In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1595

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

TED L. PAPPAS,

Defendant-Appellee.

Appeal from the United States District Court 

for the Eastern District of Wisconsin.

No. 08 CR 52—Charles N. Clevert, Jr., Chief Judge.

ARGUED OCTOBER 8, 2009—DECIDED JANUARY 21, 2010

Before EASTERBROOK, Chief Judge, and MANION and

TINDER, Circuit Judges.

MANION, Circuit Judge. Ted Pappas was indicted

for possession of child pornography in violation of 18

U.S.C. § 2252(a)(4)(B). Pappas pleaded not guilty and

filed a motion to suppress evidence seized during a

search of his home, as well as statements he made

during the execution of the search warrant. The district

court granted Pappas’s motion to suppress. The government appeals. We reverse.
2 No. 09-1595

I.

In May 2005, law enforcement officers in California

executed a search warrant on Michael Golubski’s America

Online email account. The search revealed that between

April and May 2005, Golubski used the email name

“ExhibMale39” to send seventeen emails to

“longtalks@aol.com,” including eleven that contained

images of child pornography. Further investigation

revealed that the email account “longtalks@aol.com”

belonged to Ted Pappas, although in June 2005, Pappas

changed his email account to TedP5785@aol.com.

Federal agent Elizabeth Hanson provided this information to an Assistant United States Attorney, and the

two discussed the propriety of obtaining a search warrant

for Pappas’s home. After concluding there was probable

cause to obtain a search warrant, Agent Hanson

presented a search warrant application and a nine-page

affidavit to a magistrate judge. Hanson’s affidavit

included a summary of her professional experience investigating child pornography. Specifically, Hanson

stated that she had ten years’ experience investigating

sexual exploitation of minors and had conducted numerous forensic examinations of computers in child pornography investigations. Hanson also described the typical

behavior of individuals who collect, procure and

distribute child pornography. She further detailed the

emails sent to Pappas, stating that over a three-week

period, Pappas had received eleven emails that included

child pornography. Hanson also included a description

of the pornographic images of children contained in three
No. 09-1595 3

of the eleven email transmissions. Additionally, Hanson

noted that Pappas continued to maintain an email

account, using the name TedP5785@aol.com.

In November 2006, based on the search warrant application and Hanson’s affidavit, a federal magistrate

judge issued a search warrant for Pappas’s residence.

According to the government, during the search, Pappas

spoke with agents and admitted he used the screen

name “longtalks” to trade adult pornography in chat

rooms and via email. He also admitted receiving images

and videos of children engaged in sexually explicit conduct, but claimed he had deleted those images. A search

of Pappas’s computer hard drive, however, uncovered

images of child pornography. Agents also discovered

that images of child pornography had been saved on a

floppy disk but were later deleted; the government was

able to recover the images.

Based on the evidence recovered during the search, a

grand jury indicted Pappas on two counts of possession

of child pornography, in violation of 18 U.S.C.

§ 2252(a)(4)(B). Pappas pleaded not guilty and filed a

motion to suppress the evidence seized during the

search and the statements he made during the execution

of the warrant. A magistrate judge recommended

granting the motion to suppress, and the district court

adopted that recommendation and suppressed the evidence seized and Pappas’s statements. The government

appeals.
4 No. 09-1595

Because the government does not argue that there was 1

probable cause to support the issuance of the search warrant, we

need not address that question; instead our focus is on whether

a reasonable officer could believe probable cause supported the

issuance of the warrant.

II.

On appeal, the government argues that while it may be

questionable whether probable cause supported the

issuance of the search warrant, the evidence seized and

Pappas’s statements are nonetheless admissible under

United States v. Leon, 468 U.S. 897 (1984). In Leon, the 1

Supreme Court articulated the good faith exception to the

exclusionary rule, holding that evidence obtained in

violation of the Fourth Amendment is nonetheless admissible if the officer who conducted the search acted in

good faith reliance on a search warrant. Id. at 922-23. “That

[an] officer[ ] obtained a warrant is prima facie evidence

of good faith.” United States v. Elst, 579 F.3d 740, 744

(7th Cir. 2009). A defendant may rebut the prima facie

evidence of good faith

by presenting evidence to establish that: (1) 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;

(2) the affidavit supporting the warrant was so

lacking in indicia of probable cause as to render

official belief in its existence entirely unreasonable;

or (3) the issuing judge was misled by information in

an affidavit that the affiant knew was false or would
No. 09-1595 5

On appeal, Pappas does not contend that the issuing judge 2

abandoned his judicial role or was misled by the affidavit.

have known was false except for his reckless

disregard of the truth.

Id. (internal quotations and citations omitted).

In this case, Pappas argues, and the district court held,

that the affidavit supporting the warrant was so lacking

in probable cause that the officers could not rely upon it

in good faith. We disagree. Here, the affidavit clearly 2

documented evidence establishing that at least eleven

images of child pornography had been sent to Pappas’s

email account and verifying that Pappas continued to

maintain email access (thus indicating continued access

to a computer on which child pornography could be

stored). Additionally, prior to seeking a warrant, Agent

Hanson consulted with an Assistant United States Attorney. Consulting “with the prosecutor prior to

applying for [a] search warrant provides additional

evidence of [that officer’s] objective good faith.” United

States v. Bynum, 293 F.3d 192, 198 (4th Cir. 2002). See

also United States v. Johnson, 78 F.3d 1258, 1264 (8th Cir.

1996) (stating that obtaining advice of a county attorney

is an indication that an officer’s reliance on a search

warrant was objectively reasonable); United States v.

Brown, 951 F.2d 999, 1005 (9th Cir. 1991) (noting “an

officer’s consultation with a government attorney is of

significant importance to a finding of good faith . . . [and

it is] of even greater importance where, as here, a point

of law relating to the scope of a Fourth Amendment
6 No. 09-1595

search and seizure was not yet settled at the time the

warrant issued”); United States v. Taxacher, 902 F.2d 867, 872

(11th Cir. 1990) (explaining that officer’s consultation

“with the local district attorney before seeking the search

warrant, and then submit[ting] the matter to a neutral

magistrate” was “indicative of objective good faith”).

In response, Pappas claims that the search warrant

application was utterly lacking in probable cause because

there is no evidence that Pappas solicited child pornography or that he even read the email messages. Rather,

Pappas maintains that because he also received adult

pornography from Golubski, the only reasonable

inference flowing from the facts is that the emails to

him were “advertisements” that do not indicate that he

knowingly possessed child pornography. That may be

one inference. But an officer could also reasonably

believe that the number of email messages containing

child pornography sent to Pappas, and the risk inherent

in sending even one image of child pornography to

anyone other than a willful recipient, was sufficient to

establish probable cause for the crime of knowing possession of child pornography. Similarly, while Pappas

maintains that the fact that he changed his email account

demonstrates that he did not want to receive child pornography, equally plausible is the conclusion that Pappas

changed his email account to avoid detection. In fact,

given that Pappas waited nearly three months after he

received the first email from Golubski to change his email

address, and that he received numerous images of child

pornography from Golubski, the latter inference seems

much more likely.
No. 09-1595 7

The government also cites our nonprecedential decision in 3

United States v. Doan, 245 Fed. Appx. 550, 555 (7th Cir. 2007),

wherein this court applied the good faith exception to a

warrant based on child pornography transmitted seventeen

months prior to the issuance of the warrant.

Pappas further argues that the search warrant application was completely lacking in indicia of probable cause

because of the eighteen-month delay between the transmission of the emails (mid-2005) and the issuance of the

search warrant (late 2006). While the recency of information contained in a search warrant application is one

factor bearing on the question of probable cause, United

States v. Watzman, 486 F.3d 1004, 1008 (7th Cir. 2007), there

is no bright line for when information is stale. United

States v. Prideaux-Wentz, 543 F.3d 954, 958 (7th Cir. 2008).

Indeed, we recently held that while four-year-old transmissions of child pornography were too stale to provide

probable cause, officers could nonetheless rely in good

faith on a search warrant issued by a magistrate judge

based on those transmissions. Prideaux-Wentz, 543 F.3d

at 958-59. Similarly, in this case, the officers reasonably 3

could have relied on the search warrant that was based

on child pornography sent eighteen months earlier.

Pappas also argues that the officers could not reasonably

rely on the warrant because the warrant application

included boilerplate language concerning the practices of

collectors of child pornography but did not include

any evidence Pappas fit that profile. In support of his

position, Pappas relies on this court’s recent decision
8 No. 09-1595

in Prideaux-Wentz, 543 F.3d 954. In Prideaux-Wentz, the

defendant argued that the search warrant affidavit was

defective because it only included boilerplate statements

about child pornography collectors generally and completely “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.” Id. at 960. We noted in Prideaux-Wentz that an

“affidavit must lay a foundation which shows that the

person subject to the search is a member of the class.” Id.

(internal quotations omitted). However, we then held

that “because the warrant connected Prideaux-Wentz to

several email accounts responsible for uploading or

possessing child pornography,” it did not take “much of

an inferential leap to conclude that Prideaux-Wentz

might be a collector of child pornography.” Id. at 961.

Accordingly, we concluded that “[t]here was sufficient

evidence to link the boilerplate statements regarding

child pornographers to the specific characteristics of

Prideaux-Wentz.” Id. at 960.

Pappas’s reliance on Prideaux-Wentz is misplaced for

several reasons. First, he reads too much into that decision. While Prideaux-Wentz explained that a search

warrant affidavit must lay a foundation showing that

the target of the search is a member of the class

identified in the warrant, there is no magic “profile” of

child pornography “collectors” that must be attested to

in a search warrant affidavit. In fact, the moniker “collector” merely recognizes that experts in the field have

found that because child pornography is difficult to
No. 09-1595 9

come by, those receiving the material often keep the

images for years. There is nothing especially unique

about individuals who are “collectors” of child pornography; rather, it is the nature of child pornography, i.e.,

its illegality and the difficulty procuring it, that causes

recipients to become “collectors.” See Watzman, 486 F.3d at

1008 (noting that the agent explained that “individuals

who view child pornography typically ‘maintain their

collections for many years’ and ‘keep and collect items

containing child pornography over long periods of

time’ ”). Thus, as Prideaux-Wentz explained, where

evidence indicates that an individual has uploaded or

possessed multiple pieces of child pornography, there

is enough of a connection to the “collector” profile to

justify including the child pornography collector

boilerplate in a search warrant affidavit. Similarly, here,

because Pappas received eleven emails containing child

pornography, inclusion of the child-pornography

boilerplate was justified.

Pappas’s reliance on Prideaux-Wentz is also misplaced

because we decided that case after the search warrant

in this case was issued. Thus, Prideaux-Wentz could not

have called into question the good faith of the officers

involved in the search of Pappas’s residence. See United

States v. Adames, 56 F.3d 737, 747 (7th Cir. 1995) (holding

that “the officers could not have known that the warrant

was invalid at the time it was executed because [the

Supreme Court precedent relied upon by the defendant

to invalidate the search warrant] was not decided

until more than a year later”). Finally, Prideaux-Wentz

held that while probable cause was lacking, the evidence
10 No. 09-1595

seized was nonetheless admissible under the Leon good

faith exception to the exclusionary rule. Similarly, the

good faith exception applies here and saves from

exclusion the evidence discovered during the search of

Pappas’s home and the statements he made during the

execution of the search warrant.

III.

A magistrate judge issued a search warrant

authorizing the search of Pappas’s residence. Even if

probable cause did not support issuance of this warrant,

Agent Hanson demonstrated a prima facie case of good

faith by obtaining a warrant in the first instance. Her

efforts to consult with an Assistant United States Attorney

prior to seeking a warrant further demonstrate her

good faith. Although there was some delay between the

transmission of child pornography to Pappas and the

issuance of the warrant, the delay was not so great as to

overcome the presumption of good faith. Nor was there

anything impermissible in including information related

to the practices of child pornography “collectors,” given

that numerous images of child pornography were sent

to Pappas. Accordingly, the district court erred in

granting Pappas’s motion to suppress. We REVERSE.

1-21-10