United States District Court, W.D. Virginia, Harrisonburg Division
December 15, 2016
LAMARCUS THOMAS, Defendant.
Michael F. Urbanski, United States District Judge
Lamarcus Thomas ("Thomas") moves to suppress
evidence obtained from the search of an LG cell phone found
on his person at the time of his arrest. ECF No. 28. The
court held an evidentiary hearing on August 17, 2016, during
which the court heard the testimony of Detective Charles
Coleman ("Detective Coleman"), an officer with the
Winchester, Virginia Police Department (the "WPD"),
who swore and submitted an Affidavit for Search Warrant
("affidavit"), ECF No. 39-1, in support of the
search warrant at issue.
result of the images and videos found on Thomas' LG cell
phone and interviews conducted thereafter, the United States
charged Thomas as the sole defendant in an indictment
alleging six counts of using a minor to engage in sexually
explicit conduct for the purpose of creating child
pornography. ECF No. 1. Thomas argues that the affidavit
submitted by Detective Coleman to the state magistrate to
obtain a search warrant for Thomas' LG cell phone
contained insufficient facts, rendering the warrant invalid.
The government counters that the LG cell phone warrant is
facially valid as to each of the offenses listed in the
warrant-aggravated sexual battery, production of child
pornography, and possession of child pornography-and that
Detective Coleman possessed a good faith belief as to the
warrant's validity, satisfying the good faith exception
articulated in United States v. Leon. 468 U.S. 897,
923 (1984). Alternatively, the government argues that even if
Detective Coleman's affidavit was too thin to support
probable cause as to the crimes of possession and production
of child pornography, it was plainly sufficient as to the
aggravated sexual battery charge, rendering suppression
inappropriate under Leon. Finally, the government
argues that the evidence of child pornography was in plain
view during the search for evidence of aggravated sexual
court finds that the warrant at issue is facially invalid as
the supporting affidavit is deficient in two respects. First,
while the affidavit contains facts supporting a finding of
probable cause as to the aggravated sexual battery charge, no
such facts exist as to the possession or production of child
pornography charges. Under controlling Fourth Circuit
precedent, evidence of sexual assault, standing alone, is
insufficient to justify a search warrant for child
pornography. United States v. Doyle, 650 F.3d 460,
472 (4th Cir. 2011).
even as to the adequately supported charge of aggravated
sexual battery, the affidavit contains insufficient facts
linking it to Thomas' LG cell phone. The only reference
to the LG cell phone in Detective Coleman's affidavit is
the fact that it was found on Thomas' person at the time
of his arrest on January 5, 2015. Because the affidavit
provides no nexus whatsoever between Thomas' LG cell
phone and the aggravated sexual battery offense listed in the
warrant, the magistrate had no facts sufficient to establish
probable cause to search the LG cell phone.
the court concludes that the Leon good faith
exception applies in this case. At the time he submitted the
affidavit, Detective Coleman knew that the LG cell phone
played a role in the aggravated sexual battery offense listed
in his affidavit. During his investigation, Detective Coleman
learned from the victims' mother that Thomas had called
her several times in an attempt to set up another rendezvous
with her children and left her multiple voicemail messages.
Although Detective Coleman's affidavit itself provides no
link between the use of the LG cell phone and the crime, it
is uncontroverted that Detective Coleman knew that Thomas
used a phone in furtherance of his criminal conduct.
Detective Coleman reasonably could infer that the LG cell
phone seized at Thomas' arrest was the phone that Thomas
used to call the victims' mother just a few months
earlier. Thus, it is clear that Detective Coleman
'"harbored an objectively reasonable belief in the
existence' of this factual predicate, " United
States v. McKenzie-Gude. 671 F.3d 452, 458-59 (4th Cir.
2011) (quoting Leon, 468 U.S. at 926), linking
Thomas' phone to the aggravated sexual battery. It cannot
be said here that Detective Coleman relied on "an
affidavit so lacking in indicia of probable cause as to
render official belief in its existence entirely
unreasonable." Leon, 468 U.S. at 923. As was
the case in McKenzie-Gude, "Leon
presents no barrier to holding that the experienced officer
in this case, who swore out the affidavit and executed the
search, acted with the requisite objective reasonableness
when relying on uncontroverted facts known to [him] but
inadvertently not presented to the magistrate."
McKenzie-Gude, 671 F.3d at 460.
the court will DENY Thomas' motion to suppress, ECF No.
January 13, 2015, Detective Coleman submitted an affidavit
for a search warrant of an LG cell phone sei2ed during
Thomas' arrest. The warrant indicated the search related
to the following offenses: (1) possession of child
pornography, (2) production of child pornography, and (3)
aggravated sexual battery. In describing the "place,
person, or thing to be searched, " the warrant
application stated, "A cell phone black/silver in color,
with 'LG' printed in silver on the front,
'LG' printed in dark gray on the back, in a purple
and black case belonging to LaMarcus Thomas. Phone is in
possession of the Winchester Police Department." In the
portion of the affidavit describing the "things or
persons to be searched, " the warrant application
Any and all incoming and outgoing calls, gps locations,
photos, text messages, voicemails, media, websites, instant
messages, address books, media card, Sim card, contacts,
contact numbers, social media websites to include but not
limited to Facebook, Twitter, MySpace, Snap Chat, Vine, etc.,
media cloud, any stored electronic data that may be stored
inside a smart phone that would be related to this crime
and/or crime scene.
narrative portion of the affidavit, Detective Coleman
submitted the following:
01-05-15 Det. Coleman obtained two arrest warrants on
LaMarcus Thomas for aggravated sexual battery. Det. Coleman
located and arrested Thomas in the 500 block.of North Loudon
Street on the same date. During the arrest Det. Coleman
removed a LG cell phone that Thomas advised was his personal
cell phone; Det. Coleman is investigating a case were two
children were allegedly molested by LaMarcus Thomas. During
an interview with Det. Coleman LaMarcus Thomas corroborated
both juvenile's statements against him. Det. Coleman has
received many hours of training to investigate child sexual
abuse cases and has learned through training and experience
that it is common for offenders to keep contact items from
victims such as follows; pictures of victims, text messages,
phone calls, Voice mails and/or child pornography on their
cell phone/storing devices. Det. Coleman had reason to
believe Thomas may also have these types of items on his cell
phone/media cloud. Det. Coleman is requesting a search
warrant for the cell phone taken from Thomas's person at
the time of arrest. Det. Coleman and the Winchester Police
Department have maintained possession of this cell in the
evidence room per WPD general orders since the time of
arrest. Det. Coleman.
January 13, 2015, the state magistrate issued the search
warrant for the LG phone seized from Thomas during his arrest
(hereinafter the "LG warrant"). Detective Coleman
did not examine the LG cell phone himself, but turned it over
to the Virginia State Police crime lab for forensic analysis.
The Virginia State Police provided a report indicating that
images and videos of child pornography were found on the S.D.
memory card taken from the LG cell phone. Detective Coleman
was unable to specify the procedure employed by the Virginia
State Police to search the LG cell phone other than to state
that while the investigators were unable to access the
password protected phone itself, they were able to remove and
search the LG cell phone's S.D. card. After the forensic
report issued, agents of the Federal Bureau of Investigation
("FBI") interviewed Thomas on April 10, 2015, and
the federal indictment issued on January 13, 2016.
Coleman has had a long career as a police officer and
significant experience investigating cases of child battery
and sex crimes with the WPD. Detective Coleman has taken
multiple classes discussing child neglect, child abuse, and
child sexual assault. Detective Coleman testified that he
understands that persons who engage in sexual crimes related
to children often engage in crimes involving child
pornography. Detective Coleman explained that child molesters
frequently keep images containing child pornography on
electronic devices such as computers, cell phones, and other
forms of media storage.
Coleman has received substantial training in drafting search
warrants, both at the police academy and through the WPD.
Detective Coleman testified that it is WPD policy to provide
no more probable cause information than necessary to obtain a
warrant because of media access to warrants.
Coleman explained that he became involved in the
investigation of Thomas in November 2014 after the WPD
received an anonymous tip that Thomas had abused a child
(hereinafter referred to as "MV4"). After learning
of the alleged abuse, Detective Coleman contacted MV4's
mother. The mother advised Detective Coleman that MV4 and a
sibling (hereinafter referred to as "MV3") had
spent the night with Thomas. Thereafter, Thomas repeatedly
called her to arrange additional sleepovers.
Coleman arranged for the Child Advocacy Center to interview
MV3 and MV4 regarding their interactions with Thomas.
Detective Coleman observed the interviews from another room.
Detective Coleman testified that the victims stated that they
had been sexually assaulted by Thomas during an overnight
visit at a hotel. The interviews also revealed that Thomas
communicated with the victims' mother by phone calls,
often leaving voicemail messages.
contacting the hotel, Detective Coleman learned that Thomas
stayed there on September 16, 2014 and October 11, 2014. The
government introduced hotel receipts for those nights bearing
Thomas' signature. ECF No. 39-6, at 2-3. In particular,
the hotel records confirmed that the October 11, 2014 receipt
indicated "1 2, " meaning one adult and two
children. Id. at 3.
he confirmed that Thomas rented rooms at the hotel, Detective
Coleman contacted Thomas via the phone number given to him by
the victims' mother and arranged to interview Thomas at
the WPD. ECF No. 35, at 2. On December 18, 2014, Detective
Coleman interviewed Thomas. During that interview, Thomas
admitted sexually assaulting both victims. Id. at
January 5, 2015, at the instruction of state prosecutors,
Detective Coleman obtained two arrest warrants against Thomas
for aggravated sexual battery. ECF No. 35, at 3; ECF No.
39-2. Though the arrest warrant application reflects an
offense date of October 11, 2014-the date the hotel receipt
indicated Thomas rented a hotel room accompanied by two
children-Detective Coleman testified that he later learned
that different children had accompanied Thomas to the hotel
on October 11, 2014. Detective Coleman later discovered that
MV3 and MV4 accompanied Thomas to the hotel on September 16,
2014, the date on which the hotel records indicated Thomas
rented a room, but made no mention of the fact that he was
accompanied by children.
January 5, 2015, Detective Coleman arrested Thomas. While
arresting Thomas, Detective Coleman found the LG cell phone
located in Thomas' pocket. On January 6, 2015, Detective
Coleman obtained and executed search warrants for two of
Thomas' recent residences. Detective Coleman testified
that he seized a laptop, a tablet, and an additional cell
phone at one residence. Detective Coleman testified that this
phone was an older model, found in a bag with miscellaneous
items. After executing the residential search warrants,
Detective Coleman consulted with an Assistant
Commonwealth's Attorney about obtaining a search warrant
for the LG cell phone seized during Thomas' arrest. On
January 13, 2015, Detective Coleman submitted the affidavit
to search the LG cell phone.
his testimony at the suppression hearing, Detective Coleman
acknowledged that the affidavit in support of the LG warrant
did not contain the date of the alleged offense or the ages
of the victims, but stated that this information was
contained in the earlier arrest warrants which he referenced
in the LG cell phone warrant affidavit. Likewise, Detective
Coleman confirmed that the only information in the affidavit
about the LG cell phone was that the phone was recovered from
Thomas' person at the time of his arrest.
Coleman also acknowledged that at the time he submitted the
affidavit, he had no information that Thomas had used his LG
cell phone to take pictures or videos of the minor victims.
The reference in his affidavit to having "reason to
believe Thomas may have these types of items on his cell
phone/media cloud" resulted from his training and
experience in investigating child sex crimes, rather than
anything specific about Thomas.
receiving authorization to search the LG cell phone,
Detective Coleman sent it to the Virginia State Police for
examination. As noted above, Detective Coleman testified that
the Virginia State Police's forensic examination of the
S.D. card contained in the LG cell phone revealed
pornographic images of children other than MV3 and MV4.
Detective Coleman testified that the images of the children
on the S.D. card were produced by Thomas on October 11, 2014.
Fourth Amendment generally requires police to secure a
warrant before conducting a search." United States
v. Banks. 482 F.3d 733, 738 (4th Cir. 2007) (quoting
Maryland v. Dyson, 527 U.S. 465, 466 (1999)).
Warrants must be supported by probable cause, which
"'exists where the known facts and circumstances are
sufficient to warrant a man of reasonable prudence in the
belief that contraband or evidence of a crime will be
found' in the place to be searched." United
States v. Richardson, 607 F.3d 357, 369 (4th Cir. 2010)
(quoting Ornelas v. United States. 517 U.S. 690, 696
(1996)). Evidence seized pursuant to an invalid warrant is
subject to suppression under the exclusionary rule, absent
operation of the good faith exception described in
Leon. See United States v. Andrews, 577
F.3d 231, 235 (4th Cir. 2009). Thomas challenges both the
facial validity of the search warrant and the applicability
of the good faith exception.
cause exists where there is a "fair probability that
contraband or evidence of a crime will be found in a
particular place." Illinois v. Gates, 462 U.S.
213, 238 (1983). The magistrate's findings are entitled
to "great deference, " United States v.
Blackwood, 913 F.2d 139, 142 (4th Cir. 1990), and the
court limits its inquiry to whether the warrant contained a
"substantial basis for determining the existence of
probable cause." Gates. 462 U.S. at 239.
affidavit submitted by Detective Coleman includes the
following relevant facts: (1) on January 5, 2015, Detective
Coleman arrested Thomas pursuant to arrest warrants for
aggravated sexual battery; (2) during the course of the
arrest, Detective Coleman seized an LG cell phone that Thomas
indicated was his personal cell phone; (3) prior to the
arrest, Detective Coleman was investigating whether Thomas
had sexually assaulted two children and Thomas had
corroborated statements made by the alleged victims; and (4)
that Detective Coleman received training indicating that
offenders in child sexual abuse Cases tend to keep evidence
of various sexual offenses on their cell phones.
reasons, these few facts fail to support a finding of
probable cause. First, there are no facts supporting a
finding of probable cause as to the child pornography
offenses. The affidavit contains no facts supporting the
conclusion that Thomas engaged in crimes involving child
pornography, much less why the LG cell phone was likely to
reveal evidence related to such crimes. Second, while the
affidavit contains sufficient facts supporting the aggravated
sexual battery charge, it contains no facts linking that
crime to Thomas' LG cell phone. In particular, the
affidavit does not share with the magistrate Detective
Coleman's knowledge gleaned from his investigation that
Thomas used a telephone to perpetrate the aggravated sexual
battery offenses. Rather than articulating any nexus between
the LG cell phone and the crimes at issue, the affidavit
explains generally that it is common for sex offenders to
have incriminating evidence on their cell phones. Of course,
Detective Coleman knew facts linking Thomas' use of a
phone to the aggravated sexual battery offenses-namely,
Thomas' communications with the victims' mother-but
he neglected to put them in the affidavit.
face of the affidavit simply provided the magistrate with no
information linking the LG cell phone and the crimes listed
in the warrant. Thus, there was no "substantial basis
for determining the existence of probable cause."
Gates, 462 U.S. at 239. Accordingly, the court finds
the LG warrant facially invalid.
the good faith exception to the warrant requirement, evidence
obtained from an invalidated search warrant will be
suppressed only if 'the officers were dishonest or
reckless in preparing their affidavit or could not have
harbored an objectively reasonable belief in the existence of
probable cause."' United States v. Lalor,
996 F.2d 1578, 1583 (4th Cir. 1993) (quoting Leon,
468 U.S. at 926). The good faith exception is rooted in the
underlying purpose of the exclusionary rule, which is to
deter police misconduct. Andrews. 577 F.3d at
235-36; see also United States v. Bynum, 293 F.3d
192, 195 (4th Cir. 2002) ("[A] court should not suppress
the fruits of a search conducted under the authority of a
warrant ... unless 'a reasonably well trained officer
would have known that the search was illegal despite the
magistrate's authorization."'). As the Fourth
Circuit has recognized, the deterrence objective of the
exclusionary rule "is not achieved through the
suppression of evidence obtained by an officer acting with
objective good faith within the scope of a search warrant
issued by a magistrate." Andrews. 577 F.3d at
235 (quoting United States v. Perez. 393 F.3d 457,
461 (4th Cir. 2004), and Leon, 468 U.S. at 920) (internal
quotation marks omitted). "[I]t is the magistrate's
responsibility to determine whether probable causes exists,
and officers cannot be expected to second-guess that
determination in close cases." United States v.
Mowatt. 513 F.3d 395, 404 (4th Cir. 2008), abrogated
on other grounds by Kentucky v. King, 563 U.S.
452 (2011). Accordingly, "under Leon's good
faith exception, evidence obtained pursuant to a search
warrant issued by a neutral magistrate does not need to be
excluded if the officer's reliance on the warrant was
'objectively reasonable."' Perez, 393
F.3d at 461 (citing Leon. 468 U.S. at 922).
cases, "a warrant issued by a magistrate . . . suffices
to establish that a law enforcement officer has acted in good
faith in conducting the search." Id. at 461.
However, courts recognize four circumstances in which an
officer's reliance on a warrant is not "objectively
• First, where the magistrate or judge in issuing a
warrant was misled by information in an affidavit that the
affiant knew was false or would have known was false except
for his reckless disregard of the truth;
• Second, where the magistrate acted as a rubber stamp
for the officers and so wholly abandoned his detached and
neutral judicial role;
• Third, where a supporting affidavit is so lacking in
indicia of probable cause as to render official belief in its
existence entirely unreasonable; and
• Fourth, where a warrant [is] so facially
deficient-i.e., in failing to particularize the place to be
searched or the things to be seized-that the executing
officers cannot reasonably presume it to be valid.
United States v. Williams, 548 F.3d 311, 317-18 (4th
Or. 2008) (internal citations, quotation marks, and brackets
omitted). "In any of these four circumstances . . . the
Leon good faith exception does not apply."
Perez. 393 F.3d at 461.
motion to suppress, Thomas focuses on the third circumstance,
arguing that the Leon good-faith exception ought not
apply because Detective Coleman's affidavit is bare bones
and devoid of indicia that could give rise to probable cause.
See United States v. Wellman. 663 F.3d 224, 229 (4th
Cir. 2011) (explaining that the argument that a search
warrant contains grossly insufficient information invokes the
third circumstance in which Leon is inapplicable).
the third Leon exception, a warrant affidavit must
be so lacking in "indicia of probable cause" that
no reasonable officer could believe probable cause existed to
justify a search. This standard demands even less from the
government than the "substantial basis threshold"
required to prove that probable cause existed in the first
place. Bynum. 293 F.3d at 195; see also
Williams. 548 F.3d at 318 n.6 (distinguishing the
"substantial basis" and "indicia of probable
cause" standards). Moreover, the good faith analysis is
objective, and must be "confined to the objectively
ascertainable question whether a reasonably well trained
officer would have known that the search was illegal in light
of all the circumstances." Herring v. United
States. 555 U.S. 135, 145 (2009) (internal citation and
quotation marks omitted). To determine "objective
reasonableness, " a court looks to the information
included in the warrant affidavit and any
"uncontroverted facts known to the officers but
inadvertently not disclosed to the magistrate."
McKenzie-Gude, 671 F.3d at 459; United States v.
Brown. 481 F.App'x 853, 855 (4th Cir. 2012)
("We may consider information conveyed to the magistrate
but not contained in the affidavit as well as uncontroverted
facts known to the officer but inadvertently not presented to
outcome in this case hinges on the interplay of the Fourth
Circuit's opinions in McKenzie-Gude and
Doyle. McKenzie-Gude instructs courts
undertaking a Leon analysis to "look outside
the four corners of a deficient affidavit" and to
consider "uncontroverted facts known to the officers but
inadvertently not disclosed to the magistrate." 671 F.3d
McKenzie-Gude. a residential search led to the
seizure of a number of guns and explosive devices from the
defendant's bedroom. The affidavit included information
showing the defendant had engaged in criminal activity, but
failed to provide any information linking the defendant to
the residence that officers searched. Id., at 456-58.
However, the affiants knew that McKenzie-Gude lived at the
residence. Id. Police reports and a letter submitted
by the defendant's co-resident confirmed the
affiants' knowledge as to the defendant's home.
Id. In addressing the question whether a court may
consider information known to the officers, but inadvertently
excluded from the affidavit, the Fourth Circuit stated:
Leon instructs that the "good-faith inquiry is
confined to the objectively ascertainable question whether a
reasonably well trained officer would have known that the
search was illegal" in light of "all of the
circumstances." 468 U.S. at 22 n.23 [ ] (emphasis
added): accord Herring[ ], 555 U.S. 135, 145[ ];
United States v. DeQuasie, 373 F.3d 509, 520 (4th
Cir. 2004). For this reason, we have consistendy rejected the
notion that reviewing courts may not look outside the four
corners of a deficient affidavit when determining, in light
of all the circumstances, whether an officer's reliance
on the issuing warrant was objectively reasonable. See,
e.g., [ ]Perez, 393 F.3d [at] 462,
United States v. Legg, 18 F.3d 240, 243-44 (4th Cir.
Refusing to consider such information risks the anomalous
result of suppressing evidence "obtained pursuant to a
warrant supported by the affidavit of an officer, who, in
fact, possesses probable cause, but inadvertendy omits some
information from his affidavit." Bynum. 293
F.3d at 109.
Id. at 459-60. McKenzie-Gude explains that
a court undertaking a Leon analysis is precluded
from "inquiring into the subjective beliefs of law
enforcement officers, " but is allowed to consider the
"uncontroverted facts known to the officers."
Id. at 460. The Fourth Circuit concluded that the
officers acted with the "requisite objective
reasonableness" in that case, despite their inadvertent
failure to present uncontroverted facts to the magistrate.
Id. at 460.
Doyle, the Fourth Circuit ordered the suppression of
evidence resulting from a search warrant issued without
proper factual foundation. 650 F.3d at 476. The Fourth
Circuit described the warrant application in Doyle
Authorization was sought to search Doyle's house for
"any and all materials, books, magazines, pictures, or
videos that are of sexual nature involving any minor
child" as well as "any communication system that
could be used to facilitate a sexual offense against a child,
(computer)." In the section stating the "material
facts constituting probable cause that the search should be
made, " the affidavit stated: "three minor children
have come forward and stated that Doyle has sexually
assaulted them at the Doyle residence. One victims [sic]
disclosed to an Uncle that Doyle had shown the victim
pictures of nude children." The affidavit indicated that
the affiant learned this information through an informant
whose credibility was determined from "detailed Victim
statements of the assault and of the Doyle residence, where
victims describe the assailants [sic] bedroom and vehicle he
drives and description of the home. Which has all been
verified by Sheriffs [sic] Dept."
Id. at 464. The opinion focused on two major
deficiencies in the affidavit, both of which rendered the
officer's reliance on the warrant unreasonable. The
Fourth Circuit first addressed the issue of probable cause as
to support the existence of a crime, noting the
"remarkably scant evidence in the affidavit ... to
support a belief that Doyle in fact possessed child
pornography." Id. at 472. While the affidavit
in Doyle was submitted to authorize a search for
evidence of the crime of possession of child pornography, the
facts contained in the affidavit did not rise to the level of
probable cause that a child pornography offense had been
committed. The closest it came was the statement that one of
the victims "disclosed to an Uncle that Doyle had shown
die victim pictures of nude children." Id. at
472. The Fourth Circuit found this to be insufficient.
Without anything more than a description of the photographs
as depicting "nude children, " there were arguably
insufficient indicia of probable cause to justify reasonable
reliance on a warrant authorizing a search for child
pornography. Insofar as possessing nude pictures of children
is not per se illegal, reasonable officers should at least
obtain a description of the photographs before relying on
them to justify entry into a residence.
Id. at 473-74. In short, while the affidavit in
Doyle would have been sufficient to support a
warrant concerning sexual assault, the Fourth Circuit held
that it was insufficient to establish probable cause to
search for evidence as to the separate crime of possession of
child pornography. It is worth emphasizing that the search
warrant in Doyle, unlike the warrant in the present
case, only sought evidence related to the offense of
possession of child pornography.
second concern addressed by the court in Doyle
stemmed from the absence of any suggestion in the affidavit
as to when Doyle may have possessed the alleged child
pornography. The court recognized that though
"substantial amounts of time can elapse before probable
cause to search for child pornography becomes 'stale,
'" the affidavit's complete absence of
information as to when the alleged child pornography may have
been possessed rendered it "completely devoid of indicia
that the probable cause was not stale." Id. at
475. The Doyle court concluded that "[h]ere,
nothing indicated when and if child pornography existed in
Doyle's home. We conclude that an objectively reasonable
officer would not rely on a warrant application so devoid of
necessary information." IcL at 476.
case is far closer to the circumstances in
McKenzie-Gude than those present in Doyle.
First, unlike in Doyle, the search warrant in this
case sought evidence related to the crime of aggravated
sexual battery, along with the child pornography offenses.
Here, the affidavit contained ample evidence of probable
cause as to the aggravated sexual battery charge. Not only
did the affidavit refer back to the recently obtained arrest
warrants for these offenses, it stated that Thomas, in a
post-arrest interview, "corroborated both juvenile's
statements against him." ECF No. 39-1, at 6. Thus, the
threshold failure of the affidavit in Doyle, the
lack of evidence to support a finding of probable cause as to
the only crime referenced in the warrant-possession of child
pornography-is not present here. While the affidavit in
Doyle failed to establish probable cause that any
crime had been committed, the affidavit in this case plainly
is sufficient as to the crime of aggravated sexual
Detective Coleman's affidavit is sufficient to support a
finding of probable cause as to the aggravated sexual battery
charge, it makes no mention of Thomas' LG cell phone,
other than to say that it was removed from him at the time of
his arrest. In other words, the affidavit provides no link
between Thomas' LG cell phone and the aggravated sexual
battery charge. The next question, therefore, is whether the
holding in McKenzie-Gude provides a legal basis
sufficient to cover this omission.
allows courts to consider information outside the four
corners of the affidavit where the affiant inadvertently
omits information from an affidavit. 671 F.3d at 459-60. At
the suppression hearing, Detective Coleman made clear that he
knew at the time he applied for the search warrant that
Thomas communicated with the victims' mother by phone
calls to arrange another meeting with the victims. To be
sure, Detective Coleman's subjective belief as to whether
the affidavit contained probable cause is irrelevant.
Leon, 468 U.S. at 922 n.23; United States v.
Hodson, 543 F.3d 286, 292-93 (6th Or. 2008) (explaining
that the Leon analysis is conducted independently of
the specific beliefs of the officer, but with the
"faceless, nameless, reasonably well-trained officer in
the field"). Rather, the inquiry is objective and
focuses on the facts a "reasonably well-trained officer
would have known" in considering the legality of the
warrant. McKenzie-Gude, 671 F.3d at 459 (citing
Leon, 468 U.S. at 922 n.23).
Leon, the Supreme Court held that a court should not
suppress the fruits of a search conducted pursuant to a
"subsequently invalidated" warrant unless "a
reasonably well trained officer would have known that the
search was illegal despite the magistrate's
authorization." Leon, 468 U.S. at 922 n.23.
Thomas argues that the warrant was invalid because it failed
to link him and his alleged criminal activity to the LG cell
phone to be searched. Leon requires the court to
assess whether Detective Coleman "harbored an
objectively reasonable belief in the existence" of this
factual predicate. Id. at 926.
states that officers cannot be found to have acted with
"objective reasonableness" and suppression remains
the appropriate remedy when they rely on "an affidavit
so lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable."
Id. at 923. The government contends that Detective
Coleman acted with objective reasonableness by relying on the
affidavit and "additional evidence" known to him.
The government maintains that this "additional
evidence"-the fact that Thomas telephoned the
victims' mother to set up another encounter-conclusively
establishes the objectively reasonable belief in the
sufficiency of the warrant.
court agrees. Leon instructs that the
"good-faith inquiry is confined to the objectively
ascertainable question whether a reasonably well trained
officer would have known that the search was illegal" in
light of "all of the circumstances." Id.
at 922 n.23; accord Herring v. United States, 555
U.S. 135, 145 (2009). For this reason, a reviewing court may
"look outside the four corners of a deficient affidavit
when determining, in light of all the circumstances,
whether an officer's reliance on the issuing warrant was
objectively reasonable." McKenzie-Gude, 671
F.3d at 459. Because Detective Coleman's knowledge that
Thomas had phoned the victims' mother to set up a new
encounter supplied the missing link between the LG cell phone
and the crime of aggravated sexual battery, his reliance on
the issuing warrant was objectively reasonable.
argues that the search warrant must fail because it does not
list the age of the minor victims or the dates of
the alleged sexual assaults, again citing Doyle. But
the issue of staleness that concerned the Doyle
court is not present here. In Doyle, the uncle first
reported the sodomy of his step-nephew to the police in
August 2003. The victim children were interviewed later that
month, and a state search warrant was issued and executed in
January, 2004. The indictment was not forthcoming for more
than three years, issued as it was on March 6, 2007. The
Doyle court was justifiably concerned that there
were no facts stated in the warrant as to when Doyle
possessed the nude pictures of children, noting that
"[a] valid search warrant may issue only upon
allegations of facts so closely related to the time of the
issue of the warrant as to justify a finding of probable
cause at that time." Doyle. 650 F.3d
at 474 (emphasis added) (quoting United States v.
McCall. 740 F.2d 1331, 1335-36 (4th Cir. 1984)). The
Doyle court concluded "that even if the
affidavit established probable cause, it was completely
devoid of indicia that the probable cause was not
stale." Id. at 475. The complete lack of
information as to when the events supposedly creating
probable cause to search took place caused the Doyle
court to conclude that the officers could not have reasonably
relied on the resulting search warrant.
this case is different. While Detective Coleman did not list
the dates of the alleged sexual assaults in his affidavit,
the offense dates were noted on the arrest warrants issued by
another magistrate in Winchester eight days earlier. More
importantiy, at the time he applied for the LG cell phone
search warrant, Detective Coleman had an objective reason to
believe that Thomas' phone calls to the victims'
mother took place some time around October 2014. Detective
Coleman knew this because his investigation revealed that
Thomas visited the hotel with two minors on October 11, 2014,
the date he used as the date of offense in the arrest
warrants. Unlike in Doyle, where no officer
had any idea when Doyle may have possessed the alleged nude
photographs, Detective Coleman knew within a reasonably
narrow window when the aggravated sexual battery took place
and the phone calls were made. It was reasonable for
Detective Coleman to infer that the phone seized from Thomas
at his arrest on January 5, 2015 had been used by him just a
few months earlier to call the victims' mother. See
Anderson, 851 F.2d at 729 ("[T]he nexus between
the place to be searched and the items to be seized may be
established by the nature of the item and the normal
inferences of where one would likely keep such
evidence."). As such, the staleness concern of the
Doyle court is simply not present here.
determined that Detective Coleman's reliance on the
search warrant was objectively reasonable and subject to the
Leon good faith exception, the next question
concerns whether the review of the S.D. card by the Virginia
State Police was authorized by the warrant. Based on the
evidence adduced and the Fourth Circuit's opinion in
United States v. Williams. 592 F.3d 511 (4th Cir.
2010), the search of the LG cell phone's S.D. memory card
Williams, the Fairfax County Police requested a
search warrant for Williams' home during their
investigation of threatening emails sent to the Fairfax
Baptist Temple. Id. at 515. During the course of the
search of Williams' home, the FBI sei2ed computers and
electronic media and later searched their contents, finding
child pornography. Id. at 515-16. Williams sought
suppression of the child pornography, arguing that the
warrant, authorizing a search for evidence relating to other
crimes involving threats of bodily harm and harassment by
computer, could not reach evidence of child pornography.
Fourth Amendment guarantees "[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures" and provides
that "no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be
seized." At its core, the Fourth Amendment protects
against general warrants mat authorize "exploratory
rummaging in a person's belongings ... by requiring a
particular description of the things to be seized."
Andresen v. Maryland, 427 U.S. 463, 480 (1976). The
particularity requirement is fulfilled when the warrant
identifies the items to be seized by their relation to
designated crimes and when the description of the items
leaves nothing to the discretion of the officer executing the
search is conducted pursuant to a warrant, it "is
limited in scope by the terms of the warrant's
authorization." United States v. Phillips, 588
F.3d 218, 223 (4th Or. 2009). But the terms of the warrant
are not to be interpreted in a "hypertechnical"
manner. United States v. Robinson. 275 F.3d 371, 380
(4th Cir. 2001). Rather, they should be read with a
"commonsense and realistic" approach, to avoid
turning a search warrant into a "constitutional strait
jacket." Phillips, 588 F.3d at 223 (quoting
United States v. Ventresca, 380 U.S. 102, 108
(1965), and United States v. Dornhorfer, 859 F.2d
1195, 1198 (4th Cir. 1988)). Here, the warrant authorized the
search of the LG cell phone for phone calls, gps locations,
photos, text messages, voicemails, and other evidence related
to the crime of aggravated sexual battery. Obviously, a
search of the LG cell phone for evidence supporting the
mother's and victims' claims of phone communication
is within the express scope of die warrant's
authorization. The same is true for gps locations, data, and
photos that may corroborate the aggravated sexual battery
fact that evidence of additional crimes-possession and
production of child pornography-was located while searching
the LG cell phone pursuant to the warrant's audiorization
does not render the warrant overbroad or odierwise invalidate
it. "Courts have never held that a search is overbroad
merely because it results in additional criminal
charges." Phillips, 588 F.3d at 224.
Thus, the fact that possession of child pornography is itself
a crime does not render the seizure outside the scope of an
investigation into the computer harassment crime. Whether
seized evidence falls within the scope of a warrant's
authorization must be assessed solely in light of the
relation between the evidence and the terms of the
Williams, 592 F.3d at 520-21. The LG warrant
authorized the police to look for data related to the crime
of aggravated sexual battery. Plainly, the images of child
pornography located on the LG cell phone's S.D. card
"were sufficiently relevant to the crimes designated in
die warrant to justify their seizure under die warrant."
Id. at 521. As the LG warrant, by means of die
Leon good faith exception, authorized the search of
the LG cell phone, die child pornographic images seized fell
within its terms and are not properly the subject of
suppression under the exclusionary rule.
it could be argued that the LG warrant did not authorize the
seizure of the child pornography images and videos found on
the S.D. memory card, the court alternatively concludes that
the seizure of these images and videos falls within the plain
view exception to the warrant requirement. See Coolidge
v. New Hampshire, 403 U.S. 443, 465 (1971).
Under this exception, police may seize evidence in plain view
during a lawful search if (1) the seizing officer is lawfully
present at the place from which the evidence can be plainly
viewed; (2) the seizing officer has a lawful right of access
to the object itself; and (3) the object's incriminating
character is immediately apparent.
Williams, 592 F.3d at 521 (internal quotation and
punctuation omitted) (quoting United States v.
Legg, 18 F.3d 240, 242 (4th Or. 1994)).
case, the warrant authorized a search of Thomas' LG cell
phone for evidence relating to aggravated sexual battery. As
such, "[t]o conduct that search, the warrant impliedly
authorized officers to open each file on the [LG cell
phone's S.D. card] and view its contents, at least
cursorily, to determine whether the file fell within the
scope of the warrant's authorization-Le., whether it
related to the designated Virginia crime."
Williams, 592 F.3d at 521-22. Further,
once it is accepted that a computer search must, by
implication, authorize at least a cursory review of each file
on the computer, then the criteria for applying the
plain-view exception are readily satisfied. First,
an officer who has legal possession of the computer and
electronic media and a legal right to conduct a search of it
is "lawfully present at the place from which the
evidence can be viewed, " thus satisfying the first
element of the plain-view exception. Second, the
officer, who is authorized to search the computer and
electronic media for evidence of a crime and who is therefore
legally authorized to open and view all its files, at least
cursorily, to determine whether any one falls within the
terms of the warrant, has "a lawful right of
access" to all files, albeit only momentarily. And
third, when the officer then comes upon child
pornography, it becomes "immediately apparent" that
its possession by the computer's owner is illegal and
incriminating. And so, in this case, any child pornography
viewed on the computer or electronic media may be seized
under the plain-view exception.
Id. at 522 (internal citations omitted). As the
Affidavit of Allison Boos, Digital Investigative Analyst,
High Technology Investigative Unit, Child Exploitation and
Obscenity Section, Criminal Division, United States
Department of Justice, makes clear, there is no practical
difference between an officer searching computer files and
digital files located on an S.D. memory card. ECF No.
41-l. Thus, although Detective Coleman's
affidavit was insufficient to justify a search of the LG cell
phone for evidence of the possession and production of child
pornography offenses, the Virginia State Police crime lab had
lawful authority under Leon to search Thomas' LG
cell phone and its S.D. memory card for evidence related to
the crime of aggravated sexual battery. In so doing, the
crime lab was lawfully authorized to access, albeit only
momentarily, all of the files on the S.D. card. As in
Williams, once child pornography images are viewed,
their illegal nature becomes immediately apparent. As such,
their seizure was lawful under the plain view exception.
of the exclusionary rule to suppress the evidence found on
Thomas' LG cell phone is not called for in this case.
Detective Coleman applied for a search warrant to examine the
phone's contents, having ample information that Thomas
had committed aggravated sexual battery crimes and used a
phone to perpetrate those crimes. Although his search warrant
affidavit could have provided more information linking
Thomas' crimes to evidence located on his phone, it is
clear that Detective Coleman acted reasonably and with
objective good faith. There is no suggestion of police
misconduct in this case, and Detective Coleman's good
faith reliance on the LG warrant was objectively reasonable
and grounded in the facts of his investigation. For these
reasons, Thomas' motion to suppress, ECF No. 28, will be
appropriate order will be entered.
 The facts recounted below consist
primarily of those described by Detective Coleman during his
testimony at the suppression hearing.
 Copies of the warrant and affidavit
are found at ECF Nos. 28-1 and 39-1.
 The Doyle court was less
concerned with the lack of any information tying the place to
be searched, Doyle's house, to the child pornography
charge. There was no indication from the victim's uncle
as to where the nude pictures were allegedly shown. The court
cited its earlier decision in United States v.
Anderson. 851 F.2d 727, 729 (4th Cir. 1988), for the
proposition that "the nexus between the place to be
searched and the items to be seized may be established by the
nature of the item and the normal inferences of where one
would likely keep such evidence." The court determined
that "in light of Anderson, we cannot conclude
that the district court erred in concluding that, if Doyle
actually possessed child pornography, it was reasonable to
assume that Doyle kept it at his house." Doyle.
650 F.3d at 472.
 It is true that Detective
Coleman's search warrant affidavit also listed the crimes
of possession and production of child pornography. As to
these two crimes, Detective Coleman's affidavit presents
even less factual basis than was present in Doyle.
As to the possession and production of child pornography
charges, Doyle teaches that Detective Coleman could
not have reasonably concluded that the warrant contained
probable cause. At the suppression hearing, Detective Coleman
made clear that his suspicion that Thomas possessed or had
produced child pornography was based on the general notion
that those who engage in sexual assault of minors are likely
to also produce or possess child pornography. The affidavit
contains no facts suggesting that Thomas produced or
possessed child pornography. Detective Coleman also gave no
indication that he knew any facts not included in the
affidavit that would have bolstered a finding of probable
cause that Thomas produced or possessed child pornography.
Regardless of the child pornography offenses, Detective
Coleman's affidavit establishes probable cause as to the
listed crime of aggravated sexual battery.
 It is of no moment that Detective
Coleman ultimately determined that Thomas sexually assaulted
MV3 and MV4 a month earlier, on September 16, 2014, and that
the October 11, 2014 hotel stay was with two other children.
Either way, Doyle's staleness concerns are not
The court exercises its discretion to
admit the Boos affidavit for the limited purpose of providing
background on the nature and organization of digital data
stored on S.D. cards, as to which the court cannot discern
any factual dispute.