NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 13-3840

_______________

UNITED STATES OF AMERICA

v.

VAN N. EPPS,

Appellant

_______________

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-12-cr-00150-001)

District Judge: Honorable Jan E. DuBois

_______________

Argued June 12, 2014

Before: AMBRO and BARRY, Circuit Judges, and RESTANI,1Judge.

(Opinion Filed: June 26, 2014)

Leigh M. Skipper, Chief Federal Defender

Brett G. Sweitzer, Assistant Federal Defender

Susan M. Lin, Assistant Federal Defender [ARGUED]

Federal Community Defender Office for the Eastern District of Pennsylvania

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Attorneys for Appellant

Zane David Memeger, United States Attorney

Robert A. Zauzmer, Assistant United States Attorney

 

1

The Honorable Jane A. Restani, Judge of the United States Court of International Trade, 

sitting by designation.
2

Denise S. Wolf, Assistant United States Attorney

Paul G. Shapiro, Assistant United States Attorney [ARGUED]

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Attorneys for Appellee

_______________

OPINION

_______________

RESTANI, Judge

Appellant Van N. Epps appeals following his conditional guilty plea to various 

child pornography charges. Epps contends that the district court improperly refused to 

suppress evidence seized from his home pursuant to a warrant that he claims failed to 

establish probable cause, in part due to allegedly reckless misrepresentations in the 

warrant affidavit that made Epps’s child pornography activity appear to have occurred 

more recently than it in fact did. For the reasons stated below, we will affirm.2

I.

From May 4, 2009, until May 12, 2010, the Pennsylvania Internet Crimes Against 

Children Task Force (the “Task Force”) received information from the National Center 

for Missing and Exploited Children (the “Center”) that an individual had uploaded a 

series of images and videos of child pornography. These reports from the Center were in 

turn based on Cyber Tipline Reports by internet service providers covering upload 

 

2

The district court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. We 

have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
3

activity that took place from February 19, 2009, until August 31, 2009. After 

investigating the tips, the Task Force provided a summary of its investigation in the form 

of a report to Agent Roman at the Department of Homeland Security. The report 

identified a particular suspect: Epps. Epps was linked to the uploads based on similarities 

between the screen names used to upload the pornographic images and other accounts 

that contained Epps’s name or picture. 

The investigation also revealed that the account used to upload the pornographic 

images was created on a computer at Epps’s parents’ residence, where Epps previously 

resided. Agent Roman discovered that Epps had moved to a new address since the date 

of the uploads. In preparing the affidavit used to seek a search warrant for this new 

residence, Agent Roman apparently relied exclusively on the Task Force’s report without 

ever reading the underlying Cyber Tipline Reports.

A magistrate judge approved the warrant, and in the ensuing search on May 5, 

2011, police discovered various forms of child pornography at Epps’s new residence. 

Epps moved to suppress the evidence seized pursuant to the warrant, claiming that the 

affidavit contained material misstatements because the warrant affidavit incorrectly 

identified the dates of the Cyber Tipline Reports as the upload dates. Additionally, Epps 

claimed there was an insufficient nexus established between his new residence that was 

searched and the location where the earlier child pornography uploads occurred. The 

district court held an evidentiary hearing and concluded that suppression was not 

warranted. Epps conditionally pled guilty, and he timely appealed.
4

II.

When reviewing a magistrate’s probable cause determination, “our role is not to 

make our own assessment as to whether probable cause existed. Rather, we are 

constrained to determine only whether the affidavit provides a sufficient basis for the 

decision the magistrate judge actually made.” United States v. Jones, 994 F.2d 1051, 

1057 (3d Cir. 1993).

Where a defendant raises a challenge under Franks v. Delaware, 438 U.S. 154, 

155–56 (1978), claiming that the warrant affidavit did not establish probable cause due to 

misrepresentations, “the question whether a particular false statement in a warrant 

affidavit was made with reckless disregard for the truth is subject to reversal only upon a 

finding of clear error.” United States v. Brown, 631 F.3d 638, 642 (3d Cir. 2011). 

“Allegations of negligence or innocent mistake are insufficient.” Franks, 438 U.S. at

171. “When faced with an affirmative misrepresentation, the court is required to excise 

the false statement from the affidavit. In contrast, when faced with an omission, the court 

must remove the ‘falsehood created by an omission by supplying the omitted information 

to the original affidavit.’” United States v. Yusuf, 461 F.3d 374, 384 (3d Cir. 2006)

(quoting Sherwood v. Mulvihill, 113 F.3d 396, 400 (3d Cir. 1997)).

III.

Epps first contends that the warrant affidavit was riddled with reckless or 

intentional material misrepresentations because the dates in the warrant correspond to the 

dates on which child pornography uploads were reported to the Task Force by the Center 
5

rather than the dates on which those uploads actually occurred. Epps argues that the 

proper course of action is to excise these dates from the warrant affidavit, leaving the 

warrant affidavit devoid of any reference to the dates of the uploads and therefore 

insufficient to establish probable cause. The government responds that the misstatements 

in the warrant affidavit were based on Agent Roman’s mere negligence in failing to read 

the underlying Cyber Tipline Reports and, in any event, were immaterial to the probable 

cause determination because the evidence that Epps possessed child pornography at his 

home was not stale.

In an evidentiary hearing, Agent Roman testified that he did not look at the 

underlying Cyber Tipline Reports when drafting his warrant affidavit, relying instead on 

the report from the Task Force. Although certainly the better course of action would 

have been for Agent Roman to have reviewed the underlying documents, we cannot say 

that the district court clearly erred in crediting this testimony and finding that Agent 

Roman acted negligently, but not recklessly or intentionally, when inserting the incorrect 

dates into the warrant affidavit. We note that the dates were months, not years, apart, but

because only negligence is involved, we need not reach the question of whether these 

misstatements were material to the finding of probable cause.

IV.

Epps also contends that the warrant affidavit failed to establish a sufficient nexus 
6

between the place of the illegal conduct (Epps’s former residence)3and the place actually 

searched (Epps’s new residence). The government responds that probable cause existed 

to believe that Epps was a collector of child pornography, and consistent with the actions 

of other collectors, it was reasonable to believe that he kept his collection for long periods 

of time in a location close to him, his home. 

“Although every affidavit ideally would contain direct evidence linking the crime 

with the place to be searched, a magistrate may issue a search warrant even without direct 

evidence” that the item sought is in the place to be searched. United States v. Stearn, 597 

F.3d 540, 554 (3d Cir. 2010). “Probable cause can be, and often is, inferred from the 

type of crime, the nature of the items sought, the suspect’s opportunity for concealment 

and normal inferences about where a criminal might hide evidence.” Id. (internal 

quotation marks and brackets omitted). We have recognized previously that collectors of 

child pornography tend to hoard their collections for long periods of time given the 

difficulties in obtaining such illegal content without detection. See United States v. 

Vosburgh, 602 F.3d 512, 528 (3d Cir. 2010).

The evidence here of 234 uploads over a period of months supports the belief that 

Epps fit the collector profile. Although we have required the government to provide 

some evidence that a child pornography collector maintains his collection in his home, as 

 

3

In his reply brief, Epps raises for the first time an argument that the warrant affidavit 

also failed to expressly allege that the illegal uploads were made from a computer in his 

former residence. Because this argument was not raised below or in the opening brief, 

however, it has been waived. See Ethypharm S.A. Fr. v. Abbott Labs., 707 F.3d 223, 231 

n.13 (3d Cir. 2013).
7

opposed to another location, before authorizing a search of a home, see United States v. 

Loy, 191 F.3d 360, 365–67 (3d Cir. 1999), we have never required the government to 

prove that a computer used for uploading child pornography in a former residence was 

actually moved to a new residence before authorizing a search of the new residence. 

Under the totality of the circumstances, the magistrate reasonably could have inferred 

that Epps would take the computer with him or otherwise transfer the digital collection of 

child pornography when he moved to his new residence less than a year prior to the 

search.

V.

For the reasons set forth above, we will affirm.