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United States v. Brackett

United States Court of Appeals, Eighth Circuit

January 20, 2017

United States of America Plaintiff-Appellee
Christopher D. Brackett Defendant-Appellant

          Submitted: May 19, 2016

         Appeal from United States District Court for the District of Nebraska - Omaha

          Before WOLLMAN, LOKEN, and BENTON, Circuit Judges.

          WOLLMAN, Circuit Judge.

         A federal grand jury returned a superseding indictment charging Christopher D. Brackett with transporting, producing, and attempting to produce child pornography and with possessing one or more computer files and other matter containing child pornography, all after having been previously convicted of a state-law offense involving the sexual abuse of a minor. 18 U.S.C. §§ 2252A(a)(1) & (b), 2251(a), 2252(a)(4)(B). The district court[1] denied Brackett's motion to suppress evidence seized from his residence pursuant to a search warrant, as well as his later motion for an evidentiary hearing to challenge allegedly false statements included in the search-warrant affidavit. A jury convicted Brackett of the charged offenses, and the district court sentenced him to 360 months of imprisonment and 240 months of supervised release. Brackett appeals, arguing that the court erred in denying his motion to suppress and his motion for an evidentiary hearing. We affirm.

         On September 17, 2013, Detective Roy Howell of the Bellevue, Nebraska, Police Department applied for a warrant to search Brackett's residence. The warrant application included a seven-page affidavit in which Howell set forth the following facts. Earlier that day, Howell, a member of the Cyber Crimes Task Force, had spoken with Investigator Michael Gunias of the Cuyahoga County, Ohio, prosecutor's office. Gunias told Howell that R.H., a sixteen-year-old girl who lived in Ohio, had reported that Christopher Allen Brackett, a dark-haired white male standing 5'11" to 6' tall and weighing 150 to 185 pounds, had twice traveled to Ohio from his home in Nebraska to meet her; that she and Brackett had engaged in sexual intercourse at a hotel on both occasions; and that Brackett had taken nude photographs of her with his cell phone.

         R.H. and Brackett had begun communicating in May 2013 while playing an online video game, had eventually exchanged cell phone numbers, and had then begun communicating through text messages and calls on their respective cell phones. Brackett told R.H. that his name was Christopher Allen Brackett; that he lived in Omaha, Nebraska; that he was thirty-six years old; that he owned a truck and a Jeep; and that he had a younger brother. In late June 2013, Brackett drove to Ohio to meet R.H. in person. Brackett arrived to pick R.H. up in a black Jeep SUV with Nebraska license plates and drove her to a local hotel, where he had rented a room. The two stayed at the hotel for one night and engaged in sexual intercourse.

         R.H. attempted to end her relationship with Brackett in July 2013, but changed her mind after Brackett threatened and pleaded with her. Fearful of Brackett's reaction if she refused, R.H. agreed to another visit from Brackett. In August 2013, Brackett again drove from Nebraska to Ohio to meet R.H., this time driving a yellow Chevy Cavalier with tinted windows and racing stripes. Brackett drove R.H. to the same hotel, where Brackett had reserved a room for three nights. Brackett and R.H. stayed at the hotel together for two nights and again engaged in sexual intercourse. Brackett used his cell phone to take nude photographs of R.H. After two days at the hotel, Brackett drove R.H. back to her parents' house. Sometime later, Brackett told R.H. that he had transferred the photographs from his cell phone to a flash drive.

         R.H. again attempted to end her relationship with Brackett. In response, Brackett threatened to erase her parents' social security numbers, to have warrants issued for her parents' arrest, and to send nude photographs of her to her parents and her high school. Eventually, Brackett posted a series of nine advertisements on Craigslist in the Ohio area where R.H. lived. Each of these advertisements implied that R.H. was available for sexual activity and included her name, cell phone number, address, and photograph. R.H. received several calls and texts on her cell phone in response to these advertisements.

         Gunias obtained a photograph of Brackett from the Nebraska Sex Offender Registry, and R.H. confirmed that the Christopher Brackett in the photograph was the individual who was the subject of her report. Brackett sent multiple text messages to R.H.'s phone after R.H. had surrendered it to Gunias. Gunias informed Howell of this activity and provided him with Brackett's cell phone number.

          Detective Howell then took steps to corroborate the information he had obtained from Guinas. Howell first searched Brackett's name in the Nebraska Criminal Justice Information System, which revealed that Brackett had previously used the "Christopher Allen Brackett" alias he had provided to R.H. Howell also identified a Bellevue, Nebraska, address from Brackett's state driver's license and determined that Brackett's cell phone number was registered to an individual at that address and that a black 2002 Jeep Grand Cherokee was registered to Brackett at that address. Howell learned that Brackett was required to register as a sex offender because of a 2002 Iowa conviction for possessing a videotape that he made of a 15-year-old girl performing a sex act on him. Howell also discovered that Brackett had been convicted in February 2012 for failing to register as a sex offender in Nebraska, but that he now listed the Bellevue address as his current residence in the Nebraska Sex Offender Registry. Howell confirmed that Brackett had a younger brother, and he also learned that a different female victim had reported that Brackett had posted false Craigslist advertisements in her name that were similar to those Brackett had made in R.H.'s name.

         Detective Howell included the affidavit in his application for a warrant to search Brackett's residence and vehicles for "any type of digital media, " including computers, cell phones, and USB and external storage devices, that could contain "[i]mages of the child pornography of the victim who is 16 years old." The affidavit set forth in detail Howell's training and experience in child-pornography investigations, and then provided comprehensive background information on the use of computers and mobile devices like cell phones to produce child pornography, and the use of removable or online storage devices and services to possess child pornography. It twice stated Howell's belief that the facts set forth in the affidavit established probable cause to believe that a search of Brackett's residence for digital media would result in "evidence showing violation(s) of Nebraska State Statute[] 28-813.01 Sexually Explicit Conduct."

         Based on Howell's September 17 affidavit, a Nebraska state judge issued a search warrant, which Howell and other Bellevue police officers executed later that evening. The officers seized from Brackett's residence his cell phone, laptop computer, and desktop computer. A forensic examination of these devices uncovered sexually explicit images of R.H. on the laptop and desktop computers; the cell phone had been "wiped" and returned to factory settings. When Brackett was arrested by Bellevue police officers on October 7, 2013, he was in possession of a different cell phone, which Howell also seized and later examined. That examination led to the recovery of the text messages between Brackett and R.H., as well as additional sexually explicit images of R.H.

         The matter was eventually referred to federal authorities, and Brackett was indicted by a federal grand jury on the three offenses set forth above. Brackett filed a motion to suppress the evidence seized during the search of his residence, arguing that the affidavit in support of the warrant was insufficient to establish probable cause to believe that there would be illegal contraband discovered at his residence. Following a hearing, the magistrate judge recommended that the motion be denied because under applicable federal constitutional standards the "affidavit contained probable cause that images of child pornography of R.H. on digital media storage devices would be found at" Brackett's residence. The magistrate judge further reasoned that even if the affidavit was insufficient, the officers' reliance on the search warrant was objectively reasonable such that the Leon good-faith ...

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