Brief Summary:
Defendant was identified as a member of a child pornography website, "Lolitagurls.com." Based on that information, his computer was seized and searched by the FBI, revealing roughly 100 images of child pornography. After pleading guilty to one count of possession of child pornography, defendant appealed the trial court's refusal to suppress the evidence seized from his computer.
Facts:
During an investigation in 2001, an undercover FBI agent discovered the website "Lolitagurls.com." The opening pages of the site contained a mixture of pre- and post-pubescent girls, along with text promising members access to photos of girls age 12-17. The FBI agent joined the site and over the course of the next few months, downloaded hundreds of images of child pornography.
In January 2002, the FBI executed a search warrant on the owner of the website and discovered, among other things, materials that had been posted to the website. A subpoena issued to the payment processor Lancelot Security produced a list of subscribers to "Lolitagurls.com," one of whom was defendant Micah Gourde.
The FBI applied for a search warrant to seize and search Gourde's computer. In addition to the information that Gourde was a member of "Lolitagurls.com," the affidavit also included extensive information regarding the operation of computers, the Internet, and websites. Relying on FBI computer experts, the affidavit alleged that any contraband downloaded to the computer would remain there for considerable time, even if deleted.
The affidavit also described general characteristics of child pornography collectors, including their extensive use of the Internet and computers, and their tendency to keep such materials for a very long time, if not indefinitely.
The U.S. magistrate concluded that there was probable cause that child pornography would be found in Gourde's house and on his computer, and issued a search warrant. The FBI seized Gourde's computer and found over 100 images of child pornography.
Gourde moved to suppress the evidence collected from his computer. After taking testimony from the FBI agents, the trial judge "applied a 'common sense approach' to conclude that evidence of a subscription to even a 'mixed' site — one that offered both legal adult pornography and illegal child pornography — provided the necessary 'fair probability' to "look further." Following the court's ruling, Gourde entered a conditional guilty plea to one count of possession of child pornography and appealed the denial of his motion to suppress.
Issue(s):
Whether the trial court erred in denying Gourde's motion to suppress.
Ruling:
No.
Rationale:
The Ninth Circuit began by noting that in Illinois v. Gates, 462 U.S. 213 (1983), the United States Supreme Court ruled that the "probable cause" required for the issuance of a warrant meant a "fair probability." A magistrate need not require certainty or even a "preponderance of the evidence." The Gates decision also underscored the Supreme Court's view that the magistrate's decision should be accorded "great deference." The question then, the Ninth Circuit said, is whether the affidavit contained sufficient evidence on its face that there was a "fair probability" that child pornography would be found on Gourde's computer.
The appellate court noted that the website, "Lolitagurls.com," unquestionably contained contraband images of underage females. The court also said that it was undeniable that as a member of the site, Gourde had access to all of the contraband materials and had the ability to download them to his computer. In reviewing the facts, the court underscored the fact that Gourde chose to become a member and never cancelled his membership (it ended when the FBI shut down the site).
The Ninth Circuit then said that the fact that Gourde was a member meant that there was a "near certainty" that his computer would contain evidence of a crime if he had ever downloaded a contraband image. The court based its analysis on the lengthy electronic memory of computers. Given that the search warrant was issued less than four months after the site shut down, the court concluded that it was doubtful that the evidenc would be stale or missing. A finding of probable cause, the court said, may be based on "reasonable inferences."
Gourde argued that in light of the fact that the FBI could have reviewed server logs to determine if he did in fact download contraband, the affidavit was insufficient on its face. The Ninth Circuit rejected that argument, holding that the Gates decision does not require law enforcement to provide that level of certainty when applying for a search warrant. The Ninth Circuit said that the Supreme Court does not require a prima facie showing in order for a search warrant to issue, or even enough facts to make it "more likely true than not."
The opinion includes two strong dissents, arguing that the majority piles supposition upon supposition in determining that there was probable cause. |
