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

                                 FOR THE TENTH CIRCUIT                            July 28, 2020

                                                                          Christopher M. Wolpert
                          _________________________________                   Clerk of Court
    UNITED STATES OF AMERICA,

         Plaintiff - Appellee,

    v.                                                         No. 19-3043
                                                    (D.C. No. 6:17-CR-10045-EFM-1)
    PATRICK STEIN,                                              (D. Kan.)

         Defendant - Appellant.
                        _________________________________

                              ORDER AND JUDGMENT*
                          _________________________________

Before HARTZ, EBEL, and MATHESON, Circuit Judges.
                  _________________________________

         In this direct criminal appeal, Defendant Patrick Stein challenges his

conviction for possession of child pornography, arguing the Government unlawfully

obtained the evidence on which this charge was based using a defective search

warrant. Having jurisdiction under 28 U.S.C. § 1291, we reject Stein’s arguments

and AFFIRM his conviction.

                                    I. BACKGROUND

         After an eight-month investigation, the Federal Bureau of Investigation

(“FBI”), in October 2016, arrested Stein and two other members of a militia group


*
 This order and judgment is not binding precedent, except under the doctrines of law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.
for conspiring to use a weapon of mass destruction against Muslim Somali

immigrants living in southwestern Kansas. Agents then obtained a warrant to search

Stein’s home, where they seized, among other things, a computer and several thumb

drives. While going through the contents of those electronic devices, agents came

across images of child pornography. They stopped their search, obtained a second

warrant authorizing the agents to search for child pornography and, in executing that

second warrant, discovered up to 149 images of child pornography on the computer

and two of the thumb drives seized from Stein’s home.

      Based on those images, the United States charged Stein in this case with one

count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B)

and (b)(2). Stein unsuccessfully moved in this case to suppress the evidence seized

during the search of his home conducted pursuant to the first search warrant. He then

conditionally pled guilty to possession of child pornography, reserving his right to

appeal the denial of his suppression motion. See Fed. R. Crim. P. 11(a)(2). The

district court sentenced Stein to forty-four months in prison on the child pornography

conviction, to run consecutively to the 360-month sentence Stein received for his

convictions stemming from the conspiracy to use a weapon of mass destruction.

                                   II. DISCUSSION

      The focus of this appeal, then, is the validity of the warrant the FBI obtained to

search Stein’s home for evidence of the conspiracy to use a weapon of mass

destruction. Summarizing, that warrant authorized FBI agents to search for and seize

several categories of “fruits, evidence, and/or instrumentalities” of that criminal

                                           2
activity, including tools and materials that could be used to make bombs, receipts for

the purchase of bomb-making materials, bomb-making instructions, including those

that are “computer-generated or stored,” “[a]ny writing or printed word items or

computer files . . . that may relate to terrorist individuals, explosives, bombs,

terrorism, or terrorist attacks,” information on individuals who may have contacted

Stein and his co-defendants “by use of the computer or by other means for the

purpose of conspiring to commit an act of terrorism,” computers, electronic storage

devices, and cell phones. (I R. 72-74.) In this appeal, Stein specifically challenges

the warrant’s authorization for agents to seize the computer and thumb drives on

which the FBI discovered images of child pornography.

A. Probable cause

      The Fourth Amendment provides that “no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV.

Stein first contends that there was no probable cause to support the search warrant’s

authorization to search his home for computers and other electronic storage devices

in connection with the conspiracy to use a weapon of mass destruction.

      1. Probable cause existed to believe Stein had a computer, it would be
      found in his home, and it would contain evidence related to the conspiracy
      to use a weapon of mass destruction

      Stein asserts that the affidavit the FBI submitted to obtain the search warrant

for Stein’s home lacked sufficient information from which the magistrate judge

issuing the warrant could have concluded that there was probable cause to believe

                                            3
Stein possessed a computer or other electronic storage device, such devices would be

found in his home, and they would contain information regarding the conspiracy to

use a weapon of mass destruction.1 See Wayne R. LaFave, Search and Seizure: A

Treatise on the Fourth Amendment § 3.7(d) (5th ed. updated Oct. 2019) (noting

probable cause to support a search warrant requires that there be “a sufficient nexus

between (1) criminal activity, and (2) the things to be seized, and (3) the place to be

searched”); see also United States v. Knox, 883 F.3d 1262, 1277 (10th Cir. 2018) (“In

order for an affidavit to establish probable cause there must be a nexus between the

[item] to be seized and the place to be searched” (internal quotation marks, alteration

omitted)).

       The magistrate judge’s probable cause determination involved “a practical,

common-sense decision whether, given all the circumstances set forth in the affidavit

before him, . . . there is a fair probability that contraband or evidence of a crime will be

found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). We review de

novo the district court’s decision rejecting Stein’s challenge to the search warrant.

See United States v. Wagner, 951 F.3d 1232, 1246 (10th Cir. 2020). However, “we

afford great deference” to the issuing magistrate judge’s determination that there was

probable cause to support the search warrant, asking on appeal “only whether, under

the totality of the circumstances presented in the affidavit, the judge had a substantial



1
 In the district court, Stein characterized this problem, not as a lack of probable
cause, but instead as the search warrant being overly broad. The district court,
however, treated this issue as one involving probable cause. So does Stein on appeal.
                                              4
basis for determining that probable cause existed.” Id. (internal quotation marks,

alteration omitted). In making that determination on appeal, we view the evidence in

the light most favorable to the Government. See id. at 1243.

         Doing so here, we conclude there was a substantial basis included in the

supporting affidavit for the magistrate judge issuing the search warrant for Stein’s

home to determine that there was a fair probability that digital evidence of the

conspiracy—including computer-generated or stored bomb-making instructions,

computer files related to terrorist individuals, explosives, bombs, terrorism or

terrorist attacks, and information on individuals who may have contacted Stein and

his co-defendants for the purpose of conspiring to commit an act of terrorism—would

be found in Stein’s home.

         The affidavit indicated that Stein’s co-conspirators downloaded bomb-making

instructions from the internet, watched bomb-making videos on YouTube, and used

computers to research targets for their bombs. In addition, Stein procured fertilizer

for the bomb and was assigned the task of acquiring a rock tumbler which was

needed for the bomb-making. These activities could be expected to produce a digital

trail. So, too, could Stein’s surveillance of several possible targets, in light of the

group’s desire “to get photos and videos of the” possible target locations. (I R. 63

¶ 23.)

         The affidavit further indicated that Stein and his co-conspirators

communicated by cell phones, often using the “phone-based application” Zello,

which allowed the conspirators to speak to one another “as if their cellular telephones

                                             5
were push-to-talk walkie-talkies.” (I R. 51 ¶ 2 & n.1.) Further, in September 2016,

Stein indicated that the group should “begin discussing project strategies via an

encrypted mobile messaging application.” (I R. 66 ¶ 29.)

      As the district court noted, the FBI’s affiant

      identified many instances where Stein used electronic devices to
      communicate with his co-conspirators via the internet. While much of this
      activity was conducted on Stein’s phone, it was reasonable to infer that
      some of the online activity could have been done on a computer, as well.
      Furthermore, the affidavit established that, based on the affiant’s training
      and experience, such electronic communications are sometimes
      automatically downloaded to electronic devices with internet access and
      can be recovered from the device’s “cache.”

(I R. 407.) That might also be true of any digital surveillance photos Stein may have

taken. See United States v. Reichling, 781 F.3d 883, 887 (7th Cir 2015) (recognizing

that it is “common knowledge . . . that images sent via cell phones . . . may be readily

transferred to other storage devices”).

      This information, viewed in the light most favorable to the Government, see

Wagner, 951 F.3d at 1243, provided a substantial basis for the magistrate judge

issuing the search warrant to determine that there was probable cause—a fair

possibility—that Stein had digital evidence of the conspiracy. Furthermore, it was

reasonable for the magistrate judge to infer, from this information, that there was a

fair possibility that this digital evidence would be on electronic devices found in

Stein’s home. Cf. Peffer v. Stephens, 880 F.3d 256, 272 (6th Cir. 2018) (noting

computers “are personal possessions often kept in their owner’s residence and

therefore subject to the [Sixth Circuit’s] presumption that a nexus exists between an


                                           6
object used in a crime and the suspect’s current residence”). See generally United

States v. Biglow, 562 F.3d 1272, 1279 (10th Cir. 2009) (considering “the nature of

the evidence sought” and “all reasonable inferences as to where a criminal would

likely keep such evidence”).

       The Government asks, in the alternative, that we affirm by applying United

States v. Leon, 468 U.S. 897 (1984)’s good-faith exception. We do so, ruling that

even if the magistrate judge’s probable cause determination was wrong, an objective

officer could still have relied in good faith on that probable cause determination. See

id. at 922. In reaching that conclusion, we reject Stein’s characterization of the

warrant as “so lacking in indicia of probable cause to search for computers and other

electronic storage devices as to render official belief in its existence entirely

unreasonable.” (Aplt. Br. 27).

       2. Franks issue

       Invoking Franks v. Delaware, 438 U.S. 154 (1978), Stein next argues that the

FBI was able to obtain the search warrant authorizing the search of Stein’s home for

computers and other electronic devices only by intentionally or recklessly omitting

four material facts from the affidavit submitted in support of the search warrant

application.2 See Harte v. Bd. of Comm’rs, 864 F.3d 1154, 1162 (10th Cir. 2017)

(per curiam) (recognizing Franks applies to deliberate or reckless material omissions



2
 On the basis of this argument, the district court granted Stein a Franks hearing and,
at Stein’s suggestion, took judicial notice of the transcripts of the Franks hearing
conducted in the weapons-of-mass-destruction prosecution.
                                            7
in affidavit for search warrant, as well as deliberately or recklessly false statements

included in affidavit). Those four omitted facts, Stein contended, show that he did

not own or use a computer. Reviewing de novo, see United States v. Garcia-

Zambrano, 530 F.3d 1249, 1254 (10th Cir. 2008), we conclude, as did the district

court, that the four omitted facts were not material because, even considering the

omitted information, there remained probable cause to believe digital evidence of the

conspiracy to use a weapon of mass destruction would be found on electronic devices

in Stein’s home. See United States v. Herrera, 782 F.3d 571, 575 (10th Cir. 2015)

(“If . . . the affidavit contains intentional, knowing, or reckless omissions, a court

must add in the omitted facts and assess the affidavit in that light.”).

      The first omitted fact—that Stein told an FBI informant, in April 2016, that the

informant should not make any plans on a computer because Stein did not want there

to be any record—indicated only that, at least early in the conspiracy, Stein did not

want the informant to use a computer to make a record of the conspiracy’s plans, not

that Stein was not himself using a computer. Furthermore, later in the conspiracy,

Stein’s two co-defendants, with his knowledge, used computers and accessed the

internet to research bomb making and to look for possible targets for the

conspirators’ bombs.

      The second and third omitted facts indicated that, in August 2016, Stein asked

the informant if he knew anyone who had a “decent laptop they wanna get rid of”

and, three days later, Stein told the informant that he had “been in desperate need of a

computer for some time,” because he was having to conduct all his online activity on

                                            8
his phone. (I R. 35-36.) Stein argues that these two omitted statements established

that he had no computer. But, as the district court recognized, these statements

indicated that Stein was actively seeking to obtain a computer at that time, two

months before his arrest and the search of his home. These two omitted facts, then,

further support probable cause to believe that, by the time of his arrest, two months

later, there was a fair probability that Stein had obtained the computer he desperately

needed.

      The fourth omitted fact was that, three weeks before Stein was arrested, the

informant, in September 2016, while discussing with a third person the best way to

contact Stein, stated that Stein does everything on his phone because he does not

have a computer or internet. There is no indication, however, that this statement by

the informant was based on anything other than what Stein had told the informant

over one month earlier, in August 2016. This omitted fact did little to establish that

Stein still had no computer at that time, three weeks before his arrest.

      For these reasons, then, we agree with the district court that, even if the FBI

had included these four omitted facts in its affidavit submitted in support of the

search warrant, there was still probable cause to believe there would be digital

evidence of the conspiracy on a computer or some other electronic storage device

found in Stein’s home in October 2016.

B. Stein waived his challenges to the particularity of the warrant

      For the first time on appeal, Stein argues that the search warrant failed to state

with sufficiently particularity “the types of electronic media or computer files that

                                           9
fall within its scope,” and failed “to limit the scope of the search for electronic

devices and files to the crime charged,” the conspiracy to use a weapon of mass

destruction. (Aplt. Br. 19, 22.) Stein, however, never made these arguments to the

district court.

       Stein contends that he did preserve these arguments for appeal because he

made a broad particularity argument in the district court. But in the district court,

Stein argued instead that the search warrant was too broad because it allowed agents

to seize all sorts of common household items that could be used to make a bomb,

including, for example, glassware, stirring sticks, hammers, drill bits, staplers,

batteries, screws, nails, staples and the like. That is substantively different than the

particularity argument Stein now asserts for the first time on appeal, challenging the

breadth of the search that the warrant permitted of the seized computers and other

electronic devices. See United States v. Warwick, 928 F.3d 939, 944-45 (10th Cir.

2019) (rejecting contention that argument first raised on appeal was preserved by a

broad reading of the suppression motion before the district court).

       Rule 12, Fed. R. Crim. P., provides that a motion to suppress evidence must be

made prior to trial, or it is waived, absent the defendant showing good cause for his

failure to raise the issue pretrial in the district court. See Rule 12(b)(3)(C), (c)(3).

That waiver rule also applies when, as here, a defendant makes a motion to suppress

to the district court, but then raises a new suppression argument for the first time on

appeal. See Warwick, 928 F.3d at 944. Here, Stein does not attempt to show good

cause why he failed to make in the district court the particularity argument he now

                                            10
asserts on appeal, challenging the breadth of the search of the seized electronic

devices the warrant permitted. See id. We, therefore, cannot consider that new

argument. See United States v. Bowline, 917 F.3d 1227, 1229-37 (10th Cir. 2019),

cert. denied, 140 S. Ct. 1129 (2020).3

                                 III. CONCLUSION

      For the foregoing reasons, then, we reject Stein’s challenges to the search

warrant that led FBI agents to discover child pornography on Stein’s computer and

thumb drives and AFFIRM his conviction for possession of that child pornography.


                                            Entered for the Court


                                            David M. Ebel
                                            Circuit Judge




3
  A second reason why we cannot address Stein’s particularity argument raised for
the first time on appeal is that Stein entered a conditional guilty plea, see Fed. R.
Crim. P. 11(a)(2), preserving only his right to appeal the denial of the suppression
motion that he made to the district court and otherwise waiving his right to appeal.
See United States v. White, 584 F.3d 935, 946-48 (10th Cir. 2009); United States v.
Anderson, 374 F.3d 955, 957-58 (10th Cir. 2004).

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