Argued, April 1, 2014
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:12-cr-114-JMS-DKL-1 -- Jane E. Magnus-Stinson, Judge.
For United States of America, Plaintiff - Appellee: Zachary Augustus Myers, Office of The United States Attorney, Indianapolis, IN.
For James v. Carroll, Defendant - Appellant: Sara J. Varner, Indiana Federal Community Defenders, Inc., Indianapolis, IN.
Before TINDER and HAMILTON, Circuit Judges, and KAPALA, District Judge.[*]
Kapala, District Judge
Defendant-Appellant, James V. Carroll, pled guilty
to one count of possession of child pornography, in violation of 18 U.S.C. §
2252(a)(4)(B), and six counts of sexual exploitation of a child, in violation of
18 U.S.C. § 2251(a). Carroll now appeals the district court's denial of his
motion to suppress having reserved the right to do so in his plea agreement. We
On February 7, 2012, a thirteen-year-old girl reported that she had been molested
by Carroll when she was eight years old. On March 1, 2012, Detective Kurt B. Spivey of the Indianapolis Metropolitan Police Department began an investigation. On the same date, Detective Spivey presented a search warrant affidavit to a judge of the Superior Court of Marion County, Indiana, seeking to search Carroll's residence for evidence of child pornography and sexual exploitation of a child.
In his affidavit, Detective Spivey outlined his sixteen years of law enforcement experience including the last seven during which he primarily conducted child pornography and child exploitation investigations. Detective Spivey indicated that through his training and experience he developed a working knowledge and understanding that collectors of child pornography go to great lengths to secure and maintain their collections. According to Detective Spivey, child pornography collectors value and retain their collections because the images supply sexual gratification, are difficult to obtain, present a threat of prosecution, carry a highly negative stigma, and are used to trade for new images. Detective Spivey explained that it is common to find discarded or outdated computers stored in closets, basements, or attics for long periods of time and that even deleted images may be retrieved years later through a forensic process. In particular, Detective Spivey indicated that in the past he found digitally stored images that were being used for sexual gratification up to five years after the images were created. He also noted that with current technology, images may be copied with the touch of a button between memory sticks and other storage devices with great ease and speed allowing images to be placed on multiple devices within a house. These devices provide a highly mobile source of storage which can easily be removed from a computer or other device and hidden.
Detective Spivey swore that on February 7, 2012, the victim reported that when she was eight years old she was molested by Carroll, a former babysitter who was also a friend and co-worker of her father. She reported that Carroll fondled her vagina, underneath her clothing, while on the couch. She also advised that Carroll showed her digital images on his camera of children that were younger than her in partial states of undress. The children were posed in front of professional back drops in " Victoria Secrets [sic] type pictures." She described the camera as Carroll's camera with the big lens. Additionally, she reported that an adult male she believed to be Carroll entered her bedroom, lifted her gown, and photographed her bare genitalia. She did not open her eyes, but believed it to be Carroll because the only other adult in the residence was her father, and she did not think it was him. She did not see the camera, but when she heard it operate she immediately believed it to be Carroll's camera. She explained that she knew Carroll to be a professional photographer, had spent time around Carroll with his camera, and was familiar with its operation.
Detective Spivey swore further that the victim's father advised that he works with Carroll, and that Carroll is a professional photographer. The father indicated that Carroll has a desktop computer in his office, takes his camera from the office to his residence on a daily basis, and uses the devices in conjunction with one ...