             Case: 14-14506     Date Filed: 10/19/2015   Page: 1 of 12


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-14506
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:14-cr-20243-KMM-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                     versus

ALEXANDER ROUSSEAU,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________
                               (October 19, 2015)

Before HULL, JORDAN and JILL PRYOR, Circuit Judges.

PER CURIAM:

      After a jury trial, Alexander Rousseau appeals his convictions on five counts

of receiving materials depicting a minor engaged in sexually explicit conduct, in
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violation of 18 U.S.C. § 2252(a)(2). On appeal, Rousseau challenges the district

court’s denial of his motion to suppress evidence found during the execution of a

search warrant at the fire station where Rousseau worked. During the search,

federal agents found Rousseau’s laptop, which contained over 100 videos of child

pornography and, at the time of the search, was actively downloading child

pornography using an unsecured wireless network. Rousseau argues that the

district court: (1) should have held a Franks 1 hearing to determine whether the

search warrant application contained material misrepresentations about who could

access the wireless network; and (2) should have suppressed the evidence found

during the search because the search warrant was unconstitutionally broad. After

review, we affirm.

                                  I.      FRANKS CLAIM

A.    General Principles

      A defendant seeking a Franks hearing must make a “substantial preliminary

showing” that (1) an affiant applying for a search warrant made intentionally false

or recklessly misleading statements, and (2) those statements were necessary to the

finding of probable cause. United States v. Barsoum, 763 F.3d 1321, 1328 (11th

Cir. 2014), cert. denied, 135 S. Ct. 1883 (2015). The defendant’s substantiality

requirement “is not lightly met.” United States v. Arbolaez, 450 F.3d 1283, 1294


      1
          Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676 (1978).
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(11th Cir. 2006). Allegations of deliberate falsehood or reckless disregard for the

truth “must be accompanied by an offer of proof.” Id.

       In addition, the defendant must show that, if the misrepresentations were

removed from, or the omitted facts were included in, the warrant affidavit, then

probable cause would be lacking. United States v. Mathis, 767 F.3d 1264, 1275

(11th Cir. 2014) (involving omissions), cert. denied, 135 S. Ct. 1448 (2015);

Barsoum, 763 F.3d at 1329 (involving misstatements). If the warrant would still

support probable cause, then no Franks hearing is necessary. United States v.

Capers, 708 F.3d 1286, 1296 (11th Cir. 2013). In the search warrant context,

probable cause exists when, under the totality of the circumstances, “there is a fair

probability of finding . . . evidence [of a crime] at a particular location.” United

States v. Brundidge, 170 F.3d 1350, 1352 (11th Cir. 1999). 2

B.     Warrant Affidavit

       FBI Special Agent Alexis Carpinteri’s warrant affidavit stated, inter alia,

that her investigation had identified a computer with the user name

“anon_ae3d4aee@Ares” and an IP address assigned to “Miami Fire Station 6” that


       2
         We review for an abuse of discretion a district court’s denial of a Franks hearing.
Barsoum, 763 F.3d at 1328. Because the district court’s denial of the motion to suppress is a
mixed question of law and fact, we review the district court’s factual findings for clear error, and
its application of the law to the facts de novo. Id. We review de novo whether a search warrant
affidavit established probable cause, taking care “both to review findings of historical fact only
for clear error and to give due weight to the inferences drawn from those facts by resident judges
and local law enforcement officers.” United States v. Jiminez, 224 F.3d 1243, 1248 (11th Cir.
2000) (quotation marks omitted).
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was using the ARES peer-to-peer (“P2P”) file sharing network to share files

containing child pornography. Surveillance of the Station revealed one open (i.e.,

not secured by a password) wireless Internet network with limited geographic

scope.

         Specifically, Agent Carpinteri’s affidavit stated that “[a] check for open

wireless networks was conducted,” which revealed “one open wireless network

labeled ‘WiFi-Repeater1.’” That wireless network “could only be detected while

pulled up directly to the front of the building,” and “[t]he only area for a vehicle to

pull up to the building was directly in front of the four (4) bay garage doors where

the emergency vehicles for the station were housed.” There was no visitor parking,

and the employee parking behind the building was secured by a gated entrance.

Further, “[i]t did not appear that any area along the perimeter of the [Station] was

viable to access and utilize the unsecured network that was observed at the

[Station].”

         The investigation further revealed that the IP address had shared files

containing child pornography on the P2P network “on a consistent basis, starting

on June 1, 2013,” with the majority of the time on the P2P network observed “after

8:00 p.m., often after 10:00 p.m., and ending before 4:00 a.m.” Agents also

learned that individual firefighters assigned to the Station worked in 24-hour shifts




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beginning at 7:30 a.m., and that each firefighter worked one day on-duty, followed

by two days off-duty, with some flexibility for contractual days off.

C.     Rousseau’s Claim of Misrepresentation in Affidavit

       Rousseau identifies as false or misleading Agent Carpinteri’s statements that

the wireless network could only be accessed directly in front of the Station and did

not appear to be accessible around the Station’s perimeter. Rousseau argues that

Agent Carpinteri did not accurately describe the area around the Station, which

included a sidewalk on the east side of the Station and a public park on the west

side of the Station, and that, in fact, the unsecured wireless network “can be easily

accessed by any member of the public” from these omitted areas.

       Even assuming arguendo that Agent Carpinteri’s affidavit misrepresented

the accessibility of the wireless network to people outside the Station, the district

court did not abuse its discretion in declining to hold a Franks hearing. This is so

because, even if the wireless network could conceivably be accessed from either

the sidewalk or the park, the other information in Agent Carpinteri’s affidavit

showed a fair probability that it was someone inside the Station who was using the

wireless network to download and share the child pornography. 3 In particular, as



       3
         Because we, like the district court, conclude that the unchallenged portions of the
warrant affidavit provide probable cause to believe someone inside the Station was downloading
the child pornography, we do not address the government’s other arguments that Rousseau failed
to submit affidavits or other evidence in support of his factual assertions and thus failed to offer
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the district court explained, Agent Carpinteri’s affidavit stated that the illegal

downloads from the IP address under that username were done “on a consistent

basis” for over six months and mostly at night between 10:00 p.m. and 4:00 a.m.,

making it more likely the user was someone inside the Station than someone

outside on the sidewalk or in the public park.

       For the first time on appeal, Rousseau contends that Agent Carpinteri’s

affidavit also omitted that Rousseau was the sole target of the investigation. To the

contrary, the trial record shows that Rousseau was not the sole target. Specifically,

Agent Carpinteri testified that, from comparing the records of employees’ shifts,

she identified Rousseau as the only employee on duty at all the relevant times.

But, Carpinteri also explained that this fact did not necessarily tell her that

Rousseau was the individual downloading and sharing files, because she still did

not know who was on the computer and “who [was] doing what at any given

time.” Therefore, Rousseau was “not the only one” targeted by the FBI

investigation. See United States v. Smith, 459 F.3d 1276, 1294 n.16 (11th Cir.

2006) (explaining this Court may consider evidence subsequently introduced at

trial in reviewing a motion to suppress). Accordingly, Rousseau has not shown

error, much less plain error.




proof that Agent Carpinteri made any misrepresentations, much less ones that were intentional or
reckless.
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      In sum, because Rousseau failed to make a substantial preliminary showing

of a material misrepresentation in Agent Carpinteri’s affidavit, the district court

was not required to hold a Franks hearing.

           II.      PARTICULARITY OF THE SEARCH WARRANT

A.    General Principles

      The Fourth Amendment requires that a search warrant particularly describe

the place to be searched and the things to be seized. U.S. Const. amend. IV. “A

warrant which fails to sufficiently particularize the place to be searched or the

things to be seized is unconstitutionally over broad.” United States v. Travers, 233

F.3d 1327, 1329 (11th Cir. 2000). The particularity requirement, however, does

not require “elaborate specificity.” United States v. Betancourt, 734 F.2d 750, 754

(11th Cir. 1984). “The standard is one of practical accuracy rather than technical

nicety.” Id. at 755 (quotation marks omitted).

      With regard to the place to be searched, the warrant’s description need only

have “sufficient particularity to direct the searcher, to confine his examination to

the place described, and to advise those being searched of his authority.” United

States v. Burke, 784 F.2d 1090, 1092 (11th Cir. 1986). As to the materials to be

seized, “a description is sufficiently particular when it enables the searcher

reasonably to ascertain and identify the things to be seized.” United States v.

Santarelli, 778 F.2d 609, 614 (11th Cir. 1985). If the applicant for the warrant


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cannot give an exact description, but has probable cause to believe that such

materials exist, the warrant is sufficiently particular if it is as specific as the

circumstances and nature of the activity under investigation permit. Id. Further,

where it is not feasible at the time the warrant is issued to give an exact description

of the materials to be seized, the warrant satisfies the Fourth Amendment’s

particularity requirement if it limits the seizure of items to only those items that

constitute evidence of criminal activity. Id. at 615.4

B.     Search Warrant

       The search warrant described the property to be searched as any computers,

including, among other things, data storage devices, cellular telephones, tablets,

and external hard drivers, found in the Station. The search warrant described the

items to be seized as, among other things, any visual depictions of child

pornography, any records of communication relating to sharing child pornography,

communications with an Internet service provider, communications relating to

ownership or use of computers at the Station, computer software, computer

passwords, and any computers and cameras that may be used to view or store child

pornography.




       4
        We review de novo a district court’s determination that a search warrant satisfied the
Fourth Amendment’s particularity requirement. United States v. Bradley, 644 F.3d 1213, 1258-
59 (11th Cir. 2011).
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      Agent Carpinteri’s affidavit provided general information about the typical

behavior of persons involved in child pornography, including how they use

computers and other electronic devices to store and transmit images. Among other

things, the affidavit explained that “[v]irtually any type of computer,” including

“cellular telephones, smartphones, tablets, and other such electronic mobile

devices” can access the Internet and P2P networks using certain “apps” and

wireless networks and that “[a]ny of these computers, if connected to the internet

through a home network, would be associated with the IP address assigned to that

home network . . . , just the same as would a laptop or desktop computer.”

      Agent Carpinteri’s affidavit also provided information about how computers

are seized and searched by forensic analysts for child pornography in a laboratory.

The affidavit explained that ordinarily agents must “seize most or all computer

items . . . to be processed later” in the laboratory. In this case, however, “[i]n order

to narrow down which computers need to be seized [from the Station] for further

examination,” agents would conduct “on-site evidentiary previews” that would

“identify which computers contain evidence of criminal activity and require

seizure and which computers are unrelated to the possession, receipt, and

distribution of child pornography.”

C.    Rousseau’s Claim That Warrant Was Overbroad




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       The district court properly denied Rousseau’s motion to suppress on

particularity or overbreadth grounds. The warrant sufficiently described the places

to be searched as the Station—including the address and a description of the

building—and any “computers” and “data storage devices” found in the Station.

The warrant further contained a very detailed list of the items to be seized,

including visual depictions of child pornography; digital and paper documents

pertaining to, inter alia, the possession, receipt, or transmission of child

pornography, Internet service provider accounts, or online or remote electronic

storage; computer software, including P2P file sharing software; and photographic

equipment containing child pornography. These descriptions were sufficient to

enable a searcher to confine the search to the places described and to reasonably

ascertain and identify the things to be seized.

       To the extent the descriptions did not identify a specific location within the

Station or specific item (such as a particular computer or cell phone), they were as

specific as the circumstances and nature of the activity being investigated would

permit. 5 The agents were investigating the downloading and sharing of child

pornography using an IP address registered to the Station and an open wireless

       5
         We find no merit to Rousseau’s argument that the warrant application failed to show a
nexus between the places to be searched and the items to be seized and the criminal activity
being investigated. See United States v. Kapordelis, 569 F.3d 1291, 1310 (11th Cir. 2009)
(explaining that the warrant affidavit should establish a connection between the place searched
and the criminal activity). Based on the information in the warrant application, there existed a
fair probability that evidence of the possession, receipt or distribution of child pornography
would be found on one or more computers and storage devices inside the Station.
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network accessible inside the Station. The investigators did not know which or

how many Station employees might be involved in the activity, much less which

computers or electronic storage devices in the Station were being used. The

warrant made clear that a search of the computers required the seizure of “most or

all computer items” to perform the search thoroughly, and that “on-site evidentiary

previews” would be conducted to minimize the burden on individuals and devices

that were not involved in the illegal activity. The warrant also only authorized the

seizure of items that were “[e]vidence of possession, receipt, and distribution of

child pornography.”

      Contrary to Rousseau’s assertion, agents did not conclude that a desktop

computer was the only device associated with the anon_ae3d4aee@Ares username.

The warrant application stated that any type of computer, including mobile devices

such as cell phones, smartphones, and tablets, could use a home wireless network,

access P2P networks using certain apps, and store large amounts of electronic data.

Dr. Sam Malek’s trial testimony—that a P2P network is essentially “just

computers,” such as personal laptops and desktops, communicating with each

other—does not contradict the warrant application on this point. Dr. Malek did not

testify that a P2P network can be accessed using only a desktop or laptop

computer.




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      Again, and also contrary to Rousseau’s contention, the record does not show

that agents identified Rousseau as the only suspect. Agent Carpinteri testified that,

although Rousseau was the only Station employee on duty every time child

pornography was shared via the P2P network, this did not necessarily mean that he

was the only one using a computer to do so. Moreover, even if Rousseau had been

confirmed as the only target, the record does not show that the search could have

been limited to his quarters or computers. Firefighters at the Station did not have

individual quarters, and it was not known that Rousseau had his own laptop at the

Station until the warrant was executed.

      Under the circumstances, the warrant was as specific as it could be and it

was not feasible for the agents to identify ahead of time a particular computer or

storage device inside the Station to be seized and searched. For all these reasons,

the district court did not err in denying Rousseau’s motion to suppress.

      AFFIRMED.




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