                             NOT RECOMMENDED FOR PUBLICATION
                                    File Name: 18a0450n.06

                                                  No. 17-2154


                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT                                              FILED
                                                                                               Aug 29, 2018
 UNITED STATES OF AMERICA,                                        )                        DEBORAH S. HUNT, Clerk
                                                                  )
          Plaintiff-Appellee,                                     )
                                                                  )
                                                                           ON APPEAL FROM THE
 v.                                                               )
                                                                           UNITED STATES DISTRICT
                                                                  )
                                                                           COURT FOR THE WESTERN
 JUSTIN WALLING                                                   )
                                                                           DISTRICT OF MICHIGAN
                                                                  )
          Defendant-Appellant.                                    )
                                                                  )
                                                                  )

        BEFORE: ROGERS and BUSH, Circuit Judges; WATSON, District Judge.*

        MICHAEL H. WATSON, District Judge. A magistrate judge authorized a search warrant

for Appellant Justin Walling’s (“Walling”) residence based on an affidavit submitted by Phillip

Hesche (“Hesche”), a deputy sheriff with the Ionia County, Michigan Sheriff’s Office. The

warrant allowed the search of certain electronic devices located at Walling’s residence for evidence

of two crimes—1) coercion and enticement of a minor and 2) transfer of obscene material to

minors—but also permitted a search of these devices for child pornography and erotica. Evidence

discovered from the search of these devices led the police to discover another sexual abuse crime

by Walling, the one for which he was convicted here. In denying Walling’s motion to suppress

evidence, the district court found there was probable cause to support a search for evidence of

coercion and enticement of a minor as well as transfer of obscene material to minors, but no

probable cause to support a search for child pornography. The district court further found that the

portions of the warrant relating to child pornography were severable, and in any event, because the
* The Honorable Michael H. Watson, United States District Judge for the Southern District of Ohio, sitting by
designation.
No. 17-2154, United States v. Walling


officers relied on the issuance of the warrant in good faith, Walling’s motion to suppress was

denied. We affirm.

                                                 I.

       On May 17, 2016, a magistrate judge authorized a search warrant for Walling’s residence

at 822 Grindle Drive, Lowell, Michigan.        Hesche submitted an affidavit in support of the

application for a warrant. The Introduction and Purpose of the affidavit indicated that the warrant

would permit a search “for evidence, contraband, fruits, and instrumentalities of crime in violation

of 18 U.S.C. § 2422(b) (coercion and enticement of a minor) and 18 U.S.C. § 1470 (transfer of

obscene material to minors).” The factual background of the investigation provided in Hesche’s

affidavit related almost exclusively to these two crimes.

       The affidavit also included a substantial amount of general information regarding child

pornography, including a list of characteristics common to people involved in child pornography

as well as descriptions of how devices would need to be searched in order to locate child

pornography. Section II of Attachment B to the affidavit, which listed the “Items to be Seized and

Searched,” was incorporated by reference into the warrant, and sought to allow seizure of

correspondence and contact information pertaining to child pornography, any child pornography

actually found, and any material that was “child erotica.”

       Notwithstanding these pieces of information, the conclusion of the affidavit stated only

that there was probable cause for a search related to coercion and enticement of a minor and

transfer of obscene materials. Additionally, the “Items to be Seized and Searched” that were

incorporated into the warrant stated that the “items will be searched and seized to locate property,

evidence, fruits, and instrumentalities” of those two crimes, not child pornography.




                                                 2
No. 17-2154, United States v. Walling


           As Hesche stated in his affidavit in support of the search warrant, on January 15, 2016, he

was contacted by the mother of a 13-year-old girl (“AFP”), who had been receiving messages via

Facebook Messenger from Walling.1                  Hesche obtained permission to review the messages

exchanged between AFP and Walling and to assume AFP’s role in the conversation with Walling

in an attempt to learn why he was communicating with AFP. Prior to Hesche taking over the

communications, AFP and Walling only messaged over the course of approximately nine minutes

and the conversation was not overtly sexual. In that time, Walling asked AFP if she “want[ed] to

chill . . . sometime as friends only,” offered to send a picture of himself, and asked AFP her age

(which was not answered until after Hesche took over the communication).

           Once Hesche began messaging under AFP’s name, the conversation became sexually

explicit. After Walling was told that AFP was fourteen, he nevertheless proceeded to, among other

things, make three requests for a fully-clothed picture of AFP, discuss meeting without AFP’s

mother knowing, state that he had previously had sex with a different fourteen-year-old girl in

addition to “over less [sic] than 10 [other girls] younger than 18,” graphically discuss the ways

AFP and Walling would have sex if they met, and send a picture of his genitals to AFP.2 This

conversation took place initially on Facebook Messenger but continued on KiK.3

           Case investigators used investigative subpoenas to obtain subscriber information for the

individual sending the messages, which identified Walling, and his address in Lowell, Michigan.

Follow-up with the Lowell Police Department revealed that Walling had made regular, required

registrations as a sex offender at the identified address.



1
 Although Walling identified himself on Facebook as Justin Blade, it was eventually discovered that Walling was
sending these messages.
2
  Walling did at one point state that AFP is “to [sic] young to mess around with like that sorry but not going to jail
for a [criminal sexual conduct charge].”
3
    KiK is a mobile-only messaging application that allows users to create a pseudonym to communicate via text.

                                                           3
No. 17-2154, United States v. Walling


           Based on the facts as presented in Hesche’s affidavit, the magistrate judge issued a search

warrant that was executed on May 31, 2016. During the search, officers seized six cell phones, a

micro SD card, a laptop, a tablet, and an Xbox, none of which provided evidence used at trial.

However, Walling was present when the warrant was executed and spoke with the officers. During

this conversation, Walling admitted communicating and having sex with two underage girls as

well as possessing nude or sexually explicit pictures of the girls.

           Based on Walling’s description of one of the underage girls, police were able to locate the

victim in this case, KP. The police then used some information from Defendant’s cell phone to

assist in the investigation and in eliciting information from KP. Statements made by KP and the

contents of her phone were the evidence that led to Walling’s indictment.4

                                                       II.

           In general, when considering the denial of a motion to suppress, we review “the district

court’s factual findings for clear error and its legal conclusions de novo.” United States v. Lapsins,

570 F.3d 758, 763 (6th Cir. 2009). Nevertheless, a magistrate judge’s determination of probable

cause supporting a warrant is entitled to “great deference.” Illinois v. Gates, 462 U.S. 213, 236

(1983) (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969)). When reviewing a search

warrant for probable cause, we do not engage in “line-by-line scrutiny [of an underlying

affidavit],” but rather consider the “totality of the circumstances.” United States v. Allen, 211 F.3d

970, 972–73 (6th Cir. 2000) (en banc) (quoting Gates, 462 U.S. at 246 n.14). Therefore, our “after-

the-fact scrutiny . . . of the sufficiency of an affidavit should not take the form of de novo review.”

Gates, 462 U.S. at 236.




4
    No charges were brought based on the text messages exchanged between AFP (or Hesche) and Walling.

                                                        4
No. 17-2154, United States v. Walling


        The Fourth Amendment requires that warrants be issued only “upon probable cause,

supported by Oath or affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.” U.S. Const. amend. IV. In issuing a search warrant, a magistrate

judge is required “to make a practical, common-sense decision whether, given all the

circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or

evidence of a crime will be found in a particular place.” Lapsins, 570 F.3d at 763–64 (quoting

United States v. Terry, 522 F.3d 645, 648 (6th Cir. 2008)). “[P]robable cause requires only a

probability or substantial chance of criminal activity, not an actual showing of such activity.” Id.

at 764 (quoting Gates, 462 U.S. at 243 n.13).

                                                  A.

        Walling does not dispute that, as the trial court found, there was probable cause to search

for evidence of coercion and enticement of a minor and transfer of obscene material for minors.

He argues only that there was no probable cause to search for evidence of child pornography or

child erotica.

        As an initial matter, the structure of the affidavit leads to some confusion about the true

purpose of the search. As previously noted, the Introduction and Purpose section of the affidavit

began by stating that the application for a warrant was made to search for evidence of coercion

and enticement of a minor and transfer of obscene material. Likewise, the Conclusion does not

include any reference to child pornography, only the other two crimes. However, numerous

paragraphs in between refer to child pornography. (R. 21-1, Page ID# 118) (providing a definition

of “child pornography” under 18 U.S.C. § 2256 and stating that there is probable cause to believe

child pornography statutes have been violated); (id. at 119) (stating that the search should include




                                                   5
No. 17-2154, United States v. Walling


storage devices that could contain evidence of child pornography); (id. at 146–48) (describing

characteristics common to individuals with a sexual interest in children).

       But while there is significant discussion of child pornography, there are limited factual

allegations within the four corners of the affidavit that Walling engaged in the receipt or possession

of such materials.    The extent of such factual allegations in the affidavit consisted of the

conversation between AFP (or Hesche) and Walling described above, which included Walling’s

request for a fully-clothed picture of AFP; the pictures sent by Walling to AFP; and Walling’s

criminal history. This criminal history included Walling’s guilty plea in 2007 to two counts of

attempted criminal sexual conduct (“CSC”) with a person between the ages of 13–15 and a guilty

plea in 2008 to one count of possession of child sexually abusive materials. The affidavit also

stated that Walling’s sex offender registry noted an earlier conviction on Walling’s juvenile record

in 2004 for first degree CSC.

       While the affidavit here provided substantially more probable cause than the affidavit in

United States v. Hodson, 545 F.3d 286, 293 (6th Cir. 2008) (finding that a warrant lacked probable

cause to search for child pornography when it only established probable cause for child

molestation), we assume for purposes of this appeal that the district court correctly determined that

there was not probable cause to search for evidence of child pornography.

                                                 III.

       A determination that the warrant included some information that did not support probable

cause “does not doom the entire warrant.” United States v. Greene, 250 F.3d 471, 477 (6th Cir.

2001). Instead, the Court must sever the offending portions of the warrant, “suppress any evidence




                                                  6
No. 17-2154, United States v. Walling


collected under it, and admit the evidence collected under the valid portions that remain.” United

States v. Castro, 881 F.3d 961, 965 (6th Cir. 2018) (citing Greene, 250 F.3d at 477).

       The evidence used to link Walling to the victim in this case was Walling’s statements to

officers during the course of the search and information that was found on his cell phone.

Removing all portions of the affidavit that relate to child pornography would still have provided

probable cause for a search of Walling’s cell phone for evidence of coercion and enticement of a

minor and transfer of obscene materials. (R. 21-1, Page ID# 118) (“This investigation has revealed

that there is likely a computer device or devices with an internet connection . . . that have been

used to transfer sexually explicit material to and solicit sex from a minor under the age of 16

years.”); (id. at 156–59) (including cellular telephones in the list of items to be searched and seized

for evidence of coercion and enticement of a minor and transfer of obscene material to minors).

This more limited version of the warrant would also have resulted in the officers being at Walling’s

home to obtain his incriminating statements. Therefore, the evidence obtained from the search

was collected under a valid portion of the warrant and is severable.

       Walling argues that “[t]he lack of support for the full scope of the warrant made it a general

warrant.” However, as discussed above, the cure for an overbroad warrant is to sever the infirm

portions, not declare the entire search invalid. United States v. Castro, 881 F.3d 961, 965 (2018)

(citing Greene, 250 F.3d at 477).

       Finally, Walling urges us to adopt the Tenth Circuit’s test for severability as articulated in

United States v. Sells, 463 F.3d 1148 (10th Cir. 2006). In the approximately twelve years since




                                                  7
No. 17-2154, United States v. Walling


Sells was decided, we have never adopted its multi-step approach to severability of a search

warrant. The facts and argument presented in this case do not compel us to do so now.

                                              IV.

       For all these reasons, we AFFIRM the district court’s judgment.




                                               8
