                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-1106
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of North Dakota.
Chad Allen Mutschelknaus,               *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: October 21, 2009
                                Filed: January 4, 2010
                                 ___________

Before RILEY, HANSEN and GRUENDER, Circuit Judges.
                           ___________

GRUENDER, Circuit Judge.

      Chad Allen Mutschelknaus entered a conditional guilty plea to one count of
possession of child pornography. He now appeals the denial of his motions to
suppress, challenging both the sufficiency of the search warrant application and the
timing of the officers’ forensic analysis of his seized computer. We affirm.

I.    BACKGROUND

       An investigation into the distribution of child pornography led law enforcement
officers to a computer user in Alaska going by the online identity “Aronechee.” An
examination of Aronechee’s computer revealed that he had been distributing child
pornography through an online photo-sharing program. Aronechee gave law
enforcement officers permission to adopt his online identity. Using his identity,
officers sent Mutschelknaus a message claiming that Aronechee’s collection of images
had been lost after a computer crash. In response, Mutschelknaus sent a total of 236
images, saying that he was “just sending what you sent me at one time.” Nearly all
of the images depicted children engaged in sexual acts or in sexually explicit poses.

       Officers traced the Internet Protocol address of the computer sending these
images to the home of Mutschelknaus’s girlfriend. They then informed Immigration
and Customs Enforcement Special Agent Michael Arel about the exchange,
forwarding him a disk with the images Mutschelknaus sent. Special Agent Arel
applied for a search warrant for the home of Mutschelknaus’s girlfriend on December
12, 2007. The federal magistrate judge issued the warrant, which required that the
search of the home be performed within ten days. The magistrate judge also allowed
officers the additional sixty days they requested to examine forensically any computer
equipment seized. Federal agents searched the home and seized a computer that same
day. When officers later examined the computer, more than ten days later but within
the sixty-day time frame, they discovered images of child pornography.

       A grand jury indicted Mutschelknaus on one count of distribution of child
pornography, 18 U.S.C. § 2252(a)(2) and (b)(1), and one count of possession of child
pornography, 18 U.S.C. § 2252(a)(4)(B) and (b)(2). After the district court1 denied
Mutschelknaus’s two motions to suppress the evidence from the December 12, 2007
search and the subsequent examination of the seized computer, Mutschelknaus entered
a conditional guilty plea to the possession of child pornography count. The district
court sentenced him to 63 months’ imprisonment.


      1
        The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota.

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II.   DISCUSSION

       On appeal, Mutschelknaus challenges the district court’s denial of both of his
motions to suppress. First, he argues that the search warrant application provided
insufficient information to permit the magistrate judge to find probable cause to justify
the search. In particular, he argues that the application should have included either the
images themselves or a more detailed description of the images Mutschelknaus sent
to allow a magistrate independently to determine that the images were child
pornography. Second, he argues that the sixty-day extension allowed for officers to
analyze the seized computer violated Rule 41 of the Federal Rules of Criminal
Procedure. “On appeal from the denial of a motion to suppress, we review a district
court’s findings of fact for clear error and its legal conclusions—including its probable
cause determination—de novo.” United States v. El-Alamin, 574 F.3d 915, 923 (8th
Cir. 2009) (internal quotation marks omitted).

       We reject Mutschelknaus’s first argument because the search warrant
application contained sufficiently detailed descriptions of the images Mutschelknaus
sent to permit the issuing judge to make an independent finding of probable cause.
“An affidavit establishes probable cause for a warrant if it ‘sets forth sufficient facts
to establish that there is a fair probability that contraband or evidence of criminal
activity will be found in the particular place to be searched.’” United States v. Snyder,
511 F.3d 813, 817 (8th Cir.) (internal quotation marks omitted) (quoting United States
v. Davis, 471 F.3d 938, 946 (8th Cir. 2006)), cert. denied, 554 U.S. ---, 128 S. Ct.
2947 (2008). “Whether probable cause to issue a search warrant has been established
is determined by considering the totality of the circumstances, and resolution of the
question by an issuing judge should be paid great deference by reviewing courts.”
United States v. Hansel, 524 F.3d 841, 845 (8th Cir.) (quoting United States v. Grant,
490 F.3d 627, 631 (8th Cir. 2007)), cert. denied, 555 U.S. ---, 129 S. Ct. 520 (2008).
“As a general matter, an issuing court does not need to look at the images described

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in an affidavit in order to determine whether there is probable cause to believe that
they constitute child pornography. A detailed verbal description is sufficient.”
United States v. Lowe, 516 F.3d 580, 586 (7th Cir. 2008).

        The search warrant application described the development of the investigation,
including law enforcement officers’ use of the online identity of Aronechee, a person
known to distribute child pornography. In this case, the law enforcement officer
posing as Aronechee provided Special Agent Arel with copies of the images that
Mutschelknaus sent. Special Agent Arel’s application described the images as
“appear[ing] to depict children engaged in sexually explicit acts” and noted that one
image included “a young female child performing oral sex on an adult male.” The
application also stated that “[n]early every image sent . . . depicted children engaged
in sexual acts or in sexually explicit poses.” Additionally, the search warrant
application included information about Special Agent Arel’s training and experience
in investigations of child pornography and exploitation. The information in the
application was sufficient to permit a magistrate judge independently to conclude that
there was probable cause to believe that evidence of criminal activity would be found
at the home.

        Mutschelknaus argues that the images described “could have been virtual
children or adults depicted as children,” and since such images do not fall within the
statutory definition of child pornography, the warrant application did not establish a
fair probability of finding evidence of criminal activity. However, Special Agent Arel
was trained in child pornography investigations and described the images as involving
children. See United States v. Stults, 575 F.3d 834, 844 (8th Cir. 2009) (considering
the affiant’s training in evaluating the sufficiency of a search warrant application).
Furthermore, the application explicitly contrasts a child and an adult depicted in the
same image, reinforcing the notion that these images actually did involve children.
See United States v. Grant, 490 F.3d 627, 632 (8th Cir. 2007) (“Lewis, an experienced
computer-repair technician, personally observed the images on the Grants’ computer

                                         -4-
and, specifically distinguishing those images from the ‘adult pornography’ he had
seen on other computers, concluded that the images on the Grants’ computer were
child pornography.”). In any event, merely identifying an alternative, non-criminal
explanation for the information in a warrant is not sufficient to render it defective,
unless that explanation eliminates the fair probability that evidence of criminal activity
will be found at the described location. See United States v. Robertson, 39 F.3d 891,
894 (8th Cir. 1994) (“That [the defendant] can now advance alternative explanations
for [their suspicious activity] does not undermine the magistrate’s decision to credit
the agents’ reasonable inferences.”). Here, given the descriptions of the images in the
warrant application, Aronechee’s involvement in child pornography, and Special
Agent Arel’s training and experience, probable cause existed. We therefore affirm the
district court’s denial of Mutschelknaus’s first motion to suppress.

       Mutschelknaus also argues that the sixty-day extension that the magistrate judge
allowed for examining the seized computer violated Rule 41 of the Federal Rules of
Criminal Procedure, which requires that warrants be executed within ten days of
issuance. The Government argues that Rule 41 does not govern subsequent
examinations of seized items and that because the computer was seized within ten
days, Rule 41’s requirements were met. Regardless of whether Rule 41 was violated,
however, “noncompliance with Rule 41 does not automatically require exclusion of
evidence in a federal prosecution. Instead, exclusion is required only if a defendant
is prejudiced or if reckless disregard of proper procedure is evident.” United States
v. Spencer, 439 F.3d 905, 913 (8th Cir. 2006) (internal citations and quotation marks
omitted).

        Mutschelknaus does not argue that the sixty-day extension prejudiced him. Our
recent analysis in United States v. Brewer applies with equal force to the facts of
Mutschelknaus’s case. “The computer media at issue here were electronically-stored
files in the custody of law enforcement. Because of the nature of this evidence, the
. . . delay in searching the media did not alter the probable cause analysis.” United

                                           -5-
States v. Brewer, --- F.3d ---, No. 08-3079, slip op. at 11 (8th Cir. Dec. 17, 2009). Nor
did the officers show a “reckless disregard of proper procedure.” See Spencer, 439
F.3d at 913. The search warrant application acknowledges that computer
examinations can take additional time and accordingly requested additional time to
perform the examination after the computer was seized. “Courts have permitted some
delay in the execution of search warrants involving computers because of the
complexity of the search.” United States v. Syphers, 426 F.3d 461, 469 (1st Cir. 2005)
(collecting cases). Here, the officers’ explicit request for an extension shows a
manifest regard for the issuing judge’s role in authorizing searches, rather than a “bad
faith [attempt] to circumvent federal requirements.” See id. Because the sixty-day
extension did not prejudice Mutschelknaus and because the officers did not show a
reckless disregard of proper procedure, we also affirm the district court’s denial of
Mutschelknaus’s second motion to suppress.

III.   CONCLUSION

     For the foregoing reasons, we affirm the district court’s denial of
Mutschelknaus’s motions to suppress.
                     ______________________________




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