19‐339‐cr
United States v. John Stacy


                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 12th day of February, two thousand twenty.

PRESENT:            DENNIS JACOBS,
                    GUIDO CALABRESI,
                    DENNY CHIN,
                                         Circuit Judges.
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UNITED STATES OF AMERICA,
                    Appellee,

                                        ‐v‐                                             19‐339‐cr

JOHN STACY,
                                        Defendant‐Appellant.

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FOR APPELLEE:                                                CARINA H. SCHOENBERGER, Assistant United
                                                             States Attorney, for Grant C. Jaquith, United
                                                             States Attorney for the Northern District of
                                                             New York, Syracuse, NY.
FOR DEFENDANT‐APPELLANT:                 MELISSA A. TUOHEY, Assistant Federal Public
                                         Defender, (Lisa A. Peebles, Federal Public
                                         Defender, on the brief), for Office of the Federal
                                         Public Defenders, Syracuse, NY.



             Appeal from the United States District Court for the Northern District of

New York (McAvoy, J.).

             UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

             Defendant‐appellant John Stacy appeals from a judgment of the district

court entered January 24, 2019 convicting him of five counts of receipt of child

pornography and one count of possession of child pornography in violation of 18 U.S.C.

§§ 2252A(a)(2)(A) and 2252A(a)(5)(B). Following a suppression hearing, Stacy pled

guilty to all six counts pursuant to a conditional plea agreement that permitted him to

appeal the suppression ruling. Stacy now challenges the district courtʹs denial of his

motion to suppress. We assume the partiesʹ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

             On September 11, 2017, in Norwich, New York, a woman saw a man on a

motorized bicycle drop a cellphone. She picked it up and turned it over to Police

Officer Alicia Woodard. Based on Woodardʹs testimony at the suppression hearing, the

district court determined that as soon as Woodard accessed the cellphone to identify its

owner, she saw an image of a naked, prepubescent female whose genital area was


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exposed. Woodard reported this image to her supervisor, Detective Sergeant Reuben

Roach, who then applied for a state warrant to search the rest of the phone.

             The state warrant ‐‐ later determined by the district court to have issued

without probable cause ‐‐ was executed on September 12, 2017 by Roach, who

conducted a manual search of the phone and discovered numerous images and videos

depicting child pornography on it. The contact list displayed only one contact: John

Stacy. Stacyʹs name was listed under the word ʺME,ʺ which matched the name

associated with the Facebook account the phone was logged into. Roach checked

Stacyʹs name against a sex offender database and confirmed that Stacy was registered as

a Level II sex offender in New York.

             On September 14, 2017, Roach called Stacy into the Norwich City Police

Department, where he waived his Miranda rights, participated in a recorded interview

in which he admitted to downloading the images and videos on his phone, and was

arrested. About a week later, Roach met with Special Agent Jenelle Bringuel of the

Federal Bureau of Investigation, who then applied for a federal search warrant. The

federal warrant was issued and executed, and a forensic analysis of the phone revealed

extensive child pornography. Stacy was charged in this case.

             On appeal, Stacy makes two arguments: (1) the warrantless search of his

cellphone violated the Fourth Amendment and (2) the district court erroneously held

that the good‐faith exception to the exclusionary rule applied. We address these issues


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in turn, reviewing the district courtʹs ʺlegal conclusions de novo and its findings of fact

for clear error.ʺ United States v. Iverson, 897 F.3d 450, 459 (2d Cir. 2018).

       1.     Warrantless Search

              The Fourth Amendment of the Constitution protects against

ʺunreasonable searches and seizures.ʺ U.S. Const. amend. IV. Although police officers

usually require a warrant to conduct a search, they may execute a limited, warrantless

search of lost property to identify the owner and inventory the item(s). Gudema v.

Nassau Cty., 163 F.3d 717, 722 (2d Cir. 1998). Under the plain‐view doctrine, police

officers do not violate a defendantʹs Fourth Amendment rights when they ʺencounter[]

incriminating evidence,ʺ the incriminating nature of which is ʺimmediately apparent,ʺ

as long as they have a ʺlegitimate reasonʺ for conducting the search. United States v.

Babilonia, 854 F.3d 163, 180 (2d Cir. 2017) (internal quotation marks omitted).

              As Stacy points out, there were inconsistent statements about whether

Woodard saw an image of a naked child before she identified the phoneʹs owner. But

the district court credited Woodwardʹs suppression hearing testimony that she saw the

image as soon as she accessed the cellphone. Because we give special deference to the

district courtʹs finding of fact based on witness credibility, see Iverson, 897 F.3d at 459,

we agree that there was no Fourth Amendment violation with respect to Woodardʹs

initial search of the cellphone.




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       2.     The Good‐faith Exception

              Stacy contends that the evidence obtained pursuant to the state warrant

and all the evidence that followed, including the evidence obtained pursuant to the

federal warrant, should have been suppressed because the initial state warrant was

invalid. The fruits of a search conducted pursuant to a warrant that issued without

probable cause, however, will not be suppressed if the officers reasonably relied on the

warrant in good faith. United States v. Leon, 468 U.S. 897, 920 (1984). An officerʹs

reliance on a search warrant is unreasonable where: (1) the judge who issued the

warrant was purposefully misled; (2) the judge who issued the warrant ʺwholly

abandoned his judicial roleʺ; (3) the affidavit accompanying the warrant application is

ʺso lacking in indicia of probable cause as to render official belief in its existence entirely

unreasonableʺ; or (4) the warrant is so ʺfacially deficient . . . that the executing officers

cannot reasonably presume it to be valid.ʺ Id. at 923. Though ʺmost searches conducted

pursuant to a warrantʺ fall within the good‐faith exception, the government

nevertheless bears the burden of demonstrating that officers were objectively

reasonable in relying on an invalid warrant. United States v. Clark, 638 F.3d 89, 100 (2d

Cir. 2011).

              The initial state warrant issued without probable cause. There is nothing

in the record to suggest, however, that the state judge who issued the warrant was

purposefully misled or ʺwholly abandoned his judicial role.ʺ Leon, 468 U.S. at 923.


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Thus, as long as the government proved that Roach reasonably relied on the warrant

and that the warrant was not ʺfacially deficientʺ to the point where he could not

presume it to be valid, the good‐faith exception will apply. Id. The district court found

that the government met this burden. We agree.

              The warrant application indicated there was an image on the subject

phone that was ʺconsistent with child pornography.ʺ J. Appʹx at 62. Moreover, Roach

testified that he related Woodardʹs description of the photograph to the issuing judge ‐‐

that an ʺapproximately five‐year‐old femaleʺ was naked and ʺposing.ʺ J. Appʹx at 179.

Roach conferred with the issuing judge several times, and the warrant issued. Under

these circumstances, it was not unreasonable for Roach to have believed there was

probable cause to search Stacyʹs phone.

              Relatedly, the warrant was not ʺso facially deficientʺ that a reasonable

police officer would have thought it was invalid. Leon, 468 U.S. at 923. The example of

a facially deficient warrant provided by the Leon Court is one that does

not ʺparticularize the place to be searched or the things to be seized.ʺ Id. Here, the state

warrant identified the cellphone to be searched, explained that Woodard ʺcame across

what appeared to be child pornography,ʺ and noted the type of evidence to be seized:

ʺevidence of a crime(s) committed against a child or children or evidence of other

unlawful act(s).ʺ J. Appʹx at 67 (emphasis added). The warrantʹs authorization to seek

ʺevidence of unlawful act(s)ʺ was ʺnot sufficiently particular with respect to the things


                                            ‐6‐
to be seized because it effectively granted the executing officer[] ʹvirtually unfettered

discretion to seize anything [he saw].ʹʺ United States v. George, 975 F.2d 72, 75 (2d Cir.

1992) (quoting United States v. Mankani, 738 F.2d 538, 546 (2d Cir. 1984)). However, if an

officer was ʺintimately familiar with the contemplated limits of the searchʺ and never

ʺsearch for, or seized, any items that were unrelated to the crimesʺ initially

contemplated, the good‐faith exception applies. United States v. Rosa, 626 F.3d 56, 65 (2d

Cir. 2010). Nothing in the record here suggests that Roach failed to understand the

intended scope of the search or searched outside its scope. And although we agree the

warrant could have been more specific, it was not ʺfacially deficient.ʺ

                                            ***

              We have considered Stacyʹs remaining arguments and conclude they are

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

                                           FOR THE COURT:
                                           Catherine OʹHagan Wolfe, Clerk




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