                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           FEB 25 2011

                                                                        MOLLY C. DWYER, CLERK
UNITED STATES OF AMERICA,                        No.10-30157             U .S. C O U R T OF APPE ALS




              Plaintiff - Appellee,              D.C. No. cr-08-00120-WFN

  v.
                                                 MEMORANDUM *
TIMOTHY JONATHAN SCHMEKEL,

              Defendant - Appellant.



                 Appeal from the United States District Court
                    for the Eastern District of Washington
             Wm. Fremming Nielsen, Senior District Judge, Presiding

                      Argued and Submitted February 9, 2011
                               Seattle, Washington

Before: B. FLETCHER, PAEZ and IKUTA, Circuit Judges.


       Timothy Schmekel appeals the denial of his motion seeking to suppress the

images of child pornography found on his computer and cellular phone. We

affirm. Under the totality of the circumstances, the affidavit gave the magistrate

judge a substantial basis for concluding that there was probable cause for the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
search. Illinois v. Gates, 462 U.S. 213, 238-39 (1983). The magistrate judge did

not err in relying on hearsay statements in the affidavit because the basis for the

hearsay declarants’ statements was known, see United States v. Bishop, 264 F.3d

919, 925 (9th Cir. 2001), the accounts were consistent and interlocking, United

States v. Feeney, 984 F.2d 1053, 1055-56 (9th Cir. 1993), and some of the

information was corroborated by independent police investigation, Gates, 462 U.S.

at 244-45.

      Although the affidavit did not contain descriptions of specific images of

child pornography seen by the hearsay declarants, such specificity is not required

where, as here, there is sufficient evidence to support a “practical, common-sense

decision” that child pornography would probably be found in the residence. Id. at

238; see also United States v. Grubbs, 547 U.S. 90, 95 (2006). Here, the affidavit

included evidence that Schmekel’s admitted interest in child pornography led to a

police investigation and marital difficulties, raising the reasonable inference that

Schmekel was engaged in an unlawful activity and not merely indulging an interest

in non-pornographic images of children. That evidence also supported the

reasonable inference that Schmekel’s wife, the source of the hearsay evidence,

understood the meaning of the term “child pornography.” Nor does the affidavit’s

discussion of “collectors” undermine the magistrate judge’s conclusion that the


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affidavit provided a sufficient basis for probable cause, particularly given evidence

that Schmekel had accessed pornography regularly between 1998 and 2004, and

that he had stored child pornography on his cell phone and computer. Compare

with United States v. Weber, 923 F.2d 1338, 1345-46 (9th Cir. 1990). Therefore,

the district court properly denied Schmekel’s motion to suppress evidence obtained

during the search of his residence.

      Further, given the indicia of probable cause in the warrant and the lack of

evidence that the affiant intentionally or recklessly misinterpreted or omitted

material facts, or relied on illegally obtained evidence, the officers acted in good

faith, and thus the district court did not err in denying Schmekel’s motion to

suppress even if the affidavit had been flawed. United States v. Leon, 468 U.S.

897, 919 n.20 (1984).

      AFFIRMED.




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