     Case: 11-40971     Document: 00511933034         Page: 1     Date Filed: 07/25/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 25, 2012
                                     No. 11-40971
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

WILLIAM J. KLEINKAUF,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:10-CR-13-1


Before HIGGINBOTHAM, OWEN, and, SOUTHWICK, Circuit Judges.
PER CURIAM:*
        William J. Kleinkauf was charged by indictment with two counts of
possession of child pornography and one count of attempted receipt of child
pornography. Following the denial of his motion to suppress, he entered a
conditional guilty plea to one of the possession counts, and the district court
sentenced him to 36 months in prison, to be followed by a five-year term of
supervised release. On appeal, Kleinkauf challenges the denial of his motion to



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                 No. 11-40971

suppress, asserting that the affidavit supporting the search warrant was
inadequate and failed to establish probable cause.
      Following the denial of a suppression motion, we review the district court’s
legal conclusions de novo and its factual findings for clear error. United States
v. Chavez, 281 F.3d 479, 483 (5th Cir. 2002). The evidence is viewed in the light
most favorable to the prevailing party. Id. We typically apply a two-step process
to review the district court’s denial of a motion to suppress evidence obtained
from a search warrant, asking first whether the police objectively relied in good
faith on the warrant. United States v. Cherna, 184 F.3d 403, 407 (5th Cir. 1999);
see United States v. Leon, 468 U.S. 897, 919-20 (1984).        If the good-faith
exception to the exclusionary rule applies, the inquiry is ended. Cherna, 184
F.3d at 407. If the exception does not apply, we determine whether there was
nevertheless a substantial basis for the magistrate judge to find probable cause.
Id. Although Kleinkauf asserts that the good faith exception does not apply
because no cases have addressed the same or a similar factual scenario, he has
not shown the existence of a novel legal question.         See United States v.
Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992).
      Kleinkauf asserts that Special Agent James J. Pokorney misled the
magistrate judge issuing the affidavit by including a false statement in the
affidavit indicating that the website Kleinkauf had visited before using PayPal
to pay for his membership at the child exploitation website “Hardlovers” also
contained child pornography. He also asserts that Pokorney’s failure to allege
in the affidavit that Kleinkauf did not renew after his one-month subscription
ended misled the magistrate judge because the information would have indicated
that Kleinkauf was not interested in the contents of the website. An officer is
not entitled to invoke the good faith exception if the judge who issued the
warrant acted after being “misled by information in an affidavit that the affiant
knew was false or would have known was false except for his reckless disregard
of the truth.” United States v. Mays, 466 F.3d 335, 343 (5th Cir. 2006) (internal

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                                   No. 11-40971

quotation marks and citation omitted); see also Franks v. Delaware, 438 U.S.
154, 155-56 (1978) (providing that intentional or reckless statements must be
excised from a warrant affidavit, and evidence must be suppressed if the
remaining information fails to establish probable cause); United States v.
Tomblin, 46 F.3d 1369, 1376-77 (5th Cir. 1995) (applying Franks to an allegation
of an omission).    As the district court noted, Pokorney’s testimony at the
suppression hearing reflected that he relied on a report from the National
Center for Missing and Exploited Children (NCMEC) to conclude that the earlier
website visited by Kleinkauf contained images of child pornography and that no
information he received from the NCMEC affected his belief in the validity of
that report.    Additionally, Pokorney’s omission of information regarding
Kleinkauf’s failure to renew his membership did not evince an intent to mislead
the magistrate judge issuing the search warrant, given that Kleinkauf could
have used alternate means to renew his subscription.
      In addition, Kleinkauf asserts that the face of the affidavit lacked probable
cause. An officer is unable to invoke the good faith exception if the affidavit
upon which the warrant is founded is “so lacking in indicia of probable cause as
to render official belief in its existence entirely unreasonable” and is thus a “bare
bones” affidavit. Mays, 466 F.3d at 343. A bare bones affidavit is one that
contains wholly conclusional statements about an affiant’s knowledge and
beliefs. United States v. Pope, 467 F.3d 912, 920 (5th Cir. 2006). Kleinkauf
asserts that in the absence of evidence showing that he in fact downloaded or
viewed child pornography, the affidavit was insufficient. An affidavit supporting
a search warrant for child pornography does not need to show “specific,
individualized evidence of possession” of child pornography. United States v.
Flanders, 468 F.3d 269, 271 n.3 (5th Cir. 2006) (citing United States v. Froman,
355 F.3d 882, 890-91 (5th Cir. 2004)). Rather, a court considering whether
probable cause exists “must make a practical, common-sense decision as to
whether, given all the circumstances set forth in the affidavit . . . there is a fair

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                                  No. 11-40971

probability that contraband or evidence of a crime will be found in a particular
place.”   Froman, 355 F.3d at 889 (internal quotation marks and citation
omitted). Although Kleinkauf complains that the name of the “Hardlovers”
website does not explicitly connote that its content included child pornography
and that the affidavit does not state that the exclusive or predominant purpose
of the website was the dissemination of child pornography, the information
included in the affidavit was sufficient for the magistrate judge to reasonably
infer the nature of the website and the likelihood that child pornography would
be found in the places identified by the affidavit. See id. at 890-91; United States
v. May, 819 F.2d 531, 535 (5th Cir. 1987) (permitting magistrate judge to make
reasonable inferences from an affidavit).
      In his final assertion, Kleinkauf maintains that the information in the
affidavit was stale because he purchased the “Hardlovers” subscription on
October 31, 2006, but Pokorney did not seek a search warrant until August 2007.
If the facts alleged in an affidavit are so dated that no reasonable peace officer
could believe that probable cause was established, a Fourth Amendment
violation has occurred. United States v. Pena-Rodriguez, 110 F.3d 1120, 1130
(5th Cir. 1997).    Given that Pokorney’s affidavit alleged that a computer
constitutes an ideal means of storing child pornography and that it is common
to retrieve computer files or images long after they were viewed, downloaded, or
deleted, the nine-month delay between Kleinkauf’s subscription and the affidavit
supporting the search warrant does not render the information stale. See United
States v. Allen, 625 F.3d 830, 842-43 (5th Cir. 2010) (18-month delay), cert.
denied, 132 S. Ct. 1632 (2012). Because Kleinkauf has not shown that the good
faith exception does not apply, the district court properly denied the motion to
suppress. See Cherna, 184 F.3d at 407. Consequently, the judgment of the
district court is AFFIRMED. Kleinkauf’s motion for leave to review sealed
documents included in the appellate record is DENIED.



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