.

       “To satisfy the particularity requirement of the fourth amendment, the warrant
must be sufficiently definite to enable the searching officers to identify the property
authorized to be seized.” United States v. Horn, 187 F.3d 781, 788 (8th Cir. 1999).
 “The degree of specificity required will depend on the circumstances of the case and
on the type of items involved.” Id. The particularity requirement “is a standard of
‘practical accuracy’ rather than a hypertechnical one.” United States v. Peters, 92
F.3d 768, 769-70 (8th Cir. 1996).

      As set forth above, the warrant authorized the search and seizure of all video
tapes and DVDs, pornographic pictures, video and digital recording devices and
equipment, all equipment that is used to develop, upload, or download photographs
and movies, computers, and any indicia of occupancy. At the time the warrant was
applied for, the officers knew only that a video and photographs of the alleged
incident supposedly existed, not the particular format in which these items were being
kept.

       The requirement of particularity must be assessed in terms of practicality. As
a practical matter, it is frequently difficult, and often times more intrusive to an
individual’s privacy, to perform an on-site review of certain items. United States v.
Hill, 459 F.3d 966, 974-75 (9th Cir. 2006) (recognizing that an on-site search of a
computer “could take many hours and perhaps days” and “would not only impose a
significant and unjustified burden on police resources, it would also make the search
more intrusive”); United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999) (“As a
practical matter, the seizure and subsequent off-premises search of the computer and

                                          -7-
all available disks was about the narrowest definable search and seizure reasonably
likely to obtain the images.”); Horn, 187 F.3d at 788 (concluding that the officers
could not practically view all the videos at the search site). An off-site analysis of the
relevant materials is therefore often necessary.

       Because no indication was given regarding the nature of the format in which the
sought-for video and photographs were created or stored, it was necessary to search
a broad array of items for the relevant materials, the on-site search of which could take
a significant amount of time. Given these circumstances and the practical concerns
associated therewith, we conclude that the warrant was neither over-broad nor lacking
in particularity.

       In light of our holding that the warrant established probable cause and was not
lacking in specificity or particularity, we need not address the government’s
alternative argument that the good faith exception established in United States v.
Leon, 468 U.S. 897 (1984), validated the search.

                                      Conclusion

       The order suppressing the evidence is reversed, and the case is remanded to the
district court for further proceedings.
                         ______________________________




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