                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 06a0209p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                              X
                                         Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                               -
                                                               -
                                                               -
                                                                   No. 05-5296
              v.
                                                               ,
                                                                >
 LYMAN WAGERS,                                                 -
                                     Defendant-Appellant. -
                                                              N
                              Appeal from the United States District Court
                            for the Eastern District of Kentucky at Lexington.
                             No. 04-00066—Karl S. Forester, District Judge.
                                         Argued: January 24, 2006
                                    Decided and Filed: June 27, 2006
  Before: BOGGS, Chief Judge; BATCHELDER, Circuit Judge; and WEBER, District Judge.*
                                            _________________
                                                  COUNSEL
ARGUED: H. Louis Sirkin, SIRKIN, PINALES & SCHWARTZ, Cincinnati, Ohio, for Appellant.
John Patrick Grant, ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, for
Appellee. ON BRIEF: H. Louis Sirkin, Jennifer M. Kinsley, SIRKIN, PINALES & SCHWARTZ,
Cincinnati, Ohio, for Appellant. John Patrick Grant, ASSISTANT UNITED STATES ATTORNEY,
Lexington, Kentucky, for Appellee.
                                            _________________
                                                OPINION
                                            _________________
        BOGGS, Chief Judge. Lyman Wagers pleaded guilty to receiving and possessing child
pornography. On February 11, 2005 he was sentenced to 180 months in prison. The sentence
conformed to the 15-year mandatory minimum for second offenders under 18 U.S.C. § 2252(b)(1).
Arguing that the three search warrants leading to evidence incriminating him were not supported by
probable cause, he appeals the trial court’s denial of his motion to suppress evidence seized pursuant
to the warrants. See United States v. Wagers, 339 F. Supp. 2d 934, 940 & n.1 (E.D. Ky. 2004). We
affirm.



        *
          The Honorable Herman J. Weber, United States District Judge for the Southern District of Ohio, sitting by
designation.


                                                        1
No. 05-5296           United States v. Wagers                                                 Page 2


                                                  I
        This is Wagers’s second conviction on child pornography charges. He was convicted in
1997 of one count of possession of child pornography and sentenced in the United States District
Court for the Eastern District of Kentucky to 366 days in prison, plus three years of supervised
release. In the case now before us, Wagers, a 57-year-old erstwhile lawyer and C.P.A., pleaded
guilty to one count of conspiracy to receive child pornography, nineteen counts of receiving child
pornography, and one count of possession of child pornography. The terms of his guilty plea
allowed him to appeal the conviction on the grounds that the search warrants used in the
investigation were not supported by probable cause.
        A Homeland Security sting operation led to Wagers’s arrest. From March to August 2003,
federal agents purchased subscriptions to and visited websites available at redlagoon.com,
video2000.com, and darkfeeling.com. While visiting these sites, the agents found images of child
pornography. They obtained records from the billing services of these sites. These records revealed
that Wagers had purchased subscriptions to redlagoon.com on June 30, 2002; to video2000.com on
March 22, 2003 and again on June 3, 2003; and to darkfeeling.com on April 15, 2003. Though the
lengths of Wagers’s subscriptions are not clear from the record, based on the prices he paid for his
subscriptions, as compared to the prices the agents paid for one-month subscriptions, it appears that
each of Wagers’s subscriptions was for between one and two months of membership. This inference
has been offered by Wagers and is not contested by the government. The agents who examined the
websites did so by purchasing one-month subscriptions on March 26, 2003, August 1, 2003, and
July 21, 2003, respectively.
        On April 5, 2004, federal agents executed a search warrant at the home of Lyman Wagers
(“Mimosa Lane” or “home”). After finding child pornography on Wagers’s home computer, agents
swore out another affidavit for his office. On April 7, 2004, agents obtained a separate warrant for
his office (“Harrodsburg Rd.” or “office”). The same day, he was arrested for possession of child
pornography. The following day, agents obtained a third search warrant, directed to America
Online, the company supporting Wagers’s email account (“AOL” or “email”). Wagers’s guilty plea
and conviction are based on images found on his home computer, at least some of which, he
concedes, were transmitted via his American Online account.
        The home and office affidavits were both more than thirty pages long and quite detailed. The
AOL affidavit is seven pages and less detailed, but it states that agents had connected Wagers’s AOL
email address to his home address and to the purchase of subscription memberships to all of the
websites containing offending material. It further states that the affiant’s “experience and training”
lead him to believe that Wagers uses his AOL account to “order, arrange for the payment of, and
arrange for the receipt of child pornography . . . .” Id. at 162. The warrants and their supporting
affidavits alleged that Wagers had bought subscriptions to websites that were found at a later date
to display child pornography. They did not specifically allege that Wagers had viewed the sites or
that he had accessed unlawful content on them.
       A federal grand jury indicted Wagers on May 6, 2004. He moved to suppress the evidence
seized at his home and office. The district court denied the motion without a hearing. Wagers
pleaded guilty to all counts, conditioning the plea on his right to appeal the ruling on the motion to
suppress.
       The district court sentenced Wagers to 180 months in prison on February 11, 2005. The
guidelines range was 97 to 121 months, but the sentence conformed to the 15-year mandatory
minimum for second offenders required by 18 U.S.C. § 2252(b)(1).
No. 05-5296           United States v. Wagers                                                   Page 3


       Wagers timely appealed his conviction, challenging the district court’s denial of his motion
to suppress.
                                                  II
       This court reviews a district court’s factual findings supporting its denial of a motion to
suppress for clear error. It reviews de novo the district court’s determination as to the
reasonableness of the search as a question of law. United States v. Carpenter, 360 F.3d 591, 594
(6th Cir. 2004) (en banc); United States v. Harris, 255 F.3d 288, 291-92 (6th Cir. 2001). The
“appellate court must consider the evidence in the light most favorable to the government” when
reviewing a denial of a motion to suppress. United States v. Herndon, 393 F.3d 665, 667 (6th Cir.
2005) (quoting United States v. Erwin, 155 F.3d 818, 822 (6th Cir. 1998) (en banc)). “Probable
cause exists where there is a fair probability, given the totality of the circumstances, that contraband
or evidence of a crime will be found in a particular place.” United States v. Helton, 314 F.3d 812,
819 (6th Cir. 2003) (quoting United States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991)).
                                                  III
        Wagers’s first major argument is that the affidavits were not supported by probable cause
for three reasons:
        1) the affidavits supporting the search warrants did not allege that he had owned website
memberships at a time when illegal images were mounted on the sites or that he had accessed the
sites during the times when illegal images were available;
       2) the affidavits do not adequately connect the illicit activity to his home, office, or AOL
account; and
       3) the affidavit for the home warrant improperly relied on the fact of Wagers’s prior
conviction.
       In this section, we address each component of this argument in turn. In section IV of this
opinion we address the second major argument of Wagers’s appeal.
        Wagers notes that the agents’ subscriptions post-dated the expiration of all but possibly one
of his own subscriptions. He argues that the affidavits supporting the search warrants merely infer
that there were unlawful images on those sites at the time of his earlier subscriptions.
        To assess how much of an inference was made in issuing the search warrants, it is useful to
observe that roughly five months elapsed between the end of Wagers’s subscription to
redlagoon.com and the commencement of the agents’ subscription. Approximately one month
passed before their subscriptions to darkfeeling.com. And it is possible that only a few days elapsed
between the end of Wagers’s second subscription to video2000.com and the government’s. Indeed,
if Wagers’s subscription was for two months (which, according to his own brief’s uncontested
calculation of “between one and two months,” is possible), there would be a short overlap between
the end of his second subscription and the government’s subscription. Whether or not there was an
actual overlap between subscriptions, an inference based on the difference of a few days–in the case
of video2000.com–or of roughly 30 days–in the case of darkfeeling.com–is not very hard to make,
even setting aside the perhaps more tenuous inference based on research on redlagoon.com that was
five months after Wagers’s known use.
        Wagers claims in his brief (Appellant’s Brief, 12) that these three websites contained both
legal and illegal images. The government claims this assertion is false. (Appellee’s Brief, 12)
Wagers does not offer clear support for his statement in the record. Neither, for that matter, does
No. 05-5296               United States v. Wagers                                                              Page 4


the United States. The government points only to two printouts in the Joint Appendix submitted to
this court, of the homepages of darkfeeling.com and redlagoon.com, both of which announce that
all models featured on the sites are “14 or younger.” (JA 195-96) These homepage reproductions
are highly suggestive but not conclusive. Advertisers have been known to mislead before. Wagers
rebuts, moreover, that the affidavits never state that the sites offer exclusively illegal content.
Appellant’s Reply Brief, 7. Neither party’s view is definitive. But the district court was correct in
concluding that this question is not dispositive. Probable cause to search for illicit pornography in
Wagers’s home, office, and email account existed even without a statement that these three websites
contained only illegal images. See 339 F. Supp. 2d at 940 & n.1 The district court’s conclusion is
especially strong in light of the temporal analysis: based on the proximity in time between their
subscriptions and his, the agents were justified in averring the essential similarity of the websites
at the time Wagers had subscribed to them to the sites as they appeared during the sting operation’s
subscriptions.
        Wagers argues that the affidavits do not connect the alleged crime to the places searched.
For a search warrant to be valid, the place to be searched must be connected to the crime alleged.
E.g., United States v. Laughton, 409 F.3d 744 (6th Cir. 2005). Wagers does not dispute that he lived
at 3813 Mimosa Lane, for which the first warrant issued. However, he does contend that “there is
nothing in the affidavit connecting the residence to the alleged child pornography offenses.”
Appellant’s Brief, 14. He offers two feeble pieces of support for this argument. First, he notes that
he did not get Internet access at this residence until October 9, 2002, months after his subscription
to redlagoon.com expired. However, his subscriptions to the other two websites post-date this
Internet access.
        Second, he notes that his subscriptions to video2000.com and darkfeeling.com were made
on a checking card with a billing address of 1608 Harrodsburg Rd. in Lexington. Therefore, he
argues, his subscriptions were connected only to his business office, not to his home, even though
his home was the subject of the first warrant. However, the affidavit sworn by Homeland Security
Special Agent Sean Lichner in support of the April 5, 2005 search warrant of the Mimosa Lane
home notes specifically that the investigation into the subscription records of the three websites
revealed that a subscriber’s email address “Spike20004U@aol.com” was connected to 1608
Harrodsburg Rd. and 3813 Mimosa Lane, both in Lexington, Kentucky. The affidavit also avers that
two credit card numbers and a phone number associated with the Mimosa Lane address were
obtained from the websites’ billing service provider, and that these data were soon connected to the
name Lyman Wagers.
        In addition, the affidavit avers that the investigation revealed that Wagers used Insight
Communications as his home Internet service.1 Id. at 99. It further avers that an IP address assigned
by Insight to Wagers was used to purchase both memberships at video2000.com and the membership
at darkfeeling.com. Ibid. Because this IP address was assigned by Insight, and because it appears
from the wording of the affidavit that Wagers used Insight at his home but not his office, his home
would be well within the ambit of a properly issued search warrant. Even if the home were only one
of two locations–home and office–served by Insight, there would be sufficient evidence to support
probable cause. Given the specificity of the investigation’s results and the content of the affidavit,
the warrant was valid.
        Wagers cites United States v. Savoca, 761 F.2d 292, 297 (6th Cir. 1983), for the proposition
that the “existence of probable cause to believe a suspect is guilty of a crime does not create
probable cause to search that individual’s residence without independent evidence establishing a

         1
          The affidavit notes that Wagers uses Insight as the Internet provider for his home. It also notes that Insight
had his office address for billing purposes. However, it appears from the wording of the affidavit that Wagers did not
use Insight at his office, but only at his home.
No. 05-5296           United States v. Wagers                                                    Page 5


nexus between the place and the crime.” Appellant’s Brief, 15. Savoca did not involve a home, but
a motel room, a location subject to a lesser expectation of privacy. Second, and more importantly,
we criticized the affidavit in that case as “only tenuously connect[ing] the place to be searched with
two persons for whom arrest warrants were outstanding,” for “fail[ing] to describe the relationship
of the persons to the premises,” and because it “did not state, for example, whether the location to
be searched was a permanent residence, a transient lodging, or a third party’s residence which the
two named persons were merely visiting.” The affidavit stated only that “both suspects ‘were seen’
in the motel room on two occasions.” Id. at 297 and n.8. The affidavit in our case is much more
specific.
         It is true that, in United States v. Helton, 314 F. 3d 812, 821 (6th Cir. 2003), this court held
that, even where police investigations revealed that a defendant was closely connected to possession
of narcotics, a search warrant for his home was invalid without any evidence linking that residence
to the drug trade. However, that case is easily distinguished. First, part of the affidavit was based
on an anonymous tipster, which the court reasonably found to have been insufficiently reliable to
form the basis of probable cause. Id. at 821-22. Second, part of the affidavit was based on a
confidential informant’s allegation, much of which pointed to a home other than the defendant’s.
Id. at 821. No such affirmative evidence, pointing to places other than Wagers’s home or business,
appears here. Third, the remainder of the affidavit was based on the placing of three phone calls per
month from the defendant’s home telephone to the number of a known drug trafficker. The evidence
in our case connecting the defendant, his computer, his IP address, and his home to the offense is
considerably stronger, particularly where the criminal activity (viewing child pornography) is much
more tied to a place of privacy, seclusion, and high-speed Internet connectivity (e.g. a home or
office) than the storing of drugs (which can take place in a car, a ditch, a hole in the ground, etc.).
        Our opinion today is consistent with the views of our sister circuits. The Second and Fifth
Circuits, for example, have noted that evidence that a person has visited or subscribed to websites
containing child pornography supports the conclusion that he has likely downloaded, kept, and
otherwise possessed the material. United States v. Martin, 418 F.3d 148, 157 (2d Cir. 2005); United
States v. Froman, 355 F.3d 882, 890-91 (5th Cir. 2004).
        As to the third warrant in his case, the one served on AOL, Wagers notes that the affidavit
sworn in support of this warrant observes mostly that he subscribed to and visited websites. The
only reference to email in the affidavit is the affiant’s stated “belie[f] that Wagers uses the
spike20004U@aol.com email account to order, arrange for the payment of, and arrange for the
receipt of child pornography.” (JA 162, quoted at Appellant’s Brief, 17) Wagers also used an IP
address furnished by AOL to sign up for at least one of his subscriptions. An offender without
relatively sophisticated knowledge of transmittal or downloading technology might reasonably be
expected to use email to send and receive pornographic images or at least web links to them.
Probable cause does require a sufficient nexus between the location to be searched and the evidence
sought. United States v. McLevain, 310 F.3d 434, 439 (6th Cir. 2002). This court, in United States
v. Schultz, 14 F.3d 1093 (6th Cir. 1994), declined to find such a nexus–and held that the avowed
training and experience of law enforcement-affiants failed to subsitute for it–where police suspected
a defendant of drug offenses and therefore sought to search his safety deposit box. However, the
nexus between an AOL email account and Internet-accessed child pornography, especially where
some of that access has been through AOL IP addresses, is much more obvious than the connection
between drug trafficking and safety deposit boxes.
        Wagers’s final argument on the warrant’s sufficiency is that the affidavit for the home
warrant “relies heavily upon the fact that Wagers had a previous child pornography conviction.”
(Appellant’s Brief, 15) Though the affidavit supporting that warrant does take note of his prior
offense over less than two full pages, the document is 32 pages long, plus four pages of attachments,
and the discussion of his prior offense is not the preponderant support for the application for the
No. 05-5296               United States v. Wagers                                                               Page 6


warrant. Implying that a prior conviction cannot properly raise an inference of later criminal
activity, even for an identical or nearly identical offense, Wagers argues that an “individual’s
criminal history . . . is not the appropriate focus for a search warrant affidavit.” Appellant’s Brief,
16. Wagers’s only citation of law for this proposition is Mays v. City of Dayton, 134 F.3d 809, 814
(6th Cir. 1998), stating that “[s]earch warrants are directed not at persons, but at specific locations
where there is probable cause to believe the instrumentalities or evidence of crimes will be found.”
This case does not help Wagers’s larger implied argument here, to the effect that search warrants
based in part on prior convictions are presumptively invalid. The test for probable cause, as the
Supreme Court affirmed very recently in United States v. Grubbs, 126 S. Ct. 1494 (2006), is whether
“‘there is a fair probability that contraband or evidence of a crime will be found in a particular
place.’” Grubbs at 1499 (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). The application of
this test is not fettered by the presumption of innocence embodied in the test for conviction. Instead,
a “person of reasonable caution” would take into account predelictions revealed by past crimes or
convictions as part of the inquiry into probable cause. See, e.g., United States v. Blanton, 520 F.2d
907, 912 (6th Cir. 1975) (finding probable cause to search defendant’s car where the arresting officer
was reliably informed that the car trunk contained a machine gun and money, where the officer knew
that the defendant had extensive use of the car, and where the officer personally knew the defendant
well enough to know of his “past criminal record”). Wagers’s prior conviction for possession of
child pornography followed the seizure of illegal images on both his home and his office computers.
When, in our case, the Homeland Security agents uncovered evidence of Wagers’s connection to
the websites carrying child pornography, his prior conviction was relevant, though not dispositive.
Given the requirements of seclusion and a high-speed Internet connection, a home and office search
warrant is supported by probable cause under these circumstances. For this reason, and for the
several reasons already adduced supra, the district court did not abuse its discretion in denying a
motion to suppress evidence gathered pursuant to a search warrant for Wagers’s home and office.
                                                          IV
        Wagers’s secondary point is that the Internet is an “ever-changing global method of
communication” that “heighten[s]” the “importance of the probable cause requirement.”
(Appellant’s Brief, 8) Some websites contain both lawful images and unlawful images. He argues
that the Internet presents too many opportunities for search warrants to be issued where innocent
activity and criminal activity may be easily confused or accidentally mixed (e.g., by visiting
websites containing legal and illegal images). His argument here seems to be that the Internet is a
new and different entity, and that such an entity should be analyzed cautiously by law enforcement
and courts. A lurking point, though Wagers never states it explicitly (most likely because he was
caught red-handed with at least six hundred graphic and disturbing images of children having–or
being forced to have–sex), is that the Internet may present too many opportunities for a search
warrant to be issued where innocent activity (viewing lawful pornography) and criminal activity
(viewing unlawful pornography) may be easily confused or accidentally mixed, as by visiting
websites that may contain lawful and unlawful pornography. His contention    implies rejection of the
common law’s capacity to handle significant innovation and novelty.2
        The tools available to us are adequate to the task of helping us understand the risks posed
to Fourth Amendment rights by the type of law enforcement we see in the appeal before us. As it
applies to the facts of Wagers’s case, the Internet does not present a murky new innovation without
adequate analogs in the pre-“wired” world. In essence, Wagers’s Internet argument is just a

         2
            This capacity has, at times, been considered perfect. See Joseph H. Beale, A Treatise on the Conflict of Laws
§ 3.2, 4.12 (1935) (describing the common law as a seamless web of interlocking principles which, properly applied,
can fully accommodate intelligent analysis of a case arising from commerce with any technological invention, including,
illustratively, the streetcars of mid-nineteenth century Boston, which Chief Justice Lemuel Shaw deftly analyzed using
existing common law analysis in Commonwealth v. Temple, 80 Mass. (14 Gray) 69, 74 (1859)).
No. 05-5296               United States v. Wagers                                                             Page 7


variation of the “simply in the wrong place at the wrong time” refrain. This type of argument is not
infrequently put forward in other contexts, for example by persons attacking search warrants based,
in part, on their presence in a shady part of town, near the scene of a murder, or any number of
locales or factors that could also have an innocent explanation. Indeed, it is a commonplace part of
judging attacks on convictions as well as warrants (with their lower standard of proof), that the law
can properly judge evidence that could be consistent with innocence as well as guilt, and that our
system can make a valid determination as to which obtains in a particular fact pattern. It is well
established in this court that “the probable cause requirement does not require that every contrary
hypothesis be excluded.” United States v. Alfano, 838 F.2d 158, 162 (6th Cir. 1988). No new
standard of evidence is necessary for dealing with cases involving the Internet. All that is required
is a consistent application of our existing approaches to possibly ambiguous evidence.
       To press his argument that the Internet poses novel risks to constitutional law enforcement,
Wagers relies heavily on the Ninth Circuit’s recent decision in United States v. Gourde, 382 F.3d
1003 (9th Cir. 2004). In that case, the defendant was arrested following the execution of a search
warrant based on an affidavit that alleged that he subscribed to a website that contained both lawful
and child pornography but silent on the question whether he had actually used the site and/or
accessed its content. Id. at 1007. The Ninth Circuit panel invalidated the search warrant as
supported by insufficient information to furnish probable cause. The court demanded particularized
information that the defendant had viewed illegal images. Id. at 1013.
       His reliance on Gourde is flawed for three compelling reasons. First, Gourde appears to have
had no prior convictions for child pornography. Wagers does. Following questioning pursuant to
his 1997 arrest, the FBI learned that Wagers had transmitted “many more than [four]” images via
his AOL “internet connection” (though it is unclear whether3this transmittal refers to “email” or just
his means of “surfing”) in the years preceding that arrest. Second, the affidavit supporting the
search warrant in Gourde expressly noted that the website visited in that case, Lolitgurls.com,
featured images of “adult pornography, child pornography, and child erotica.” (Affidavit of David
J. Moriguchi, filed January 29, 2003, page 3) The affidavits supporting the search warrants in our
case note only that the websites visited by Wagers featured illegal images. They are silent on
whether these sites also included legal pornography. Third, the Gourde ruling was substantially
overturned en banc. United States v. Gourde, 440 F.3d 1065 (9th Cir. 2006) (en banc). The en banc
court held that probable cause did exist in the case.
                                                          V
     Because the district court properly denied Wagers’s motion to suppress evidence, we
AFFIRM his conviction.




         3
           For precision and completeness, it bears noting that the defendant admitted to having “transmitted many more
than that number,” where “that number” equaled “four.”
