United States v. Michael Nixon

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 6, 2020
• Docket: 19-3262
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 20a0089n.06

No. 19-3262

UNITED STATES COURT OF APPEALS FILED Feb 06, 2020 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE ) NORTHERN DISTRICT OF MICHAEL D. NIXON, ) OHIO ) Defendant-Appellant. ) OPINION )

BEFORE: SUHRHEINRICH, STRANCH, and NALBANDIAN, Circuit Judges.

JANE B. STRANCH, Circuit Judge. Michael D. Nixon appeals the district court’s denial

of his motion to suppress evidence of child pornography and his request to obtain funds for an

expert to analyze historical cell-site and location data. We AFFIRM the decision below.

I. BACKGROUND

On November 16, 2017, the parents of a 10-year-old female victim informed the

Metropolitan Police Department for the District of Columbia that an unknown person was texting

their daughter, requesting she send nude images of herself to the phone number 360-214-1406,

and that the victim complied. Law enforcement issued an administrative subpoena to Verizon

Wireless for that number, to no avail, as Verizon identified that the number was assigned to a pre-

paid cellular phone and thus was unable to identify a subscriber. That number, however, was

associated with a complaint filed with the Bellingham, Washington Police Department on No. 19-3262, United States v. Nixon

November 10, 2017 by the father of a 17-year-old female victim who had received similar text

messages and sent nude images of herself.

Based on that information, on November 20, 2017, Magistrate Judge G. Michael Harvey

authorized a sealed search warrant directing Verizon Wireless to provide the historical cell-site

and location data for the phone number 360-214-1406. The following day, Verizon informed law

enforcement that the phone number of the target device had been changed to 360-210-2360 and

contained the following mobile equipment identifier (MEID): A00000477F7856. Judge Harvey

then issued a pen register order to Verizon for the 360-210-2360 number, authorizing the gathering

of the number’s dialing, routing, addressing, and signaling information.

Law enforcement enlisted Special Agent Jacob Kunkle, a member of the FBI’s Cellular

Analysis Survey Team, to analyze the data provided by Verizon. Kunkle reviewed the data and

determined that the device the phone number belonged to was located within a three-mile radius

of the cell towers located at State Route 95 and County Road 2704 in the Perrysville, Ohio area.

He also examined the top 25 numbers most frequently in contact with 360-210-2360 and identified

that one number, 419-496-9799, was in the geographical vicinity of the area in which the cell

towers indicated the targeted device was located. The phone number 419-496-9799 belonged to

Courtney Perry and, after searching Perry’s Facebook, law enforcement identified Michael

Gregory Nixon in a photograph with her.

Kunkle earlier had searched residences located within the target area and, upon identifying

Michael Gregory Nixon in the Facebook photograph, recognized that his name had also come up

in the target area search as someone previously residing at 929 Township Road 2375, Perrysville,

Ohio. Utilizing Ohio Law Enforcement Gateway (OHLEG) database records, Kunkle further

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identified Michael D. Nixon—Michael Gregory Nixon’s father1—as currently residing at 929

Township Road 2375, Perrysville, Ohio. An affidavit prepared by FBI officer Bryan Allen and

attached to the warrant specified that only one other residence was located within the target area,

but law enforcement had no investigative leads linking the second residence to the target number

360-210-2360.

Based on the foregoing, on November 29, 2017, Magistrate Judge Jonathan Greenberg

issued federal search warrants for the target residence, 929 Township Road 2375, Perrysville,

Ohio, and for Nixon’s person (as opposed to Gregory’s). Both warrants authorized the seizure of

a phone assigned the number 360-210-2360 and/or the MEID A00000477F7856. The warrant for

Nixon included his: photograph, physical description, date of birth, and social security number.

The FBI executed the search warrants that day and found Nixon present at the residence.

FBI agents found a Samsung Gusto 3 cellphone on Nixon’s person, which was the target phone,

and several other mobile phones and laptop computer devices in the residence. On December 11,

2017, Magistrate Judge Greenberg issued another federal search warrant for the contents of those

devices, which ultimately were found to contain child pornography.

In April 2018, Nixon was charged in a seven-count indictment with five counts of sexual

exploitation of children, in violation of 18 U.S.C. § 2251(a); one count of receipt and distribution

of visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C.

§ 2252(a)(2); and one count of possession of child pornography, in violation of 18 U.S.C.

§ 2252A(a)(5)(B). Nixon filed a motion to suppress on October 31, 2018, challenging (1) the use

of a warrant to search his person; (2) the probable cause finding that Nixon was involved in child

1 For the sake of clarity, Michael D. Nixon, the defendant, will be referred to as Nixon, and Michael G. Nixon, Nixon’s son, will be referred to as Gregory. The relationship between the two—father and son—was not specified in the affidavit.

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pornography; and (3) the cell phone data analysis concluding that the target phone was located at

929 Township Road 2375, Perrysville, Ohio. In that motion, Nixon also sought funding to obtain

an expert witness to review the historical cell-site and location data retrieved from his phone

number. And he requested a Franks hearing, claiming that the search warrant affidavit contained

blatantly false information inferring that Nixon and Gregory were the same person. The district

court denied the motion.

Nixon thereafter conditionally pled guilty to all seven counts of the indictment, reserving

his right to appeal the district court’s denial of his motion to suppress. He was sentenced to 360

months’ imprisonment for Counts 1 through 5, and 240 months’ imprisonment for Counts 6 and

7, all to be served concurrently, followed by a lifetime term of supervised release. Nixon now

appeals, challenging the district court’s denial of his request for funds to obtain an expert witness

and his motion to suppress. We discuss each in turn.

II. ANALYSIS

A. Request for Expert Witness

Nixon requested funds under the Criminal Justice Act, 18 U.S.C. § 3006A(e)(1), which

provides that a defendant may obtain a court-appointed expert if: (1) the services are necessary to

mount a plausible defense; and (2) without such authorization, the defendant’s case would be

prejudiced. United States v. Gilmore, 282 F.3d 398, 406 (6th Cir. 2002). We review the district

court’s denial of a request for expert services for an abuse of discretion. Id.

Nixon sought funds for an expert to review the accuracy of the cell-site and location data

analysis in the affidavit. The Government argues that Nixon requested a Franks hearing only on

the false inference that Nixon and Gregory were the same person and not on the accuracy of the

data, where an expert would be relevant. It posits that Nixon’s request was appropriately denied

because a probable cause determination is evaluated based only on the contents within the four

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corners of the affidavit. The record shows, however, that Nixon also requested funds for an expert

to review the accuracy of the affidavit regarding cell-site and location data. As Nixon pointed out

in his motion to suppress, “[t]he affidavit alleges a three (3) mile radius and states there was only

one other residence located in the area identified as a result of the five days of collected geo-

location data from the cellular telephone.” So Nixon claimed to be “in need of an expert witness

to review this information to determine if the allegations . . . are scientifically accurate.”

Nevertheless, Nixon fails to demonstrate a need for such an expert to mount his defense.

He relies on the complexity of analyzing the historical cell-site and location data, but does not

show how his ultimate points of contention would require an expert. For example, he takes issue

with the factual allegation that only one other residence was located within the three-mile radius

that contained Nixon’s home. The affidavit provided an explanation of the area, including the

longitudinal and latitudinal points from which Nixon could ascertain the number of residences in

the area. Moreover, Nixon does not contest the reliability or veracity of the Verizon records

handed over to law enforcement or the use of historical cell-site and location data for ascertaining

the target device’s location. Nixon primarily focuses on the need for an expert to respond because

the Government presented an expert. But without more specificity to the cell-site and location

data challenges and the necessity for an expert, we are unable to conclude that the district court’s

decision to deny Nixon funds for an expert rose to an abuse of discretion.

B. Motion to Suppress

When reviewing a motion to suppress, we review legal questions de novo and factual

findings for clear error. United States v. Davis, 514 F.3d 596, 607 (6th Cir. 2008).

Nixon argues that the affidavit supporting the search warrant was insufficient to establish

probable cause to search either his property or his person. The Fourth Amendment provides that

“no Warrants shall issue, but upon probably cause, supported by Oath or affirmation, and

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particularly describing the place to be searched, and the persons or things to be seized.” U.S.

Const. amend. IV. Probable cause is “‘reasonable grounds for belief, supported by less than prima

facie proof but more than mere suspicion,’” United States v. King, 227 F.3d 732, 739 (6th Cir.

2000) (quoting United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990)), “that ‘there is a fair

probability that contraband or evidence of a crime will be found in a particular place.’” Id. (quoting

Illinois v. Gates, 462 U.S. 213, 238 (1983)). It is a “practical non-technical conception . . . wherein

we deal with probabilities . . . which are the factual and practical considerations of everyday life

on which reasonable and prudent men, not legal technicians, act.” Id. (brackets omitted) (quoting

Gates, 462 U.S. at 231). We “may only look within the four corners of the affidavit,” and we must

“give great deference to a magistrate’s determination of probable cause.” United States v. Abboud,

438 F.3d 554, 571 (6th Cir. 2006) (citation omitted).

As detailed above, the affidavit included investigative findings from Kunkle, an expert with

experience analyzing pen register and cell-site location data. Kunkle analyzed data for the phone

number 360-210-2360 and determined that the location of the target device was within a 3-mile

radius of cell towers located at State Route 95 and County Road 2704 in Perrysville, Ohio. After

reviewing the top 25 numbers frequently in contact with the phone number, Kunkle discovered

that the number 419-496-9799, belonging to Courtney Alexis Perry, was being used in the

geographical area of the target device. Kunkle searched Perry’s Facebook and discovered a

photograph of her with Michael Gregory Nixon, a name Kunkle recognized from a prior search as

previously having resided in the geographical area of the target device, specifically at 929

Township Road 2375, Perrysville, Ohio. That residence was only one of two located in the

geographical area of the target device and, after conducting a search through OHLEG records,

Kunkle learned that Michael D. Nixon was the current resident there. Law enforcement had no

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investigative leads to the second residence located within the geographical area. The foregoing

establishes probable cause that the target device was located in, or associated with, the 929

Township Road residence. See United States v. Powell, 847 F.3d 760, 771 (6th Cir. 2017)

(agreeing “with the district court that use of a cell-site simulator to identify the six unknown cell

phones did not undermine the probable cause supporting the . . . warrants”).

That probable cause determination extends to the warrant to search Nixon’s person in this

case, particularly in that OHLEG records showed he was the current resident of 929 Township

Road. Nixon argues that the affidavit listed Gregory and Nixon as the same person, but that is

incorrect. Their names were identified separately and included either their middle name or middle

initial, in addition to the last four numbers of their social security numbers. Nixon also contends

that other online sources listed numerous possible residents of the property and other locations

where Nixon could have lived. The fact that other people have lived at the target residence in the

past or that Nixon has lived at other residences in the past does not refute OHLEG records that

listed Nixon as the current resident of 929 Township Road, as specified in the affidavit. Nixon

further argues that law enforcement should have done more to verify that Nixon resided at 929

Township Road, such as conduct surveillance, engage in a “trash pull,” and search to see if the

property was being rented out to another individual. But an “affidavit is judged on the adequacy

of what it does contain, not on what it lacks, or on what a critic might say should have been added.”

United States v. Brown, 732 F.3d 569, 573–74 (6th Cir. 2013) (quoting United States v. Allen,

211 F.3d 970, 975 (6th Cir. 2000) (en banc)). The affidavit contains sufficient factual matter to

establish probable cause that the targeted device could be found on Nixon’s person.

We AFFIRM the district court’s decision.

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