Federal conditional plea was not preserved by a passing reference in the PSR where plea agreement and record were silent

The Fifth Circuit rejects an appeal of denial of a suppression motion because the attempted conditional plea was not sufficiently reserved and presented to the court. A passing reference in the PSR is not enough, and the plea agreement was silent. United States v. Stevens, 487 F.3d 232 (5th Cir. 2007).

The affidavit for the search warrant in a child porn case was sufficient in its conclusion that child porn would be kept in the home. United States v. Watzman, 486 F.3d 1004 (7th Cir. 2007):

So we must determine whether the affidavit sworn on October 24, when purged of these facts, still contained sufficient information to establish probable cause. Watzman argues that it did not, primarily because the officers’ observations on October 22 were the only evidence that his apartment had a working computer and Internet connection, and without that information the affidavit “failed to establish that any illegal activity could be found” in his home. The district court improperly assumed, he argues, that “pornography necessarily is viewed in the privacy of one’s own home.” Watzman submits that it is “equally likely” that one might download child pornography in “innumerable places, such as offices, public and private libraries, universities and airports.”

Watzman’s argument is meritless. First, probable cause is not certainty; it requires “only a probability or substantial chance that evidence may be found.” Sidwell, 440 F.3d at 869. Thus, Watzman’s assertion that alternative inferences might have been drawn about where child pornography might be stored is unavailing. Moreover, a finding of probable cause “does not require direct evidence linking a crime to a particular place.” Anderson, 450 F.3d at 303. Reasonable inferences are permitted. Id.; United States v. Angle, 234 F.3d 326, 335 (7th Cir. 2000). In his affidavit Agent Wolflick explained in great detail his experience with consumers of child pornography and specifically averred that these individuals tend to hoard collections at home. The district court’s reliance on these expert representations is not an “assumption”; the court was entitled to rely on Agent Wolflick’s expertise to conclude that there was a fair probability that child pornography would be found in Watzman’s home. See United States v. Hall, 142 F.3d 988, 995 (7th Cir. 1998) (citing “expert information” in affidavit that “pornographers tend to maintain their collections of material for long periods, usually at home”); United States v. Lacy, 119 F.3d 742, 746 (9th Cir. 1997) (holding that affidavit provided “ample reason” to believe items sought [*9] were in defendant’s apartment, where affiant stated that “collectors and distributors of child pornography value their sexually explicit materials highly, ‘rarely if ever’ dispose of such material, and store it ‘for long periods’ in a secure place, typically in their homes”).

Police received a 911 call of a domestic disturbance and a “beating” in progress. At the scene, the caller said that she changed her mind and everything was fine. There was no indication of injury. Nevertheless, the officers entered the house to talk to the defendant, and he allegedly went for a knife and they tazered him. The entry was invalid. State v. Delong, 2007 Ohio 2330, 2007 Ohio App. LEXIS 2170 (4th Dist. May 11, 2007).

A search warrant was issued for specific property, none of which was contraband or a firearm, and the officers seized ammunition because the defendant was under an order of protection and it was illegal to possess ammunition. The ammunition was in plain view despite being outside the particularity of the warrant. United States v. Dunbar, 2007 U.S. Dist. LEXIS 35473 (W.D. Pa. May 15, 2007).*