     Case: 13-60556      Document: 00512694077         Page: 1    Date Filed: 07/10/2014




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

                                                                                FILED
                                    No. 13-60556                            July 10, 2014
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

NOEL EVERETT SUMRALL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:12-CR-112-1


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Noel Sumrall pleaded guilty to possession of child pornography but
reserved his right to appeal the denial of a motion to suppress evidence seized
pursuant to a search warrant. He now appeals the denial of that motion. We
AFFIRM.
       The search warrant was based on the discovery by a third party in
Sumrall’s house of pictures of partially clothed children, topless young girls


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 13-60556

hugging each other, and young boys in their underwear, including one such
boy with an apparent erection.
       Sumrall argues that the search warrant was unsupported by probable
cause and that no good-faith exception applies. Under the good-faith exception,
“evidence obtained by law enforcement officials acting in objectively reasonable
good-faith reliance upon a search warrant is admissible” even if the affidavit
supporting the warrant is deemed not to establish probable cause. United
States v. Shugart, 117 F.3d 838, 843 (5th Cir. 1997) (internal quotation marks
and citations omitted); see United States v. Leon, 468 U.S. 897, 920 (1984).
Relevant here, the exception does not apply (1) if the issuing judge was misled
by information in an affidavit that the affiant knew or should have known was
false; (2) if the issuing judge abandoned her impartial judicial role; or (3) if the
affidavit supporting the warrant so lacks indicia of probable cause that reliance
on it is entirely unreasonable. See Leon, 468 U.S. at 923; United States v.
Webster, 960 F.2d 1301, 1307 (5th Cir. 1992). 1 Only if the good-faith exception
does not apply, do we determine if there was probable cause to support the
warrant. United States v. Cherna, 184 F.3d 403, 407 (5th Cir. 1999). We
review factual findings for clear error, but the sufficiency of the warrant and
the reasonableness of a policeman’s reliance on the warrant are reviewed de
novo. Id. at 406-07.
           Sumrall asserts that the supporting affidavit was misleading because
it failed to explain that the affiant had less than an hour of training specific to
child exploitation cases. Yet he does not say that anything in the affidavit was
false. Sumrall also says that the issuing judge abandoned her role as a neutral
and detached magistrate by believing the affidavit because neither she nor the



       1 Sumrall does not contend that the warrant was facially invalid for failing to describe
the place to be searched or the things to be seized. See Leon, 468 U.S. at 923.


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                                  No. 13-60556

affiant were qualified to determine whether there was probable cause that
Sumrall possessed child pornography. Sumrall cites no authority to support
his bare argument that the affiant and the judge failed to reach some
undefined level of expertise that a person must attain before seeking or issuing
a search warrant for child pornography.
      Sumrall also contends that the affidavit was so lacking in indicia of
probable cause that no executing officer could have relied on the warrant in
good faith. He explicitly disavows contending that the affidavit is a “bare
bones” affidavit. This leaves him little room for argument, because if a search
warrant is supported by more than a bare bones affidavit, the officers executing
the warrant may rely upon it. United States v. Satterwhite, 980 F.2d 317, 321
(5th Cir. 1992). A bare bones affidavit is one that contains wholly conclusional
statements and is “so lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable.” Id. (internal quotation marks
and citation omitted).
      Sumrall’s contention is based mainly on the false premise that the
images found by the third party could not support a search warrant unless the
images met the definition of child pornography.            However, an affidavit
supporting a search warrant for child pornography does not need to “contain
specific, individualized information that a defendant possesses child
pornography.” United States v. Flanders, 468 F.3d 269, 271 n.3 (5th Cir. 2006)
(citing United States v. Froman, 355 F.3d 882, 890-91 (5th Cir. 2004)). Rather,
a court “must make a practical, common-sense decision as to whether, given
all the circumstances set forth in the affidavit . . . there is a fair probability
that contraband or evidence of a crime will be found in a particular place.”
Froman, 355 F.3d at 889 (internal quotation marks and citation omitted). The
judge was allowed to draw reasonable inferences from the affidavit, and her



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                                No. 13-60556

ultimate determination of the affidavit’s adequacy is entitled to great
deference. See United States v. May, 819 F.2d 531, 535 (5th Cir. 1987).
      Sumrall’s bare assertions fail to show any reason why the good-faith
exception should not apply. The judgment is AFFIRMED.
      Sumrall moves to supplement the record with a copy of a cell-phone video
showing the pictures found in Sumrall’s house. The district court did not
consider the video in ruling on the motion to suppress but rather relied on the
uncontested descriptions of the pictures. Moreover, Sumrall offered the video
as evidence that the pictures are not child pornography under state law. But
the question of whether the images were pornographic under state law is not
determinative of the issue of whether they supported good-faith reliance on the
warrant. See Flanders, 468 F.3d at 271. The motion to supplement the record
is DENIED.




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