                                                                             FILED
                            NOT FOR PUBLICATION                               JUN 03 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 10-30172

              Plaintiff - Appellee,               D.C. No. 2:09-cr-00174-JCC-1

  v.
                                                  MEMORANDUM *
JOHN ROBERT RIGBY,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Western District of Washington
                   John C. Coughenour, District Judge, Presiding

                         Argued and Submitted May 6, 2011
                                Seattle, Washington

Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.

       John Robert Rigby appeals from the district court’s judgment in his criminal

case on federal child pornography charges. Rigby conditionally pleaded guilty to

the charges, but reserved his right to appeal the district court’s order denying his

motion to suppress evidence. We review de novo the district court’s ruling on the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
motion to suppress, as well as the district court’s determination regarding an

overbreadth challenge to the warrant, see United States v. Adjani, 452 F.3d 1140,

1143 (9th Cir. 2006), and we review for clear error whether the judge who issued

the warrant had a substantial basis for concluding that probable cause existed, see

United States v. Hay, 231 F.3d 630, 634 n.4 (9th Cir. 2000). We review for clear

error the district court’s findings regarding omissions and misrepresentations in the

affidavit supporting the warrant. See United States v. DeLeon, 979 F.2d 761, 763

(9th Cir. 1992). We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

The parties are familiar with the factual background and the facts underlying each

challenge and thus we do not include them here.

      The judge who issued the warrant did not clearly err in determining that the

warrant was supported by probable cause. The information contained in the

affidavit supporting the warrant was not stale due to the unique nature of the crime

and the recency of Rigby’s contact with the victim. See United States v. Bowman,

215 F.3d 951, 964 (9th Cir. 2000) (“A search warrant is not stale where there is

sufficient basis to believe, based on a continuing pattern or other good reasons, that

the items to be seized are still on the premises.” (internal alteration and quotation

marks omitted)); United States v. Dozier, 844 F.2d 701, 707 (9th Cir. 1988) (“The

mere lapse of substantial amounts of time is not controlling in a question of


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staleness.”). Further, the warrant was sufficiently linked to the residence that was

searched and “probable cause exist[ed] to believe that an offense ha[d] been

committed and that items related to that offense, such as fruits of the crime,

w[ould] be found on the premises.” United States v. Rabe, 848 F.2d 994, 997

(9th Cir. 1988).

      Nor was the warrant fatally overbroad. Not all of Rigby’s overbreadth

arguments are properly before this court. See United States v. Murillo, 288 F.3d

1126, 1135 (9th Cir. 2002) (explaining that arguments not first raised before the

district court in a motion to suppress are waived). As to Rigby’s arguments rightly

before us, the affidavit created probable cause to search the items listed in the

warrant. See Maryland v. Garrison, 480 U.S. 79, 84 (1987) (explaining that Fourth

Amendment requires that a warrant be limited “to the specific areas and things for

which there is probable cause to search”).

      In the alternative, even if the issuing judge clearly erred in determining that

probable cause supported the warrant, the good faith exception applies. See United

States v. Leon, 468 U.S. 897, 922 (1984) (holding suppression of “evidence

obtained in objectively reasonable reliance on a subsequently invalidated search

warrant” is not required).




                                           3
      Finally, the district court did not err in determining that the officer did not

submit an affidavit that contained “deliberate falsehood or reckless disregard for

the truth.” Franks v. Delaware, 438 U.S. 154, 171 (1978); see also United States

v. Gourde, 440 F.3d 1065, 1073 n.5 (9th Cir. 2006) (en banc) (“[F]ailure to

investigate fully is not evidence of an affiant’s reckless disregard for the truth.”

(internal quotation marks omitted)).

      AFFIRMED.




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