Professional Documents
Culture Documents
No. 06-4558
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Irene M. Keeley, Chief
District Judge. (1:05-cr-00004-IMK-AL)
Submitted:
Decided:
PER CURIAM:
Daniel Wilson Testerman was convicted of one count of
knowingly possessing child pornography, in violation of 18 U.S.C.
2256 (2000), and three counts of knowingly receiving child
pornography, in violation of 18 U.S.C. 2252A(a)(2)(A) (2000). He
was sentenced to 108 months of imprisonment. Testerman appeals his
convictions, arguing the district court erred by denying his motion
to suppress evidence seized pursuant to two search warrants issued
without probable cause and abused its discretion by disallowing
testimony under Fed. R. Evid. 701 concerning the alteration of
digital photographs, and that trial counsel provided ineffective
assistance.
I.
Testerman argues that the district court erred in denying
his motion to suppress evidence seized as a result of two search
warrants. This court reviews the district courts factual findings
underlying a motion to suppress for clear error, and the district
courts legal determinations de novo.
517 U.S. 690, 699 (1996); United States v. Rusher, 966 F.2d 868,
873 (4th Cir. 1992).
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inquiry
is
whether,
under
the
totality
of
the
Gates, 462
U.S. at 236.
Testerman argues on appeal both that the search warrants were
not supported by probable cause and the evidence was not admissible
under the good faith exception to the exclusionary rule.
When a
basis
and
only
in
those
unusual
cases
in
which
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falsity; (2) the magistrate acts as a rubber stamp for the police;
(3)
the
affidavit
does
not
provide
the
magistrate
with
116, 121 (4th Cir. 1996); United States v. Hyppolite, 65 F.3d 1151,
1156 (4th Cir. 1995).
United States
Information must
Id. at 1583.
Testermans reliance on
Marcus v. Search Warrants, 367 U.S. 717 (1961), and its progeny, is
misplaced.
See Heller v. New York, 413 U.S. 483, 492 (1973); Fort
Wayne Books, Inc. v. Indiana, 489 U.S. 46, 63 (1989) ([A] single
copy of a book or film may be seized and retained for evidentiary
purposes based on a finding of probable cause.). Thus, a judicial
finding
of
obscenity
was
not
required
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for
probable
cause
reason
for
the
search
was
that
obscene
photographs
were
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II.
Testerman next contends the district court erred by refusing
to allow the testimony of his brother, Jonathan Black, a purported
self taught computer geek, concerning the methodologies for
altering digital photographs.
generally
to
conduct
trial,
including
the
presentation
of
and
discretion.
1994).
will
not
be
reversed
absent
clear
abuse
of
Fed. R.
Evid. 701.
On appeal, Testerman addresses only the district courts
finding that Testerman had not disclosed that Black intended to
testify as to digital photographs.
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III.
Finally,
Testerman
assistance of counsel.
cognizable
on
direct
alleges
claims
of
ineffective
unless
counsels
ineffectiveness
dispense
with
oral
argument
because
the
facts
and
legal
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