In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3708

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

GARY PRIDEAUX-WENTZ,

Defendant-Appellant.

Appeal from the United States District Court 

for the Western District of Wisconsin.

No. 07 CR 63—Barbara B. Crabb, Chief Judge.

ARGUED APRIL 7, 2008—DECIDED SEPTEMBER 12, 2008

Before RIPPLE, WILLIAMS, and SYKES, Circuit Judges.

WILLIAMS, Circuit Judge. Gary Prideaux-Wentz was

convicted of possessing child pornography based on

evidence obtained during a search of his home. The

search warrant was supported by an FBI agent’s affidavit,

which described sixty-nine images of child pornography/erotica uploaded by Prideaux-Wentz onto eight

Yahoo! e-groups, and the affidavit also contained expert

information regarding general characteristics of child
2 No. 07-3708

pornography collectors. On appeal, Prideaux-Wentz

argues that the search warrant failed to establish probable

cause because there is no information specific to him in

the affidavit but only boilerplate statements about child

pornography collectors. Additionally, he contends that

the information regarding the uploaded pictures was

stale and therefore inadequate to establish probable

cause for the search. We find that the evidence relied on

in the warrant affidavit was stale, but we affirm the

denial of the motion to suppress because the agent acted

in good faith in relying on the search warrant.

I. BACKGROUND

On January 31, 2006, FBI Special Agent Steven Paulson

obtained a federal search warrant for the New Glarius,

Wisconsin residence of the defendant, Gary PrideauxWentz. In requesting the search warrant, Agent Paulson

submitted a 40-page, 66-paragraph affidavit, which

included complaints submitted to the Cyber Tip Line of the

National Center for Missing and Exploited Children

(“NCMEC”) by Yahoo!, an Internet service provider

(“ISP”), regarding pictures containing child pornography

and erotica that were uploaded to eight Yahoo! e-groups.

NCMEC is a national clearinghouse that gathers information about missing and exploited children for law

enforcement use and receives information from various

ISPs through the Cyber Tip Line.

In his affidavit, Agent Paulson explained that his investigation was based on complaints from NCMEC and his

own records check. He included general information
No. 07-3708 3

about child pornography, including the relevant statutes

and definitions; background information about his elevenyear tenure with the FBI and his relevant training and

experience apprehending child pornographers; and expert

information regarding the habits of child pornographers.

Agent Paulson also indicated that, as a result of his training

and experience with the FBI, he knew that computers are

used by individuals who exploit children—including

collectors of child pornography—to correspond with

other like-minded individuals through email, chat rooms,

electronic bulletin boards, and Internet file transfers. He

noted that evidence of an online storage account is often

found on the home computer of a user subscribing to

an Internet service.

Agent Paulson also discussed the structure of Yahoo! egroups in his affidavit, explaining that some groups

specialize in child pornography. He then described each

Cyber Tip submitted to NCMEC regarding the Yahoo!

ID “jackinpulpit2001” and the email address

“jackinpulpit2001@yahoo.com.” The Yahoo! ID is a unique

identifier of a user’s account, and an ID, along with a

password, is required in order to use Yahoo!’s services.

Between August 15, 2003, and January 28, 2004, NCMEC

received nineteen Cyber Tips that the user with the

“jackinpulpit2001” ID uploaded sixty-nine images to

different Yahoo! e-groups, pictures that Agent Paulson

identified as both child pornography and child erotica.

Agent Paulson included descriptions of each image in the

affidavit and information provided by NCMEC Analyst

Lisa Stenzel. Stenzel opined that ten of the nineteen Cyber

Tips contained child pornography, while the other nine
4 No. 07-3708

Cyber Tips constituted “erotica/nudism/BoyLove.” Stenzel

reported that one of the tips contained five images of

previously identified child victims.

The affidavit also contained information regarding the

account and subscriber information for “jackinpulpit2001,”

connecting the Yahoo! ID to Prideaux-Wentz. On September 4, 2003, a subpoena was served on Yahoo! and America

Online (“AOL”), another ISP, requesting account subscriber information for “jackinpulpit2001.” In response

to this request, AOL provided the name “Gary Wentz” and

an address in Belleville, Wisconsin. Agent Paulson later

confirmed that “Gary Wentz” was the same individual as

Gary Prideaux-Wentz, who had resided at the Belleville,

Wisconsin address since 1991. Agent Paulson also determined that Prideaux-Wentz and Timothy J. Galbraith

moved to New Glarus, Wisconsin in November 2004, and

that both had email accounts and a computer at the

new residence.

In the affidavit, there was also a description of a NCMEC

Cyber Tip that Microsoft/MSN submitted on September 7,

2002, indicating that it had disabled an account because

the account contained child pornography. The screen

name of the user of the account was “Germo” and the

account associated with the email address was

“whuzyurdade@aol.com.” Agent Paulson was able to

trace this account to Prideaux-Wentz.

Agent Paulson also provided information in the affidavit

regarding “child pornography collector characteristics,”

which was based on his own experience along with expert

opinions from other FBI agents in the field. Agent Paulson
No. 07-3708 5

explained that “[c]hild pornography collectors almost

always maintain and possess their material in the privacy

and security of their homes or some other secure location

where it is readily available.” Furthermore, because the

collection reveals the otherwise private sexual desires of

the collector and represents his most cherished sexual

fantasies, “the collector rarely, if ever, disposes of the

collection.” Agent Paulson noted that while collectors

may refine their materials over time, the overall size of

their collections tends to increase.

Based on this information, the magistrate judge issued

a search warrant, which was executed at Prideaux-Wentz’s

residence in New Glarus on February 2, 2006. On April 19,

2007, Prideaux-Wentz was indicted for one count of

possession of child pornography. He filed a motion to

quash the search warrant and to suppress the evidence

seized pursuant to the warrant, requested a hearing

under Franks v. Delaware, 438 U.S. 154 (1978), and claimed

that the good faith exception did not save the warrant. The

magistrate judge recommended that the district court

deny Prideaux-Wentz’s motions, finding that there was

ample probable cause to support the warrant and that the

good faith doctrine applied if there was no probable cause.

Prideaux-Wentz filed timely objections to the magistrate

judge’s recommendation and raised one new argument

based on a non-precedential order, United States v. Doan,

245 Fed. Appx. 550 (7th Cir. 2007) (unpublished order). The

district court distinguished Doan, denied Prideaux-Wentz’s

motions in their entirety, and entered an order adopting

the magistrate judge’s Report and Recommendation.
6 No. 07-3708

On August 15, 2007, Prideaux-Wentz pled guilty to possessing child pornography in violation of 18 U.S.C.

§ 2252(a)(4), but he reserved the right to appeal the district court’s denial of his motion to suppress. He was

sentenced to 72 months in prison and now appeals.

II. ANALYSIS

A. There was no probable cause for the search.

Prideaux-Wentz maintains that the search warrant did

not establish probable cause because Agent Paulson’s

affidavit relied on stale information, was unreliable,

contained only general characteristics of child

pornographers and nothing specific to Prideaux-Wentz,

and did not demonstrate a sufficient nexus between the

alleged criminal activity and his new residence. PrideauxWentz also contends that because the warrant affidavit

lacked probable cause and was based on misleading

information, he was entitled to a hearing pursuant to

Franks v. Delaware, 438 U.S. 154 (1978).

Here, the magistrate, rather than the district court,

determined that probable cause existed to support the

search warrant. Recently, we clarified the appropriate

standard of review that applies in determining the sufficiency of a search warrant issued in these circumstances.

In United States v. McIntire, 516 F.3d 576, 578 (7th Cir.

2008), we held that reviewing the sufficiency of a warrant

“should not take the form of de novo review,” and “on the

mixed question whether the facts add up to ‘probable

cause’ under the right legal standard, we give no weight
No. 07-3708 7

to the district judge’s decision—for the right inquiry is

whether the judge who issued the warrant (rarely the

same as the judge who ruled on the motion to suppress)

acted on the basis of probable cause. On that issue we

must afford ‘great deference’ to the issuing judge’s conclusion.” Id. Therefore, since the district court adopted the

magistrate’s findings, we pay “great deference” to the

magistrate’s determination of probable cause. See id.

Applying this standard, we find that the warrant lacked

probable cause because the evidence that Agent Paulson

relied on in his warrant affidavit was stale. While “[t]here

is no bright-line test for determining when information

is stale,” United States v. Koelling, 992 F.2d 817, 822 (8th

Cir. 1993), the warrant does not indicate when the pictures

were uploaded to the Yahoo! e-groups, and there is no

way to discern this fact from the record. We have suggested that the staleness argument takes on a different

meaning in the context of child pornography because of the

fact that collectors and distributors rarely, if ever, dispose

of their collections. See United States v. Hall, 142 F.3d 988,

995 (7th Cir. 1998) (citing “expert information” in an

affidavit that “pornographers tend to maintain their

collections of material for long periods, usually at home”).

Nevertheless, there must be some limitation on this

principle. While staleness arguments have been rejected

relative to evidence accumulated more than one year

before the execution of the search warrant, United States

v. Newsom, 402 F.3d 780, 783 (7th Cir. 2005), in Newsom

the government also had other, more recent evidence of

continuing criminal activity to bolster probable cause
8 No. 07-3708

and freshen the older information. 402 F.3d at 783 (where

police did not base the search warrant on the year-old

pornographic images alone but also relied on the recent

discovery by the defendant’s girlfriend of a pornographic

tape of her minor daughter); see also United States v. Harvey,

2 F.3d 1318, 1322-23 (3d Cir. 1993) (evidence defendant

possessed child pornography thirteen to fifteen months

previously not stale where supported by evidence of

additional mailings within two months of warrant’s

execution).

However, the record here suggests that the images could

have been uploaded as many as two years before the Cyber

Tips were received, which would mean that the information was at least four years old by the time the government

applied for a warrant. Unlike Newsom, there is no new

evidence to “freshen” the stale evidence. Although we

decline to find that evidence that is two to four years old

is stale as a matter of law, cf. United States v. Irving, 452

F.3d 110, 125 (2d Cir. 2006) (child pornography two years

old not stale); United States v. Riccardi, 405 F.3d 852, 860-61

(10th Cir. 2005) (five years); see also United States v. Peden,

891 F.2d 514, 518-19 (5th Cir. 1989) (finding that a warrant

based on a two-year-old delivery from suspected child

pornographers and an eight-year-old conviction for

solicitation of a minor was not stale), the government’s

failure to find out the dates in which the pictures were

uploaded supports a finding of staleness in this case

because it could have easily obtained this information by

contacting Yahoo!. The government concedes that the

upload information was available for at least two of the

Yahoo! e-groups, information which it could have

accessed following Yahoo!’s Compliance Guide for Law
No. 07-3708 9

Enforcement. The four year gap, without more recent

evidence, undermines the finding that there was probable

cause that the images would be found during the search.

Therefore, we find that the evidence relied on to obtain

the warrant here was stale, and the warrant lacked probable cause.

B. The warrant is saved by the good faith exception.

Even in the absence of probable cause, a warrant can “be

saved by the good faith exception.” United States v. Olson,

408 F.3d 366, 372 (7th Cir. 2005). “Whether a law enforcement officer reasonably relied upon a subsequently

invalidated search warrant is a legal question which we

review de novo.” United States v. Harju, 466 F.3d 602, 604

(7th Cir. 2006). “An officer’s decision to obtain a warrant is

prima facie evidence that he or she was acting in good

faith.” Olson, 408 F.3d at 372 (citing United States v. Koerth,

312 F.3d 862, 868 (7th Cir. 2002)). However, a defendant

may rebut this evidence, “if the issuing judge ‘wholly

abandoned his judicial role’ and failed to perform his

‘neutral and detached function,’ serving ‘merely as a

rubber stamp for the police’ or . . . the affidavit submitted

in support of the warrant was ‘so lacking in indicia of

probable cause as to render official belief in its existence

entirely unreasonable.’ ” Id. (quoting United States v. Leon,

468 U.S. 897, 914, 923 (1984)).

Prideaux-Wentz argues that a reasonable officer would

have known that the warrant affidavit was lacking in

probable cause because the affidavit establishes that

Agent Paulson was inexperienced in evaluating child
10 No. 07-3708

pornography, there was no foundation to rely on the

behavior profile assertions, the evidence was stale, and

the affidavit omitted material information that would

have led a reasonably well-trained officer to know that

more information was needed to establish probable cause.

Although we have found that the absence of any time

element renders the evidence stale, Prideaux-Wentz has

failed to rebut the presumption that Agent Paulson was

acting in good faith by relying on the warrant. Furthermore, he has not met the high standard required for a

Franks hearing.

1. The warrant affidavit establishes Agent Paulson’s

reliability and expertise in evaluating child pornography.

Prideaux-Wentz maintains that the affidavit and warrant

did not establish Agent Paulson’s reliability and expertise

in describing and evaluating pornographic images. To

support this point, Prideaux-Wentz relies on the fact

that Stenzel, the NCMEC expert, disagreed with Agent

Paulson’s classification of some of the images as child

pornography. This argument need not detain us long.

Although Stenzel disagreed with Agent Paulson about

the classification of several of the images, this disagreement was not based on Agent Paulson’s perceived inexperience, but rather because it is often difficult to distinguish between child pornography and child erotica. Since

Agent Paulson included a detailed description of each

image, the magistrate judge was able to make his own

determination about how to classify the images, ultimately
No. 07-3708 11

concluding that eleven of the images constituted child

pornography. See United States v. Lowe, 516 F.3d 580, 586

(7th Cir. 2008) (holding that an issuing court can rely on a

verbal description of images rather than the actual images

to determine whether there is probable cause that the

images constitute child pornography).

Moreover, the warrant affidavit sufficiently established

Agent Paulson’s expertise and reliability because the

affidavit was extremely detailed, explaining the child

pornography and child erotica images in the Cyber Tips,

the relevant statutory provisions, expert opinions regarding the behavior of child pornographers generally, and

Agent Paulson’s experiences with pornography-related

searches. Based on these statements, we find that the

affidavit sufficiently establishes Agent Paulson’s expertise

in evaluating child pornography. See United States v.

Watzman, 486 F.3d 1004, 1008 (7th Cir. 2007) (concluding

that the affidavit sufficiently established the officer’s

expertise where the officer explained, in great detail, his

experience with investigating child pornographers).

2. There was sufficient evidence to link the

boilerpla te s ta tements regarding chi ld

pornographers to the specific characteristics of

Prideaux-Wentz. 

Prideaux-Wentz argues that there was no information in

the affidavit to indicate that he is a collector of child

pornography, only boilerplate statements about child

pornography collectors generally. In order to rely on

profiles, “the affidavit must lay a foundation which shows
12 No. 07-3708

that the person subject to the search is a member of the

class.” United States v. Weber, 923 F.2d 1338, 1345 (9th

Cir. 1990) (holding that the affidavit did not establish

probable cause that the defendant was a child molester

when it was “clear that the ‘expert’ portion of the

affidavit was not drafted with the facts of this case or this

particular defendant in mind”). Furthermore, “ ‘[r]ambling

boilerplate recitations designed to meet all law enforcement needs’ do not produce probable cause.” United States

v. Zimmerman, 277 F.3d 426, 433 n.4 (3d Cir. 2002) (quoting

Weber, 923 F.2d at 1345). Prideaux-Wentz maintains that

the warrant lacked any information that would indicate

that he has the characteristics of a prototypical child

pornography collector, and furthermore, that this gap

renders any probable cause determination entirely unreasonable.

Agent Paulson’s affidavit did include general statements about collectors of child pornography and their

usual behavior, specifically “child pornography collector

characteristics” gleaned from his own experiences, as

well as from consultation with FBI agents who are experts in the field. He explicitly concluded that “[c]hild

pornography collectors almost always maintain and

possess their material in the privacy and security of their

homes or some other secure location where it is readily

available” and that the size of their collections tends to

increase over time. Prideaux-Wentz maintains, however,

that Agent Paulson did not rely on any of PrideauxWentz’s specific characteristics in concluding that he fits

the profile of a collector of child pornography and was

therefore likely to keep pornography at his residence.
No. 07-3708 13

The Fourth Amendment requires a “fair probability” that

the evidence will be found on the premises, which is

undermined by the need to make inferential steps between

general characteristics and the specific facts of the case. See

Weber, 923 F.2d at 1345 (noting that there was no probable

cause when, following each inferential leap made by

the officer, “virtual certainty became probability, which

merged into possibility, which faded into chance”). Because the warrant connected Prideaux-Wentz to several

email accounts responsible for uploading or possessing

child pornography, we cannot say that it required too

much of an inferential leap to conclude that PrideauxWentz might be a collector of child pornography. There

was a bridge connecting the general averments contained

in Agent Paulson’s affidavit to Prideaux-Wentz:

jackinpulpit2001. The user name “jackinpulpit2001” was

tied to Prideaux-Wentz and this ID was responsible for

uploading a fair number of child pornography images.

Furthermore, there was also an additional NCMEC Cyber

Tip from Microsoft/MSN supporting Agent Paulson’s

contention that Prideaux-Wentz might be a collector of

child pornography. Thus, despite the general, boilerplate

language contained within the warrant affidavit, there

were enough specifics to suggest that Prideaux-Wentz

might be a collector of child pornography.

3. There was a sufficient nexus between PrideauxWentz’s residence and the alleged criminal activity

that Agent Paulson reasonably relied on the search

warrant. 
14 No. 07-3708

Prideaux-Wentz also maintains that there was no nexus

between the illegal activity and the search of his residence

because Yahoo! submitted the last Cyber Tip ten months

before he moved to the New Glarus home in November 2004. He contends that the warrant application did not

assert that he posted any images from his new residence.

We have previously held that “a finding of probable

cause ‘does not require direct evidence linking a crime to

a particular place.’ ” Watzman, 486 F.3d at 1008 (internal

citation omitted). “Judges ‘may draw reasonable inferences from the totality of the circumstances in determining whether probable cause exists to issue a warrant.’ ” United States v. Summage, 481 F.3d 1075, 1078 (8th

Cir. 2007) (quoting United States v. Thompson, 210 F.3d 855,

860 (8th Cir. 2000)).

Agent Paulson reasonably relied on the search warrant

because there was a sufficient nexus between the uploaded images and Prideaux-Wentz’s New Glarus home.

Agent Paulson established that Prideaux-Wentz owned a

computer and subscribed to email services in his new

home. The warrant affidavit included subpoenaed information from a telecommunications company, indicating

that Prideaux-Wentz opened an Internet account at the

time he moved to New Glarus. His credit card records

also showed that he made regular monthly payments to

America Online. Although the nexus certainly would be

stronger if Yahoo! had submitted a Cyber Tip after

Prideaux-Wentz moved to his New Glarus home, Agent

Paulson still could have reasonably believed, based on

Prideaux-Wentz’s computer usage and the fact that most

child pornographers do not dispose of their collections,

that it was likely that illegal pornographic images would
No. 07-3708 15

be found on Prideaux-Wentz’s computer. See Summage,

481 F.3d at 1078 (upholding a search of the defendant’s

new home, although pornographic photos and videos

were taken at his old home, because it was reasonable to

infer that he would maintain the materials after his move);

see also Newsom, 402 F.3d at 783 (where the affidavit did not

explain that child pornographers tend to hold onto their

stashes but we determined that “it was clear from the

context” that the law enforcement officials seeking the

warrant believed that the defendant was still in possession of materials that were more than one year old.).

To counter this point, Prideaux-Wentz, relying on United

States v. Greathouse, 297 F. Supp. 2d 1264, 1272 (D. Or. 2003),

contends that the magistrate failed to consider that computers commonly are replaced in short periods of time.

Although the warrant did not indicate whether PrideauxWentz owned the same computer at both residences, the

government is not required to prove that Prideaux-Wentz

owned the same computer between residences in order

to establish probable cause. See United States v. Wiley, 475

F.3d 908, 916 (7th Cir. 2007) (“[p]robable cause does not

require direct evidence linking a crime to a particular

place. Instead, issuing judges are entitled to draw reasonable inferences about where evidence is likely to be found

given the nature of the evidence and the type of offense.”)

(internal citation omitted). Given Prideaux-Wentz’s connection with two Internet IDs responsible for uploading

and storing child pornography, and the expert testimony

suggesting that he would not discard these photos,

Prideaux-Wentz has not convinced us that Agent Paulson

did not act in good faith reliance on the search warrant.
16 No. 07-3708

C. Prideaux-Wentz was not entitled to a Franks hearing.

Prideaux-Wentz argues that he has met the standards for

a Franks hearing because the warrant affidavit contained

omissions and was misleading. Under Franks, “if a defendant can demonstrate by a preponderance of the evidence that the signatory of the warrant affidavit made a

false statement (or omitted a material fact) either intentionally or with reckless disregard for the truth, then a

court will consider whether the content of the affidavit,

setting aside the false material (or including the omitted

material), is sufficient to establish probable cause.” United

States v. Merritt, 361 F.3d 1005, 1010 (7th Cir. 2004). In

order to receive a Franks hearing, Prideaux-Wentz has to

show that “(1) the warrant affidavit contained a false

statement or omitted a statement; (2) the affiant made or

omitted the statement either intentionally or recklessly;

and (3) the statement was material or necessary to the

finding of probable cause.” Id. at 1010. Prideaux-Wentz

maintains that Agent Paulson omitted certain facts,

including that Prideaux-Wentz’s credit card statements did

not contain charges for access to any Internet sites and that

he never communicated with anyone by any medium

about anything related to child pornography. PrideauxWentz also contends that there are inconsistencies between Agent Paulson and Stenzel’s evaluations of the

uploaded pictures that raise concerns about the reliability

of the affidavit generally.

We have already rejected the idea that Agent Paulson

and Stenzel’s differing interpretations of the pictures

undermined the reliability of the affidavit, and we also do
No. 07-3708 17

not believe that Agent Paulson’s characterization of the

photos was intentionally misleading, especially given the

somewhat hazy line between child erotica and child

pornography. Even if Agent Paulson should have somehow been more thorough or careful in his analysis of the

photos, or if, as we determined earlier, he should have

followed-up with Yahoo! to get more information about

the uploaded photos, this failure was, at most, negligent,

which is insufficient to trigger a Franks hearing. See United

States v. Swanson, 210 F.3d 788, 791 (7th Cir. 2000) (rejecting

the defendant’s argument that the officers should have

conducted more investigation and included more information with the warrant because their failure to do so

was, at most, negligent and “negligence is no basis for

convening a Franks hearing”).

There is information contained within the warrant to

suggest that Agent Paulson reasonably believed that

Prideaux-Wentz would still be in possession of child

pornography, and that the omissions were not material to

the finding of probable cause. In addition to the general

information about child pornographers contained in the

warrant, the Cyber Tips obtained from August 15, 2003, to

January 28, 2004, indicate that Prideauz-Wentz was

consistently uploading child pornography and engaging

in “ongoing continuous criminal activity.” See United States

v. Pless, 982 F.2d 1118, 1126 (7th Cir. 1992) (“Passage of

time is less critical when the affidavit refers to facts that

indicate ongoing continuous criminal activity.”). Moreover,

there was substantial evidence linking Prideaux-Wentz

to the uploaded images through his Internet IDs.
18 No. 07-3708

This evidence, which is quite compelling, suggests that

the omissions regarding Prideaux-Wentz’s credit card

statements, and the fact that there was no evidence

linking Prideaux-Wentz to other child pornographers, were

not necessary to a finding of probable cause. Thus, while

Agent Paulson’s failure to obtain the dates of the uploaded

pictures is problematic, it is clear that the warrant was

not so facially deficient as to justify a finding that Agent

Paulson omitted information intentionally or recklessly.

We find that Prideaux-Wentz has not shown that he

was entitled to a Franks hearing.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the denial of the

motion to suppress the evidence.

9-12-08