USA v. Arnold D. Holland

[DO NOT PUBLISH]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
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2 Opinion of the Court 22-11817
____________________
____________________
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.,
Defendant-Appellant.
____________________
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 L AGOA, BRASHER , and T JOFLAT, Circuit Judges.
PER CURIAM:
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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.
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4 Opinion of the Court 22-11817
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
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22-11817 Opinion of the Court 5
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 cybertip1 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.
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6 Opinion of the Court 22-11817
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.”
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22-11817 Opinion of the Court 7
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.
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8 Opinion of the Court 22-11817
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
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22-11817 Opinion of the Court 9
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
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10 Opinion of the Court 22-11817
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
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22-11817 Opinion of the Court 11
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,
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12 Opinion of the Court 22-11817
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—
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22-11817 Opinion of the Court 13
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.
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