                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 08-4683


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,
           v.

DEAN R. GATHERUM,

                Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.    Thomas E. Johnston,
District Judge. (5:07-cr-00105-1)


Argued:   March 27, 2009                     Decided:   July 7, 2009


Before MICHAEL and TRAXLER, Circuit Judges, and Thomas D.
SCHROEDER, United States District Judge for the Middle District
of North Carolina, sitting by designation.


Affirmed by unpublished opinion.          Judge Traxler wrote the
majority opinion, in which Judge         Schroeder joined.   Judge
Michael wrote a dissenting opinion.


ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant.     Karen B.
Schommer, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee.   ON BRIEF: Mary Lou Newberger, Federal
Public Defender, David R. Bungard, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston,
West Virginia, for Appellant. Charles T. Miller, United States
Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
TRAXLER, Circuit Judge:

     Dean   Gatherum    pleaded   guilty    to     possession   of   child

pornography, preserving his right to appeal the district court’s

denial of his motions to suppress.         Because we find no error in

the district court’s rulings, we affirm Gatherum’s conviction.

                                  I.

     Gatherum registered as a sex offender in accordance with

West Virginia law, and two state troopers went to his house to

confirm   information   he   provided   when     registering.    Gatherum

indicated when he registered that he had a personal computer

with internet access.        While the officers were at Gatherum’s

home, they asked Gatherum for consent to search his computer.

Gatherum agreed and signed a consent form provided to him by

Trooper Eldridge.

     Eldridge used a program that permitted him to browse the

computer files and view video and images stored on Gatherum’s

computer.   Eldridge viewed a series of “thumbnail” previews of

images that featured three males standing in a wooded area.           The

progressing images showed the men removing their clothes and

engaging in sexual activity.      While two of the men appeared to

be more than 18 years old, the third appeared to Eldridge to be

between 12 and 14 years old.      Eldridge sought Trooper Summers’s

opinion, and he, too, believed that the third male was between

12 and 14 years old.

                                   2
     Eldridge told Gatherum that he believed the images were

child pornography and that he was going to use the images as the

basis for seeking a search warrant.                        When Eldridge described the

pictures at issue to Gatherum, Gatherum explained that he had

gotten the pictures from a website called “Mike18.com” and that

the website had a disclaimer stating that all of the models were

at least 18 years old.                (Each of the images had a Mike18.com

logo in the corner, although Eldridge was not aware of that fact

at the time).         Eldridge refused Gatherum’s offer to log-on to

Mike18.com to show the troopers the age certification for the

model the troopers believed to be underage.

     At the troopers’ request, Gatherum accompanied them to the

state     police     barracks        for     further             questioning.         Gatherum

continued     to     maintain        that    the       images          all    came   from    the

Mike18.com    website,         and   Gatherum          told       the   troopers     that     the

website    included       a    picture      of       the    apparently         underage     model

holding a passport that showed his birth date.

     After         interviewing          Gatherum,               Eldridge       prepared      an

application for a warrant to search for child pornography.                                     In

the affidavit supporting the application, Eldridge set forth in

a fair amount of detail the specialized training he had received

in   “computer      forensics,        criminal             use    of    computers     and    the

Internet     and    the       investigation           of     matters         concerning     child

sexual exploitation,” J.A. 573, and the affidavit noted that

                                                 3
Gatherum was a registered sex offender.                    With regard to the

facts gathered during Eldridge’s search of the computer, the

affidavit stated:

      [T]he affiant conducted a secure preview of Dean
      Gatherum’s home computer.    During this preview, the
      affiant observed that Dean Gatherum’s computer had
      numerous graphic picture files of three male[s]
      engaged in sexually explicit conduct.     The affiant
      further observed that one of the males depicted in
      these pictures appeared to be approximately 12 to 14
      years of age.     The affiant further observed that
      Corporal Summers examine[d] these picture files, in
      which he too agreed that the one of the male subjects
      participating in the pictures appeared to be 12 to 14
      years old.

      The affiant brought these pictures to Dean Gatherum’s
      attention, in which he advised that he had obtained
      them from a web site on the Internet.

J.A. 581-82.        The affidavit did not include copies of the images

themselves     or    otherwise    describe   the     nature   of   the   sexually

explicit      conduct    pictured,     nor   did     the    affidavit      recount

Gatherum’s claim about the age-disclaimer on Mike18.com.

      A      state-court      judge    concluded       that    the       affidavit

established probable cause, and the search warrant was issued

and executed that day.           Gatherum’s computer was seized, as were

a   number    of    CD-ROMs   that    were   found    under   Gatherum’s      bed.

Images on those CD-ROMs led to the child pornography charge to

which Gatherum pleaded guilty.

      The day after the search warrant was executed, Gatherum was

admitted to a hospital for an in-patient psychiatric evaluation.



                                        4
Four days later, Trooper Eldridge learned that Gatherum was to

be    discharged.        Eldridge       went       to    the   hospital     and    asked     if

Gatherum       would    return     to    the        police       barracks    for      another

interview.          Gatherum agreed.           Eldridge did not tell Gatherum

that    he    had    already     obtained      warrants        for   Gatherum’s        arrest

(based on the images found on the CD-ROMs).

       At the police barracks, Trooper Smith advised Gatherum of

his    Miranda      rights     before    the       interview       began.      Smith      told

Gatherum that he was not under arrest and was free to leave at

any    time,    without      mentioning        the      arrest     warrants.         Gatherum

signed a form waiving his rights, and Smith began the interview.

When    Gatherum       started    making       incriminating         statements,          Smith

brought Eldridge into the room.                      Eldridge reviewed the Miranda

form with Gatherum and reaffirmed that Gatherum was not under

arrest,       again     without        mentioning          the     outstanding         arrest

warrants.       During the interview, Gatherum admitted that the CD-

ROMs contained images of child pornography.                            As soon as the

interview       was     over,      Eldridge             arrested     Gatherum        on    the

outstanding warrants.

       Gatherum moved to suppress the evidence seized pursuant to

the search warrant and the statements he gave upon his release

from    the    hospital.         The    district         court     denied   the      motions,

concluding       that    Eldridge’s       affidavit            supporting      the     search

warrant application was sufficient to establish probable cause,

                                               5
that       there    were   no    material      omissions      in    the    affidavit          that

would invalidate the warrant, and that Gatherum was not coerced

into giving the post-hospitalization statements.                                 This appeal

followed.

                                               II.

       We     first     consider       Gatherum’s       challenges        to     the     search

warrant.

                                               A.

       West        Virginia     law   prohibits       the   possession         of   “material

visually       portraying        a      minor       engaged    in    sexually           explicit

conduct.”          W. Va. Code Ann. § 61-8C-3. 1               Gatherum contends that

because       Eldridge’s        affidavit      did    not     include     copies         of    the

thumbnail images at issue or describe the nature of the images

in any detail, there was no basis for the issuing judge to find

probable cause that a minor was involved or that the minor was

engaging in sexually explicit conduct.

       Preliminarily,           we    reject    any    suggestion         that      a    search-

warrant affidavit must include copies of images giving rise to

the request for a warrant.                See United States v. Lowe, 516 F.3d

580, 586 (7th Cir. 2008) (“As a general matter, an issuing court

does not need to look at the images described in an affidavit in

       1
       Although Gatherum pleaded guilty to federal charges, he
was initially arrested on state charges. The federal statute is
similar to the state statute. See 18 U.S.C.A. § 2252A(a)(5)(B).



                                                6
order to determine whether there is probable cause to believe

that they constitute child pornography.”).                    Including copies of

the images believed to be child pornography would certainly aid

in a probable-cause determination, but the relevant question is

whether “the known facts and circumstances are sufficient to

warrant   a     man    of   reasonable          prudence    in     the   belief   that

contraband or evidence of a crime will be found in a particular

place.”       United States v. Perez, 393 F.3d 457, 461 (4th Cir.

2004) (internal quotation marks omitted).                         The probable-cause

standard “is not defined by bright lines and rigid boundaries.

Instead, the standard allows a magistrate judge to review the

facts   and    circumstances      as    a   whole     and   make     a   common   sense

determination     of    whether    there         is   a    fair    probability    that

contraband or evidence of a crime will be found in a particular

place.”   United States v. Grossman, 400 F.3d 212, 217 (4th Cir.

2005)   (internal      quotation       marks     omitted).         Given   the    fluid

nature of the probable-cause standard and the deference to which

the magistrate’s determination is entitled, see id., we see no

reason to establish a bright-line rule requiring investigating

officers to provide magistrates with copies of the images they

believe to be unlawful.           Cf. New York v. P.J. Video, 475 U.S.

868, 874 n.5 (1986) (“[W]e have never held that a magistrate

must personally view allegedly obscene films prior to issuing a

warrant authorizing their seizure.”).

                                            7
      We    turn     now    to    the       ultimate          question    of    whether       the

affidavit in this case was sufficient to support the issuance of

the search warrant.              As previously noted, the affidavit stated

that Trooper Eldridge and Trooper Summers viewed the images at

issue    and    that     both    believed         one    of    the    males     pictured      was

between 12 and 14 years old.                          In our view, it was entirely

reasonable for the magistrate to accept the officers’ estimation

of   the   child’s       age     when   determining             whether      probable    cause

existed.         While     some       16-       or    17-year-old        models      might    be

difficult       to     distinguish          from        18-year-olds,          the     physical

differences between a 12-year-old model and an 18-year-old model

generally would be significant and readily apparent.                                 That both

troopers believed the model at issue might be so young provided

the magistrate with a reasonable basis for concluding that the

images     at    issue     involved         a    minor.         See      United      States    v.

Battershell, 457 F.3d 1048, 1053-54 (9th Cir. 2006) (finding

affidavit       sufficient       in   child          pornography      case     where    officer

described images as depicting “young female[s] (8-10 YOA)” and

noting that “we have accepted, for purposes of an affidavit in

support of a search warrant, the conclusory age estimates made

by civilians and other untrained lay witnesses without demanding

a    detailed      explanation        of        how     the    witnesses       reached       that

conclusion”).        We therefore conclude that the information in the



                                                 8
affidavit was sufficient to establish a fair probability that

the images at issue depicted a minor.

      The     more       difficult      question,      however,     is   whether     the

affidavit was likewise sufficient to establish that the minor

was   engaged       in    sexually      explicit      conduct.      Trooper    Eldridge

stated   in    his       affidavit      that   he    had   viewed   “graphic    picture

files” showing three males, including one he believed to be a

minor,   engaging         in    “sexually      explicit     conduct.”         J.A.   581.

Although      the    statute       prohibits         the   possession    of    material

depicting     minors          engaged    in    sexually     explicit     conduct,    the

statute specifically defines the acts that constitutes sexually

explicit conduct, such as sexual intercourse or the exhibition

of genitals in a sexual context.                    See W. Va. Code § 61-8C-1(c);

see also 18 U.S.C.A. §§ 2256(2)(A)(i), 2256(2)(A)(v) (West Supp.

2009).      Because the affidavit did not include any description of

the actual behavior depicted in the images at issue, it may be

that the affidavit failed to provide sufficient information to

permit the magistrate to make an independent determination of

whether probable cause existed.                    See Illinois v. Gates, 462 U.S.

213, 239 (1983) (“Sufficient information must be presented to

the   magistrate         to    allow    that   official     to   determine     probable

cause; his action cannot be a mere ratification of the bare

conclusions of others.” (emphasis added)).



                                               9
       We need not definitively determine whether the affidavit

was sufficient in that regard, however.                           Even if the affidavit

was    deficient,       suppression        of    the       evidence      is   not   required,

because the officers acted in good faith and were entitled to

rely on the warrant.                See United States v. Leon, 468 U.S. 897,

926 (1984).

       “[U]nder        Leon’s    good      faith      exception,       evidence      obtained

pursuant to a search warrant issued by a neutral magistrate does

not need to be excluded if the officer’s reliance on the warrant

was objectively reasonable.”                    Perez, 393 F.3d at 461 (internal

quotation marks omitted).                  “[S]earches conducted pursuant to a

warrant         will     rarely         require            any    deep        inquiry     into

reasonableness, for a warrant issued by a magistrate normally

suffices to establish that a law enforcement officer has acted

in     good   faith      in     conducting           the    search.”          Id.   (internal

quotation marks omitted).                  Under Leon, however, reliance on a

warrant is not objectively reasonable if: (1) the magistrate was

misled by false information knowingly or recklessly included in

the underlying affidavit, id.; (2) “the magistrate acted as a

rubber    stamp        for    the    officers        and     so   wholly      abandoned   his

detached and neutral judicial role,” United States v. Bynum, 293

F.3d     192,     195    (4th       Cir.    2002)          (internal      quotation     marks

omitted); (3) the supporting affidavit is “so lacking in indicia

of probable cause as to render official belief in its existence

                                                10
entirely    unreasonable,”         Leon,       468     U.S.     at    923    (internal

quotation    marks    omitted);      or    (4)       the    warrant   itself    is    so

facially deficient in particularizing the place to be searched

or the evidence to be seized that “the executing officers cannot

reasonably presume it to be valid, id.

     The only exceptions arguably relevant here are the second

and third, 2 but we do not believe that either precludes reliance

on the warrant issued in this case.                        The affidavit cannot be

described as so bare-boned that the magistrate’s issuance of the

warrant could be viewed as a mere rubber-stamping of the warrant

application,    nor   is     the   affidavit         so    lacking    in    indicia   of

probable cause that it was unreasonable for the officers or the

magistrate to conclude that probable cause existed.

     The affidavit explained that Gatherum was a registered sex

offender who had “numerous graphic picture files” on his home

computer,     J.A.    581,     and    the        affidavit       outlined      Trooper

Eldridge’s extensive training in the investigation of similar

crimes.     The affidavit stated that Eldridge and Trooper Summers

had viewed the images themselves and had both determined that


     2
       With regard to the first Leon exception, there was no
false information included in the affidavit, and, as we will
discuss in more detail below, there is no evidence that Eldridge
intentionally or recklessly omitted any material information
from his affidavit.     As to the fourth exception, we do not
believe that the warrant itself was facially deficient.



                                          11
the    images        depicted       a     minor        engaged     in     sexually       explicit

behavior.           Because the affidavit specifically referred to the

relevant West Virginia statute, which sets out a list of actions

that constitute “sexually explicit conduct,” 3 the kind of conduct

that       could    have    been        depicted     in   the    images     was    necessarily

limited.           While    a     more     detailed       description       of    the    conduct

pictured          would    have    been       helpful,     courts       have    found        similar

language used under similar factual situations to be sufficient

to support a finding of probable cause.                             See United States v.

Smith, 795 F.2d 841, 848 (9th Cir. 1986) (“As to the affidavit’s

‘conclusory’ statement that the photographs depicted ‘sexually

explicit          conduct,’        we    do    not      find     the     character       of      the

allegation          fatal     to    the       warrant.           Although       more     specific

descriptions of the photographs would have been desirable, we

note       that    the    affidavit        specifically          refers    to    violation       of

section 2251, directing the magistrate to the child pornography

statute       and     its    definitions.               These     definitions          are    quite

specific, and the magistrate reasonably considered the statement


       3
       See W. Va. Code § 61-8C-1(c) (defining sexually explicit
conduct” as “(1) Genital to genital intercourse; (2) Fellatio;
(3) Cunnilingus; (4) Anal intercourse; (5) Oral to anal
intercourse;    (6)    Bestiality;    (7)    Masturbation;  (8)
Sadomasochistic   abuse,   including,   but   not   limited to,
flagellation, torture or bondage; (9) Excretory functions in a
sexual context; or (10) Exhibition of the genitals, pubic or
rectal areas of any person in a sexual context.”).



                                                  12
of   an     experienced    postal       inspector      that    the    photos       depicted

‘sexually explicit conduct’ within the statute.” (citation and

footnote omitted)); see also Battershell, 457 F.3d at 1052 (“The

statement that the photographs depict sexually explicit conduct

is similar to many other factual conclusions routinely accepted

by courts in applications for warrants.                      Factual conclusions are

a    normal,     necessary,       and    perfectly       acceptable         part     of    an

affidavit.” (internal quotation marks and alterations omitted)).

While there also is case law to the contrary, see United States

v. Brunette, 256 F.3d 14, 17 (1st Cir. 2001) (concluding that

affidavit        parroting       the      statutory          definition         of      child

pornography       but   not     otherwise       describing      the    nature        of   the

images was not sufficient to support the magistrate’s probable-

cause       finding),   this     court    has    yet    to    address     the      question

directly.           Under these circumstances, we cannot say that an

objectively         reasonable     officer      should       have     known      that     the

affidavit was insufficient.                See United States v. Bynum, 293

F.3d at 195 (“Leon teaches that a court should not suppress the

fruits of a search conducted under the authority of a warrant,

even    a    subsequently       invalidated      warrant,      unless       a   reasonably

well      trained    officer     would    have    known       that    the       search    was

illegal       despite     the     magistrate’s         authorization.”           (internal

quotation marks omitted)).



                                           13
       Accordingly, even if the absence of a detailed description

of    the   conduct    pictured       in    the      relevant     images      rendered    the

affidavit deficient, the officers relied in good faith on the

warrant      issued     by    the     magistrate,          and    the       district    court

therefore properly denied Gatherum’s suppression motion.

                                               B.

       Gatherum also argues that the warrant must be voided under

Franks      v.    Delaware,     438      U.S.        154   (1978),      because        Trooper

Eldridge intentionally omitted from his affidavit any mention of

the    Mike18.com      website      or     the      website’s    disclaimer       asserting

that all of its models, including the one Eldridge believed to

be a minor, were at least 18 years old.                     We disagree.

       Under Franks, a search warrant may be voided and the fruits

of the search suppressed if the defendant establishes that the

underlying        affidavit    contained          material       falsehoods      that    were

knowingly        or   recklessly      made.           Where,     as     here,    the    claim

involves         omissions    from       the        affidavit,        the    standard     for

establishing materiality is fairly high:

       [T]o be material under Franks, an omission must do
       more than potentially affect the probable cause
       determination: it must be necessary to the finding of
       probable cause. For an omission to serve as the basis
       for a hearing under Franks, it must be such that its
       inclusion in the affidavit would defeat probable cause
       for arrest.   Omitted information that is potentially
       relevant but not dispositive is not enough to warrant
       a Franks hearing.



                                               14
United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990)

(citations and internal quotation marks omitted).

       Beyond the mere fact of omission, the record is devoid of

evidence    suggesting      that     Eldridge      intentionally          or   recklessly

failed    to   disclose     to     the    issuing       magistrate     the     Mike18.com

information.             Moreover,       even     if      information          about    the

disclaimers on the website and Gatherum’s belief about the age

of the models had been included in the affidavit, their presence

would not have defeated probable cause.                          As discussed above,

Trooper    Eldridge       and    Summers    both       looked    at   the      images   and

concluded that one of the models was between 12 and 14 years

old.     That was enough to establish probable cause that the model

was underage, even in the face of Gatherum’s (and Mike18.com’s)

insistence     to    the    contrary.            The    district      court     therefore

properly denied Gatherum relief on his Franks v. Delaware claim.

See United States v. Shorter, 328 F.3d 167, 171, n.2 (4th Cir.

2003) (explaining that “the fact of an omission, standing alone,

is not sufficient to demonstrate intent or reckless disregard”

in cases where the omitted material is not “clearly critical” to

the    probable-cause           determination          (internal      quotation        marks

omitted)).

                                           III.

       Finally,     we    consider       Gatherum’s      claim     that   the    district

court should have suppressed the statements Gatherum made when

                                            15
he   was       interviewed             after       his        release        from       the    hospital.

Although Gatherum was informed of and waived his Miranda rights

before     making          the       statements,         he     claims       that        the   troopers’

failure        to    inform           him    of     the        outstanding          arrest       warrants

invalidated          the        Miranda      waiver           and     rendered          his    statements

inadmissible.

     A waiver of Miranda rights is valid as long as “the waiver

is made voluntarily, knowingly and intelligently.”                                               Moran v.

Burbine,       475     U.S.       412,      421     (1986)          (internal       quotation         marks

omitted).           A waiver is voluntarily, knowingly, and intelligently

made if it was “voluntary in the sense that it was the product

of   a    free       and        deliberate         choice           rather       than    intimidation,

coercion,       or     deception,”            and        if    it     was     “made       with    a    full

awareness of both the nature of the right being abandoned and

the consequences of the decision to abandon it.”                                         Id.; see also

United     States          v.    Cristobal,         293        F.3d       134,     139-40      (4th   Cir.

2002).

         “We    engage           in    the        same        inquiry        when       analyzing       the

voluntariness          of        a     Miranda       waiver           as     when       analyzing       the

voluntariness          of        statements         under           the    Due     Process       Clause,”

Cristobal,           293        F.3d    at     140,           and     thus       ask     whether       “the

defendant’s will has been overborne or his capacity for self-

determination          critically            impaired          because        of    coercive       police

conduct,” id. (citations and internal quotation marks omitted).

                                                     16
Because the failure to inform Gatherum of the warrants does not

even approach the level of coercive, overreaching conduct that

could render the Miranda waiver involuntary, see Colorado v.

Connelly, 479 U.S. 157, 163 n.1 (1986) (collecting cases), we

reject Gatherum’s claim that his Miranda waiver was involuntary.

      We likewise reject Gatherum’s contention that the failure

to inform him about the warrants “made it impossible for him to

understand the nature of the rights he could invoke and the

consequences of abandoning them.”              Brief of Appellant at 36.

Preliminarily, we note that the waiver form Gatherum executed

before the interview stated that Gatherum was being investigated

for   possession   of   child    pornography,    information    that   should

have signaled to Gatherum the significance of the interview,

just as a statement about the outstanding warrants might have.

In any event, the troopers informed Gatherum about the nature of

his Miranda rights and the consequences of a decision to waive

those rights, which is all that is required under Moran.                While

knowledge of the outstanding warrants might have been useful to

Gatherum   when    deciding     whether   to   provide   a   statement,   the

troopers’ failure to provide him with that information simply

does not render the waiver invalid:

      We have held that a valid waiver does not require that
      an individual be informed of all information useful in
      making his decision or all information that might
      affect his decision to confess.    We have never read
      the Constitution to require that the police supply a

                                     17
    suspect with a flow of information to help him
    calibrate his self-interest in deciding whether to
    speak or stand by his rights.    Here, the additional
    information could affect only the wisdom of a Miranda
    waiver, not its essentially voluntary and knowing
    nature.

Colorado   v.      Spring,    479   U.S.    564,     576-77     (1987)    (citations,

internal quotation marks and alterations omitted).                        Because the

Miranda waiver was valid, the district court properly denied

Gatherum’s      motion   to   suppress      the     statements     made    after      his

release from the hospital.

                                           IV.

     For   the      reasons    discussed         above,    we   conclude       that   the

district court properly denied Gatherum’s motion to suppress the

evidence seized pursuant to the search warrant and his motion to

suppress     the    statements      he   gave      after    waiving      his    Miranda

rights.    Accordingly, we hereby affirm Gatherum’s conviction.



                                                                               AFFIRMED




                                           18
MICHAEL, Circuit Judge, dissenting:

                  Because the officer’s affidavit presented to the state

judge failed to provide a factual basis on which the judge could

independently determine that there was probable cause to issue

the warrant for the search of Dean Gatherum’s home, and because

the    judge       acted      as    a    rubber    stamp      for     the       officer’s       legal

conclusions,           see    United      States       v.    Leon,        468    U.S.    897,     914

(1984), I respectfully dissent.

                                                  I.

                  The search warrant in this case was issued under a

West     Virginia           statute      that    prohibits          the    possession,          “with

knowledge,” of “any material visually portraying a minor engaged

in sexually explicit conduct.”                    W. Va. Code Ann. § 61-8C-3.                     See

also    18    U.S.C.         2252A(5)(B).          “Sexually         explicit        conduct”      is

defined to include several specific sexual acts.                                     W. Va. Code

Ann. § 61-8C-1(c).              As the majority notes, in order for a search

warrant       to       be     properly      issued          under     Illinois          v.     Gates,

“[s]ufficient information must be presented to the magistrate to

allow    that       official        to    determine         probable       cause;       his    action

cannot       be    a    mere       ratification        of     the    bare       conclusions        of

others.”          462 U.S. 213, 239 (1983) (emphasis added).                                 See ante

at 9.        The affidavit in this case merely parrots the relevant

statute, W. Va. Code Ann. § 61-8C-3, and provides no facts upon

which    the       state      judge      could     have       conducted         an   independent

                                                  19
probable         cause        analysis.             Rather      than        describing,    even

superficially, what the photographs found on Gatherum’s computer

depicted, Corporal Eldridge’s affidavit simply states that the

photographs showed three males (one of whom the officer believed

to   be     12     to    14    years      old 1 )    “engaged        in     sexually   explicit

conduct.”          J.A. at 581-82.

                 Whether      or    not     the      activities        in    the    photographs

constituted “sexually explicit conduct” was a matter for the

state judge to decide without deferring to the officer’s “bare

conclusion.”            See Gates, 462 U.S. at 239.                       “The point of the

Fourth Amendment, which often is not grasped by zealous officers

. . . [is that] [i]ts protection consists in requiring that

. . . inferences be drawn by a neutral and detached magistrate

instead of being judged by the officer engaged in the often

competitive enterprise of ferreting out crime.”                                 United States

v.   Ventresca,         380     U.S.      102,      106     (1965)    (quoting      Johnson   v.

United      States,      333       U.S.   10,       13-14    (1948)).         See   also   South

Dakota v. Opperman, 428 U.S. 364, 370 n.5 (1976) (“[The Supreme

Court       has]    frequently         observed       that     the     warrant      requirement

assures that legal inferences and conclusions as to probable

cause will be drawn by a neutral magistrate unrelated to the

        1
        I agree with the majority’s conclusion that it was
reasonable for the judge to accept the officer’s estimate of the
younger male’s age. See ante at 8-9.
criminal investigative-enforcement process”).                          Thus, the benefit

of   having     a     neutral      magistrate            make    the    probable      cause

determination        is    forfeited         if    the    magistrate      defers   to    an

officer’s legal conclusions in an affidavit that merely recites

general statutory language.                  A detached and independent review

is especially important in the context of determining whether

images involve child pornography, a determination that by its

very nature will often involve a high degree of subjectivity.

            In United States v. Brunette, 256 F.3d 14 (1st Cir.

2001),   the    First       Circuit     applied       these     principles    in   almost

identical circumstances to those presented here.                         In that case a

search warrant was issued based on a single affidavit, written

by a law enforcement agent, which asserted that he had viewed

thirty-three images traced to the defendant and that they met

the statutory definition of child pornography.                          Id. at 16.      The

agent neither appended copies of these images to his affidavit

nor included a description of the images’ contents.                            Id.       The

First Circuit held that the government had failed to make a

showing of probable cause because “[t]he evidence on the nature

of the images consisted solely of [the agent’s] legal conclusion

parroting      the    statutory         definition.”             Id.    at   17.        This

conclusion     was        based   on    that       court’s      recognition    that     the

“inherent      subjectivity            [of        identifying      images     that      are



                                              21
‘lascivious’] is precisely why the determination should be made

by a judge, not an agent.”           Id. at 18.

           The majority cites two Ninth Circuit cases reaching

the   opposite    conclusion       on   similar       facts,   but     I   believe   the

reasoning in Brunette is more persuasive.                      First, the majority

points to United States v. Smith, 795 F.2d 841 (9th Cir. 1986),

which is distinguishable because the affidavit “[did] not stand

on the evaluation of the photographs alone,” but also included

statements by a pediatrician, the defendant, and the two alleged

victims.         Id.   at   849.           Furthermore,        Smith       reaches   the

unwarranted       conclusion        that        “[t]he    statement          that    the

photographs depict sexually explicit conduct is similar to many

other factual conclusions routinely accepted by courts.”                         Id. at

848 n.7.      This reasoning, adopted by the second case cited by

the majority, United States v. Battershell, 457 F.3d 1048 (9th

Cir. 2006), mistakes a legal conclusion –- whether the contents

of a photograph amount to “sexually explicit conduct” –- with

the   conclusion’s     factual      underpinnings         (the      contents    of   the

photograph itself).

           An officer can readily provide the factual description

required    to     allow      an    independent          determination         by    the

magistrate.       In   most    instances         it   would    be    enough    for   the

officer to describe the “focal point and setting of the image,



                                           22
and    [the]       pose        [or    activity]            and     attire    of    the        subject.” 2

Brunette,      256    F.3d           at    20.        But    in    this     case    the       judge    was

presented with an affidavit that provides no factual details

whatsoever         regarding              the    substance          of    the      photographs          in

question.          The affidavit is simply insufficient to support a

finding of probable cause.

                                                      II.

               For    similar             reasons,      the       Leon    good     faith       exception

does not apply in this case.                          As a general matter, evidence need

not    be     excluded             when     police          officers        act    in        objectively

reasonable         reliance          on    a    search       warrant      issued        by    a    neutral

magistrate.          United States v. Leon, 468 U.S. at 926.                                      Reliance

is not warranted in certain circumstances, however, such as when

“the magistrate acted as a rubber stamp for the officers and so

‘wholly abandoned’ his detached and neutral ‘judicial role’.”

United      States        v.       Bynum,       293    F.3d       192,    195     (4th       Cir.    2002)

(citing Leon, 468 U.S. at 923).                            Because the state judge in this

case       acted     as        a     rubber      stamp        by    failing        to        conduct    an

independent probable cause inquiry and instead simply adopted

       2
       The best course of action, and the one most certain to
ensure a valid probable cause finding, would be to include
copies of the photographs themselves with the affidavit.    I
agree with the majority, however, that this is not a
requirement. See ante at 7-8.




                                                      23
the one officer’s legal conclusion that the pictures he found

portrayed      “sexually       explicit       conduct,”       the   officers       were   not

objectively justified in relying on the warrant.

               The majority offers four basic reasons to support its

conclusion that the state judge did not act as a rubber stamp

(and    that    the    affidavit        was    not    “so    lacking    in     indicia     of

probable cause”, ante at 11, that it could not be reasonably

relied on).          First, the majority points out that the affidavit

“explained that Gatherum was a registered sex offender who had

‘numerous graphic picture files’ on his home computer.”                             Ante at

11.     But this merely resurrects the basic questions before us:

What specific activities did the pictures portray, and did those

activities constitute “sexually explicit conduct”?

               Second,       the     majority        notes     that     the       “affidavit

outlined       [Corporal]          Eldridge’s        extensive      training        in    the

investigation of similar crimes.”                    Id.     This statement refers to

ten pages of “Facts for Belief” that the officer included in his

affidavit.           J.A.    573-582.         The    facts    showing       the    officer’s

training    do       not    remove    the     state    judge’s      decision       from   the

“rubber     stamp”          category.         These    “facts”        are     boilerplate,

listing,       for    example,       many     “characteristics        [of]     people     who

sexually exploit children” that have no specific bearing on this

case.     It is telling that amidst the ten pages of “facts,” the

officer included only three sentences pertaining to, with one

                                               24
only vaguely describing, the photographs at issue.                     Furthermore,

regardless of the officer’s training, the state judge himself

had   to    ultimately        determine      the       factual    content     of     the

photographs.        There was insufficient information for the judge

to perform that function.

            Third,     the        majority      reasons    that     “[b]ecause       the

affidavit specifically referred to the relevant West Virginia

statute,    which     sets    out    a    list    of    actions    that     constitute

‘sexually explicit conduct,’ the kind of conduct that could have

been depicted in the images was necessarily limited.”                          Ante at

12.   However, this assumes that the officer would refer to the

statute only if one of the listed “sexually explicit” activities

was implicated.        Thus, the officer’s cryptic reference to the

statute only reinforces the conclusion that the judge functioned

solely     as   a    rubber       stamp    in    making     the     probable       cause

determination.       Again, the affidavit gave no factual information

about the contents of the photographs, instead merely parroting

the conclusory language of the statute.                   This rendered the judge

unable to make an independent determination as to whether there

was   probable      cause    to    believe      the    photographs    violated       the

statute.

            Fourth,    the     majority      states     that     Corporal   “Eldridge

and Trooper Summers had viewed the images themselves and had

both determined that the images [contained] sexually explicit

                                           25
behavior.”      Ante at 11-12.            But it was for the judge, not the

officers, to make this determination.                       The problem is that the

judge    in    this      case     could        only     substitute          the    officers’

conclusions     for      his   own.       As    a     result,     the     judge    committed

precisely the error warned of in Gates, 462 U.S. at 239, and

became merely a rubber stamp for the officers’ determination.

                                              III.

              Today’s     decision      allows        law   enforcement        officers   to

submit legal conclusions, rather than factual observations, to a

magistrate and allows the magistrate to issue a warrant without

conducting     an     independent       probable        cause       determination.        We

should   make       clear      that     the         affidavit       in    this     case   was

insufficient        to   support      probable        cause     and      thereby    put   law

enforcement officers and magistrates on notice for the future.

In all events, because the affidavit was inadequate, and because

the   state    judge     served    as     a    rubber       stamp     for    the   officer’s

conclusions,     evidence       seized         pursuant      to     the     invalid   search

warrant should have been suppressed.                        I would therefore vacate

Gatherum’s conviction.




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