United States v. Brett William Kirkham

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 16, 2018
• Docket: 17-13362
• Status: Unpublished

Opinion

Case: 17-13362 Date Filed: 04/16/2018 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-13362 Non-Argument Calendar ________________________

D.C. Docket No. 7:16-cr-00229-LSC-HNJ-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRETT WILLIAM KIRKHAM,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Alabama ________________________

(April 16, 2018)

Before MARCUS, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:

Brett Kirkham appeals from his convictions for enticement of a minor to

engage in prostitution, 18 U.S.C. § 2422(b), and possession of child pornography,

18 U.S.C. § 2252A(a)(5)(B). He argues that the district court erred in denying his Case: 17-13362 Date Filed: 04/16/2018 Page: 2 of 4

motion to suppress evidence obtained pursuant to a search warrant, because the

affidavit in support of the warrant was based on stale information. After thorough

review, we affirm.

“A district court’s denial of a motion to suppress is a mixed question of law

and fact.” United States v. Frank, 599 F.3d 1221, 1228 (11th Cir. 2010). We

review factual findings for clear error, but review the district court’s application of

the law to those facts de novo. Id. We also review de novo a district court’s ruling

on probable cause. United States v. Butler, 102 F.3d 1191, 1199 (11th Cir. 1997).

“Probable cause to support a search warrant exists when the totality of the

circumstances allow a conclusion that there is a fair probability of finding

contraband or evidence at a particular location.” United States v. Brundidge, 170

F.3d 1350, 1352 (11th Cir. 1999). However, “the information supporting the

government’s application for a warrant must show that probable cause exists at the

time the warrant issues.” United States v. Lopez, 649 F.3d 1222, 1246 (11th Cir.

2011) (quotations omitted). In deciding if supporting information is “stale,” we do

not apply arbitrary time limits, but consider the particular facts of the case, like the

maturity of the information, the nature of the suspected crime, the habits of the

accused, the character of the items sought, and the nature and function of the area

to be searched. United States v. Harris, 20 F.3d 445, 450 (11th Cir. 1994).

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The “good-faith exception” prevents the suppression of “reliable physical

evidence seized by officers reasonably relying on a warrant issued by a detached

and neutral magistrate.” United States v. Leon, 468 U.S. 897, 913 (1984). The

good faith exception does not apply, however, where the underlying affidavit is “so

lacking in indicia of probable cause as to render official belief in its existence

entirely unreasonable.” Id. at 923 (quotations omitted).

Here, the district court did not err in denying Kirkham’s motion to suppress.

As the record reflects, the evidence in question consisted of nude photographs of a

minor victim that were taken at some point during the four years before the search

warrants were issued. The evidence was obtained pursuant to two search warrants

that local law enforcement obtained in June 2016, for Kirkham’s home, computers,

cell phones, and hard drives, because they had evidence that Kirkham, a school

official, violated Ala. Code § 13A-6-81, by having a sexual relationship with a

student under the age of 19. At the hearing on the motion, it was disclosed that

sexual activity between the victim and Kirkham began when the victim was 16

years old and occurred between January 1, 2014, and January 1, 2016. It was also

revealed that the photographs began to be taken when the victim was 14,

presumably in or about 2012. Thus, when the first affidavit was signed on June 14,

2016, the information was at least six months old at that time.

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We recognize that the affidavit provided no clear time frame to establish

probable cause that evidence of Kirkham’s relationship with the victim still existed

when the warrant was obtained. However, even if the affidavit was insufficient to

establish probable cause, we cannot say that the officers were “entirely

unreasonable” in believing that it was sufficient. The affidavit provided that the

victim had sent nude photographs of himself to Kirkham “since he was 14 years

old,” suggesting -- although not precisely saying -- that sending nude photographs

was an ongoing occurrence. That implication was bolstered by the statement that

the victim had “observed numerous pornographic images” of himself on

Kirkham’s computer. Additionally, the affidavit said that Kirkham and the victim

had been in a sexual relationship “over the last two years” and had engaged in

sexual intercourse several times. On this record, it would not be unreasonable,

much less “entirely unreasonable” for an officer to believe that a man who received

numerous nude photographs from a boy with whom he had a two-year sexual

relationship would still possess those photographs, even if the relationship had

ended. Thus, the district court did not err in concluding that the good-faith

exception applied, or in denying the motion to suppress.

AFFIRMED.