United States v. Arnold D. Holland

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 7, 2023
• Docket: 22-11819
• Status: Unpublished

Opinion

USCA11 Case: 22-11817 Document: 38-1 Date Filed: 11/07/2023 Page: 1 of 13

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 22-11817 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ARNOLD D. HOLLAND, a.k.a. manboy12,

Defendant-Appellant.

Appeals from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:03-cr-00336-CAP-AJB-1 USCA11 Case: 22-11817 Document: 38-1 Date Filed: 11/07/2023 Page: 2 of 13

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No. 22-11819 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ARNOLD D. HOLLAND, a.k.a. Threezy3Three, a.k.a. A.D.,

Appeals from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:19-cr-00399-MLB-JKL-1 ____________________

Before LAGOA, BRASHER, and TJOFLAT, Circuit Judges. PER CURIAM: USCA11 Case: 22-11817 Document: 38-1 Date Filed: 11/07/2023 Page: 3 of 13

22-11817 Opinion of the Court 3

Arnold Holland appeals his 468-month sentence and the rev- ocation of his supervised release after pleading guilty to eight counts of producing child pornography. Holland challenges the District Court’s denial of his motion to suppress evidence. He ar- gues that his probation officer did not have reasonable suspicion to search his home because the information prompting the search was stale. Holland also claims that the District Court committed plain error by not finding a term of his supervised release unconstitution- ally vague. We hold that the District Court did not err. The totality of the circumstances and collective knowledge of the officers sup- ported a reasonable suspicion to search Holland’s home, and the information supporting their reasonable suspicion was not stale about a year later. Nor need we address Holland’s vagueness claim because the exact definition of “sexually oriented material” as a vi- olation of his compliance contract is irrelevant to whether reason- able suspicion existed. Accordingly, we affirm. I. In 2004, Defendant Holland was sentenced to 151 months’ imprisonment after pleading guilty to ten counts of receiving child pornography. He was released from custody in July 2014 and com- menced a three-year term of supervised release. Before and during his supervised release, Holland resided at Dismas House, a halfway house. In February 2015, he was expelled from Dismas House for possessing a cell phone with photo capabilities, violating house rules. USCA11 Case: 22-11817 Document: 38-1 Date Filed: 11/07/2023 Page: 4 of 13

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About two years later, Holland’s probation officer visited Holland at his residence. Inside, the officer discovered multiple un- authorized cell phones in Holland’s possession. When asked if the phones contained pornography, Holland said that “there would be ages 16 and up.” After confiscating and searching the phones, the officer initiated proceedings to revoke Holland’s supervised release for breaching his compliance contract. The violations included possessing seven unauthorized cell phones with internet capabili- ties and two phones (of the seven) containing sexually oriented ma- terial or pornography. Holland admitted to these violations. The District Court re- voked his supervised release and sentenced him to one day in prison and two years of supervised release, six months to be served at Dismas House. All other general and special conditions of Hol- land’s supervised release applied from the original judgment and commitment. Holland entered a new sex offender compliance contract as part of his supervised release terms. He agreed not to possess, pur- chase, or subscribe to any sexually oriented material or pornogra- phy, including through mail, computer, telephone (900 numbers), video, or television; and not to visit any venues offering it. He had to obtain written approval from his probation officer before using any electronic bulletin board system, internet services, or com- puter networks, which included allowing routine inspections of his computer systems and media storage. Holland also agreed that any computer system he could access was subject to inspection and USCA11 Case: 22-11817 Document: 38-1 Date Filed: 11/07/2023 Page: 5 of 13

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permitted confiscation and disposal of any contraband found. In short, Holland could not (1) possess any sexually oriented material, (2) use the internet without prior authorization, or (3) possess any internet-accessible cell phones. In March 2018, Shannon Brewer, a Senior U.S. Probation Of- ficer, assumed Holland’s supervision. In preparation, she reviewed Holland’s prior case materials, such as his presentence investigation report, judgment and commitment documents, case-related rec- ords, notes from previous officers, and his compliance contract. Officer Brewer learned that Holland had prior charges related to sexual offenses against minors, including a mistrial in 1996 and the dismissal of a 1999 case. She also learned that federal agents recov- ered Holland’s diary after the 1996 case’s dismissal, revealing en- tries about his relationship with the victim and efforts to coerce the victim into recanting his accusations against Holland. Officer Brewer’s review also revealed Holland’s 2004 federal conviction, 2015 expulsion from Dismas House, and 2017 revocation of his su- pervised release. Further, she learned that, according to a psycho- sexual evaluation in 2014, Holland had a high risk of reoffending. On March 31, 2018, the National Center for Missing and Ex- ploited Children (NCMEC) received a cybertip 1 that, in December

1 Special Agent Elizabeth Bigham clarified that cybertips are mandated by fed-

eral law, requiring internet service providers to report any form of child por- nography, child sex trafficking, or online exploitation of a child to the NCMEC. See 18 U.S.C. § 2258A. This obligation extends to all platforms, like Google, Instagram, Snapchat, and other online services. The information is reported to the NCMEC in the form of a cybertip. USCA11 Case: 22-11817 Document: 38-1 Date Filed: 11/07/2023 Page: 6 of 13

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2017 and January 2018, an individual under the username “yungcool1s” uploaded four images of prepubescent boys to Insta- gram. Instagram disclosed that the account’s display name was “Yung In Atl” and provided the associated email address, branbarn90@gmail.com. NCMEC passed this tip along to the Georgia Bureau of Investigation (GBI), which assigned the case to Special Agent (SA) Bigham on April 26, 2018. The information provided to the GBI included the IP ad- dress used to upload one of the images. SA Bigham, using public data, determined that T-Mobile owned the IP address, suggesting that the upload came from a mobile device. But when she subpoe- naed T-Mobile, it no longer had information on that address. A subpoena to Google for information on the Gmail account, how- ever, revealed that the account was linked to the phone number (404) 914-4767. Further investigation uncovered that Holland had listed this number on his Georgia driver’s license. Delving deeper into Holland’s background, SA Bigham dis- covered his criminal history, including a previous conviction for child exploitation and sex offender registration. SA Bigham reached out to the NCMEC for information on the username “yungcool1s,” revealing a December 2018 cybertip from Tumblr, a platform often exploited by offenders for the distribution and ex- change of child pornography. 2 The tip documented many broken links alleged to have contained child pornography. On January 3, 2019, SA Bigham notified Officer Brewer that the GBI had received intelligence about Holland. The exact details

2 SA Bigham described Tumblr as a “website that you can blog on,” “post pic-

tures [and] videos,” and “chat with people.” USCA11 Case: 22-11817 Document: 38-1 Date Filed: 11/07/2023 Page: 7 of 13

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of the conversation were not fully recalled but SA Bigham shared the findings of her investigation: Holland was seemingly posting erotic images of ten- to twelve-year-old boys to Instagram. SA Bigham explained that the boys in the photographs were not fully unclothed but that outlines of their genitals were visible. She also confirmed that the phone number on Holland’s driver’s license was associated with the Instagram account. Neither Officer Brewer nor SA Bigham recalled whether SA Bigham shared the specific upload dates of the four images. After speaking with SA Bigham, Officer Brewer worried that Holland was violating the terms of his release. She suspected that Holland might have had unauthorized cell phones in his possession and was using them to store sexually explicit material and access social media. On January 14, 2019, Officer Brewer and other probation of- ficers searched Holland’s residence. They discovered four unau- thorized cell phones, which contained the evidence used in the criminal charges now brought against Holland. SA Bigham was present during the search but she did not participate; instead, she waited outside with other GBI officers while interviewing Holland. Holland moved to suppress the search of his home, the sei- zure of the phones, and, in turn, the search of the phones. The Magistrate Judge determined that the totality of the circumstances established reasonable suspicion that Holland had breached the conditions of his release and recommended denying Holland’s mo- tion. The District Court adopted the Magistrate Judge’s recom- mendation, leading to this appeal. USCA11 Case: 22-11817 Document: 38-1 Date Filed: 11/07/2023 Page: 8 of 13

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II. Holland claims that the District Court erred in concluding that Officer Brewer had reasonable suspicion that he was violating his supervised release terms. He says Officer Brewer’s suspicion was based on stale information because the Instagram photos were posted a year before the search. He also contends that the “sexually oriented material” clause rendered his compliance contract overly broad and void for vagueness. The Government responds that the officers’ collective knowledge before the search provided reasonable suspicion. It as- serts that Holland’s staleness argument overlooks the totality of the circumstances known to the officers. In reply, Holland concedes that Officer Brewer only needed reasonable suspicion of a violation or a new crime but attacks the use of the officers’ collective knowledge. Holland maintains that the collective knowledge doctrine applies only if officers act as a team and request action from one another, which, per Holland, was not the case here. III. This Court reviews a district court’s denial of a motion to suppress de novo. United States v. Carter, 566 F.3d 970, 973 (11th Cir. 2009) (per curiam). We view all evidence in the light most favora- ble to the prevailing party. Id. “The touchstone of the Fourth Amendment is reasonable- ness . . . .” United States v. Knights, 534 U.S. 112, 118, 122 S. Ct. 587, 591 (2001). We assess the reasonableness of a search by balancing USCA11 Case: 22-11817 Document: 38-1 Date Filed: 11/07/2023 Page: 9 of 13

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its intrusion upon an individual’s privacy against its necessity for advancing legitimate government interests. See id. at 118–19, 122 S. Ct. at 591. A search may be supported by reasonable suspicion “[w]hen a probationer has a condition of probation reducing his expectation of privacy, and the government has a higher interest in monitoring the probationer due to the nature of his criminal his- tory.” Carter, 566 F.3d at 975. “Such limitations are permitted be- cause probationers have been convicted of crimes and have thereby given the state a compelling interest in limiting their liberty in or- der to effectuate their rehabilitation and to protect society.” Owens v. Kelley, 681 F.2d 1362, 1367 (11th Cir. 1982). “Reasonable suspicion consists of a sufficiently high proba- bility that criminal conduct is occurring to make the intrusion on the individual’s privacy interest reasonable.” United States v. Yuknav- ich, 419 F.3d 1302, 1311 (11th Cir. 2005) (quoting Knights, 534 U.S. at 121, 122 S. Ct. at 592). Courts will look to the totality of the circumstances of each case and determine whether the officer had a “particularized and objective basis for suspecting legal wrongdo- ing.” Id. (quoting United States v. Perkins, 348 F.3d 965, 970 (11th Cir. 2003)). “The officer must ‘be able to point to specific and articula- ble facts which, taken together with rational inferences from those facts, reasonably warrant’” the search. Id. (quoting United States v. Boyce, 351 F.3d 1102, 1107 (11th Cir. 2003)). Reasonable suspicion is also determined from the collective knowledge of the officers. See United States v. Nunez, 455 F.3d 1223, 1226 (11th Cir. 2006) (per curiam). To examine collective USCA11 Case: 22-11817 Document: 38-1 Date Filed: 11/07/2023 Page: 10 of 13

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knowledge, the officers must have at least maintained “a minimal level of communication during their investigation.” United States v. Willis, 759 F.2d 1486, 1494 (11th Cir. 1985). In United States v. Esle, this Court held that there was ample communication to apply the collective knowledge principle where one officer, who had proba- ble cause for a search, was in contact with a second officer in setting up the search and was present in the vicinity at the time of the search, and the second officer testified that another agent told him about the basis for the probable cause. 743 F.2d 1465, 1476 (11th Cir. 1984) (per curiam), overruled on other grounds by United States v. Blankenship, 382 F.3d 1110, 1122 n.23 (11th Cir. 2004). Moreover, reasonable suspicion “does not require officers to catch the suspect in a crime. Instead, [a] reasonable suspicion of criminal activity may be formed by observing exclusively legal ac- tivity.” United States v. Harris, 526 F.3d 1334, 1337 (11th Cir. 2008) (per curiam) (alteration in original) (quoting United States v. Acosta, 363 F.3d 1141, 1145 (11th Cir. 2004)). Here, Officer Brewer and SA Bigham had a “particularized and objective basis for suspecting” that Holland was violating the conditions of his release. When the search occurred, they knew that four erotic images of minor boys were uploaded from an In- stagram account traced to the phone number on Holland’s driver’s license and that the Instagram account’s username, “Yung In Atl,” signified that the user lived in Atlanta, where Holland lives. They also knew that Holland had a history of possessing child pornogra- phy and a sexual interest in minor boys; that he had a high risk of USCA11 Case: 22-11817 Document: 38-1 Date Filed: 11/07/2023 Page: 11 of 13

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reoffending, as shown by his psychosexual evaluation and criminal history; that in 2015 he used unauthorized devices and exchanged pornography with men from prison; and that in January 2017 he possessed seven unauthorized cell phones. Together, these facts reasonably warranted the search. As to the collective knowledge doctrine, sufficient commu- nication existed between SA Bigham and Officer Brewer to exam- ine their collective knowledge. Once SA Bigham believed Holland uploaded the images, she provided Officer Brewer with a synopsis of her investigation. Officer Brewer then gave SA Bigham infor- mation about Holland’s criminal history. Like the officers in Else, Officer Brewer and SA Bigham then had several follow‑up conver- sations to coordinate the search, which SA Bigham was on‑site for. See Esle, 743 F.2d at 1476. Holland’s argument that the Instagram images are not sex- ually oriented material prohibited by his conditions of supervised release fails. The images posted to Instagram, even if not them- selves sexually oriented, supported a reasonable suspicion that Hol- land possessed other material that was sexually oriented and that he was violating the terms of his supervised release. Holland’s staleness argument also fails. The staleness doc- trine requires that information supporting reasonable suspicion ex- ist at the time of the search. United States v. Touset, 890 F.3d 1227, 1237–38 (11th Cir. 2018). That said, there is no rule or set time limit for when information becomes stale. Id. at 1238. We determine staleness by evaluating a case’s particular facts, including the time, USCA11 Case: 22-11817 Document: 38-1 Date Filed: 11/07/2023 Page: 12 of 13

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the suspected crime’s nature, the accused’s habits, the character of the items sought, and the nature and function of the premises to be searched. Id. In child pornography cases, we have recognized that evi- dence is less susceptible to staleness. See id. This is so for two rea- sons. First, given the challenges in obtaining it, collectors of child pornography tend to hold onto their sexually explicit materials, rarely if ever disposing of them. See id. Second, because the mate- rial is stored electronically, it does not spoil or get consumed like other evidence and can remain on a device after deletion. See Touset, 890 F.3d at 1237–38. In Touset, we held that evidence of the defendant’s payments to a Western Union account linked to a phone number that was associated with an email address contain- ing child pornography “was not stale about a year and a half later.” See id. We are persuaded that the above reasoning applies here. The information connecting the Instagram account used to upload explicit images of prepubescent boys and the phone number on Holland’s driver’s license was not stale over a year later when Of- ficer Brewer searched Holland’s home. IV. Holland also argues for the first time on appeal that the term of his supervised release prohibiting him from possessing sexually oriented material is void for vagueness. Even so, the very nature of the photographs uploaded to Instagram—independent of their status as a violation of that term of his supervised release— USCA11 Case: 22-11817 Document: 38-1 Date Filed: 11/07/2023 Page: 13 of 13

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combined with the other factors discussed above, does not negate reasonable suspicion that Holland was violating other terms of his supervised release, like accessing the internet and possessing unau- thorized cellphones. So, the exact definition of “sexually oriented material” as a violation of Holland’s compliance contract is irrele- vant to whether the officers had reasonable suspicion. Thus, this Court need not consider Holland’s argument that the term “sex- ually oriented material” is unconstitutionally vague. V. Because the totality of circumstances and collective knowledge of the officers support a reasonable suspicion that Hol- land was violating the conditions of his supervised release at the time the search was executed, the District Court’s judgment is AFFIRMED.