UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. COREY WAYNE KILGORE, Defendant - Appellant. No. 20-5059 (D.C. No. 4:20-CR -00015-GKF-1) (N.D. OK)

ORDER AND JUDGMENT *

Before MORITZ , SEYMOUR and BRISCOE, Circuit Judges

Corey Wayne Kilgore entered a conditiona l guilty plea for vi olating 18 U.S.C. §§ 2252(a)(2) and (b)(1), Dist ribution and Receipt of a Vi sual Depiction of a Minor Engaged in Sexually Explicit Conduct. He pr eserved this appeal from the district court’s denial of his motion to suppress. We affirm.

Facts On January 7, 2020, the Tulsa Police C yber Crimes Unit obtained a warrant to search Mr. Kilgore’s home in Rogers County. The search warrant was initiated based on a tip from Homeland Security Investigations agents who learned that IP addresses assigned to Mr. Kilgore had been used to upload two images of child pornography

* This order and judgment is not binding precedent, except un der the doctrines of law of the case, res judicata, and collateral estoppe l. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10 th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 21, 2021 Christopher M. Wolpert Clerk of Court2 through a social messaging application called Kik. A criminal history check revealed that Mr. Kilgore was a registered sex offend er, having previously been convicted of a crime involving child pornography, and that he had recently moved to an address in Rogers County, Oklahoma. The affidavit in support of the search warrant offered the foregoing facts as probable cause for issuing the search warrant. The warrant was executed by detectives on January 9, 2020. Detectives knocked on Mr. Kilgore’s door and, when he answer ed, they explained that he was not under

arrest and that he did not have to talk to them. A consensual inte rview followed, during which Mr. Kilgore ultimately admitted that he had used the Kik a pplication to send and receive messages containing im ages of child pornography. 1 Thereafter, a federal grand jury charged Mr. Kilgore w ith distribution and receipt of child pornography. Mr. Kilgore moved to suppress all evidence and st atements obtained through the search of his home, challenging the sufficiency of the affidav it. The district court denied that motion and this appeal followed.

Standard of Review When reviewing a district court’s denial of a motion to suppress, the court’s factual findings are reviewed for clear error a nd the evidence is cons idered in the light most favorable to the government. United States v. Perrine , 518 F.3d 1196, 1201 (10th Cir. 2008). Determinations relating to th e sufficiency of a search warrant are

1 The discussion with the detective at Mr. K ilgore’s home was recorded and submitted as evidence in support of the government’s Resp onse in Opposition to Motion to Suppress. See Government’s Exhibit 1, Rec., vol. I at 42.3 conclusions of law, which are reviewed de novo. Id . Determinations of probable cause by a judge are not reviewed de novo. Su ch decisions are instead entitled to great deference, and the reviewing court “need on ly ask whether, under the totality of the circumstances, the [issuing] judge had a subs tantial basis for dete rmining that probable

cause existed.” Id

. (quoting United States v. Artez , 389 F.3d 1106, 1111 (10th Cir. 2004)). Analysis Mr. Kilgore raises two viable issues on appeal. 2 First, that the affidavit failed to establish probable cause and, second, that th e affidavit failed to establish a sufficient

nexus between the crime and his new address. Mr. Kilgore first argues that the affidav it was insufficient to establish probable cause because it described the images as “child exploitation” instead of “child pornography.” 3 But, as the district court subseque ntly explained, “in [its] experience” the term “known image of child exploitati on,” which was used several times in the

2 Because we conclude it was not error for the di strict court to determine that the affidavit was sufficient to establish pr obable cause, we do not reach the third issue relating to whether, in the absence of probable cause , the good faith exception applies.

3 In support of this argument, Mr. Kilgore relies heavily upon United States v. Edwards , 813 F.3d 953 (10th Cir. 2015). The district court distinguished that case in its order denying the motion to suppress by highlighting the fact that Mr. Edwards was not a convicted sex offender and that he was alle ged to have possessed “child erotica” (which includes a separate category of material that is legal to possess). Rec., vol. I at 57-60. Here, Mr. Kilgore had both a prior convic tion as a sex offender involving child pornography (for which he is still regi stered as a sex offender) and possessed photographs depicting “child exploitation.” When considered toge ther, in this case, these facts established prob able cause for the warrant.4 affidavit for search warrant, referred to th e “government’s files of child porn that are maintained by law-enfo rcement authorities.” Rec., vol. II at 9. The district court simply noted that the term “child exploitation” has a spec ific meaning in the context of child pornography. For the purposes of issuing a search warrant , a finding of probab le cause relates to the degree of suspicion created by the governm ent’s evidence. All that was required was a substantial basis for concluding there was a “fair probability” that evidence of criminal activity would be found in Mr. Kilgore’s home. United States v. Barajas , 710 F.3d 1102, 1108 (10th Cir. 2013) (citation omitted). “Courts should not invalidate a warrant by interpreting the affidavit in a hypertechn ical, rather than a commonsense, manner.”

Id. at 1109 (quoting United States v. Ventresca , 380 U.S. 102, 108 (1965). It was not

clear error for the district court to find that the terms “child exploitation” and “child pornography” are used interchangeably by law enforcement in th e context of child pornography. The affidavit in support of the search warrant contained sufficient information linking Mr. Kilgore to the receipt and distri bution of child pornography. The affidavit specified that IP addresses assigned to Mr. Ki lgore’s had been linked to images of child5 exploitation, identified him as a convic ted sex offender (child pornography), 4 and stated that he was currently registered at a new ad dress in Rogers County which was the subject of the warrant. When considered together these facts established probable cause for the

warrant. With respect to whether the affidavit es tablished a sufficient nexus between the crime and the new address, Mr. Kilgore argue s that the images were uploaded when he lived at a previous address and that there was no nexus between the crime and his current address, which was the target of the warrant. In response to this, the district court cited

United States v. Potts , 586 F.3d 823, 829 (10th Ci r. 2009), and noted there is no requirement that the affidavit contain “direct evidence that contraba nd is in the place to be searched.” Rec., vol. I at 52. The cour t further explained that determining whether a sufficient nexus exists between suspected cr iminal activity and a residence depends on the facts, including the type of crime, the opportunity to conceal evidence, the type of evidence, and reasonable inferences about where a person would likely keep that

evidence. Id . The court found that “the affida vit provided a sufficient nexus between the defendant’s suspected criminal activity and his new address,” noting that “‘images of child pornography are likely to be hoarded by persons interest ed in those materials in the privacy of their homes.’” Id . (quoting United States v. Haymond , 672 F.3d 948, 959

4 Mr. Kilgore contends the affidavit lacked information which would establish whether the prior conviction was stale. But our case law counters the argument that an undated conviction for possession of ch ild pornography cannot be used to support a search warrant for child pornography. See United States v. Perrine , 518 F.3d 1196, 1205-06 (10th Cir. 2008) (citing cases).6 (10th Cir. 2012); see also Perrine , 518 F.3d at 1206. Based on the foregoing, the district court reasonably concluded that because M r. Kilgore possessed child pornography on his personal computer at his previous residence, it was likely he would have maintained that material on his personal comp uter when he moved. T hus, the affidavit provided a sufficient nexus between Mr. Kilgore’s suspecte d criminal activity and his new residence. Viewing the totality of the evidence in a light most favorable to the government, we are not persuaded that the district cour t erred in denying the motion to suppress. Accordingly, we affirm.

Entered for the Court

Stephanie K. Seymour Circuit Judge