NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 15a0384n.06

No. 14-3576

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PAUL C. SCHUMACHER,

Defendant-Appellant.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OHIO

BEFORE: DAUGHTREY, GIBBONS, and GRIFFIN, Circuit Judges.

MARTHA CRAIG DAUGHTREY, Circuit Judge. Following his arrest and indictment 

for receipt and possession of child pornography, Paul Schumacher moved to suppress all 

evidence acquired in the search of his residence and computer. He argued that the warrant 

authorizing the search lacked probable cause because the affidavit filed in support of the warrant 

failed to establish the scientific reliability of the investigative software used to support the 

affidavit’s allegations or to sufficiently detail the software’s operations. He also requested a 

hearing on the motion. The district court denied both his request for a hearing and the motion on 

its merits. Schumacher now appeals this denial on the grounds that the district court abused its 

discretion by denying the motion without first providing him the opportunity to examine the 

reliability of the software in a hearing. We find no reversible error and affirm.
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FACTUAL AND PROCEDURAL BACKGROUND

The challenged search warrant was based on an affidavit in which Jeffrey M. Casey, a 

special agent of the Secret Service, asserted that his investigation of the activities of the internet 

account registered to 17 Hop Drive in Lowellville, Ohio, established probable cause to believe

that someone at that address had received, possessed, and/or distributed child pornography over a 

peer-to-peer network. Agent Casey swore that on June 19, 2013, he signed into “automated 

software which operates on the Phex platform” while covertly connected to the internet protocol 

(IP) address in question. The affidavit’s explanation of how this “automated software” operated 

was limited to the following: 

The software automates the process of browsing and downloading files from a single 

source. The downloaded files are shared by a user over the Gnutella network. The 

software searches the Gnutella network for files with hash values of suspected child 

pornography. 

The terms “Gnutella network” and “hash values” were defined in the affidavit, which also 

asserted that an individual using the IP address assigned to the internet account at 17 Hop Drive 

was sharing over 4,000 unique files with hash values corresponding to videos and images of 

child pornography. From these shared files, the automated software used by Agent Casey

downloaded five image files; screen captures of the downloaded files showed images of child 

pornography. A search of various public records revealed that one of the two individuals 

associated with 17 Hop Drive was defendant Paul Schumacher. 

The search warrant application was granted on July 30, 2013. Following the execution of 

the warrant, Schumacher was indicted and arrested on charges of one count of receipt of child 

pornography in violation of 18 U.S.C. § 2252(a)(2) and one count of possessing a computer 

containing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). 
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Schumacher moved to suppress the evidence acquired in the search of his home and 

computer, on the ground that the search warrant affidavit “contain[ed] unreliable information, in 

violation of the Fourth Amendment.” He requested an evidentiary hearing on the motion, which 

was opposed by the government. After finding that Schumacher had both failed to meet the 

preliminary showing requirements for a suppression hearing and failed to show that the search 

warrant affidavit lacked probable cause, the district court denied his motion to suppress. 

Schumacher pleaded guilty to one count of receiving child pornography and was 

sentenced to 97 months imprisonment. As a condition of the plea agreement, Schumacher 

reserved the right to appeal the district court’s denial of his motion to suppress. 

DISCUSSION

We review a district court's decision whether to hold an evidentiary hearing on a motion 

to suppress for an abuse of discretion. Factual findings made in denying an evidentiary hearing 

on a motion to suppress are reviewed for clear error; conclusions of law are reviewed de novo. 

See United States v. Rose, 714 F.3d 362, 369-70 (6th Cir.), cert. denied, 134 S. Ct. 272 (2013). 

Schumacher argues that the district court erred in denying his motion to suppress without 

first holding an evidentiary hearing because, in doing so, it left unresolved a genuine issue of fact 

regarding the existence of probable cause for the search of his property. Specifically, he

contends that the search warrant affidavit lacked probable cause because it failed to establish the 

scientific reliability of the software on which the affidavit’s allegations were based. 

The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, 

supported by Oath or affirmation . . . .” U.S. Const. amend. IV. “A warrant will be upheld if the 

affidavit provides a ‘substantial basis’ for the issuing magistrate to believe [that] ‘there is a fair 

probability that contraband or evidence of a crime will be found in a particular place.’” United 
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States v. Smith, 510 F.3d 641, 652 (6th Cir. 2007) (quoting Illinois v. Gates, 462 U.S. 213, 238 

(1983)). When a defendant alleges that a statement in an affidavit filed in support of issuing a 

warrant is false or that information was omitted from the affidavit, he is entitled to an evidentiary 

hearing if he: (1) makes a substantial preliminary showing that the affiant knowingly, 

intentionally, or with reckless disregard for the truth included the false statement or omitted 

information, and (2) establishes that the false statement or omission is material to a finding of 

probable cause. Franks v. Delaware, 438 U.S. 154, 155-56 (1978); Rose, 714 F.3d at 370. No 

hearing is required if probable cause exists absent the false statement, or if probable cause exists 

despite the inclusion of the omitted statement. United States v. Fowler, 535 F.3d 408, 415 (6th 

Cir. 2008).

The district court did not err in denying Schumacher’s motion to suppress without first 

providing a hearing. Though Schumacher now insists that the search warrant affidavit “lacked 

probable cause due to deliberate and/or reckless omissions and misstatements regarding the 

investigative software,” in the district court he failed to identify any false statements within the 

affidavit or provide any evidence that information material to the existence of probable cause 

was omitted from the affidavit. Schumacher asserts that the veracity of the entire affidavit is in 

doubt because the affidavit “provides no information relative to the accuracy or reliability of the 

government’s method of investigation.” He takes particular offense at the affidavit’s failure to 

describe how the investigative software works, name the software, or “cite actual statistics or a 

single report verifying [its] claims . . . as to the reliability and accuracy” of it. He fails to 

establish, however, any way in which the omission of this information was actually material to a 

finding of probable cause. Inclusion in the affidavit of a more detailed account of how the 

software at issue operated, its name, and statistics or reports verifying its reliability and accuracy 
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would not, in fact, have decreased the probability that a search of Schumacher’s property would 

turn up images of child pornography; such information arguably would have only strengthened 

the affidavit by showing that the software was reliable. See United States v. Chiaradio, 684 F.3d 

265, 279 (1st Cir. 2012).

Furthermore, Schumacher’s argument implies that a warrant affidavit that relies on 

information acquired by software lacks probable cause unless it also establishes the scientific 

reliability of that software. But Schumacher offers no precedent, from this circuit or any other, 

in support of this proposition. Notably, the First Circuit has flatly rejected it. See Chiaradio, 

684 F.3d at 278-79 (upholding denial of motion to suppress that argued for suppression, on the 

ground that the search warrant affidavit was based on “largely untested” software and did not 

sufficiently demonstrate the software’s reliability, because “probable cause does not require 

scientific certainty”). 

Schumacher observes that other district courts have held hearings “to allow presentation 

of evidence and cross-examination of witnesses regarding . . . the reliability of investigative 

software utilized by the government.” But the lower court decisions he cites are not only not 

binding on this court; they are also completely unpersuasive. None of these cases holds or 

otherwise supports Schumacher’s claim that blanket challenges to the reliability of investigative 

software entitle a defendant to a Franks hearing.1 

 

1

See, e.g., United States v. Dennis, No. 3:13-cr-10-TCB, 2014 WL 1908734, at * 3, *5 (N.D. Ga. May 12, 2014) 

(noting that evidentiary hearing was held, where defendant argued that law enforcement’s use of file sharing 

software to access his computer violated his Fourth Amendment right to privacy); Mahan v. Bunting, No. 1:13-cv00165, 2014 WL 1154054, at *1-*2, *4 (N.D. Ohio Mar. 20, 2014) (acknowledging that state court conducted 

suppression hearing after defendant filed a motion to suppress that argued that the search warrant affidavit failed to 

provide sufficient information on investigative software); United States v. Thomas, Nos. 5:12-cr-37, 5:12-cr-44, 

5:12-cr-97, 2013 WL 6000484, at * 1 (D.Vt. Nov. 8, 2013) (reviewing the findings of an evidentiary hearing held 

after defendants filed motions to suppress that made specific challenges to the reliability of investigative software); 

United States v. Gabel, No. 10-60168, 2010 WL 3927697, at *1, *2 (S.D.Fla. Sept. 16, 2010) (noting that 

evidentiary hearing was held, where defendant argued, inter alia, that the search warrant affidavit was invalid 
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Schumacher’s reliance on United States v. Budziak, 697 F.3d 1105 (9th Cir. 2012), is 

similarly misguided. As Schumacher himself acknowledges, Budziak recognized that the 

functionality of investigative software used in child pornography cases was “material [to the 

defense] under the rules of discovery.” But the dispositive question in Budziak was whether the 

defendant was entitled to information regarding the functionality of investigative software as a 

discovery matter, not whether a search-warrant affidavit must provide such information. 

697 F.3d at 1111-12. Thus, it is of no relevance here. 

 Schumacher additionally argues that the denial of his motion to suppress without first 

providing a hearing was erroneous because it deprived him of the opportunity to “investigate and 

cross-examine” the software. He suggests that an evidentiary hearing should have been held to 

allow him to gather evidence that the software was unreliable. In this regard, Schumacher 

appears to have confused the purpose of a Franks hearing, which is to permit the court to 

determine whether law enforcement agents made deliberate falsehoods to secure a search 

warrant, not to provide discovery for the defendant. See Franks, 438 U.S. at 170 (noting that the 

preliminary showing requirement “prevent[s] the misuse of a veracity hearing for purposes of 

discovery.”). Further, “[t]o mandate an evidentiary hearing, the challenger’s attack must be 

more than conclusory and must be supported by more than a mere desire to cross-examine.” Id.

at 171. The district court’s refusal to provide Schumacher a hearing on his motion to suppress, 

then, did not deprive him of his right to investigate the reliability of the software, because he was 

not entitled to any such right under Franks.

2

 

because it omitted the fact that law enforcement used file sharing software that was only available to law 

enforcement to access his computer).

2

Schumacher cursorily asserts that the district court violated his Fifth Amendment right to due process and his Sixth 

Amendment right to confrontation by denying his suppression motion without a hearing. But he provides no case 

law or argument in support his apparent claim that these rights extend to a defendant challenging whether a search 
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Lastly, Schumacher incorrectly asserts that the district court ran afoul of this court’s 

precedent by denying his motion and “blindly accept[ing] the reliability” of the software. He 

provides no precedent holding that a court must assess the reliability of investigative software 

used to support a search warrant’s affidavit before finding that probable cause for the warrant 

exists. He instead cites two cases that concern the irrelevant issue of the competency and 

credibility of evidence offered at suppression hearings. See United States v. Stepp, 680 F.3d 651, 

668 (6th Cir. 2012); Fields v. Bagley, 275 F.3d 478, 485 n.5 (6th Cir. 2001) (per curiam).

Because Schumacher has failed to show that the search warrant affidavit included false 

statements or omitted information material to a finding of probable cause, he cannot meet the 

preliminary showing required for an evidentiary hearing on a motion to suppress. The district 

court thus did not abuse its discretion in denying Schumacher’s motion to suppress without first 

holding a Franks hearing, and should be affirmed. 

CONCLUSION

For the reasons set out above, we AFFIRM the district court’s judgment.

 

warrant affidavit provided probable cause for a search, or that they entitle such a defendant to a Franks hearing even 

if that defendant cannot make the preliminary showing required for such a hearing.