United States of America v. David J. Brunette

United States Court of Appeals
For the First Circuit
No. 00-2194
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID J. BRUNETTE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
Jeffrey W. Langholtz, by Appointment of the Court, on brief
for appellant.
Margaret D. McGaughey, Assistant United States Attorney, and
Jay P. McCloskey, United States Attorney, on brief for appellee.
July 12, 2001

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COFFIN, Senior Circuit Judge. Defendant conditionally
pleaded guilty to various counts of possessing and transporting
child pornography, reserving his right to challenge the validity
of a search warrant used to seize evidence from his home. He
claims that the warrant application failed to establish probable
cause to search because it did not include copies or
descriptions of the allegedly pornographic images to justify the
search. The district court refused to suppress the evidence
seized pursuant to the warrant, relying on the affidavit of a
U.S. Customs agent who had viewed the images and averred that
"all" appeared to be within the statutory definition of child
pornography, specifically, "photographs of a pre-pubescent boy
lasciviously displaying his genitals." United States v.
Brunette, 76 F. Supp. 2d 30, 37 (D. Me. 1999). Because neither
the magistrate judge nor the district court judge independently
viewed the images -- which were not made part of the record on
appeal -- and because the affidavit did not adequately describe
them, we conclude that the warrant was not supported by probable
cause. We nevertheless affirm under the Leon good faith
exception.
BACKGROUND
On the first of January 1999, 79 allegedly pornographic
images of prepubescent boys were posted on the Internet to the

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site <alt.fan.prettyboy>. A consumer watchdog group alerted the
Internet service provider, Concentric Network Corporation (CNC),
to the posting. An investigator from CNC traced the source of
the posting to the defendant's account, which was opened with
CNC a few months earlier. CNC, in turn, copied 33 of the images
onto a disk, which it forwarded to the U.S. Customs Service.
Agent Richard Jereski, who had some 18 months of
experience investigating child pornography crimes, viewed those
33 images and concluded that they were pornographic. Jereski
applied for a warrant to search defendant's home, but he did not
append any of the allegedly pornographic images to the warrant
application. Nor did his affidavit contain a description of
them; instead, he merely asserted that they met the statutory
definition of child pornography. After the magistrate judge
determined that there was probable cause, the warrant was
issued, the defendant's home was searched, and his computers
were seized. Other allegedly pornographic images of children
were found on those computers.
Defendant was charged with transportation and
possession of child pornography. See 18 U.S.C. § 2255A(a)(1) &
(a)(5)(B). He moved to suppress the images contained on the
computers seized under the warrant, arguing that the warrant was
facially invalid because the affiant's "nondescript legal

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conclusion" was insufficient to support probable cause. He also
argued that the good faith exception to the Fourth Amendment
exclusionary rule, see United States v. Leon, 468 U.S. 897
(1984), did not apply because the affidavit falsely asserted
that "all" of the images were pornographic. At the suppression
hearing, Agent Jereski conceded that some of the images might
not have pictured a lascivious display of boys' genitals, and
thus, not "all" met the statutory definition of child
pornography.
Without viewing the images, the district court ruled
that, although a factual description of the images would have
been desirable, see Brunette, 76 F. Supp. 2d at 40 n.4, the
agent's training and experience qualified him to make the legal
determination that there was probable cause to believe the
images were pornographic, id. at 39 ("[B]ecause the facts
indicate that Jereski was familiar with child pornography
investigations, it is reasonable to draw the logical inference
that Jereski was also familiar with the identification of
pornographic materials."). The court also found that the use of
"all" in Agent Jereski's affidavit was a material misstatement
of fact, but that this overstatement was the result of
"inadvertence and inattention to detail," not a deliberate

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attempt to mislead the magistrate judge. Id. at 41.
Accordingly, the court denied the motion to suppress.
On appeal, defendant presses the same two points:
first, that the affidavit was insufficient to show probable
cause for the search; and second, that the false assertion in
the affidavit makes the good faith exception to the Fourth
Amendment exclusionary rule inapplicable. The government
counters that probable cause supported the warrant despite the
lack of pictures or descriptions, and that even if it did not,
the omissions or inaccuracies did not destroy the officers' good
faith reliance on the defective warrant.
STANDARD OF REVIEW
We review probable cause determinations de novo.
United States v. Vigeant, 176 F.3d 565, 569 (1st Cir. 1999)
(citing Ornelas v. United States, 517 U.S. 690, 699 (1996)).
Our task, like that of the magistrate judge and district court,
"is simply to make a practical, common-sense decision 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." Illinois v. Gates,
462 U.S. 213, 238 (1983). This assessment is no different where
First Amendment concerns may be at issue. See New York v. P.J.
Video, Inc., 475 U.S. 868, 875 (1986) ("[A]n application for a

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1 Although child pornography falls "outside the
protection of the First Amendment," New York v. Ferber, 458 U.S.
747, 763 (1982), the determination of whether an image depicts
child pornography is "a quintessential First Amendment ruling"
because such decisions "define the limits of the largely
unprotected category of child pornography," United States v.
Amirault, 173 F.3d 28, 33 (1st Cir. 1999).
2 In this case, we cannot undertake our own review of the
images because none were included in the record on appeal.
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warrant authorizing the seizure of materials presumptively
protected by the First Amendment should be evaluated under the
same standard of probable cause used to review warrant
applications generally.").1
We are also obligated, where possible,2 to review de
novo the legal determination that a given image depicts a
"lascivious exhibition of the genitals." Amirault, 173 F.3d at
32-33 ("[W]e must review the district court's determination de
novo to ensure that the First Amendment has not been improperly
infringed."); see also United States v. Horn, 187 F.3d 781, 789
(8th Cir. 1999) (applying de novo review); United States v.
Knox, 32 F.3d 733, 744 (3d Cir. 1994) (same); but see United
States v. Boudreau, 250 F.3d 282-83 (5th Cir. 2001) (applying
clear error review).
Our review of Leon determinations is de novo as well.
See United States v. Shea, 211 F.3d 658, 666 (1st Cir. 2000).
The government bears the burden of showing that its officers

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acted with objective good faith. Vigeant, 176 F.3d at 572. To
make this assessment, we evaluate all of the attendant
circumstances at the time of the warrant application and its
execution. United States v. Ricciardelli, 998 F.2d 8, 15-16
(1st Cir. 1993).
DISCUSSION
We first discuss why the government's showing of
probable cause was inadequate, and then explain why suppression
was nevertheless unwarranted.
A. Probable Cause
Our assessment of probable cause focuses on Jereski's
affidavit, which was the only evidence presented to the
magistrate judge in support of the search warrant. Although the
affidavit included sufficient indicia to link the images to
defendant, i.e., that the postings originated from defendant's
CNC Internet access account, it did not specify with any detail
the basis for believing that those images were pornographic.
The evidence on the nature of the images consisted solely of
Jereski's legal conclusion parroting the statutory definition.
See Brunette, 76 F. Supp. 2d at 37 ("[I]t appears that Jereski's
assertion in his warrant affidavit that the images depicted 'a
prepubescent boy lasciviously displaying his genitals,' was an
attempt on his part to mirror the language of 18 U.S.C. §

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3 The statutes that criminalize the possession and
transportation of child pornography each reference the
definitions of § 2256. That provision defines "child
pornography" as a visual image depicting "sexually explicit
conduct," which in turn is defined to include "lascivious
exhibition of the genitals or pubic area of any person." 18
U.S.C. §§ 2256(8), 2256(2)(E).
4 Those six so-called Dost factors are: "(1) whether the
genitals or pubic area are the focal point of the image; (2)
whether the setting of the image is sexually suggestive (i.e.,
a location generally associated with sexual activity); (3)
whether the child is depicted in an unnatural pose or
inappropriate attire considering her age; (4) whether the child
is fully or partially clothed, or nude; (5) whether the image
suggests sexual coyness or willingness to engage in sexual
activity; and (6) whether the image is intended or designed to
elicit a sexual response in the viewer." Amirault, 173 F.3d at
31.
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2256(2)(E) . . . .").3 This bare legal assertion, absent any
descriptive support and without an independent review of the
images, was insufficient to sustain the magistrate judge's
determination of probable cause.
In Amirault, we set forth the legal standards for
evaluating whether a photograph depicts a lascivious exhibition
of genitals and identified six factors to guide the inquiry.
173 F.3d at 31-32 (adopting factors first articulated in United
States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff'd
sub nom., United States v. Wiegand, 812 F.2d 1239, 1244 (9th
Cir. 1987)).4 Although in Amirault we applied those factors in
the context of reviewing a sentencing enhancement, the analysis
here is the same: does a given image fall within the statutory

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definition of child pornography? Only if there is probable
cause to believe so may a search warrant issue. A judge cannot
ordinarily make this determination without either a look at the
allegedly pornographic images, or at least an assessment based
on a detailed, factual description of them. Cf. P.J. Video, 475
U.S. at 874 n.5. Indeed, our de novo standard of review
anticipates that judicial officers at each stage of the process
will consider whether the images at issue are pornographic
within the meaning of the statute.
The district court excused the absence of descriptive
evidence by relying on Agent Jereski's representation that the
images were pornographic, finding that his training and
experience qualified him to determine they met the statutory
definition. But probable cause to issue a warrant must be
assessed by a judicial officer, not an investigating agent. See
Gates, 462 U.S. at 239 ("Sufficient information must be
presented to the magistrate to allow that official to determine
probable cause; his action cannot be a mere ratification of the
bare conclusions of others."); see also Vigeant, 176 F.3d at 571
("[U]nsupported conclusions [of an officer] are not entitled to
any weight in the probable cause determination."). This
judicial determination is particularly important in child

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pornography cases, where the existence of criminal conduct often
depends solely on the nature of the pictures.
As the district court recognized, "the identification
of images that are lascivious will almost always involve, to
some degree, a subjective and conclusory determination on the
part of the viewer." Brunette, 76 F. Supp. 2d at 39. That
inherent subjectivity is precisely why the determination should
be made by a judge, not an agent. The Fourth Amendment requires
no less. See Gates, 462 U.S. at 239 ("An affidavit must provide
the magistrate with a substantial basis for determining the
existence of probable cause, and [a] wholly conclusory statement
. . . fail[s] to meet this requirement."). Moreover, Jereski
had less than two years' experience investigating child
pornography crimes, and in that brief tenure he had testified
only twice before in support of warrant applications, one of
which included copies of the images at issue.
The district court sought support for its reliance on
Jereski's affidavit from United States v. Smith, 795 F.2d 841,
847-48 (9th Cir. 1986). There, the court was "troubled by the
fact that the government did not present and the magistrate did
not see the photos in question before the warrant issued," which
would have been the "ideal course." Id. at 847. Despite its
misgivings, the Ninth Circuit endorsed reliance on the affidavit

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of an experienced postal inspector to support the issuance of a
search warrant. In Smith, however, the agent's bald assertion
that the images met the statutory definition was bolstered by a
much stronger investigation prior to applying for the warrant,
including interviews with the suspect, some of the victims, and
a pediatrician who confirmed that the girls pictured were under
eighteen. Id. at 844, 849. These other indicia of probable
cause, wholly absent here, make Smith readily distinguishable.
In sum, there having been no basis for issuing the
warrant other than conclusory statutory language, the magistrate
judge should have viewed the images and the district court
should not have excused his failure to do so. It was error to
issue the warrant absent an independent review of the images, or
at least some assessment based on a reasonably specific
description. Ordinarily, a magistrate judge must view an image
in order to determine whether it depicts the lascivious
exhibition of a child's genitals.
B. Good Faith
The usual remedy for seizures made without probable
cause is to exclude the evidence wrongfully seized in order to
deter future violations of the Fourth Amendment. See Weeks v.
United States, 232 U.S. 383, 391-93 (1914). This exclusionary
rule does not obtain, however, where an objectively reasonable

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law enforcement officer relied in good faith on a defective
warrant because suppression in that instance would serve no
deterrent purpose. Leon, 468 U.S. at 920-21. Although the
government faces a "high hurdle" to show objective good faith
where critical information known to the officer is omitted from
the warrant application, Ricciardelli, 998 F.2d at 16-17, we
conclude that its burden has been met here.
Relying on the district court's reasoning, the
government argues that the good faith exception applies because
Agent Jereski did not intend to deceive the magistrate judge.
See Brunette, 76 F. Supp. 2d at 41 ("[T]here is no evidence . .
. that Jereski[,] at the time he submitted his warrant affidavit
to the magistrate judge for review, subjectively considered the
possibility that the magistrate judge would be misled . . . .").
Although we focus our inquiry on the objective reasonableness of
Jereski's action instead of his subjective motivation, we reach
the same result.
Among the situations identified by the Leon Court in
which the deterrent effect of suppression supersedes the good
faith exception, two are relevant here: where the affidavit is
"so lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable"; and where a
magistrate judge is "misled by information in an affidavit that

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the affiant knew was false or would have known was false except
for his reckless disregard for the truth." Id. at 923. We
address each of these in turn.
As for the first, although we hold that the omission
of images or a description of them was a serious defect in the
warrant application, the uncertain state of the law at the time
made reliance on the warrant objectively reasonable. In United
States v. Jasorka, 153 F.3d 58, 60-61 (2d Cir. 1998), published
just five months prior to the warrant application in this case,
the Second Circuit refused to suppress evidence seized pursuant
to a search warrant that contained neither photographs nor a
description. The court concluded that the agent's reliance on
the warrant was objectively reasonable because the law at the
time was "unclear whether a judicial officer acting on a warrant
application . . . [,] based on lascivious exhibition of the
genitals, may rely on an agent's assertion." Id. at 61.
Jasorka relied on the Ninth Circuit's Smith decision, which
upheld a search warrant without an independent review by a
magistrate judge. Id. at 60 (citing Smith, 795 F.2d at 848-49).
Although we find Smith inapposite for the reasons stated above,
an objectively reasonable agent could not be faulted for failing
to recognize the nuanced distinction. Moreover, we note that
even Smith did not announce a firm legal rule, but rather a

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preferred ("ideal") procedure. Because the state of the law
remained unclear at the time of the January 1999 warrant
application, we follow Jasorka. Having now resolved this point,
we would, in the future, view quite differently an agent's
choice to withhold photos from a judicial officer.
As for the second exclusion from the good faith
exception, appellant argues that the evidence should have been
suppressed because the magistrate judge was misled by false
information contained in the affidavit, i.e., that "all" of the
images were pornographic. When pressed at the hearing, Jereski
conceded that at least two of the images, those in which the
subject was partially clothed, were not pornographic. Despite
this belated concession, however, we agree with the district
court: the use of "all" was misleading, but this inaccuracy
resulted from nothing more than "inadvertence and inattention to
detail." Brunette, 76 F. Supp. 2d at 41. Nothing in the record
suggests that Jereski's misuse of the word "all" instead of "all
but two" factored into the magistrate judge's decision to issue
the warrant.
CONCLUSION
A court reviewing a warrant application to search for
pornographic materials ordinarily is unable to perform the
evaluation required by the Fourth Amendment if the application

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is based on allegedly pornographic images neither appended to,
nor described in, the supporting affidavit. Ideally, copies of
such images will be included in all search warrant applications
seeking evidence of child pornography crimes. If copies cannot
feasibly be obtained, a detailed description, including the
focal point and setting of the image, and pose and attire of the
subject, will generally suffice to allow a magistrate judge to
make a considered judgment. Because an objectively reasonable
agent would not necessarily have known this in January 1999, the
good faith exception applies, the evidence seized was
admissible, and the conviction is therefore AFFIRMED.

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