     Case: 18-50102       Document: 00515180433        Page: 1    Date Filed: 10/30/2019




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit


                                    No. 18-50102                           FILED
                                  Summary Calendar                  October 30, 2019
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DAVID ALEJANDRO RAMOS, also known as David Ramos, also known as
David A. Ramos,

                                                 Defendant-Appellant


                     Appeal from the United States District Court
                          for the Western District of Texas
                               USDC No. 5:16-CR-816-1


Before STEWART, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
        David Alejandro Ramos entered a conditional plea of guilty to one count
of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2) and one
count       of   possessing   child   pornography      in   violation       of      18       U.S.C.
§ 2252A(a)(5)(B). He reserved the right to appeal the district court’s denial of
his motions to suppress and now brings this appeal.



        *Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 18-50102    Document: 00515180433     Page: 2   Date Filed: 10/30/2019


                                 No. 18-50102

      In February 2015, the Federal Bureau of Investigation (FBI) obtained a
warrant from a magistrate judge in the Eastern District of Virginia
authorizing it to deploy a network investigative technique (NIT or the NIT
warrant) on the computer server hosting a child pornography website known
as “Playpen,” which had been seized by the FBI and was located at a
government facility in the Eastern District of Virginia. The NIT attached
computer code to Playpen users when they logged onto the website, which
caused those users’ computers to transmit specific identifying information,
including the user’s Internet Protocol (IP) address, back to the FBI. Through
use of the NIT, law enforcement identified the IP address of a Playpen user
with the pseudonym “xm177e2” located in San Antonio, Texas. In October
2015, the FBI obtained a search warrant (the Texas warrant) for Ramos’s
residence from a magistrate judge in the Western District of Texas. Agents
seized Ramos’s computer during the search and a forensic exam revealed child
pornography on the computer. Ramos filed separate motions to suppress all
evidence obtained as a result of the NIT warrant and the Texas warrant. The
district court denied the motions.
      When a district court denies a motion to suppress, we review the court’s
factual findings for clear error and its conclusions of law de novo, viewing the
evidence “in the light most favorable to the prevailing party, here, the
Government.” United States v. Jarman, 847 F.3d 259, 264 (5th Cir. 2017)
(internal quotation marks and citation omitted); United States v. Froman, 355
F.3d 882, 888 (5th Cir. 2004). When reviewing a district court’s denial of a
defendant’s motion to suppress which challenges the sufficiency of a warrant,
this court engages in a two-step inquiry. Froman, 355 F.3d at 888. First, this
court determines whether the good-faith exception to the exclusionary rule
announced in United States v. Leon, 468 U.S. 897 (1984), applies. Id. If the
good faith exception does not apply, this court proceeds to the second step and

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                                 No. 18-50102

determines whether there was probable cause justifying issuance of the
warrant. Id.
      Ramos asserts that the district court erred in failing to suppress the
evidence that the Government seized pursuant to the NIT warrant that was
obtained to investigate users of the website called “Playpen,” and which was
the subject of a previous appeal before this court. See United States v. Ganzer,
922 F.3d 579 (5th Cir. 2019), cert. denied, 2019 WL 4923239 (Oct. 7, 2019). In
Ganzer, we rejected the same legal challenges to the NIT warrant that Ramos
raises before this court. See id. at 584-90. In line with our opinion in Ganzer,
we find that “the law enforcement officials involved in the issuance and
execution of the NIT warrant acted with an objectively reasonable good-faith
belief that their conduct was lawful.” Id. at 590 (internal quotation marks,
brackets, and citations omitted). Moreover, as in Ganzer, exclusion of the
evidence obtained through the NIT warrant would serve no deterrent benefit.
Id. As the good-faith exception applies herein, the district court did not err in
denying Ramos’s motion to suppress with respect to the NIT warrant. See
United States v. Contreras, 905 F.3d 853, 857 (5th Cir. 2018).
      Additionally, Ramos appeals the district court’s denial of his motion to
suppress evidence that was seized pursuant to the Texas warrant. He asserts
that the warrant lacked probable cause because the affidavit supporting the
warrant did not allege that he ever viewed, possessed, or received child
pornography or took any other affirmative action that would indicate child
pornography would be found in his possession. He asserts that evidence of him
merely logging into and browsing Playpen is insufficient to establish probable
cause linking his residence to child pornography. As the warrant was so
lacking in indicia of probable cause that reliance on the warrant was not
objectively reasonable, Ramos alleges that the good-faith exception cannot
apply. This argument is likewise without merit.

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                                  No. 18-50102

      If a search warrant is supported by more than a bare bones affidavit, the
officers executing the warrant may rely in good faith on the warrant, even if it
is subsequently invalidated. See United States v. Robinson, 741 F.3d 588, 597-
98 (5th Cir. 2014).    A bare bones affidavit is one that contains “wholly
conclusory statements, which lack the facts and circumstances from which a
magistrate can independently determine probable cause.”             Id. (internal
quotation marks and citation omitted).        Probable cause “requires only a
probability or substantial chance of criminal activity, not an actual showing of
such activity.” District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018)
(internal quotation marks and citation omitted). Thus, an affidavit supporting
a search warrant for child pornography does not need to “contain specific,
individualized information that a defendant possesses child pornography.”
United States v. Flanders, 468 F.3d 269, 271 n.3 (5th Cir. 2006). Rather, the
district court “must make a practical, common-sense decision as to whether,
given all the circumstances set forth in the affidavit . . . there is a fair
probability that contraband or evidence of a crime will be found in a particular
place.”   Froman, 355 F.3d at 889 (internal quotation marks and citation
omitted).
      The Texas affidavit established that Playpen was a website dedicated to
child pornography that could only be accessed through the “Tor” network. The
affidavit further established that user “xm177e2” registered an account on
Playpen from the IP address assigned to the Ramos residence on February 6,
2015, logged onto the website for over two hours between February 6 and
February 28, 2015, and accessed two posts containing links to images of child
pornography during this visit.     Thus, the affidavit was not a bare bones
affidavit because it set forth specific facts that allowed the magistrate judge to
determine there was a fair probability that contraband or evidence of a crime—
specifically, child pornography—would be found on computers or storage media

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                                 No. 18-50102

in the Ramos residence. See Flanders, 468 F.3d at 271; see also Froman, 355
F.3d 890–91. As the search warrant was supported by more than a bare bones
affidavit, Ramos’s arguments that the good-faith exception does not apply or
that law enforcement could not reasonably rely on the search warrant are
unavailing. See Jarman, 847 F.3d at 264; see also Leon, 468 U.S. at 922. Thus,
the district court did not err by denying Ramos’s motion to suppress with
respect to the Texas warrant.
      Accordingly, the district court’s denial of Ramos’s motions to suppress is
AFFIRMED.




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