*1 peared longer III because there is no a rule of protect law to them. requires” self-restraint feder- “[J]udicial al “to the utmost courts exercise care asked to new
whenever we are break ground” in the field substantive due Flores, process. 507 U.S. 113 S.Ct. (internal omitted). quotation marks important note of caution is especially This one, in cases such as this where moral and personal passions high run and where America, UNITED STATES great liberty risk that “the pro- Plaintiff-Appellee, by
tected Due Process Clause [will] subtly policy prefer- transformed into the judges. Glucksberg, ences” unelected S.Ct. 2258. The KRUPA, Con- Peter John Defendant-
stitution to “public entrusts debate and Appellant. legislative identifying action” the task of No. 09-10396. protecting rights that are not rooted text, in our history, constitutional or tradi- Appeals, United States Court of precisely tions. Id. This case involves Ninth Circuit. right, legislative such a action goals achieved the in this pursued lawsuit. Argued and Submitted Oct. That was the proper although resolution: Sept. Filed Log every Cabin had right bring suit, only Congress the courts—had —not authority under our Constitution to Log vindicate Cabin’s efforts here. area,
In this highly charged we constitu- tionally inferior courts should be careful to
apply established law. Failure to do so begets very errors that plagued this
case. That ruling failure culminated in a that invalidated a congressional considered
policy imposed wholly novel view of liberty
constitutional on the entire United Supreme States. The Court’s us cases tell care, caution, greater exercise and hum- ility Indeed, than that. our constitutional
system demands respect more than that. judges When sacrifice the rule of law to favor, rights they find I fear people day one find that rights, their new proclaimed boldly, once so disap- have unconstitutional, 552 U.S. 449 n. are judged cations in rela- (First (2008) L.Ed.2d 151 Amendment facial plainly legitimate sweep”) tion to the statute’s challenge requires showing that "a (internal substan- omitted). quotation marks challenged tial number of appli- [the statute's] *2 CA, Hart, Fresno,
Katherine for defen- Krupa. dant-appellant Peter John Benjamin Wagner, B. At- United States torney, (argued), Brian W. Enos As- Fresno, Attorney, sistant United States CA, for the United States. S.
Before: MARSHA BERZON CALLAHAN, M. CONSUELO Circuit WOLLE, Judges, and CHARLES R. Judge.* Senior District CALLAHAN; Opinion by Judge by Judge Dissent BERZON.
ORDER
CALLAHAN, Judge: Circuit petition rehearing granted,
The for February opinion dissent filed withdrawn, opinion and a new 2011 are are filed concurrent with this and -dissent order. rehearing for grant petition
The filing of new opinion and the dissent petition rehearing for en moots banc. parties petitions file new for re- The hearing opinion the new from dissent Pro- pursuant Appellate to Federal Rule of cedure
* Iowa, Moines, Wolle, by desig- sitting Des R. Senior Dis- Southern The Honorable Charles Judge the U.S. District Court for nation. trict Sunday,
OPINION On “www.nude-teens.com.” 21, 2002, April Reynolds hospitalized Krupa appeals Peter from his condition- pain. day, for chest following guilty plea receiving material involv- al *3 revoked his consent to the search the of ing exploitation of in the minors sexual computers. 2252(a)(2). § Krupa violation 18of U.S.C. the court’s denial of challenges district his Reynolds hospitalized until remained suppress motion to evidence seized from April 2002. in hospital While the he in computers custody. grounds On his authority sought to continue his search of from slightly proffered by
that differ
those
computers
the
“for
further
items
court,
the district
we affirm the denial of
request
contraband.” The
on
was based
to suppress.
the motion
the photograph and the fact that consent
12, 2002,
military
On April
police
29, 2002,
had been revoked. On April
Air Force
Edwards
Base received
call
LaFave,
appointed Primary
Colonel
from Rhonda Velasco. She was worried
Authority
Search
Military Magistrate,
ten-year-old
her
daughter
because
and signed
Reynolds
a search warrant.1
re-
five-year-old son, who
on
living
analysis
comput-
sumed his forensic
ex-husband, Sergeant
with her
Velas-
ers, locating adult pornography and 22 im-
co, had
train
not arrived
station in ages
Lancaster as previously arranged. Ac-
thereafter,
Sometime
the matter was
military
cordingly,
police went to Sgt.
transferred to the Federal Bureau of In-
Velasco’s home. There
encountered
(“FBI”).
vestigation
Both parties agree
Krupa,
Peter
a civilian. He indicated that
May
that on
during
non-custo-
taking
he was
care of the children while
interview,
Agent
dial
an FBI Special
Sgt.
Philippines
Velasco was
until
Krupa
suspected
showed
porno-
April
military police
and showed the
graphic images recovered from one of the
written note to that effect.
computers and
him if
recognized
asked
he
complete disarray
The home was in
images. Krupa
allegedly
stated
clothing strewn on the floor
probably
he “had
all
images
viewed
pres-
hall. Of
concern were the
recognized
because he
that the structure
ence of
computer
towers and two lap-
printed
of the filename
above the computer
tops,
together.
some which were linked
images
be the same structure he uses to
military police
Krupa
asked
for con-
name
computers.”
files
his
computers
sent to take the
initially
and he
On the basis of the evidence obtained pur-
agreed.
suant to the
search warrant and
On Tuesday, April
2002, Agent
statement,
Krupa’s
the FBI sought and
(who
Reynolds
in,
is trained
and specializ-
procured a federal search warrant
from
in investigating
es
computers
digital
Judge Wanger
the Eastern District of
evidence)
assigned
to investigate the
California.2
computers.
seized
In his initial search of
Krupa was indicted for violating 18
the computers Reynolds
image
located an
§ 2252(a)(4) possession
U.S.C.
visual
Reynolds
contraband.
de-
—
depictions
scribed
sexually
to be of a nude
of minors
engaging
15-
17-year-old
female with
explicit
Krupa
website label
sup-
conduct.
moved to
Krupa’s appeal
question
pro-
does not
Ultimately
images
and an additional 48
priety
acting
issuing
of Colonel LaFave
pornography
as the
movies
were located
magistrate.
computers.
within the
Gates,
Illinois v.
comput-
from his
seized
the evidence
press
2317,
“[N]o
approach
a
change
naled a
from technical
cause,
or
supported
Oath
“a return to the
cause to
‘to-
affirmation,
describing
particularly
the.,
tality of
circumstances’ test and em-
searched,
per-
and the
place
to be
that
cause means ‘fair
phasized
to be seized.” U.S.
things
pre-
sons
certainty
not
a
probability,
”
Const,
amend. IV. The Constitution
ponderance
the evidence.’
clear;
may
Gourde,
authorize
magistrate
F.3d
States
Cir.2006) (en banc).
only
if officers estab-
Kelley,
location
we
ex-
cause to believe evidence
is a fair
plained
“[w]hether
lish
there
totality
depends upon
be found there. Proba-
probability
of a crime
circumstances, including
only
probabili-
a “fair
reasonable in-
ble cause means
ferences,
‘commonsense, practical
ty,”
certainty,
requires
consider-
and is
”
certainty
question,’
“[n]either
for which
totality
of the
of the circumstances.
ation
27, 2011) (No. 10-704).
(U.S.
Supreme
granted cert to re
June
Court has
The
Millender,
granted
apparent Shi, 709, 731 In United States v. base in which children resided (9th Cir.2008), “[g]ood faith we reiterated military police had re- for which agents’ exists if the affidavit es- reliance neglect, unques- report of ceived argument ‘at least a colorable tablishes context, tionably suspicious. In this cause,’ agents and the relied tag its picture, accepting objectively warrant rea- the search “www.nude-teens.com,” not child por- (internal manner.” citation omit- sonable say that La- nography, we cannot Colonel ted). reasonably conclude that Fave could conclude that the district court rea- We “a that contra- probability fair
there
sonably
determined that
2002—four
of a crime”
band or evidence
would
prior
years
opinion
to our
Battershell—
on the computers.
found
argument
for prob-
there was
“colorable
able cause” for the
of the search
issuance
Even if we were
conclude
warrant based on the circumstances under
cause to
there was
15 computers
which the
were found and
warrant,
would affirm the district
we
discovery
of the suspect photograph
finding
on its
the warrant fit
court
Reynolds in his initial
Agent
search of
good-faith exception set forth
within the
noted,
computers.
court
As
district
Leon,
468 U.S.
States
Reynolds
showing
“Agent
is no
3405,
for sum, appropriate 903 deference Luong, giving States v. F.3d Cir.2006). Therefore, if is a as re- there color- to Colonel LaFave’s determination Gates, by argument Apart- quired able that the search S.Ct. supported by probable precedent, and our own we conclude ment 3 was cause, reasonably he determined reliance on the could have the officer’s majority cause to sight Because loses of these precepts, respectfully warrant. Alter- fundamental the issuance dis- if sent. natively, even we were determine war- not cause for the
there was I. rant, we would affirm the district court’s that the warrant fit within determination majority Although the stresses that we Leon, good-faith set forth in exception give “great magis are to to a deference” Accordingly, 468 U.S. finding, op. trate’s probable Maj. denial mo- Krupa’s the district court’s 970), (quoting defer AFFIRMED. suppress tion ence has never meant abdicating our role to ensure the Fourth Amendment is BERZON, Judge, dissenting: Circuit respected. explained As this def imagine “proba- seems to erence is meant to account for Fourth “the as a ble cause” cloud that follows certain strong preference Amendment’s for around, idiosyn- people created their pursuant searches conducted war irresponsible friends, rant,” cratic habits and police lest conclude warrants though persisting even are individuals simply are not worth the trouble and “re any particular crime. searches, hope sort warrantless with the cloud, “probable This the majority cause” relying consent some other excep imagines, is available invocation law tion to the Warrant might Clause that justify virtually enforcement to any search. develop at the time of the search.” 462 But, clear, as the case law makes U.S. at Accordingly, S.Ct. 2317. does exist the air. prob- And instructs interpret Gates us to affidavits in think able cause to that someone is “commonsense,” odd rather than “hypertech negligent that his friend is a manner, id., father does nical” resolving “doubtful or justify seizing and searching his com- marginal cases” in favor upholding puters. validity, warrant’s id. at 237 n. *7 (citation omitted); S.Ct. 2317 see Ew also Instead, justify to a Fourth Amendment Stockton, ing City 1218, 1223 v. 588 F.3d of search, probable there must be to cause (9th Cir.2009). think that “contraband or of a evidence crime Nonetheless, will be found in a particular place.” clear Gates was that we Gates, 213, 238, Illinois v. 462 U.S. 103 “must continue to conscientiously review 2317, S.Ct. 76 sufficiency L.Ed.2d 527 In a the of on affidavits which war- case, one, such as this where items to rants magis- are issued” to ensure that the images a computer on trate’s issuance of the warrant was not “a seized— —could be, are, usually nature, innocuous mere ratification of the bare conclusions of affidavit in of a search warrant others.” 462 at U.S. S.Ct. 2317. probability” must establish a “fair practice, that the applying requisite defer- images actually are contraband or evi- ence means that we look to see whether Here, dence of a crime. Id. “the more there awas “substantial proba- basis” for precise question search, Leon, we must is answer ble cause to United States v. 897, 915, whether the officer’s affidavit established 468 U.S.
probable cause images (1984), that the on de- reviewing L.Ed.2d 677 magis- fendant’s finding were—as described— trate’s ultimate as to Hill, lascivious.” United States v. 459 cause for clear error. 459 F.3d at (9th Cir.2006). 970-71 ted). But a fact is relevant marginal a “doubtful This is not inquiry insofar as its existence 103 to this at 237 n. 462 U.S. case[ ].” likely suspect it more that the makes supporting The affidavit S.Ct. activity suspected. criminal computers engaged Krupa’s warrant search See, Ange v. Los e.g., County Millender inadequate provide probable to indubitably of Cir.2010) (en (9th les, 1016, 1030 noted, 620 F.3d district court As the cause.1 — banc), -, granted, cert. supporting single arguably fact but a (2011); L.Ed.2d 884 Gon discovery photo- cause: INS, 1441, 1446- 22 F.3d 15 to v. of nude zalez-Rivera “appeared to be graph that Cir.1994). government Neither the of 47 a web site label female with year old how the fact that majority explains was nor And that fact www.nude-teens.com.” military living on a to was a civilian cause provide probable to insufficient likely that there was makes it more computers contained Krupa’s that believe computers, and I pornography his child This fact is certainly see no connection.3 II. just useless trivia. fact, single I dis- turning to that Before majority’s related invocation majority main- cuss other facts States, Morgan v. cause: support probable tains alone (9th Cir.2003) suggest to that “civilians country out of Velasco was Sgt. Krupa impliedly as consent such care children had left his two base,” they enter a searches when civilian; that police Krupa, who was badly. is a Maj. op. fails There neglect”; “report responded to was, why argument very good reason Maj. computers. presence notes, “not addressed court agree the district op. at 1179. with it parties,” undisputed at 1179: id. any perti- have that none of these factors fact, Kru- Krupa did not consent. the warrant was at all to whether nence Reyn- revoked consent to pa expressly his believe issued computers. his See id. searching olds much pornography, Krupa possessed child his consent to the (“Krupa revoked without up less add Thus, make computers.”). search more.2 all, majority’s suggestion any sense at consider, course, Krupa impliedly consented “the totali-
We must (even after he had of his assessing prob- ty of the circumstances” consent) must express encom- 231 revoked his Hay, United States able cause. *8 (citation Cir.2000) implied consent (9th the notion this pass omit- F.3d Krupa Philippines, and said to an the in the what support of the affidavit 1. The text of attached, pertinent inquiry, agent to our entirety, as FBI in its warrant is search —are sup- appear they the affidavit as did not appendix opinion. to this an war- porting application for the search the reviewing a warrant on rant. "In search Court, district grounds, this like the repeatedly empha- court, 3.Although majority cir the to the information is limited civilian, Krupa, staying at oddity of corners sizes within four cumstances contained Base, story back is County Andrews Air Force Crowe v. underlying affidavit.” of the (9th suspicious. all quite mundane and not at Cir. Diego, 608 San F.3d of omitted). 2010) (citation Krupa member the United was a decorated quotation marks years, receiving his Air for six majority States Force many facts the Consequently, discharge prior to the inci- months opinion honorable recites at the outset of —that question. dents in Sgt. Velasco was disarray, house was in majority provides pornography single The reams on a was irrevocable. nothing suggestion.4 radical computer with an internet connection.5 See id. computers in
That there were proba- in supporting fares no better home Further, government suggests that civilian-on-a-military- ble cause than the providing the “defendant’s first consent to majority fact. Neither nor the many computers review his and then re- government explained has how this fact voking supported probable this consent” likely Krupa makes it one whit more cause, supporting affidavit had child There is not even application warrant also fact recited this as that, example, the bare assertion hav- But supporting probable cause. that fact many computers, ing which present cannot be considered for purposes resold, apparently fits a refurbished “[Rjefusal either. to consent to a warrant- “profile” of of child pornogra- a collector search is privileged less conduct which phy, such as the one discussed in United cannot considered as evidence of crimi- (9th Gourde, States 440 F.3d wrongdoing.” nal United States v. Pres- Cir.2006) (en banc). Instead, govern- cott, Cir.1978); 581 F.2d ment asserts that the computer collection States, see also Gasho v. F.3d ],” inherently is “suspicious[ but does not (9th Cir.1994) (same). 1420, 1438-39 explain why, endeavor or how this “sus- Finally, places weight also picion” is at all related to the likelihood hearsay the affidavit’s mention of a pornography that the had child Maj. “report neglect,” op. of child (or contraband) any other on their hard problems but there are three with doing we recently drives. As had occasion to First, so. gives affidavit zero indica- note, inexpensive “even storage electronic tion allegation as to whether the was ever today media can equivalent store the Second, substantiated. the affidavit’s “re- pages millions of of information.” United port is, neglect” best, language v. Comprehensive Drug States Testing, fact, misleading hyperbole; the chil- Inc., (9th Cir.2010) (en mother, dren’s banc). according police re- ability So the likelihood col- port, police go by asked the the home to lecting large amounts pornog- check on her children raphy simply does not increase when did not because multiple computers someone has arrive at the train instead of station as previously one; person so inclined can arranged. government’s download brief is more Moreover, Morgan implied majority posits linkage concerns all the about the person consent to a on initial op. it Maj. that was "unusual.” at 1178. An entry Morgan onto a base. does not only supports probable "unusual” fact suggest, nor does other case which probative activity. if it is of criminal See aware, implied am consent carries over 2317; Hill, 462 U.S. at here, long (or as as the civilian is on the base ("The clear; at 970 Constitution is base) even after he has left trans- magistrate may authorize a search aof loca- possessions ferred to his far-out-of-reach *9 tion if officers establish cause person. well as his to believe evidence aof crime be found there.”). event, any local area networks majority explains why The also never it mat- (LAN) unusual; are not are an exceed- computers]” ters that "some of [the reali- —in life, ingly fact of common modern used ty, three together,” of them —“were linked technophiles op. Maj. Luddites alike. The record at no doubt because it doesn't. place, indicates that appear the first that fact used the LAN at does not in issue affidavit, application play computer games search warrant to so it here with his Air Moreover, supra. is irrelevant. See note Force friends.
1183
something illegal.
(empha
Id.
honest,
a “child welfare
evidence
the visit
calling
added);
misleading “child
also United States v. Ru
as the
see
Insofar
sis
check.”
cause,
(9th Cir.1983).
it
supported probable
bio,
label
Sec
neglect”
F.2d
v.
See United States
disregarded.
must be
ond,
upon
compendium
facts relied
(9th Cir.2011);
F.3d
Flyer, 633
provide probable
cause of
could
Crowe,
435;
v.
F.3d at
United States
stay with friends on mili
crime. Civilians
1073, 1080
Cir.
Craighead, 539
bases;
their
tary
people watch
friends’
2008).
Third,
importantly,
and most
children;
today,
have
people
comput
is ne-
report
that someone
generalized
ers,
computers, in their
many
even
homes.
care,
if
in his
sub-
children
glecting
facts,
together and
These
even taken
stantiated,
provide probable
does
deference,
dollops of
do
simply
mixed with
be
pornography
would
to think that
searching
support seizing some
computers.
found
his
computers.
one’s
goes
far as
nonetheless
so
The
III.
facts, taken
these irrelevant
to hold that
comput-
fifteen
presence of
together
whether,
question
—“the
That leaves
a civilian with no
under the control of
ers
majority’s extravagant holding concerning
military in a home on
apparent ties
the existence of
cause even with-
in which children resided
aside,
photograph
out
military police
had re-
and for which
supply
missing probable
could
cause.
“un-
neglect”
report
ceived
—is
photo
The
was not included with the affi-
suspicious” enough to consti-
questionably
warrant,
davit
more,
tute,
probability
“a fair
without
only as “appearing]
was described
to be of
of a crime would
or evidence
contraband
year
15 to 17
old
a nude
female.”
Maj. op.
the computers.”
be found on
Battershell,
v.
United States
omitted).
(quotation
In other
marks
(9th Cir.2006),
dictates
this bare
words,
majority maintains that even
description
possibly provide proba-
cannot
picture”
that the
described
“accepting
cause.
Battershell relates:
ble
As
pornography,”
“was not child
the affidavit
categories
Federal
law defines five
cause for the search.
there was
“sexually
with
explicit
respect
conduct”
Id. at 1178.
The
four
first
plus
plus
equals
Not so. Zero
zero
zero
categories
specific
conduct
deal
zero, not
cause.
“(i)
identify
easy
describe:
thing,
For
a search warrant affidavit
one
intercourse,
including genital-
sexual
...
must establish
“nexus
between
anal-genital,
oral-genital,
genital,
allegedly] crimi-
item to be seized and[the
oral-anal,
persons of
whether between
Warden,
Penitentiary
Md.
nal behavior.”
(ii)
sex;
bestiality;
opposite
the same or
294, 307,
Hayden, 387 U.S.
(iv)
(iii) masturbation;
sadistic or
[and]
1642, 18 L.Ed.2d
In other
”
catego-
fifth
masochistic abuse....
words, “probable
cause must
examined
...
ry
the “lascivious exhibition of
evi-
in terms
believe that the
any person.”
genitals
pubic
area of
ap-
will
in a
sought
dence
aid
(quoting
Id.
U.S.C.
conviction,”
just
and not
prehension or
2256(2)(A)).6
§
The affidavit
this case
whether, if
enforcement
allowed
law
any particular
no
con-
they might find makes
mention
poke
enough,
around
affidavit,
311.3,
respects.
§
is identical
all material
also recited
6. Cal.Penal Code
*10
duct,
Krupa’s
photograph
peared
years
found on
to be 15
so
old. Had that
only
can
have fallen into the fifth
by just
year,
estimate been low
this
any.
if
category,
photograph
illegal
would
have been
rather,
pornography,
perfectly
but
only that
female
The affidavit stated
legal
injecting
adult
an
pornography,
to be 15 to 17 and was nude.
It
addi-
appeared
parts
body
nothing
uncertainty
said
about what
of her
tional factor of
absent in Bat-
depicted,
were
much less that
were
tershell.
is,
lasciviously
present-
exhibited
“so
—that
photograph
That
had “a web site
by
photographer
ed
.arouse or
label” of www.nude-teens.com adds noth-
voyeur.”
cravings
the sexual
of a
satisfy
ing
analysis,
least
(quoting
image
pornography,
was child
than
rather
440 F.3d at
Not only
did
owner
all
art. For
we know from
descrip-
much,
id.,
admit as
government
see
but a
tion,
photograph
by
was taken
a latter-
agent
extensively
also
explored the web-
Renoir,
day
intent on portraying from the
site,
Here,
contrast,
see id. at 1067.
young
bathing.
back a
woman
thing
we know is that
photograph
here,
upshot
The
is that
as in Batter-
(URL)
a uniform
resource locator
“la-
shell, the affidavit’s
bel”
“www.nude-teens.com.”
description,
accompany-
terse
absent
ing
photograph,
gap
tries to fill
insufficient to estab-
lish
photograph
the assertion that because the affidavit
lasciviously
genitals
or pu-
exhibited
Reynolds’ experience
recited
training,
bic area because
conclusory
[its]
state-
magistrate
give
“was entitled to
some
ment
an inherently subjective analysis
to [Reynolds’]
deference
statement
it is
if
unclear
the photograph exhib-
photograph
constituted an ‘image of
young
genitals
pubic
ited the
female’s
contraband,’
though
the af-
area.
description
photograph
fidavit’s
did
Battershell,
1185
relevant,
potentially could be
his affidavit
magistrates before a search is
independent
govern-
authorized,
taking
experience
not
no effort to connect his
just
makes
it claims the need and
word when
to
facts
case.
training
ment’s
of this
subject
individuals
non-
justification
adequate
respect,
this
the affidavit is less
property.
of their
consensual searches
Weber,
in
than
one
deficient
found
Leon,
915,
See,
at
104
U.S.
S.Ct.
e.g.,
468
least
the affiant’s
which at
averred
3405;
403
Coolidge
Hampshire,
v. New
experience led him to
substantial
believe
449-53,
2022,
443,
29 L.Ed.2d
91 S.Ct.
U.S.
suspect
collector
(1971).
the basis for
principle
That
is
564
Here,
at
923 F.2d
beyond
we
look
“the
the rule that
cannot
contrast,
Reynolds
only
statements
affidavit,”
underlying
four corners
experience
por-
about his
with child
makes
(citation omitted),
Crowe,
F.3d at 434
608
cases
that he has “observed
nography
is
support-
knowledge
the affiant had
even if
examples
pornography”
numerous
that he never disclosed
ing
in
participated
and “conducted and
investi-
issuing magistrate,
Whiteley
see
gations
related to
crimes and
8,
Warden,
565 n.
91
S.Ct.
U.S.
Even more so than in
pornography.”
contrary
“A
L.Ed.2d 306
Weber, these “boilerplate recitations de-
here—
adopted by
rule”—
signed to
all
meet
law enforcement
requirements
the warrant
“render[s]
may have added fat to the affi-
needs....
Id.
meaningless.”
Fourth Amendment
Weber,
davit,
certainly no muscle.”
but
course,
are circumstances
Of
there
at 1345-46.
if informed
opinion,
which the affiant’s
sum,
conclusion consistent
training
experience
relevant
and the Fourth
Battershell
Amend-
case,
can be
in the facts
grounded
provide
affidavit
ment is
did
ascertaining
existence of
helpful
search warrant.
generally
probable cause. See
Weber, 923 F.2d
1344-45
States v.
IV.
(9th Cir.1990).
then, magis-
But even
holding majori-
The Leon alternative
Rather,
an affiant.
trate
“defers” to
never
at
ty
opinion
tacks on
the end
its
won’t
presented
information must be
“Sufficient
described,
already
wash either. As
magistrate
to allow that official to
simply
question
no
the warrant
cause;
action can-
determine
his
precisely
here
on
the sort of
was issued
a mere ratification of
bare
impermissibly
“bare bones” affidavit
Leon,
at
conclusions
others.”
Gates,
warned,
which
at
Gates
see
Ü.S.
(quoting
search some two weeks after warrant Authority computers were of Search consequence, seized. As no “there was need for the ‘hurried judg- Qualifications: Statement ment’ which upon law enforcement deci- I, affiant, Reynolds, your Dennis duly based,” Weber, sions often must sworn peace employed officer the Stan- (citation omitted), and, F.2d at as ], islaus County Department Sheriffs Weber, “[although question we do not subjective July have been government, currently faith of since 1998. I am good it entirely unreasonably acted preparing assigned Valley to the Sacramento Hi- presented.” it Id. affidavit Tech Task Crimes Force. And have been assigned July so since 2000. In Oct 2001 I
CONCLUSION duty. recalled to active I am a Mas- reasons, For foregoing I would hold Sergeant ter the United Stated Air the affidavit did provide Force I currently assigned am as computers, cause to Krupa’s re- Investigator Security for the 95th Forces application verse the district court’s of Squadron, investigations I section. have good-faith Leon’s exception, remand been an Air Security Force Policeman in whether, for consideration of excising after [sjince the Air January Force Reserve the suppressed evidence from the affidavit Further I 1996[.] have been involved [i]n warrant, supporting second search [mjilitary and [civilian [l]aw [enforcement probable cause remained for issuance of for 24 Years. the second search warrant. I Army Military attended Po- I help cannot but think had this upon lice School in 1979 completion my case anything involved but child pornogra- training assignments I worked various phy, it differently. would come out I fear patrol, physical security, and minor crimes that understandable abhorrence of this investigation during assignments^] various judicial crime can infect judg- upon leaving October active ment. would We do well remember duty I [j]oined the Army California Na- protections of the Fourth Amend- tional depend ment do not Guard. was assigned Military on the nature of activity, criminal more Investigatorf.] than Police I completed training *13 responsible conducting I for investi- this am assignment work for and course digi- computers recovery included and of gations course work of My March evidence, types digital of rules evidence from various investigations, of tal criminal assign- During my employ- I held and the course seizure. media. and examples 1990. In Decem- till December I have observed numerous [sic] ment ment a assigned Special I was as in all of media pornography CID child forms ber (reserve) Army Crim- computer with media. I have con- Agent including I as- Investigations investigations inal Command. participated and ducted During to a General Crimes Team. signed computer por- crimes related to and child investigated many assignment I this nography. financial, crimes, ar- including sex crimes I California have attended numerous theft, I sons, held auto and homicides. Training Officer and Peace Standards until I duty assignment transferred
this Legal Aspects of Investi- including courses Force in 1996. the Air Reserve Traffic Investigations, Narcotic gations, full time February In I became a Special Investigations, Weapons Accident County Orange for the peace sworn officer Tactics, Instructor, Ad- Firearms and I Department where attended Sheriffs Training. I at- vanced Officer have also I re- County Academy. Orange Sheriffs computer investigation tended seventeen of instruction in the [h]ours ceived courses where I have received over of criminal ac- investigation detection comput- in the hours of instruction area of I was deten- tivity. assigned adult Crimes, Investigations er Internet I worked until 1986. tion/[p]atrol where Exploitation; I also hold two Child Califor- Training nia Peace Officer Standards and July I at- January 1990 to From computer special- certifications as a crimes I College River where tended Consumnes I have ist/investigator. also conducted study units in completed semester forensic examinations over police communi- investigations, of criminal past years. two [i]n Evidence, relations, and Search ty Rules a April In 1993 I became and Seizure. a several professional I am member of Police for the Patterson Reserve Officer Technolo- including; High associations until Department, patrol division Police Association, Investigators High gy Crime expe- July gained 1998 where I first-hand Network, Technology Crime California investigation in detection and rience Association, The Nation- Narcotic Officers a investigated I have activity. criminal Association, and the Tactical Officers al threats, including vio- multitude crimes Peace Officers Research Association assaults, robberies, thefts, check lent California. fraud, offenses, narcotic and traffic acci- Summary: July Deputy 1998 became dents. por- possible This case concerns Coun- with Stanislaus Sheriff-Coroner nography contraband!.] Department. October 1998 ty Sheriffs Support: Facts assigned Detective/computer I was 2002[,] I, Friday Inv Dennis April On investigator/computer forensics ex- crimes Kennedy TSgt Reynolds!,] was advised County with Sher- aminer the Stanislaus ad- responded to[redacted he had assigned I was Department. iffs neglect. As report dress] Hi-Tech Task Valley Crime Sacramento Ken- patrol response!,] TSgt result of July Force there were nedy constituting me that several material or containing [a]dvised (2252A) the location the there [T]hese materials parents no custodial [sic] contraband[,] are as well as violations of house individual KRUPA who was California Penal Code Section 311.1 Pos- military. per- affiliated This session of Child Pornography. custody of the son care and residence. Digital instrumentality media TSgt Kennedy *14 I to establish if asked crime contraband or a container for and/or possession anything involved or relating evidence to the crime and will be any types of at the other contraband loca- removed for off-scene search. The amount asking tion in for addition consent to currently of time required for this exami- review the data contained this the days plus nation days is 120 for review. any floppies [sic] o[r] Reynolds, Msgt, Dennis media at USAF CDROM the location. Consent /s/ given Investigator, and 13 Security Squad- towers and 95th Forces laptop systems, [sic] ron During 1. of investigating course LaFave, Col, David A. USAF /s/ working under original case AFB, Magistrate, Search Edwards CA image consent I located an Date: Time: [blank] [blank] appeared contraband. This photograph year
be of a nude 15 to 17 old female with label of web site www.nude-teens.com[.] this photograph being [B]ased on located and the fact that consent has been revoked SSgt both Mr. KRUPA and Velasco I am requesting authority continue this America, UNITED STATES of search for further items of contra- Plaintiff-Appellee, systems band. But as these used parties, both based on common use OF the BUSINESS BAT- CUSTER system of this I am requesting search TLEFIELD MUSEUM AND STORE authority. LOCATED AT INTERSTATE Conclusion: BILLINGS, EXIT SOUTH OF facts, on the your Based above affi- MONTANA, Defendant, knowledge, training experience, ant[’]s experience and the of other law enforce- ment personnel^] request that search Christopher Kortlander, Defendant- authority respect be issued with Appellant. requested location and seizure of No. 10-30222. said property. Appeals, States Court of
There believe that Ninth suspect has Circuit. violated laws the United Specifically, States. Title 18 U.S.C. 2252 Argued and Submitted June and 2252A which make it a crime to know- Sept. Filed ingly possess, transport, ship[,] receive, distribute, reproduce material involving (2252) exploitation
the sexual minors