State v. McNuttState v. McNutt
Pretrial order reversed and remanded.
KISTLER, S. J.
Pretrial order reversed and remanded.
KISTLER, S. J.
The state appeals from a pretrial order granting defendant‘s motion to suppress evidence obtained pursuant to a search warrant. The trial court ruled that the affidavit filed in support of the warrant did not establish probable cause that the files on defendant‘s computer contained child pornography. We reverse the trial court‘s order.
We take the facts from the affidavit filed in support of the warrant. BitTorrent is a peer-to-peer (P2P) file-sharing network that allows persons to share pictures and videos over the internet. “P2P file sharing networks, including the BitTorrent network, are frequently used to trade digital files of child pornography.” A BitTorrent user will begin the process of sharing files by creating a “torrent.” The torrent does not contain the file being shared; rather, it typically contains a name or description of the file and identifies computers in the BitTorrent network where the file may be found.1
A person looking for a particular subject on the BitTorrent network can conduct a keyword search to find torrents that describe files of potential interest. The affiant explained:
“For example, a person interested in obtaining child pornographic images on the BitTorrent network would open the BitTorrent client application on his/her computer and conduct a keyword search for files using a term such as ‘preteen sex.’ *** The results of the torrent search are typically returned to the user‘s computer by displaying them on the torrent hosting website. The hosting website will typically display information about the torrent, which can include the name of the torrent file, the name of the file(s) referenced in the torrent file, the file(s) size, and the ‘info-hash’ SHA-1 value of the torrent file. The user then selects a torrent of interest to download to their computer.”
Two days later, the detective investigated another torrent that “was identified as being a file of investigative interest to child pornography investigations.” That torrent was associated with the same computer, and the detective downloaded the following file from that computer: “11yo - girl - Preteen girl just wants to Fuck & Suck (Sound).avi.” At approximately the same time, the other detective learned that the computer from which those two files were downloaded was located in defendant‘s home in Washington County.2 During a 30-day period, the detectives downloaded approximately 300 files from a computer in defendant‘s home.3
The detectives transferred all the downloaded files to Detective Kiurski in the Washington County Sheriff‘s Office. Kiurski has substantial training and experience in investigating child sex crimes.4 He “briefly looked at some of th[e] files [downloaded from the computer in defendant‘s home] and verified that there were over 300 files downloaded between 1/2/17 and 2/3/17 from the [computer in defendant‘s home] to [the detectives’ computer] and that those files did contain child pornography.”
“probable cause to believe that one or more of the occupants residing at [defendant‘s home between August 2016 and January 25, 2017] used a computer(s), cell phone(s), tablet(s) or mobile electronic device, that more likely than not is located [at defendant‘s home] to engage in Encouraging Child Sexual Abuse in the First Degree in violation of
ORS 163.684 and Encouraging Child Sexual Abuse in the Second Degree in violation ofORS 163.686 .”
Kiurski requested a warrant authorizing the seizure and search of computers and related electronic devices for evidence of the crimes of first- and second-degree encouraging child sexual abuse. See
Defendant moved to suppress the evidence discovered as a result of executing the warrant. His argument in support of the motion was narrow. He did not challenge any of the facts recited in the affidavit, nor did he dispute that the affidavit established probable cause that all the downloaded files (the two named files and the approximately 300 unnamed files) would be found on a computer in his home and related electronic devices. He did not contend that the warrant was overbroad, nor did he argue that the officers exceeded the scope of the warrant in executing it.5 Rather, his argument focused on one issue: He argued that the warrant failed to establish probable cause that any file on his computer contained child pornography.
On that issue, defendant began from the premise that Kiurski‘s affidavit reduced to a conclusory assertion that some of the files downloaded from a computer in defendant‘s home contained “child pornography.” Defendant contended that, to establish probable cause, the affidavit5
After carefully considering the parties’ arguments, the trial court ruled in defendant‘s favor. It accordingly granted his motion to suppress and entered a pretrial order suppressing the evidence discovered as a result of the warrant. The state appeals from that order.
On appeal, the parties reiterate the positions they asserted below. Additionally, defendant argues that the trial court‘s ruling may be affirmed on an alternative ground. He argues for the first time on appeal that, even if the affidavit was sufficient to establish probable cause, the warrant did not comply with State v. Mansor, 363 Or 185, 421 P3d 323 (2018). We begin with the predicate question whether the warrant established probable cause that the files on a computer in defendant‘s home contained child pornography. In doing so, we analyze that question initially under
I. PROBABLE CAUSE
A. Article I, section 9
As noted above, defendant does not controvert or otherwise challenge any of the facts set out in the affidavit. We accordingly accept those facts as true, as well as any
In answering that question, we use the phrase “child pornography” in this opinion as a shorthand way of describing the material that
With those considerations in mind, we turn to three sets of facts set out in the affidavit that, we conclude, collectively establish probable cause that the files on a computer in defendant‘s home contained child pornography: (1) the two named files that were downloaded from a computer in defendant‘s home; (2) an experienced detective‘s assessment after viewing some of the 300 files downloaded from the same computer that those files contained child pornography; and (3) defendant‘s use of a network that is commonly employed to share child pornography over the internet.
The title of the second file is equally telling: “11yo - girl - Preteen girl just wants to Fuck & Suck (Sound).avi.” That title leaves little doubt as to the age of the child (preteen), her gender, or the sexual activities depicted. The titles of those two files permitted the magistrate reasonably to infer that both files contained, as the title for one of those files explicitly stated, “Cp” or child pornography.
Defendant, however, discounts the significance of those two file names. He argues that the affidavit stated only that those two files were “of ‘investigative interest to child pornography investigations.’ It did not allege that [the] files were ‘child pornography.‘” In our view, defendant misperceives what the affidavit said. The part of the affidavit that defendant quotes describes why the detectives focused on the torrents that led them to download the two named files. It does not purport to preclude the magistrate from considering the names of those two downloaded files in determining whether they contained child pornography. See Foster, 350 Or at 169 (reminding courts to consider
We need not decide whether the magistrate could have relied solely on the names of the two files downloaded from a computer in defendant‘s home in finding probable cause that those files contained child pornography. See United States v. Miknevich, 638 F3d 178, 184-85 (3d Cir), cert den, 565 US 847 (2011) (relying, in part, on the graphic title of a single computer file to find probable cause that the file and the computer from which it was downloaded contained child pornography). In this case, the affidavit also states that Kiurski, a detective who had extensive training and experience investigating child sexual abuse crimes, personally viewed some of the 300 files downloaded from defendant‘s computer and concluded that those files contained child pornography in violation of
Defendant argues that an assertion that an image or video is “child pornography” is a subjective determination that is entitled to little or no weight in determining probable cause. As noted above, however, the magistrate reasonably could have inferred that Kiurski determined that the files he viewed contained child pornography in violation
To be sure, other cases may turn on more subjective prohibitions and thus require more explicit descriptions of the images to establish probable cause that those images are pornographic. For example, in United States v. Brunette, 256 F3d 14 (1st Cir 2001), the court considered whether there was probable cause that an image constituted a “lascivious exhibition of [a child‘s] genitals” in violation of a federal statute. Id. at 17-18. The court explained that it had adopted a six-factor test to determine when a picture would be considered a “lascivious exhibition” and that an affidavit that merely parroted the statutory prohibition was not sufficient to establish probable cause that the picture was pornographic.11 See id. at 17-19.
We note one final consideration. The magistrate reasonably could have inferred that, during a one-month period, defendant shared over 300 files on a P2P network that is “frequently used to trade digital files of child pornography.” In State v. Martin, 327 Or 17, 22, 956 P2d 956 (1998), the Supreme Court explained that a defendant‘s repeated presence at a location known for continuous drug sales gave an officer probable cause that the defendant‘s late night, hand-to-hand transaction constituted distribution of a controlled substance. As we later made clear, however, the context in which that act occurs will shed light on its meaning. See State v. Jacobs, 187 Or App 330, 334-35, 67 P3d 408 (2003) (explaining that a hand-to-hand transaction that occurred in more benign circumstances did not give rise to probable cause). In this case, defendant‘s repeated use over a one-month period of a P2P network that is frequently employed to trade digital files of child pornography sheds light on the nature of the files he offered to share. Specifically, his frequent use of that network cuts against his argument that the named files he shared depicted innocuous activity, and it corroborates Kiurski‘s assessment that the files he viewed were child pornography that violated
We do not place undue weight on defendant‘s use of the BitTorrent network. Rather, it is simply another piece of the puzzle that, considered in conjunction with the two named files downloaded from a computer in defendant‘s home and Kiurski‘s assessment that the downloaded files he
B. Fourth Amendment
Defendant argues that, even if Kiurski‘s affidavit was sufficient to establish probable cause under
In similar circumstances, the federal circuits have held that comparable affidavits established probable cause that suspect material was child pornography. See United States v. Haymond, 672 F3d 948, 950, 959 (10th Cir), cert den, 567 US 923 (2012) (upholding a magistrate‘s probable cause determination based on “filenames suggesting child
To be sure, the Third Circuit distinguished Miknevich when the affidavit stated that two coworkers had reported seeing the defendant “viewing child pornography” at work, unlike this case where the magistrate reasonably could have inferred that an experienced officer determined that the files he viewed depicted sexually explicit conduct involving a child. United States v. Pavulak, 700 F3d 651, 661-62 (3d Cir 2012), cert den, 569 US 968 (2013). Similarly, the Fourth Circuit has held that an affidavit stating that photographs depicted “nude children” is insufficient to establish probable cause. United States v. Doyle, 650 F3d 460, 473 (4th Cir 2011). And as noted above, the First Circuit has held that merely describing an image as a “lascivious exhibition” of a child‘s genitals is insufficient to establish probable cause. See Brunette, 256 F3d at 19.
The decisions in Miknevich and Haymond persuade us that the magistrate in this case complied with the
II. PARTICULARITY
Defendant argues, for the first time on appeal, that the warrant was not sufficiently particular. Relying on the Oregon Supreme Court‘s decision in Mansor, he argues that we can affirm the trial court‘s ruling on an alternative ground. See Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001) (explaining when a trial court‘s ruling may be upheld on alternative grounds). He contends:
“Here, the search warrant failed to comply with the requirements set forth in Mansor * * * [because] it did not describe with particularity ‘what’ law enforcement sought to find and the temporal limitations on such search. The warrant also did not impose limits on the use of information disclosed in the examination; or limit the search to the information identified in the warrant.”
Although defendant asserts that the warrant was deficient in those respects, his brief never explains why that is so, and we conclude that the grounds he identifies are either not well taken or do not provide a basis under Outdoor Media Dimensions Inc., for upholding the trial court‘s order.
Defendant notes initially that the warrant did not establish “what” law enforcement sought to find. However,
Defendant also argues that the warrant lacked a temporal limit. The state responds that the affidavit identified that the investigation began in August 2016 and continued through January 2017. It contends that a reasonable period encompassing those dates provides a sufficient temporal limitation on the scope of the search. The parties, however, did not argue below and the trial court did not find whether the affidavit could be considered in determining the scope of the search that the warrant permitted. See Mansor, 363 Or at 203-04 (discussing when the affidavit may be considered in determining the scope of the warranted search). Because the record developed in the trial court is not sufficient to permit us to resolve whether the affidavit may be considered in determining the limits of the warranted search, we conclude that defendant‘s second alternative ground for affirmance is not properly before us. See Outdoor Media Dimensions Inc., 331 Or at 659-60 (explaining that the absence of a developed record precludes reliance on an alternative ground for affirmance).
Finally, in asserting that the warrant failed to impose a limit on the use of information that officers discovered during the course of executing the warrant, defendant appears either to misperceive what Mansor said or to rely on information that is not part of the record before us. Mansor explained that police officers may come across information in searching a computer that falls outside the
In this case, the record developed in the trial court does not disclose what information the state uncovered in executing the warrant. It follows that the record does not disclose whether the state discovered evidence that fell outside the scope of the warrant, nor does it disclose whether, if the state did discover such evidence, the evidence came within an exception to the warrant requirement. Finally, the record does not disclose whether the state has sought to use such evidence, if it exists. Not only is the use issue that defendant raises premature, but the record is not sufficiently developed for us to consider the final ground for alternative affirmance that defendant identifies. See Outdoor Media Dimensions Inc., 331 Or at 659-60 (alternative grounds for affirmance not available if the record is not sufficiently developed).
We conclude that the first alternative ground for affirming the trial court‘s pretrial order that defendant has identified is not well taken and that the other two alternative grounds are not properly before us. We express no opinion on any challenges that defendant may properly raise to the warrant when this case is back before the trial court. It is sufficient to resolve this appeal to hold that the affidavit established probable cause that evidence of visual recordings of sexually explicit conduct involving children would be found on a computer in defendant‘s home and that defendant has not identified a viable alternative ground for upholding the trial court‘s pretrial order on appeal.
Pretrial order reversed and remanded.