                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 19, 2009
                    UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 08-8036
          v.                                            (D. Wyoming)
 JAMES ALLEN STEVAHN,                              (D.C. No. 07-CR-157-D)

               Defendant-Appellant.



                           ORDER AND JUDGMENT *


Before HENRY, Chief Judge, McWILLIAMS and GORSUCH, Circuit Judges.



      James Stevahn appeals the district court’s denial of his motion to suppress

evidence that officers seized from his Gillette, Wyoming home computer, which,

according to the officer’s affidavit supporting the search warrant, had been

targeted as a “download candidate” for child pornography by “law enforcement

officers from around the world.” Rec. vol. I, doc. 25, Att. 1 (Ex. B, Huff Aff.

¶ 4t). While we acknowledge the infirmity of the search warrant’s probable



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
cause, we hold the seized evidence admissible under the good faith exception the

Supreme Court outlined in United States v. Leon, 468 U.S. 897 (1984).

                           I. FACTUAL BACKGROUND

      On March 19, 2007, Special Agent Randy Huff, of the Wyoming Division

of Criminal Investigation, received an assignment to investigate Mr. Stevahn’s

Gillette, Wyoming computer that “had been seen as a download candidate by

other law enforcement officers from around the world.” Rec. vol. I, doc. 25, Att.

1 (Ex. B, Huff Aff. ¶ 4t). According to Agent Huff’s affidavit in support of a

March 27, 2007 application for a search warrant, “[t]he computer was observed

by officers to have all or a portion of a movie that is suspected of being child

pornography. . . . Two police officers observed that computer as a download

candidate for the child porn movie with the SHA1 value H6v . . . EJTN [and

Internet protocol] address 69.45.198.82.” Id.

      SHA1 (or SHA-1) is a mathematical algorithm that stands for Secure Hash

Algorithm (SHA). “The United States has adopted the SHA-1 hash algorithm” for

“computing a condensed representation of a message or data file”; thus it can act

“like a fingerprint.” See United States v. Warren, No. 4:08 CR 189 RWS, 2008

WL 3010156, at *1 n.4 (E.D. Mo. July 24, 2008). The Internet protocol (“IP”)

address Agent Huff noted designates “[a]n Internet location – called an Internet

protocol address[, which] is a string of integer numbers separated by periods.”

Avery Dennison Corp. v. Sumpton, 189 F.3d 868, 871 (9th Cir. 1999).

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      The circuit court of Campbell County issued a warrant to search Mr.

Stevahn’s apartment on the same day, and, later that day, officers seized computer

hard drives and storage devices alleged to contain images of child pornography.

Mr. Stevahn was charged with one count of Receipt of Child Pornography in

violation of 18 U.S.C. § 2552A(a)(2)(A) and (b)(1) (count 1), and two counts of

Possession of Child Pornography in violation of 18 U.S.C. § 2552A(a)(5)(B) and

(b)(2) (counts 2 and 3). Mr. Stevahn entered a conditional plea of guilty to count

1 (Receipt of Child Pornography), subject to this appeal. He received a sentence

of 235 months’ imprisonment, plus supervised release for a term of life.

                                  II. DISCUSSION

      Mr. Stevahn appeals the district court’s application of the United States v.

Leon exception to the exclusionary rule, which allows admission of otherwise

excludable evidence when the officers acted in good faith. 468 U.S. 897 (1984).

The district court determined that Agent Huff’s affidavit submitted in support of

the warrant was lacking in probable cause, but that it was not so lacking in indicia

of probable cause so as to make Agent Huff’s belief in it unreasonable. We agree

with the district court’s reasoning.

      A.     Standard of Review

      On an appeal from the denial of a motion to suppress, we review factual

findings for clear error in the light most favorable to the government. United

States v. Cantu, 405 F.3d 1173, 1176 (10th Cir. 2005). We review the warrant’s

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probable cause requirement “very deferential[ly],” searching only for a substantial

basis that the underlying affidavit provided probable cause. United States v.

Riccardi, 405 F.3d 852, 860 (10th Cir. 2005). Finally, even if the above do not

indicate probable cause, we may uphold the search if de novo review indicates

that Leon applies. Id.

      B.     The Affidavit did not Provide Sufficient Evidence of Probable Cause.

      Although we could simply affirm the district court on the basis of the good

faith exception, our circuit encourages “the policy of avoiding ‘freezing’ Fourth

Amendment jurisprudence, discussed by the Court in Leon, [which] compels us in

this case to resolve the constitutional issue” so that magistrate judges and law

enforcement officers are given some guidance in their decisionmaking. United

States v. Dahlman, 13 F.3d 1391, 1398 (10th Cir. 1993); see Leon, 468 U.S. at

924 (“[N]othing will prevent reviewing courts from deciding the [Fourth

Amendment] question before turning to the good-faith issue.”). Further, in this

case, it would “be difficult to determine whether [Agent Huff] acted reasonably

without resolving the Fourth Amendment issue.” Leon, 468 U.S. at 925. Thus,

like the district court, we first consider the affidavit Agent Huff submitted in

support of his application for the search warrant.

      According to the district court, the first third of the warrant is “boilerplate”

and the officer “just fill[ed] in the blanks.” Rec. vol. III, at 11. It also outlines

the process through which Agent Huff might identify SHA1 signatures: “Once a

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matching set of digital signatures was identified, [Agent Huff] could use publicly

available software to request a list of internet network computers that are reported

as download candidates of known images. This feature allows [Agent Huff] to

conduct undercover operations that involve images of child sexual abuse.” Rec.

vol. I, doc. 25, Att. 1 (Ex. B, Huff Aff. ¶ 4n).

      The second part of the affidavit notes, but fails to explain, how “officers

from around the world” came to perceive Mr. Stevahn’s computer as a “download

candidate:”




Id. ¶ 4t. The balance of the affidavit describes the computer items necessary for a

computer expert to conduct a thorough investigation of activities conducted on a

computer.

      At the hearing on the motion to suppress, the district court expressed its

dismay with the affidavit more frankly: “What we’re dealing with here . . . is a

boiler plate affidavit where you plug in the address, you have a place where you

can throw in a photograph, and the language is markedly similar, if not identical,

to language presented to the Court in other cases.” Rec. vol. III, at 5. The court

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determined, however, that the use of the boilerplate language standing alone, did

not cause concern, rather, the affidavit’s omissions troubled the court. Rec. vol.

I, doc. 29, at 4-5.

       The court agreed with Mr. Stevahn’s argument that no information was

given as to the investigative techniques the officers used, the software the officers

used, what it was used for, or its reliability, not to mention the identity of the

officers or where they were from. See id. at 4 (“The use of such a generic label

breeds suspicion that the affiant knew very little about them.”). And, although

the “SHA1 value” has a certain “reliability,” this is limited as to whether the

tagged item is a pornographic movie or not, see Rec. vol. I, doc. 25, Att. 1 (Ex. B,

Huff Aff. ¶ 4t); this has no relation to Mr. Stevahn’s computer. Accordingly, we

agree with the district court’s depiction of the affidavit’s verbiage: “This

language is awfully general.” Rec. vol. III, at 14.

       In addition, defense counsel offered simple alternatives that would have

saved the affidavit:

              If we’re not going to identify the officers or where they’re
              from or what kind of investigative techniques they used
              then at least let’s identify the manner in which they
              identified this defendant’s computer because what we’re
              left with, . . . is this agent’s manner, and his manner
              doesn’t tell us what the name of the software is that he’s
              using or the reliability of that software.

       ....

       [W]hat we’re asking for isn’t going to be earth-shattering here

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      . . . . All the officer has to do is say, “I received this information from
      officers around the world who informed me they used ‘X’ software to
      identify this computer as one trafficking these illicit images, and that
      software is known to be reliable.”

Rec. vol. III, at 6, 9. Noting the district court’s experience in these matters and

its concerns, officers should consider including such indicia of reliability going

forward in these cases.

      As to independent corroboration of Agent Huff’s statement, we agree with

the defendant that there is no corroboration apart from certain unidentified

officers somewhere in the world having seen Mr. Stevahn’s computer as an

undefined “download candidate” by virtue of the unknown unidentified publicly

available software. We also agree with the district court that the affidavit facially

lacked probable cause because there was “no information connecting information

regarding [Agent] Huff’s experience to the observations of the ‘two officers’ or

officers ‘around the world.’” Rec. vol. I, doc. 29, at 5.

      The government’s argument in support of the sufficiency of the evidence in

support of probable cause is similarly unhelpful. Arguing that “[t]he district

court and [Mr. Stevahn] find fault (and lack of probable cause) with the absence

of language which connects the Background portion of the affidavit with the

Current Investigation portion,” the government argues that it “believe[s] that such

a conclusion can only be reached by interpreting the affidavit in a hypertechical

[sic] rather than a common sense manner.” Aple’s Br. at 10. The district court’s


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rationale is neither “hypertechical” nor hypertechnical, it reflects practical, real

concerns that should be addressed.

      Finally, we agree that Agent Huff’s inability to testify at the hearing left

these deficiencies unremedied. “While an assessment of the affidavit’s showing

of probable cause will be made looking only at the affidavit itself, testimony from

the affiant would aid the Court in determining whether or not the affidavit’s

deficiencies were merely a function of sloppy draftsmanship.” Rec. vol. I, doc.

29, at 5-6 n.1. Accordingly, we hold that the district court’s assessment that the

affidavit lacked sufficient evidence to provide probable cause was correct.

      C.     The Leon Exception to the Exclusionary Rules Applies.

      We turn finally to the application of the Leon exception to the exclusionary

rule, which is designed to deter future unlawful police misconduct. 468 U.S. at

906 (noting that the exclusionary rule operates as a “judicially created remedy

designed to safeguard Fourth Amendment rights generally through its deterrent

effect, rather than a personal constitutional right of the party aggrieved”).

Evidence seized pursuant to an invalid warrant need not always be suppressed.

Herring v. United States, 129 S. Ct. 695, 701 (2009) (“The fact that a Fourth

Amendment violation occurred – i.e., that a search or arrest was unreasonable –

does not necessarily mean that the exclusionary rule applies. Indeed, exclusion

has always been our last resort, not our first impulse, and our precedents establish

important principles that constrain application of the exclusionary rule.” (internal

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quotation marks and citations omitted)). “Inherent in Leon’s exception to the

exclusionary rule is the view that permitting people to get away with crime is too

high a price to pay for errors that . . . stem from negligence rather than disdain for

constitutional requirements.” United States v. Woolsey, 535 F.3d 540, 546 (7th

Cir. 2008) (internal quotation marks omitted).

      “When police act under a warrant that is invalid for lack of probable cause,

the exclusionary rule does not apply if the police acted ‘in objectively reasonable

reliance’ on the subsequently invalidated search warrant. We (perhaps

confusingly) called this objectively reasonable reliance ‘good faith.’” Herring,

129 S. Ct. at 701 (quoting Leon, 468 U.S. at 922, and n.23); United States v.

Rowland, 145 F.3d 1194, 1206 (10th Cir. 1998) (“In Leon, the Supreme Court

modified the Fourth Amendment exclusionary rule by holding that evidence

seized pursuant to a search warrant later found to be invalid need not be

suppressed if the executing officers acted in objectively reasonable, good-faith

reliance on the warrant.”).

      In Leon, the Court also identified four specific situations in which an

officer’s reliance on a subsequently invalidated warrant could not be considered

to be objectively reasonable: (1) when the warrant is issued on the basis of an

affidavit that the affiant knows (or is reckless in not knowing) to contain false

information; (2) when the issuing magistrate abandons his neutral and detached

role and serves as a rubber stamp for police activities; (3) when the affidavit is so

                                          -9-
lacking in indicia of probable cause that a belief in its existence is objectively

unreasonable; and (4) when the warrant is so facially deficient that it cannot

reasonably be presumed to be valid. See 468 U.S. at 923. In Herring, the

Supreme Court clarified that abuses that give rise to the exclusionary rule are

narrow, and most typically involve flagrant police misconduct:

             An error that arises from nonrecurring and attenuated
             negligence is thus far removed from the core concerns that
             led us to adopt the rule in the first place. And in fact since
             Leon, we have never applied the rule to exclude evidence
             obtained in violation of the Fourth Amendment, where the
             police conduct was no more intentional or culpable than
             this.

129 S. Ct. at 702.

        Mr. Stevahn appears to raise situation (3) (so lacking in indicia of

probable cause) and (4) (facial deficiency) together. We briefly examine these

two situations in tandem. Mr. Stevahn’s arguments center around the reliability

of the affidavit, and its lack of corroboration, without recognizing the agent’s

ability to rely on the issuing judge’s determination.

      “[W]hen reviewing an officer’s reliance upon a warrant, we must determine

whether the underlying documents are “devoid of factual support, not merely

whether the facts they contain are legally sufficient. Thus, it is only when an

officer’s reliance was wholly unwarranted that good faith is absent.” United

States v. McKneely, 6 F.3d 1447, 1454 (10th Cir. 1993) (emphasis in original)

(internal quotation marks and citations omitted). “A corollary to the presumption

                                         -10-
in favor of good faith reliance upon warrants is that police officers should be

entitled to rely upon the probable-cause determination of a neutral magistrate

when defending an attack on their good faith for either seeking or executing a

warrant particularly where, with the benefit of hindsight and thoughtful reflection,

reviewing judges still cannot agree on the sufficiency of the affidavit.” Id.

(internal quotation marks omitted).

      We agree with the district court that Agent Huff’s affidavit, while in part

boilerplate, was not “bare bones.” Rec. vol. I, doc. 29, at 7; United States v.

Wilhelm, 80 F.3d 116, 121 (4th Cir. 1996) (A bare bones affidavit is one that

contains “wholly conclusory statements, which lack the facts and the

circumstances from which a magistrate can independently determine probable

cause.” (quoting United States v. Laury, 985 F.2d 1293, 1311 n.23 (5th Cir.

1993)). A “bare bones” affidavit is usually insufficient because it falls into

Leon’s third exception, as not providing “the magistrate with a substantial basis

for determining the existence of probable cause.” See Wilhelm, 80 F.3d at 123

(finding “bare bones” affidavit insufficient for this reason).

      Agent Huff’s affidavit was not so wholly conclusory that a neutral

magistrate could not independently determine probable cause. As the district

court noted, the affidavit included a detailed accounting of the various

investigatory techniques Agent Huff used and “set forth the reasons for his belief

that a search of [Mr. Stevahn’s] apartment would yield evidence of child

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pornography. Additionally, it included additional investigatory steps taken to link

the observed IP address to [Mr. Stevahn’s] computer.” Rec. vol. I, doc. 29, at 7.

We do not believe that this is a case where Agent Huff acted objectively

unreasonably, thus his conduct did not “trigger the exclusionary rule.” Herring,

129 S. Ct. at 702 (requiring “police conduct . . . be sufficiently deliberate that

exclusion can meaningfully deter it, and sufficiently culpable that such deterrence

is worth the price paid by the justice system” to trigger the exclusionary rule).

                                 III. CONCLUSION

        The problems with the warrant were not so egregious so as to restrict the

operation of Leon’s good faith exception. Thus, we therefore AFFIRM the

district court’s denial of Mr. Stevahn’s motion to suppress.

                                                 Entered for the Court,



                                                 Robert H. Henry
                                                 Circuit Judge




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