USA v. Alsup

IN THE 	UNITED 	STATES DISTRICT 	COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
UNITED STATES 	OF AMERICA
V. 	No. 	3:23-cr-55-DPM
PLAINTIFF
CHRISTOPHER MICHAEL 	ALSUP 	DEFENDANT
ORDER
1. 	Alsup's 	motion 	to 	suppress, 	Doc. 	34, 	is 	denied. 	With 	one
caveat, 	he 	has 	not 	carried 	his burden of 	demonstrating any 	defect 	in 	the
warrant 	or 	any 	Fourth 	Amendment 	violation.
The 	minor 	victim's 	statements, 	coupled 	with 	the 	emails and
images on 	her 	phone, 	which the officer detailed 	in 	his 	affidavit,
provided probable 	cause 	to 	search 	Alsup's 	pick-up 	and 	his home. Both
were 	particularly 	described, as 	were electronic 	devices which 	were
likely 	to 	contain 	evidence of 	the 	alleged 	abuse 	and child 	pornography.
The 	warrant 	permitted 	law 	enforcement 	to 	not 	only 	seize 	but 	also
search electronic devices.
That 	leaves the 	two 	sheds. 	Captain Melton's affidavit 	described
them 	in 	detail. 	The 	warrant 	does 	not. 	The 	warrant 	covers 	"the
residence" and 	"curtilage," 	but does 	not 	explicitly 	mention 	the sheds.
In 	the 	Court's 	view, 	this 	raises 	two 	questions 	(though 	Alsup 	only
argues 	the 	second). 	Did the 	warrant 	cover 	the 	sheds? 	And, 	if 	so, 	did
the 	affidavit 	provide probable 	cause 	to 	search the 	sheds? 	The answer
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to 	both 	questions 	is 	a 	close call. 	But 	the 	good 	faith 	exception 	saves these
searches.
The warrant's 	general labeling 	of 	"the 	residence" 	could have
included the sheds 	-
it's 	not 	clear whether the issuing 	judge 	meant 	the
entire 	property 	described 	in 	the 	attached 	affidavit* 	or 	just 	the 	main
building. 	Compare 	United 	States 	v. Pennington, 	287 	F.3d 	739, 	744-45 	(8th
Cir. 	2002). 	The sheds 	could 	have 	counted 	as 	"curtilage," 	too. 	State 	v.
Cashion, 	260 	Ark. 148, 	149, 539 	S.W.2d 	423, 424 	(1976). 	Considering 	the
totality 	of 	the 	circumstances, 	Captain 	Melton 	-who 	drafted 	the
affidavit 	and executed the 	search 	-
could have 	reasonably 	believed that
the 	sheds fell within 	the 	scope 	of the 	warrant. 	United 	States 	v. 	Shrum,
59 	F.4th 	968, 	974 	(8th 	Cir. 	2023).
Captain 	Melton 	and 	the 	other 	officers 	could have 	also 	reasonably
relied 	on 	the 	judge's 	probable 	cause 	finding. 	The 	evidence of 	a 	nexus
was 	thin. 	Neither 	the 	victim 	nor 	her mother 	made 	any 	connection
between 	the 	alleged 	abuse and the sheds. Unlike with the 	pick-up 	and
the 	home, 	for 	example, 	no 	abuse 	allegedly 	occurred there. 	But 	"an
officer 	executing a 	search 	warrant 	may 	rely 	in 	the 	permissibility 	of the
issuing 	judge's 	inference that such 	a 	nexus 	exists 	when that 	inference
has 	common 	sense 	appeal.. 	.." 	United 	States 	v. 	Perry, 	531 	F.3d 	662, 665
(8th 	Cir. 	2008). 	People 	store 	things 	in 	sheds. 	And 	there 	was 	a 	key 	detail
*
The 	government 	says 	that the affidavit 	was 	attached 	to 	the 	warrant,
Doc. 	40 	at 	8, 	which Alsup 	doesn't 	dispute.
-2-
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in 	the 	affidavit that 	supported 	an 	inference that 	Alsup 	would 	have
hidden 	evidence 	near 	but 	outside 	his house. The 	victim 	said 	that 	Alsup
assaulted 	her 	in 	the 	house, 	but 	only 	"when his wife 	is 	not 	home."
Doc. 34-2 	at 	2. 	The 	Court 	will 	not 	suppress 	the 	shed evidence.
The 	United States' 	intention 	to 	supersede, 	adding 	a possession
count, 	would address 	Alsup's 	relevance/unfair 	prejudice objections
about the 	Toshiba laptop. 	The 	computer's 	contents 	would 	be 	intrinsic
to 	the 	new 	charge. 	That 	evidence 	would be 	admissible 	under Rule 	414
regardless. 	The 	green 	sex 	toy 	was covered 	by 	the 	victim's 	statement.
It's 	intrinsic 	to 	one 	or 	more 	of 	the 	production 	counts 	currently 	charged.
Alsup's embedded 	motion 	to 	exclude 	under Rule 	403 	is 	therefore
denied.
2. 	Alsup's 	motion 	to 	exclude 	testimony 	"speculating" 	about 	what
his cell 	phone contained 	had 	it 	been 	unlocked, 	Doc. 	36, 	is 	granted 	with
a carve 	out. 	Speculation 	is 	inadmissible. 	But 	law 	enforcement
witnesses 	may 	testify 	that 	they 	were 	unable 	to 	access 	it. 	That's 	what
happened. 	And 	based 	on 	her 	personal 	knowledge, 	the 	minor victim 	can
testify 	about how 	Alsup 	supposedly 	used 	his 	phone.
3. 	Alsup's 	Miranda 	motion, 	Doc. 	35, 	is 	granted. 	His 	silence 	may
not 	be used against 	him. 	And while 	witnesses 	can 	testify 	that 	they 	were
unable 	to 	access 	the 	phone, they 	are 	prohibited 	from 	testifying 	that
Alsup refused 	to 	provide 	a 	passcodeto 	open 	the device.
-3-
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*
Alsup's 	motion 	to 	suppress, 	Doc. 34, 	is 	denied. 	His motions 	in
limine, 	Doc. 35 	& 	36, 	are 	granted 	as 	specified.
So 	Ordered.
D.P. 	Marshall 	Jr.
United 	States 	District 	Judge
/ k 	2
A
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