                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4858


UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

          v.

GREGORY THOMAS MILLER,

                Defendant-Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, Senior
District Judge. (6:11-cr-00004-NKM-1)


Submitted:   June 17, 2013                 Decided:   July 23, 2013


Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY,
Charlottesville, Virginia, for Appellant.    Timothy J. Heaphy,
United States Attorney, Roanoke, Virginia; Mythili Raman, Acting
Assistant Attorney General, Denis J. McInerney, Deputy Assistant
Attorney General, April A. Christine, Assistant United States
Attorney, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Gregory Thomas Miller (“Miller”) appeals from the district

court’s     denial    of    his    motion          to   suppress       certain    evidence

obtained during a search conducted at a DUI checkpoint. For the

reasons set forth below, we affirm the judgment of the district

court.



                                               I

      Miller, a 57-year-old man, was riding as passenger in his

pickup truck, which was driven by L.A.J., a 16-year-old female

who   was    not     related      to       him.     When     stopped    at   a    sobriety

checkpoint     on    the    Blue       Ridge       Parkway    in   Rockingham      County,

Virginia, National Park Service Rangers found that L.A.J. had no

driver’s license or learner’s permit and that Miller’s driver’s

license was suspended. Officers then checked L.A.J.’s status and

learned     that    she    had    been      recently       reported     missing    to   the

National Crime Information Center (“NCIC”) by both her mother,

who lived in Michigan, and by her father, who lived in Texas.

      Officers observed a marijuana seed on the seat of Miller’s

truck and conducted a search of the vehicle. While searching

Miller’s truck, officers found marijuana, women’s underwear, a

bag of recently purchased sex toys, two glass pipes containing

marijuana     residue,       and       a     smoked        marijuana     cigarette.      In

addition, officers found various electronic devices, including

                                               2
digital recording equipment, several memory cards, and a laptop

computer.

      When questioned by officers, L.A.J. stated that she had

been driving with Miller from Michigan and that she had shared a

hotel room with him on two nights. Miller admitted that he took

L.A.J.      from        Michigan   without      her    mother’s       knowledge      or

permission and stated that he was driving L.A.J. to Texas to

request that her father sign emancipation papers. Miller claimed

that he had previously purchased the sex toys for his adult

girlfriend who lived in Louisiana, though a receipt in the bag

showed that he had purchased the items only a few days earlier,

while on his way to Michigan from Louisiana to pick up L.A.J.

Officers looked at pictures on Miller’s digital camera and found

nothing of significance. When they requested Miller’s consent to

search his computer, Miller refused, stating that the computer

contained nude pictures of his girlfriend that she would not

want officers to see. Miller was placed under arrest, L.A.J. was

taken into custody, and Miller’s property was impounded.

      Law    enforcement       officers      obtained    a    warrant     to   search

Miller’s electronic devices. The search warrant that authorized

the   search       of    the   electronic      devices   was       supported   by    an

affidavit authored by FBI Special Agent James Lamb, who was not

present     at   the     initial   stop.    Agent     Lamb   was    not   aware     that



                                           3
officers had viewed the pictures contained on Miller’s digital

camera at the time he filed the affidavit.

     The affidavit stated that the intended search of Miller’s

electronic devices was for evidence of the crime of possession

of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(A)

and the separate crime of causing or encouraging acts rendering

children       delinquent   in   violation   of   section   18.2-371     of   the

Virginia Code. 1 In support of probable cause, the affidavit set

forth a number of statements, including that:

           •    Miller was a 57-year-old man traveling with L.A.J., a

                16-year-old girl who was not related to him.

           •    L.A.J. was reported as an outstanding missing person

                or runaway with NCIC.

           •    Miller   admitted   that   he   took   L.A.J.    from   Michigan

                without her mother’s permission.

           •    Miller’s    vehicle    contained       a   bag    of    recently

                purchased sex toys.




     1
        Section 18.2-371 of the Code of Virginia provides
penalties for “[a]ny person . . . who (i) willfully contributes
to, encourages, or causes any act, omission, or condition which
renders a child delinquent, in need of services, in need of
supervision, or abused or neglected . . . , or (ii) engages in
consensual sexual intercourse with a child 15 or older not his
spouse, child, or grandchild.”


                                       4
             •    L.A.J. initially denied that Miller took pictures of

                  her during their trip, but later acknowledged that

                  Miller had taken pictures of her.

             •    Miller refused to give officers consent to examine

                  his   computer,         claiming    that        the    computer      contained

                  “pornographic” pictures of his girlfriend.

             •    L.A.J.’s mother reported that she and L.A.J. formerly

                  lived      in     a     trailer     on      Miller’s          property         for

                  approximately          one   year     but        moved      after     L.A.J.’s

                  mother found Miller sleeping in a bed with L.A.J. and

                  another     14-year-old          minor,    all        of   whom     were      fully

                  clothed.

        In       executing        the     search     warrant        on       Miller’s        laptop

computer,         officers        discovered,        among        other       things,        videos

depicting         L.A.J.      performing       oral         sex     on       Miller.       He    was

subsequently charged in the United States District Court for the

Western      District        of    Virginia    with     seven       counts       of    producing

child pornography in violation of 18 U.S.C. § 2251(a), one count

of   transporting          child        pornography    in     violation         of    18     U.S.C.

§ 2251(a)(1), one count of possession of child pornography in

violation of 18 U.S.C. § 2251(a)(4)(A) and 2252(b)(2), and one

count    of       possession       of    marijuana     in     violation         of    21     U.S.C.

§ 844.



                                               5
      Miller moved to suppress the evidence found on his laptop

computer pursuant to the search warrant and requested a hearing

pursuant to Franks v. Delaware, 438 U.S. 154 (1978). He argued

that the affidavit supporting the warrant failed to establish

probable cause and contained material omissions, including the

reason that his vehicle was initially stopped and that officers

conducted a warrantless search of his electronic devices during

that stop. Miller also contended that the affidavit omitted his

statement that the sex toys were for his adult girlfriend in

Louisiana and that he was not referring to L.A.J. when he stated

that he had photographs of his girlfriend on his computer. Only

the   Lamb    affidavit        and    search    warrant   were   attached        to   his

motion;      Miller    did     not    present     an    affidavit    or    any    other

evidence to support his contentions.

      The     district       court     conducted       evidentiary   hearings         and

denied both Miller’s motion to suppress and his request for a

Franks hearing. In denying the motion, the district court stated

that the affidavit “contains more than sufficient allegations to

allow the issuing magistrate to conclude that there was probable

cause to find that Miller’s computer and other devices contained

evidence of child pornography, or Miller’s contribution to the

delinquency of a minor, or both.” J.A. 217–18.

      Miller subsequently filed an additional motion to suppress

and   a   second      motion    for    a   Franks   hearing,     arguing    that      the

                                            6
sobriety    checkpoint     was    an   unreasonable      warrantless       stop    and

that   Agent      Lamb’s   affidavit     contained      additional        omissions,

including that L.A.J.’s father had removed her as a runaway with

NCIC   on   the    night   of    Miller’s    arrest;    that     Miller    had    text

messages from L.A.J.’s father showing that he was aware she was

traveling with Miller; that officers improperly viewed images on

Miller’s digital camera during the initial stop; and officers

refused to return items seized from his vehicle. Miller also

argued that he never stated that the pictures of his girlfriend

on   his    computer   were      “pornographic.”       Again,    Miller     did   not

support his arguments with an affidavit or any other competent

evidence.

       The district court held a second suppression hearing and

heard testimony from Miller and Ranger Miranda Cook, an officer

who was present at the initial stop. Miller testified that he

did not give officers consent to search his truck and that he

showed officers text messages from L.A.J.’s father demonstrating

that he knew she was traveling to Texas with Miller. Further,

Miller also testified that he stated to officers only that his

computer     contained     pictures     that    his      adult     girlfriend      in

Louisiana would not want them to see, not that it contained

anything pornographic. Ranger Cook testified that at the time of

the initial stop, the NCIC report on L.A.J. showed outstanding

missing person reports from both of L.A.J.’s parents.

                                         7
      The    district     court    then    granted     Miller’s       request     for   a

Franks hearing “[o]ut of an abundance of caution,” J.A. 468, and

Miller withdrew his claim that the checkpoint stop was unlawful.

At the Franks hearing, Agent Lamb testified that, among other

things, he was not aware that Miller had told the arresting

officers that the sex toys were for his adult girlfriend, that

he was not aware that Miller or L.A.J. had communicated with

L.A.J.’s father, and that he was not aware that an arresting

officer had looked at pictures on Miller’s digital camera before

he applied for a warrant. The arresting officer, Ranger Cyr,

then testified that he was not aware of any text messages from

L.A.J.’s father, that Miller had informed him that the laptop

computer      contained     “inappropriate         nude      photographs”       of   his

girlfriend (though Miller did not use the term “pornographic”),

and that the pictures he viewed on Miller’s digital camera were

innocuous     travel     scenes.    Miller     then    testified       that     L.A.J.’s

father knew that he was driving L.A.J. to Texas and that he

showed      the    arresting      officers     text    messages       from      L.A.J.’s

father. Miller provided no evidence of the text messages from

L.A.J.’s father other than his own testimony.

      After       the   hearing,    the    district       court      denied    Miller’s

Franks motion and concluded that the omission of innocuous facts

by   the    arresting    officers     to   Agent      Lamb    were    not     deliberate

misrepresentations.         The    district     court        then    held     that   the

                                           8
uncontroverted     facts   in   Agent       Lamb’s   affidavit      provided   the

magistrate judge with a substantial basis for concluding that

probable cause existed to search Miller’s laptop computer for

evidence of both offenses: the federal child pornography crimes

as well as the Virginia crime of contributing to the delinquency

of a minor. The district court also concluded that Miller failed

to meet his burden of showing a Franks violation.

     Miller then entered a conditional guilty plea to all counts

pursuant to a plea agreement, retaining his right to appeal the

district   court’s    rulings     on        his    suppression      motions.   The

district   court   sentenced     Miller       to   300    months’    imprisonment

followed by a life term of supervised release.

     Miller timely appealed. We have jurisdiction pursuant to 28

U.S.C. § 1291.



                                       II

     We review a district court’s findings of fact in ruling on

a motion to suppress for clear error and legal determinations de

novo. United States v. Lewis, 606 F.3d 193, 197 (4th Cir. 2010)

(motion to suppress); United States v. Gary, 528 F.3d 324, 327

(4th Cir. 2008) (Franks motion). We construe the evidence in the

light   most   favorable   to   the    prevailing        party   below,   in   this

case, the government. United States v. Holness, 706 F.3d 579,

588 (4th Cir. 2013).

                                        9
                                           III

      Miller raises two issues on appeal. First, he argues that

the   affidavit      submitted        by   Agent        Lamb   did    not     provide      the

magistrate     judge       with   a    sufficient         basis      to     conclude      that

probable cause existed for the issuance of a search warrant.

Second,   Miller       argues     that     the      omissions        and     misstatements

included in Agent Lamb’s affidavit were made with a reckless

disregard     for    the    truth,     violating         Franks      and    rendering      the

search warrant invalid. We address each argument in turn.



                                              A

      Miller argues that the evidence presented in the affidavit

bears no connection to child pornography and, thus, failed to

establish probable cause to justify the search of his electronic

devices for child pornography.

      In reviewing the validity of a search warrant, we consider

whether, under the totality of the circumstances, the issuing

judge   had   a     substantial       basis       for   concluding         that   there    was

probable cause to issue the warrant. United States v. Grossman,

400 F.3d 212, 217 (4th Cir. 2005). Here, we have no trouble

concluding that Agent Lamb’s affidavit provided the magistrate

judge with a substantial basis to decide that probable cause

existed as to two crimes, possession of child pornography in

                                           10
violation     of   18   U.S.C.    § 2252(a)(5)(A)      and        causing     acts

rendering a child delinquent in violation of section 18.2-371 of

the Code of Virginia. Agent Lamb’s affidavit established that

Miller had driven from Louisiana to Michigan to pick up L.A.J.

and that on the way there he stopped and purchased sex toys.

Miller took L.A.J. without her mother’s knowledge or permission

and had thereafter shared hotel rooms with L.A.J. on at least

two nights. Her mother had previously witnessed Miller sharing a

bed with L.A.J. and suspected Miller of having an inappropriate

sexual relationship with her daughter. Miller also traveled with

digital recording devices, several memory cards, and a laptop

computer that he admitted contained inappropriate nude images of

his   adult   girlfriend   that   he   did     not   want   law     enforcement

officers to see. L.A.J. also admitted to police that Miller had

taken pictures of her while on their trip.

      Taken together, the above uncontroverted facts permit the

inference that Miller had an inappropriate sexual relationship

with L.A.J., that Miller had the capability of taking sexually

explicit    photographs    and   videos   of    L.A.J.,     and    that     Miller

stored sexually explicit photographs or videos of other women he

had a sexual relationship with on his laptop computer, which was

available to L.A.J.

      Agent Lamb’s affidavit thus sets forth uncontroverted facts

that established probable cause to search Miller’s electronic

                                    11
devices         and   provided    a    substantial    basis      for   the   magistrate

judge      to    conclude      that    Miller’s   electronic      devices     contained

evidence of possession of child pornography in violation of 18

U.S.C. § 2252A(a)(5)(A) or of violating section 18.2-371 of the

Code       of    Virginia. 2     The     magistrate      judge    therefore     had   a

substantial basis upon which to conclude that probable cause

existed to conduct the search of Miller’s electronics and, thus,

to issue the search warrant. 3



                                             B

       Alternatively,          Miller    argues   that    Agent    Lamb’s    affidavit

could not establish probable cause, as it was based upon the

false       claim       that     Miller      said     his     computer       contained

“pornographic” pictures of his girlfriend. Also, Agent Lamb’s

       2
       Furthermore, Miller took L.A.J. away from her home without
her parents’ knowledge or permission, causing two missing person
reports to be filed; Miller’s truck contained marijuana and
other drug paraphernalia; and Miller, with a suspended driver’s
license, permitted L.A.J., a minor with no driver’s license to
operate his vehicle upon a public highway.
     3
       In support of his arguments, Miller cites a recent Third
Circuit opinion, Virgin Islands v. John, 654 F.3d 412 (3d Cir.
2011). Miller’s reliance on John is misplaced, though, as the
facts of that case are easily distinguishable from those before
us. Among other things, in John, the Third Circuit concluded
that the affidavit failed to establish any link between the
defendant’s crime of molesting children at his place of work and
whether he might possess child pornography at his residence.
John, 654 F.3d at 419. In contrast, in this case, Agent Lamb set
forth a series of facts linking Miller with an underage girl,
sex toys, and digital recording equipment, all at the same time
and place, making John inapposite.


                                            12
use of the generic term “girlfriend” in his affidavit implied

that    Miller     was     referring     to     L.A.J.,        when,    in    fact,     he   was

referring to his adult girlfriend in Louisiana. Miller further

contends       that   several        omissions       from      Agent    Lamb’s        affidavit

defeat       the   magistrate        judge’s    conclusion        that       probable     cause

existed. Among other things, Miller argues that Agent Lamb’s

affidavit omitted that arresting officers found only innocuous

pictures on Miller’s camera, that Miller claimed the sex toys

were for his adult girlfriend in Louisiana, that one of the

missing person reports concerning L.A.J. was later removed, and

that Miller had sent and received text messages with L.A.J.’s

father. Taken together, Miller argues, these misstatements and

omissions by Agent Lamb violate Franks and require invalidation

of the search warrant and suppression of all evidence seized

during       the   search       of   Miller’s        laptop     computer        and    related

devices.

       In Franks, the Supreme Court held that a “search warrant

must be voided and the fruits of the search excluded” if a

defendant establishes, by a preponderance of the evidence, that

the affidavit supporting that warrant included false statements

made “knowingly and intentionally, or with reckless disregard

for the truth” and that those false statements were “necessary

to     the    finding      of    probable       cause”         such     that,    “with       the

affidavit’s        false    material      set       to   one    side,    the     affidavit’s

                                               13
remaining content is insufficient to establish probable cause.”

Franks, 438 U.S. at 155–56.

      Here, even excluding all controverted statements from Agent

Lamb’s     affidavit       and     including         the    omissions       that    Miller

alleges,      the   affidavit      would      support       the    magistrate       judge’s

finding of probable cause. Accepting Miller’s arguments, Agent

Lamb’s   affidavit         would    still      have       included    the    facts     that

(1) neither       Miller    nor    L.A.J.      had    a    valid     driver’s      license;

(2) L.A.J. was the subject of two outstanding missing person

reports at the time of Miller’s arrest; (3) L.A.J., a minor, was

traveling across the country with Miller, a 57-year-old man who

was not her relation; (4) Miller and L.A.J. shared a hotel room

on two nights, though Miller claimed that they slept in separate

beds; (5) Miller claimed to be taking L.A.J. from Michigan to

Texas,   but      actually    took      her    in    the    opposite       direction,    to

Virginia;      (6) Miller’s        truck       contained       a     bag    of     recently

purchased sex toys; (7) the truck contained marijuana and other

drug paraphernalia; (8) the truck contained a laptop computer,

digital recording devices, and numerous memory cards; (9) Miller

told officers that he did not want them to search his laptop

computer because it contained nude or inappropriate pictures of

his   adult    girlfriend;         (10) L.A.J.        admitted       to    officers    that

Miller     took     pictures       of    her        during     their       travels;     and

(11) L.A.J.’s mother reported to officers that she was concerned

                                              14
that Miller had an inappropriate sexual relationship with L.A.J.

Even including the additional information that officers searched

Miller’s      camera   and     found   no    inappropriate      pictures,     the

magistrate judge would still have had a substantial basis for

finding    probable    cause    that   Miller   had   created    or    possessed

child pornography or had contributed to the delinquency of a

minor. Franks therefore does not require invalidation of the

search warrant or suppression of the fruits of the search of

Miller’s computer.



                                       IV

     For all the foregoing reasons, the judgment of the district

court is affirmed. We dispense with oral argument because the

facts   and    legal   contentions     are   adequately   presented      in   the

materials     before   this    court   and   argument   would    not    aid   the

decisional process.



                                                                        AFFIRMED




                                       15
