                           NOT FOR FULL-TEXT PUBLICATION
                                 File Name: 09a0321n.06
                                    Filed: May 6, 2009

                                           No. 08-3304

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,

               Plaintiff-Appellee,
                                                      ON APPEAL FROM THE
v.                                                    UNITED STATES DISTRICT
                                                      COURT FOR THE SOUTHERN
JOSHUA MCNALLY,                                       DISTRICT OF OHIO

            Defendant-Appellant.
_____________________________________/

BEFORE:        MARTIN, SUHRHEINRICH and WHITE; Circuit Judges.

       SUHRHEINRICH, Circuit Judge. Defendant Joshua McNally appeals the judgment of

the district court following his conviction of one count of knowingly possessing material containing

images of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Defendant entered a

conditional plea of guilty, reserving his right to challenge the district court’s denial of his

suppression motion. We AFFIRM.

                                         I. Background

       On March 29, 2004, Megan Wood went to the local office of the Federal Bureau of

Investigation and reported that she thought Defendant was involved with child pornography. Wood

told FBI agent Jeffrey Coburn that she had lived with and dated Defendant for approximately six




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months. They lived at 2300 San Rae Drive, Apartment A, in Kettering, Ohio. They ended their

relationship in February 2004, violently, with protection orders against each other.

       Wood told Coburn that she had found child pornography in the residence and at Defendant’s

studio. Defendant worked for Lifetouch Photography and took photographs of preschool children.

He also had a photography studio located at 915 Keowee Street, Dayton, Ohio. Wood said that she

found a directory on Defendant’s computer entitled “child kiddie” but that she was not able to access

the file because it was electronically locked. Wood stated that Defendant spent about $200 a month

on pornography subscriptions, and that he had such magazines throughout the house. She had found

numerous photographs of multiple underage females posing in sexual situations, including fondling

each other’s breasts and genitals. Wood recalled a box delivered to the house that contained a

photograph of a young nude female and a pair of women’s underwear. Wood also stated that there

were pornographic videos in the house, but Coburn could not remember if she said they involved

minors.

       Wood reported that McNally possessed voyeur videos and Japanese animated pornographic

videos. During their sexual encounters, Defendant would ask her to wear school-age outfits that he

had purchased for her.

       This information, along with his training and background in cyber crime investigations,

including child pornography, led Coburn to seek a federal search warrant for McNally’s studio and

residence. On April 6, 2004, FBI agents executed the two search warrants, uncovering evidence of

child pornography at Defendant’s residence but not his studio. No “child kiddie” file was found on

Defendant’s computer.




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       Defendant filed a motion to suppress this evidence, alleging that Coburn deliberately

included false information in the affidavit and requested a Franks [Franks v. Delaware, 438 U.S.

154 (1978)] hearing. Specifically, Defendant challenged the statement that he “strangled and struck

the complainant [Wood].” JA 205-06. Defendant claimed that this information undermined the

finding of probable cause.

       The district court conducted a Franks hearing. Coburn testified for the United States. He

stated that, based upon Woods’s claim, he did a NCIC check on both McNally and Wood and

verified that temporary protection orders had been issued against both individuals. Coburn stated

that he typically checked the criminal records provided of witnesses. On redirect he stated that once

he confirmed the fact of the protection orders, he was not interested in the details because it was not

relevant to his investigation. However, Coburn stated that he was a “little bit” concerned because

their breakup was not amicable and resulted in joint protection orders; he nonetheless considered

Wood credible.

       Defendant called Officer Tobias of the Kettering Police Department. Tobias responded to

a domestic violence call at the San Rae apartment in February 2004. Tobias testified that he did not

observe any injuries on Ms. Wood that night, and he did not make any arrests.

       The district court ruled that Wood’s statement about being strangled was false. The district

court found no Franks violation, however, because the inclusion of the statement in the affidavit was

not a deliberate falsehood or a reckless disregard for the truth. The court further found that even if

the statement was excluded, there was still sufficient probable cause to justify the search of

Defendant’s residence.




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       Thereafter, Defendant pleaded guilty to one count of possessing material containing child

pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2), and 2256(8)(A). The

written plea agreement reserved his right to appeal the denial of the motion to suppress. The district

court sentenced Defendant to a term of probation not to exceed three years, the first six months to

be served on home confinement, to register as a sex offender with a state registration agency, and

to have no personal contact with children under the age of 18. The judgment of conviction was

entered on February 20, 2008, and this timely appeal follows.

                                            II. Analysis

       In reviewing the district court’s denial of a motion to suppress, we review its factual findings

for clear error and its legal conclusion as to the existence of probable cause de novo. United States

v. May, 399 F.3d 817, 822 (6th Cir. 2005). The district court’s determination that an affidavit

provided sufficient probable cause to support issuance of a search warrant its entitled to “great

deference.” Id.

                                        A. Probable Cause

       Defendant contends the affidavit failed to establish probable cause to search his residence

because the complainant is never identified or disclosed to the magistrate, and there is no

independent corroboration.

       The principles governing this issue were recently summarized in United States v. Smith:

       A warrant will be upheld if the affidavit provides a “substantial basis” for the issuing
       magistrate to believe “there is a fair probability that contraband or evidence of a
       crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103
       S. Ct. 2317, 76 L.Ed.2d 527 (1983); United States v. King, 227 F.3d 732, 742 (6th
       Cir. 2000). The Supreme Court has adopted a “totality of the circumstances”
       approach to reviewing the sufficiency of an affidavit underlying a search warrant.
       Allen, 211 F.3d at 972 (citing Gates, 462 U.S. at 230-32, 103 S. Ct. 2317). Under this


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       approach, an issuing magistrate must “make a practical, common-sense decision
       whether, given all the circumstances set forth in the affidavit before him, including
       the ‘veracity’ and ‘basis of knowledge’ of persons supplying the hearsay
       information,” there is probable cause. King, 227 F.3d at 740 (quoting Gates, 462 U.S.
       at 238, 103 S.Ct. 2317). An officer may rely upon information obtained from a
       confidential informant “so long as the issuing judicial officer is reasonably assured
       that the informant was credible and the information reliable.” United States v.
       Williams, 224 F.3d 530, 532 (6th Cir. 2000).

               In determining whether there was sufficient probable cause to support the
       search warrant, United States v. Allen is particularly instructive. In Allen, this court,
       sitting en banc, sought to clarify Sixth Circuit law “regarding the necessary
       requirements for the issuance of a search warrant based on uncorroborated
       information from an informant.” 211 F.3d at 973 (quotation marks and citation
       omitted). The court noted that there is no general proposition “that a CI’s information
       must always be independently corroborated by police, or that an affidavit must in
       every case set out and justify a CI’s expertise in identifying the particularities of the
       criminal activity alleged.” Id. at 974. The court explained that an affidavit should be
       “judged on the adequacy of what it does contain, not on what it lacks, or on what a
       critic might say should have been added.” Id. at 975.

United States v. Smith, 510 F.3d 641, 652 (6th Cir. 2007).

       Here, although the affidavit did not identify the informant, it contained ample additional

information to provide probable cause. As the district court found:

       [T]his affidavit established probable cause to believe that child pornography would
       be found in Defendant’s apartment. Therein, Coburn set forth what the informant
       had told him, to wit: that she and the Defendant had been romantically involved for
       a period of six months; that their relationship had ended the preceding February; that
       she had spent a lot of time at his apartment during their relationship; that the
       Defendant had a large collection of pornography; that the informant had seen an
       electronic file folder on Defendant’s computer, in his pornography folder, entitled
       “child kiddie;” that the “child kiddie” file folder was the only one on his computer
       which the informant found to be locked; that in his bedroom she had observed a
       picture of a nude, young girl, who appeared to be a minor; that she had seen
       numerous other pictures of teenage girls posing in the nude and in sexual situations;
       that the Defendant had animated videos which featured young girls in their middle
       school years; and that, during their relationship, he had purchased a number of
       “school girl outfits,” which he wanted the informant to wear.




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       The magistrate judge’s determination is entitled to deference here. The informant acquired

the information firsthand based on her personal relationship with Defendant and provided substantial

and credible detail. Moreover, Coburn independently confirmed the following information Wood

provided: (1) via public records that McNally resided at 2300 San Rae Drive, Apartment A, and that

the studio was located at 915 Keowee, (2) McNally’s employment at Lifetouch Studios, and (3) joint

protection orders on both Defendant and Woods via NCIC. As this Court observed in United States

v. Tuttle, 200 F.3d 892 (6th Cir. 2000), “information received from an informant whose reliability

is not established may be sufficient to create probable cause when there is some independent

corroboration by the police of the informant’s information.” Id. at 894. Under the “totality of the

circumstances” based on the contents of the affidavit, there was probable cause to believe that

evidence of a crime would be found at Defendant’s residence and studio.

       Even if Defendant could demonstrate that the affidavit lacked probable cause, the good-faith

exception of United States v. Leon, 468 U.S. 897 (1984), would apply, because this affidavit is not

“so lacking in indicia of probable cause as to render official belief in it as entirely unreasonable.”

Id. at 923 (internal quotation marks and citation omitted).

                                        B. False Statements

       In reviewing a Franks challenge, we review de novo the district court’s legal conclusions and

its factual findings for clear error. United States v. Keszthelyi, 308 F.3d 557, 566 (6th Cir. 2002).

       In Franks, the Supreme Court held that a search warrant “must be voided” if, after a hearing,

the defendant establishes by a preponderance of the evidence (1) that “a false statement knowingly

and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant




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affidavit,” and (2) that “with the affidavit's false material set to one side, the affidavit's remaining

content is insufficient to establish probable cause.” Franks, 438 U.S. at 155-56.

       Paragraph 14 of the affidavit stated that the informant’s relationship with Defendant

terminated in February 2004 when “McNally strangled and struck complainant.” Defendant argues

that Coburn’s inclusion of that statement amounted to an intentional falsehood or reckless disregard

for its truthfulness. Defendant contends that Coburn should have contacted the Kettering, Ohio

Police Department, the agency which conducted the underlying investigation, to corroborate Wood’s

allegation. As noted, the district court found this statement false.

       Notwithstanding the court’s finding, Coburn’s reliance on Wood was not reckless. Coburn

personally interviewed Wood at the FBI office and deemed her credible. She was accompanied by

her aunt, who confirmed the volatile nature of Defendant’s and Wood’s relationship. In addition,

Coburn confirmed the existence of the protection orders, and further confirmed other details, as

noted above. Instead, as the district court held, Coburn was at most “negligent,” and there was “no

evidence that Coburn had even an inkling that his informant had been untruthful when he executed

his affidavit.” Thus, “the failure to conduct a more thorough investigation did not manifest a

reckless disregard for the truth.” And, as the district court further noted, suppression would not have

been warranted in any event since the excision of the statement did not affect the probable cause

determination. Rather, the statement “significantly increased the risk that [the magistrate judge]

would not find that probable cause existed, because the statements that Defendant had strangled and

struck the person who had supplied most of the information in that affidavit showed that revenge

could have motivated her to lie.” In short, there was no error under Franks.

                                           III. Conclusion


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For the foregoing reasons, the judgment of the district court is AFFIRMED.




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