Case Information
*2 HANISEE, Chief Judge.
{1}
The State appeals the district court’s grant of Defendant James Henz’s motion to suppress child pornography found in the search of his home, arguing that the district court erred in finding that the issued search warrant was not supported by probable cause. In this opinion, we examine for the first time the requisite level of description and verification necessary in an affidavit supporting the application for a search warrant for child pornography when the factual basis for the warrant are the reports of third-party electronic communication service providers (providers). We reverse.
BACKGROUND On August 5, 2019, Defendant was charged with one count of possession of a
visual medium of sexual exploitation of children under eighteen years of age (possession of child pornography), contrary to NMSA 1978, Section 30-6A-3(A) (2016) (child pornography statute). The charge arose following two independent reports, one from Tumblr and one from Google, Inc., to the National Center for Missing and Exploited Children (NCMEC) that a user had posted child pornography onto both respective internet platforms. In the affidavit supporting Bernalillo County Sheriff’s Department Detective
Kyle Hartsock’s request for a search warrant, Detective Hartsock included the following information about the reports sent to NCMEC by Tumblr and Google:
On February 22 and 24, 2014[,] an internet [provider] called Tumblr sent two tips to NCMEC, who then sent [the information] to the [New Mexico Attorney General’s (NMAG’s) Office] on March 11, 2014, concerning a registered user of Tumblr who was involved in incidents of child pornography.
Tumblr states that the user with moniker “allsoyummmy” utilize[d] the internet protocol [(IP)] address of 70.210.201.40 at the time of the incident. On [February 20, 2014,] that user posted approximately [six] images that contained explicit images of children in sexual acts or positions. The user also added the text “I trade pictures” and provided his email address and [messaging app] user name. The NMAG’s office conducted a preliminary investigation into the user name and the email address that was posted[,] and identified a video of the user[,] as well as the name of James Hen[z] or James Medina with a date of birth [later identified to be that of Defendant’s], as well as a Twitter profile indicating the user was in Albuquerque, New Mexico.
Affiant received a second tip that came back to the same user. [The provider] Google . . . report[ed] that on July 7, 2014[,] the user killajamo505 uploaded child pornography images to [Google’s] cloud service from IP address 107.4.45.176. Affiant went before a grand jury and asked for a subpoena to Comcast for IP address 107.4.45.176 on the date and time of the Google incident, asking for the subscriber information. Affiant did receive the information back from Comcast, which indicated that it is registered to Jeanette Medina. Comcast indicated that on the date in question the address was 6325 Sumac Dr SW, [in Albuquerque, New Mexico] but was disconnected on [August 4, 2014], and reconnected at 5715 Timberline Ave NW[, also in Albuquerque, New Mexico].
{4} Based on Detective Hartsock’s affidavit, a search warrant for Defendant’s residence was issued by a metropolitan court judge (the issuing court) in Bernalillo County, New Mexico. During the execution of the search warrant, law enforcement recovered multiple electronic devices containing forty images depicting child pornography. As well, Defendant told Detective Hartsock that he possessed child pornography, operated the usernames reported by Tumblr and Google, and “had a problem” with viewing child pornography. Defendant filed a motion to suppress evidence recovered during the search,
arguing that the affidavit was insufficient to establish probable cause because it failed to contain either adequate descriptions of the images that purportedly constituted child pornography, or independent verification that such images violated New Mexico’s child pornography statute. Following a hearing, the district court granted Defendant’s motion to suppress. In its order, the district court characterized the tips from Tumblr and Google as “conclusory assertion[s]” that certain images contained child pornography, stating that such assertions “fail[ed] to provide the necessary descriptive detail to allow the issuing court to judge independently whether the images constituted ‘child pornography’ that would be prohibited under New Mexico law.” The district court further found that the question of “[w]hether images described as ‘child pornography’ are prohibited under New Mexico law may include [an] analysis of several factors including camera angles, the acts depicted, *5 the setting of the image, etc.” The district court stated that “[r]elying on a conclusion, whether from law enforcement or a third party, that an image constitutes ‘child pornography’ provides no information to the issuing court to evaluate the more subjective elements under New Mexico law[,]” and “[g]iven the subjectivity involved in determining whether materials constitute ‘child pornography,’ such that there is probable cause to believe the law is being or has been violated,” an issuing court must “be provided with sufficient detailed information,” which could “include the images themselves, sufficient factual details of the images, or other factual information from which the issuing court can evaluate the nature of the images or materials.” Finding that the affidavit supporting the application for a search warrant did not explain the basis for Tumblr and Google to believe the images in question constituted child pornography as prohibited by New Mexico law, the district court found there to be an insufficient basis upon which to find probable cause and granted Defendant’s motion to suppress. The State appeals.
DISCUSSION The State argues on appeal that the district court erred in reversing the issuing
court’s probable cause determination and granting Defendant’s motion to suppress
because the search warrant was supported by probable cause. More specifically, the
State contends that Tumblr and Google are credible sources, the information
contained in their tips was reliable, and Detective Hartsock’s affidavit provided a
*6
substantial basis for the issuing court to have concluded that a search of Defendant’s
home would uncover evidence of child pornography. In response, Defendant argues
that the affidavit failed to establish probable cause because it did not include any
description of the relevant images from which an issuing court could conclude that
a violation of the child pornography statute occurred or any indication that either law
enforcement or the issuing court viewed the images to confirm they contained illegal
content. Defendant also raises an additional argument that the children’s court has
exclusive jurisdiction of the case because Defendant was seventeen years old when
law enforcement received the first tip from Tumblr. We address each issue in turn.
I.
The Search Warrant Was Supported by Probable Cause
In reviewing the district court’s grant of Defendant’s motion to suppress, “the
reviewing court must determine whether the affidavit as a whole, and the reasonable
inferences that may be drawn therefrom, provide a substantial basis for determining
that there is probable cause to believe that a search will uncover evidence of
wrongdoing.”
State v. Williamson
,
as well as Article II, Section 10 of the New Mexico Constitution, depends on whether
the affidavit for a search warrant demonstrates that there is probable cause to believe
that a crime is occurring or that seizable evidence of a crime exists at a particular
location.”
State v. Price
,
hearsay information, the affidavit must show,” in addition to providing a sufficient
substantive basis to allow the reviewing court to make an informed, deliberate, and
independent determination that criminal activity has or is occurring, “a substantial
basis for believing the source of the hearsay to be credible and for believing that
there is a factual basis for the information furnished.”
State v. Haidle
, 2012-NMSC-
033, ¶ 17,
{10} There are, therefore, two main inquiries we undertake in our analysis of whether the search warrant in this case was supported by probable cause: (1) whether the affidavit provides a substantial basis for believing that Tumblr and Google are credible hearsay sources who gathered the information supporting their reports of illegal activity in a reliable manner; and (2) whether Detective Hartsock’s affidavit provided a reasonable basis for the issuing court to conclude that a search of Defendant’s home would uncover evidence of wrongdoing.
A. Tumblr and Google Functioned as Credible Hearsay Sources Who
Gathered the Information Supporting Their Reports in a Reliable Fashion The State contends that both Tumblr and Google are inherently credible
sources because federal law requires that they report actual knowledge of violations of federal child pornography laws. The State further asserts that the Tumblr and Google reports to NCMEC in this case, which arose from direct observation of *10 materials posted by Defendant on their platforms, were premised upon information gathered in a reliable fashion. Defendant answers that the federally mandated reporting obligations imposed upon providers like Tumblr and Google create an economic incentive for overly-inclusive reporting of images to NCMEC. Defendant further contends that because the federal reporting obligations require Tumblr and Google to report violations of federal—not New Mexico—child pornography laws, the providers’ characterization of the reported images should not be relied upon to establish probable cause. As providers, Tumblr and Google’s reports to NCMEC were compelled by 18
U.S.C. § 2258A(a)(1)(A), which requires that “[i]n order to reduce the proliferation of online child sexual exploitation and to prevent the online sexual exploitation of children,” providers shall report apparent violations of federal child pornography laws to NCMEC “as soon as reasonably possible after obtaining actual knowledge” that such a violation occurred. See also 18 U.S.C. § 2258E(6) (defining “provider” as “an electronic communication service provider or remote computing service”). Under § 2258A(c)(1),(2), once NCMEC receives a provider’s report of an apparent violation of federal child pornography laws, NCMEC “shall make available” such reports to any federal, state, or local law enforcement agency “involved in the investigation of child sexual exploitation.” Although New Mexico courts have not previously examined either the
credibility of providers or the reliability of the methods by which providers acquire reported information under relevant federal obligations, other jurisdictions have held that providers like Tumblr and Google are presumed to be reliable sources akin to identified citizen informants. For example, in State v. Sisson , the provider America Online (AOL) discovered and identified child pornography images and subsequently sent the images, along with the screenname of the individual who sent them, to law enforcement. 883 A.2d 868, 879-80 (Del. Super. Ct. 2005). The Sisson court explained that in sending the relevant images to law enforcement, AOL essentially functioned as “a citizen witness to a crime and, as such, [AOL was] presumed to be reliable.” Id. at 880. “Accordingly, the [c]ourt [determined] that, under the circumstances, AOL was a reliable informant and no independent corroboration of the information provided by AOL was required.” Id. The Sisson court went on to state:
When information is supplied to law enforcement through a tip, the reliability of the so-called “tipster” determines how much corroboration, if any, is necessary to meet the probable cause standard for a search warrant to issue. . . . When the source of the tip is a named citizen informant, however, no corroboration is necessary to establish the reliability of the information. The information is presumed to be reliable because citizens have no reason to fabricate criminal activity; they are presumed to have no interest in the matter.
Id. at 879-80 (footnote omitted).
{14}
This view of citizen informants is consistent with New Mexico law, as we
have held that “a citizen[]informant[, even if anonymous,] is regarded as more
reliable than a police informant or a crime-stoppers informant” when the citizen
informant was an eyewitness to the reported illegal activity.
State v. Contreras
,
Tumblr and Google to be credible sources who, by first-hand knowledge, gather their reported information regarding the transmission or receipt of child pornography in a reliable fashion, and adopt those jurisdictions’ reasoning here. Defendant fails to present argument to the contrary, merely asserting that the federal reporting requirements create an economic incentive for providers, thus resulting in over- inclusive reporting. [1] Indeed, there is no indication that Tumblr and Google function differently than the providers in the above cited cases. That is, Tumblr and Google— under federal reporting requirements—convey information to NCMEC regarding the providers’ respective knowledge of an identified user’s transmission of images that presented apparent violations of federal child pornography laws. Under our two- part framework for assessing the credibility and reliability of an affidavit’s hearsay *15 source, the affidavit presented (1) a substantial basis for believing Tumblr and Google; and (2) a substantial basis for concluding Tumblr and Google gathered the information of illegal activity in a reliable fashion, given the federal requirements compelling their respective reporting to NCMEC. Upon our own review of this issue, relying on the ample support from relevant persuasive authority and observing there to be a lack of supportive authority for Defendant’s contention that Google and Tumblr were not credible reporting providers, we conclude that, as hearsay sources providing information to be used in an affidavit, Tumblr and Google functioned similarly to an identified citizen informant and are thus credible hearsay sources who gathered the information of illegal activity ultimately reported to NCMEC in a reliable fashion.
B. The Affidavit Provided Reasonable Grounds for the Issuing Court to
Conclude That a Search of Defendant’s Home Would Uncover Evidence of Wrongdoing The State argues that the district court erred in reversing the probable cause
determination of the issuing court and granting Defendant’s motion to suppress because Detective Hartsock’s affidavit, and the reasonable inferences that could be drawn therefrom, provided reasonable grounds for the issuing court to conclude that a search of Defendant’s home would uncover evidence of child pornography as proscribed by the New Mexico child pornography statute. Defendant answers that the affidavit failed to include either sufficient description of the posted images or *16 verification that Detective Hartsock independently viewed the images in order to conclude that they violated our child pornography statute and that such flaws in the affidavit rendered it insufficient to support a determination of probable cause. Similarly, Defendant asserts that the issuing court should have independently viewed the images in making its probable cause determination. Defendant argues as well that because federal reporting requirements required Tumblr and Google to report violations of federal, not New Mexico, child pornography laws, the information reported to NCMEC is insufficient to establish probable cause under New Mexico law. We note that New Mexico courts have yet to squarely address the questions presented here, that is: in the context of reporting electronic transmission of child pornography, how much detail must be included in an affidavit—or, alternatively, how much independent verification of the averred information must occur—when the affidavit is premised upon information furnished by providers reporting under federal requirements. We therefore seek guidance from the many jurisdictions that have precedent on this issue. We first address whether Detective Hartsock’s affidavit contained sufficient
descriptions of the posted images, noting that, in general, “courts differ on the level
of specificity required to describe the images to the issuing [court].”
People v. Rabes
,
containing bare allegations that certain images constituted child pornography—
without any additional detail about the images or why they violated relevant
statutes—were inadequate to support probable cause determinations.
See United
States v. Brunette
,
language in the affidavit here. For example, in
United States v. Battershell
, the Ninth
Circuit Court of Appeals considered an application for a warrant that described two
images on the defendant’s computer: one photo described as depicting “a young
female (8-10 YOA) naked in a bathtub” and a second photo described as depicting
a “young female having sexual intercourse with an adult male.”
female (8-10 YOA) naked in a bathtub”), fell into the fifth category and that the
officer’s “terse description, absent an accompanying photograph, is insufficient to
establish probable cause that the photograph lasciviously exhibited the genitals or
pubic area because his conclusory statement is an inherently subjective analysis and
it is unclear if the photograph exhibited the young female’s genitals or pubic area.”
Battershell
,
cause determination premised upon an affidavit describing an FBI agent’s online
interaction with the defendant in which the agent “made a deal with the defendant to
send [the agent] a computer diskette and thirty dollars through the mail in exchange
for a video tape containing scenes of child pornography” in conversations which
took place in conspicuously named chat rooms designated as “# sexpicshare # % %
kidssexpics.”
identified user “posted approximately [six] images that contained explicit images of
children in sexual acts or positions.” As in
Battershell
, where the image description
of a “young female having sexual intercourse with an adult male” was sufficiently
detailed to be identifiable as depicting “sexually explicit conduct” and “sexual
intercourse[,]”
enforcement must view the relevant images directly.
[4]
In
United States v. Lowe
, the
defendant made a similar argument, asserting that the descriptions of relevant images
were subjective opinions by the reporting individual, which failed to meet the
statutory definition of child pornography, and therefore the issuing court must have
viewed the images, itself, in order to accurately determine whether probable cause
existed.
that an affidavit include attachments of the actual images in question, the omission
thereof is not fatal to the affidavit’s ability to support a finding of probable cause.
See Battershell
,
{27}
We agree with the Third, Seventh, and Ninth Circuits of the United States
Court of Appeals that while it is a best practice to do so where possible, the issuing
court need not independently view images alleged to depict child pornography in
order to establish probable cause. A determination of probable cause is not based on
certainty
, but rather on
reasonable probability
.
See Sanchez
,
of any alleged wrongdoing—informs our analysis, as well, of Defendant’s argument
that the reported information was insufficient to establish probable cause because
*28
Tumblr and Google report violations of federal, and not New Mexico laws. Because
probable cause is not based on certainty,
see id.
, the fact that Tumblr and Google
report violations of federal, rather than New Mexico law, does not, in our view,
compromise the appropriateness of the issuing court’s determination that probable
cause existed given that we do not require an affidavit to prove specific elements of
a crime. Moreover, as to the merits of Defendant’s argument in this regard, we agree
with the State that the relevant definitions within federal and New Mexico child
pornography laws are sufficiently similar such that a report of a violation of the
applicable federal child pornography law would provide reasonable probability that
the reported materials also violate our child pornography statute. Given the
significant degree of substantive overlap between federal and New Mexico law on
the subject—indeed, it is hard to even theoretically conjure an image that might
violate one statute but not the other—it seems markedly improbable that a report of
a violation of federal child pornography laws would not also, necessarily, implicate
a violation of New Mexico child pornography laws. While useful to compare the
parameters of the federal and state laws, it remains a bedrock principle that we do
not require that an affidavit
proves
a violation in order to establish probable cause.
Rather, we merely require that an affidavit “provide[s] a substantial basis for
determining that there is probable cause to believe that a search will uncover
evidence of wrongdoing.”
Williamson
,
{29} Here, Detective Hartsock’s affidavit presented the following: reports made by credible providers—reporting to NCMEC under federal requirements—that an individual posted images constituting child pornography on the providers’ platforms; the identified usernames of the individual who posted the images; the associated email, birthdate, and physical address of the identified user; and the IP addresses from which the individual posted the images. We conclude that Detective Hartsock’s affidavit, premised upon information furnished by the providers reporting under federal requirements, included sufficiently specific descriptions of the Tumblr images that would allow the issuing court to determine that a search of Defendant’s home would uncover evidence of child pornography as proscribed by our child pornography statute, provided a substantial basis to support a finding of probable cause. Because an issuing court’s “determination of probable cause must be upheld if the affidavit provides a substantial basis to support a finding of probable cause[,]” id. , we hold that issuance of the search warrant in this case was properly supported by probable cause and the district court erred in granting Defendant’s motion to suppress.
II. The District Court Has Jurisdiction Over the Case
Defendant raises the additional argument that the children’s court has
exclusive jurisdiction over this case, asserting that possession of child pornography
is a continuing offense that, in this case, began when Defendant was a minor;
*30
therefore, jurisdiction rests only in children’s court. Jurisdictional issues present
“questions of law which are subject to de novo review.”
State v. Chavarria
, 2009-
NMSC-020, ¶ 11,
{31} Defendant was seventeen years old when Tumblr and Google reported information to NCMEC. By August 20, 2014—when the search warrant was executed at Defendant’s home and Defendant was charged by criminal information with possession of child pornography—Defendant was eighteen years old. Defendant was, therefore, undisputedly over the age of eighteen when he was found to be in possession of illegal images and charged accordingly. The criminal information set forth that “[o]n or about the 20th day of August, 2014, [Defendant] did knowingly and intentionally possess any visual or print medium depicting a prohibited sexual act or simulation thereof and [D]efendant knew or had reason to know that one or more of the participants was a child under the age of [eighteen] years, a fourth degree felony, contrary to Section 30-6A-3(A).” The State did not charge Defendant with committing any crime prior to his eighteenth birthday. Defendant states that the children’s court “has exclusive original jurisdiction of all proceedings under the Children’s Code in which a person is eighteen years of age or older and was a child at the time the alleged act in question was committed.” *31 NMSA 1978, § 32A-1-8(A) (2009). [5] But here Defendant was not charged with committing an act of possession of child pornography while he was a minor. Rather, he was charged with committing an act of possession of child pornography on August 20, 2014—the day his home was searched after he turned eighteen. [6] Based on the charge in this case, the State was tasked with proving that Defendant possessed child pornography then and no earlier. We are unpersuaded by Defendant’s jurisdictional argument and hold that jurisdiction of this case properly rests in the district court.
CONCLUSION
*32 {33} Having held that the search warrant was supported by probable cause, and that the district court erred in granting Defendant’s motion to suppress, we reverse and remand for proceedings consistent with this opinion. IT IS SO ORDERED.
_____________________________ J. MILES HANISEE, Chief Judge WE CONCUR:
_____________________________
MEGAN P. DUFFY, Judge
_____________________________
JANE B. YOHALEM, Judge
Notes
[1] While Defendant identifies the financial penalties imposed for a provider’s
failure to comply with federal reporting requirements, he provides no evidence or
authority to support the assertion that such penalties result in over-reporting by
providers. Nor does Defendant provide any known circumstance of a false report
driven by financial incentive. We therefore consider this argument to be speculative,
as well as undeveloped, and decline to consider it further.
See Corona v. Corona
,
[2] We emphasize that the “sexual acts” description is crucial in this case, given that “sexual positions” may not be considered sufficiently detailed in relation to our child pornography statute. See Battershell , 459 F.3d at 1051 (stating that a terse description of an image was insufficient to establish probable cause under the subjective fifth category prohibiting “lascivious exhibition of the genitals or pubic area” (internal quotation marks omitted)).
[3] We note that because the affidavit in this case contains two different providers’ reports of alleged child pornography possession—the more detailed and descriptive Tumblr information and the less-descriptive Google information which benefits from the specificity of the Tumblr information—we do not address the issue of whether reporting an image identified by a provider merely as “child pornography,” without further detail, and without other grounds supporting its identification as child pornography, would be adequate to support a probable cause determination.
[4] The record indicates that Tumblr sent the images as part of its report and the images were reviewed by the NMAG’s Office, and presumably could have been provided with the warrant application.
[5] Defendant additionally cites NMSA 1978, Section 32A-2-6(A) (1993), which provides that “[i]f it appears to a tribunal in a criminal matter that the defendant was under the age of eighteen years at the time the offense charged was alleged to have been committed and the offense charged is a delinquent act pursuant to the provisions of the Delinquency Act, the tribunal shall promptly transfer jurisdiction of the matter and the defendant to the [children’s] court.” Defendant further asserts that possession of child pornography is a delinquent act, citing NMSA 1978, Section 32A-2-3(A)(1)(k) (2009, amended 2019), which defines a “delinquent act” as “an act committed by a child that would be designated as a crime under the law if committed by an adult,” including “an offense punishable as a felony.” However, Section 32A-2-3(A)(1) defines offenses, pursuant only to municipal traffic codes or the Motor Vehicle Code. We, therefore, do not consider Defendant’s reliance on these statutes to be relevant or persuasive.
[6] Defendant’s briefing asserts that after receiving the Tumblr report, Detective
Hartsock “decided to wait” to pursue charges after “realizing [Defendant] was a
child.” There is no indication in the record to support this assertion.
See Chan v.
Montoya
,