FILED

United States Court of Appeals

Tenth Circuit

April 23, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WILLIAM DAVID BURKHART,

Defendant - Appellant.

No. 09-7091

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. No. 08-CR-00059-RAW-1)

Christopher Wilson, Assistant United States Attorney, (and Sheldon J. Sperling,

United States Attorney, on the brief), Muskogee, Oklahoma, for Plaintiff -

Appellee.

Robert Ridenour, Assistant Federal Public Defender, (Julia L. O’Connell, Federal

Public Defender and Barry L. Derryberry, Research and Writing Specialist of 

Office of the Federal Public Defender, with him on the brief), Tulsa, Oklahoma,

for Defendant - Appellant.

Before TACHA, KELLY, and HOLMES, Circuit Judges.

KELLY, Circuit Judge.

Defendant-Appellant William David Burkhart pled guilty to possession of

one or more matters containing a visual depiction of a minor engaging in sexually

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explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B). Mr. Burkhart

received a sentence of 84 months, followed by 60 months of supervised release. 

Mr. Burkhart appeals the district court’s denial of his motion to suppress the

evidence found in a search of his home, having reserved the right to do so in his

plea agreement. We have jurisdiction under 28 U.S.C. § 1291 and affirm. The

search was reasonable under the Fourth Amendment: probable cause existed to

search Mr. Burkhart’s home and, in any case, the good faith exception applies. 

Background

In the fall of 2006, the European Law Enforcement Organization

(“Europol”) investigated a child pornography ring and found an Italian national

operating a web site that sold child pornography online. 1 R. 33, 135. Europol

searched the Italian’s residence and found thousands of emails that he exchanged

with customers. 1 R. 34. Europol sent the FBI about 10,000 emails between the

Italian suspect and U.S. citizens. Id. Among these emails with U.S. citizens, the

FBI found forty-five messages between the Italian’s email address and

davidburkhart@sbcglobal.net. 1 R. 135-36. These emails verified purchases of

various videos of a 13-year-old girl, the most recent message dated December 2,

2005. 1 R. 78. In April 2007, the FBI obtained from AT&T via an administrative

subpoena the subscriber information for davidburkhart@sbcglobal.net. William

David Burkhart, the subscriber, was listed as living at 1020 East Polk, Apartment

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3, McAlester, Oklahoma. 1 R. 136. John Fitzer, an FBI agent, could not confirm

that a William David Burkhart still lived at the East Polk address. 2 R. 25. Agent

Fitzer found a William D. Burkhart in the Oklahoma Department of Motor

Vehicles database with the same date of birth as William David Burkhart. 2 R.

27-29. William D. Burkhart had vehicles registered at two addresses in the

McAlester area: 5490 Center Avenue and 5217 Carl Albert Road, which are

located about a two-minute drive away from each other. 2 R. 28-29, 33. 

Agent Fitzer prepared separate applications and affidavits for separate

search warrants for each address. 1 R. 27-45, 69-91. The affidavits were

identical in most respects: they set out Agent Fitzer’s training and experience in

law enforcement generally, and computer storage systems and child pornography

investigations in particular. Id. The affidavits related how the Europol

investigation led to a William David Burkhart, the nature of the videos believed

to be in Mr. Burkhart’s possession, the characteristics of child pornography

collectors, and descriptions of the places to be searched and the items to be

seized. Id. The affidavit for the Carl Albert Road address related a few links

between a William D. Burkhart and that address: the DMV database listed a

William D. Burkhart living at that address, a Jeep Cherokee was parked at that

address and William D. Burkhart registered a Jeep Cherokee at that address, and

the U.S. Postal Service confirmed that William D. Burkhart received mail there. 

1 R. 36. Similarly, the affidavit for the Center Avenue address said that a Dodge

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pickup truck registered to a William D. Burkhart was parked there, that the

mailbox had “Burkhart” on it, and that William D. Burkhart received mail there. 

1 R. 78. Neither affidavit referred to the other one. Agent Fitzer presented both

applications and affidavits to the magistrate judge at the same time on May 6,

2008. 2 R. 31-32. The magistrate took them into her office for a period of time,

then returned, placed the agent under oath, took his statement that the affidavits

were true and accurate, and signed the warrants in front of the agent. 2 R. 32, 45. 

Federal agents executed both warrants at the same time on May 8, 2008. 1

R. 9, 2 R. 43. At the 5490 Center Avenue address, Mr. Burkhart’s ex-wife

informed agents that he no longer lived there. 2 R. 33. Agents halted the

execution of this warrant and returned it unserved. Id. At 5217 Carl Albert Road,

agents found William David Burkhart, the Defendant, as well as more than 400

DVDs with images of child pornography. 1 R. 99-100, 2 R. 33-34. The district

court denied Mr. Burkhart’s motion to suppress, 1 R. 262, over his objections to

the magistrate judge’s report and recommendation, 1 R. 98-132.

Discussion

“When reviewing the district court’s denial of a motion to suppress, we

view the evidence in the light most favorable to the government and accept the

district court’s factual findings unless they are clearly erroneous.” United States

v. Grimmett, 439 F.3d 1263, 1268 (10th Cir. 2006) (citation omitted). We review

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de novo the legal question of reasonableness under the Fourth Amendment. Id.

Nonetheless, “[i]f the search . . . was done pursuant to a warrant, we review the

issuing judge’s finding of probable cause with great deference: we look to ensure

that the judge had a substantial basis for concluding that the affidavit in support

of the warrant established probable cause.” Id. (internal quotation marks and

citation omitted). “The task of the issuing magistrate is simply to make a

practical, common-sense decision whether, given all the circumstances set forth in

the affidavit before him . . . there is a fair probability that contraband or evidence

of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213,

238 (1983). 

Mr. Burkhart argues that Agent Fitzer’s affidavit did not establish probable

cause to search his home for three reasons: (1) by the time that the warrants were

executed, the information from Europol was so old as to be stale; (2) the affidavit

failed to show a nexus between the suspected possession of child pornography

and Mr. Burkhart’s home; and (3) each affidavit undermined the probable cause in

the other affidavit. Aplt. Br. at 10-15. 

Generally, “probable cause to search cannot be based on stale information

that no longer suggests that the items sought will be found in the place to be

searched.” United States v. Mathis, 357 F.3d 1200, 1206-07 (10th Cir. 2004)

(brackets, internal quotation marks, and citation omitted). “[W]hether

information is too stale to establish probable cause depends on the nature of the

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criminal activity, the length of the activity, and the nature of the property to be

seized.” Id. 

When federal agents executed the warrant for Mr. Burkhart’s home in April

2008, about two years and four months had passed since December 2, 2005, the

date of the most recent email between the Italian child porn distributor and

davidburkhart@sbcglobal.net. Mr. Burkhart argues that this passage of time,

combined with the lack of additional emails after the December 2005 email and

the fact that he no longer lived at the mailing address provided to his email

service provider, indicated that he voluntarily ceased attempts to obtain the child

pornography. Aplt. Br. at 11-13. 

Although the amount of time between the most recent email and the search

gives us some pause, the “passage of time alone” cannot demonstrate staleness. 

Mathis, 357 F.3d at 1207. In child pornography cases, the nature of the criminal

activity and the nature of the property to be seized are especially relevant factors. 

Mr. Burkhart was charged with possession of child pornography, not acquiring it. 

His offense did not cease with his last purchase, but continued as long as he

possessed the videos. His emails supported the magistrate’s probable cause

determination because they conclusively showed that he bought the videos. From

that fact, one could reasonably infer that he likely still possessed the videos. The

most recent evidence of Mr. Burkhart’s possession, the December 2005 email,

occurred well within the five-year statute of limitations. See 18 U.S.C. § 3282. 

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The volume of Mr. Burkhart’s emails with the porn distributor as well as his

enthusiasm supported Agent Fitzer’s theory that Mr. Burkhart collected the

videos. See 1 R. 78-79 (“I can’t wait to watch her again,” “Thank you for the

N26, she was great as always, maybe a little better in this one! . . . She has to be

the most beautiful girl in the world, and you are a very lucky fellow to have her

model for you.”). These facts, combined with Agent Fitzer’s observation that

collectors “typically retain [the materials] for many years,” 1 R. 79, formed a

substantial basis for the magistrate to determine that a fair probability existed that

the videos would be found in Mr. Burkhart’s home. See Mathis, 357 F.3d at 1205

(“[A] law enforcement agent’s opinion, based upon his professional expertise,

that evidence of illegal activity will be found in the place to be searched, is

entitled to consideration in our determination of whether probable cause existed at

the time a warrant issued.”). 

This court has repeatedly endorsed the “view that possessors of child

pornography are likely to hoard their materials and maintain them for significant

periods of time.” United States v. Potts, 586 F.3d 823, 830 (10th Cir. 2009); see

also United States v. Perrine, 518 F.3d 1196, 1206 (10th Cir. 2008); United States

v. Riccardi, 405 F.3d 852, 861 (10th Cir. 2005). The Riccardi court explained

that such a view 

is supported by common sense and the cases. Since the materials are

illegal to distribute and possess, initial collection is difficult. Having

succeeded in obtaining images, collectors are unlikely to destroy

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them. Because of their illegality and the imprimatur of severe social

stigma such images carry, collectors will want to secret them in

secure places, like a private residence.

405 F.3d at 861 (citations omitted). Mr. Burkhart acknowledges these cases, but

claims that they are based on the outdated realities of regular mail, rather than the

relative ease of anonymous collection through the Internet. Aplt. Br. at 11-12.

We are not persuaded. Admittedly, the Internet’s speed, anonymity, and

burgeoning porn market have lowered some practical barriers for any collector

with a few hours, a high speed connection, and a credit card. But child

pornography is still illegal to distribute and possess, and still carries severe social

stigma, whether the possessor receives it by regular mail, email, or over the

Internet. The illegality and social stigma may also complicate resale or disposal. 

Moreover, acquiring pornography is rarely free. Given the nature of the evidence

to be seized, the Internet context may mitigate against staleness: information that

a person received electronic images of child pornography is less likely than

information about drugs, for example, to go stale because the electronic images

are not subject to spoilage or consumption. United States v. Frechette, 583 F.3d

374, 378 (6th Cir. 2009). Instead, electronic files “can have an infinite life span.” 

Id. We fail to see how even “on demand” Internet availability removes the

incentive to hoard what has been collected. Besides the Sixth Circuit, three other

federal circuits have endorsed the hoarding observation. United States v.

McArthur, 573 F.3d 608, 613-14 (8th Cir. 2009); United States v. Falso, 544 F.3d

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110, 132 (2nd Cir. 2008); United States v. Watzman, 486 F.3d 1004, 1008 (7th

Cir. 2007). No facts negate the fair probability that the videos would be found in

Mr. Burkhart’s home. Mr. Burkhart points to the period between the last email

with the Italian porn distributor in December 2005 and Europol’s search in the

fall of 2006 as evidence that he voluntarily quit trying to obtain pornography and,

therefore, “the hoarding assumption is due little or no weight.” Aplt. Br. at 12. 

However, the cessation of efforts to procure the videos is not inconsistent with

the theory that Mr. Burkhart was hoarding the videos: a person may very well

keep hoarding long after he stops acquiring.

Mr. Burkhart’s second argument suggesting a lack of probable cause is that

the affidavit did not establish a nexus between the suspected criminal activity and

the place to be searched. Aplt. Br. at 13; see United States v. Roach, 582 F.3d

1192, 1202 (10th Cir. 2009). Mr. Burkhart doubts that Agent Fitzer conclusively

determined that the William D. Burkhart living at the Carl Albert address was the

same William David Burkhart who lived at the East Polk address. Law

enforcement is not required to establish a nexus beyond a reasonable doubt. 

Agent Fitzer’s representations to the magistrate that he confirmed with the DMV

and the post office that a William D. Burkhart lived at the Carl Albert address,

and that a car matching the make and model of William D. Burkhart’s was parked

out front sufficiently linked Mr. Burkhart to the home. The magistrate judge

reasonably concluded that a fair probability existed that Mr. Burkhart lived at the

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Carl Albert address, and that the child pornography videos would be found in his

home. 

Third, Mr. Burkhart argues that the lack of probable cause was evident

from Agent Fitzer’s presentation of two separate affidavits justifying the searches

of two separate residences. Aplt. Br. at 14-16. That is, “when the affidavits are

read together, it becomes apparent that if one affidavit is right, the other must be

wrong.” Aplt. Br. at 15. Probable cause means that a fair probability exists that

the evidence to be seized will be found in a particular place, not absolute

certainty to the exclusion of all other places. If one warrant can authorize a

search for multiple locations, United States v. Langston, 970 F.2d 692, 703 (10th

Cir. 1992); United States v. Rios, 611 F.2d 1335, 1347 (10th Cir. 1979), surely

law enforcement may obtain multiple warrants for multiple locations, so long as

they demonstrate probable cause as to each location. Because probable cause

existed to search the Carl Albert address, the warrant was valid.

Any deficiency of probable cause in the Carl Albert affidavit is cured by

the good faith exception to the exclusionary rule. “[E]vidence obtained pursuant

to a warrant that is later found to be defective is not properly excluded when the

warrant is relied on by the officers in objective good faith.” United States v.

Gonzales, 399 F.3d 1225, 1229 (10th Cir. 2005); see also United States v. Leon,

468 U.S. 897, 922 (1984). The good faith exception does not always prevent

exclusion: “there are four contexts where an officer cannot be found to have

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relied on a warrant in good faith.” Gonzales, 399 F.3d at 1229. Mr. Burkhart

claims that one such context applies here: the affidavit was “so lacking in indicia

of probable cause as to render official belief in its existence entirely

unreasonable.” Id. (quoting Leon, 468 F.3d at 923) (quotations omitted). 

Mr. Burkhart restates his argument that “any reasonable officer would have

known that each [affidavit] rendered the other devoid of factual support.” Aplt.

Br. at 18. In other words, when it comes to probable cause, the two addresses are

mutually exclusive. As explained above, some indicia of probable cause existed

for each address because Agent Fitzer linked the name William D. Burkhart

through DMV records, mail delivery, and vehicles parked at each address. The

existence of probable cause for one address did not eliminate probable cause for

the other address. Mr. Burkhart also implies that the lack of “Burkhart” on the

mailbox at the Carl Albert address, when compared to the mailbox at the Center

Avenue address, stripped the Carl Albert address of probable cause. Id. In light

of the other connections between William D. Burkhart and the Carl Albert

address, the suspect’s last name on the mailbox was not necessary for probable

cause. Because the affidavit contained some indicia of probable cause, the good

faith exception applies and exclusion of the evidence is not appropriate. 

AFFIRMED.

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