                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0471n.06

                                          No. 11-1429

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                         FILED
UNITED STATES OF AMERICA,                                                           May 03, 2012
                                                                              LEONARD GREEN, Clerk
       Plaintiff-Appellee,

v.                                                   ON APPEAL FROM THE UNITED
                                                     STATES DISTRICT COURT FOR THE
RUBEN STEVEN RANKE,                                  EASTERN DISTRICT OF MICHIGAN

       Defendant-Appellant.

                                              /



BEFORE:        SUHRHEINRICH, MOORE, and CLAY, Circuit Judges.

       CLAY, Circuit Judge. Defendant Ruben Steven Ranke pleaded guilty to one count of

mailing child pornography, in violation of 18 U.S.C. § 2252A(a)(1), following an order by the

district court that denied Defendant’s motion to suppress evidence discovered in his residence

pursuant to a search warrant. The district court reasoned that the search warrant was supported by

probable cause and that the good faith exception otherwise applied. For the reasons that follow, we

AFFIRM.

                                        BACKGROUND

       In March of 2008, authorities at the Federal Correctional Institution in Ray Brook, New York

(FCI Ray Brook) intercepted the incoming mail of an inmate named Adam Brown, who was serving

time for violations of federal child pornography law. Among Brown’s incoming mail was an Easter

greeting card mailed from Flint, Michigan. Inside the card, authorities discovered four photographs
                                           No. 11-1429

of a naked male minor depicted masturbating with his genitals exposed. Prison officials then

searched Brown’s cell and seized several items, including multiple handwritten letters and Brown’s

personal address book.

       The only entry in Brown’s address book matching Michigan was a listing for one “Steve

Ranke” at “5065 State, #273, Saginaw, MI.” Brown also had in his possession two handwritten

letters signed by a “Steve.” The letters described, in crude code, the author’s desire to engage in

sexual activity with young boys. “Steve” used a musical band as a metaphor to describe his

fantasies, describing sex as “a jam session,” other child molesters as “band members,” and “playing

the flute” and “playing the drums” to describe oral and anal sex with minor boys.

       “Steve” also suggested that he possessed, viewed, and transmitted child pornography. In one

letter he described in detail a “.jpg” of a “musician” who “wore a black ski mask” during a “jam

session” with “a nice set of bongo drums.” In the same letter, “Steve” noted that he was “sending

some pics with this letter.” In another, “Steve” mentioned “sending some .jpgs with this letter” and

signed the correspondence, “Enjoy.”

       “Steve” also alluded to acts that went beyond mere fantasy, describing how he introduced a

ten-year-old boy to anal sex and how he hoped to adopt a “needy kid[] needing a family.” “Steve”

also wrote about the rewards and challenges involved with his employment working with

developmentally delayed elementary school students. He described fantasizing about several ninth

grade students in another of his classrooms.




                                                 2
                                           No. 11-1429

       Prison authorities confronted Brown about the greeting card and the photographs recovered

from his incoming mail, as well as the letters seized from his cell. Brown told prison officials that

if they “did their due diligence on Ranke in Saginaw, they were on the right track.”

       Acting on Brown’s tip and the evidence recovered from his cell, officers tracked the address

listed in Brown’s book to a UPS store located in Saginaw, Michigan. Box number 273 was rented

to Defendant. Using various law enforcement databases, officers confirmed that Defendant used the

mailbox as his mailing address, and they tracked Defendant a second mailbox at the same UPS store.

Officers also connected Defendant to residential address located at 4049 Ann Street in Saginaw.

Officers confiscated trash left outside the Ann Street residence and found small amounts of

marijuana and several pieces of mail addressed to various individuals, none of whom were

Defendant.

       On April 29, 2008, a state district judge signed a search warrant for the two UPS mailboxes

and the Ann Street residence. After executing the warrants on the mailboxes, officers learned that

Defendant also rented two storage units and obtained additional search warrants for the units.

       When officers went to execute the search warrant on the Ann Street address that same day,

they learned that the house was the residence of Defendant’s sister, Shelly Fulton. Fulton told

officers that Defendant sometimes used the house as a mailing address, but that he never lived there.

Fulton explained that Defendant lived with his parents at 1749 Wood Street, also in Saginaw. In

addition, Fulton informed the officers that Defendant worked with autistic children at an area public

school. Through public records, officers confirmed that the 1749 Wood Street address was owned




                                                  3
                                            No. 11-1429

and occupied by Defendant’s father. Based on this information, officers applied for and obtained

an additional search warrant for the 1749 Wood Street residence.

       On April 30, 2008, officers executed the search warrant at 1749 Wood Street. Family

members provided officers with a key to Defendant’s locked, second-story bedroom. There, officers

seized several video recording and movie-making devices, a laptop computer with four external hard

drives, VHS tapes, DVDs, and floppy disks. Officers also seized numerous firearms, several

marijuana plants, and drug paraphernalia. A subsequent forensic examination of the digital media

seized from Defendant’s room revealed a large amount of child pornography.

       Subsequently, Defendant pleaded guilty in state court to possession of a firearm while in

commission of a felony, in violation of Mich. Comp. Laws § 750.227b. He was sentenced to two

years incarceration in state prison on December 2, 2009. While Defendant was in the custody of the

State of Michigan awaiting trial on the firearms charge, a federal grand jury for the Eastern District

of Michigan returned a two-count indictment charging Defendant with one count of mailing child

pornography, in violation of 18 U.S.C. § 2252A(a)(1), and one count of possessing child

pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). After Defendant completed his state

sentence, he was immediately taken into federal custody for trial on the federal child pornography

charges.

       On August 3, 2010, Defendant moved to suppress all evidence and derivative evidence

discovered from the searches of the UPS mailboxes, the storage units, 4049 Ann Street, and 1749

Wood Street. The government stipulated that the only items it intended to use were those recovered




                                                  4
                                             No. 11-1429

from the search of 1749 Wood Street. Accordingly, the district court dismissed without prejudice

Defendant’s suppression motions related to the other locations.

         On October 29, 2010, the district court entered a lengthy order denying Defendant’s motion

to suppress the evidence seized from 1749 Wood Street. Following the unfavorable ruling,

Defendant pleaded guilty to one count of mailing child pornography. Pursuant to a plea agreement,

the possession of child pornography charge was dismissed, and Defendant preserved his right to

appeal the district court’s suppression decision. Shortly thereafter, Defendant lodged this timely

appeal. Original jurisdiction exists under 18 U.S.C. § 3231; this Court takes jurisdiction under 28

U.S.C. § 1291.

                                             ANALYSIS

         On appeal, Defendant challenges the district court’s denial of his motion to suppress.

Defendant contends that the motion should have been granted because the evidence seized from 1749

Wood Street was obtained pursuant to a search warrant affidavit that did not establish probable

cause.

         This Court applies a mixed standard of review in evaluating a district court’s ruling on a

motion to suppress. United States v. Howard, 621 F.3d 433, 450 (6th Cir. 2010). We review a

district court’s findings of fact for clear error and any of its related conclusions of law de novo. Id.

         The Fourth Amendment provides the “right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures . . . ” and demands that “no

Warrants shall issue, but upon probable cause, supported by Oath or affirmation.” U.S. Const.

amend. IV. “In deciding whether to issue a search warrant, the Fourth Amendment requires ‘the


                                                   5
                                            No. 11-1429

issuing magistrate . . . simply 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.” United States v. Terry, 522 F.3d 645, 648

(6th Cir. 2008) (quoting Illinois v. Gates, 462 U.S. 213 238 (1983)). Probable cause “requires only

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

Gates, 462 U.S. at 243 n.13. Additionally, there must be “a nexus between the place to be searched

and the evidence sought.” United States v. Gardiner, 463 F.3d 445, 470 (6th Cir. 2006) (internal

citations omitted).

       “When judging the sufficiency of an affidavit to establish probable cause in support of a

search warrant, the Supreme Court has repeatedly said that after-the-fact scrutiny should not take the

form of a de novo review. Rather, reviewing courts are to accord the magistrate’s determination

‘great deference.’” United States v. Lapsins, 570 F.3d 758, 763 (6th Cir. 2009) (quoting Gates, 462

U.S. at 236) (additional internal citations and quotations omitted). “When an affidavit is the basis

for a probable cause determination, the affidavit ‘must provide the magistrate with a substantial basis

for determining the existence of probable cause.’” United States v. Thomas, 605 F.3d 300, 307 (6th

Cir. 2010) (quoting Gates, 462 U.S. at 239). “Search warrant affidavits are to be judged on the

totality of the circumstances, not line-by-line scrutiny.” Id. (internal citations omitted).

       Detective Brian Pitt submitted a four-page affidavit to establish probable cause to search

1749 Wood Street. The affidavit described the circumstances in which the Easter card and the four

images were seized by prison officials from Brown’s incoming mail. Significant to Defendant’s

appeal, the affidavit described the images found in the card as “‘computer generated photographs’


                                                   6
                                           No. 11-1429

of a minor male” that “displayed that male naked, exposing his genital areas and apparently

masturbating.”

       The affidavit also described the address book, with its entry for “Steve Ranke,” the two

letters authored by “Steve” that were discovered in Brown’s cell, and Brown’s statement to prison

authorities that if they investigated “Ranke in Saginaw” they would be “on the right track.” The two

letters were attached to the affidavit; however, the photographs were not.

       Finally, Detective Pitt detailed the authorities’ follow-up investigations linking Defendant

first to the UPS mailboxes and to the address on Ann Street and then, by virtue of the statements

made by Defendant’s sister and further public records searches, to the address on Wood Street.

       In contending that these facts did not establish probable cause, Defendant highlights several

specific alleged deficiencies with the affidavit. In Defendant’s primary argument, he seizes upon

the affidavit’s description of the images as “computer generated photographs.” Defendant points to

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the Supreme Court case which held certain

portions of the Child Pornography Prevention Act of 1996 (CPPA) overbroad and unconstitutional.

Under Free Speech Coalition, so-called “virtual” child pornography which does not involve real

children, but instead uses so-called “computer generated images” (CGI images) to depict minors

engaged in sexually explicit acts, is speech protected under the First Amendment. See United States

v. Fuller, 77 F. App’x 371, 379 (6th Cir. 2003). Defendant contends that the images, as described

in the affidavit as “computer generated,” would not have been illegal; therefore, they could not have

provided probable cause to support a search warrant.




                                                 7
                                             No. 11-1429

          Defendant’s argument is without merit. Although the affidavit’s mention of the term

“computer generated” is somewhat problematic given commonly-used computer terminology and

the legal distinction drawn by Free Speech Coalition, Defendant ignores the fact that the phrase

“computer generated” was also immediately coupled with the description of the images as

“photographs.” Calling the images “photographs” suggested that the images were, in fact, those of

a real child and not CGI depictions. At best, the affidavit’s phrasing was internally contradictory.

Although this minor, technical contradiction might have warranted further inquiry by the state judge,

it does not merit suppression of the seized evidence on appellate review. Furthermore, we note that

Defendant now admits that the images were, in fact, photographs of a real minor child.

          Next, Defendant argues that the affidavit was insufficiently detailed. He points out that the

affidavit does not indicate how Detective Pitts determined that the images were of a minor and that

Detective Pitts’ description of a boy “apparently masturbating” suggests that he never actually

viewed the images personally. Defendant claims these deficiencies were compounded when

Detective Pitts failed to attach the images to the affidavit for the state court judge’s independent

review.

          The implication, to the extent one exists, that Detective Pitts never viewed the images

personally, as well as his failure to attach the photographs to the search warrant affidavit, are both

factors that should have played into the state court judge’s probable cause analysis. However,

neither precluded the judge from issuing the search warrant. First, an officer is entitled to rely on

information supplied by other officers or agencies for the purposes of a search warrant affidavit,

provided that the information and its sources are accurately described for the reviewing judge’s


                                                   8
                                            No. 11-1429

independent evaluation. See United States v. Yusuf, 461 F.3d 374, 385 (3d Cir. 2006); United States

v. Jenkins, 525 F.2d 819, 823 (6th Cir. 1975) (per curiam). Detective Pitts fulfilled that requirement

when he provided an accurate description of the circumstances under which he “received information

from federal authorities” regarding the greeting card, the accompanying photographs, and the

incriminating evidence discovered in Brown’s cell. Likewise, Detective Pitts’ failure to attach the

photographs themselves did not prevent the search warrant from being issued. A magistrate judge

need not view all the evidence personally to make its decision, and the probable cause stage only

requires an affidavit to show the “‘probability or substantial chance of’ possession of images of

actual children; ‘an actual showing’ that the images depicted real children” is not required. Lapsins,

570 F.3d at 765 (citing Gates, 462 U.S. at 243 n.13).

       Finally, Defendant argues that because the government agreed not to use any of the evidence

that was retrieved from the other searches, whatever corroborating evidence was discovered between

the confiscation of Brown’s prison mail and the search of 1749 Wood Street should not have

factored into the district court’s suppression analysis. He also points out that the letters were

undated, that they primarily described child molestation, and that the affidavit did not connect the

“Steve” in the letters to the “Steve Ranke” in Brown’s address book.

       Defendant’s arguments completely ignore, however, that the physical pictures seized from

Brown’s mail were not the only evidence that suggested Brown was being sent child pornography

by a “Steve” at “5065 State, #273, in Saginaw, Michigan.” Even if we set aside the incriminating

evidence discovered in the other locations, as Defendant suggests, the evidence found in Brown’s




                                                  9
                                             No. 11-1429

cell, coupled with Brown’s tip and the statements made by Defendant’s sister provided probable

cause to support the search warrant.1

        In the letters seized from Brown’s cell, which were attached to the affidavit for the state court

judge’s review, “Steve” mentioned that he possessed and viewed child pornography, describing one

“.jpg” in some detail. “Steve” also stated that he had sent Brown “pics” and “.jpgs” on prior

occasions. Contrary to Defendant’s assertions, the letters therefore went far beyond descriptions of

sexual fantasies or of child molestation, and the letters provided probable cause to believe their

author was also a consumer of child pornography. Cf. United States v. Hodson, 543 F.3d 286, 293

(6th Cir. 2008). Moreover, that the letters were undated and that the affidavit did not mention

whether multiple “Steves” were listed in Brown’s address book were facts only to be considered in

their totality with the other circumstances, such as that Brown was a federal inmate serving time for

child pornography, who had limited mail access, and whose address book listed only one address

from the State of Michigan.

        Moreover, Brown’s non-confidential statement to authorities provided additional cause to

believe that the “Steve Ranke” listed in Brown’s address book would have child pornography in his

possession. See United States v. Dyer, 580 F.3d 386, 391 (6th Cir. 2009) (citing United States v.

May, 399 F.3d 817, 824–25 (6th Cir. 2005)). Although Brown’s actual statement may have been

vague, the letters and the address book were not. The contents of those detailed, written sources were




       1
         Defendant acknowledges that he cannot challenge the search of 4049 Ann Street or the
officers’ conversations with his sister that resulted therefrom, as he had no protected privacy interest
in that residence.

                                                   10
                                           No. 11-1429

fully corroborated when officers linked the name and address listed in Brown’s book to an individual

who went by the name “Steve Ranke” and who worked with developmentally disabled children.

       In the instant case, Detective Pitts’ affidavit provided ample, specific facts to support the

state court judge’s determination that there was a fair probability that child pornography would be

found in Defendant’s home. Accordingly, the district court correctly denied Defendant’s motion to

suppress. Because the warrant was supported by probable cause, we need not rely on the good faith

exception to excuse any of the affidavit’s non-material deficiencies.2 See United States v. Leon, 468

U.S. 897, 923 (1984); United States v. Chapman, 112 F. App’x 469, 474 (6th Cir. 2004) (citing

United States v. Savoca, 761 F.2d 292, 296–98 (6th Cir. 1985)).

                                         CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s order denying the motion to

suppress.




       2
        Furthermore, Defendant has provided no evidence to suggest that Detective Pitts acted
recklessly or deliberately to mislead the state court judge. See Leon, 468 U.S. at 923.

                                                 11
