                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 06-4293
UNITED STATES OF AMERICA,
                                         Plaintiff-Appellee,
                             v.

JODY W. LOWE,
                                      Defendant-Appellant.
                       ____________
          Appeal from the United States District Court
              for the Western District of Wisconsin.
       No. 06-CR-122-C—Barbara B. Crabb, Chief Judge.
                       ____________
 ARGUED OCTOBER 24, 2007—DECIDED FEBRUARY 15, 2008
                    ____________


  Before FLAUM, MANION, WILLIAMS, Circuit Judges.
  FLAUM, Circuit Judge. Jody Lowe pled guilty to distrib-
uting images of minors engaged in sexually explicit
conduct in violation of 18 U.S.C. § 2252(a)(2) while reserv-
ing the right to challenge the lawfulness of the search
warrant that led to his arrest. Lowe argues that the
affidavit in support of the search warrant contained
material false statements, and that probable cause to
issue the warrant did not exist. The district court
denied his motion to quash the search warrant and
suppress the evidence seized during the execution of the
warrant, and we affirm.
2                                            No. 06-4293

                     Background
  Tim Schultz, a special agent with the Wisconsin Depart-
ment of Justice, specializes in internet crimes against
children. In January 2006, Schultz received information
from Detective Dale Williams of the Seattle, Washington
Police Department regarding Jody Lowe. This informa-
tion related to images of child pornography exchanged
between an individual in Washington and Lowe. Soon
thereafter, on January 26, 2006, Schultz received a
package of information from Williams detailing the
investigation. He also researched Wisconsin Department
of Transportation records to learn that Lowe resided
with his wife and children at 654 Park Ridge Drive in
Eau Claire, Wisconsin. Schultz conducted surveillance of
the premises and observed the home, a van registered to
the Lowes, a motor home, and a semi-tractor.
  Paul Becker, an investigator in the Eau Claire Police
Department’s Juvenile Crimes Division, was assigned to
assist Schultz’s investigation. Schultz provided Becker
with the packet of information that he had received
from Williams in Seattle. On February 2, 2006, the two
officers met with Eau Claire County Assistant District
Attorney Emily Long and presented her with a draft of
an affidavit for a search warrant that Schultz had pre-
pared. They submitted the affidavit so that the District
Attorney’s Office could convert it to the office’s format
for search warrant applications. At the meeting, Schultz
and Becker discussed their investigation with Long and
indicated that they wished to search Lowe’s residence.
Between February 2 and February 7, the two officers
together conducted surveillance of Lowe’s residence in
preparation for the execution of the search warrant. There
was an element of deja vu here for Becker, because he
had already been to Lowe’s residence and spoke with
him in 2002 regarding an investigation into allegations
that he might possess child pornography.
No. 06-4293                                                3

  Long edited the affidavit to comply with office format-
ting, but at the last minute, because Schultz was not able
to sign the document that day, Becker was substituted
as the affiant. Becker did not play a role in revising the
affidavit and relied on Long to draft it correctly. Becker
read the affidavit before swearing to it before an Eau
Claire County Circuit judge on February 7, 2006. The next
day, Becker recognized that the face sheet of the war-
rant did not include all of the places to be searched,1 so
the detectives acquired a new face sheet. Becker read the
new warrant, did not notice any mistakes, and swore it
out before a different Eau Claire Circuit Court judge.
Schultz also read both affidavits and did not notice any
mistakes.
   Unfortunately, the affidavit was sloppily edited, and
contained a number of attribution errors. The last minute
switch from Schultz to Becker as the affiant required a
little more effort than simply using the “find and replace”
function on a word processor. In particular, there were
four errors. First, the affidavit stated that Becker con-
ducted the surveillance of Lowe’s residence on January
26th when it was in fact Schultz. Nevertheless, we know
that Becker did accompany Schultz on a subsequent
surveillance operation soon thereafter. Second, the affida-
vit indicated that Becker received information from
Williams in Seattle when in reality Schultz was the
true recipient. However, it is true that Schultz did
then forward this packet of information on to Becker.
Third, the affidavit suggested that Becker, not Schultz,
had personally researched the Wisconsin Department of
Transportation records to determine where Lowe lived.
Fourth, the “summary of experience and training” section



1
  Specifically, the face sheet did not include a semi-tractor
and trailer among the places that were to be searched.
4                                             No. 06-4293

of the affidavit referred to Schultz’s experience and
training, though Becker’s background is in fact substan-
tially similar. Thus while these errors erroneously attrib-
uted knowledge and acts to Becker, in each instance, what
was true for Schultz was ultimately, in some way, also
true for Becker.
  The search warrant based on this affidavit was exe-
cuted on February 8, 2006. Police uncovered deleted
images of child pornography on one computer and three
CDs containing 1,397 images of children being sexually
exploited. Lowe waived his Miranda rights and admitted
that he had received all of the sexually explicit images
attached to various e-mails. In addition, Lowe was not
surprised when investigators located approximately
6,500 images of child pornography and/or child erotica
on his computer.
  On May 31, 2006, the grand jury indicted him with two
counts, alleging that he distributed images of children
engaged in sexually explicit conduct, in violation of 18
U.S.C. § 2252(a), and that he possessed a CD containing
images of minors engaged in sexually explicit conduct,
in violation of 18 U.S.C. § 2252(a)(4)(B). Lowe filed a
motion to suppress under Franks v. Delaware, 438 U.S.
154 (1978), where he argued that Becker made several
material false statements with reckless disregard for the
truth in his affidavit, and that the warrant failed to
establish probable cause. Lowe subsequently pled guilty
to one count, conditional on his right to challenge the
lawfulness of the search warrant. Magistrate Judge
Stephen L. Crocker issued a report recommending denial
of Lowe’s motion, which the district court adopted in its
order on November 30, 2006. On that day, Lowe was
sentenced to 144 months in prison to be followed by
twenty years of supervised release.
No. 06-4293                                               5

                       Discussion
  On appeal, Lowe raises the same issues that he pre-
sented below regarding the lawfulness of the search
warrant. First, he argues that Becker exhibited reckless
disregard for the truth when he swore to the truth of
the affidavit. Second, he contends that the district court
erred in determining that the search warrant affidavit
demonstrated probable cause to search his residence.
We analyze each issue in turn.


                            A
  The Supreme Court held in Franks v. Delaware that
intentionally or recklessly submitting false statements
in an affidavit supporting a search warrant violates the
Fourth Amendment. At a Franks hearing, a defendant
must show by preponderance of the evidence that: (1) the
search warrant affidavit contained a false material
statement or omitted a material fact; (2) the affiant
omitted the material fact or made the false statement
intentionally, or with reckless disregard for the truth;
and (3) the false statement is material in order to sup-
port the finding of probable cause. See United States v.
Marrow, 272 F.3d 817, 821 (7th Cir. 2001). This Court
has held that an affiant acts with reckless disregard for
the truth when he or she “in fact entertained serious
doubts as to the truth of his allegations.” United States v.
A Residence Located at 218 Third Street, New Larus,
Wisconsin, 805 F.2d 256, 258 (7th Cir. 1986). It follows
that negligence does not constitute reckless disregard
for the truth. Id.
  Lowe contends that the incorrect statements con-
tained in the affidavit were made with reckless disregard
for the truth, and should therefore be redacted. The
remaining portions of the affidavit, Lowe claims, are then
6                                               No. 06-4293

insufficient to establish probable cause. The primary
statements Lowe refers to here are, first, that Becker did
not receive the package from Williams, and second, that
Becker did not research the Department of Transporta-
tion records for Lowe’s address. With respect to inten-
tionality, Lowe notes that Becker read the affidavit
carefully enough to notice that the face sheet did not
indicate that the semi-tractor and trailer were to be
searched, and so he would have noticed these other errors.
  Before turning to the merits of Lowe’s Franks-based
arguments, we must evaluate, as the district court did,
whether the purposes of the exclusionary rule are
even implicated in this case. To be sure, the Supreme
Court has clearly stated that the “ ‘prime purpose’ of the
[exclusionary] rule, if not the sole one, ‘is to deter future
unlawful police conduct.’ ” United States v. Janis, 428 U.S.
433, 446 (1976) (quoting United States v. Calandra, 414
U.S. 338, 347 (1974)). Hence we must ask ourselves
precisely what type of police misconduct would be de-
terred in the future if we were to suppress evidence from
the search in this case. The record reflects that the
inaccuracies contained in the affidavit solely arose from
poor editing on the part of the District Attorney’s Office.
While careless drafting by government attorneys is in-
deed problematic, it is not tantamount to police mis-
conduct that rises to the level of disregard for citizens’
Fourth Amendment rights. Significantly, the poor editing
here did not actually help the government’s case: an
affidavit that correctly referred to Becker and relied on
his subjective knowledge would have been more than
adequate to establish probable cause. The exclusionary
rule serves to deter officers from obtaining warrants
based on false information, not to deter them from ob-
taining warrants based on accurate information that is
reported to the issuing state court judge in a somewhat
slipshod manner. Given the source of the inaccuracies
No. 06-4293                                                  7

here, application of the exclusionary rule would be too
blunt of an instrument. We therefore agree with the
district court that the purposes of the exclusionary rule
are not implicated in this case.
  Even if we were to disregard the purposes of the Fourth
Amendment and look specifically at the outcome of the
Franks hearing, Lowe’s arguments would still come up
short. First, Lowe’s assertion that Becker noticed an
error on the face sheet of the warrant—quite literally
the first page—is not enough to establish that he swore
to the affidavit as a whole with a reckless disregard for
the truth. This is particularly true given that the defen-
dant has the burden of proof in a Franks hearing. Second,
there is no evidence that tends to indicate that Becker
entertained serious doubts regarding the veracity of the
statements contained in the affidavit. To the contrary,
the record indicates that (1) Becker played no role in
drafting the affidavit; (2) the Assistant District Attorney
(“ADA”) drafted it after she received the first draft
from Schultz; (3) Becker relied on the ADA to draft it
correctly; and (4) he read the affidavit prior to signing
both versions, but did not see any mistakes. Lowe has
presented this Court with no reason to believe that the
magistrate judge committed any clear error in concluding
that Becker’s testimony was credible, and that he did not
pursue the warrant with a reckless disregard for the truth.
Third, with respect to incentives, we are unable to see
what the government had to gain by creating these
inaccuracies, since a correctly drafted affidavit tailored
to Becker as affiant would have been perfectly accept-
able—perhaps even more so than the affidavit at issue
here.2 At worst, what we have before us is a case where


2
  Lowe tries to argue that, under our precedent, the reviewing
court cannot consider new, truthful information that was not
presented to the warrant issuing court. See United States v.
                                                 (continued...)
8                                                     No. 06-4293

Becker was simply negligent and should have read the
affidavit more carefully.


                                 B
  This Court reviews the district court’s determinations
of probable cause de novo. United States v. Brack, 188
F.3d 748, 755 (7th Cir. 1999). In cases where an affidavit
is the only evidence presented to the magistrate in sup-
port of a search warrant, “[p]robable cause is established
when, based on the totality of the circumstances, the
affidavit sets forth sufficient evidence to induce a reason-
ably prudent person to believe that a search will uncover
evidence of a crime.” United States v. Peck, 317 F.3d 754,
756 (7th Cir. 2003) (citations omitted). At the core, we
examine whether the issuing judge had a substantial
basis for concluding that probable cause existed. United
States v. Koerth, 312 F.3d 862, 866 (7th Cir. 2002).
  Lowe maintains that Becker’s affidavit does not establish
probable cause to suspect that child pornography would be
found at his residence. The warrant to search his residence
authorized a search for evidence that he violated Wiscon-
sin’s statute criminalizing possession of child pornography.
WIS. STAT. § 948.12. This statute prohibits the possession
of images showing a child engaged in sexually explicit


2
  (...continued)
Harris, 464 F.3d 733, 738 (7th Cir. 2006). In other words, a
reviewing court should simply look at the affidavit with the
false statements excised instead of also considering the new,
truthful information presented at, for instance, a Franks hearing.
While this is true as a general matter, it misses the mark here.
The information presented to the reviewing court in this case
did not involve new facts that bolstered a finding of probable
cause. Instead, it involved the clarification of attribution errors,
many of which are already apparent on the face of the affidavit.
No. 06-4293                                                9

conduct, which includes lewd exhibition of intimate parts.
Wisconsin case law describes “lewd exhibition” as follows:
    First, the photograph must visibly display the child’s
    genitals or pubic area. Mere nudity is not enough.
    Second, the child is posed as a sex object. The statute
    defines the offense as one against the child because
    using the child in that way causes harm to the psycho-
    logical, emotional, and mental health of the child. The
    photograph is lewd in its “unnatural” or “unusual”
    focus on the juvenile’s genitalia, regardless of the
    child’s intention to engage in sexual activity or
    whether the viewer or photographer is actually
    aroused.
State v. Petrone, 468 N.W.2d 676, 688 (Wis. 1991).
  Lowe’s basic contention is that the description of the
images contained in the affidavit do not meet the
statutory definition of child pornography. In some cases, he
is correct that the affidavit is a bit conclusory in labeling
certain pictures as child pornography. However, Lowe runs
into problems when discussing two images—one where the
boys “look to be from 13 to 16,” and one of a “12 to 15 year
old boy.” Lowe does not try to argue that these images do
not fit the statutory definition, but he asserts that the age
estimates are based on the officer’s subjective experience
of the images. He claims that these photographs should
have been attached to the affidavit so that the issuing
judge could have drawn his or her own conclusions with
respect to the ages of these individuals. Nothing in our
precedent suggests that this is necessary. First, estimating
the age of persons is not an area that requires any special
expertise. Second, the affidavit describes these images in
sufficient detail to give the reader an understanding of
why the officer placed certain individuals within a particu-
lar age range. As a general matter, an issuing court does
not need to look at the images described in an affidavit in
order to determine whether there is probable cause to
10                                             No. 06-4293

believe that they constitute child pornography. A detailed
verbal description is sufficient. Take, for example, another
image that causes problems for Lowe:
     . . . a black and white depiction of a naked 8 year old
     girl sitting at the edge of a bed. She has her legs
     spread open exposing her genitals to the camera. She
     is looking at the camera and smiling. She has her
     right arm extended out to her right with her right
     hand resting on pubic hair/vaginal area of an adult
     female who is lying back on the bed and is shown
     reading a pornographic magazine.
There is no disagreement about age here. Instead, Lowe
argues that this image constitutes child erotica, not child
pornography. What matters here is whether this consti-
tutes “lewd exhibition” under Wisconsin law. Given the
focus on the child’s genitalia, and the atmospherics
posing the child as a sex object, we are convinced that
it does. And thus we are satisfied that there was a sub-
stantial basis for the issuing judge to believe that this
image constituted lewd exhibition and that child pornog-
raphy would be found at Lowe’s residence.


                       Conclusion
    For the foregoing reasons, we AFFIRM the district
court’s judgment. Accordingly, Lowe’s guilty plea governs
and his conviction stands.

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit

                   USCA-02-C-0072—2-15-08
