UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 04-1822

ARKANSAS CHRONICLE, a division of

Broadcasting Corp.; JOHN CULBERTSON,

Sienna
Plaintiffs - Appellees,

versus
ROBERT J. MURPHY; STEVE MILEFSKY,
Defendants - Appellants,
and
R. MARK EASLEY; SUZANNE G. DEVLIN, Acting
Police Chief of Fairfax County; JOHN T. FREY,
Clerk, Circuit Court of Fairfax County;
FAIRFAX COUNTY BOARD OF SUPERVISORS; COUNTY OF
FAIRFAX, VIRGINIA,
Defendants,
and
CITY OF OKLAHOMA CITY,
Party in Interest.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (CA-04-110)
Argued:

March 15, 2006

Decided:

May 30, 2006

Before WIDENER and WILLIAMS, Circuit Judges, and William L. OSTEEN,

Senior United States District Judge for the Middle District of
North Carolina, sitting by designation.
Reversed by unpublished opinion. Judge Williams wrote the opinion.
Judge Widener wrote a separate opinion concurring in part and
concurring in the result. Senior Judge Osteen wrote a dissenting
opinion.

ARGUED: Robert Marvel Ross, COUNTY ATTORNEYS OFFICE FOR THE COUNTY
OF FAIRFAX, Fairfax, Virginia, for Appellants. Benjamin Gaillard
Chew, PATTON BOGGS, L.L.P., Washington, D.C., for Appellees. ON
BRIEF: David P. Bobzien, County Attorney, Peter D. Andreoli, Jr.,
Deputy County Attorney, Ann Gouldin Killalea, Assistant County
Attorney, Fairfax, Virginia, for Appellants. Catherine Sun Wood,
PATTON BOGGS, L.L.P., Washington, D.C., for Appellees.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

WILLIAMS, Circuit Judge:

This case stems from the 2004 trial of Terry Nichols for the
bombing of the Alfred P. Murrah Federal Building in Oklahoma City.
Prior to the start of that trial, two Virginia police officers
obtained

and

executed

search

warrant

at

the

home

of

John

Culbertson, seizing computers and files belonging to Culbertson and

his employer, the Arkansas Chronicle.

The target of the search

warrant was a video and still photographs of the bombing that were
last seen in electronic format.

Culbertson and the Arkansas

Chronicle filed this 42 U.S.C.A. 1983 (West 2003) suit against

Robert Murphy and Steve Milefsky, the two police officers who
executed the search, claiming violations of their constitutional
rights. Officers Milefsky and Murphy moved for summary judgment on
the grounds of qualified immunity, which motion the district court
denied.

Officers Milefsky and Murphy now appeal.

While the

underlying facts of this case are unique, the legal principles

guiding our decision are well established and lead to a result
opposite of that reached by the district court.

For the following

reasons, we reverse the district courts denial of qualified

immunity to Officers Milefsky and Murphy.

I.
In 2004, prior to the start of Nicholss trial in Oklahoma
state court, one of Nicholss attorneys spoke with attorney Thomas

W. Mills of Dallas, Texas.

Based on this conversation, Nicholss

defense attorney filed an Ex Parte Sealed Emergency Motion for

Order to Preserve Evidence and for Subpoena Duces Tecum with the
Oklahoma trial court.

(J.A. at 193.)

In the motion, Nicholss

defense attorney alleged that Mills informed him that in August

1998 Culbertson had shown him a video and still photographs on
Culbertsons laptop computer depicting the Murrah Building right
before and after the bombing and that the images showed a Ryder
truck.1
the

The motion further alleged that Culbertson had shown Mills

video

and

photographs

in

the

congressional

offices

of

Congressman James Traficant (D-Ohio). At that time, Culbertson was

serving as a legislative aid to Traficant.

Nicholss motion also

cited Culbertsons testimony before a House subcommittee, in which

Culbertson stated that he had a video of a law enforcement officer
describing the video images and photographs the officer had seen of
the Oklahoma City bombing.

Nicholss defense team believed that

these photographs could be crucial to Nicholss defense. After

receiving Nicholss motion, the Oklahoma trial court held an in
camera hearing and indicated that if you came to me with this
information and asked me as a judge to issue a search warrant, I
probably would do it.

(J.A. at 256.)

After the hearing, the

A Ryder truck is believed to have carried the bomb to the

Murrah Building.
4

Oklahoma City prosecutor began the process of obtaining a search

warrant in Virginia where Culbertson resided.
To confirm the statements made by Nicholss defense attorneys,
on January 28, 2004, Oklahoma City Detective Mark Easley traveled
to Dallas and spoke with attorney Mills.

Mills confirmed to

Detective Easley that Culbertson had shown him, on Culbertsons

laptop computer at Congressman Traficants office, a video of the
Murrah Building that was taken within minutes of when the bomb
went off.

(J.A. at 55.)

Mills said that the first frame showed

the building, the next frame showed a glow at the bottom, the next
frame showed the glowing ball going up the building, and the final
frame

showed

the

building

collapsed.

Mills

also

said

that

Culbertson told him that an Alcohol, Tobacco and Firearms (ATF)

agent had given him the video.

Mills further said that Culbertson

refused to go to the ATF or the FBI with the video tape because
Culbertson needed to protect his source and the FBI did not want
the video disclosed.

During Detective Easleys conversation with

Mills, Mills informed Detective Easley that he had spoken with

Culbertson after Nicholss defense attorneys had learned about his
secret video and pictures.

(J.A. at 68.)

In response to

Millss comments, Culbertson told Mills that it was going to be a

tight rope for me to walk.

(J.A. at 68.)

Having received confirmation from Mills about the existence

of the images, on January 30, 2004, Detective Easley traveled to

Fairfax County, Virginia to speak with Culbertson.

From the

Fairfax County Police Department, Detective Easley placed a phone

call to Culbertson.

The phone call was tape recorded.

Easley

asked Culbertson if the images and video were still available and
Culbertson responded
Well, Im going to tell you the same thing I told
Nicholss attorneys.
Because of a variety of complex
legal issues, there is some journalistic law involved,
there is legislative privilege involved with respect to
the Congress and so forth. Im just not at liberty to
divulge whether it exists, where its at, whatever, until
Ive got guidance from appropriate counsel.
(J.A. at 97.)

Culbertson informed Easley that he had worked for

the Washington Bureau of the Arkansas Chronicle, a publishing

entity since 1996, and that he maintained a home office.

Easley

further pressed Culbertson for information on the images, and

Culbertson stated, Well, what I can tell you is the stuff was
turned over, you know, theres public stuff on it that was turned
over to the House Judiciary [Committee].
place to look, uh, for these things.

And that might be the

(J.A. at 97.)

Culbertson

also informed Easley that he testified before the House Judiciary

Contract Law Subcommittee on matters related to the Oklahoma City
bombing in either 1999 or 2000.

The House report confirms that

Culbertson testified that photos and video of the explosions at

the Murrah Building do exist and that Culbertson submitted images
along with his report in 2000.
Hearing on H.R.

See Fair Justice Act of 2000:

4105 Before the Subcomm. on Commercial and Admin.

Law of the H. Comm. on the Judiciary, 106 Cong. 60-61 (2000)

(statement

of

John

Culbertson,

Director,

Center

for

Reform).

Culbertson also denied to Detective Easley that he had seen a video

showing a Ryder truck at the Murrah Building, and he then said that
the video he submitted to the House subcommittee was the Sheriffs
Department video that you guys probably already have.
101.)

(J.A. at

Culbertson next informed Easley that he no longer had the

computer on which he showed Mills the video.

Culbertson ended the

conversation by telling Detective Easley that after he had spoken

with his attorney, he would call Easley.

Less than an hour later,

Culbertson called Detective Easley and told him that he could not
speak with him because of journalistic privilege stemming from his
production of the show African Lifestyles, legislative privilege
because he formerly worked for a congressman, and a third privilege
relating to his position as a consultant to the Philippines.
(J.A. at 104.)
Based on the information received from Mills and Culbertsons
refusal voluntarily to disclose his knowledge of the status of the
video, Detective Easley sought a search warrant from a Fairfax
County Circuit Court. The search warrant stated that Easley wanted
to search Culbertsons house to seize
any and all computer equipment, hard disk drives, compact
disks, floppy disks, magnetic tapes or other magnetic or
optical media capable of storing information in an
electronic,
magnetic,
or
optical
format.
This
information may include, but it is not limited to
letters, correspondence, memoranda, journals, electronic
7

mail, image files, database files, deleted files, partial

files or other types of files found in the media or
computer.
(J.A. at 65.)

Detective Easley also filed a detailed affidavit

setting forth the relevant facts in support of the search warrant

and explaining that the officers were looking for a video and still
images of the Oklahoma bombing.

Detective Easleys supporting

affidavit described his conversations with attorney Mills and

Culbertson.

Detective

Easleys

affidavit

noted

that

Mills

confirmed that he had seen images of the bombing, but that Mills
could not recall whether he saw a Ryder truck depicted in the
images and correspondingly that he did not tell Nicholss attorney
that he had seen a Ryder truck.

Detective Easley also stated that

in his experience as a law enforcement investigator . . . a person

in possession of items of this magnitude and uniqueness is unlikely
to dispose of or destroy the information.

Instead, he is more

likely to leave it on the computer or copy it to a disc of some

sort or both.

(J.A. at 69.) A Fairfax County magistrate judge

signed the search warrant and Fairfax County police officers Murphy
and Milefsky executed the search at Culbertsons house. On January
30, 2004, Officers Murphy and Milefsky seized the following items
from Culbertsons home:

eight desktop computers, two laptops, 454

diskettes, 170 CD-ROMS, 8 mini CD-ROMS, four zip disks, one hard
drive, fourteen VHS tapes, four notebook binders, and one manilla
folder containing documents.

Officers Murphy and Milefsky then

shipped the seized items to the Oklahoma City Police Department.

Upon receipt of the boxes, the Oklahoma City police department
withheld opening the boxes or examining the contents until it
received judicial instructions. Ultimately, the alleged video and
still photographs were not found.
Culbertson and the Arkansas Chronicle then filed this suit in
federal

court

against

Officers

Milefsky

and

constitutional violations pursuant to 1983.

Murphy

alleging

Officers Milefsky

and Murphy moved for summary judgment on the basis of qualified

immunity.

The district court denied qualified immunity finding

that Culbertsons Fourth Amendment rights were violated and that

Officers Milefsky and Murphy should have known that the search
warrant was unconstitutionally overbroad and lacking in probable
cause.
appeal.

Officers Milefsky and Murphy timely filed an interlocutory

We have jurisdiction over their legal challenge to the

district courts denial of their motion for summary judgment under

28 U.S.C.A. 1291 (West 1993).
274, 281 (4th Cir. 2005).

Washington v. Wilmore, 407 F.3d

To the extent that the denial of

qualified immunity rests on a question of law, the decision is

final pursuant to the collateral order doctrine and subject to de
novo review.

Id.

II.
Qualified immunity shields government officials from civil
liability insofar as their conduct does not violate clearly
established

statutory

or

constitutional

reasonable person would have known.

rights

of

which

Trulock v. Freeh, 275 F.3d

391, 399 (4th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)).

In considering an appeal from the rejection of

a qualified immunity defense, our first task is to determine

whether a constitutional right would have been violated on the
facts alleged.

Wilmore, 407 F.3d at 281.

If no rights have been

violated, then the inquiry ends. If a violation has occurred, then

the court must determine whether the right violated was clearly
established at the time of the violation, here the search and
seizure, and [o]nly where the warrant application is so lacking in
indicia of probable cause as to render official belief in its
existence unreasonable,

Malley v. Briggs, 475 U.S. 335, 344-45

(1986) (internal citation omitted), or where the overbreadth of the

search warrant is apparent to a reasonable police officer, Anderson
v. Creighton, 483 U.S. 635, 640-41 (1987), will we deny qualified
immunity.
The
qualified

district

court

immunity,

denied

concluding

Officers
that

the

Milefsky
search

and

Murphy

warrant

was

overbroad and lacked probable cause and that it would have been
unreasonable for Murphy and Milefsky to believe that the search

10

warrant was not overbroad or was supported by probable cause.

We

will address each of the district courts conclusions in turn.

A.
The

[F]ourth

Overbreadth

[A]mendment

general searches.

prohibits

general

warrants

and

United States v. Fawole, 785 F.2d 1141, 1144

(4th Cir. 1986).

To prevent a general rummaging through a

persons personal belongings, a search warrant should remove from

the officer executing the warrant all discretion as to what is to
be seized.
1979).

United States v. Torch, 609 F.2d 1088, 1089 (4th Cir.

Nevertheless, the specificity required for a warrant

varies

with

flexibility.

the

circumstances

within

practical

margin

of

United States v. Shilling, 826 F.2d 1365, 1369 (4th

Cir. 1987), abrogated on other grounds by Staples v. United States,

511 U.S. 600 (1994).

For example, in a search warrant for business

records, it is acceptable for the warrant to use generic terms

(such as books, records, bank statements, etc.) without detailed
descriptions because the Government is unlikely to know in detail
how the records are maintained.

Id.

Culbertson and the Arkansas Chronicle argue that a heightened

standard of particularity is required in this case because the
items

seized

were

protected

by

the

First

Amendment

and

the

particularity requirement is even more stringent where the things

to

be

seized

have

the

presumptive

11

protection

of

the

First

Amendment.

Torch,

609

F.2d

at

1089.

To

be

sure,

the

constitutional requirement that warrants must particularly describe

the things to be seized is to be accorded the most scrupulous
exactitude when the things are books, and the basis for their
seizure is the ideas which they contain.

Stanford v. Texas, 379

U.S. 476, 485 (1965); see also New York v. P.J. Video, Inc., 475
U.S. 868, 873 (1986)(noting that the seizure of films or books on
the basis of their content implicates First Amendment concerns not
raised by other kinds of seizures (emphasis added)).

Although

Culbertson was employed part-time by a news media organization and

some of the items seized by the officers belonged to the Arkansas
Chronicle, we agree with the district court that the heightened
specificity standard for items protected by the First Amendment
does not apply in this case.
Here,

the

basis

of

the

seizure

was

an

attempt

to

shed

evidentiary light on one of the most heinous crimes in this

countrys history, not to suppress the ideas contained in the
documents.

See Stanford, 379 U.S. at 485 n.16 (noting that had the

Communist books at issue been ledgers of illegal activity or stolen

goods, such books might stand on a quite different constitutional
footing from the [Communist] books sought in the case).

The

search warrant here was incidental to any alleged First Amendment

activity and was not used as an instrument for stifling liberty of
expression, which is the evil that the heightened particularity

12

standard is designed to combat.

U.S. 547, 564 (1978).

Zurcher v. Stanford Daily, 436

Thus, because [t]he items named in this

warrant were evidentiary materials, and their seizure did not

threaten to deprive the public of access to protected material, we
decline to apply any heightened specificity.2

Torch, 609 F.2d at

1090 (internal quotation marks omitted).

Having rejected the application of the heightened specificity
standard, we now turn to the merits of the overbreadth argument,
applying

particularity

standard
for

that
search

recognizes
warrant

that

varies

circumstances and type of items involved.

the

necessary

according

Id.

to

the

Also, built into

this standard is a practical margin of flexibility.

Id.

The

district courts conclusion that the search warrant was limitless

because it authorized Officers Milefsky and Murphy to seize every
piece of computer equipment and every type of document that might
be stored on such equipment, (J.A. at 385), failed to equate the

We note, however, that even if the heightened standard

applied, we would reach the same result. The Supreme Court has
held that the particular exactitude requirement is satisfied when
it leaves as little as possible to the discretion or whim of the
officer in the field. Zurcher v. Stanford Daily, 436 U.S. 547,
564 (1978). For the reasons set forth in this section, infra, the
search warrant left little to no discretion to the executing
officers. For example, Officers Milefsky and Murphy did not have
to determine anything as difficult as whether the electronic
material they seized was obscene or related to Communist
thoughts, as other search warrants held to be invalid have
required.
See id.
Officers Milefsky and Murphy only had to
determine whether an item could store electronic, magnetic, or
optical data. Thus, the search warrant described with particular
exactitude the things to be seized.
13

circumstances of the targeted items with the language of the search

warrant.

Because

the

video

and

photographs

were

already

in

electronic form, they could be transferred to numerous other

electronic devices and put into countless types of formats.

See

United States v. Reyes, 798 F.2d 380, 383 (10th Cir. 1986) (holding
that in the age of modern technology and commercial availability
of various forms of items, a [search] warrant could not be expected
to describe with exactitude the precise form the records would
take).

We cannot and should not tie the hands of law enforcement

by expecting an investigative officer to know the exact format

electronically stored evidence will take.

Notably, the district

court did not suggest a method for narrowing or describing with

increased specificity the items to be seized, and we also cannot
discern a more precise way to describe items stored in electronic
format.

Culbertson and the Arkansas Chronicle, however, suggest

that the search warrant could have limited the electronic items to
be seized by specifying that only image files such as .jpg, .tip,
.bmp, or .gif files could be searched. (Appellees Br. at 24.)
Although we recognize that image files are usually stored and
labeled as such, this proposal ignores the fact that a warrant that
authorized the seizure of any device capable of storing .jpg,
.tip, .bmp, or .gif files would still authorize officers to seize
computer equipment, hard disk drives, compact disks, floppy disks,
magnetic tapes or other magnetic or optical media to allow the

14

officers to search for the .gif, .tip, .bmp, or .jpg files.

Furthermore, it is possible to embed an electronic image into a
word processing file or convert the image into .pdf format and
still have the document labeled as a .wpd, .doc, or .pdf file, as
opposed to .jpg, .gif, .tif, or .bmp.

Therefore, because the

search warrant and supporting affidavit described with sufficient

particularity the items to be seized within a practical margin of
flexibility, we must reject Culbertsons argument that the search
warrant was a general warrant.

Shilling, 826 F.2d at 1369.

Next, we turn to the district courts conclusion that the

search warrant was overbroad because the warrant sought images that
were last seen electronically, while the warrant allowed for the
seizure of letters, correspondence, memoranda, [and] journals.
(J.A. at 385.) The district court concluded that a search warrant
that

allowed

the

police

to

seize

letters,

correspondence,

memoranda, and journals in order to find a video and three still

photographs is patently overbroad. (J.A. at 386.) Culbertson and
the Arkansas Chronicle argue that the search warrant only provided
for the seizure of electronic forms of letters, correspondence,
journals, and memoranda, and thus the seizure of hard copies of
such items was outside the scope of the search warrant.

The search

warrant references information stored in electronic, magnetic, or

optical format and then further states that this information may
include . . . letters, correspondence, memoranda [and] journals.

15

(J.A. at 65 (emphasis added).)

We agree that the most natural,

close reading of the search warrant is that only electronic,

magnetic, or optical forms of letters, correspondence, memoranda
[and] journals could be searched. Thus, the search warrant cannot
be overbroad for this reason.3
Finally, the district court concluded that the search warrant
was overly broad because it allowed for the seizure of Culbertsons
sons computer.

The seizure of the sons computer does not render

the search warrant overly broad because the images could have been
stored

on

any

computer

within

Culbertsons

home

to

which

he

presumably had access, including his sons computer. Also, parents

frequently pass down to their children their old computers, and
because the officers were searching for old images, it would have
been reasonable to search the sons computer.

Moreover, to hold

search warrants that allow for the search of a parents belongings

as necessarily overbroad because they also allow for the search of
the belongings of a child residing with a parent would prove
unworkable for investigating officers. For example, if police were
searching for a stolen handgun or drugs, and the search warrant
allowed for the search of the parents home, it is unlikely that we

The conclusion that the search warrant did not explicitly

allow for the seizure of hard documents, such as the four notebooks
and one manilla folder, forces us to address whether the seizure of
these items outside of the search warrant violated the Fourth
Amendment rights of Culbertson and the Arkansas Chronicle. We will
return to this point in section C in the text infra.
16

would not allow the police to search a minor childs room within
the parents home.

See United States v. Diprima, 472 F.2d 550, 551

(1st Cir. 1973) ([E]ven if a minor child, living in the bosom of

a family, may think of a room as his, the overall dominance will
be in his parents.).

A rule barring the search of a minor childs

property that lies within a parents home simply would encourage a

parent to hide contraband with his child.
The supporting affidavit, describing the alleged video and
still images and the search warrants focus on electronic, magnetic
or optical storage forms that could contain the images, served to
limit the discretion of the officers who conducted the search.
Torch, 609 F.2d at 1090.

The area to be searched was confined to

Culbertsons home and the items to be seized were those capable of

storing electronic, magnetic, or optical data.

For these reasons,

we conclude that this search warrant falls within the practical

margin of flexibility.

Id.

B.

Probable Cause

We now turn to the issue of probable cause.

deals with probabilities.

Probable cause

These are not technical; they are the

factual and practical considerations of everyday life on which

reasonable and prudent men, not legal technicians act.

Illinois

v. Gates, 462 U.S. 213, 241 (1983) (internal quotation marks

omitted).

The task of the issuing magistrate is simply to make a

17

practical,

common-sense

decision

whether,

given

all

the

circumstances set forth in the affidavit before him, including the

veracity and basis of knowledge of persons supplying hearsay
information,

there

is

fair

probability

that

contraband

evidence of a crime will be found in a particular place.

238.

or

Id. at

Reasonable minds frequently may differ on the question

whether a particular affidavit establishes probable cause, and we

have thus concluded that the preference for warrants is most
appropriately

effectuated

by

magistrates determination.

according

great

deference

to

United States v. Leon, 468 U.S. 897,

914 (1984) (internal quotation marks omitted). However, reviewing

courts will not defer to a warrant based on an affidavit that does
not provide the magistrate with a substantial basis for determining
the existence of probable cause.

Id. at 915.

The affidavit given to the magistrate provided the following

pertinent statements:
an

Oklahoma

police

(1) Detective Easley, the affiant, had been

officer

for

twelve

years

and

had

been

investigating the Oklahoma City bombing for five years; (2) in

1998, Culbertson showed Mills a video and photographs of the Murrah
Building before and after the bombing on a laptop computer; (3)
Mills said he viewed images on Culbertsons laptop; (4) Mills said
that he could not recall whether the images shown by Culbertson
contained a picture of a Ryder truck as Nicholss defense attorney
alleged; (5) Mills said an ATF agent gave Culbertson the video; (6)

18

Culbertson told Mills that Nicholss attorneys knowledge about the

video and photographs was going to be a tight rope for [him] to
walk; (7) Culbertson admitted to Detective Easley that he had
shown Mills a video and photographs; (8) Culbertson stated that the
video

and

photographs

were

provided

to

the

House

Judiciary

Committee several years ago; (9) Culbertson refused to say whether

he

still

had

copies

of

the

video

and

photographs;

and

(10)

Detective Easleys professional opinion that an individual in

possession of items of such magnitude and uniqueness [would be]
unlikely to dispose of or destroy the information.
69.)

(J.A. at 67-

The affidavit omitted the following facts known to Detective

Easley:

(1) Culbertson said he had shown Mills the video on a

government

computer;

(2)

Culbertson

was

employed

by

former

Congressman James Traficant at the time he showed the video to

Mills; and (3) Culbertson testified before the House subcommittee
in 2000 and submitted a tape along with his testimony.
Although

Culbertsons

submission

of

images

to

the

House

subcommittee and the fact that Mills viewed the images on a

government computer could support an inference that Culbertson no
longer had the video and photographs, the remaining facts are
sufficient to demonstrate a fair probability that Culbertson still
possessed the video and photographs or copies thereof.

Namely,

Culbertsons admission to Detective Easley that he had shown Mills

a video of the bombing and Culbertsons statement that he would

19

have to walk a tight rope because of the video and photographs

are strong evidence that Culbertson still possessed the video or a
copy thereof. As his congressional testimony indicates, Culbertson
still had the video two years after showing it to Mills and at that
point

he

was

suggesting

no

that

longer

working

Culbertson

for

valued

the

the

government,

video

and

further

would

have

maintained copies of it. Also, Culbertsons evasive statement that

journalistic and other irrelevant privileges prevented him from
divulging to Detective Easley whether or not he held a copy of the
video

provides

additional

support

for

probable

cause.4

And

finally, we find particularly astute Detective Easleys statement

that an individual with possession of such a highly sought after
video is likely to maintain possession of it; Culbertson was a
journalist, and such information is the bread and butter of his
work.

cumulative

reading

of

the

affidavit

suggests

that

Culbertson did have a copy of the video and images, even if he had
already

turned

subcommittee.5

over

copy

of

some

video

to

the

House

It is then a short, logical step to surmise that

As pointed out by our good dissenting colleague, the mere

refusal to cooperate cannot alone support a finding of probable
cause, however, the refusal to cooperate may be considered along
with other supporting facts in evaluating a search warrant for
probable cause. See Florida v. Bostick, 501 U.S. 429, 437 (1991)
(noting that a refusal to cooperate, without more, does not
furnish the minimal level of objective justification for a
detention or seizure (emphasis added)).
5

It is unclear from the record whether the video allegedly

submitted to the House subcommittee is, in fact, the video
20

Culbertson would have a copy of the video and images at his house
or at his home office.

This is a logical inference due, in part,

to the nature of electronic, magnetic, and optical items because,

as discussed in subsection A, such materials can be copied and
stored, the video and images could easily be stored in multiple
locations, including Culbertsons home.

See United States v.

Anderson, 851 F.2d 727, 729 (4th Cir. 1988) (adopting the view that
the nexus between the place to be searched and the items to be
seized may be established by the nature of the item and the normal
inferences of where one would likely keep such evidence).
recognize

that

some

of

the

individual

facts

alleged

in

We
the

affidavit may be read to support other inferential ends, see infra

dissent at pages 33-35, but we believe that the affidavit provides
a

substantial

basis

for

the

magistrates

determination

that

Culbertson retained possession of the video and images and that

they would likely be found at his home. See Gates, 462 U.S. at 240
(noting that a magistrate can draw such reasonable inferences as
he will from the material supplied to him by applicants for a
warrant).
Having concluded that the facts alleged in the affidavit
support a finding of probable cause, we address Culbertsons and

Detective Easley was seeking.

This is particularly important
because Culbertson told Detective Easley that anything public he
turned over to the House subcommittee. Detective Easley was not
looking for public information, but for a secret, never publicly
disclosed video of the bombing.
21

the Arkansas Chronicles contentions that those facts were stale.

A valid search warrant may issue only upon allegations of facts so
closely related to the time of the issue of the warrant as to
justify a finding of probable cause at that time.

Whether the

proof meets this test must be determined by the circumstances of

each case.

United States v. McCall, 740 F.2d 1331, 1335-36 (4th

Cir. 1984) (internal quotation marks omitted).

At the outset, we

note that [t]he validity of probable cause cannot be quantified by

simply counting the number of days between the occurrence of the
facts supplied and the issuance of the affidavit, United States v.
Farmer, 370 F.3d 435, 439 (4th Cir. 2004) (internal quotation marks
omitted), and [m]any courts have found probable cause to exist
despite substantial gaps between the observation of the evidence at
a particular premises and the issuance of a search warrant,
McCall, 740 F.2d at 1336.
Stale

search

warrants

arise

in

two

situations:

(1)

the

government waits an extended period of time between the information

provided and the execution of the warrant and (2) the information
on which [the search warrant] rested was arguably too old to
furnish present probable cause.

Id.

The district court found

that this case fell into the latter category because Mills viewed
the tape in the presence of Culbertson almost six years prior to
the issuance of the search warrant.

22

Millss viewing of the video and three still images six years
prior is but one piece of the puzzle.
analysis

requires

circumstances.

that

we

examine

And the probable cause

the

totality

of

the

See Farmer, 370 F.3d at 439 ([W]e must look to all

the facts and circumstances of the case, including the nature of

the unlawful activity alleged, the length of the activity, and the
nature of the property to be seized.
omitted)).

(internal quotation marks

Viewing all of the evidence set forth in the affidavit

demonstrates that the search warrant was not stale.

Except for

Millss undisputed viewing of the video in 1998, all other evidence

contained in the affidavit was obtained in close proximity to the
issuance of the search warrant.

For example, on January 28, 2004,

a mere two days before the search, Mills told Detective Easley that
Culbertson told him that he was having to walk a tight rope with
Nicholss defense attorneys.

Also, Culbertsons own statements to

Detective Easley, confirming that he had shown Mills a video and

photographs, occurred within twenty-four hours of the issuance and
execution

of

the

search

warrant.

And

Detective

Easleys

observation that no one would discard such evidence was timely and
credible.

See McCall, 740 F.2d at 1336 (In some circumstances,

the very nature of the evidence sought may suggest that probable
cause is not diminished solely by the passage of time.).
Culbertson and the Arkansas Chronicle further argue that,
because no continuing crime was involved, the lack of temporal

23

proximity between Millss viewing of the video in 1998 and the

issuance of the search warrant renders the search warrant stale.
As previously discussed, the viewing of the video by Mills was but
one supporting piece of the puzzle and, contrary to Culbertson and
the Arkansas Chronicles suggestion, the presence of a continuing
crime is not a requirement for justifying a search warrant when a
period of years lapses between one of the factual predicates and
the issuance of the search warrant.

See Id. at 1337 (finding

search warrant not stale even though the criminal activity alleged
in the warrant is not ongoing in nature, nor the evidence sought
intrinsically

likely

originally observed).

to

remain

at

the

location

where

it

was

In addition, the alleged video related to

a report that Culbertson authored and to his testimony before the

House subcommittee in July 2000-two years after Culbertson showed
Mills the video.

Thus, as part of Culbertsons lengthy research

into the Oklahoma City bombing, it is likely that Culbertson would

have

kept

copies

of

all

relevant

material

supporting

such

substantial report. To accept Culbertsons argument, we would have

to assume that Culbertson, after intensely researching the Oklahoma
City bombing and compiling extensive documentation, including video
footage of the bombing, would have relinquished all copies of all
documentation to another person or simply destroyed all such
information.

In light of Culbertsons statements to Detective

Easley and his position as a journalist, we find this is highly

24

unlikely.

Finally, a secret video of a historic event is likely to

be very valuable.

See, e.g., Film of JFK killing valued at $16

m i l l i o n ,

C N N . c o m ,

A u g .

http://www.cnn.com/US/9908/03/zapruder.02/

3 ,

(noting

1 9 9 9

that

Abraham

Zapruders film of the Kennedy assassination was valued at $16

million).

Having examined all the relevant evidence set forth in

the affidavit, along with the nature of the evidence sought, we

conclude

that

the

search

warrant

was

not

based

on

stale

information.

C.

Reasonable Officers View of the Search Warrant

We now return to the issue of whether the seizure of items

outside

of

the

search

warrant

violated

Culbertsons

Arkansas Chronicles constitutional rights.

and

the

At the outset we

readily acknowledge that [i]f the scope of the search exceeds that
permitted by the terms of a validly issued warrant or the character
of

the

relevant

exception

from

the

warrant

requirement,

subsequent seizure is unconstitutional without more.

California, 496 U.S. 128, 140 (1990).

the

Horton v.

However, even when a

constitutional violation is found, qualified immunity may still

attach if a reasonable officer would not have realized that he was
exceeding the scope of the search warrant.
U.S. 194, 202 (2001).
the

specific

context

Saucier v. Katz, 533

This inquiry must be undertaken in light of

of

the

case,

25

not

as

broad

general

proposition.

Id.

at

201.

unlawfulness must be apparent.

To

put

it

more

concisely

the

Anderson, 483 U.S. at 640-41.

We begin our analysis by noting that the search warrant

clearly authorized the seizure of items in electronic, magnetic,
or optical format. Our conclusion that the search warrant did not
authorize the seizure of paper forms of letters, correspondence,
memoranda, [and] journals came only after carefully examining the
sentence structure of the search warrant.

We believe it would not

have been unreasonable for a police officer to interpret the words

letters, correspondence, memoranda, [and] journals as allowing
for the seizure of paper copies of these items-one typically thinks
of these items in their physical format, as opposed to their
electronic, magnetic, or optical format.

See Mazuz v. Maryland,

442 F.3d 217, 225 (4th Cir. 2006) (In order to satisfy the
reasonableness

requirement

of

the

Fourth

Amendment,

what

is

generally demanded of the many factual determinations that must

regularly be made by agents of the government is not that they
always be correct, but that they always be reasonable. (internal
quotation marks and alterations omitted)).

For example, the word

letter is often used to describe the physical paper used for

communication, whereas, the word email is most often associated
with electronic communication that remains in electronic form.

We

further recognize that Officers Milefsky and Murphy knew by way of

the attached affidavit that they were searching for a video and

26

still

photographs

and

common

sense

stands

to

reason

that

electronically stored images, such as the still photographs, could

be printed out and stored in physical form amongst letters,
correspondence, memoranda, [and] journals.

It is also worth

noting that the four notebook binders and one manilla envelope
contained information related to Culbertsons research on the
Oklahoma City bombing.

This information coupled with the common

perception that letters, correspondence, memoranda, and journals

typically reference hard copies may not have placed a reasonable
officer on notice that the seizure of the notebooks and manilla
folder was outside the scope of the search warrant and possibly
violated constitutional rights.

Moreover, the fact that the four

notebooks and one folder were the only items seized outside of the
scope of the search warrant also suggests that the mistake was a
reasonable one. We, therefore, cannot say that the unlawfulness of
the seizure of the notebooks and folder was apparent.

Officers

Milefsky and Murphy are entitled to qualified immunity.

III.
In summary, we conclude that the search warrant properly
described with sufficient particularity the items to be seized,
that probable cause existed to support the issuance of the search
warrant, and that qualified immunity shields Officers Milefsky and
Murphy

from

any

constitutional

27

violations

resulting

from

the

seizure of the notebooks and manilla folder.

Accordingly, the

district courts order is

REVERSED.

28

WIDENER, Circuit Judge, concurring:

I concur in the result and in large part with the opinion of
the court.

However, the search warrant is perfectly plain to me.

It states in terms that the officers might:

search for . . . magnetic or optical materials . . .
capable of storing information in electrical or optical
format.
The record in this case shows the officers neither searched
for, nor took, nor stored anything else.
patent from the record and the face
unlawfulness was apparent.

29

So I think that it is

of the warrant that no

OSTEEN, Senior District Judge, dissenting:

I agree with the majority opinion that the warrant was not
overbroad.

I disagree with the conclusion that there was probable

cause to support the issuance of a search warrant.

Because the

link between Culbertsons possession of the images in the late

1990s and the possibility of the presence of the images in
Culbertsons home in 2004 is too speculative, I respectfully
dissent from the majoritys conclusion that Officers Murphy and
Milefsky are entitled to qualified immunity.
The first step in determining whether a defendant is entitled
to qualified immunity is a determination of whether a right has
been violated.
2005).

Washington v. Wilmore, 407 F.3d 274, 281 (4th Cir.

Although the majority found no such violation, I disagree

because the search warrant was not supported by probable cause. To

determine whether a search warrant is supported by probable cause,
the

magistrate

issuing

the

warrant

must

make

practical,

common-sense decision whether, given all the circumstances set

forth in the affidavit . . .[,] there is a fair probability that
contraband or evidence of a crime will be found in a particular
place.

Illinois v. Gates, 462 U.S. 213, 238 (1983).

When

reviewing the probable cause supporting a warrant, a reviewing

court

must

consider

only

the

information

magistrate who issued the warrant.

F.3d 116, 118 (4th Cir. 1996).

30

presented

to

the

United States v. Wilhelm, 80

I begin with the observation that the affidavit contained no

direct evidence that Culbertson had the sought-after images in his
home in 2004 or at any other time, and the record indicates that
there is no such evidence.

No one involved in the matter ever saw

the images at the home or learned that they were there.

Instead,

to conclude that there was probable cause that Culbertson had the
images in his home in 2004, the majority relies on three items of
information: (1) the fact that Culbertson retained the images
between 1998, when he showed them to Mills, and the time he
testified before a House of Representatives subcommittee in 2000;
(2) statements made by Culbertson that the request for the images
put him in a bad position and that he could not disclose whether he
remained

in

possession

of

them;

and

(3)

Detective

Easleys

statement that an individual in possession of such unique items was

unlikely to give up possession.

These items, either alone or in

combination, are far too speculative to support a finding of

probable cause that Culbertson had possession of the images in
2004, and they provide nothing to link the images to Culbertsons
home.
The fact that Culbertson had retained the images between 1998
and his testimony before the congressional committee does not
support such an inference.
detail

on

the

matter.

The affidavit contains very little

Although

the

record

now

shows

that

Culbertson testified in 2000, the affidavit indicates only that

31

Easley saw the images on August 26, 1998, and that Culbertson had
turned a copy over to the House Judiciary Committee several years
before the affidavit was produced.
the

inference

that

Culbertson

These two facts give rise to

retained

the

images

for

an

unspecified period of time under unspecified conditions, but they

do not support the inference that Culbertson continued to possess
the images anywhere, much less at his home, for another unspecified
period of time under other unspecified circumstances.
I turn next to Easleys statement that, in his experience, a
person in possession of items of this magnitude and uniqueness is
unlikely to dispose of or destroy the information. This statement
is less a piece of information that supports a finding of probable
cause than a conclusion that, in Easleys opinion, the other facts
support such a finding.

Easleys statement is unhelpful for two

reasons.
To the extent that the statement is relevant because of
Easleys

status

as

law

enforcement

officer,

evidentiary weight for the required finding.

it

adds

no

There is no question

that in many situations a law enforcement officers experience is

highly relevant to a determination of probable cause.

See, e.g.,

United States v. Collins, 412 F.3d 515, 518 (4th Cir. 2005)
(finding that officers had probable cause to make an arrest when,
in light of their experience, the defendants behavior suggested he
possessed illegal drugs).

An officers experience with criminal

32

activity, such as drug dealing, will provide him with insight

unavailable to even experienced individuals outside the profession.
This case, however, provides a unique situation that involved no
criminal

activity,

and

it

is

not

obvious

how

an

officers

experience might be more valuable than that of someone in a

different profession.

It is unlikely that Easley, in his law

enforcement experience, had ever encountered a situation similar to

this one.

If he had, he should have provided more detail to allow

the magistrate to evaluate the strength of his statement.

If he

had no special experience, his statement is one of opinion and

should not weigh in favor of a finding of probable cause.

See

Gates, 462 U.S. at 239 ([A magistrates] action cannot be a mere

ratification of the bare conclusions of others.).

A reasonable

magistrate cannot, without further information, assume that a law

enforcement officer has specialized experience with matters outside
the limits of ordinary law enforcement experience and training.
To the extent that the information is evaluated independently
of Easelys experience, it is not an inference from facts but mere
speculation.

[A] guess, based not on specific and reliable facts

but on a broad generalization is insufficient to support the

issuance of a search warrant.
(4th Cir. 2000).

Doe v. Broderick, 225 F.3d 440, 452

It may well be true that many people retain

unique things, but it is also true that many people do not make an
effort to retain, on their home computers, computer files from jobs

33

they held years before.

There is no evidence in the affidavit

suggesting that Culbertson did, in fact, perceive the images as

something he personally wanted to retain indefinitely. There is no
evidence that he attached particular value to them.1

There is no

evidence in the affidavit that Culbertson was still involved in

investigating the Oklahoma City bombing or that these images were
of particular use in that investigation.

In short, even assuming

that Easley may have made a true statement about the way some
people behave, it is only speculation that Culbertson behaved that
way in this instance, and such speculation is insufficient to
support a finding of probable cause.
Finally, the statements made by Culbertson provide no probable
cause that Culbertson possessed the images at his home in 2004.
The majority refers to two statements Culbertson made to different
people.2

The first is Culbertsons statement to Easley that it

was going to be a tight rope for [Culbertson] to walk.

The

second is Culbertsons refusal to confirm or deny his possession of

While I agree with the majority that historical film may be

valuable, there is no evidence that the three digital still images
here have any particular value. The value of the Zapruder film is
probably not a good indicator of the value of these images.
Further, even assuming substantial value in the images, such value
does not permit an inference that the valuable property would have
been kept at Culbertsons home. On the contrary, value may import
the opposite inference: that they would have been kept in a safer
place.
2

A third statement found in the affidavit, made by Culbertson

to defense attorney Mark Earnest, is subject to the same analysis
as these two statements.
34

the images during his telephone conversation with Easley.

These

statements are of very low probativity regarding Culbertsons

possession of the images.
For both statements, there are many ways that they could be
interpreted.

The majoritys interpretation is that Culbertson had

the images and did not want to give them to Nicholss attorneys.
Even under that interpretation, the statements contain nothing to
link

the

images

to

Culbertsons

home.

more

plausible

interpretation of the statements is that Culbertson did not want to

be placed in the position of having to reveal information about the
source of the photographs, regardless of whether they were in his
possession at that time.

Another plausible interpretation is that

Culbertson did not want to have any further connection with the
Nichols trial but was afraid that he would be forced in by
circumstances beyond his control.

Both of these alternatives are

supported by the facts available to Easley, though, for some

reason, not provided to the magistrate. They are offered here only
as examples of ways those statements could be understood, and there
are many other possibilities.

It would not have been possible

for Easley to produce information suggesting that all of the

possible

innocent

interpretations

of

Culbertsons

ambiguous

statements were false. Nonetheless, because the statements were so

readily subject to various interpretations, Easley should have
offered an explanation of why his preferred interpretation was in

35

some way better than the alternatives.

To be fair to Easley, he

did not, in the affidavit, explicitly state that he personally

believed those statements indicated that Culbertson still had
possession of the images.
for

the

statements.3

In fact, he offered very little context

Without

such

context,

no

reasonable,

disinterested magistrate could conclude that the statements were

likely to mean that Culbertson had the images.

They do not create

a fair probability that the images would be found in Culbertsons

home.
Even if the magistrate read the statements to indicate that
Culbertson likely possessed the images, such a reading would not
support a finding of probable cause.

The Supreme Court has stated

that a refusal to cooperate, without more, does not furnish the

minimal level of objective justification needed for a detention or
seizure.

Florida v. Bostick, 501 U.S. 429, 437 (1991); see also

United States v. Alexander, 835 F.2d 1406, 1409 n.3 (11th Cir.
1988) ([A] defendants refusal to consent to a search cannot
establish probable cause to search.).

Culbertsons statement

Among the information not included in the affidavit was a

portion of the conversation between Easley and Culbertson in which
Culbertson affirmatively stated that the images were not on his
computer. He also indicated that the images probably did not exist
anymore, but, if they did, they would be in an archive belonging to
a former member of Congress. Although there is no evidence that
these statements were intentionally and wrongfully omitted, it is
difficult to understand why they would not have been included,
since they would have been valuable information for the magistrate
to consider.
36

about a tightrope is no more than an expression that he did not

want to cooperate with the investigation, and his statement to
Easley

was

clearly

such

an

assertion.

Furthermore,

these

statements are the only pieces of information in the affidavit

dating from 2004.

Thus, the information in the affidavit can be

summarized as asserting that Culbertson had the images in the late

1990s and refused to cooperate in 2004.

Just as Culbertsons

refusal to cooperate could not serve as a basis for a finding of

probable cause that he was subject to seizure, it should not serve
as a basis for a finding of probable cause to search his home in
2004.
The purpose of the analysis is not to dissect the information
in the affidavit by showing that each of the statements has a
potentially

innocent

interpretation.

[I]nnocent

behavior

frequently will provide the basis for a showing of probable cause

. . . .

Gates, 462 U.S. at 245 n.13.

Nonetheless, when viewed in

light of the totality of the circumstances, the information suffers

from the same deficiency suffered by each individual part.

There

is no specific or reliable fact that could empower an impartial

observer to do more than conjecture on the meaning of the rest of
the available information.

After examining the evidence provided

by Easley to the magistrate in his affidavit, I conclude that it

was certainly possible that Culbertson had the images in his home
in

2004.

Nonetheless,

that

conclusion

37

relies

entirely

on

particular interpretation of ambiguous statements and speculation

about human nature. Although the standard of probable cause is not
a high one, it calls for more than was provided to the magistrate.
Having concluded that the warrant was invalid, I would further
conclude that Officers Murphy and Milefsky were in possession of
sufficient information to know that the warrant lacked probable
cause.

The second step in determining whether a defendant is

entitled to qualified immunity is whether the right violated was

clearly established at the time of the violation.
F.3d at 281.

Wilmore, 407

As applied to warrants, qualified immunity should be

denied when the warrant application is so lacking in indicia of

probable cause as to render official belief in its existence
unreasonable.4

Malley v. Briggs, 475 U.S. 335, 344-45 (1986).

Clearly, the affidavit lacked any direct evidence that the images
were in Culbertsons home.

Any conclusion to that effect drawn

from the information in the affidavit was only speculation.

Thus,

it is a necessary conclusion that the affidavit is completely

lacking in indicia of probable cause for Culbertsons home to be
searched.

Murphy and Milefsky, who were familiar with the details

of the investigation and fully informed about the contents of the

warrant application, should have been objectively aware that the

This is
participating
entitled to
participation

not to exclude the possibility that some officers

in such a search under an invalid warrant may be
qualified immunity by reason of their limited
in the execution of the warrant.
38

level of speculation involved in the warrant could not support a

finding of probable cause, even if a magistrate issued the warrant.
They did have a subjective belief that it was likely Culbertson was
in possession of the images, but the lack of a factual basis for
such a belief, especially with respect to the location of the
images, renders it unreasonable.
should be denied.

As a result, qualified immunity

I would therefore affirm the trial courts

opinion.

39