                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-1822



ARKANSAS CHRONICLE, a division of          Sienna
Broadcasting Corp.; JOHN CULBERTSON,

                                              Plaintiffs - Appellees,

           versus


ROBERT J. MURPHY; STEVE MILEFSKY,

                                             Defendants - Appellants,

           and


R. MARK EASLEY; SUZANNE G. DEVLIN, Acting
Police Chief of Fairfax County; JOHN T. FREY,
Clerk, Circuit Court of Fairfax County;
FAIRFAX COUNTY BOARD OF SUPERVISORS; COUNTY OF
FAIRFAX, VIRGINIA,

                                                           Defendants,

           and


CITY OF OKLAHOMA CITY,

                                                    Party in Interest.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (CA-04-110)


Argued:   March 15, 2006                       Decided:   May 30, 2006
Before WIDENER and WILLIAMS, Circuit Judges, and William L. OSTEEN,
Senior United States District Judge for the Middle District of
North Carolina, sitting by designation.


Reversed by unpublished opinion. Judge Williams wrote the opinion.
Judge Widener wrote a separate opinion concurring in part and
concurring in the result. Senior Judge Osteen wrote a dissenting
opinion.


ARGUED: Robert Marvel Ross, COUNTY ATTORNEY’S OFFICE FOR THE COUNTY
OF FAIRFAX, Fairfax, Virginia, for Appellants. Benjamin Gaillard
Chew, PATTON BOGGS, L.L.P., Washington, D.C., for Appellees. ON
BRIEF: David P. Bobzien, County Attorney, Peter D. Andreoli, Jr.,
Deputy County Attorney, Ann Gouldin Killalea, Assistant County
Attorney, Fairfax, Virginia, for Appellants. Catherine Sun Wood,
PATTON BOGGS, L.L.P., Washington, D.C., for Appellees.



Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                                2
WILLIAMS, Circuit Judge:

     This case stems from the 2004 trial of Terry Nichols for the

bombing of the Alfred P. Murrah Federal Building in Oklahoma City.

Prior to the start of that trial, two Virginia police officers

obtained   and   executed   a   search   warrant   at   the   home   of   John

Culbertson, seizing computers and files belonging to Culbertson and

his employer, the Arkansas Chronicle.         The target of the search

warrant was a video and still photographs of the bombing that were

last seen in electronic format.           Culbertson and the Arkansas

Chronicle filed this 42 U.S.C.A. § 1983 (West 2003) suit against

Robert Murphy and Steve Milefsky, the two police officers who

executed the search, claiming violations of their constitutional

rights. Officers Milefsky and Murphy moved for summary judgment on

the grounds of qualified immunity, which motion the district court

denied.    Officers Milefsky and Murphy now appeal.              While the

underlying facts of this case are unique, the legal principles

guiding our decision are well established and lead to a result

opposite of that reached by the district court.          For the following

reasons, we reverse the district court’s denial of qualified

immunity to Officers Milefsky and Murphy.



                                    I.

     In 2004, prior to the start of Nichols’s trial in Oklahoma

state court, one of Nichols’s attorneys spoke with attorney Thomas


                                     3
W. Mills of Dallas, Texas.    Based on this conversation, Nichols’s

defense attorney filed an “Ex Parte Sealed Emergency Motion for

Order to Preserve Evidence and for Subpoena Duces Tecum” with the

Oklahoma trial court.     (J.A. at 193.)           In the motion, Nichols’s

defense attorney alleged that Mills informed him that in August

1998 Culbertson had shown him a video and still photographs on

Culbertson’s laptop computer depicting the Murrah Building right

before and after the bombing and that the images showed a Ryder

truck.1   The motion further alleged that Culbertson had shown Mills

the   video   and   photographs    in       the   congressional   offices   of

Congressman James Traficant (D-Ohio). At that time, Culbertson was

serving as a legislative aid to Traficant.            Nichols’s motion also

cited Culbertson’s testimony before a House subcommittee, in which

Culbertson stated that he had a video of a law enforcement officer

describing the video images and photographs the officer had seen of

the Oklahoma City bombing.        Nichols’s defense team believed that

these photographs could be crucial to Nichols’s defense. After

receiving Nichols’s motion, the Oklahoma trial court held an in

camera hearing and indicated that “if you came to me with this

information and asked me as a judge to issue a search warrant, I

probably would do it.”      (J.A. at 256.)           After the hearing, the




      1
      A Ryder truck is believed to have carried the bomb to the
Murrah Building.

                                        4
Oklahoma City prosecutor began the process of obtaining a search

warrant in Virginia where Culbertson resided.

     To confirm the statements made by Nichols’s defense attorneys,

on January 28, 2004, Oklahoma City Detective Mark Easley traveled

to Dallas and spoke with attorney Mills.             Mills confirmed to

Detective Easley that Culbertson had shown him, on Culbertson’s

laptop computer at Congressman Traficant’s office, a video of the

Murrah Building “that was taken within minutes of when the bomb

went off.”    (J.A. at 55.)       Mills said that the first frame showed

the building, the next frame showed a glow at the bottom, the next

frame showed the glowing ball going up the building, and the final

frame   showed   the   building    collapsed.     Mills   also   said   that

Culbertson told him that an Alcohol, Tobacco and Firearms (ATF)

agent had given him the video.       Mills further said that Culbertson

refused to go to the ATF or the FBI with the video tape because

Culbertson needed to protect his source and the FBI did not want

the video disclosed.     During Detective Easley’s conversation with

Mills, Mills informed Detective Easley that he had spoken with

Culbertson after Nichols’s “defense attorneys had learned about his

‘secret’ video and pictures.”             (J.A. at 68.)   In response to

Mills’s comments, Culbertson told Mills that it was going to be a

“tight rope for me to walk.”        (J.A. at 68.)

        Having received confirmation from Mills about the existence

of the images, on January 30, 2004, Detective Easley traveled to


                                      5
Fairfax County, Virginia to speak with Culbertson.          From the

Fairfax County Police Department, Detective Easley placed a phone

call to Culbertson.     The phone call was tape recorded.      Easley

asked Culbertson if the images and video were still available and

Culbertson responded

     Well, I’m going to tell you the same thing I told
     Nichols’s attorneys.    Because of a variety of complex
     legal issues, there is some journalistic law involved,
     there is legislative privilege involved with respect to
     the Congress and so forth. I’m just not at liberty to
     divulge whether it exists, where it’s at, whatever, until
     I’ve got guidance from appropriate counsel.

(J.A. at 97.)     Culbertson informed Easley that he had worked for

the Washington Bureau of the Arkansas Chronicle, a publishing

entity since 1996, and that he maintained a home office.       Easley

further pressed Culbertson for information on the images, and

Culbertson stated, “Well, what I can tell you is the stuff was

turned over, you know, there’s public stuff on it that was turned

over to the House Judiciary [Committee].      And that might be the

place to look, uh, for these things.”      (J.A. at 97.)   Culbertson

also informed Easley that he testified before the House Judiciary

Contract Law Subcommittee on matters related to the Oklahoma City

bombing in either 1999 or 2000.       The House report confirms that

Culbertson testified that “photos and video of the explosions at

the Murrah Building” do exist and that Culbertson submitted images

along with his report in 2000.        See Fair Justice Act of 2000:

Hearing on H.R.    4105 Before the Subcomm. on Commercial and Admin.


                                  6
Law of the H. Comm. on the Judiciary, 106 Cong. 60-61 (2000)

(statement   of   John   Culbertson,   Director,   Center   for   Reform).

Culbertson also denied to Detective Easley that he had seen a video

showing a Ryder truck at the Murrah Building, and he then said that

the video he submitted to the House subcommittee was the Sheriff’s

Department video “that you guys probably already have.”           (J.A. at

101.)   Culbertson next informed Easley that he no longer had the

computer on which he showed Mills the video.       Culbertson ended the

conversation by telling Detective Easley that after he had spoken

with his attorney, he would call Easley.      Less than an hour later,

Culbertson called Detective Easley and told him that he could not

speak with him because of journalistic privilege stemming from his

production of the show African Lifestyles, legislative privilege

because he formerly worked for a congressman, and a third privilege

relating to his position as a “consultant to the Philippines.”

(J.A. at 104.)

     Based on the information received from Mills and Culbertson’s

refusal voluntarily to disclose his knowledge of the status of the

video, Detective Easley sought a search warrant from a Fairfax

County Circuit Court. The search warrant stated that Easley wanted

to search Culbertson’s house to seize

     any and all computer equipment, hard disk drives, compact
     disks, floppy disks, magnetic tapes or other magnetic or
     optical media capable of storing information in an
     electronic,   magnetic,   or   optical   format.     This
     information may include, but it is not limited to
     letters, correspondence, memoranda, journals, electronic

                                   7
     mail, image files, database files, deleted files, partial
     files or other types of files found in the media or
     computer.

(J.A. at 65.)    Detective Easley also filed a detailed affidavit

setting forth the relevant facts in support of the search warrant

and explaining that the officers were looking for a video and still

images of the Oklahoma bombing.          Detective Easley’s supporting

affidavit described his conversations with attorney Mills and

Culbertson.      Detective    Easley’s   affidavit    noted   that   Mills

confirmed that he had seen images of the bombing, but that Mills

could not recall whether he saw a Ryder truck depicted in the

images and correspondingly that he did not tell Nichols’s attorney

that he had seen a Ryder truck.     Detective Easley also stated that

in his experience “as a law enforcement investigator . . . a person

in possession of items of this magnitude and uniqueness is unlikely

to dispose of or destroy the information.            Instead, he is more

likely to leave it on the computer or copy it to a disc of some

sort or both.”    (J.A. at 69.) A Fairfax County magistrate judge

signed the search warrant and Fairfax County police officers Murphy

and Milefsky executed the search at Culbertson’s house. On January

30, 2004, Officers Murphy and Milefsky seized the following items

from Culbertson’s home:      eight desktop computers, two laptops, 454

diskettes, 170 CD-ROMS, 8 mini CD-ROMS, four zip disks, one hard

drive, fourteen VHS tapes, four notebook binders, and one manilla

folder containing documents.       Officers Murphy and Milefsky then


                                    8
shipped the seized items to the Oklahoma City Police Department.

Upon receipt of the boxes, the Oklahoma City police department

withheld opening the boxes or examining the contents until it

received judicial instructions. Ultimately, the alleged video and

still photographs were not found.

     Culbertson and the Arkansas Chronicle then filed this suit in

federal    court    against   Officers   Milefsky   and    Murphy   alleging

constitutional violations pursuant to § 1983.             Officers Milefsky

and Murphy moved for summary judgment on the basis of qualified

immunity.     The district court denied qualified immunity finding

that Culbertson’s Fourth Amendment rights were violated and that

Officers Milefsky and Murphy should have known that the search

warrant was unconstitutionally overbroad and lacking in probable

cause.    Officers Milefsky and Murphy timely filed an interlocutory

appeal.     We have jurisdiction over their legal challenge to the

district court’s denial of their motion for summary judgment under

28 U.S.C.A. § 1291 (West 1993).          Washington v. Wilmore, 407 F.3d

274, 281 (4th Cir. 2005).         “To the extent that the denial of

qualified immunity rests on a question of law, the decision is

final pursuant to the collateral order doctrine” and subject to de

novo review.       Id.




                                     9
                                     II.

     “Qualified immunity shields government officials from civil

liability ‘insofar as their conduct does not violate clearly

established     statutory   or    constitutional          rights    of   which     a

reasonable person would have known.’”             Trulock v. Freeh, 275 F.3d

391, 399 (4th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)).      “In considering an appeal from the rejection of

a qualified immunity defense, our first task is to determine

whether a constitutional right would have been violated on the

facts alleged.”    Wilmore, 407 F.3d at 281.             If no rights have been

violated, then the inquiry ends. If a violation has occurred, then

the court must determine whether the right violated was clearly

established at the time of the violation, here the search and

seizure, and “[o]nly where the warrant application is so lacking in

indicia of probable cause as to render official belief in its

existence unreasonable,”         Malley v. Briggs, 475 U.S. 335, 344-45

(1986) (internal citation omitted), or where the overbreadth of the

search warrant is apparent to a reasonable police officer, Anderson

v. Creighton, 483 U.S. 635, 640-41 (1987), will we deny qualified

immunity.

     The    district    court    denied    Officers      Milefsky    and   Murphy

qualified     immunity,   concluding       that    the    search    warrant      was

overbroad and lacked probable cause and that it would have been

unreasonable for Murphy and Milefsky to believe that the search


                                      10
warrant was not overbroad or was supported by probable cause.                       We

will address each of the district court’s conclusions in turn.



                                   A.   Overbreadth

      The    “[F]ourth      [A]mendment       prohibits     general    warrants     and

general searches.”          United States v. Fawole, 785 F.2d 1141, 1144

(4th Cir. 1986).             To prevent a general rummaging through a

person’s personal belongings, a search warrant should remove “from

the officer executing the warrant all discretion as to what is to

be seized.”        United States v. Torch, 609 F.2d 1088, 1089 (4th Cir.

1979).      Nevertheless, the specificity required for a warrant

“varies     with    the    circumstances       within   a    practical     margin    of

flexibility.”        United States v. Shilling, 826 F.2d 1365, 1369 (4th

Cir. 1987), abrogated on other grounds by Staples v. United States,

511 U.S. 600 (1994).         For example, in a search warrant for business

records, it is acceptable for the warrant to use generic terms

(“such as books, records, bank statements, etc.”) without detailed

descriptions because the Government is unlikely to know in detail

how the records are maintained.               Id.

      Culbertson and the Arkansas Chronicle argue that a heightened

standard of particularity is required in this case because the

items     seized    were    protected    by    the   First    Amendment     and   “the

particularity requirement is even more stringent where the things

to   be    seized    have    the    presumptive      protection       of   the    First


                                          11
Amendment.”         Torch,   609   F.2d       at   1089.      To    be   sure,    “the

constitutional requirement that warrants must particularly describe

the ‘things to be seized’ is to be accorded the most scrupulous

exactitude when the ‘things’ are books, and the basis for their

seizure is the ideas which they contain.”                  Stanford v. Texas, 379

U.S. 476, 485 (1965); see also New York v. P.J. Video, Inc., 475

U.S. 868, 873 (1986)(noting that “the seizure of films or books on

the basis of their content implicates First Amendment concerns not

raised by other kinds of seizures” (emphasis added)).                        Although

Culbertson was employed part-time by a news media organization and

some of the items seized by the officers belonged to the Arkansas

Chronicle, we agree with the district court that the heightened

specificity standard for items protected by the First Amendment

does not apply in this case.

     Here,    the    basis   of    the   seizure     was    an     attempt   to   shed

evidentiary light on one of the most heinous crimes in this

country’s history, not to suppress the ideas contained in the

documents.    See Stanford, 379 U.S. at 485 n.16 (noting that had the

Communist books at issue been ledgers of illegal activity or stolen

goods, such books “might stand on a quite different constitutional

footing from the [Communist] books” sought in the case).                          The

search warrant here was incidental to any alleged First Amendment

activity and was not used as “an instrument for stifling liberty of

expression,” which is the evil that the heightened particularity


                                         12
standard is designed to combat.           Zurcher v. Stanford Daily, 436

U.S. 547, 564 (1978).       Thus, because “[t]he items named in this

warrant were evidentiary materials, and their seizure did not

threaten to deprive the public of access to protected material,” we

decline to apply any heightened specificity.2          Torch, 609 F.2d at

1090 (internal quotation marks omitted).

     Having rejected the application of the heightened specificity

standard, we now turn to the merits of the overbreadth argument,

applying   a    standard     that    recognizes    that    the   necessary

particularity   for   a    search   warrant   varies   “according    to   the

circumstances and type of items involved.”         Id.    Also, built into

this standard is “a practical margin of flexibility.”               Id.   The

district court’s conclusion that the search warrant was limitless

because it authorized Officers Milefsky and Murphy to seize “every

piece of computer equipment and every type of document that might

be stored on such equipment,” (J.A. at 385), failed to equate the


     2
      We note, however, that even if the heightened standard
applied, we would reach the same result. The Supreme Court has
held that the “particular exactitude” requirement is satisfied when
it leaves “as little as possible to the discretion or whim of the
officer in the field.” Zurcher v. Stanford Daily, 436 U.S. 547,
564 (1978). For the reasons set forth in this section, infra, the
search warrant left little to no discretion to the executing
officers. For example, Officers Milefsky and Murphy did not have
to determine anything as difficult as whether the electronic
material they seized was “obscene” or related to Communist
thoughts, as other search warrants held to be invalid have
required.   See id.    Officers Milefsky and Murphy only had to
determine whether an item could store electronic, magnetic, or
optical data. Thus, the search warrant described with “particular
exactitude” the things to be seized.

                                     13
circumstances of the targeted items with the language of the search

warrant.     Because   the   video   and   photographs   were   already   in

electronic form, they could be transferred to numerous other

electronic devices and put into countless types of formats.               See

United States v. Reyes, 798 F.2d 380, 383 (10th Cir. 1986) (holding

that “in the age of modern technology and commercial availability

of various forms of items, a [search] warrant could not be expected

to describe with exactitude the precise form the records would

take”).    We cannot and should not tie the hands of law enforcement

by expecting an investigative officer to know the exact format

electronically stored evidence will take.         Notably, the district

court did not suggest a method for narrowing or describing with

increased specificity the items to be seized, and we also cannot

discern a more precise way to describe items stored in electronic

format.    Culbertson and the Arkansas Chronicle, however, suggest

that the search warrant could have limited the electronic items to

be seized by specifying that only “image” files such as .jpg, .tip,

.bmp, or .gif files could be searched. (Appellee’s Br. at 24.)

Although we recognize that image files are usually stored and

labeled as such, this proposal ignores the fact that a warrant that

authorized the seizure of any device “capable of storing” .jpg,

.tip, .bmp, or .gif files would still authorize officers to seize

“computer equipment, hard disk drives, compact disks, floppy disks,

magnetic tapes or other magnetic or optical media” to allow the


                                     14
officers to search for the .gif, .tip, .bmp, or .jpg files.

Furthermore, it is possible to embed an electronic image into a

word processing file or convert the image into .pdf format and

still have the document labeled as a .wpd, .doc, or .pdf file, as

opposed to .jpg, .gif, .tif, or .bmp.            Therefore, because the

search warrant and supporting affidavit described with sufficient

particularity the items to be seized “within a practical margin of

flexibility,” we must reject Culbertson’s argument that the search

warrant was a general warrant.        Shilling, 826 F.2d at 1369.

       Next, we turn to the district court’s conclusion that the

search warrant was overbroad because the warrant sought images that

were last seen electronically, while the warrant allowed for the

seizure of “letters, correspondence, memoranda, [and] journals.”

(J.A. at 385.) The district court concluded that “a search warrant

that    allowed   the   police   to    seize   letters,   correspondence,

memoranda, and journals in order to find a video and three still

photographs is patently overbroad.” (J.A. at 386.) Culbertson and

the Arkansas Chronicle argue that the search warrant only provided

for the seizure of electronic forms of letters, correspondence,

journals, and memoranda, and thus the seizure of hard copies of

such items was outside the scope of the search warrant.        The search

warrant references information stored in “electronic, magnetic, or

optical format” and then further states that “this information may

include . . . letters, correspondence, memoranda [and] journals.”


                                      15
(J.A. at 65 (emphasis added).)          We agree that the most natural,

close reading of the search warrant is that only electronic,

magnetic, or optical forms of “letters, correspondence, memoranda

[and] journals” could be searched. Thus, the search warrant cannot

be overbroad for this reason.3

     Finally, the district court concluded that the search warrant

was overly broad because it allowed for the seizure of Culbertson’s

son’s computer.     The seizure of the son’s computer does not render

the search warrant overly broad because the images could have been

stored   on   any   computer   within   Culbertson’s   home   to   which   he

presumably had access, including his son’s computer. Also, parents

frequently pass down to their children their old computers, and

because the officers were searching for old images, it would have

been reasonable to search the son’s computer.          Moreover, to hold

search warrants that allow for the search of a parent’s belongings

as necessarily overbroad because they also allow for the search of

the belongings of a child residing with a parent would prove

unworkable for investigating officers. For example, if police were

searching for a stolen handgun or drugs, and the search warrant

allowed for the search of the parent’s home, it is unlikely that we



     3
      The conclusion that the search warrant did not explicitly
allow for the seizure of hard documents, such as the four notebooks
and one manilla folder, forces us to address whether the seizure of
these items outside of the search warrant violated the Fourth
Amendment rights of Culbertson and the Arkansas Chronicle. We will
return to this point in section C in the text infra.

                                    16
would not allow the police to search a minor child’s room within

the parent’s home.   See United States v. Diprima, 472 F.2d 550, 551

(1st Cir. 1973) (“[E]ven if a minor child, living in the bosom of

a family, may think of a room as ‘his,’ the overall dominance will

be in his parents.”).   A rule barring the search of a minor child’s

property that lies within a parent’s home simply would encourage a

parent to hide contraband with his child.

     The supporting affidavit, describing the alleged video and

still images and the search warrant’s focus on electronic, magnetic

or optical storage forms that could contain the images, “served to

limit the discretion of the officers who conducted the search.”

Torch, 609 F.2d at 1090.       The area to be searched was confined to

Culbertson’s home and the items to be seized were those capable of

storing electronic, magnetic, or optical data.      For these reasons,

we conclude that this search warrant “falls within the practical

margin of flexibility.”    Id.



                          B.    Probable Cause

     We now turn to the issue of probable cause.      “Probable cause

deals with probabilities.       These are not technical; they are the

factual and practical considerations of everyday life on which

reasonable and prudent men, not legal technicians act.”      Illinois

v. Gates, 462 U.S. 213, 241 (1983) (internal quotation marks

omitted).   “The task of the issuing magistrate is simply to make a


                                    17
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 hearsay

information,     there    is    a   fair    probability      that   contraband       or

evidence of a crime will be found in a particular place.”                      Id. at

238.    “Reasonable minds frequently may differ on the question

whether a particular affidavit establishes probable cause, and we

have thus concluded that the preference for warrants is most

appropriately     effectuated       by     according      great    deference    to    a

magistrate’s determination.”          United States v. Leon, 468 U.S. 897,

914 (1984) (internal quotation marks omitted). However, “reviewing

courts will not defer to a warrant based on an affidavit that does

not provide the magistrate with a substantial basis for determining

the existence of probable cause.”               Id. at 915.

       The affidavit given to the magistrate provided the following

pertinent statements:          (1) Detective Easley, the affiant, had been

an   Oklahoma    police    officer       for     twelve    years    and   had    been

investigating the Oklahoma City bombing for five years; (2) in

1998, Culbertson showed Mills a video and photographs of the Murrah

Building before and after the bombing on a laptop computer; (3)

Mills said he viewed images on Culbertson’s laptop; (4) Mills said

that he could not recall whether the images shown by Culbertson

contained a picture of a Ryder truck as Nichols’s defense attorney

alleged; (5) Mills said an ATF agent gave Culbertson the video; (6)


                                           18
Culbertson told Mills that Nichols’s attorneys’ knowledge about the

video and photographs was “going to be a tight rope for [him] to

walk”; (7) Culbertson admitted to Detective Easley that he had

shown Mills a video and photographs; (8) Culbertson stated that the

video    and    photographs    were       provided   to    the   House   Judiciary

Committee several years ago; (9) Culbertson refused to say whether

he   still     had   copies   of    the   video   and     photographs;    and    (10)

Detective Easley’s professional opinion that an individual in

possession of “items of such magnitude and uniqueness [would be]

unlikely to dispose of or destroy the information.”                  (J.A. at 67-

69.)    The affidavit omitted the following facts known to Detective

Easley:      (1) Culbertson said he had shown Mills the video on a

government      computer;     (2)    Culbertson      was    employed     by    former

Congressman James Traficant at the time he showed the video to

Mills; and (3) Culbertson testified before the House subcommittee

in 2000 and submitted a tape along with his testimony.

       Although      Culbertson’s    submission      of    images   to   the    House

subcommittee and the fact that Mills viewed the images on a

government computer could support an inference that Culbertson no

longer had the video and photographs, the remaining facts are

sufficient to demonstrate a fair probability that Culbertson still

possessed the video and photographs or copies thereof.                        Namely,

Culbertson’s admission to Detective Easley that he had shown Mills

a video of the bombing and Culbertson’s statement that he would


                                           19
have to walk a “tight rope” because of the video and photographs

are strong evidence that Culbertson still possessed the video or a

copy thereof. As his congressional testimony indicates, Culbertson

still had the video two years after showing it to Mills and at that

point       he    was     no    longer    working      for    the    government,        further

suggesting         that        Culbertson    valued     the     video       and   would    have

maintained copies of it. Also, Culbertson’s evasive statement that

journalistic and other irrelevant privileges prevented him from

divulging to Detective Easley whether or not he held a copy of the

video       provides       additional       support     for    probable       cause.4       And

finally, we find particularly astute Detective Easley’s statement

that an individual with possession of such a highly sought after

video is likely to maintain possession of it; Culbertson was a

journalist, and such information is the bread and butter of his

work.        A     cumulative         reading    of    the    affidavit      suggests      that

Culbertson did have a copy of the video and images, even if he had

already          turned        over   a   copy    of    some        video    to   the     House

subcommittee.5            It is then a short, logical step to surmise that


        4
      As pointed out by our good dissenting colleague, the mere
refusal to cooperate cannot alone support a finding of probable
cause, however, the refusal to cooperate may be considered along
with other supporting facts in evaluating a search warrant for
probable cause. See Florida v. Bostick, 501 U.S. 429, 437 (1991)
(noting that a “refusal to cooperate, without more, does not
furnish the minimal level of objective justification for a
detention or seizure” (emphasis added)).
        5
      It is unclear from the record whether the video allegedly
submitted to the House subcommittee is, in fact, the video

                                                 20
Culbertson would have a copy of the video and images at his house

or at his home office.       This is a logical inference due, in part,

to the nature of electronic, magnetic, and optical items because,

as discussed in subsection A, such materials can be copied and

stored, the video and images could easily be stored in multiple

locations, including Culbertson’s home.               See United States v.

Anderson, 851 F.2d 727, 729 (4th Cir. 1988) (adopting the view that

“the nexus between the place to be searched and the items to be

seized may be established by the nature of the item and the normal

inferences of where one would likely keep such evidence”).                    We

recognize    that   some    of    the    individual   facts   alleged   in   the

affidavit may be read to support other inferential ends, see infra

dissent at pages 33-35, but we believe that the affidavit provides

a   substantial     basis   for    the    magistrate’s   determination       that

Culbertson retained possession of the video and images and that

they would likely be found at his home. See Gates, 462 U.S. at 240

(noting that a magistrate can “draw such reasonable inferences as

he will from the material supplied to him by applicants for a

warrant”).

      Having concluded that the facts alleged in the affidavit

support a finding of probable cause, we address Culbertson’s and


Detective Easley was seeking.     This is particularly important
because Culbertson told Detective Easley that anything public he
turned over to the House subcommittee. Detective Easley was not
looking for “public” information, but for a secret, never publicly
disclosed video of the bombing.

                                         21
the Arkansas Chronicle’s contentions that those facts were stale.

“A valid search warrant may issue only upon allegations of facts so

closely related to the time of the issue of the warrant as to

justify a finding of probable cause at that time.              Whether the

proof meets this test must be determined by the circumstances of

each case.”    United States v. McCall, 740 F.2d 1331, 1335-36 (4th

Cir. 1984) (internal quotation marks omitted).           At the outset, we

note that “[t]he validity of probable cause cannot be quantified by

simply counting the number of days between the occurrence of the

facts supplied and the issuance of the affidavit,” United States v.

Farmer, 370 F.3d 435, 439 (4th Cir. 2004) (internal quotation marks

omitted), and “[m]any courts have found probable cause to exist

despite substantial gaps between the observation of the evidence at

a particular premises and the issuance of a search warrant,”

McCall, 740 F.2d at 1336.

     Stale    search   warrants   arise   in    two   situations:   (1)   the

government waits an extended period of time between the information

provided and the execution of the warrant and (2) “the information

on which [the search warrant] rested was arguably too old to

furnish ‘present’ probable cause.”        Id.    The district court found

that this case fell into the latter category because Mills viewed

the tape in the presence of Culbertson almost six years prior to

the issuance of the search warrant.




                                    22
     Mills’s viewing of the video and three still images six years

prior is but one piece of the puzzle.               And the probable cause

analysis     requires   that     we     examine    the    totality   of   the

circumstances.    See Farmer, 370 F.3d at 439 (“[W]e must look to all

the facts and circumstances of the case, including the nature of

the unlawful activity alleged, the length of the activity, and the

nature of the property to be seized.”             (internal quotation marks

omitted)).    Viewing all of the evidence set forth in the affidavit

demonstrates that the search warrant was not stale.              Except for

Mills’s undisputed viewing of the video in 1998, all other evidence

contained in the affidavit was obtained in close proximity to the

issuance of the search warrant.         For example, on January 28, 2004,

a mere two days before the search, Mills told Detective Easley that

Culbertson told him that he was having to walk a “tight rope” with

Nichols’s defense attorneys.          Also, Culbertson’s own statements to

Detective Easley, confirming that he had shown Mills a video and

photographs, occurred within twenty-four hours of the issuance and

execution    of   the   search   warrant.         And    Detective   Easley’s

observation that no one would discard such evidence was timely and

credible.    See McCall, 740 F.2d at 1336 (“In some circumstances,

the very nature of the evidence sought may suggest that probable

cause is not diminished solely by the passage of time.”).

     Culbertson and the Arkansas Chronicle further argue that,

because no “continuing crime” was involved, the lack of temporal


                                       23
proximity between Mills’s viewing of the video in 1998 and the

issuance of the search warrant renders the search warrant stale.

As previously discussed, the viewing of the video by Mills was but

one supporting piece of the puzzle and, contrary to Culbertson and

the Arkansas Chronicle’s suggestion, the presence of a “continuing

crime” is not a requirement for justifying a search warrant when a

period of years lapses between one of the factual predicates and

the issuance of the search warrant.                See Id. at 1337 (finding

search warrant not stale even though “the criminal activity alleged

in the warrant is not ongoing in nature, nor the evidence sought

intrinsically    likely     to    remain    at   the   location   where   it   was

originally observed”).       In addition, the alleged video related to

a report that Culbertson authored and to his testimony before the

House subcommittee in July 2000-two years after Culbertson showed

Mills the video.       Thus, as part of Culbertson’s lengthy research

into the Oklahoma City bombing, it is likely that Culbertson would

have   kept   copies   of   all    relevant      material   supporting    such   a

substantial report. To accept Culbertson’s argument, we would have

to assume that Culbertson, after intensely researching the Oklahoma

City bombing and compiling extensive documentation, including video

footage of the bombing, would have relinquished all copies of all

documentation to another person or simply destroyed all such

information.     In light of Culbertson’s statements to Detective

Easley and his position as a journalist, we find this is highly


                                       24
unlikely.        Finally, a secret video of a historic event is likely to

be very valuable.              See, e.g., Film of JFK killing valued at $16

m i l l i o n ,                C N N . c o m ,              A u g .          3 ,        1 9 9 9

http://www.cnn.com/US/9908/03/zapruder.02/                         (noting     that     Abraham

Zapruder’s film of the Kennedy assassination was valued at $16

million).         Having examined all the relevant evidence set forth in

the affidavit, along with the nature of the evidence sought, we

conclude         that    the     search    warrant          was    not    based    on     stale

information.



            C.    Reasonable Officer’s View of the Search Warrant

       We now return to the issue of whether the seizure of items

outside      of    the    search     warrant         violated      Culbertson’s       and   the

Arkansas Chronicle’s constitutional rights.                              At the outset we

readily acknowledge that “[i]f the scope of the search exceeds that

permitted by the terms of a validly issued warrant or the character

of    the    relevant      exception       from       the    warrant     requirement,       the

subsequent seizure is unconstitutional without more.”                              Horton v.

California, 496 U.S. 128, 140 (1990).                              However, even when a

constitutional violation is found, qualified immunity may still

attach if a reasonable officer would not have realized that he was

exceeding the scope of the search warrant.                            Saucier v. Katz, 533

U.S. 194, 202 (2001).             This inquiry “must be undertaken in light of

the    specific         context    of     the   case,        not    as   a   broad      general


                                                25
proposition.”    Id.   at   201.    To     put   it   more   concisely   “the

unlawfulness must be apparent.”      Anderson, 483 U.S. at 640-41.

     We begin our analysis by noting that the search warrant

clearly authorized the seizure of items in “electronic, magnetic,

or optical format.” Our conclusion that the search warrant did not

authorize the seizure of paper forms of “letters, correspondence,

memoranda, [and] journals” came only after carefully examining the

sentence structure of the search warrant.         We believe it would not

have been unreasonable for a police officer to interpret the words

“letters, correspondence, memoranda, [and] journals” as allowing

for the seizure of paper copies of these items-one typically thinks

of these items in their physical format, as opposed to their

electronic, magnetic, or optical format.          See Mazuz v. Maryland,

442 F.3d 217, 225 (4th Cir. 2006) (“In order to satisfy the

reasonableness   requirement   of    the    Fourth     Amendment,   what   is

generally demanded of the many factual determinations that must

regularly be made by agents of the government is not that they

always be correct, but that they always be reasonable.” (internal

quotation marks and alterations omitted)).            For example, the word

“letter” is often used to describe the physical paper used for

communication, whereas, the word “email” is most often associated

with electronic communication that remains in electronic form.             We

further recognize that Officers Milefsky and Murphy knew by way of

the attached affidavit that they were searching for a video and


                                    26
still    photographs    and   common    sense     stands    to   reason     that

electronically stored images, such as the still photographs, could

be printed out and stored in physical form amongst “letters,

correspondence, memoranda, [and] journals.”                It is also worth

noting that the four notebook binders and one manilla envelope

contained information related to Culbertson’s research on the

Oklahoma City bombing.        This information coupled with the common

perception that “letters, correspondence, memoranda, and journals”

typically reference hard copies may not have placed a reasonable

officer on notice that the seizure of the notebooks and manilla

folder was outside the scope of the search warrant and possibly

violated constitutional rights.         Moreover, the fact that the four

notebooks and one folder were the only items seized outside of the

scope of the search warrant also suggests that the mistake was a

reasonable one. We, therefore, cannot say that the unlawfulness of

the seizure of the notebooks and folder was apparent.                Officers

Milefsky and Murphy are entitled to qualified immunity.



                                   III.

     In summary, we conclude that the search warrant properly

described with sufficient particularity the items to be seized,

that probable cause existed to support the issuance of the search

warrant, and that qualified immunity shields Officers Milefsky and

Murphy   from   any   constitutional        violations   resulting   from   the


                                       27
seizure of the notebooks and manilla folder.   Accordingly, the

district court’s order is

                                                      REVERSED.




                              28
WIDENER, Circuit Judge, concurring:

     I concur in the result and in large part with the opinion of

the court.   However, the search warrant is perfectly plain to me.

It states in terms that the officers might:

     search for . . . magnetic or optical materials . . .
     capable of storing information in electrical or optical
     format.

     The record in this case shows the officers neither searched

for, nor took, nor stored anything else.      So I think that it is

patent from the record and the face      of the warrant that no

unlawfulness was apparent.




                                29
OSTEEN, Senior District Judge, dissenting:

      I agree with the majority opinion that the warrant was not

overbroad.      I disagree with the conclusion that there was probable

cause to support the issuance of a search warrant.                    Because the

link between Culbertson’s possession of the images in the late

1990’s and the possibility of the presence of the images in

Culbertson’s home in 2004 is too speculative, I respectfully

dissent from the majority’s conclusion that Officers Murphy and

Milefsky are entitled to qualified immunity.

      The first step in determining whether a defendant is entitled

to qualified immunity is a determination of whether a right has

been violated.      Washington v. Wilmore, 407 F.3d 274, 281 (4th Cir.

2005).    Although the majority found no such violation, I disagree

because the search warrant was not supported by probable cause. To

determine whether a search warrant is supported by probable cause,

the   magistrate     issuing   the    warrant    must     “make   a    practical,

common-sense decision whether, given all the circumstances set

forth in the affidavit . . .[,] 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 (1983).                        “When

reviewing the probable cause supporting a warrant, a reviewing

court    must    consider   only     the    information    presented      to    the

magistrate who issued the warrant.”           United States v. Wilhelm, 80

F.3d 116, 118 (4th Cir. 1996).


                                       30
     I begin with the observation that the affidavit contained no

direct evidence that Culbertson had the sought-after images in his

home in 2004 or at any other time, and the record indicates that

there is no such evidence.       No one involved in the matter ever saw

the images at the home or learned that they were there.              Instead,

to conclude that there was probable cause that Culbertson had the

images in his home in 2004, the majority relies on three items of

information: (1) the fact that Culbertson retained the images

between 1998, when he showed them to Mills, and the time he

testified before a House of Representatives subcommittee in 2000;

(2) statements made by Culbertson that the request for the images

put him in a bad position and that he could not disclose whether he

remained      in   possession   of   them;   and   (3)   Detective   Easley’s

statement that an individual in possession of such unique items was

unlikely to give up possession.         These items, either alone or in

combination, are far too speculative to support a finding of

probable cause that Culbertson had possession of the images in

2004, and they provide nothing to link the images to Culbertson’s

home.

     The fact that Culbertson had retained the images between 1998

and his testimony before the congressional committee does not

support such an inference.           The affidavit contains very little

detail   on    the   matter.     Although    the   record   now   shows   that

Culbertson testified in 2000, the affidavit indicates only that


                                      31
Easley saw the images on August 26, 1998, and that Culbertson had

turned a copy over to the House Judiciary Committee several years

before the affidavit was produced.          These two facts give rise to

the   inference     that   Culbertson      retained    the   images   for    an

unspecified period of time under unspecified conditions, but they

do not support the inference that Culbertson continued to possess

the images anywhere, much less at his home, for another unspecified

period of time under other unspecified circumstances.

      I turn next to Easley’s statement that, in his experience, “a

person in possession of items of this magnitude and uniqueness is

unlikely to dispose of or destroy the information.” This statement

is less a piece of information that supports a finding of probable

cause than a conclusion that, in Easley’s opinion, the other facts

support such a finding.        Easley’s statement is unhelpful for two

reasons.

      To the extent that the statement is relevant because of

Easley’s   status    as    a   law   enforcement      officer,   it   adds   no

evidentiary weight for the required finding.            There is no question

that in many situations a law enforcement officer’s experience is

highly relevant to a determination of probable cause.             See, e.g.,

United States v. Collins, 412 F.3d 515, 518 (4th Cir. 2005)

(finding that officers had probable cause to make an arrest when,

in light of their experience, the defendant’s behavior suggested he

possessed illegal drugs).        An officer’s experience with criminal


                                      32
activity, such as drug dealing, will provide him with insight

unavailable to even experienced individuals outside the profession.

This case, however, provides a unique situation that involved no

criminal    activity,    and    it   is   not   obvious   how   an   officer’s

experience might be more valuable than that of someone in a

different profession.          It is unlikely that Easley, in his law

enforcement experience, had ever encountered a situation similar to

this one.   If he had, he should have provided more detail to allow

the magistrate to evaluate the strength of his statement.               If he

had no special experience, his statement is one of opinion and

should not weigh in favor of a finding of probable cause.                 See

Gates, 462 U.S. at 239 (“[A magistrate’s] action cannot be a mere

ratification of the bare conclusions of others.”).              A reasonable

magistrate cannot, without further information, assume that a law

enforcement officer has specialized experience with matters outside

the limits of ordinary law enforcement experience and training.

     To the extent that the information is evaluated independently

of Easely’s experience, it is not an inference from facts but mere

speculation.   “[A] guess, based not on specific and reliable facts

but on a broad generalization” is insufficient to support the

issuance of a search warrant.        Doe v. Broderick, 225 F.3d 440, 452

(4th Cir. 2000).        It may well be true that many people retain

unique things, but it is also true that many people do not make an

effort to retain, on their home computers, computer files from jobs


                                      33
they held years before.    There is no evidence in the affidavit

suggesting that Culbertson did, in fact, perceive the images as

something he personally wanted to retain indefinitely. There is no

evidence that he attached particular value to them.1   There is no

evidence in the affidavit that Culbertson was still involved in

investigating the Oklahoma City bombing or that these images were

of particular use in that investigation.   In short, even assuming

that Easley may have made a true statement about the way some

people behave, it is only speculation that Culbertson behaved that

way in this instance, and such speculation is insufficient to

support a finding of probable cause.

     Finally, the statements made by Culbertson provide no probable

cause that Culbertson possessed the images at his home in 2004.

The majority refers to two statements Culbertson made to different

people.2   The first is Culbertson’s statement to Easley that “it

was going to be a ‘tight rope for [Culbertson] to walk.’”      The

second is Culbertson’s refusal to confirm or deny his possession of


     1
      While I agree with the majority that historical film may be
valuable, there is no evidence that the three digital still images
here have any particular value. The value of the Zapruder film is
probably not a good indicator of the value of these images.
Further, even assuming substantial value in the images, such value
does not permit an inference that the valuable property would have
been kept at Culbertson’s home. On the contrary, value may import
the opposite inference: that they would have been kept in a safer
place.
     2
      A third statement found in the affidavit, made by Culbertson
to defense attorney Mark Earnest, is subject to the same analysis
as these two statements.

                                34
the images during his telephone conversation with Easley.            These

statements are of very low probativity regarding Culbertson’s

possession of the images.

       For both statements, there are many ways that they could be

interpreted.     The majority’s interpretation is that Culbertson had

the images and did not want to give them to Nichols’s attorneys.

Even under that interpretation, the statements contain nothing to

link    the    images    to   Culbertson’s   home.     A   more   plausible

interpretation of the statements is that Culbertson did not want to

be placed in the position of having to reveal information about the

source of the photographs, regardless of whether they were in his

possession at that time.        Another plausible interpretation is that

Culbertson did not want to have any further connection with the

Nichols trial but was afraid that he would be forced in by

circumstances beyond his control.          Both of these alternatives are

supported by the facts available to Easley, though, for some

reason, not provided to the magistrate. They are offered here only

as examples of ways those statements could be understood, and there

are many other possibilities.              It would not have been possible

for Easley to produce information suggesting that all of the

possible      innocent    interpretations    of   Culbertson’s    ambiguous

statements were false. Nonetheless, because the statements were so

readily subject to various interpretations, Easley should have

offered an explanation of why his preferred interpretation was in


                                      35
some way better than the alternatives.        To be fair to Easley, he

did not, in the affidavit, explicitly state that he personally

believed those statements indicated that Culbertson still had

possession of the images.    In fact, he offered very little context

for   the   statements.3    Without    such   context,   no   reasonable,

disinterested magistrate could conclude that the statements were

likely to mean that Culbertson had the images.       They do not create

a “fair probability” that the images would be found in Culbertson’s

home.

      Even if the magistrate read the statements to indicate that

Culbertson likely possessed the images, such a reading would not

support a finding of probable cause.      The Supreme Court has stated

that “a refusal to cooperate, without more, does not furnish the

minimal level of objective justification needed for a detention or

seizure.”    Florida v. Bostick, 501 U.S. 429, 437 (1991); see also

United States v. Alexander, 835 F.2d 1406, 1409 n.3 (11th Cir.

1988) (“[A] defendant’s refusal to consent to a search cannot

establish probable cause to search.”).          Culbertson’s statement



        3
      Among the information not included in the affidavit was a
portion of the conversation between Easley and Culbertson in which
Culbertson affirmatively stated that the images were not on his
computer. He also indicated that the images probably did not exist
anymore, but, if they did, they would be in an archive belonging to
a former member of Congress. Although there is no evidence that
these statements were intentionally and wrongfully omitted, it is
difficult to understand why they would not have been included,
since they would have been valuable information for the magistrate
to consider.

                                  36
about a tightrope is no more than an expression that he did not

want to cooperate with the investigation, and his statement to

Easley     was    clearly    such   an   assertion.      Furthermore,     these

statements are the only pieces of information in the affidavit

dating from 2004.       Thus, the information in the affidavit can be

summarized as asserting that Culbertson had the images in the late

1990’s and refused to cooperate in 2004.               Just as Culbertson’s

refusal to cooperate could not serve as a basis for a finding of

probable cause that he was subject to seizure, it should not serve

as a basis for a finding of probable cause to search his home in

2004.

      The purpose of the analysis is not to dissect the information

in the affidavit by showing that each of the statements has a

potentially       innocent    interpretation.         “[I]nnocent    behavior

frequently will provide the basis for a showing of probable cause

. . . .”     Gates, 462 U.S. at 245 n.13.       Nonetheless, when viewed in

light of the totality of the circumstances, the information suffers

from the same deficiency suffered by each individual part.                There

is no specific or reliable fact that could empower an impartial

observer to do more than conjecture on the meaning of the rest of

the available information.          After examining the evidence provided

by Easley to the magistrate in his affidavit, I conclude that it

was certainly possible that Culbertson had the images in his home

in   2004.       Nonetheless,   that     conclusion   relies   entirely   on   a


                                         37
particular interpretation of ambiguous statements and speculation

about human nature. Although the standard of probable cause is not

a high one, it calls for more than was provided to the magistrate.

     Having concluded that the warrant was invalid, I would further

conclude that Officers Murphy and Milefsky were in possession of

sufficient information to know that the warrant lacked probable

cause.   The second step in determining whether a defendant is

entitled to qualified immunity is whether the right violated was

clearly established at the time of the violation.      Wilmore, 407

F.3d at 281.    As applied to warrants, qualified immunity should be

denied when “the warrant application is so lacking in indicia of

probable cause as to render official belief in its existence

unreasonable.”4    Malley v. Briggs, 475 U.S. 335, 344-45 (1986).

Clearly, the affidavit lacked any direct evidence that the images

were in Culbertson’s home.     Any conclusion to that effect drawn

from the information in the affidavit was only speculation.   Thus,

it is a necessary conclusion that the affidavit is completely

lacking in indicia of probable cause for Culbertson’s home to be

searched.   Murphy and Milefsky, who were familiar with the details

of the investigation and fully informed about the contents of the

warrant application, should have been objectively aware that the



     4
      This is   not to exclude the possibility that some officers
participating   in such a search under an invalid warrant may be
entitled to     qualified immunity by reason of their limited
participation   in the execution of the warrant.

                                  38
level of speculation involved in the warrant could not support a

finding of probable cause, even if a magistrate issued the warrant.

They did have a subjective belief that it was likely Culbertson was

in possession of the images, but the lack of a factual basis for

such a belief, especially with respect to the location of the

images, renders it unreasonable.     As a result, qualified immunity

should be denied.    I would therefore affirm the trial court’s

opinion.




                                39
