STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1147

State of Minnesota,
Respondent,

vs.

Mark Steven Speltz,
Appellant.

Filed August 1, 2006

Affirmed

Minge, Judge

Houston County District Court

File No. K0-02-203

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Richard Jackson, Jr., Houston County Attorney, 304 South Marshall Street, Caledonia, MN 55921 (for respondent)

Bradford Colbert, William Mitchell College of Law, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Minge, Judge.

U N P U B L I S H E D O P I N I O N

MINGE, Judge

Appellant challenges the district court’s denial of his motion to suppress evidence on the basis that the warrant application contained false statements. Because we conclude that the application, disregarding the false statements, contained probable cause to search appellant’s home, we affirm.

FACTS

On January 2, 2001, Houston, Texas FBI Agent Geoffrey Binney joined an internet “Egroup” called “The Candyman,” while acting in an undercover capacity. The group’s website contained a number of images of child pornography and also allowed members to email images to portions of the group. The group’s website described its purpose: “This group is for People who love kids. You can post any type of messages you like too or any type of pics and vids you like too.”

Yahoo shut down the Egroup on February 6, 2001. Between January 2 and February 6, Binney captured approximately 100 images and videos that had been uploaded to the website, and received approximately 498 emails from the Egroup, many of which contained child pornography. Based on his investigation, Binney created an affidavit for local law enforcement agencies to use in applications for search warrants of computers and other property of members of the group.

In response to a subpoena from Binney, Yahoo provided a list of email addresses of the group’s members. The list contained the email address of appellant Mark Speltz. La Crescent Police Investigator Scott Yeiter used Binney’s form affidavit in a warrant application for the search of appellant’s home. The district court signed a search warrant on March 14, 2002, and the warrant was executed on March 18, 2002. Officers found child pornography on computer disks in appellant’s home. Appellant was charged with six counts of possession of pornographic work involving minors, in violation of Minn. Stat. ง 617.247, subd. 4 (2000).

Appellant challenged the search warrant on the basis that some statements in Binney’s form affidavit were later discovered to be false. Binney’s affidavit states, “Every e-mail sent to the group was distributed to every member automatically. Therefore, when an individual sent an e-mail containing child pornography to the Candyman group, those images were transmitted to every one of the group members.” But Binney testified that he later learned from information provided by Yahoo that this statement was inaccurate. Members who joined the Egroup directly on the website, rather than by sending an email, were given three email options: to receive all emails sent to the group, to receive a digest of emails sent to the site, or not to receive emails at all.

Binney’s affidavit also states that a person had to send an email to the group moderator to join the group. This statement reflects Binney’s initial belief that he had joined the group by sending an email, which would also be consistent with his belief that he was not presented with any email delivery options. But Binney testified that he later learned from information provided by Yahoo that he had joined the group directly on its website, not through email. The statement in the affidavit that members were required to join by sending an email was inaccurate.

The district court denied appellant’s motion to suppress the evidence obtained as a result of the search warrant. The district court found that neither Binney nor FBI Agent Kristin Sheldon, to whom the investigation was turned over in June 2001, deliberately made a false statement or made a statement with reckless disregard for the truth in the affidavit that was part of the search warrant application for appellant’s home. The district court also found that Binney and Sheldon were not aware of the email delivery options until after the search warrant here was executed. The district court finally found that there was sufficient information independent of the false statements in the affidavit to constitute probable cause supporting the issuance of the warrant.

Appellant agreed to proceed pursuant to State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn. 1980), stipulating to facts and waiving a jury trial in order to appeal the pretrial ruling. The state reduced the charges against appellant to three counts of attempted possession of pornographic work involving minors, in violation of Minn. Stat. งง 617.247, subd. 4, 609.17, subd. 1 (2004). The district court found appellant guilty of all three charges, stayed imposition of a sentence, and placed appellant on probation for two and a half years. This appeal follows.

D E C I S I O N

The issue before us is whether the district court erred in denying appellant’s motion to suppress the results of the search on the basis that the warrant depended on false statements. In an appeal from a denial of a pretrial motion to suppress, “we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing--or not suppressing--the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). But we accept the district court’s findings of facts regarding a motion to suppress unless the findings are clearly erroneous. State v. George, 557 N.W.2d 575, 578 (Minn. 1997).

“A search warrant is void, and the fruits of the search must be excluded, if the application includes intentional or reckless misrepresentations of fact material to the findings of probable cause.” State v. Moore, 438 N.W.2d 101, 105 (Minn. 1989) (citing Franks v. Delaware, 438 U.S. 154, 171-72, 98 S. Ct. 2674, 2684-85 (1978)). A material misrepresentation is one that, if set aside, leaves no probable cause to issue the warrant. Id. Innocent or negligent misrepresentations do not require a warrant to be invalidated. Id.

Appellant argues that Binney intentionally or recklessly misrepresented facts when he stated in his affidavit that members had to join the Egroup by sending an email, rather than by joining directly on the website itself. The state responds that Binney’s inability to recall that he actually joined on the group’s website does not indicate recklessness because Binney viewed a large number of websites before he found the Candyman group, and was not aware that the specific fact of whether he joined the group through email or the website itself was important.

Appellant also argues that Binney intentionally or recklessly misrepresented facts when he stated in his affidavit that all members of the group received all emails sent to the group. Because Binney did not remember seeing or selecting any email options, but subsequently received a large number of emails from the group, he assumed that all members of the group received all emails sent to the group.

Appellant contends that Sheldon should have known that there were different email options because of information she learned in an interview with the group’s moderator after he was arrested on the morning of March 18, 2002. This argument is not persuasive because the district court here approved the warrant application four days prior to Sheldon’s interview with the moderator.

Several documents Binney and Sheldon received from Yahoo indicated the possibility of email options, including a description of a member that included the phrase “Email preferences: none,” and the following statement of the group’s membership: “Number of Subs: 3213 Normal (Single: 413 Digest: 60 NoMail: 2740).” Additionally, in January 2002, Sheldon met with Yahoo representatives, one of whom mentioned email delivery options. Sheldon asked whether the Candyman group had such options, and the representative was unsure. The state argues that the references to email options in the documents were ambiguous and that the Yahoo representative did not confirm the existence of email options for this particular group at that time. The state also notes that Binney testified that he asked a Yahoo representative in February 2001 whether the rest of the members were “like me,” meaning whether they had the “same type of membership,” and the representative answered that they were.

Several courts have considered Binney’s affidavit and found the false statements to be reckless or intentional misrepresentations. See United States v. Kunen, 323 F. Supp. 2d 390, 400 (E.D.N.Y. 2004); United States v. Strauser, 247 F. Supp. 2d 1135, 1142 (E.D. Mo. 2003); United States v. Perez, 247 F. Supp. 2d 459, 480 (S.D.N.Y. 2003). Assuming that the misrepresentations regarding the email-distribution options were reckless or intentional, the results of the search are not automatically suppressed. The evidence obtained because of the warrant must only be suppressed if the warrant application does not otherwise contain probable cause to issue the warrant without the improper statements. See Moore, 438 N.W.2d at 105. Probable cause is evaluated based on the totality of the circumstances and is defined as “a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (quotation omitted).

In addition to the false statements, the affidavit here contains a description of the ways computers are typically used to view and distribute images of child pornography. The affidavit quotes the purpose of the Candyman Egroup as stated on its website, and describes the various ways child pornography is available to the group, including the “Files” section of the website, containing child pornography images and videos, and the ability of members to receive emails from the group. The affidavit also states that appellant joined the group on January 8, 2001, and remained a member until the site was shut down on February 6, 2001. All of the foregoing is accurate. We conclude that this information was sufficient to provide probable cause to search appellant’s home.

Appellant cites cases indicating that membership in a group without an actual link to criminal activity is insufficient to provide probable cause. See Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 342 (1979); Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1294-95 (9th Cir. 1999); United States v. Brown, 951 F.2d 999, 1002 (9th Cir. 1991). But because the affidavit here included substantial information in addition to appellant’s mere membership in a group, these cases are not persuasive.

The affidavit shows that appellant was a member of an online group whose purpose was primarily to view and share child pornography, and that through this membership, appellant had access to files on the group’s website and to emails from group members which also contained child pornography. We find that the district court had a substantial basis to conclude that there was probable cause to issue the warrant even after the false statements were excluded from the application. See Wiley, 366 N.W.2d at 268.

In his pro se supplemental brief, appellant makes a number of arguments regarding the recklessness of Binney’s statements. Because we find that the warrant application was supported by probable cause without the statements, we need not reach these arguments.

Affirmed.