United States v. Aleshire, No. 15-1192 (7th Cir. 2015)

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After a sleepover at the Aleshire house, a nine-year-old girl reported to her mother having a “dream” that Aleshire had pulled down her pajama bottoms and photographed her “privates.” Her mother called the police. Aleshire admitted entering the room where the girls (including Aleshire’s daughter) were sleeping, but he denied moving any girl’s clothing. Aleshire stated he was searching for his daughter’s headphones. Executing a state court warrant, police found child pornography, which Aleshire had created. He conditionally pleaded guilty to violating 18 U.S.C. 2251 and appealed denial of his motion to suppress, arguing that probable cause depends on facts rather than dreams. The judge had reasoned that the girl’s use of “dream” may have been a euphemism selected because she was uncomfortable. The Seventh Circuit affirmed. A warrant-authorized search must be sustained unless it is clear that the judge who issued the warrant exceeded constitutional bounds. It was permissible to understand the word “dream” as a euphemism. The affidavit relayed a statement by the girl’s mother that the girl had used the word “dream” to describe real events before; Aleshire’s admission that he had entered the girls’ sleeping area; and that he had been convicted of sex crimes.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 15- 1192 UNITED STATES OF AMERICA, Plaintiff- Appellee, v. ROGER ALESHIRE, Defendant- Appellant. ____________________ Appeal from the United States District Court for the Western District of Wisconsin. No. 14- cr- 79- jdp — James D. Peterson, Judge. ____________________ ARGUED JUNE 2, 2015 — DECIDED JUNE 5, 2015 ____________________ Before POSNER, EASTERBROOK, and SYKES, Circuit Judges. EASTERBROOK, Circuit Judge. After a sleepover at the house of Roger Aleshire, a nine- year- old girl reported to her mother having a “dream” that Aleshire had pulled down her pajama bottoms and photographed her “privates”. Her mother called the police. Aleshire admitted entering the room where the girls (including Aleshire’s daughter) were sleeping, but he denied moving or removing any girl’s cloth- ing; instead, Aleshire maintained, he was searching for his 2 No. 15- 1192 daughter’s headphones. A state judge issued a search war- rant. After executing that warrant the police found child pornography, which Aleshire had created. He pleaded guilty to violating 18 U.S.C. §2251 but, with the consent of the prosecutor and the judge, reserved an opportunity to contest on appeal the district court’s denial of his motion to sup- press the evidence found in the search. See Fed. R. Crim. P. 11(a)(2). His sentence, which he does not contest, is 300 months’ imprisonment. His argument is simple: Probable cause depends on facts rather than dreams. Aleshire insists that because the girl called her memory a “dream” it must have been a dream. If it was a dream, the Fourth Amendment did not allow a search. But the district judge concluded that probable cause exists because the girl’s use of “dream” may have been a eu- phemism selected because she was uncomfortable describ- ing the acts she narrated. Even mature people may use eu- phemisms when describing sexual conduct; what this girl described was outside the range of her experience and may have seemed shameful or scarcely believable. Either could have led to the use of the word “dream” to describe reality. So the district judge thought. Aleshire contends on appeal that the district judge is wrong about this. That’s not the appropriate question, how- ever. This search was authorized by a warrant, and follow- ing a strong suggestion in Illinois v. Gates, 462 U.S. 213, 236 (1983), we held in United States v. McIntire, 516 F.3d 576 (7th Cir. 2008), that a warrant- authorized search must be sus- tained unless it is pellucid that the judge who issued the warrant exceeded constitutional bounds. The precise stand- ard in McIntire is: “A district court’s findings of historical No. 15- 1192 3 fact are reviewed for clear error, whether or not a warrant issued. [Ornelas v. United States, 517 U.S. 690, 699 (1996).] A district judge’s legal conclusions are reviewed without def- erence. And on the mixed question whether the facts add up to ‘probable cause’ under the right legal standard, we give no weight to the district judge’s decision—for the right in- quiry is whether the judge who issued the warrant (rarely the same as the judge who ruled on the motion to suppress) acted on the basis of probable cause. On that issue we must afford ‘great deference’ to the issuing judge’s conclusion.” 516 F.3d at 578 (emphasis in original). Giving the issuing judge the benefit of “great deference,” we conclude that it was permissible to understand the word “dream” as a euphemism. Aleshire has not offered any evi- dence (say, a child psychologist’s affidavit) that might show that nine- year- old girls always use the word “dream” literal- ly. And the girl’s description was not the only fact in the af- fidavit submitted in support of the application for a warrant. The affidavit relayed a statement by the girl’s mother that the girl had used the word “dream” to describe real events before (she said, for example, that she had dreamed crawling into her parents’ bed—which the mother knew that she had done). The affidavit relayed Aleshire’s admission that he had entered the girls’ sleeping area. It added that he had been convicted of sex crimes. Perhaps none of these facts by itself supplied probable cause, but judges do not view facts in iso- lation. As Gates holds, the question is whether the available facts, taken together, justify the proposed intrusion into the suspect’s private life. This was a properly issued warrant. AFFIRMED

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