United States of America v. Thomas R. Valley

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2870
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
THOMAS R. VALLEY,
Defendant-Appellant.
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:11-cr-00133 — Barbara B. Crabb, Judge.
ARGUED APRIL 29, 2014 — DECIDED JUNE 18, 2014
Before BAUER, FLAUM, and KANNE, Circuit Judges.
PER CURIAM. Thomas Valley, who is 29, posed on the
Internet as a teenage boy and persuaded more than 50 under-
age girls to send him sexually explicit photos of themselves. He
also convinced at least one of those girls to meet in person for
sex. Authorities had learned that Valley was using Internet file-
sharing software to distribute child pornography and discov-
ered the photos received from the girls while executing a state

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2 No. 13-2870
search warrant at his mother’s home, where he lived. Valley
made incriminating statements during the search and, after his
indictment, unsuccessfully moved to suppress those statements
and the fruits of the search. He entered conditional guilty pleas
to two counts of receiving child pornography, 18 U.S.C.
§ 2252(a)(2), reserving his right to challenge on appeal the
adverse rulings on his motions to dismiss. Valley contests those
rulings and also argues that his sentence is unreasonably long.
We reject his contentions and affirm the judgment.
I. BACKGROUND
Valley was charged by indictment with six counts of
producing child pornography, 18 U.S.C. § 2251(a), but by
agreement with the government pleaded guilty to an informa-
tion charging two counts of receiving child pornography,
id. § 2252(a)(2). As part of his plea agreement, Valley stipulated
that his production of child pornography, as alleged in the six
counts of the indictment, would be treated as additional counts
of conviction.
At the start of the case, Valley’s attorney had moved for a
competence evaluation based on the defendant’s history of
mental-health issues. The examining psychologist concluded
that Valley, although a grandiose liar, did not suffer from any
mental illness which jeopardized his view of reality. After the
psychologist issued her report, Valley’s public defender was
permitted to withdraw, and substitute counsel was appointed.
The new lawyer (who continues to represent Valley on appeal)
then filed motions to suppress Valley’s incriminating state-
ments and the fruits of the search.

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No. 13-2870 3
Valley’s motion to suppress the evidence from the search
was decided without an evidentiary hearing. That motion was
based on information in the affidavit accompanying the
application for the search warrant. Valley argued that the
warrant was stale because it was not obtained until eight
months after investigators last downloaded child pornography
from his computer using file-sharing software. The defendant
also argued that the supporting affidavit “lacks particularity”
and is “overbroad” because, as he reads it, the affidavit does
not explain how the agents identified his Internet-protocol
(“IP”) address, name the software used to locate the images on
Valley’s computer, or disclose which image first was traced to
his computer. In the affidavit Special Agent Christopher
DeRemer describes his familiarity with forensic computer
examinations and peer-to-peer file sharing. According to Agent
DeRemer, in September 2010 he and Agent Vern Vandeberg
downloaded files containing child pornography from a
computer utilizing an IP address assigned to Kay Jenson
(Valley’s mother) at her home address in Madison, Wisconsin.
A Dane County judge on May 31, 2011, issued a warrant to
search computers, digital-storage devices, and other related
items found at that address, and the next day state authorities
executed the warrant.
A magistrate judge conducted an evidentiary hearing on
Valley’s motion to suppress his statements. Special Agent Jesse
Crowe, who participated in the search, testified that he and six
other state agents, wearing raid jackets but otherwise in plain
clothes, along with two uniformed Madison police officers,
knocked and announced their presence at a house at the
address given in the warrant but received no response. The

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4 No. 13-2870
door was unlocked, so the agents and officers entered but
found no one on the first floor. In the basement, however, they
found Valley and his pregnant girlfriend, both awake. The
authorities handcuffed Valley for about 10 minutes while they
secured the rest of the house; his girlfriend was not restrained
and was escorted outside. Once the house was cleared, Valley
was uncuffed and allowed to dress.
According to Agent Crowe, Valley was watched the entire
time to assure the safety of the law-enforcement officers, but he
was told he was not under arrest and could leave at any time.
He smoked, drank sodas, and used the bathroom, and he
would have been allowed to eat had he asked. Valley cooper-
ated, Crowe testified, by identifying his computers and
diagraming his file-storage system. And, the agent maintained,
Valley never declined to answer questions, nor did he express
a desire to contact an attorney or leave the premises. At one
point during the search, Valley apparently experienced an
anxiety attack, though Agent Crowe did not recall him
becoming physically ill. At another point, the agents found
what appeared to be an explosive device; the record discloses
little on this subject, but apparently the bomb squad responded
and handled the object without incident.
The search lasted approximately 5½ hours, Agent Crowe
explained, because of the many computers and storage devices.
Valley conversed with the agents and answered questions for
much of that time, though not exclusively about the investiga-
tion. At first Valley led the agents to believe that a nephew
named “Alan” had downloaded the child pornography linked
to his mother’s IP address. After speaking more with Valley
and his girlfriend, however, the agents concluded that “Alan”

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No. 13-2870 5
did not exist and that Valley was the culprit. Agents arrested
him that evening.
Valley was the only other witness at the evidentiary
hearing, and his version of events differed greatly from that of
Agent Crowe. The defendant said that the agents woke him,
guns drawn, and refused his requests to see the search war-
rant, call an attorney, and eat. The agents “constantly” ques-
tioned him “for a good majority of the time,” said Valley, and
would not allow him to sleep, watch television, or listen to
music. He acknowledged being told he could leave but insisted
that this information was conveyed two hours into the search,
and he felt “trapped,” not free to leave. Valley also maintained
that “Alan” is a real person, though not his nephew as he had
told Agent Crowe. He could not give Alan’s last name or age
but did describe him and how they met. Valley suggested that
Alan had used his computer and his mother’s internet
connection to download the child pornography.
After the evidentiary hearing, Valley filed a memorandum
in support of the motion to suppress his statements. He argued
that no reasonable person in his position would have felt free
to leave during the search, and thus, in his view, he was in
custody the entire time and should have received Miranda
warnings. And though he added no details on the subject,
Valley also argued that the bomb squad’s presence was a
“major event” which reinforced his belief that he was not free
to leave.
The magistrate judge, in recommending that Valley’s
motions to suppress be denied, disagreed with the defendant’s
contention that the affidavit in support of the search warrant

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6 No. 13-2870
does not explain why the investigating agents targeted the IP
address he was using. The magistrate judge also explained,
however, that the reason for focusing on the particular IP
address did not matter. An agent had used peer-to-peer
software to troll for known child pornography on systems
offering those files for sharing; the agent downloaded and
reviewed several files to confirm their illicit content before
serving the Internet Service Provider with a subpoena—a
“constitutionally uncontroversial” step, according to the
magistrate judge—to discover the account associated with the
IP address from which the child pornography originated. The
judge also concluded that Valley’s was not an exceptional case
like others where a staleness challenge has been successful.
Last, because of the obvious relevancy of the items listed in the
warrant (“Computers,” “Computer input and output devices,”
including “keyboards, mice, scanners, [and] printers”), the
judge concluded that the warrant was not facially overbroad
or lacking particularity. The judge also noted that the good-
faith exception, see United States v. Leon, 468 U.S. 897 (1984),
likely would apply even if the affidavit supporting the warrant
was problematic.
The magistrate judge, addressing Valley’s incriminating
statements, reasoned that Valley was an “incorrigible fabulist,”
whose testimony was “intentionally self-serving” and not
credible. A reasonable person, the judge explained, would not
have felt restrained or trapped if told he could depart at any
time or refuse to answer questions. The judge noted that,
although Valley had been monitored by agents during the
search, the evidence showed that he was not in custody,
making Miranda warnings unnecessary. Valley did not object

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No. 13-2870 7
to the magistrate judge’s report and recommendation, which
the district judge adopted.
For the counts of conviction, the probation officer calcu-
lated an adjusted offense level of 42, including a 2-level
increase because a computer was used in committing the crime,
U.S.S.G. § 2G2.2(b)(6). The probation officer then added a
multiple-count adjustment of 3 levels because Valley had
stipulated to the production counts charged in the indictment,
see id. § 3D1.4, and subtracted 2 levels for acceptance of
responsibility, see id. § 3E1.1(a). The total offense level of 43,
coupled with Valley’s criminal-history category of I, yielded a
guidelines imprisonment range of 360 months to life, capped
at 40 years by the statutory maximum. See 18 U.S.C.
§ 2252(b)(1); U.S.S.G. § 5G1.1(a). Both sides objected to the
calculations. Valley opposed the increase for using a computer
because, he asserted, that offense characteristic is a feature of
every child-pornography prosecution. The government
insisted that Valley should not receive credit for acceptance of
responsibility and, instead, should receive a 2-level increase for
obstruction of justice based on letters he had sent to his
girlfriend from jail; in those letters he instructs her to delete his
online account profiles and write false confession letters. At
sentencing the district court overruled both objections and
credited Valley 3 levels for acceptance of responsibility,
see U.S.S.G. § 3E1.1, but otherwise adopted the probation
officer’s calculations and sentenced Valley to 20 years on each
count, to run consecutively.

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8 No. 13-2870
II. ANALYSIS
On appeal Valley contests the denial of his two motions to
suppress, first maintaining that he was in custody during the
search and should have been given Miranda warnings. He
points to his testimony—that he was seated on his couch in his
underwear, denied a phone call to a lawyer, watched con-
stantly, and escorted by agents at all times during the
search—as evidence that no reasonable person would have felt
free to leave.
The short answer ought to be that Valley waived any
appellate claim about the adverse rulings on his motions to
suppress because he never objected to the magistrate judge’s
recommendation that the motions be denied. See 28 U.S.C.
§ 636(b)(1); United States v. Hall, 462 F.3d 684, 689 (7th Cir.
2006); United States v. Hernandez-Rivas, 348 F.3d 595, 598 (7th
Cir. 2003). But the government has missed this limitation on
appellate review and does not argue waiver, so we will
address the merits of Valley’s arguments. See United States v.
Prado, 743 F.3d 248, 251 (7th Cir. 2014); United States v. Angle,
234 F.3d 326, 335 n.11 (7th Cir. 2000).
First, Valley’s custody argument has no merit. Whether he
was “in custody” for purposes of Miranda depends on whether
a reasonable person in the same setting would not have felt
free to leave. See Thompson v. Keohane, 516 U.S. 99, 112 (1995);
United States v. Snodgrass, 635 F.3d 324, 327 (7th Cir. 2011). The
district court’s ruling, based on the magistrate judge’s recom-
mendation, turned on the credibility of Valley and Agent
Crowe, the only witnesses at the evidentiary hearing. The
court’s conclusion that Valley was a liar receives great defer-

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No. 13-2870 9
ence. United States v. Terry, 572 F.3d 430, 434–35 (7th Cir. 2009);
United States v. White, 360 F.3d 718, 720 (7th Cir. 2004). Valley
says nothing to challenge the court’s credibility assessment and
instead cites his own testimony as if the judge had believed
him and not Agent Crowe.
And the agent’s testimony amply supports the rejection of
Valley’s attempt to suppress his incriminating statements. The
agents never drew their guns or threatened Valley. He was
told at the outset of the search that he was free to leave, he was
allowed to smoke and drink sodas, and except for a few
minutes while the house was being secured he was permitted
to move about freely without restraints. As the district court
concluded, a reasonable person in these circumstances would
not have felt “trapped” or unable to leave. Compare United
States v. Littledale, 652 F.3d 698, 701–02 (7th Cir. 2011) (conclud-
ing that defendant was not in custody when he confessed at
campus police station because officers did not threaten, touch,
or arrest defendant or unholster guns), Snodgrass, 635 F.3d at
327–28 (concluding that defendant was not in custody in
laundry room of apartment building, since officers told him he
was not under arrest and did not raise their voices, draw
weapons, or restrain or threaten defendant), and United States
v. Salyers, 160 F.3d 1152, 1160 (7th Cir. 1998) (concluding that
defendant who never tried to leave while police questioned
him in his kitchen was not in custody, since officers kept their
weapons holstered, did not restrain or threaten the defendant,
and told him he was not in custody), with United States v.
Slaight, 620 F.3d 816, 818–20 (7th Cir. 2010) (concluding that
defendant was in custody when 9 or 10 police officers arrived
at his home with guns drawn, invited him to police station, and

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10 No. 13-2870
while telling him he was not in custody proceeded to interro-
gate him for an hour in a “minute,” windowless room).
Valley next challenges the denial of his motion to suppress
the fruits of the search. He maintains that the information in
the warrant (that in September 2010 illicit files were down-
loaded from his computer) was stale in May 2011 when the
warrant was issued and executed. He insists that the agents
lacked probable cause because they had no evidence that he
still possessed the images. And because of this purported lack
of probable cause, Valley concludes, the good-faith exception
does not save the warrant.
Valley misunderstands the good-faith exception, which is
not defeated by an absence of probable cause. Rather, a lack of
probable cause would be a reason to apply the good-faith
exception. See United States v. Garcia, 528 F.3d 481, 486 (7th Cir.
2008); United States v. Koerth, 312 F.3d 862, 868 (7th Cir. 2002).
Moreover, Valley does not suggest that the agents were
dishonest or reckless in preparing the affidavit or that the
judge who issued the warrant was partial to or misled by the
agents. See Leon, 468 U.S. at 923, 926; United States v. Woolsey,
535 F.3d 540, 546 (7th Cir. 2008). But no matter because Valley’s
belief about an absence of probable cause is unfounded.
The affidavit for the search warrant recounts that child
pornography was downloaded from an identifiable IP address
on September 30, 2010. On November 23, the Internet Service
Provider was subpoenaed for information identifying the
subscriber for that IP address, which turned out to be Valley’s
mother, Kay Jenson. In March 2011 the investigating agent
conducted a public record search for Jenson, confirming her

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No. 13-2870 11
address, and in May 2011 conducted surveillance on the home.
The affidavit for the warrant acknowledges the delay, noting
that in “almost every instance” when multiple months separate
discovery of child pornography and issuance of a warrant, the
images remain on the computer even if the computer moves or
Internet access ends.
This court has discussed the persistence of digital storage,
noting that in only the “exceptional case” will a delay between
the electronic transfer of an image and a search of the com-
puter “destroy probable cause to believe that a search of the
computer will turn up the evidence sought.” See United States
v. Seiver, 692 F.3d 774, 777 (7th Cir. 2012) (concluding that
seven-month delay between discovery of images and search of
computer was “too short a period” to dissipate probable
cause). We can discern no meaningful difference between the
facts in Seiver and those in this case. The warrant alerted the
issuing judge to the long-lasting imprint of digitally stored
data. The issuing judge’s determination of probable cause is
entitled to great deference. United States v. Prideaux-Wentz, 543
F.3d 954, 958 (7th Cir. 2008); United States v. McIntire, 516 F.3d
576, 578 (7th Cir. 2008). Valley attempts to distinguish Seiver by
arguing that the warrant in this case includes no evidence of
continued possession. But as Seiver makes clear, there need not
be any such evidence; investigators looking for digital evidence
can assume it remains on the hard drive because modern
computers by default retain the data. Seiver, 692 F.3d at 778.
Valley’s argument that the warrant is too vague fares no
better. Probable cause in this context means a “fair probability”
that Valley’s computer would hold child pornography.

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12 No. 13-2870
See Illinois v. Gates, 462 U.S. 213, 238 (1983); Prideaux-Wentz, 543
F.3d at 960–61. According to the affidavit, authorities had
identified multiple images of suspected child pornography, at
least three of which an agent viewed and confirmed to be what
the file names described. The IP address from which those
images were downloaded then was traced to the residence
Valley shared with his mother. This was enough information
for a judge to conclude that child pornography likely existed
on a computer located at that residence. See Prideaux-Wentz,
543 F.3d at 961; United States v. Hall, 142 F.3d 988, 995 (7th Cir.
1998). There is nothing “vague” about the investigative steps
described in the affidavit.
In his final argument Valley decries his sentence as unrea-
sonable because, he says, the district judge failed to “give
adequate deference” to the factors listed in 18 U.S.C. § 3553(a).
As examples, he argues in passing that the judge did not fully
discuss his mental health and, even more briefly, protests that
the judge was silent about his lack of a criminal history.
The district judge’s explanation for the sentence is ade-
quate. The judge acknowledged Valley’s struggles with mental
illness and behavior disorders, yet expressed concern about the
danger he presents to the community. The judge described
Valley as a “conniving, manipulative, self-absorbed young
man,” interested in only his own pursuits, from whom the
community needs protection. The judge bemoaned the
“staggering” number of victims, who were involved “in ways
that were completely inappropriate and illegal,” and of whom
Valley took many of the pictures stored on his computer,
seemingly without remorse. The judge also discussed Valley’s
childhood and limited work history, juxtaposed with the

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No. 13-2870 13
details of his crimes and his “calculated, manipulative[,] and
deceitful” actions.
The judge’s explanation demonstrates meaningful consider-
ation of the relevant factors in § 3553(a), factoring in Valley’s
specific conduct. That is all we require. See United States v.
Paige, 611 F.3d 397, 398 (7th Cir. 2010). The judge did discuss
Valley’s mental-health issues but decided nonetheless that his
repugnant behavior mandated a severe sentence. Nothing
more was required to explain this presumptively reasonable,
within-guidelines sentence. See Rita v. United States, 551 U.S.
338, 356 (2007); United States v. Eads, 729 F.3d 769, 781–82 (7th
Cir. 2013). And the judge did mention Valley’s criminal
history, which includes three convictions for disorderly
conduct, but included it among reasons to impose a high
sentence. We see no issue with Valley’s sentence.
III. CONCLUSION
Valley’s challenges to the denial of his motions to sup-
press are without merit. The district court properly denied his
motions and sentenced him appropriately. Accordingly, we
AFFIRM the judgment of the district court.

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