Unpublished Disposition, 862 F.2d 875 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 862 F.2d 875 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Darren A. SIMPSON, Defendant-Appellant.

No. 88-3016.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 3, 1988.Decided Nov. 15, 1988.

Before KOZINSKI, NOONAN and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM* 

A jury convicted Simpson of possession of an unregistered firearm in violation of 26 U.S.C. §§ 5845(a) (2) and 5861(d). The firearm was a twelve-gauge shotgun with a fourteen-inch barrel. Simpson argues the shotgun should have been suppressed because it was found in his apartment during the execution of a search warrant which he contends was issued without probable cause. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

FACTS

Simpson's apartment was searched pursuant to a warrant issued to search for evidence of crimes related to sexual abuse of a minor, second degree, in violation of Alaska Statutes 11.41.436 and unlawful exploitation of a minor, Alaska Statutes 11.41.455. The shotgun, which was introduced into evidence at Simpson's trial, was found during the course of the search in a kitchen cabinet underneath the sink in Simpson's apartment. If the search was a legal search, the officer conducting it was properly in Simpson's apartment and the discovery of the shotgun was a legitimate product of the search. Simpson does not argue on appeal that the shotgun was not "in plain view." Neither does he contend in this court, nor did he contend in the district court, that the warrant was overbroad. He challenges the legality of the search on the sole basis that the warrant was issued without probable cause. In support of this argument, Simpson contends there was an insufficient showing of the time when evidence sought by the warrant was allegedly at his apartment, and that no showing was made that the evidence sought was connected with the crimes he was suspected of committing.

The warrant was issued by an Alaska state judge at the conclusion of a hearing at which Officer Reeder, a City of Anchorage police investigator, testified under oath. Officer Reeder testified that he had been in law enforcement for over sixteen years and had special training and work experience in the investigation of sexual assault and sexual abuse involving minors. He had interviewed an eight-year-old female victim, identified by the initials E.W. This victim had stated that Simpson had touched her in the crotch area, rubbed her outer clothing and put his hands inside her pants while she was watching a movie the previous day. The victim stated that Simpson had done this a number of times including an instance during the preceding month when he had pushed her to the ground, rubbed her breast area, and threatened to kill her or one of her family members if she told anyone about it. Officer Reeder had also interviewed E.W.'s brother, whose initials are A.W. This witness told Reeder that he had been in Simpson's apartment and had observed numerous photographs of nude children. The photographs were described by A.W. as depicting young children between the ages of ten and seventeen. A.W. was seven years old. The parents of E.W. and A.W. had told Officer Reeder that E.W. had originally reported Simpson's sexual contacts to the parents of a friend of E.W.'s. The parents also had told Reeder that Simpson always seemed to be playing with children rather than associating with a woman of his own age. Simpson was twenty-seven years old at the time and lived in the apartment by himself. Reeder further stated that, based on his training and experience, he believed Simpson to be a pedophile, one who "obtains sexual gratification through children as an almost exclusive source," and that pedophiles collect sexual material pertaining to children, toys and other items to entice children to participate in sexual activities, and maintain correspondence with other pedophiles.

The application for the warrant was made on July 13, 1987. At that time Simpson was incarcerated in the Cook Inlet Pretrial Facility charged with "DWI", possession of controlled substance, and two counts of second degree sex abuse of a minor. Officer Reeder testified that he had interviewed Simpson. During this interview Reeder had confronted Simpson with the allegations made by E.W. concerning the sexual contact on July 12, 1987 at the movie. Simpson told Officer Reeder that if the contact occurred it probably was an accident and he didn't recall it. Simpson also told Reeder that he had nude photographs of his seventeen-year-old former girlfriend; he contended these were the photographs the children had seen in his apartment.

Officer Reeder's testimony was presented through questioning by a prosecuting attorney. The Alaska state judge who heard the testimony also participated in the questioning. At the end of the proceeding, the judge found that probable cause existed to search Simpson's apartment and issued the search warrant.

ANALYSIS

We review the question whether probable cause existed for the issuance of a search warrant under the standard enunciated by the Court in Illinois v. Gates, 462 U.S. 213 (1983):

" [T]he term 'probable cause,' ... means less than evidence which would justify condemnation.... It imports a seizure made under circumstances which warrant suspicion." [Locke v. United States, 7 Cranch 339, 348 (1813).] ... Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate's decision.

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... The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud [ing,]" [Jones v. United States, 362 U.S. 257, 271 (1960),] that probable cause existed.

Id. at 235, 238-239.

In applying the "substantial basis" standard to a magistrate's determination that probable cause existed for the issuance of a search warrant, we "show great deference to the magistrate's determination," United States v. Estrada, 733 F.2d 683, 684 (9th Cir.), cert. denied, 469 U.S. 850, 861 (1984), and " [w]e may not reverse unless it is clearly erroneous." Id.

Given the deference due the state court judge's determination of probable cause, we cannot say that probable cause was lacking for the issuance of the warrant in this case. The statements of the two children, E.W. and A.W., the corroborative statements of their parents, Simpson's admission that he had nude photographs of his seventeen-year-old former girlfriend, and Officer Reeder's conclusions that persons who engage in the activities attributed to Simpson often have items in their places of residence pertaining to child abuse and unlawful exploitation of minors, amply supports the finding of probable cause for the issuance of the warrant.

Simpson argues that a warrant cannot be issued on the basis of "stale evidence," and that a search of a residence may only be justified when the facts supporting issuance of the warrant demonstrate probable cause to believe that the evidence sought is currently in the place to be searched. In support of this argument, Simpson contends that the only information as to evidence which might be contained within Simpson's apartment came from statements of the seven-year-old boy, A.W. According to Officer Reeder's testimony before the issuing magistrate, A.W. told Reeder that he had seen photographs of nude children in Simpson's apartment, but he did not say when he had seen these photographs. Simpson argues that without a time attributed to A.W.'s observation there was no showing that Simpson currently had evidence of child abuse or sexual exploitation of children in his apartment. We disagree. Simpson's argument focuses only on one aspect of Officer Reeder's testimony.

Reeder also testified that he had interviewed Simpson following Simpson's arrest, and that interview had taken place the day of the application for the warrant. In this interview, Simpson admitted he had nude photographs of his seventeen-year-old former girlfriend, and stated these were the photographs the children had seen in his apartment. This information, coupled with the events of sexual contacts the previous day with E.W. at the movie theater, and with E.W. during the preceding month, together with A.W.'s statements was sufficient to establish a fair probability that the evidence sought was currently at Simpson's apartment.

Simpson's contention that the warrant was issued only on the basis of Officer Reeder's characterization of him as having a pedophile profile, and without testimony linking the evidence sought to the crimes Simpson was suspected of committing, is meritless. As we have stated heretofore, there was ample evidence, in addition to Reeder's pedophile profile testimony, which under the "totality-of-the-circumstances analysis" articulated by the Court in Illinois v. Gates, 462 U.S. at 238, established a substantial basis for the issuing magistrate to find probable cause. Even if we were to consider this a close question, the Supreme Court has stated, " ' [a]lthough in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants,' United States v. Ventresca, 380 U.S. 102, 109 (1965)." Illinois v. Gates, 462 U.S. At 237 n. 10.

AFFIRMED.

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

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