UNITED STATES of America, Plaintiff-Appellee v. William J. KLEINKAUF, Defendant-Appellant.
No. 11-40971
United States Court of Appeals, Fifth Circuit.
July 25, 2012.
482 Fed. Appx. 836
Shirley L. Baccus-Lobel, Law Offices of Shirley Baccus-Lobel, Dallas, TX, for Defendant-Appellant.
Before HIGGINBOTHAM, OWEN, and, SOUTHWICK, Circuit Judges.
PER CURIAM:*
William J. Kleinkauf was charged by indictment with two counts of possession of child pornography and one count of attempted receipt of child pornography. Following the denial of his motion to suppress, he entered a conditional guilty plea to one of the possession counts, and the district court sentenced him to 36 months in prison, to be followed by a five-year term of supervised release. On appeal, Kleinkauf challenges the denial of his motion to suppress, asserting that the affidavit supporting the search warrant was inadequate and failed to establish probable cause.
Following the denial of a suppression motion, we review the district court‘s legal conclusions de novo and its factual findings for clear error. United States v. Chavez, 281 F.3d 479, 483 (5th Cir. 2002). The evidence is viewed in the light most favorable to the prevailing party. Id. We typically apply a two-step process to review the district court‘s denial of a motion to suppress evidence obtained from a search warrant, asking first whether the police objectively relied in good faith on the warrant. United States v. Cherna, 184 F.3d 403, 407 (5th Cir. 1999); see United States v. Leon, 468 U.S. 897, 919-20 (1984). If the good-faith exception to the exclusionary rule applies, the inquiry is ended. Cherna, 184 F.3d at 407. If the exception does not apply, we determine whether there was nevertheless a substantial basis for the magistrate judge to find probable cause. Id. Although Kleinkauf asserts that the good faith exception does not apply because no cases have addressed the same or a similar factual scenario, he has not shown the existence of a novel legal question. See United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992).
Kleinkauf asserts that Special Agent James J. Pokorney misled the magistrate judge issuing the affidavit by including a false statement in the affidavit indicating that the website Kleinkauf had visited before using PayPal to pay for his membership at the child exploitation website “Hardlovers” also contained child por
In addition, Kleinkauf asserts that the face of the affidavit lacked probable cause. An officer is unable to invoke the good faith exception if the affidavit upon which the warrant is founded is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable” and is thus a “bare bones” affidavit. Mays, 466 F.3d at 343. A bare bones affidavit is one that contains wholly conclusional statements about an affiant‘s knowledge and beliefs. United States v. Pope, 467 F.3d 912, 920 (5th Cir. 2006). Kleinkauf asserts that in the absence of evidence showing that he in fact downloaded or viewed child pornography, the affidavit was insufficient. An affidavit supporting a search warrant for child pornography does not need to show “specific, individualized evidence of possession” of child pornography. United States v. Flanders, 468 F.3d 269, 271 n. 3 (5th Cir. 2006) (citing United States v. Froman, 355 F.3d 882, 890-91 (5th Cir. 2004)). Rather, a court considering whether probable cause exists “must make a practical, common-sense decision as to 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.” Froman, 355 F.3d at 889 (internal quotation marks and citation omitted). Although Kleinkauf complains that the name of the “Hardlovers” website does not explicitly connote that its content included child pornography and that the affidavit does not state that the exclusive or predominant purpose of the website was the dissemination of child pornography, the information included in the affidavit was sufficient for the magistrate judge to reasonably infer the nature of the website and the likelihood that child pornography would be found in the places identified by the affidavit. See id. at 890-91; United States v. May, 819 F.2d 531, 535 (5th Cir. 1987) (permitting magistrate judge to make reasonable inferences from an affidavit).
In his final assertion, Kleinkauf maintains that the information in the affidavit was stale because he purchased the “Hardlovers” subscription on October 31, 2006, but Pokorney did not seek a search warrant until August 2007. If the facts