                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 12a0440n.06
                                                                                    FILED
                                        No. 10-1666                             Apr 25, 2012
                        UNITED STATES COURT OF APPEALS                    LEONARD GREEN, Clerk
                             FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                     )
                                              )
       Plaintiff-Appellee,                    )
                                              )
v.                                            )   ON APPEAL FROM THE UNITED
                                              )   STATES DISTRICT COURT FOR THE
THOMAS GUSTAV WESTERLUND,                     )   WESTERN DISTRICT OF MICHIGAN
                                              )
       Defendant-Appellant.                   )




       Before: DAUGHTREY, COLE, and ROGERS, Circuit Judges.


       MARTHA CRAIG DAUGHTREY, Circuit Judge. Pursuant to an agreement with the

government, defendant Thomas Westerlund pleaded guilty to two counts of sexual

exploitation of a child under 18 U.S.C. § 2251(a), one count of possession of images of

minors engaged in sexually explicit conduct under 18 U.S.C. § 2252(a)(4)(B), and one

count of possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B), but expressly

reserved the right to appeal the district court’s denial of his motion to suppress the

evidence that led to his arrest and conviction. The defendant argues on appeal, as he did

in the district court, that the initial search warrant executed by police was not supported by

probable cause, that evidence obtained during the execution of that warrant was illegally

seized, and that his subsequent statements to police and evidence seized pursuant to two
No. 10-1666
United States v. Westerlund

related search warrants were subject to suppression as “fruit of the poisonous tree.” We

find no error in the district court’s denial of suppression and affirm.


       The charges in this case resulted from a complaint to the Zeeland (Michigan) police

department by the parents of a 15-year-old boy, B.J., who had come home intoxicated on

March 25, 2009, and reported that he had obtained liquor from Westerlund that evening.

The police interviewed B.J.’s girlfriend, J.P., who had also come home intoxicated. She

claimed that Westerlund drove to a particular liquor store and purchased Canadian House

whiskey and Coca Cola. Security cameras and a store receipt corroborated her story.


       The next day, March 26, Chief of Police William Olney prepared an affidavit that

included this information and other relevant facts uncovered by the department’s

investigation. Thus, the affidavit recited that B.J.’s parents knew that B.J. had been

“hanging out with” Westerlund and had learned that Westerlund provided alcohol to their

sons, B.J. and W.J. W.J., the older of the two brothers, said that he had been to

Westerlund’s house in the past and that Westerlund had provided him with alcohol,

cigarettes, and marijuana while he was there. He also said that “a camera had been used

at some of their parties and pictures had been taken but he thinks most of them were

deleted.” W.J. also indicated that his friend, N.W., had engaged in a sexual relationship

with Westerlund and that W.J. had witnessed them engaging in mutual sexual touching.

N.W.’s mother reported that she was concerned about the relationship her son had

developed with Westerlund and had heard that he was molesting N.W., as well as


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providing him with liquor and drugs. The affidavit also reflected that in 2002, the Holland

Police Department had prepared a report in response to a complaint that Westerlund

possessed images of naked children on a compact disc that he had opened on his

computer at his place of employment in front of his supervisor.


       Olney’s affidavit was submitted to a magistrate to support an application to search

Westerlund’s house, his vehicle, and his place of employment for “evidence relating to

alcohol, marijuana, and devices used to photograph, record, and store images of minors

without clothes or using alcohol or controlled substances.” United States v. Westerlund,

No. 1:09-CR-154, 2009 WL 3711555, at *1 (W.D. Mich. Nov. 4, 2009). During the ensuing

search, officers found marijuana plants, bottles of Canadian House whiskey, computers,

electronic storage devices, and photographs of unclothed minors and of minors consuming

alcohol. After the search, Westerlund made statements to the police, including admissions

that he had supplied young boys with alcohol at his home, that he had looked at images

of unclothed boys on his computer, and that he had been undressed in the presence of the

boys. Based upon the evidence obtained at his home and these statements, the police

obtained a second warrant to search Westerlund’s computer and electronic storage

devices, and a third warrant to search Westerlund’s sailboat. What they discovered in the

ensuing searches, coupled with the items seized in the initial search, led to the four-count

indictment against Westerlund.




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United States v. Westerlund

       In response to the charges, Westerlund filed a motion to suppress challenging the

constitutional validity of the first search warrant for lack of probable cause. He also sought

to suppress his statements to the police and evidence obtained pursuant to the two

subsequent warrants as fruits of the initial illegal search. The district court determined that

the affidavit submitted by Olney did not establish probable cause to search Westerlund’s

residence for evidence of child pornography. Citing United States v. Hodson, 543 F.3d

286, 290-92 (6th Cir. 2008), the district court held that the evidence of child molestation in

the affidavit was insufficient to establish probable cause to believe that Westerlund

possessed child pornography. Westerlund, 2009 WL 3711555, at *3. Thus, the only

evidence that Westerlund possessed photographs of naked minors was the 2002

complaint by Westerlund’s former employer, which the district court found stale and,

therefore, insufficient to support probable cause to search for pornography. Id., at *4. In

reviewing the remaining information in the affidavit, the court then determined that the

police nevertheless had probable cause to search for evidence of providing intoxicants to

minors. Id.


       In addition, the district court determined that the scope of the search reasonably

extended to the seizure of cameras at Westerlund’s residence, based on information

supplied by W.J. The district judge observed that because photographs are often kept or

preserved and can be retrieved through computer forensics if deleted, there was a fair

probability that photographic evidence of Westerlund’s provision of intoxicants to minors

would be found at the residence. Id. at *4; see also United States v. Frechette, 583 F.3d

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United States v. Westerlund

374, 379 (6th Cir. 2009) (“[D]igital images . . . can be easily duplicated and kept indefinitely

even if they are sold or traded. In short, [they] can have an infinite life span.”).


       Moreover, the district court recognized that the best evidence of providing alcohol

to minors would be photographic documentation, because Westerlund’s otherwise legal

possession of alcohol alone would be insufficient to prove an offense with respect to the

minors who had been in his house. Hence, because W.J.’s statements provided a

“substantial basis” to believe that relevant photographs would be found at Westerlund’s

residence, the district court properly held that the police officers were entitled to examine

photographs found throughout the house in the course of their search. See United States

v. Johnson, 351 F.3d 254, 258 (6th Cir. 2003) (noting that the standard of review for

sufficiency of an affidavit is whether a “magistrate had a substantial basis for finding that

the affidavit established probable cause to believe that the evidence would be found at the

place cited”) (citing United States v. Greene, 250 F.3d 471, 478 (6th Cir. 2001)). The

district court was also correct in ruling that the police were justified in seizing photographs

that they came across in the course of their search that were immediately recognizable as

evidence of crimes related to child pornography, under the “plain view” exception to the

warrant requirement. See United States v. Blakeney, 942 F.2d 1001, 1028 (6th Cir. 1991)

(holding that police may seize evidence without a warrant if the officer is lawfully on the

premises, the discovery is inadvertent, and the incriminating nature of the evidence is

immediately apparent).



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United States v. Westerlund

       Having determined that the search itself was not illegal, the district judge properly

concluded that Westerlund’s subsequent statements and the evidence obtained from the

later searches were not subject to suppression under the “fruit of the poisonous tree”

doctrine. Westerlund, 2009 WL 3711555, at *6. The court also considered and rejected

Westerlund’s claims that the magistrate who issued the search warrant was not neutral and

detached and that the affidavit contained material omissions. Id. at *5 - *6. Finally, the

district judge did not specifically address Westerlund’s claim that the search of his office

was unwarranted because there was no nexus between the crime of providing intoxicants

to minors and Westerlund’s place of employment, but because none of the evidence

supporting the charges against Westerlund was found in his office, the issue was moot –

as the district court correctly recognized. Westerlund, 2009 WL 3711555, at *4 (citing

Johnson, 351 F.3d at 260).


       For the reasons set out above, we conclude that the district court’s denial of the

defendant’s motion to suppress was supported by the evidence presented at the

suppression hearing, and we therefore AFFIRM the district court’s judgment.




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United States v. Westerlund

       COLE, Circuit Judge, concurring. A search warrant’s issuing magistrate is tasked

with making a “practical, common-sense decision” that there is a “fair probability” that

evidence of the crime will be found in the place to be searched. Illinois v. Gates, 462 U.S.

213, 238 (1983). A “fair probability” is more than “mere suspicion,” United States v. Algie,

721 F.2d 1039, 1043 (6th Cir. 1983), but less than “prima facie proof,” United States v.

Bennett, 905 F.2d 931 (6th Cir. 1990). I do not dispute that there was sufficient probable

cause to search for evidence relating to Westerlund’s provision of drugs and alcohol to

minors. What I cannot accept is that there was sufficient probable cause to search for

cameras or other photographic evidence, given the paucity of pertinent and timely evidence

in Officer Olney’s affidavit. But, given our ever-widening Leon good-faith exception

jurisprudence (an exception that will surely soon, if it has not already, swallow the rule), I

respectfully concur only in the result.


       Officer Olney provided two pieces of evidence suggesting that Westerlund may have

been in possession of photographic material evincing criminal activity. First, W.J., a

sixteen-year-old teenager, stated that he had been to parties at Westerlund’s home, and

that “a camera had been used at some of their parties and pictures had been taken but he

thinks most of them were deleted.” And second, a former supervisor of Westerlund’s told

Officer Olney that she had seen Westerlund inadvertently open a file of child pornography.

As the majority opinion notes, the district court excluded the latter piece of evidence

because it was stale. This leaves, then, only W.J.’s statement to substantiate the warrant’s

allowance of the search and seizure of “[a]ny and all evidence related to the possession,

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United States v. Westerlund

manufacture, or distribution of child pornography.” A statement, of course, that did not

refer to Westerlund in any way. W.J. made no statement that Westerlund ever had the

camera in his possession or took the photos.


       The majority adopts W.J.’s singular statement that some photos were taken at a

party as the basis for searching for photographic evidence at Westerlund’s home. Such

a position is disturbing, to say the least. At a party with a number of teenagers present, it

would not be surprising for every attendee to have immediate access to a camera, namely,

their cellular phone. Taken to its logical extreme, the majority’s analysis would allow for

this search warrant to be applied to the cellular phones of any of the teenagers at the

party—there would be a similarly “fair” probability that their devices would contain photos

depicting criminal activity. To presume that there is a “fair probability” that photos of

criminal activity would be found at Westerlund’s home based on this statement alone

requires an understanding of the word “fair” that I do not have.


       The district court latched onto the latter clause of W.J.’s statement, which referred

to the photos being deleted, to note that photos may be resurrected from the trash folder

on a computer, so their deletion should pose no bar to obtaining a search warrant. But

such an argument puts the cart before the horse; it is not the photos’ ability to be seized

that is at issue, but whether the photos may be sought at all. Similarly, the majority opinion

erroneously applies the “plain view” exception to justify the police officers’ seizure of the

photographs, while what is actually at issue is whether the police were able to look for any


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United States v. Westerlund

photos. As Westerlund makes clear, the photos that were immediately incriminating were

not laying around in plain view; the government underscores this by noting that “[i]n the

course of reviewing the pictures, other photographs were found that clearly and

immediately appeared to be evidence of other crimes . . . .” Given that the officers had no

authority to rifle through the photos in the first place, it cannot be reasonably stated that

the incriminating photos were in plain view. To say otherwise would obviate any need for

a search warrant to specifically list the items sought.


       The issuing magistrate must, of course, take into account the “totality of the

circumstances” when making his decision. Gates, 462 U.S. at 230. But W.J.’s statement

is the only “circumstance” that would provide the basis for the search for photographic

evidence, and the statement is so devoid of context that it cannot be relied upon with

confidence. But, given that the evidence was “obtained in objectively reasonable reliance”

on a deficient warrant, and the affidavit supporting the warrant was not “so lacking in indicia

of probable cause,” the Leon good-faith exception ought to apply to save the fruits of the

search from being suppressed. United States v. Leon, 468 U.S. 897, 922-23 (1984). I

concur.




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