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. *

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Submitted: May 14, 2010

Filed: July 16, 2010

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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 appeal that the district

court1

 should have granted his motion to suppress 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 computer talks to the Internet. Computers

use ports to manage network traffic, thereby 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).

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I. 

The state of Wyoming maintains a database related to sharing of child

pornography files on the internet. The Wyoming database contains several types of

information, including Internet Protocol (IP) addresses that share child pornography

files, the port numbers used for sharing such files,2

 and 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 Division of Criminal Investigation with a tip

that the IP address 24.230.167.215 might be associated with internet activity involving

child pornography and might be registered to someone in South Dakota. Agent Boone

searched the Wyoming database for activity 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 searched an online database that

keeps track of which companies are issued which 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 the 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 comparing 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 Boone also downloaded and viewed the files

from the IP address, leading him 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, Agent Scherer requested a warrant to search Finley's

property and premises. In support, Agent Scherer submitted an affidavit detailing the

investigation by Agent Boone, including the fact that Agent Boone had downloaded

child pornography files from the IP address 24.230.167.215 on February 16, 2008.

The affidavit further stated:

19. SA Boone conducted an Internet search on the origin 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 States Magistrate Judge for the District

of South Dakota.

5

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

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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 result of the search

warrant, claiming that the affidavit supporting the search warrant contained a false

statement made deliberately or with reckless disregard for the truth. Specifically,

Finley asserted that there is nothing to support the statement in ¶ 19 that Finley's

account accessed the IP address 24.230.167.215 on February 16, 2008 (i.e., "the date

and time that SA Boone downloaded the files 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 judge4

 granted Finley's request for a Franks5 hearing. At the

hearing, Agent Scherer testified that his affidavit was based on information relayed

by Agent Boone and that Agent Boone reviewed and approved the affidavit. Agent

Boone acknowledged that the information from Midcontinent was limited to the time

period ending February 14. He also acknowledged that, on February 16, he did not

know who was accessing the IP address when he 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 were consistent throughout that

time period. These consistencies, according to Agent Boone, eliminated the

possibility that another computer was responsible 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).

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The magistrate judge denied Finley's motion 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 the 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 suppress 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 the warrant affidavit "a false

statement knowingly and intentionally, or with 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 search [must be] excluded to the same extent as

if probable cause was lacking on the 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 falsehood was deliberate. Rather, the question presented in

this appeal is whether Finley has shown that 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
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for clear error, see United States v. Lucas, 499 F.3d 769, 775 (8th Cir. 2007) (en banc)

(district court's factual determinations are reviewed 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 evidence, 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 notice and understand the

falsehood. To be sure, the affidavit falsely represented that Midcontinent's subpoena

response addressed the date on which Agent Boone downloaded child pornography

files from the relevant IP address. Moreover, ¶ 19 was the only portion of the

affidavit connecting Agent Boone's investigation 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 judge, having listened to

testimony from Agents Boone and Scherer, concluded that there was no evidence

showing reckless disregard for the truth of the matters asserted in ¶ 19. The district

court acknowledged the falsehood 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 inference suggested in that paragraph was supported by
7

Finley argues that it is improper to consider information beyond the four

corners of Agent Scherer's affidavit in order to validate the search warrant. In support,

he cites cases stating that the government cannot use extrinsic evidence to rehabilitate

affidavits that contain insufficient information 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 the facts in the affidavit were

insufficient to establish probable 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 contains 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 would 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 omitted information would have supported the

search warrant.

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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 deliberate or reckless falsehood, we do not

reach the question of whether the remaining facts in Agent Scherer's affidavit were

sufficient to establish probable cause. Similarly, we do not address 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 makes a substantial showing that the affiant

intentionally or recklessly misstated or omitted facts."). 
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III.

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

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