     Case: 17-11271    Document: 00514662720       Page: 1   Date Filed: 10/01/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                    No. 17-11271                   October 1, 2018
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk


             Plaintiff - Appellee

v.

SEBASTIAN CONTRERAS,

             Defendant - Appellant




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


Before STEWART, Chief Judge, and WIENER and HIGGINSON, Circuit
Judges.

STEPHEN A. HIGGINSON, Circuit Judge:
      On April 4, 2017, federal agents executed a search warrant for child
pornography at the home of Defendant-Appellant Sebastian Contreras. Agents
retrieved, among other items, Contreras’s laptop and external hard drive, on
which Contreras had downloaded multiple videos depicting the sexual abuse
of infants and minor children. Contreras conditionally pleaded guilty to two
counts of receipt of child pornography, reserving the right to appeal the district
court’s denial of his motion to suppress. On direct appeal, Contreras contends
that the search of his home was not supported by probable cause. We AFFIRM.
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                                 No. 17-11271
                       FACTS AND PROCEEDINGS
      On April 15, 2016, and again on April 17, 2016, an undercover Homeland
Security Investigations (“HSI”) agent saw that user “alex2smith13” had
uploaded sexually graphic images of young children to a group chat on Kik, a
mobile messaging application. Also on April 15, 2016, the Northern District of
Florida issued a grand jury subpoena to Kik, Inc. Kik turned over records
showing that “alex2smith13” had accessed Kik from IP address 108.37.82.115.
That IP address, the government found, had been ported by internet service
provider Verizon Wireless to Frontier Communications. On May 13, 2016, the
Northern District of Florida issued a grand jury subpoena to Frontier. Frontier
responded that the IP address was registered to customer Saul Contreras
(Contreras’s father) at a residential address in Brownwood, Texas. Local law
enforcement confirmed in November 2016 and again in March 2017 that the
Contreras family continued to live at that Brownwood address.
      On March 29, 2017, HSI agent Sean Dunagan applied for and was issued
a search warrant for the Contreras home extending to images of child
pornography stored on cell phones, computers, and computer hardware. Agent
Dunagan’s affidavit in support recounted the facts of the initial investigation
and explained that (1) modern internet-connected computers and cell phones
have made it possible to share child pornography securely and anonymously;
(2) an individual can use a cell phone in tandem with a computer to transfer,
store, or back up child pornography files; (3) people who view child
pornography typically store the materials for many years in the privacy and
security of their own homes; and (4) forensic experts can generally recover
evidence of child pornography on a computer even if files were stored remotely
(e.g., on Dropbox) or deleted. Dunagan based these statements in part on his
experience, training, and background as a federal criminal investigator since
2008 with prior experience in investigating the sexual exploitation of children.
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                                No. 17-11271
At Dunagan’s request, an Assistant U.S. Attorney reviewed the search warrant
application before it was submitted to the magistrate judge. Federal agents
executed the warrant on April 4, 2017 and seized, among other objects,
Contreras’s personal computer and external hard drive.
     A two-count indictment charging Contreras with transportation of child
pornography was filed on April 12, 2017, and a seven-count superseding
indictment charging him with receipt as well as transportation was filed on
May 17, 2017. Contreras moved to suppress the evidence seized in the search,
arguing that Dunagan’s affidavit in support of the warrant made material
omissions, the affidavit on its face did not establish probable cause, and the
government needed a warrant to obtain Frontier’s records connecting the
108.37.82.115 IP address with the Contreras family residence. The district
court held an evidentiary hearing and denied the motion after finding that the
affidavit was truthful, contained no material omissions, and established
probable cause. Contreras reserved the right to challenge the district court’s
ruling and conditionally pleaded guilty to two counts of Receipt of a Visual
Depiction of a Minor Engaging in Sexually Explicit Conduct, in violation of 18
U.S.C. § 2252(a)(2). The district court sentenced Contreras to 168 months of
imprisonment on each count, to run concurrently, and to a ten-year term of
supervised release. Contreras timely appealed.
                               DISCUSSION
      On appeal, Contreras argues that evidence from the April 2017 search
should be suppressed because (1) the government violated Contreras’s
reasonable expectation of privacy in the family address when it obtained




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                                   No. 17-11271
Frontier’s records without a warrant and (2) Dunagan’s affidavit on its face
failed to establish probable cause for the search warrant. 1
      The district court’s factual findings are reviewed for clear error and its
conclusions of law are reviewed de novo. United States v. Payne, 341 F.3d 393,
399 (5th Cir. 2003). We uphold a district court’s denial of a suppression motion
“if there is any reasonable view of the evidence to support it.” United States v.
Michelletti, 13 F.3d 838, 841 (5th Cir. 1994) (en banc) (quoting United States
v. Register, 931 F.2d 308, 312 (5th Cir. 1991)). All evidence is viewed in the
light most favorable to the party who prevailed below—here, the government.
United States v. Massi, 761 F.3d 512, 520 (5th Cir. 2014).
      I. Contreras had no reasonable expectation of privacy in
Frontier’s records
      We first address whether Contreras had a reasonable expectation of
privacy in the family address as contained in Frontier’s records. In a series of
precedents dating back to 1976, the Supreme Court has found that “a person
has no legitimate expectation of privacy in information . . . voluntarily turn[ed]
over to third parties,” “even if the information is revealed on the assumption
that it will be used only for a limited purpose.” Carpenter v. United States, 138
S. Ct. 2206, 2216 (2018) (quoting Smith v. Maryland, 442 U.S. 735, 743–44
(1979) and United States v. Miller, 425 U.S. 435, 443 (1976)). The third-party
doctrine has limits: in Carpenter, the Supreme Court declined to extend the
rule to cell-site records that convey “a detailed and comprehensive record of [a]
person’s movements.” Id. at 2217. But the third-party doctrine continues to
apply to “business records that might incidentally reveal location information,”
including telephone numbers and bank records. Id. at 2220.



      1 Contreras affirmatively waives his argument that Dunagan acted in bad faith by
submitting an affidavit with material omissions.
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                                  No. 17-11271
      The information at issue here falls comfortably within the scope of the
third-party doctrine. Frontier’s records revealed only that the IP address was
associated with the Contreras’s Brownwood residence. They had no bearing
on any person’s day-to-day movement.            Contreras lacked a reasonable
expectation of privacy in that information.
      II. The good faith exception applies
      We next take up Contreras’s contention that suppression is appropriate
because the search warrant issued without probable cause. When a search
warrant is involved, this court first determines whether the good faith
exception to the exclusionary rule applies. United States v. Froman, 355 F.3d
882, 888 (5th Cir. 2004). The good faith exception provides that “evidence
obtained in objectively reasonable reliance on a subsequently invalidated
search warrant” typically should not be excluded. United States v. Leon, 468
U.S. 897, 922 (1984).
      If the good faith exception does apply, we may affirm the district court’s
denial of the motion to suppress without reaching the question of probable
cause. United States v. Cherna, 184 F.3d 403, 407 (5th Cir. 1999); see also
United States v. Craig, 861 F.2d 818, 820 (5th Cir. 1988) (“Principles of judicial
restraint and precedent dictate that, in most cases, we should not reach the
probable cause issue if a decision on the admissibility of the evidence under
the good-faith exception of Leon will resolve the matter.”). But even where the
good faith exception alone would be dispositive, we may review the district
court’s probable cause determination if the appellant raises “a novel question
of law whose resolution is necessary to guide future action by law enforcement
officers and magistrates.” United States v. Maggitt, 778 F.2d 1029, 1033 (5th
Cir. 1985) (quoting Illinois v. Gates, 462 U.S. 213, 264 (1983) (White, J.,
concurring)).


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                                  No. 17-11271
      Contreras argues that his appeal raises novel questions of law
concerning probable cause in the digital era, but he fails to address the first
step in our suppression analysis: whether it was objectively reasonable for
officers to rely on the search warrant. To the extent that Contreras’s probable
cause arguments can be recast as challenges to objective reasonableness, he
fails to show that the good faith exception should not apply.
      “We have identified four situations in which the good faith exception does
not apply: (1) when the issuing magistrate was misled by information in an
affidavit that the affiant knew or reasonably should have known was false; (2)
when the issuing magistrate wholly abandoned his judicial role; (3) when the
warrant affidavit is so lacking in indicia of probable cause as to render official
belief in its existence unreasonable; and (4) when the warrant is so facially
deficient in failing to particularize the place to be searched or the things to be
seized that executing officers cannot reasonably presume it to be valid.” United
States v. Woerner, 709 F.3d 527, 533–34 (5th Cir. 2013). Contreras’s probable
cause arguments are relevant to the third circumstance, whether the warrant
affidavit was so devoid of indicia of probable cause that reliance on the warrant
was objectively unreasonable.
      Contreras first contends that uploading two images of child pornography
over the course of a few days from a cell phone connected to a residential WiFi
network does not establish probable cause to search that residence for evidence
of child pornography, because the images could conceivably have been
uploaded by a temporary guest or an unauthorized neighbor. That may be, but
probable cause does not demand more than a “fair probability” on which a
reasonable person would act. Florida v. Harris, 568 U.S. 237, 244 (2013).
There was at least a fair probability that “alex2smith13” actually lived at the
Contreras home, and our court, as well as others across the country, has found
probable cause to search a residence based on just one or two uploads of child
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                                  No. 17-11271
pornography. See, e.g., United States v. Perez, 484 F.3d 735, 740 (5th Cir. 2007)
(single upload); United States v. Vosburgh, 602 F.3d 512, 526 (3d Cir. 2010)
(single download); United States v. Hinojosa, 606 F.3d 875, 878, 885 (6th Cir.
2010) (two chat sessions over the course of ten days). As a result, Contreras
fails to show that the facts listed in the affidavit lacked indicia of probable
cause.
      Contreras next argues that the information in the affidavit was stale
because HSI observed two Kik uploads in April 2016 but did not seek a warrant
until March 2017.     Certainly, probable cause must “exist at the time the
warrant issues.” United States v. McKeever, 5 F.3d 863, 866 (5th Cir. 1993).
But there is no bright-line test, United States v. Allen, 625 F.3d 830, 842 (5th
Cir. 2010), and information is less likely to be stale if “the evidence sought is
of the sort that can reasonably be expected to be kept for long periods of time
in the place to be searched,” Craig, 861 F.2d at 822–23.         Here, Dunagan
attested that evidence in child pornography cases may be kept for years
because people who collect child pornography typically maintain those
materials for a long time, and forensic experts can frequently recover evidence
of deleted files. Those assertions were offered alongside “specific facts” linking
the Contreras residence to uploads of child pornography. See United States v.
Broussard, 80 F.3d 1025, 1035 (5th Cir. 1996). Under these circumstances, the
year-long interval between Contreras’s Kik posts and the government’s
application for a search warrant did not render reliance on the search warrant
objectively unreasonable.
      Finally, Contreras contends that because Kik is a messaging application
for cell phones only, there was no probable cause to search for and seize
computers or other objects.     This argument is unpersuasive.        Dunagan’s
affidavit noted that cell phones can easily be used in conjunction with
computers to transfer, view, back up, or store child pornography images.
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                               No. 17-11271
     Since we conclude that the good faith exception applies and is
dispositive, we need not consider whether the magistrate judge had probable
cause to issue the warrant. That determination would turn only on “relatively
well-settled” Fourth Amendment law. Maggitt, 778 F.2d at 1033.
                              CONCLUSION
     The district court is AFFIRMED.




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