Search of an Incorrect Address

The Dallas Police Department received a “cyber tip” from the National Center for Missing and Exploited Children (“NCMEC”). NCMEC informed the department that someone with the username “TexPerv” had uploaded an image of a prepubescent male exposed in a lewd manner. The user had also accessed several chatrooms, signaling a sexual interest in children.

An officer issued an administrative subpoena to AT&T for the subscriber information linked to the IP address in the tip. AT&T’s records showed Hugh Michael Glenn as the subscriber for the designated IP address. Glenn was already listed as a convicted sex offender. The officer surveilled the address listed on the registry and observed a UPS package being delivered to the address.

An FBI agent sought a search warrant to search the residence with the designated IP address. The agent listed 3500 Routh Street as the address where Glenn was receiving internet service on August 1, 2016, but the AT&T documents actually showed he was receiving internet service at 3025 Routh Sreet on August 1st. He began using internet service at 3500 Routh on August 9th. Because the agent reported that the pornography was uploaded on August 1st, Glenn could not have uploaded the file from 3500 Routh, as the affidavit stated. This mistake went unnoticed and officers executed the warrant.

Glenn moved to suppress the evidence obtained during the search once it came to light that the agent’s affidavit incorrectly stated what his address was at the time of the upload. The district court denied the motion, concluding that the agent’s failure to state the correct address was “simply a mistake.”

Under the Supreme Court’s decision in Franks v. Delaware, a search warrant must be voided if the defendant shows by a preponderance of the evidence that the affidavit supporting the warrant contained a false statement made intentionally or with reckless disregard for the truth and, after setting aside the false statement, the affidavit’s remaining content is insufficient to establish probable cause. The Fifth Circuit affirmed Glenn’s thirty-year sentence, holding the district court did not err in finding that the agent had simply made a mistake and was not “even negligent.”