                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-4197
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Southern District of Iowa.
Duane Bradley McCoy,                     *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: April 13, 2007
                                 Filed: April 20, 2007
                                  ___________

Before MELLOY, BOWMAN, and GRUENDER, Circuit Judges.
                         ___________

BOWMAN, Circuit Judge.

       Duane Bradley McCoy entered a conditional guilty plea to a charge of
possessing child pornography, 18 U.S.C. § 2252(a)(4)(B) (2000). After sentencing,
he filed this appeal, challenging the order of the District Court1 denying his motion to
suppress. We affirm.




      1
        The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa. Judge Pratt now serves as Chief Judge for the Southern District of
Iowa.
        On January 14, 2004, Detective Randy Hutchinson of the Albia, Iowa, police
department was contacted by a day-care provider who reported the alleged sexual
abuse of a four-year-old girl by McCoy, the live-in boyfriend of the girl's mother. An
employee of the Iowa Department of Human Services, the Albia police chief, and
Hutchinson went to the mother's residence. The child, her mother, and McCoy were
all interviewed, and ultimately McCoy was arrested for sexually assaulting the child.
When McCoy declined a request to search his laptop computer, the police chief took
custody of the computer. The next day, Hutchinson secured a warrant, authorized by
a state magistrate judge, to search McCoy's computer and his car. The child
pornography that was the subject of the charge to which McCoy pleaded guilty was
found during a forensic investigation of the computer.

      McCoy first challenges the District Court's conclusion that the search of his
computer was supported by probable cause. We review the court's legal conclusion
de novo and any supporting factual findings for clear error. United States v. Gettel,
474 F.3d 1081, 1085–86 (8th Cir. 2007). On review, we consider the totality of the
circumstances "to ensure that the magistrate had a 'substantial basis for . . .
conclud[ing]' that probable cause existed." Illinois v. Gates, 462 U.S. 213, 238–39
(1983) (quoting Jones v. United States, 362 U.S. 257, 271 (1960)).

      By definition, probable cause "deals 'with probabilities. These are . . . the
factual and practical considerations of everyday life on which reasonable and prudent
men . . . act.'" Id. at 241 (quoting Brinegar v. United States, 338 U.S. 160, 175
(1949)) (alterations by this Court). Hutchinson's sworn application for the search
warrant set out in detail the accusations of the four-year-old alleged victim of McCoy's
sexual abuse. The application also noted that McCoy's girlfriend had told Hutchinson
that McCoy had a pornographic CD-ROM whose title—"Teen Tryouts, Audition
2"—indicated that underage persons may have been involved. Moreover, Hutchinson
averred that after an initial denial, McCoy admitted that indeed there was "old
pornography" on his computer. Search Warrant Application at 3, Attachment A.

                                          -2-
Taken together, we conclude that these facts—alleged sexual abuse of a toddler,
possession of pornography likely involving minors, and pornography admittedly on
McCoy's computer—establish probable cause to search the computer for pornography
involving children. Based on the information in Hutchinson's warrant application, the
magistrate made a "practical, common-sense decision" that there was a "fair
probability" that evidence of a crime (possession of child pornography) would be
found on McCoy's computer. Gates, 462 U.S. at 238.

       As for the search of McCoy's car, the warrant application did not provide any
additional facts to support a finding of probable cause to search the vehicle
specifically. That is, nothing was set out to indicate why Hutchinson thought there
was a fair probability he would find child pornography in a search of McCoy's car.2
 The District Court determined that the warrant application did not establish probable
cause to search the vehicle. But the court decided that the good-faith exception to the
Fourth Amendment exclusionary rule applied in this case. United States v. Leon, 468
U.S. 897 (1984) (setting out the exception). That is, "Hutchinson acted reasonably in
relying on the state magistrate's determination that [McCoy's] vehicle, in fair
probability, would provide contraband or evidence of illegal activity." Mem. Op. &
Order of Oct. 26, 2004, at 11. On appeal, McCoy argues that Hutchinson did not act
in good faith. We review the District Court's application of the Leon exception
de novo. See United States v. Hallam, 407 F.3d 942, 945 (8th Cir. 2005).




      2
        According to the District Court, the items retrieved from the car included "a
pair of female toddler underwear, nude images of female adults, and a three-bladed
knife." Mem. Op. & Order of Oct. 26, 2004, at 7. It seems unlikely that any of these
items would be used as evidence to prove that McCoy possessed child pornography,
especially since the authorities found actual child pornography on his computer. But
McCoy sought suppression in the District Court, and he appeals that court's denial, so
we will decide the issue.

                                         -3-
       It is clear from the evidence presented at the suppression hearing that the state
magistrate, when authorizing the warrant, was not acting as a "rubber stamp" for
Hutchinson in his quest to search the car. Leon, 468 U.S. at 914 (quoting Aguilar v.
Texas, 378 U.S. 108, 111 (1964)). The magistrate sought additional information,
questioning Hutchinson about the basis for his interest in searching McCoy's vehicle.
Hutchinson disclosed to the magistrate in conversation that he wanted to search the
car because he had seen that McCoy had an unusual amount of personal property in
the car and because McCoy kept the vehicle locked, not allowing access to anyone
else. Because there is no indication in the record that Hutchinson conveyed this
additional information to the state magistrate judge under oath, we agree that the
warrant application did not establish probable cause to search McCoy's car. Cf.
United States v. Olvey, 437 F.3d 804, 807 (8th Cir. 2006) (noting that probable cause
must be determined from the warrant affidavit alone if there is no evidentiary hearing
before the issuing magistrate). Nevertheless, we conclude that Hutchinson acted in
good faith in executing the warrant based on the magistrate's approval. Hutchinson
was aware that the magistrate knew the precise reasons that Hutchinson thought he
might find evidence in the car. He was fully justified in believing that the magistrate
relied on that additional information—which Hutchinson believed to be true even if
he did not testify to it under oath—when authorizing the warrant. We hold that
conducting the search in reliance on the warrant was "objectively reasonable" and that
the Leon exception therefore applies. Leon, 468 U.S. at 919.

      The District Court's denial of McCoy's motion to suppress is affirmed.
                      ______________________________




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