                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 15a0384n.06

                                           No. 14-3576


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                        )
                                                                                    FILED
                                                                                May 28, 2015
                                                 )
                                                                            DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )
                                                       ON APPEAL FROM THE UNITED
                                                 )
                                                       STATES DISTRICT COURT FOR THE
PAUL C. SCHUMACHER,                              )
                                                       NORTHERN DISTRICT OF OHIO
                                                 )
       Defendant-Appellant.                      )
                                                 )
                                                 )



BEFORE:        DAUGHTREY, GIBBONS, and GRIFFIN, Circuit Judges.

       MARTHA CRAIG DAUGHTREY, Circuit Judge. Following his arrest and indictment

for receipt and possession of child pornography, Paul Schumacher moved to suppress all

evidence acquired in the search of his residence and computer. He argued that the warrant

authorizing the search lacked probable cause because the affidavit filed in support of the warrant

failed to establish the scientific reliability of the investigative software used to support the

affidavit’s allegations or to sufficiently detail the software’s operations. He also requested a

hearing on the motion. The district court denied both his request for a hearing and the motion on

its merits. Schumacher now appeals this denial on the grounds that the district court abused its

discretion by denying the motion without first providing him the opportunity to examine the

reliability of the software in a hearing. We find no reversible error and affirm.
No. 14-3576
United States v. Schumacher

                      FACTUAL AND PROCEDURAL BACKGROUND

       The challenged search warrant was based on an affidavit in which Jeffrey M. Casey, a

special agent of the Secret Service, asserted that his investigation of the activities of the internet

account registered to 17 Hop Drive in Lowellville, Ohio, established probable cause to believe

that someone at that address had received, possessed, and/or distributed child pornography over a

peer-to-peer network. Agent Casey swore that on June 19, 2013, he signed into “automated

software which operates on the Phex platform” while covertly connected to the internet protocol

(IP) address in question. The affidavit’s explanation of how this “automated software” operated

was limited to the following:

       The software automates the process of browsing and downloading files from a single
       source. The downloaded files are shared by a user over the Gnutella network. The
       software searches the Gnutella network for files with hash values of suspected child
       pornography.

The terms “Gnutella network” and “hash values” were defined in the affidavit, which also

asserted that an individual using the IP address assigned to the internet account at 17 Hop Drive

was sharing over 4,000 unique files with hash values corresponding to videos and images of

child pornography. From these shared files, the automated software used by Agent Casey

downloaded five image files; screen captures of the downloaded files showed images of child

pornography. A search of various public records revealed that one of the two individuals

associated with 17 Hop Drive was defendant Paul Schumacher.

       The search warrant application was granted on July 30, 2013. Following the execution of

the warrant, Schumacher was indicted and arrested on charges of one count of receipt of child

pornography in violation of 18 U.S.C. § 2252(a)(2) and one count of possessing a computer

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



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United States v. Schumacher

       Schumacher moved to suppress the evidence acquired in the search of his home and

computer, on the ground that the search warrant affidavit “contain[ed] unreliable information, in

violation of the Fourth Amendment.” He requested an evidentiary hearing on the motion, which

was opposed by the government. After finding that Schumacher had both failed to meet the

preliminary showing requirements for a suppression hearing and failed to show that the search

warrant affidavit lacked probable cause, the district court denied his motion to suppress.

       Schumacher pleaded guilty to one count of receiving child pornography and was

sentenced to 97 months imprisonment. As a condition of the plea agreement, Schumacher

reserved the right to appeal the district court’s denial of his motion to suppress.

                                           DISCUSSION

       We review a district court's decision whether to hold an evidentiary hearing on a motion

to suppress for an abuse of discretion. Factual findings made in denying an evidentiary hearing

on a motion to suppress are reviewed for clear error; conclusions of law are reviewed de novo.

See United States v. Rose, 714 F.3d 362, 369-70 (6th Cir.), cert. denied, 134 S. Ct. 272 (2013).

       Schumacher argues that the district court erred in denying his motion to suppress without

first holding an evidentiary hearing because, in doing so, it left unresolved a genuine issue of fact

regarding the existence of probable cause for the search of his property.             Specifically, he

contends that the search warrant affidavit lacked probable cause because it failed to establish the

scientific reliability of the software on which the affidavit’s allegations were based.

       The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation . . . .” U.S. Const. amend. IV. “A warrant will be upheld if the

affidavit provides a ‘substantial basis’ for the issuing magistrate to believe [that] ‘there is a fair

probability that contraband or evidence of a crime will be found in a particular place.’” United


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No. 14-3576
United States v. Schumacher

States v. Smith, 510 F.3d 641, 652 (6th Cir. 2007) (quoting Illinois v. Gates, 462 U.S. 213, 238

(1983)). When a defendant alleges that a statement in an affidavit filed in support of issuing a

warrant is false or that information was omitted from the affidavit, he is entitled to an evidentiary

hearing if he: (1) makes a substantial preliminary showing that the affiant knowingly,

intentionally, or with reckless disregard for the truth included the false statement or omitted

information, and (2) establishes that the false statement or omission is material to a finding of

probable cause. Franks v. Delaware, 438 U.S. 154, 155-56 (1978); Rose, 714 F.3d at 370. No

hearing is required if probable cause exists absent the false statement, or if probable cause exists

despite the inclusion of the omitted statement. United States v. Fowler, 535 F.3d 408, 415 (6th

Cir. 2008).

       The district court did not err in denying Schumacher’s motion to suppress without first

providing a hearing. Though Schumacher now insists that the search warrant affidavit “lacked

probable cause due to deliberate and/or reckless omissions and misstatements regarding the

investigative software,” in the district court he failed to identify any false statements within the

affidavit or provide any evidence that information material to the existence of probable cause

was omitted from the affidavit. Schumacher asserts that the veracity of the entire affidavit is in

doubt because the affidavit “provides no information relative to the accuracy or reliability of the

government’s method of investigation.” He takes particular offense at the affidavit’s failure to

describe how the investigative software works, name the software, or “cite actual statistics or a

single report verifying [its] claims . . . as to the reliability and accuracy” of it. He fails to

establish, however, any way in which the omission of this information was actually material to a

finding of probable cause. Inclusion in the affidavit of a more detailed account of how the

software at issue operated, its name, and statistics or reports verifying its reliability and accuracy


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No. 14-3576
United States v. Schumacher

would not, in fact, have decreased the probability that a search of Schumacher’s property would

turn up images of child pornography; such information arguably would have only strengthened

the affidavit by showing that the software was reliable. See United States v. Chiaradio, 684 F.3d

265, 279 (1st Cir. 2012).

         Furthermore, Schumacher’s argument implies that a warrant affidavit that relies on

information acquired by software lacks probable cause unless it also establishes the scientific

reliability of that software. But Schumacher offers no precedent, from this circuit or any other,

in support of this proposition. Notably, the First Circuit has flatly rejected it. See Chiaradio,

684 F.3d at 278-79 (upholding denial of motion to suppress that argued for suppression, on the

ground that the search warrant affidavit was based on “largely untested” software and did not

sufficiently demonstrate the software’s reliability, because “probable cause does not require

scientific certainty”).

         Schumacher observes that other district courts have held hearings “to allow presentation

of evidence and cross-examination of witnesses regarding . . . the reliability of investigative

software utilized by the government.” But the lower court decisions he cites are not only not

binding on this court; they are also completely unpersuasive. None of these cases holds or

otherwise supports Schumacher’s claim that blanket challenges to the reliability of investigative

software entitle a defendant to a Franks hearing.1



1
  See, e.g., United States v. Dennis, No. 3:13-cr-10-TCB, 2014 WL 1908734, at * 3, *5 (N.D. Ga. May 12, 2014)
(noting that evidentiary hearing was held, where defendant argued that law enforcement’s use of file sharing
software to access his computer violated his Fourth Amendment right to privacy); Mahan v. Bunting, No. 1:13-cv-
00165, 2014 WL 1154054, at *1-*2, *4 (N.D. Ohio Mar. 20, 2014) (acknowledging that state court conducted
suppression hearing after defendant filed a motion to suppress that argued that the search warrant affidavit failed to
provide sufficient information on investigative software); United States v. Thomas, Nos. 5:12-cr-37, 5:12-cr-44,
5:12-cr-97, 2013 WL 6000484, at * 1 (D.Vt. Nov. 8, 2013) (reviewing the findings of an evidentiary hearing held
after defendants filed motions to suppress that made specific challenges to the reliability of investigative software);
United States v. Gabel, No. 10-60168, 2010 WL 3927697, at *1, *2 (S.D.Fla. Sept. 16, 2010) (noting that
evidentiary hearing was held, where defendant argued, inter alia, that the search warrant affidavit was invalid

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No. 14-3576
United States v. Schumacher

         Schumacher’s reliance on United States v. Budziak, 697 F.3d 1105 (9th Cir. 2012), is

similarly misguided.         As Schumacher himself acknowledges, Budziak recognized that the

functionality of investigative software used in child pornography cases was “material [to the

defense] under the rules of discovery.” But the dispositive question in Budziak was whether the

defendant was entitled to information regarding the functionality of investigative software as a

discovery matter, not whether a search-warrant affidavit must provide such information.

697 F.3d at 1111-12. Thus, it is of no relevance here.

          Schumacher additionally argues that the denial of his motion to suppress without first

providing a hearing was erroneous because it deprived him of the opportunity to “investigate and

cross-examine” the software. He suggests that an evidentiary hearing should have been held to

allow him to gather evidence that the software was unreliable. In this regard, Schumacher

appears to have confused the purpose of a Franks hearing, which is to permit the court to

determine whether law enforcement agents made deliberate falsehoods to secure a search

warrant, not to provide discovery for the defendant. See Franks, 438 U.S. at 170 (noting that the

preliminary showing requirement “prevent[s] the misuse of a veracity hearing for purposes of

discovery.”). Further, “[t]o mandate an evidentiary hearing, the challenger’s attack must be

more than conclusory and must be supported by more than a mere desire to cross-examine.” Id.

at 171. The district court’s refusal to provide Schumacher a hearing on his motion to suppress,

then, did not deprive him of his right to investigate the reliability of the software, because he was

not entitled to any such right under Franks.2



because it omitted the fact that law enforcement used file sharing software that was only available to law
enforcement to access his computer).
2
  Schumacher cursorily asserts that the district court violated his Fifth Amendment right to due process and his Sixth
Amendment right to confrontation by denying his suppression motion without a hearing. But he provides no case
law or argument in support his apparent claim that these rights extend to a defendant challenging whether a search

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No. 14-3576
United States v. Schumacher

         Lastly, Schumacher incorrectly asserts that the district court ran afoul of this court’s

precedent by denying his motion and “blindly accept[ing] the reliability” of the software. He

provides no precedent holding that a court must assess the reliability of investigative software

used to support a search warrant’s affidavit before finding that probable cause for the warrant

exists. He instead cites two cases that concern the irrelevant issue of the competency and

credibility of evidence offered at suppression hearings. See United States v. Stepp, 680 F.3d 651,

668 (6th Cir. 2012); Fields v. Bagley, 275 F.3d 478, 485 n.5 (6th Cir. 2001) (per curiam).

         Because Schumacher has failed to show that the search warrant affidavit included false

statements or omitted information material to a finding of probable cause, he cannot meet the

preliminary showing required for an evidentiary hearing on a motion to suppress. The district

court thus did not abuse its discretion in denying Schumacher’s motion to suppress without first

holding a Franks hearing, and should be affirmed.

                                                CONCLUSION

         For the reasons set out above, we AFFIRM the district court’s judgment.




warrant affidavit provided probable cause for a search, or that they entitle such a defendant to a Franks hearing even
if that defendant cannot make the preliminary showing required for such a hearing.

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