643 F. App'x 694
10th Cir.2016Background
- FBI Special Agent Melissa Coffey sought a search warrant for a Westminster, CO residence after child‑pornography images were traced to a Yahoo account ("anniegirl") that had exchanged such images in Feb–Mar 2010.
- Yahoo provided login/IP data showing the anniegirl account was logged into on Mar 2 and Mar 11, 2010; Qwest records tied the IPs at those times to a subscriber at the Westminster address, Greg Hopson.
- Law enforcement records showed Hopson was a registered sex offender convicted in 2000 of sexual assault on a child; surveillance observed a man resembling Hopson enter the residence and later an adult woman and young girl leave.
- The affidavit contained an erroneous statement (paragraph 60) implying particular emails were sent from the Westminster IPs and an incomplete sentence (paragraph 78(G)); Yahoo’s full login file showed many other logins from non‑Westminster IPs.
- A magistrate issued the search warrant; the search yielded a computer and CDs with child pornography. Hopson was charged, pled guilty to some counts while preserving the suppression appeal, and appealed the denial of his suppression motion.
Issues
| Issue | Hopson's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether affidavit misstatements/omissions vitiate probable cause | Paragraphs 60 and 78(G) falsely tied specific emails to Westminster IPs; omitted other logins — so affidavit lacked probable cause | Even removing the errors and adding omitted login data, the remaining facts (emails sent; logins from Westminster on same dates; Hopson at address) show a fair probability of finding evidence | Court: Probable cause stands despite errors/omissions; search valid |
| Whether omissions/misstatements were material under Franks and required suppression | Misstatements/omissions were deliberate or reckless and material to probable cause | Misstatements/omissions are immaterial because corrected affidavit still supports probable cause | Court: Not material; Franks relief not warranted |
| Whether district court erred by denying a Franks hearing | Hopson sought an evidentiary Franks hearing | Government argued hearing unnecessary because Hopson failed to make substantial showing that corrected affidavit would lack probable cause | Court: Denial proper; Hopson did not make the substantial showing required for a hearing |
| Whether Hopson’s prior child‑sex conviction may be used to support probable cause | Prior conviction is marginal/irrelevant to child pornography probable cause (relying on Falso/John) | Prior conviction is properly considered with other evidence to bolster probable cause | Court: Prior conviction may be considered in the totality of circumstances and here did not make the affidavit invalid |
Key Cases Cited
- Franks v. Delaware, 438 U.S. 154 (a warrant must be voided and evidence excluded if affiant knowingly or recklessly included material falsehoods)
- United States v. Soderstrand, 412 F.3d 1146 (10th Cir.) (probable cause test: totality of circumstances; "fair probability")
- United States v. Mullikin, 758 F.3d 1209 (10th Cir.) (standard of review for suppression denials)
- United States v. Vosburgh, 602 F.3d 512 (3d Cir.) (discussing proxy use and IP‑address masking)
- United States v. Artez, 389 F.3d 1106 (10th Cir.) (prior convictions may contribute to probable cause when combined with other factors)
- United States v. Falso, 544 F.3d 110 (2d Cir.) (prior child‑molestation conviction alone is weak support for child‑pornography probable cause)
- Virgin Islands v. John, 654 F.3d 412 (3d Cir.) (prior sexual assault did not alone supply probable cause for child pornography)