1 The Honorable Lawrence L. Piersol, United States District Judge for the District of South Dakota. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-3159

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * District of South Dakota. Todd Randall Finley, *
* Appellant. *

___________ Submitted: May 14, 2010 Filed: July 16, 2010

___________ Before BYE, MELLOY, and SHEPHERD, Circuit Judges.

___________ MELLOY, Circuit Judge. Todd Randall Finley pleaded guilty to possession of child pornography and receipt and distribution of child pornography. He argues in this app eal that the district
court 1 should have granted his motion to suppr ess evidence seized pursuant to a search warrant because an affidavit submitted in support of the search warrant contained a false statement. We affirm.2 A port is the conduit for which the comput er talks to the Internet. Computers use ports to manage network traffic, ther eby allowing different applications on the same computer to share network resources simultaneously. Ports are identified by a number, commonly known as a port number.

3 The SHA is a mathematical algorithm that allows for unique identification of digital images and videos. SHA values are, in essence, unique digital fingerprints or signatures. See United States v. Klynsma , No. CR. 08-50145-RHB, 2009 WL 3147790, at *6 (D.S.D. Sept. 29, 2009).
-2- I.

The state of Wyoming maintains a database related to sharing of child pornography files on the internet. The Wyoming database contai ns several types of information, including Internet Protocol (IP) addresses that share child pornography files, the port numbers used for sharing such files, 2and the Secure Hash Algorithm (SHA) value of known child pornography files. 3

In February 2008, a law enforcement officer in Wyoming contacted Special Agent Troy Boone of the South Dakota Divisi on of Criminal Investigation with a tip that the IP address 24.230.167.215 might be asso ciated with internet activity involving child pornography and might be registered to someone in South Dakota. Agent Boone searched the Wyoming database for ac tivity involving the IP address 24.230.167.215, which revealed that known child pornography images were being shared on that IP address from February 2–14. Agent Boone then searchedan online database that keeps track of which companies are issuedwhich IP addresses. The IP address in question was registered to Midcontinent Communications in South Dakota. Agent Boone sent Midcontinent a subpoena on February 14 to determine who had access to the IP address 24.230.167.215 from February 2–14. Midcontinent responded four days later, stating that th e only account that accessed the IP address on those dates was Finley's account.-3- On February 16, 2008, Agent Boone accessed a file-sharing network and reviewed a publicly available list of 868 files located at the IP address 24.230.167.215. By compar ing the SHA values of the file list with the database of known child pornography files, Agent Boone confirmed that several of the files offered from the IP address have previously been identified through their SHA values as depicting child pornography. Agent Boonealso downloaded and viewed the files from the IP address, leading hi m to conclude that the files contained images consistent with child pornography. Agent Boone then contacted Agent Craig Scherer of U.S. Immigration and Customs Enforcement (ICE) regarding potential violations of federal child pornography laws.

On February 27, 2008, Agen t Scherer requested a warrant to search Finley's property and premises. In support, Agent Scherer submitted an a ffidavit detailing the investigation by Agent Boone, including the fact that Agent Boone had downloaded child pornography files from the IP a ddress 24.230.167.215 on February 16, 2008. The affidavit further stated:

19. SA Boone conducted an Internet search on the or igin of the IP address 24.230.167.215 and found it to be issued to a DSL modem subscriber with Midcontinent Communications. On February 18, 2008, SA Boone received the results of a subpoena request from Midcontinent Communications which indicated that one account had been accessing the IP address 24.230.167.215 on the date and time that SA Boone downloaded the files containing child pornography. The account contained the following information: Name: Todd Finley

ICE executed the search warrant on February 28, 2008 at Finley's residence in Vermillion, South Dakota. During the search , several items were seized, including a hard drive containing over two hundred video clips of child pornography. Finley was indicted for receipt and distribution of child pornography in violation of 18 U.S.C. §4 The Honorable John E. Simko, United Stat es Magistrate Judge for the District of South Dakota.

5 Franks v. Delaware , 438 U.S. 154 (1978).
-4- 2252A(a)(2)(A) and possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A).

Finley moved to suppress the evidence obtained as a re sult of the search warrant, claiming that the affidavit supporting the search warrant contained a false statement made deliberately or with reckle ss disregard for the truth. Specifically, Finley asserted that there is nothing to support the statement in ¶ 19 that Finley's account accessed the IP addre ss 24.230.167.215 on February 16, 2008 (i.e., "the date and time that SA Boone downloaded the f iles containing child pornography"). Agent Boone's inquiry to Midcontinent was limited to the dates of February 2–14. Therefore, Finely argues, the statement in¶ 19 was false to the extent it connected Finley to the IP address beyond that limited time period.

A magistrate judge 4 granted Finley's request for a Franks 5 hearing. At the hearing, Agent Scherer testified that his affidavit was based on information relayed by Agent Boone and that Agent Boone review ed and approved the affidavit. Agent Boone acknowledged that the information from Midcontinent was limited to the time period ending February 14. He also acknow ledged that, on February 16, he did not know who was accessing the IP address whenhe downloaded files containing child pornography. Agent Boone explained that IP addresses are capable of belonging to different people throughout time. Nevertheless, he testified that there must have been only one subscriber to IP address 24. 230.167.215 from February 2 through February 16 because the IP address, port number, and file list wereconsistent throughout that time period. These consistencies, acco rding to Agent Boone, eliminated the possibility that another computer was respons ible for sharing of the files containing child pornography.6 See also United States v. Elliot , 322 F.3d 710, 714 (9th Cir. 2003) (reviewing for clear error the district court's findings whether a statement was intentionally or recklessly made); United States v. Bonds , 12 F.3d 540, 568–69 (6th Cir. 1993) (same); United States v. Jones , 913 F.2d 174, 176 (4th Cir. 1990) (same).
-5- The magistrate judge denied Finley's mo tion to suppress, concluding that Finley "ultimately failed to prove that ¶ 19 contains a deliberate or reckless falsity." The district court reached the same conclusion, finding that the false statement in ¶ 19 was neither a knowingly nor recklessly false statement. The district court relied on the good-faith-reliance doctrine from United States v. Leon , 468 U.S. 897 (1984), and emphasized that there is no suggestion in th e record that Agent Scherer misled the judge issuing the search warrant. Finley then pled guilty to both counts in the indictment. In this appeal, he alleges that the motion to s uppress should have been granted because a Franks violation occurred and that Leon 's good faith exception to the exclusionary rule is inapplicable.

II.

To void a search warrant under Franks , a defendant must show by a preponderance of evidence that (1) the affiant included in th e warrant affidavit "a false statement knowingly and intentionally, or w ith reckless disregard for the truth," and (2) "the affidavit's remaining content is insufficient to establish probable cause." Franks v. Delaware , 438 U.S. 154, 155–56 (1978); see also United States v. Buchanan , 574 F.3d 554, 561 (8th Cir. 2009). If a defendant shows a Franks violation, then the "the fruits of the sear ch [must be] excluded to the same extent as if probable cause was lacking on th e face of the affidavit." Franks , 438 U.S. at 156. The government does not contest that ¶ 19 contains a literal falsehood, and Finley does not argue that the fals ehood was deliberate. Rather, the question presented in this appeal is whether Finley has shown th at the falsehood in ¶ 19 of the affidavit was made with reckless disregard for the truth. That underlying question is a factual one,

see United States v. Trzaska , 111 F.3d 1019, 1028 (2d Cir. 1997), 6 which we review-6- for clear error, see United States v. Lucas , 499 F.3d 769, 775 (8th Cir. 2007) (en banc) (district court's factual determinations are re viewed for clear error). Clear error exists where, viewing the record as a whole, we are "left with the definite and firm conviction that a mistake has been committed." Perkins v. Grimes , 161 F.3d 1127, 1130 (8th Cir. 1998) (quotation omitted).

The applicable test is "not simply whether the affiant acknowledged that what he reported was true, but whether, viewing all of the evid ence, the affiant must have entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported." United States v. Clapp , 46 F.3d 795, 801 n.6 (8th Cir. 1995). To prevail, a defendant must show more than negligence or an innocent mistake. Franks , 438 U.S. at 171; United States v. Butler , 594 F.3d 955, 961 (8th Cir. 2010).

Finley argues that ¶ 19 of Agent Scherer' s affidavit was so important that it is "inconceivable" that Agent Boone could have failed to noti ce and understand the falsehood. To be sure, the affidavit fals ely represented that Midcontinent's subpoena response addressed the date on which Agent Boone downloaded child pornography files from the relevant IP address. Mo reover, ¶ 19 was the only portion of the affidavit connecting Agent Boone's investig ation with Finley. However, materiality of a falsehood is not determinative of the affiant's state of mind. See United States v. Bulgatz , 693 F.2d 728, 732 (8th Cir. 1982) (defendants' Franks challenge failed where they argued a misstatement in an affidavit was material but offered no proof that the misstatement was reckless or deliberate). The magistrate j udge, having listened to testimony from Agents Boone and Scherer, concluded that there was no evidence showing reckless disregard for the truth of th e matters asserted in ¶ 19. The district court acknowledged the false hood and similarly found that there was no evidence of a reckless disregard for the truth. From this record, we are not left with the definite and firm conviction that a mistake has been committed. Although ¶ 19 of the affidavit contained a falsehood, the in ference suggested in thatparagraph was supported by7 Finley argues that it is improper to consider information beyond the four corners of Agent Scherer's affidavit in orde r to validate the search warrant. In support, he cites cases stating that the government cannot use extrinsic ev idence to rehabilitate affidavits that contain insufficient inform ation to demonstrate probable cause. See, e.g., Whitely v. Warden , 401 U.S. 560, 564–65 & n.8 (1971); United States v. Montes-Medina , 570 F.3d 1052, 1059 (8th Cir. 2009). However, this case involves an alleged Franks violation—not a claim that th e facts in the affidavit were insufficient to establish proba ble cause. Significantly, Franks requires an evidentiary hearing to evaluate the veracity of a warrant affidavit if a defendant makes a preliminary showing that the affidavit cont ains an intentional or reckless falsehood necessary to the finding of probable cause . 438 U.S. at 155–56. Refusing to consider evidence from beyond the affidavit woul d contravene the purpose of a Franks hearing and run contrary to common sense. Instead, as we have stated, evaluating an affiant's state of mind requires us to view "all of the evidence." Clapp , 46 F.3d at 801 n.6.

8 We have stated that omission of material information from an affidavit can form the basis of a Franks violation where the additional information would have negated probable cause. See, e.g. , United States v. Neal , 528 F.3d 1069, 1073 (8th Cir. 2008). Here, by comparison, the omitte d information would have supported the search warrant.
-7- other facts known by Agent Boone at that time—e.g., the consistent IP address, port number, SHA values, and file list. 7 Omission of those details may be a product of negligence, but only a reckless or deliberate falsehood violates Franks

. 8 438 U.S. at 171; see also Clapp , 46 F.3d at 801.

As there has been no showing of a de liberate or reckless falsehood, we do not reach the question of whether the remaini ng facts in Agent Scherer's affidavit were sufficient to establish probable cause. Si milarly, we do not a ddress whether the good faith exception to the exclusionary rule applies in this case, although we note that our precedent appears to foreclose such a result if a Franks violation has occurred. See United States v. Gipp , 147 F.3d 680, 688 (8th Cir. 1998) ("[Leon 's] good faith exception will not apply if a defendant make s a substantial showi ng that the affiant intentionally or recklessly misstated or omitted facts.").-8- III.

For the foregoing reasons, the judgment of the district court is affirmed.

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