                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                        March 18, 2016
                         _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                        No. 15-1005
                                                (D.C. No. 1:12-CR-00444-LTB-1)
GREGORY LYNN HOPSON,                                        (D. Colo.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, LUCERO, and McHUGH, Circuit Judges.
                  _________________________________

      Gregory Hopson appeals the district court’s denial of his motion to suppress.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                          I

      Following an investigation into the distribution of child pornography, Special

Agent Melissa Coffey applied for a search warrant for an address in Westminster,

Colorado. Coffey attested to the following information in an affidavit submitted in

support of the warrant application.

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      As part of a separate investigation, a special agent in Virginia identified

several email addresses that had sent or received images of child pornography. One

such account, a Yahoo address referred to in the briefing as the “anniegirl” account,

exchanged emails including child pornography in February and March of 2010. In

response to a subpoena, Yahoo provided law enforcement with IP address

information1 showing that the anniegirl account was logged into on a regular basis

from January 2010 to March 11, 2010. The account was deleted in March 2010 and

recreated in January 2011.

      Paragraph 60 of the affidavit states that “two IP addresses were used for two

different emails” sent on March 2 and March 11, 2010. The following paragraph

states that someone logged into the anniegirl account on March 2 and March 11,

2010, using the same two IP addresses, and that the IP addresses were owned by

Qwest Communications (the internet service provider). A subpoena was issued to

Qwest, which responded that the IP addresses at the relevant times and dates were

assigned to a subscriber named “Greg Hopsin” at the Westminster address for which

Coffey sought the warrant.

      A subsequent law enforcement database search identified Hopson as a

registered sex offender who pled guilty to sexual assault on a child while in a


      1
        “An IP address is a unique number identifying the location of an end[-]user’s
computer. When an end-user logs onto an internet service provider, they are assigned
a unique IP number that will be used for that entire session. Only one computer can
use a particular IP address at any specific date and time.” United States v.
Henderson, 595 F.3d 1198, 1199 n.1 (10th Cir. 2010) (quotation and alterations
omitted).
                                          -2-
position of trust in February 2000. His probation officer indicated that Hopson was

permitted to visit his “girlfriend or wife” at the Westminster address as long as their

five-year old daughter was not present during the visit. Agents conducting

surveillance subsequently observed a man who appeared to be Hopson enter the

residence, followed several hours later by an adult woman and a young girl.

      The body of the affidavit concludes with an incomplete sentence in paragraph

78(G): “Based on the texts of the emails reviewed, the fact that Hopson is a

registered sex offender for sex assault on a child, based on his self-proclaimed

intimate knowledge with many images of child pornography, including knowledge

about which images were ‘original’ and ‘private,’ there [. . . .]”

      Finding probable cause, a magistrate judge issued the search warrant. The

ensuing search revealed a computer and several CDs containing child pornography.

Hopson was charged with production, transportation, receipt, and possession of child

pornography. He unsuccessfully moved to suppress the evidence seized from the

Westminster home. Hopson then pled guilty to two counts of transportation of child

pornography and one count of possession, preserving his right to appeal the

suppression ruling. The district court sentenced him to 420 months’ imprisonment.

He now appeals the denial of his motion to suppress.2



      2
        This appeal could be considered untimely. Hopson filed a notice of appeal
sixteen days after the district court entered its original judgment, but two days after it
entered an amended judgment. See Fed. R. App. P. 4(b)(1)(A)(i) (establishing a
fourteen-day deadline). The government does not seek dismissal; it asks this court to
proceed on the merits. See United States v. Randall, 666 F.3d 1238, 1241 (10th Cir.
                                           -3-
                                             II

       In reviewing a district court’s denial of a motion to suppress, we “view[] the

evidence in the light most favorable to the government and uphold[] the district

court’s factual findings unless clearly erroneous.” United States v. Mullikin, 758

F.3d 1209, 1210 (10th Cir. 2014) (quotations omitted). We review “de novo the

district court’s legal determinations relating to the sufficiency of a search warrant.”

Id. (quotation omitted). “An affidavit establishes probable cause for a search warrant

if the totality of the information it contains establishes the fair probability that

contraband or evidence of a crime will be found in a particular place.” United States

v. Soderstrand, 412 F.3d 1146, 1152 (10th Cir. 2005) (quotation omitted).

       If “a false statement knowingly and intentionally, or with reckless disregard

for the truth, was included by the affiant in the warrant affidavit, and if the allegedly

false statement is necessary to the finding of probable cause,” a search warrant “must

be voided and the fruits of the search excluded.” Franks v. Delaware, 438 U.S. 154,

155 (1978). “The standards of deliberate falsehood and reckless disregard set forth in

Franks apply to material omissions, as well as affirmative falsehoods.” United States

v. McKissick, 204 F.3d 1282, 1297 (10th Cir. 2000). To determine materiality, we

assess whether probable cause would exist if omitted facts were included and

misstatements were removed from the affidavit. United States v. Herrera, 782 F.3d

571, 575 (10th Cir. 2015).

2011) (“[A] timely appeal in a criminal case is not jurisdictional . . . .”). We
accordingly proceed to the merits regardless of timeliness.

                                            -4-
      Hopson argues that the affidavit contained two false statements and made one

omission. First, he notes that paragraph 60 incorrectly states that emails were sent

from IP addresses associated with the Westminster address. The government

concedes that this statement is erroneous. The information Yahoo provided

establishes only that IP addresses associated with the Westminster residence were

used to log into the anniegirl account—as correctly stated in paragraph 61 of the

affidavit—but does not establish that any particular email was sent from those IP

addresses. Second, Hopson argues that paragraph 78(G), which contains an

incomplete sentence, similarly implies that particular emails were traced to the

Westminster IP addresses. Third, Hopson contends that the affidavit improperly

omits information about other IP addresses associated with the anniegirl account. He

notes that a Yahoo login file showed hundreds of logins to the anniegirl account

resolving to locations other than the Westminster residence and that the IP addresses

for the March 2 and March 11, 2010 emails resolved to a company in Virginia.3 We

agree with the district court that even if we discount the erroneous statements in

paragraphs 60 and 78(G), and include information about other IP addresses

associated with the anniegirl account, the facts contained in a hypothetical corrected

affidavit are sufficient to establish probable cause. See id. (a “contested




      3
        Hopson claims that the IP addresses are associated with a user in Sterling,
Virginia. However, the record demonstrates that they resolve to a company located
in Virginia named Sterling Security Research, Inc. The government maintains that
this company helps people engage in anonymous internet activities.
                                           -5-
misstatement or omission can be dismissed as immaterial” if “a warrant would have

issued in a but-for world where the attesting officer faithfully represented the facts”).

      Ignoring paragraphs 60 and 78(G), the affidavit nevertheless establishes that

someone sent child pornography from the anniegirl account in February and March

2010, including three images sent on March 2, and that someone logged into the

anniegirl account from IP addresses associated with the Westminster residence on

March 2 and 11. These undisputed facts established that there was a “fair

probability” that criminal evidence would be found at the Westminster residence.

Soderstrand, 412 F.3d at 1152. Further, that fair probability would not be

undermined by the additional information Hopson complains was omitted. The

complete Yahoo login file would have shown that the vast majority of logins to the

anniegirl account were not associated with the Westminster address, and in particular

that a user logged into the account from Virginia three minutes after a user logged in

from Westminster. But as the district court recognized, this disparity could result

from the use of a proxy server, see United States v. Vosburgh, 602 F.3d 512, 527

n.14 (3d Cir. 2010) (proxy software allows individuals to mask their IP addresses),

and thus would not counteract probable cause to search the Westminster property.4



      4
        The affidavit also omitted information that the registered user of the anniegirl
account was a Philippine resident. However, that registered user did not log in until
January 2011, when the anniegirl account was reopened eleven months after it had
been deleted in March 2010. As the affidavit explained, this sequence of events may
indicate that a different person used the same email identifier. The Philippine logins
are thus immaterial.

                                           -6-
Accordingly, we conclude that the district court properly denied Hopson’s motion to

suppress.5

      In addition to challenging the affidavit’s accuracy, Hopson argues that the

district court should not have found that his guilty plea in 2000 to sexual assault on a

child while in a position of trust supported probable cause. He cites United States v.

Falso, 544 F.3d 110 (2d Cir. 2008), in which the court held that an eighteen-year-old

conviction for endangering the welfare of a child was at best marginally relevant in a

warrant application seeking evidence of child pornography. Id. at 122-23. He also

invokes Virgin Islands v. John, 654 F.3d 412 (3d Cir. 2011), in which the court held

that evidence showing the defendant had sexually assaulted a child did not establish

probable cause to search for child pornography. Id. at 418-19. But in those cases,

the only evidence supporting probable cause for child pornography was evidence of

prior child molestation. See Falso, 544 F.3d at 121 (rejecting information in the

affidavit other than prior conviction before holding the conviction was also

insufficient); John, 654 F.3d at 419 (affidavit contained “not a single assertion that

[defendant] was in any way associated with child pornography”). In contrast, as

      5
         Hopson argues the district court erred in denying his request for a Franks
hearing. 438 U.S. 155-156 (hearing required if defendant makes substantial showing
that a material false statement was included in the warrant affidavit). This court has
not decided the standard of review for the denial of a Franks hearing. See United
States v. Cooper, 654 F.3d 1104, 1128 (10th Cir. 2011) (noting that other circuits use
either the clear error or de novo standard). Regardless of the proper standard of
review, we conclude that Hopson was not entitled to a hearing because he failed to
make a “substantial showing that . . . the affidavit, purged of its falsities, would not
be sufficient to support a finding of probable cause.” United States v. Kennedy, 131
F.3d 1371, 1376 (10th Cir. 1997).

                                           -7-
discussed above, Coffey’s affidavit contains evidence demonstrating a fair

probability that evidence of child pornography would be found at the Westminster

residence. Against this backdrop, the district court properly considered Hopson’s

prior conviction as part of the totality of the circumstances. See United States v.

Artez, 389 F.3d 1106, 1114 (10th Cir. 2004) (prior convictions, combined with other

factors, can help to establish probable cause).6

                                           III

      For the foregoing reasons, we AFFIRM.


                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge

      6
         Hopson advances a number of arguments that merit only brief discussion. He
contends that paragraphs 60 and 61 are facially irreconcilable. We disagree. The
paragraphs together state that the logins alleged in paragraph 61 and the emails
alleged in paragraph 60 occurred on the same days. These facts are not
irreconcilable.
        He also argues that even if the corrected affidavit provided probable cause, he
should prevail because the incorrect and omitted statements in the affidavit manifest
a reckless disregard for the truth. Because the misstatements and omissions did not
vitiate probable cause, the district court properly denied Hopson’s motion to
suppress. See Franks, 438 U.S. at 155.
        Lastly, Hopson contends the affidavit failed to establish the interstate
commerce nexus required by 18 U.S.C. §§ 2252, 2252A. This argument is waived.
Hopson did not raise the issue in the suppression hearing—an omission for which he
does not assert cause. See United States v. Banks, 451 F.3d 721, 727-28 (10th Cir.
2006). Hopson contests waiver on the ground that the interstate commerce nexus is
jurisdictional. However, an interstate commerce element “is not jurisdictional in the
sense that it affects a court’s subject matter jurisdiction,” United States v. Tush, 287
F.3d 1294, 1297 (10th Cir. 2002).


                                           -8-
