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
...