United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-1523

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the 

v. * Western District of Arkansas.

*

Frank Jeremy Wallace, * [PUBLISHED]

*

Appellant. *

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Submitted: September 23, 2008

 Filed: December 23, 2008

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Before BYE, BEAM and COLLOTON, Circuit Judges.

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PER CURIAM.

Frank Wallace appeals from the denial of a motion to suppress, challenging the

validity of a search warrant that led to the physical evidence used against him.

Because the warrant was supported by probable cause, we affirm.

I. BACKGROUND

On November 21, 2006, Detective Bertrand submitted an affidavit in support

of an application for a warrant to search Wallace's residence to a Benton County

Circuit Judge. In that affidavit, Bertrand stated that on October 27, 2006, the

Bentonville Police Department received a complaint from the Arkansas State Police
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Crimes Against Children Division referencing a hotline call it received that day.

Bertrand first summarized the hotline complaint in the affidavit as follows:

[T]he victim . . . (11 years old), was visiting the suspect, Frank Wallace

(35 years old) at his home in Bentonville. During this time Frank asked

. . . to pull her shirt up around her neck so he could take pictures of her.

Allegedly Frank then offered . . . $10.00 to pull her shirt up around her

neck. Additionally Frank asked . . . to pose in "suggestive" ways.

Ultimately . . . posed for the pictures but was fully clothed. The

complaint also alleges that Frank offered . . . something "weird" to drink,

possibly alcohol.

The affidavit went on to state that Bertrand contacted the alleged victim's father and

confirmed that, indeed, the girl recently stayed overnight at Wallace's residence.

Bertrand set up an interview with the girl for October 30, 2006, but she did not show

up. 

On November 20, 2006, the Children's Advocacy Center conducted a

rescheduled interview with the girl. While not present in the interviewing room,

Bertrand listened to and viewed the live interview by way of closed-circuit video. In

the affidavit, Bertrand recited content from the girl's interview, specifically detailing

that while at Wallace's residence, Wallace asked the girl to "take a 'dirty' picture,"

gave the girl a shirt to change into, which the girl described as "low cut and more

revealing," posed the girl and took pictures. When asked by the interviewer what she

meant by a "dirty" picture, the girl responded "like what Playboy people do." The girl

specifically detailed for the interviewer the poses Wallace placed her in for the

photographs. In the interview, the girl further described and drew what she called the

"model area," noting the presence of lighting equipment and blankets as backdrops.

Additionally, the girl offered that she viewed another woman's "private" in a picture

on Wallace's computer as well as the photographs of herself that Wallace had just

taken. Finally, the affidavit includes recitation of a statement from the girl that when
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Wallace told her to leave the room, he said "she had better not tell anyone 'or else.'"

Bertrand stated that his reliability as an affiant was based upon over eight years as a

law enforcement officer and "extensive training in criminal investigation and

specifically Crimes against children." 

At the suppression hearing, the judge discussed other statements Bertrand

acknowledged the girl made during her interview but which Bertrand did not include

in the affidavit. For example, during the interview, the girl had also stated that she

had "almost been kidnapped a bunch of times," she did not feel safe at home, and that

her stepmother (Wallace's ex-wife) had "hog-tied" her own son (the girl's step-brother)

and "put him in the dryer." Bertrand testified that while there was no evidence to

substantiate these allegations, he did not question the girl's credibility about the

incident in question. 

Further addressed at the suppression hearing was the discussion Bertrand had

with the issuing judge at the time Bertrand sought the search warrant. The issuing

judge questioned the time that had elapsed between the receipt of the hotline

complaint, October 27, 2006, and the interview of the girl, November 20, 2006. In

response Bertrand explained that the girl had not shown up for the first interview and

that it had been rescheduled. The issuing judge then made a phone call, which

Bertrand assumed was to another judge, and ultimately signed off on the search

warrant stating that it was her understanding that individuals who take such

photographs generally retain them for a period of time. 

The officers executed the search warrant at Wallace's residence on November

21, 2006. As a result of the evidence obtained from the search, Wallace was indicted

on seven counts of knowingly receiving through interstate commerce a visual

depiction of a minor engaged in sexually explicit conduct. In its ruling denying the
1

The Honorable Jimm Larry Hendren, Chief Judge, United States District Court

for the Western District of Arkansas.

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motion to suppress, the district court1

 determined that the effect of the call made by

the issuing judge to confer about the possible staleness of the evidence given the

elapsed time was neutral. "There is no indication that the telephone call, whether or

not improper, impacted [the judge's] neutrality or capability to determine probable

cause." The district court further held that Bertrand's affidavit established probable

cause to believe Wallace had solicited the girl to pose for a sexually explicit

photograph in violation of Arkansas law and that there was a "fair probability" that

evidence of the crime would be found at Wallace's residence. 

On appeal, Wallace challenges the existence of sufficient probable cause within

the four corners of the affidavit to support the search warrant. 

II. DISCUSSION

"When we review a district court's denial of a motion to suppress, we review

its factual findings for clear error and its legal findings de novo." United States v.

Cartier, 543 F.3d 442, 445-46 (8th Cir. 2008). 

A. Probable Cause

"To be valid under the Fourth Amendment, a search warrant must be supported

by a showing of probable cause." United States v. Summage, 481 F.3d 1075, 1077

(8th Cir. 2007), cert. denied, 128 S. Ct. 875 (2008). "Probable cause exists, if under

the totality of the circumstances, a showing of facts can be made 'sufficient to create

a fair probability that evidence of a crime will be found in the place to be searched.'"

United States v. Underwood, 364 F.3d 956, 963 (8th Cir. 2004) (quoting United States

v. Gabrio, 295 F.3d 880, 883 (8th Cir. 2002)). Judges "may draw reasonable
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inferences from the totality of the circumstances in determining whether probable

cause exists to issue a warrant." United States v. Thompson, 210 F.3d 855, 860 (8th

Cir. 2000). 

Wallace argues that the affidavit in question did not support a determination

regarding the existence of probable cause in this case because (1) a violation of the

relevant Arkansas law requires the exhibition of a female breast and nothing in the

affidavit supports the theory that Wallace attempted to take such a photograph or

otherwise illicit such an exhibition here, and (2) Bertrand purposefully used

conclusory and vague statements in order to get the judge to draw a similar conclusion

as to whether Wallace had engaged in the alleged conduct. 

We reject each assertion in turn. First, only a probability of criminal conduct

need be shown in the affidavit. Summage, 481 F.3d at 1078. The level of specificity

suggested by Wallace, specifically that the girl needed to say precisely that her bare

breast was exposed, is not necessary given the totality of the circumstances in this

case. Without a doubt, the reasonable inferences that can be drawn from the recitation

of this young girl's testimony concerning the nature of the requests and photographs

made by Wallace support a finding of probable cause to believe that Wallace's actions

constituted criminal conduct. Offering an eleven-year-old girl money to lift up her

shirt so one could take a "dirty" picture of her, "like what Playboy people do," and

subsequently taking a photograph of that same girl in a "revealing" loose shirt could

lead a prudent person to believe that criminal conduct was underway and that there

would be a fair probability that evidence of a crime would be found in the place to be

searched. 

Further, Bertrand's affidavit contains neither conclusory nor vague statements.

It merely recites the statements made by the girl during the interview. A conclusory

statement would leave one wondering, for example, the source of

information–statements like "Wallace took the girl to his room and asked her to take
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a dirty picture," or "I have received reliable information from a credible person and

believe that Wallace solicited this girl to pose for a sexually explicit photograph."

Rather, throughout Bertrand's affidavit, he includes statements such as "she said" and

"she stated" and "she indicated," at all times referencing the statements made by the

girl during her interview. This affidavit was not "a mere ratification of the bare

conclusions of others." Illinois v. Gates, 462 U.S. 213, 239 (1983). 

B. Omitted Statements

Wallace also argues that Bertrand intentionally omitted information from his

affidavit that deprived the judge of key information necessary to determine probable

cause–namely additional comments made by the young girl during her interview

regarding alleged kidnapping attempts and physical abuse by her stepmother towards

her own son. Wallace claims that these omitted statements would have been critical

to the issuing judge in assessing the credibility of the eleven-year-old girl whose

statements formed the basis of the affidavit. We reject Wallace's argument.

A search warrant may be invalidated because of omitted facts [in a

supporting affidavit] if (1) the police omitted facts with the intent to

make, or in reckless disregard of whether they thereby made, the

affidavit misleading, and (2) the affidavit, if supplemented by the

omitted information would not have been sufficient to support a finding

of probable cause. 

United States v. Hart, 544 F.3d 911, 914 (8th Cir. 2008) (internal quotations omitted).

There is no evidence that Bertrand omitted these statements from his affidavit

with the intent to mislead the tribunal or in reckless disregard of the truth. Indeed, the

evidence demonstrates that the girl's statements did not raise any issues of credibility

with Bertrand regarding the claims she made against Wallace on the Arkansas State

Police Child Abuse Hotline and during the subsequent police interview. 
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And, these unrelated statements, even if included in the affidavit, would not

have been fatal to its sufficiency. Bertrand observed the girl in person, had the

opportunity to evaluate her credibility while she was interviewed by trained forensic

examiners, and compared her interview to the information contained in the hotline

report. Further, during the interview, the girl was quite detailed in her description of

what transpired with Wallace during the events in question as well as the physical

environment she was in at that time. Not only is more weight given to information

where officers meet face-to-face with the informant and judge her to be credible,

United States v. Robertson, 39 F.3d 891, 893 (8th Cir. 1994), but law enforcement

officers are entitled to rely on information supplied by the victim of a crime, absent

some indication the information is not reasonably trustworthy or reliable. United

States v. McKinney, 328 F.3d 993, 994 (8th Cir. 2003). Comments about alleged

kidnappings and abuse, while distracting, unrelated and even possibly untrue, do not

detract from the girl's credibility regarding the crime at issue here.

III. CONCLUSION

For the reasons stated herein, we affirm.

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