United States of America v. David M. Gilliam

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0696n.06
No. 11-5483
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID M. GILLIAM,
Defendant-Appellant.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF KENTUCKY
BEFORE: SILER and KETHLEDGE, Circuit Judges; MURPHY, District Judge.*
PER CURIAM. David M. Gilliam appeals the district court’s order denying his motion to
suppress. We affirm the order for reasons stated herein.
On March 19, 2009, law enforcement officers executed a search warrant at David Gilliam’s
home and discovered evidence that he had produced child pornography. Gilliam was charged with
two counts of producing child pornography, in violation of 18 U.S.C. § 2251(a), and one count of
possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). After the district court
denied Gilliam’s motion to suppress the evidence seized during the search of his home, he
conditionally pleaded guilty to two counts of producing child pornography. The district court
sentenced him to two concurrent prison terms of 240 months.
The Honorable Stephen J. Murphy III, United States District Judge for the Eastern District*
of Michigan, sitting by designation.

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On appeal, Gilliam argues that the search warrant was invalid because (1) the supporting
affidavit lacked probable cause, and (2) the good-faith exception to the exclusionary rule should not
apply. We review the district court’s factual findings for clear error and its legal conclusions de
novo. United States v. McCraney, 674 F.3d 614, 616 (6th Cir. 2012). “The Fourth Amendment
mandates that a search warrant may only be issued upon a showing of probable cause.” United
States v. Thomas, 605 F.3d 300, 307 (6th Cir. 2010). “Probable cause exists ‘when there is a fair
probability . . . that contraband or evidence of a crime will be found in a particular place.’” Id.
(internal quotation marks omitted) (quoting United States v. Helton, 314 F.3d 812, 819 (6th Cir.
2003)). When reviewing the sufficiency of a search warrant affidavit, we “consider whether the
totality of the circumstances supports a finding of probable cause, rather than engaging in line-by-
line scrutiny.” United States v. Woosley, 361 F.3d 924, 926 (6th Cir. 2004).
Here, the affidavit supporting the search warrant stated that the affiant had received
information from Trooper Josh Brashears, who was working on a complaint involving sexual activity
between Gilliam and four minors. Brashears’s report stated that Gilliam had photographed and taken
videos of sexual acts between himself and the four minors. Brashears had taken statements from the
minors, and one of them, who was named in the affidavit, reported having seen the images on a
computer in Gilliam’s bedroom. The affidavit further stated that the affiant had conducted an
investigation and located Gilliam’s residence, and a specific description of the residence was
included in the affidavit. The items sought included photographs, videos, computers, and other
digital media that could store images of child pornography.
We agree with the district court that the affidavit established probable cause. First, it
provided a connection between Gilliam and the residence being searched. Second, since it
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No. 11-5483
United States v. Gilliam
incorporated the testimony of an informant who “witnessed the illegal activity on the premises
searched and was known to the officer writing the affidavit,” it set forth a sufficient basis for
concluding that the named minor’s accusations against Gilliam were reliable. United States v. Dyer,
580 F.3d 386, 392 (6th Cir. 2009). Third, given the nature of the allegations against Gilliam and
Brashear’s statement that he “was working on” an investigation of Gilliam, the affidavit was not
based on stale information. See United States v. Lewis, 605 F.3d 395, 402 (6th Cir. 2010) (noting
that the staleness inquiry that controls in most offenses is not applicable in child pornography crimes
because of the persistence of such images when stored on a computer). Under the totality of the
circumstances, the judge who issued the search warrant had a substantial basis for finding that the
affidavit established probable cause to believe that child pornography would be found in Gilliam’s
residence. See Woosley, 361 F.3d at 926.
Moreover, even if the search warrant were deficient, the evidence obtained during the search
would be admissible under the good-faith exception to the exclusionary rule. Despite Gilliam’s
argument to the contrary, the affidavit was not so lacking in indicia of probable cause that belief in
its existence was objectively unreasonable. See Thomas, 605 F.3d at 311.
Accordingly, we AFFIRM the district court’s order denying Gilliam’s motion to suppress.
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