                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4558



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DANIEL WILSON TESTERMAN,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Irene M. Keeley, Chief
District Judge. (1:05-cr-00004-IMK-AL)


Submitted:   December 21, 2007            Decided:   January 30, 2008


Before TRAXLER and DUNCAN, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Dean M. Boland, Lakewood, Ohio, for Appellant. Sharon L. Potter,
United States Attorney, Sherry L. Muncy, Assistant United States
Attorney, Clarksburg, West Virginia, David J. Perri, Assistant
United States Attorney, Wheeling, West Virginia for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          Daniel Wilson Testerman was convicted of one count of

knowingly possessing child pornography, in violation of 18 U.S.C.

§ 2256 (2000), and three counts of knowingly receiving child

pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) (2000). He

was sentenced to 108 months of imprisonment. Testerman appeals his

convictions, arguing the district court erred by denying his motion

to suppress evidence seized pursuant to two search warrants issued

without probable cause and abused its discretion by disallowing

testimony under Fed. R. Evid. 701 concerning the alteration of

digital photographs, and that trial counsel provided ineffective

assistance.   For the reasons that follow, we affirm.



                                I.

          Testerman argues that the district court erred in denying

his motion to suppress evidence seized as a result of two search

warrants. This court reviews the district court’s factual findings

underlying a motion to suppress for clear error, and the district

court’s legal determinations de novo.   Ornelas v. United States,

517 U.S. 690, 699 (1996); United States v. Rusher, 966 F.2d 868,

873 (4th Cir. 1992).   The evidence is construed in the light most

favorable to the prevailing party below. United States v. Seidman,

156 F.3d 542, 547 (4th Cir. 1998).




                               - 2 -
     In reviewing the propriety of issuing a search warrant, the

relevant   inquiry     is     whether,     under   the    totality     of     the

circumstances, the issuing judge had a substantial basis for

concluding that there was probable cause to issue the warrant.

Illinois v. Gates, 462 U.S. 213, 238 (1983).             The facts presented

to the issuing judge need only convince a person of reasonable

caution that contraband or evidence of a crime will be found at the

place to be searched.        Texas v. Brown, 460 U.S. 730, 742 (1983).

Appellate courts pay great deference to the district court’s

findings of probable cause in relation to warrants.                  Gates, 462

U.S. at 236.

     Testerman argues on appeal both that the search warrants were

not supported by probable cause and the evidence was not admissible

under the good faith exception to the exclusionary rule.                   When a

party challenges both the probable cause determination and the

application of the good faith rule, we address the good faith

determination first.        See United States v. Legg, 18 F.3d 240, 243

(4th Cir. 1994).       If a warrant is found to be defective, the

evidence obtained from the warrant should be suppressed “only on a

case-by-case   basis   and     only   in   those   unusual   cases    in    which

exclusion will further the purposes of the exclusionary rule.”

United States v. Leon, 468 U.S. 897, 918 (1984).

     Evidence seized pursuant to a defective warrant will not be

suppressed unless: (1) the affidavit contains knowing or reckless


                                      - 3 -
falsity; (2) the magistrate acts as a rubber stamp for the police;

(3)   the    affidavit    does     not    provide     the    magistrate    with   a

substantial basis for determining the existence of probable cause;

or (4) the warrant is so facially deficient that an officer could

not reasonably rely on it.         See United States v. Wilhelm, 80 F.3d

116, 121 (4th Cir. 1996); United States v. Hyppolite, 65 F.3d 1151,

1156 (4th Cir. 1995).        The crucial element in determining probable

cause is “whether it is reasonable to believe that the items to be

seized will be found in the place to be searched.”                   United States

v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993).                    Information must

link criminal activity to the place to be searched.                   Id. at 1583.

      Testerman first contends that the good faith exception should

not apply in this case because the issuing magistrate did not make

the required determination of obscenity.              Testerman’s reliance on

Marcus v. Search Warrants, 367 U.S. 717 (1961), and its progeny, is

misplaced.       The Marcus line of cases involved seizure of allegedly

obscene materials to remove them from commercial circulation.

However, seizure of obscene material for the purpose of preserving

evidence for a subsequent criminal trial does not require such a

finding.     See Heller v. New York, 413 U.S. 483, 492 (1973); Fort

Wayne Books, Inc. v. Indiana, 489 U.S. 46, 63 (1989) (“[A] single

copy of a book or film may be seized and retained for evidentiary

purposes based on a finding of probable cause.”). Thus, a judicial

finding     of   obscenity   was    not    required    for    a    probable   cause


                                         - 4 -
determination before the issuance of valid search warrants in this

case.

      Testerman next alleges the good faith exception under Leon

should not apply because the affidavit supporting the search

warrants was so lacking in indicia of probable cause as to render

the belief in it objectively unreasonable.                 We find there was

substantial evidence supporting the magistrate’s decision to issue

the warrant.    Sheriff’s Deputy Kelly prepared the affidavit with

information obtained from his interviews of and sworn statements

given by the victim, and after viewing the photographs of the naked

male the victim had received. Further, Deputy Kelly consulted with

the acting prosecutor for advice on how to proceed in obtaining

evidence in the area of computer crimes, an area in which he was

unfamiliar.

      The affidavit supporting the first search warrant indicated

the   reason   for   the   search   was   that   obscene    photographs   were

received by the victim by e-mail and she “recognized the person

depicted in said obscene photographs as being DANIEL TESTERMAN.”

The affidavit also contained a detailed description of the place to

be searched and indicated the search was for “any and all records

contained within any personal computer’s hard drive and memory as

well as software which may have been used in connection with and to

facilitate the above crimes.”         We find the first search warrant

contained significant indicia of probable cause for the crime


                                    - 5 -
charged and provided an adequate description of the place to be

searched and things to be seized. The search warrant therefore was

not so facially deficient that it would be unreasonable for the

deputies to presume its validity.

     Similarly, the second search warrant contained a description

of the alleged crime and stated the evidence sought:

     relat[ed] to children engaged in sexual activity or any
     other crime and that the facts for such belief are that
     after obtaining a Search Warrant to search for
     photographs e-mailed to [the victim], [she] identified
     her [daughter] as one of the images depicted on the
     computer engaged in sexual activity with an adult male.

In addition, the second search warrant provided a sufficient

description of the things to be seized and detailed the place to be

searched.   We find the exemptions to the good faith exception to

the exclusionary rule do not apply to the first or second search

warrants in this case and thus the evidence was admissible under

the good faith exception. The district court therefore did not err

in affirming the magistrate judge’s report and recommendation and

denying Testerman’s motion to suppress the relevant evidence seized

as a result of the search warrants.



                                 II.

     Testerman next contends the district court erred by refusing

to allow the testimony of his brother, Jonathan Black, a purported

“self taught computer geek,” concerning the methodologies for

altering digital photographs.    The district court has discretion

                                - 6 -
generally    to    conduct   a   trial,   including    the     presentation    of

evidence, in whatever manner the court deems appropriate, and the

district court’s evidentiary rulings are entitled to substantial

deference    and   will   not    be   reversed    absent   a   clear   abuse   of

discretion.   See United States v. Moore, 27 F.3d 969, 974 (4th Cir.

1994).   Federal Rule of Evidence 701 allows lay opinion testimony

as long as it is based on the witness’ own perception, helpful to

the jury in understanding facts at issue, and “not based on

scientific, technical, or other specialized knowledge.”                 Fed. R.

Evid. 701.

     On appeal, Testerman addresses only the district court’s

finding that Testerman had not disclosed that Black intended to

testify as to digital photographs.               We find the court properly

disallowed the testimony because Testerman failed to disclose the

substance of this testimony, even though defense counsel knew of

the evidence beforehand, until near the end of trial, after the

Government rested and Testerman had testified on his own behalf.

The evidence, consisting of alleged special computer knowledge,

further was properly excluded under Rule 701, which “forbids the

admission of expert testimony dressed in lay witness clothing.”

United States v. Perkins, 470 F.3d 150, 156 (4th Cir. 2006).




                                      - 7 -
                                         III.

           Finally,       Testerman       alleges     claims     of     ineffective

assistance of counsel.            “Ineffective assistance claims are not

cognizable      on   direct     appeal    unless    counsel’s    ineffectiveness

conclusively appears on the record.”               United States v. James, 337

F.3d 387, 391 (4th Cir. 2003).           We find the record does not contain

any evidence that is sufficient on its face to satisfy both prongs

of Strickland v. Washington, 466 U.S. 668, 688, 694 (1984), and

thus Testerman’s        ineffective assistance of counsel claims are not

cognizable on direct appeal.

           Accordingly, we affirm the district court’s judgment.

We   dispense    with    oral    argument       because   the   facts    and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.


                                                                           AFFIRMED




                                         - 8 -
