                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-8-1999

U.S. v. Loy
Precedential or Non-Precedential:

Docket 98-3636




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                                   UNITED STATES of America
                                             v.
                                   Ray Donald LOY, Appellant

                                        No. 98-3636.

                                 United States Court of Appeals,
                                        Third Circuit.

                                     Argued June 9, 1999

                                     Filed Sept. 8, 1999

    Appeal from the United States District Court for the Western District
of Pennsylvania. District Judge: Honorable
                           Alan N. Bloch (D.C. Criminal No. 98-cr- 00089)

Marketa Sims, Esquire (ARGUED), Assistant Federal Public Defender,
Shelley Stark, Esquire, Federal Public Defender, Pittsburgh, PA, COUNSEL
FOR APPELLANT.

Mary Beth Buchanan, Esquire (ARGUED), Assistant United States Attorney,
Harry Litman, Esquire, United States Attorney, Pittsburgh, PA, COUNSEL FOR
THE UNITED STATES.

Before: SLOVITER and MANSMANN, Circuit Judges, and WARD*, District Judge.
* Honorable Robert J. Ward, United States District Judge for the Southern
District of New York, sitting by designation.

OPINION OF THE COURT
WARD, District Judge.

BACKGROUND

In 1997, the United States Postal Inspection Service and the Pennsylvania
State Attorney General's Office conducted a
joint undercover child pornography investigation. On March 6, 1997, Ray
Donald Loy wrote a letter to Postal Inspector
Thomas Kochman in response to an advertisement placed in a sexually
explicit magazine by Special Agent Dave Guzy of
the Attorney General's Office. In that letter, Loy indicated that he and
his wife had a "good collection" of child
pornography and he expressed an interest in trading tapes with Kochman.
Loy stated that if Kochman was serious about
trading, Kochman should call Loy so they could discuss it over the
telephone.

On March 17, 1997, Inspector Kochman monitored and recorded a call placed
by Special Agent Guzy to Loy. During
that conversation, Loy gave detailed descriptions of some of the tapes in
his collection and told the agent that he could
"put together" tapes for trading. He also indicated that he trades with
many people and offered to give Guzy their names.
In addition, Loy described how he had produced videos by hiding a
camcorder in his bag and filming up the skirts of
young girls as they rode the escalators at a mall.

During the March 17 telephone conversation, Loy specified that he was
interested in receiving material from the
undercover agent involving girls ranging from eight to thirteen years of
age. He specifically requested that Guzy send him a
tape of girls between the ages of eight and ten in a bathtub ("Bath Time
video"), which the agent agreed to do.

On April 28, 1997, Inspector Kochman received a letter from Loy bearing
the return address of R. Loy, P.O. Box 114,
Langeloth, Pennsylvania 15054, requesting again that the agent send him
the Bath Time video. In exchange, Loy offered
to send a video of twelve and thirteen year old children engaged in
sexually explicit conduct.

Postal Inspector Thomas Clinton determined that the post office box Loy
used as his return address had, in fact, been
opened by Loy. The application for the box listed Loy's address as 204
Charles Street, Langeloth, Pennsylvania 15054.
On May 5, 1997, Inspector Clinton prepared a package containing the Bath
Time video for delivery to Loy's P.O. Box
and, the same day, submitted an affidavit and application for an
anticipatory search warrant for Loy's residence at 204
Charles Street. The application requested authorization to seize evidence
of violations of Title 18 U.S.C. §§ 2252(a)(2),
receipt of child pornography, and 2252(a)(4)(B), possession of child
pornography. The evidence to be seized included:
videotapes depicting child pornography, video equipment for viewing,
producing, and reproducing child pornography, and
lists of individuals with whom Loy traded. The application conditioned the
search on Loy accepting delivery of the Bath
Time tape and returning to his residence with the tape in his possession.
Chief United States Magistrate Judge Kenneth J.
Benson issued the anticipatory warrant requested by Inspector Clinton.

On May 6, 1997, Clinton delivered the package containing the tape to Loy's
post office box in Langeloth, Pennsylvania
and observed Loy accept delivery of the package. Other agents maintained
surveillance of Loy as he left the post office
and returned home with the tape. Loy was observed entering his residence
with the package in his possession. Inspector
Clinton then executed the search warrant, seizing from Loy's residence the
Bath Time videotape as well as another tape
depicting child pornography, fifteen computer disks containing child
pornography, fifty videocassettes, several
pornographic magazines, a VCR player and television set, as well as
various letters describing Loy's solicitation of child
pornography and his offers to trade such materials.

On May 2, 1998, a grand jury returned a two-count Indictment against Loy.
The first count of the Indictment charged
Loy with knowingly receiving child pornography through the United States
mail in violation of 18 U.S.C.
§2252(a)(2). The second count charged him with knowingly possessing three
or more items, containing visual depictions
produced using materials transported in interstate and foreign commerce,
the production of which involved the use of
minors engaging in sexually explicit conduct in violation of 18 U.S.C. §
2252(a)(4)(B).

Loy moved to suppress the evidence seized from his home, alleging that the
search warrant was not supported by
probable cause. A suppression hearing was held before the district court
on August 13, 1998. The district court denied
Loy's motion, finding that the warrant was supported by probable cause and
that even if the warrant was invalid, the
evidence need not be suppressed because the good faith exception to the
exclusionary rule applied. On September 3,
1998, Loy entered an unconditional plea of guilty to Count One of the
Indictment and a conditional guilty plea to Count
Two. Loy's conditional plea preserved his right to appeal whether the
search warrant was supported by probable cause
and whether the officers reasonably relied on the warrant in good faith.
On December 3, 1998 the district court sentenced
Loy to a thirty- three month term of imprisonment followed by three years
of supervised release. Additionally, the district
court imposed special conditions of supervised release requiring Loy to
undergo testing and treatment for drugs and
alcohol, prohibiting him from having unsupervised contact with minors, and
forbidding him from possessing pornography
of any type. Loy objected to these conditions on the grounds that they
were not supported by the record and violated his
fundamental rights.

On appeal, Loy raises three arguments. First, Loy argues that the district
court erred in failing to suppress the evidence
obtained from his home pursuant to the anticipatory search warrant.
Second, Loy contends that the search warrant issued
by the magistrate judge did not describe the items to be seized with
sufficient particularity since the overbroad language in
the warrant could lead to the mistaken seizure of material protected by
the First Amendment. The final argument made by
Loy on appeal is that the district court abused its discretion in imposing
the special conditions of supervised release.

DISCUSSION
I. Validity of the Warrant

A. Constitutionality of Anticipatory Search Warrants

As an initial matter, appellant urges this Court to rule that anticipatory
warrants are per se unconstitutional. The
constitutionality of anticipatory warrants, i.e. warrants that become
effective upon the happening of a future event, is a
question of first impression in this Circuit. However, we recognize that
every circuit court of appeals to have addressed
this question has held that anticipatory search warrants are not
categorically unconstitutional. See, e.g., United States v.
Hugoboom, 112 F.3d 1081, 1085- 86 (10th Cir.1997); United States v.
Ricciardelli, 998 F.2d 8, 11 (1st Cir.1993);
United States v. Tagbering, 985 F.2d 946, 950 (8th Cir.1993); United
States v. Wylie, 919 F.2d 969, 974 (5th
Cir.1990); United States v. Garcia, 882 F.2d 699, 703 (2d Cir.), cert.
denied, 493 U.S. 943, 110 S.Ct. 348, 107
L.Ed.2d 336 (1989); United States v. Goodwin, 854 F.2d 33, 36 (4th
Cir.1988); United States v. Goff, 681 F.2d 1238,
1240 (9th Cir.1982); United States v. Lowe, 575 F.2d 1193, 1194 (6th Cir.)
cert. denied, 439 U.S. 869 (1978); United
States ex rel. Beal v. Skaff, 418 F.2d 430, 432-33 (7th Cir.1969).1 Such
warrants have repeatedly been upheld where
they are supported by probable cause and the conditions precedent to the
search are clearly set forth in the warrant or
supporting affidavit. Hugoboom, 112 F.3d at 1085 (citing cases). We agree
with the other circuits that "the simple fact
that a warrant is 'anticipatory' ... does not invalidate a warrant or make
it somehow suspect or legally disfavored." United
States v. Gendron, 18 F.3d 955, 965 (1st Cir.), cert. denied, 513 U.S.
1051, 115 S.Ct. 654, 130 L.Ed.2d 558 (1994);
Hugoboom, 112 F.3d at 1085 (quoting Gendron, 18 F.3d. at 965). We hold,
therefore, that anticipatory warrants which
meet the probable cause requirement and specifically identify the
triggering event are not per se unconstitutional.
____________________________________________
1. The only other circuit that has not yet directly addressed this
question is the Eleventh Circuit. However the Eleventh Circuit has
indicated in dictum that anticipatory warrants are appropriate when the
contraband is on a "sure course" to a known destination. United
States v. Nixon, 918 F.2d 895, 903 n. 6 (11th Cir.1990).
___________________________________________

B. Probable Cause

Anticipatory warrants differ from traditional warrants in that they are
not supported by probable cause to believe the items
to be seized are at the place to be searched when the warrant is issued.
United States v. Rowland, 145 F.3d 1194, 1201
(10th Cir.1998). In fact, when issuing an anticipatory warrant, the court
knows that the contraband has not yet reached
the place to be searched. Id. That does not mean, however, that
anticipatory warrants do not have to be supported by
probable cause. As with all warrants, there must be a sufficient nexus
between the contraband to be seized and the place
to be searched before an anticipatory warrant can be issued. Id. (quoting
United States v. Dennis, 115 F.3d 524, 529
(7th Cir.1997)).

To satisfy the nexus requirement, it is not enough that the anticipatory
search warrant be conditioned on the contraband
arriving at the designated place. While such conditions guarantee that
there will be probable cause at the time the search is
conducted, the warrant must also be supported by probable cause at the
time it is issued. See Rowland, 145 F.3d at
1202 ("Although the conditions precedent ensure that an anticipatory
warrant will not be executed prematurely, such
conditions do not serve as a substitute for the magistrate's probable
cause determination."); see also United States v.
Hendricks, 743 F.2d 653, 654-56 (9th Cir.), cert. denied, 470 U.S. 1006,
105 S.Ct. 1362, 84 L.Ed.2d 382
(1985)(holding anticipatory search warrant for defendant's home invalid
where the affidavit provided no assurances that
defendant would take the contraband home after picking it up at the
airport, despite the fact that the warrant was
conditioned on the contraband arriving at defendant's house).
Consequently, when presented with an application for an
anticipatory warrant, the magistrate judge cannot rely on police
assurances that the search will not be conducted until
probable cause exists. Rowland, 145 F.3d at 1202. Instead, the magistrate
judge must find, based on facts existing when
the warrant is issued, that there is probable cause to believe the
contraband, which is not yet at the place to be searched,
will be there when the warrant is executed. Id.

Since our review of the district court's decision denying Loy's motion to
suppress is plenary, United States v. Williams, 3
F.3d 69, 71 (3d Cir.1993), we must apply the same deferential standard as
the district court in reviewing the magistrate
judge's initial probable cause determination. Id. at 71 n. 2 (citing
United States v. Jones, 994 F.2d 1051 (3d Cir.1993)).
This deferential standard, however, "does not mean that reviewing courts
should simply rubber stamp a magistrate's
conclusions...." United States v. Tehfe, 722 F.2d 1114, 1117 (3d Cir.),
cert. denied, 466 U.S. 904, 104 S.Ct. 1679, 80
L.Ed.2d 154 (1984). Instead, the duty of a reviewing court is to ensure
that the magistrate judge had a "substantial basis"
for concluding that probable cause existed. Illinois v. Gates, 462 U.S.
213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527
(1983).

Where the warrant application indicates that there will be a controlled
delivery of contraband to the place to be searched,
the nexus requirement of probable cause is usually satisfied. Rowland, 145
F.3d at 1202-03. However,
where as here, the delivery of the contraband is to a place other than the
one to be searched, namely, Loy's post office
box, "the warrant application must present additional facts establishing
[that] the contraband will be taken to the place
designated for [the] search." Id. at 1203. As explained above, the fact
that an anticipatory warrant is conditioned on the
contraband arriving at the place to be searched is insufficient to meet
the probable cause requirement. Therefore, there
must have been probable cause at the time the warrant was issued to
believe that Loy would bring the tape home with him
after picking it up at the post office.

The only support in the warrant application for the assumption that Loy
would return home with the videotape was
Inspector Clinton's statement, "[i]t is anticipated that Ray Loy, upon
receipt of this package, will return to his
residence at 204 Charles Street, Langeloth, Pennsylvania 15054 with this
package in his possession at the time he enters
his residence." There was no evidence in the affidavit that Loy had
previously transported child pornography from his
private post office box to his residence or that he would do so in this
instance. Nor were there any facts indicating that
Loy had used his residence in the past for receiving child pornography.2
Id. at 1204 (finding that the probable cause
requirement was not met, in part, because the affidavit provided no
evidence that defendant had transported contraband
from his post office box to his residence or facts otherwise linking his
home to the suspected illegal activity).
_____________________________________
2. In denying Loy's motion to suppress, the district court found that the
affidavit illustrated defendant's intent to receive child
pornography at his home rather than any other location or, the court
stated, the affidavit, at least, sets forth the defendant's use of his
home in connection with his illegal activities. The court based this
finding on the fact that Loy included his home address in some of his
letters to the undercover agents. We do not believe this finding is
supported by the record. While Loy did provide his address to the
agents, he consistently stated that his post office box was the only place
that the agents could send sexually explicit materials.
__________________________________________

The government, nevertheless, contends that there was probable cause to
believe Loy would bring the video home, based
on the assumption that Loy stored his child pornography at his house. In
support, the government cites Inspector Clinton's
statement contained in the affidavit that based on his experience, those
who collect pornographic materials involving
minors "commonly ... maintain this material in the privacy of their
homes." While a magistrate judge may consider an
expert's opinion in finding probable cause, Inspector Clinton's profile
was directly contradicted by Loy's statement to the
undercover agent that he only kept the "stuff that's legal" at his
residence. The other pornographic materials he kept in a
rented storage facility because, he explained, "if I keep it out of my
house then I'm cool."3 In light of Loy's assertion,
Clinton's experience and expertise, without more, is insufficient to
establish probable cause.
_________________________________________________________
3. Loy also told the agent that both he and his wife were interested in
child pornography but that he kept the "very young stuff" hidden
because he was not sure how his wife would feel about it. Based on this
information, the
government contends that the magistrate judge could have reasonably
inferred that Loy only used the storage facility to hide the "very
young stuff" from his wife and kept the rest of his child pornography at
home where they could both access it easily. Considering Loy's
statement that he only keeps his "stuff that's legal" at home, we do not
find that this is a reasonable inference from the facts contained in
the affidavit.
_________________________________________________________

According to the government, even if this Court finds the affidavit
insufficient to show that Loy stored child pornography
in his home, we can still find that there was probable cause to believe
the tape would be found during the search, based
on the logical inference that Loy would, at least, take it home with him
to view. As the Tenth Circuit noted, "[i]n making
the probable cause determination, the issuing magistrate may draw
reasonable inferences from the material provided in the
warrant application." Rowland, 145 F.3d at 1205 (citing Gates, 462 U.S. at
240). However, we do not find that the
inference advanced by the government is supported by the facts contained
in the affidavit. Although it may have been
reasonable for the magistrate judge to infer that Loy would not view the
videotape at the storage facility, there was no
basis for finding that he would view it at his home as opposed to some
other location. Cf. id. at 1205 (finding the possible
inference that the defendant would take the tapes of child pornography
home to view, without any explanation as to why
he was more likely to view the tapes at home than at some other location,
insufficient, in and of itself, to establish probable
cause to believe the tape would be at the defendant's home when the search
was conducted).

In sum, we do not find that the magistrate judge had a substantial basis
for believing that the warrant was supported by
probable cause. Inspector Clinton's conclusory statement that people who
collect child pornography commonly keep it in
their homes is insufficient, in light of Loy's own assertion that he kept
it in a storage facility, to provide the requisite nexus
between the contraband and Loy's residence. Similarly, there was
insufficient evidence in the affidavit from which the
magistrate judge could infer that Loy would bring the videotape home to
view rather than take it to some other location to
watch. Cf. Rowland, 145 F.3d at 1204-06 (finding anticipatory warrant to
search defendant's home not supported by
probable cause when tapes depicting child pornography were delivered to
defendant's post office box and there were no
facts in the affidavit suggesting that he would take the tapes home with
him rather than take them to some other location to
view or store); Hendricks, 743 F.2d at 654-56 (holding anticipatory search
warrant for defendant's home invalid when
defendant was required to pick up contraband at the airport and there was
no information indicating that he would take
the contraband home or otherwise linking defendant's residence with
illegal activity). We, therefore, find that the warrant
was not supported by probable cause and as such was invalid.4
____________________________________________________________________
4. In addition to the Bath Time video, the warrant authorized the agents
to search for and seize material depicting children engaging in
sexually explicit conduct as well as related correspondence, mailing
lists, and video equipment. While Loy's conversations with the
agents provided probable cause to believe that he possessed such items,
the affidavit did not provide probable cause to believe that
they would be found at Loy's residence. With regard to the other sexually
explicit materials, the affidavit provided no facts indicating that
Loy used his residence to view, store or produce child pornography,
especially in light of Loy's statement that he only kept the "stuff
that's legal" at home. As for the correspondence and mailing lists,
although Loy initially gave the undercover agents his home address
and telephone number, suggesting that he used his residence to solicit
illicit materials, he subsequently told the agents that he changed
his telephone number and that they could only contact him through his post
office box. While Loy offered to give the agents his new
number, there is no evidence that he ever did. We, therefore, find that
the affidavit provided insufficient facts linking Loy's residence to
his illegal activities.
___________________________________________________________________

C. Good Faith Exception

In United States v. Leon, 468 U.S. 897, 926 (1984), the Supreme Court held
that evidence found to be unsupported by
probable cause is, nevertheless, admissible when obtained by officers
acting in reasonable reliance on a search warrant
issued by a detached and neutral magistrate judge. The test for whether
the good faith exception applies is "whether a
reasonably well trained officer would have known that the search was
illegal despite the magistrate's authorization." Id. at
922, n. 23. Outlining the parameters of the exception, the Supreme Court
recognized that there are circumstances in
which an officer's reliance on a warrant will not be reasonable and
therefore suppression will be appropriate. For
example, the Court noted that the exception will not apply "where the
warrant is so facially deficient ... that the executing
officers cannot reasonably presume it to be valid" or the affidavit is "so
lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable." Id. at 923. 5
_____________________________________________________________
5. Our review of the district court's determination that the officers
relied on the warrant in good faith is plenary.
United States v. Williams, 3 F.3d 69, 71 n. 2 (3d Cir.1993)
______________________________________________________________

Appellant relies heavily on United States v. Ricciardelli, 998 F.2d 8 (1st
Cir.1993), in support of his assertion that the
good faith exception should not apply here. In Ricciardelli, the court
refused to apply the exception where the requisite
nexus between the item to be seized and the place to be searched was not
established. Id. at 17. The defendant in that
case ordered a videotape of child pornography from undercover officers who
then arranged for a controlled delivery of
the tape to the defendant's home. Prior to the delivery, the officers
applied for and obtained a search warrant for the
defendant's residence which was conditioned on his receipt of the package.
The package was sent in such a way that it
could not be delivered unless it was signed for by the defendant. Since he
was not at home when the post office
attempted to make the delivery, the mail carrier left a note indicating
that Ricciardelli could pick up the package at the
post office. That afternoon, the defendant retrieved the tape from the
post office and returned home with it in his
possession, at which point the officers, relying on the warrant, searched
his residence.

The court found the search warrant for the defendant's residence fatally
defective because it did not require that the
package containing contraband arrive at the defendant's home before the
search could be conducted. Id. at 13. Instead,
the warrant only required that the defendant personally receive the
package. In other words, the warrant authorized the
agents to search the defendant's home regardless of where and when he took
possession of the
contraband. Although the officers waited until the defendant returned home
with the tape to execute the search, the court
refused to apply the good faith exception, finding that a reasonably
prudent officer should have known that the requisite
nexus between the item to be seized and the place to be searched had not
been established. Id. at 16. In reaching its
decision, the court also noted that it was the officers, not the
magistrate judge, who were responsible for the defect. The
officers had failed to inform the magistrate judge that the package had to
be signed for. As a result, the magistrate judge
was unaware of the possibility that Ricciardelli would have to pick up the
package at the post office and, therefore, might
not be at home when he took possession of the contraband. Id. at 17. Had
the magistrate judge been fully informed, the
court stated, the warrant may have been more finely tuned. Id.

While the requisite nexus between the item to be seized and the place to
be searched is lacking here, as it was in
Ricciardelli, the warrant in this case was conditioned on more than Loy's
mere receipt of the package. Loy not only
had to take possession of the package but he had to return home with it
before the search could be conducted.
Moreover, unlike the officers in Ricciardelli, there is no indication in
the record that the officers here withheld information
that could have led the magistrate judge to issue a different warrant or
were in anyway responsible for the warrant's
defect. We, therefore, reject appellant's assertion that Ricciardelli
should guide us on this issue.

United States v. Rowland, 145 F.3d 1194 (10th Cir.1998), cited by
appellees, seems to us to be more on point. In
Rowland, another case similar to this one, the requisite nexus between the
items to be seized and the place to be
searched was also lacking. Nevertheless, the court applied the good faith
exception and refused to suppress the evidence.
Id. at 1206. The court relied on three factors in reaching its decision.
First, the court noted that the affidavit, while
defective, was more than just a "bare bones" affidavit based on conclusory
statements and lacking factual support.
Instead, the affidavit included detailed information about the
investigation into Rowland's criminal activity. Second, the
court emphasized that the affidavit placed specific conditions on the
execution of the warrant, rendering it ineffective until
the defendant returned home with the videotape. In other words, it ensured
that there would be probable cause at the
time of the search. Finally, the court found that it was not unreasonable
for the officers to rely on the magistrate judge's
authorization because the 10th Circuit had not yet ruled on the
constitutionality of anticipatory warrants and had not yet
articulated what conditions would be required for such warrants to be
valid. Based on these factors, the court concluded
that the officers could not be expected to know that the magistrate judge
made an erroneous probable cause
determination. Id. at 1206-08.

All three of the factors cited by the Tenth Circuit are present before us
here. As in Rowland, the Clinton affidavit was not
a "bare bones" document but rather contained detailed facts regarding the
investigation into Loy's criminal activities, the
warrant required that Loy return home with the package before the search
warrant could be executed, guaranteeing that
there would be probable cause when the search was conducted, and this
Circuit had not yet decided the constitutionality
of anticipatory warrants at the time the warrant was issued. Based on the
Rowland analysis, we do not find that the
warrant was so facially deficient or lacking in indica of probable cause
that a reasonably well trained officer would have
known that the search was illegal despite the magistrate judge's
authorization. As a result, we find that the good faith
exception applies and uphold the district court's denial of defendant's
motion to suppress.

II. Particularity Requirement

Appellant argues that the portion of the warrant which sought
"[p]hotographs, drawings, magazines or other visual media
to include photographic slides, videotapes or literature depicting
children under the age of 18 years engaging in sexually
explicit conduct as defined in Title 18, U.S.Code, Section 2256," was
impermissibly broad since it failed to describe the
items to be seized with sufficient particularity. Specifically, Loy
contends that the phrase "children under the age of 18"
could lead to the seizure of material protected by the First Amendment by
executing officers unable to distinguish between
illegal child pornography and legal adult pornography. We review the
magistrate judge's determination for plain error.
United States v. Martinez- Zayas, 857 F.2d 122, 134 (3d Cir.1988); United
States v. Bey, 736 F.2d 891, 895 (3d
Cir.1984). 6
______________________________________________________
6. Appellant concedes that he did not raise this argument in his motion to
suppress but argues that since particularity is intertwined with
probable cause, the issue was nevertheless preserved. We disagree.
Appellant cites no support, nor have we found any, for the
proposition that preserving the right to appeal an adverse probable cause
determination simultaneously safeguards appellant's right to
appeal on the basis of particularity. However, issues that are not
preserved may nevertheless be reviewed for "plain error." United States
v. Riddick, 156 F.3d 505, 509 (3d Cir.1998)(citing Fed.R.Crim.P. 52(b))
______________________________________________________

We find that the warrant describes the materials to be sought with all the
particularity required by the Constitution. Courts
faced with similar warrants have consistently found that such language is
not overbroad. For example, in United States v.
Hurt, 795 F.2d 765, 772 (9th Cir.), cert. denied, 484 U.S. 816, 108 S.Ct.
69, 98 L.Ed.2d 33 (1987), the Ninth Circuit
held that a warrant was sufficiently particular where it authorized the
search for materials "depicting minors (that is,
persons under the age of 16) engaged in sexually explicit conduct."
Similarly, the Fifth Circuit upheld a search warrant
where it referred to the items to be seized as "child pornography." United
States v. Layne, 43 F.3d 127, 132 (5th Cir.),
cert. denied, 514 U.S. 1077, 115 S.Ct. 1722, 131 L.Ed.2d 580 (1995).

While we recognize that in some cases it may be difficult to distinguish
between adults and children, we agree with the
Eighth Circuit that, "[t]he fact that some adults look like minors and
some minors look like adults does not mean a warrant
is overbroad. Most minors look like minors and most adults look like
adults, and most of the time most law enforcement
officers can tell the difference." United States v. Koelling, 992 F.2d
817, 822 (8th Cir.1993). In sum, we find that the
phrase "children under the age of 18" is not so uncertain as to make a
warrant defective, even though it might lead to the
mistaken seizure of adult pornography.

III. The Conditions of Supervised Release

As this court has recognized, a sentencing judge has wide discretion in
imposing conditions of supervised release. United
States v. Crandon, 173 F.3d 122, 127 (3d Cir.), petition for cert. filed,
(U.S. June 14, 1999)(No. 98- 9838). However,
the court's discretion is not without limitations. An order may be a
condition of supervised release only to the extent that it:
(1) reasonably relates to the factors set forth in the statute containing
the sentencing guidelines and (2) involves no greater
deprivation of liberty than is reasonably necessary for the purposes set
forth in the statute. 18 U.S.C. § 3583(d)(1) & (2).
This statutory scheme provides for consideration of: (1) the nature and
circumstance of the offense and the history and
characteristics of the defendant and (2) the need for the sentence imposed
to deter future criminal conduct, protect the
public, and provide the defendant with necessary training, medical care,
or other correctional treatment. 18 U.S.C. §
3553(a)(1) & (2). 7
____________________________________________________________
7. A district court's findings regarding the imposition of supervised
release are reviewed for abuse of discretion.
Crandon, 173 F.3d at 127.
____________________________________________________________

A. Testing and Treatment for Drug Abuse 8

Appellant argues that since there was no indication in the pre-sentence
report or elsewhere in the record that he ever used
drugs, this condition is not reasonably related to any statutory goal and
involves a greater deprivation of liberty than
required. While it is true that there is nothing in the pre- sentence
report, or elsewhere in the record indicating that Loy
engaged in illegal drug use, submission to drug testing is a mandatory
condition of supervised release, regardless of the
defendant's drug history. 18 U.S.C. § 3563(a)(5). Loy, nevertheless,
argues that the court abused its discretion in
requiring drug testing since the statute provides that the condition "may
be ameliorated or suspended by the court for any
individual defendant if the defendant's pre-sentence report or other
reliable sentencing information indicates a low risk of
future substance abuse by the defendant." Id. What Loy overlooks in making
this argument is that the relevant provision
merely suggests that the court "may" ameliorate or suspend the condition
where there is low risk of future substance
abuse. It does not state that the court is required to do so.
Consequently, the district court cannot be said to have abused
its discretion in imposing drug testing as a condition of Loy's supervised
release, despite his lack of prior drug use.
__________________________________________________________
8. We address the alcohol and drug components of this condition separately
since the court is required by statute to
impose drug testing as a condition of supervised release, while the
imposition of alcohol testing and treatment is
discretionary. See 18 U.S.C. § 3563(a)(5).
__________________________________________________________

As for the drug treatment component of the condition, the district court
only directed that Loy submit to drug treatment "if
necessary" and "as directed by the probation officer." Whether Loy will
have to enroll in drug treatment program, then,
depends on whether he tests positive for drug use. If the tests reveal no
evidence of drug use, then treatment would not be
"necessary" and as such, could not be required. Consequently, we do not
find that the district court abused its discretion
by imposing provisional drug treatment as a condition of supervised
release.

B. Conditions Requiring Alcohol Testing and Treatment, Prohibiting
Unsupervised Contact with Minors, and
Forbidding Appellant from Possessing Pornography

Loy also argues that the district court abused its discretion by ordering
him to submit to alcohol testing and treatment,
prohibiting him from having unsupervised contact with minors, and
forbidding him from possessing pornography of any
kind. Generally, appellant argues that these conditions are not reasonably
related to any of the statutory goals and involve
a greater deprivation of liberty than required.

The court imposed these special conditions without making any factual
findings relating to them or providing any reasons
in support of them. While the district court has broad discretion in
fashioning conditions of supervised release, the
sentencing judge is required by statute to state the reasons in open court
for imposing a particular sentence. See 18
U.S.C. § 3553(c). By explaining the reasons behind the sentence, the court
ensures that appellate review does not
"flounder in the zone of speculation." United States v. Edgin, 92 F.2d
1044, 1049 (10th Cir.), cert. denied, 519
U.S.1069 (1997)(quotations omitted). Since we do not know why the district
court imposed these conditions, we cannot
properly review Loy's abuse of discretion claim. Accordingly, we remand
the case and direct the district court to state its
reasons for requiring alcohol testing and treatment, prohibiting
unsupervised contact with minors, and forbidding Loy from
possessing pornography of any kind. In remanding, we remind the court that
the conditions of supervised release must be
reasonably related to the goals of deterrence, protection of the public
and rehabilitation of the defendant. 18 U.S.C. §
3583(d)(1) & § 3553(a)(2). Moreover, we caution that any condition
implicating the deprivation of liberty can be no
greater than necessary to meet these goals. 18 U.S.C. § 3583(d)(2).

CONCLUSION

For the reasons stated above, we uphold the district court's denial of
defendant's motion to suppress. Although the search
warrant for Loy's residence lacked probable cause, the officers reasonably
relied on the warrant in good faith. Moreover,
we find that the warrant described the items to be seized with sufficient
particularity. We remand the case to the district
court for further findings relating to the conditions of supervised
release.
