                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  January 24, 2012
                    UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 11-6044
          v.                                           W.D. Oklahoma
 ALICIA DANIELLE FREERKSEN,                     (D.C. No. 5:10-CR-00188-R-2)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.



I. Introduction

      Alicia Danielle Freerksen entered a conditional plea of guilty to one count

of Possession of Child Pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).

Her conviction arose out of a search of a digital camera and other computer

equipment found in a house she shared with her husband and co-defendant, Dean

Leroy Freerksen, which uncovered digital images depicting, inter alia, the sexual

abuse of CL, an eleven-year-old female. Both defendants moved to suppress all


      *
        This order and judgment is not binding precedent except under the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.
evidence uncovered as a result of the search, arguing the search warrant affidavit

did not support a finding of probable cause when analyzed under the framework

set forth in Franks v. Delaware, 438 U.S. 154 (1978). The district court denied

the motion, concluding any inaccurate statements in the affidavit were immaterial

and probable cause still existed when the affidavit was “corrected” pursuant to

Franks. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms.

II. Background

      On July 11, 2009, Detective Mike Morton of the Woodward Police

Department was called to interview CL based on allegations of possible child

exploitation. Morton was brought into the case after CL’s mother contacted the

Clinton Police Department and relayed statements from CL indicating she was

sexually abused at the home of Alicia and Dean Freerksen. Morton conducted a

recorded interview with CL later that evening. As a result of the interview, he

prepared an affidavit for a search warrant of the Freerksen residence at 2718

Maple Street, Woodward, Oklahoma. The factual allegations upon which the

search request rested were listed in five numbered paragraphs:

            1. On July 11, 2009 I spoke with 11 year old female
            C.L. while at the Woodward police department. C.L.
            stated that on June the 26th 2009 she was raped by three
            unknown males, one male having the name of Garrett.
            While staying at 2718 Maple in Woodward Oklahoma.

            2. C.L. stated that on July the 4th 2009 while at 2718
            Maple Woodward Oklahoma. C.L. stated Dean


                                        -2-
             Freerksen gave her vodka, and orange juice to drink.
             C.L. stated that they played sex dice for about an hour.

             3. C.L. told me Dean, Freerksen the third, and Alicia
             Freerksen took her to their bedroom. C.L. stated that
             Dean put his penis inside her.

             4. C.L. stated that Alicia used a white vibrator about six
             inches long on her crotch area.

             5. C.L. stated Dean, and Alicia both took photos of her
             using a blue camera.

             I have been a Detective with the Woodward Police
             Department since 2001 and have investigated numerous
             criminal offenses. Based on my experience and training,
             I have investigated numerous Rape, and Child
             Molestation cases.

The reviewing magistrate issued the requested warrant, and the resulting search of

the apartment uncovered, among other items, a computer and a blue digital

camera. Detective Morton then prepared a second search warrant affidavit to

search the camera and other computer equipment for digital evidence of child

exploitation. The affidavit supporting the second search warrant was identical to

the first, and included two additional paragraphs:

             6. On 07-13-09, I executed search warrant number
             SW-20009-16 and seized, DELL INSPIRON LAP TOP
             COMPUTER SERVICE TAG #DQZPDD1 WITH 1
             LOGITECH ZIP DRIVE ATTACHED, GLACIER USB
             2.0 HIGH SPEED 3.5 EXTERNAL ENCLOSURE,
             DELL INSPIRON DESK TOP COMPUTER SERVICE
             TAG #8S6TJGI WITH EXTERNAL CD RECORDER,
             DELL 968W PRINTER SERVICE TAG #BV5LQDL
             WITH D-LINK ZIP DRIVE ATTACHED, OLYMPUS


                                         -3-
             FE-330 8.0 MEGAPIXEL DIGITAL CAMERA SER
             #Y72056767 BLUE IN COLOR.

             7. I have been a certified law enforcement officer in the
             State of Oklahoma since 1995. I have received in excess
             of 40 hours of specialized training in the investigation of
             specific crimes. I conducted drug investigations where
             suspects have been identified, arrested, charged, and
             convicted in a courts of law.

A second search warrant was issued authorizing the requested search.

      Freerksen moved to suppress the evidence obtained from these two

searches. At the suppression hearing, Detective Morton admitted on cross-

examination to several inaccuracies and omissions in the warrant affidavit. The

first numbered paragraph, where CL reports being raped by three unknown males,

does not mention the three males were juveniles she estimated to be under the age

of sixteen. Additionally, the fourth paragraph, concerning the use of a vibrator,

falsely states CL described the vibrator as white and six inches long. The

affidavit did not include CL’s statement to Detective Morton that it was dark

during the assault and she could not see what the Freerksens were doing to her.

Finally, the fifth paragraph, insofar as it implied CL herself stated to detective

Morton that photographs were taken with a blue camera, was inaccurate. CL

mentioned the blue camera to her mother, who related the information to

Detective Morton two days after his initial interview with CL. Detective Morton

admitted a magistrate reading the affidavit would be led to believe CL made the

statements about the blue camera directly to him during the July 11 interview.

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      The district court denied the motion to suppress, concluding none of the

alleged omissions or inaccuracies were material and thus the warrant was

supported by probable cause. One of the photographs seized as a result of the

search of the digital camera formed the basis of Freerksen’s guilty plea. Pursuant

to the terms of her conditional plea agreement, she appeals the denial of her

motion to suppress.

III. Discussion

      A. Standard of Review

      When reviewing the denial of a motion to suppress, the court accepts the

district court’s factual findings unless clearly erroneous and reviews de novo the

ultimate determination of reasonableness under the Fourth Amendment. United

States v. Garcia-Zambrano, 530 F.3d 1249, 1254 (10th Cir. 2008). The court

reviews the district court’s findings regarding the truth or falsity of statements in

the warrant affidavit for clear error. Id. Whether a corrected search warrant

affidavit establishes probable cause is a question of law reviewed de novo. Id. 1




      1
       The court has not decided whether the district court’s characterization of
an inaccurate item in a warrant affidavit as an affirmative misstatement or as an
omission is a finding of fact or conclusion of law. The court need not do so
today, because the district court’s characterization of the disputed items in the
warrant affidavit is correct even under de novo review.

                                         -5-
      B. Franks Test

      This court applies a two part test when determining whether false

statements or material omissions in a warrant affidavit render the resulting search

invalid:

             A search warrant must be voided and the fruits of the
             search suppressed where a court (1) finds that the affiant
             knowingly or recklessly included false statements in or
             omitted material information from an affidavit in
             support of a search warrant and (2) concludes, after
             excising such false statements and considering such
             material omissions, that the corrected affidavit does not
             support a finding of probable cause.

Id. Probable cause requires “a fair probability that contraband or evidence of a

crime will be found in a particular place.” United States v. Cooper, 654 F.3d

1104, 1124 (10th Cir. 2011) (quotations omitted).

      The district court correctly concluded the first three omissions Freerksen

points to in the warrant affidavit are immaterial. CL reported being raped by

three unknown males at the Freerksens’ residence; the age of the males does not

make it any less likely incriminating evidence of sexual assault would be found at

the residence. 2 Similarly, CL told Detective Morton a vibrator was used on her

crotch area; the existence of probable cause does not depend on her recalling its


      2
       The affidavit also failed to mention that one of the three males was named
Garret and was the grandson of a veteran Woodward Police Officer. At the
suppression hearing, Detective Morton testified he did not know Garret was
related to a Woodward Police Officer. This omission, too, is immaterial to a
probable cause determination.

                                         -6-
precise size and color. Regarding the omission of CL’s statement that it was dark

when she was assaulted, the district court concluded the statement was immaterial

in light of CL’s ability to describe the assault to Detective Morton in detail. This

court agrees. CL’s statement that it was dark does not in itself imply it was so

dark as to call into doubt the veracity of all her other statements.

      The most significant inaccuracy in the warrant affidavit is the fifth

numbered paragraph concerning the blue camera. That paragraph contains the

only allegations that pictures were taken of the assault. Freerksen argues the fifth

paragraph is an affirmative falsehood which must be excised completely from the

affidavit pursuant to the second step of a Franks inquiry. The government argues

the statement is an omission, requiring the court to determine whether probable

cause would exist if the affidavit stated CL told her mother a blue camera was

used and her mother thereafter relayed that information to Detective Morton. A

statement is “false” if it does not “correspond[] to truth or reality.” Merriam

Webster’s Third New International Dictionary Unabridged 819 (3d ed. 1993).

Freerksen does not contest that CL made the statement about the blue camera to

her mother or that her mother relayed the statement to Detective Morton. The

fifth paragraph of the warrant affidavit is therefore not false; it accurately

recounts a statement CL made. It simply fails to also state to whom CL made the

statement.




                                          -7-
      The appropriate inquiry therefore is not whether probable cause would exist

if the affidavit made no mention of the camera at all, but whether probable cause

would exist if the affidavit clarified that CL’s statement about the camera was

made to her mother. This court has long held hearsay, and even multiple layers

thereof, “may support a finding of probable cause for a search warrant.” United

States v. Mathis, 357 F.3d 1200, 1204 (10th Cir. 2004). The hearsay at issue here

consisted of a minor child’s statement to her mother. Both declarants were non-

suspects whose identity was known to Detective Morton and neither had a motive

to provide false information. The statement is therefore sufficient to support a

finding of probable cause. Because the search warrant affidavit used to justify

the search of the Freerksens’ residence did not contain any material omissions or

affirmative falsehoods, the district court properly denied Freerksen’s motion to

suppress.

IV. Conclusion

      For the foregoing reasons, the decision of the district court is AFFIRMED.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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