*1 III. CONCLUSION concede that
Although parties both predecessors-in-interest
Thorstenson’s by giving the Cud-
overpaid the Cudmores never money for land that was
mores
transferred, re- Thorstenson is left without that claim. For the in this court for
dress herein, affirm the dis- stated we
reasons summary judgment grant
trict court’s deny the
favor as to Thorstenson.
same America,
UNITED STATES
Plaintiff-Appellee,
v. GOURDE, Defendant-
Micah J.
Appellant.
No. 03-30262. Appeals, Court of
United States Circuit.
Ninth 9,
Argued and June 2004. Submitted Opinion Sept. Filed 2004.
Panel En Banc
Rehearing Granted
July 2005.* En
Argued and Submitted Sept.
Banc Banc Filed March Opinion
En
other-
tenancy
Virginia's
it was unreasonable for him to believe
on this land.
est in his
Chapter
allows for Thorstenson's con-
13 Plan
wise.
tenancy
Virginia’s
estate but
tinued
under
life
*
case en banc.
The court voted to rehear this
tenancy
subject
approval,
to BIA
Gourde,
(9th
Judge, Presiding. D.C. No. CR-02- 06067-FDB. SCHROEDER, Judge,
Before: Chief REINHARDT, BRUNETTI, O’SCANNLAIN, RYMER, KLEINFELD, THOMAS, McKEOWN, GOULD, CALLAHAN, BEA, Judges. Circuit McKEOWN, Judge: Circuit conjures up images The term “Lolita” ranging literary depiction from the stepfather her adolescent seduced Nabokov’s novel1 to erotic dis- Vladimir young girls pornogra- and child plays us to consider phy. requires This case probable cause to search for pornography in the context of an child website, Internet known as “Lolita- gurls.com,” admittedly displayed pornography. appeals
Micah
from the district
motion
suppress
court’s denial of his
pornogra-
more than 100
phy
computer.
seized from his home
in sup-
Gourde claims
port of the search lacked
indi-
sufficient
cia of
cause because it contained
actually
no evidence that Gourde
down-
or possessed
pornography.
loaded
disagree.
totality
Based on
We
Fieman,
Colin
Assistant Federal Public
circumstances,
magistrate judge
Defender, Tacoma, WA,
appellant
Mi-
“prac-
who issued the warrant made a
eah Gourde.
tical, common-sense decision” that
there
Freeman,
L.
Janet
Assistant United
was a “fair
that child
Seattle, WA,
Attorney,
for appellee
States
nography would be found on Gourde’s
United States.
computer.
Illinois v.
462 U.S.
213, 238,
2317, 76
103 S.Ct.
L.Ed.2d
Appeal from the United States District
(1983).2 The Fourth Amendment
re-
Court for the
District of
Western
Wash-
ington;
Burgess,
Franklin D.
quires
District
no more.
Nabokov,
(1955).
(1984),
1. Vladimir
Lolita
S.Ct.
2. We need not reach the issue of
faith
warrant.
search
Leon,
under United States
468 U.S.
complete
young girl pics.
collection of
BACKGROUND
"
get movies/mpegs
BONUS: You can
I. THE AFFIDAVIT
partners
you join
you
our
site after
a war-
requested
May
wish.
Micah
the residence of
rant
to search
page
The second
also had testimonials
*3
comput-
seizing
of
purpose
for the
members,
“This lolita
from website
such as
materials contain-
and other
equipment
er
everything
young girls!”
site has
with
and
caused the
“probably
that he
ing evidence
my
pics
life the
of
“I’ve never seen
so
transmission
downloading and
uploading,
pre-teen girls.”
page
cute
This
offered the
over the Internet”
of child
ways
pages
viewer three
to see other
on
2252A,
§§
of
2252 and
violation
18 U.S.C.
(1)
the website:
take a free tour of the
criminalize
possession, receipt
(2)
site,
site,
become a new member of the
pornography.
of child
and transmission
(3) log
returning
a
member.
as
Special
facts come from
following
The
part
investigation,
of
As
under-
sup-
affidavit in
Moriguchi’s
David
Agent
joined
agent
cover
the website and was a
port of the search warrant. See United
August
from
to December 2001.
member
(9th
Anderson,
States
membership
per
The
fee was $19.95
Cir.1971) (“[A]ll
necessary
data
to show
month,
automatically
deducted
from the
for the issuance of a search
probable cause
Security
member’s credit card. Lancelot
contained within the four
warrant must be
processing
handled credit card
and access
given
a
under
corners of written
Lolitagurls.com.
control for
Members re-
oath.”).
ceived unlimited access to the website and
FBI
an undercover
August
In
...
images
were “allowed
download
di-
“Lolita-
agent discovered a website called
rectly
Browsing
from the website.”
The
page of the site con-
gurls.com.” The first
website,
“primary
entire
whose
feature
images
partially-
of nude and
tained
section,”
images
was the
the undercover
along
girls,
prepubescent,
dressed
some
images”
of
agent captured “hundreds
text:
with this
pornog-
child
pornography,
“included adult
pics!
hard to find
Lolitagurls.com offers
images
raphy, and child erotica.” These
high quality
weekly updates and
With
display
the lascivious
included
inside,
wrong
you
like
pix
you
go
cant
age
genitalia
girls
breasts and
of
under
High
young girls! Lolitas.Full
size
eighteen.
of
inside Join Now—in-
Quality Pictures
eventually
FBI
the owner
identified
updated
stant access here THIS SITE
and, in
Lolitagurls.com
of
operator
weekly WITH NEW LOLITA PICS
warrant.
January
executed
search
full compliance
This site is in
with Unit-
computer,
Among the seized items was his
Chapter
Code Title 18 Part
ed States
pornography images
child
which contained
Section
to the Lolita-
posted
that had been
to a
page
first
directed the user
sec-
“admitted
gurls.com website. The owner
girls,
nude
page
with more
of
ond
a child
‘Lolitagurls.com’
...
including
three
prepubescent,
some
a source
nography
operated
website he
minors,
genital
areas of
displaying
of income.”
reading
age
“Lolitas
12-17.”
caption
this text:
page
follow-up subpoena,
The second
contained
response
FBI
Security provided the
with
Lancelot
one thou-
Lolitagurls.
Over
Welcome
Lolitagurls.com’s subscrib-
information on
12-17! Naked
girls age
sand
records listed Gourde as
ers. Lancelot’s
weekly updates! What
girls
lolita
with
address,
provided
his home
Lolitagurls.com
is a member
you will find here
” Drawing on
cache....
address,
in the web
birth,
prints’
and the fact
email
date
Analy-
the FBI Behavioral
expertise
from No-
a subscriber
he had been
Unit,
listed certain “traits
sis
January 2002. Gourde
2001 until
vember
generally
...
found
and characteristics
FBI
membership
cancelled his
never
—the
in ...
individuals who
and be true
January,
exist
the site at the end
down
shut
According to
pornography.”
collect
still a member.
while he was
affidavit,
are
majority
of collectors
extensive back-
The affidavit contained
children, “collect sex-
sexually attracted to
computers
information
and the
ground
including digital
ually explicit materials”
pornography collec-
characteristics
gratification,
sexual
images for their own
and com-
out
section set
tors. One
(images that are
child erotica
also collect
understanding how
relevant to
puter terms
but still
not themselves
*4
pornog-
downloading
possessing
and1
involving chil-
fantasies
fuel their sexual
§ 2252.
18 U.S.C.
raphy would violate
ever,
dren),
dispose
if
of their
“rarely,
experts, the
Citing
FBI
materials,”
out
sexually explicit
and “seek
had ever re-
explained
individuals,
either in
like-minded
illegal images,
ceived or downloaded
on the Internet.”
computer for
would remain on the
images
by identifying
is,
The affidavit concluded
That
even if the
period.
an extended
fairly
that made it
facts about Gourde
images
“recycle”
to
and then
user sent the
bin,
pornography
that he was a child
recycling
the files in the
deleted
of
collector and maintained
collection
actually erased but were
files were not
and related evidence:
pornography
until
computer’s
space”
“slack
kept
(1)
affirmatively
overwritten,
steps
“took
to
making even delet-
Gourde
randomly
(2)
website;
join”
the website “adver-
by computer
retrievable
forensic
ed files
(3)
young girls”;
of
the web-
of a
of 18 tised
experts. Any evidence
violation
images
young girls engaged
site offered
certainly
§ 2252 would almost
re-
U.S.C.
(4)
conduct;
sexually
Gourde
explicit
computer long
main on a
after the file had
months,
a member for over two
remained
viewed or downloaded and even after
been
although he could have cancelled
been deleted.
had
(5)
time;
to hundreds
Gourde had access
the use of
The affidavit also described
including
postings
historical
to
images,
computers
pornography
for child
activities.
(6)
website;
any time
visit-
Gourde
experience
Based on his
and that of other
website,
images
he
to have seen
ed the
“[p]aid
experts, Moriguchi
FBI
wrote
prepubescent
females with a
of “naked
through
a forum
subscription websites are
to
caption that described them as twelve
persons
similar interests can
which
with
seventeen-year-old girls.”
images
pri-
in relative
view and download
vacy.” He
how collectors and
described
II.
BACKGROUND
PROCEDURAL
distributors of child
use the
affidavit,
strength Moriguchi’s
On
storage
free email and online
services of
magistrate judge issued a warrant
to
portals
as Yahoo! and Hot-
Internet
such
computers.
search Gourde’s residence and
mail,
others,
among
operate anonymous-
to
house and
The FBI searched Gourde’s
ly
require
because these websites
little
contained
computer,
seized his
over
identifying information. Communications
and eroti-
through
portals
these
result
in both the
ca.
storage of di-
intentional and unintentional
information,
suppress
Gourde filed a motion
gital
“user’s Internet
computer. At the
or ‘foot-
found on his
generally
activities
leave traces
suppression hearing,
the district
court
see
id. at
Turning
to the website
first
member,
unlimited access
Lolita-
had
ing
Gourde
unequivocal
is
evidence
clearly
images.
site
He
a
to hundreds
gurls.com was
in the form
im-
possess
content was
primary
the means to receive
whose
Indeed,
admitted
§
the owner
But
violation of 18 U.S.C.
ages in
website
a child
it “was
a
status as
importantly,
more
Gourde’s
income.” The
a source of
operated as
he
his intention and de-
manifested
member
to the FBI
confession
established
owner’s
illegal images.
sire
obtain
il-
actually contained
Lolitagurls.com
step and a
Membership is both
small
content,
receipt or
possession,
legal
requires
To
a member
giant leap.
become
of 18
would be violation
transfer which
little, easy steps.
glance
what are
first
Thus,
magistrate
§
U.S.C.
to submit
home
easy
It
for Gourde
was
whether
question
no reason to
judge had
address,
and credit card
email address
images
constituted
described
de-
data,
to have
and he consented
$19.95
ac-
the owner himself
because
nography
every month.
from his credit card
ducted
illegal images.
purveyed
he
knowledged
easy, only could
steps,
But these
however
futile Gourde’s
fact
renders
This
alone
insig-
were not
been intentional and
have
chip away at the
attempts to
piecemeal
have become
Gourde could not
nificant.
identifying shortcomings
by a mere click of
by accident or
member
i.e.,
description of
—
reality
perhaps easier
This
button.4
meeting the defi-
to describe
failed
to other arche-
by comparing Gourde
see
agent
pornography, that
nition of child
typical visitors to the
site.
determining
old
how
had no basis
browser,
as a
an accidental
such
stu-
were,
con-
that the
also
girls
website
site after “Goo-
came across the
dent who
(i.e.,
pornogra-
adult
tained
content
researching
“Lolita” while
gling” the term
erotica).
In the
face
*6
phy
child
paper
a
on Nabo-
the
for
term
Internet
a
operating
that he was
admission
owner’s
was Gourde someone who
kov’s book. Nor
website,
prophylac-
the
pornography
child
but,
the
tour
after
advantage
in full
took
of
free
that
site is
“[t]his
tic disclaimer
Code,
site,
taking
Title
at
the ac-
viewing
States
the
balked
compliance with United
2256” is
Chapter
necessary
Part
110 Section
steps
18
tive
member
become
that
dressing
absolves
images
mere window
of
unlimited access to
gain
nothing.
or
of
owner
users
is different
pornography.
child
Gourde
actually mustered
still
who
from
moves
one cer-
The affidavit then
from
a member
money
and nerve to become
tainty,
pornography
that
on the
child
was
but,
buyer’s
morning,
next
suffered
website,
had ac-
to another —that Gourde
prosecution
of
remorse or
belated fear
illegal
access to
cess and wanted
these
Instead,
subscription.
his
and cancelled
Lolita-
images. Gourde subscribed to
months,
a member and never
for over two
from No- Gourde became
gurls.com
Froman,
4.
United States v.
Significantly,
warrant
authorized
Cf.
Cir.2004)
(5th
(observing
member-
885
that Gourde
violated
to look for evidence
had
provi-
ship
Candyman eGroup, a forum dedi-
any part
§§of
2252 or 2252A. These
pornography,
they
was free and as
only possession, but
cated to child
sions
criminalize
“clicking
link on the
knowing shipment
simple as
the subscribe
of
also criminalize
Froman,
distribution,
2252(a)(1),
page”).
the Fifth Cir-
receipt
web
In
images, §
or
main
sale,
2252(a)(2),
2252(a)(3),
probable cause
attempt
that there was
§
§
or
cuit concluded
or
acts,
eGroup pos-
of the
these
to believe that members
conspiracy
commit
of
2252(b)(1).
pornography.
Id. at 890-91.
child
§
sessed
probable
to find
cause was
be-
ed to make
membership ended
looked back—his
had,
probability”
site. The
was a “fair
Gourde
FBI
down the
there
shut
cause
fact,
images.
little doubt
Gourde
in
received or downloaded
left
images
access to
unlimited
principle
proba-
to obtain
that a
paid
supports
Gates
will-
knowingly and
may
ble cause determination
be based
or
involuntary, unwittingly,
and not
ingly,
part on reasonable inferences. See
Lan-
evidence from
With
passively.
even
(noting that a
at
pornography
website
possession.”).
computers
collecting
distributing
and
pornography, including
child
their reliance
provided
The details
on the use of com-
e-mail,
boards,
e-groups,
on
bulletin
file
pornographers
and the col-
puters
transfers,
storage.”
and online
Id. at 75.
and
profile strengthen
lector
this inference
spelled
The affidavit also
out “the charac-
“provide[
prob-
context” for the “fair
help
]
proclivities
and
of child-pornogra-
teristics
ability” that Gourde received or download-
collectors,
phy
specifically
they
how
tend
Hay,
ed
See United States
231
material,
it,
rarely
to collect such
store
and
Cir.2000)
(9th
(reasoning
F.3d
636
destroy or discard it.” Id. The Second
profile
that the collector
the ba-
“form[ed]
Circuit,
circuits,
in line with other
had no
upon
magistrate judge
sis
which the
could
difficulty concluding that such an affidavit
plausibly conclude
those files were
probability”
rose to the level of “fair
and
agent
on
The FBI
premises”).
still
76;
pro-
probable
concluded that Gourde fit the collector
established
cause. Id. at
see
joined
Riccardi,
paid subscription
file because he
also
States v.
United
F.3d
(10th
pornography,
Cir.2005)
website dedicated to child
(holding
860-61
“persons
where
with similar interests can
that “possessors
affidavit’s statement
of
pri-
view and download
in relative
pornography
often
obtain
retain
vacy.”
persons
Most collectors “are
who images
of child
on their com-
children,”
have a sexual attraction to
facts,
puters,” along with other
was “more
membership
Gourde’s
was a manifestation
cause);
enough
support” probable
than
of that attraction. Collectors act
like
Chrobak,
United States v.
“pack
they
difficulty
rats” because
have
(8th Cir.2002)
(holding that affidavit
obtaining images
pornography.
cause,
supported probable
in part, based
such, they
As
are inclined to download and
“professional
experience
that child
time,
keep
long period
such
for a
of
nographers generally
pornog-
retain their
ever,
they “rarely,
dispose
if
of their
raphy for
periods”).
extended
sexually explicit
profile
materials.” This
sidestep
Gourde seeks to
the “fair
tracks the
profiles
supported
collector
probable
standard and elevate
finding
of
cause in other cases
cause to a
certainty.
test
near
See,
in this circuit
e.g., Lacy,
and others.
teaching
face of the clear
(“[T]he
119 F.3d at
explained
affiant
argues
lacking
cause was
that collectors and distributors of child
because the
could have deter
sexually
value their
explicit
certainty
mined with
whether he had actu
highly, ‘rarely
materials
dispose
ever’
ally
downloaded
images. According
material,
such
and store it ‘for long peri-
Gourde,
could have found
place, typically
ods’
a secure
in their
records
his downloads from Lolita
homes.”); Martin,
1073 (9th Cir.1991). why Weber illustrates by precedent. 1338 demanded the one inquiry emphasized that Supreme Court has sure, data have this additional To be concept turning a fluid “probable a cause is to “near probability” a “fair transformed — probabilities in par- or on the assessment had received certainty” that Gourde readily, or yet, had ticular factual contexts—not images. Better illegal possessed to a usefully down even reduced neat set of him at his caught FBI Gates, 232, 462 at 103 certainty would rules.” U.S. S.Ct. images, the loading the Gates, however, 2317. percent. 100 have been government pro compel does Weber, The circumstances which did a necessary to show more facts than
vide
Internet,
hardly
were
not even involve
that Gourde had commit
“fair
Two
comparable
Gourde’s situation.
imposes
approach
a crime.5 Gourde’s
ted
years
the search warrant was
before
rejected by Gates.
explicitly
a standard
sought,
targeted
investiga-
for
Weber
of “fair
relaxed standard
He confuses the
failing
pick up
parcel
tion after
ad-
im
higher
standards
probability” with
“apparently depict[ed]
dressed to him that
235,
103
at trial.
462 U.S.
posed
children.”
exploitation
the sexual
See
(“Finely-tuned standards such
2317
S.Ct.
Weber,
Nothing
at 1340.
came of
923 F.2d
byor
beyond a reasonable doubt
proof
Then,
later,
years
that incident.
Id.
two
evidence, useful in
of the
preponderance
a ficti-
Service sent Weber
Customs
trials,
magis
place
no
formal
have
ordered,
tious solicitation from which he
decision.”).
Supreme
Court
trate’s
unseen,
four
advertised as
sight
showing
facie
nor
prima
neither a
requires
The affidavit recited
pornography.
that make it
containing facts
an affidavit
details, along
general descrip-
these
with
than false” that Gourde
likely
“more
true
and
proclivities
“pedophiles”
tion of
Texas v.
pornography.
possessed
collectors,” without
“child
730, 742,
1535,
Brown,
103 S.Ct.
460 U.S.
showing the connection between Weber
(1983).
1075 §§ 2252 violated 18 U.S.C. illegal Gourde or had not downloaded fact had computer.2' would be found on his (and 2252A thus had to his govern- yet the possession), in his them Possessing a that would reveal that in- itself of not to avail ment chose the defendant had downloaded whether no for its It offered excuse formation. declining to exam- so, critical nature despite the to do failure it of a possessing ine is similar to govern- possessed. it failing of the evidence to look at progress murder said, fairly at the might seeking be an arrest warrant for ment’s actions them before thought suspect. to a In such someone least, constituted “conscious to have circumstance, cause was probable unless avoidance.” disposi- irrefutably established without the critical, government not had Had the evidence, totality an evaluation of the tive posses- in its dispositive, evidence indeed circumstances, both affirmative and in the sion, that is set forth the evidence lack negative, require finding a of of sup- might have been sufficient affidavit cause. The “lack” could be re- probable cause.1 Howev- finding probable port quickly by an examination of the solved to exam- er, failure government’s when the government’s possession. in the evidence considered critical evidence is ine the then, however, the evidence would Until prof- information the limited along with problematic; given gov- too simply be affidavit, it cannot be said unexplained fered behavior it would ernment’s considered, that, meeting probability” there was the “fair things all fall short of Certainly, analy- a “common-sense” test. evidence “fair potentially dispositive information.” question but I obtain about the 1. I have some doubts majority misses the Ante at 1073 n. 5. The not decide it here. need upon majority relies point. In the cases the support argument, potentially its dis- basis, had a valid Franks 2. On this government’s positive evidence was not in the claim, material omissions from in that applied it for the search possession at the time magistrate a warrant led the to issue affidavit circumstance, the courts warrant. In that probable no cause. See which there was held, required go government is 156, Delaware, 154, 98 v. 438 U.S. Franks possession beyond its and obtain the facts in (1978). Under L.Ed.2d 667 S.Ct. investiga- through further additional evidence Franks, by defendant establishes if a criminal Miller, 753 F.2d See United States v. tion. the evidence that an offi- preponderance Cir.1985); (9th States v. United 1479-81 recklessly omitted material information cer (8th 1995); Ozar, Cir. 50 F.3d affidavit, and if the affidavit consid- from the Dale, evidence is insufficient ered with the omitted Here, however, 1993). (D.C.Cir. govern- cause, “warrant probable then the to establish dispositive already acquired had ment the search voided and the fruits of must be or to facts, to avail itself them but failed extent as if excluded to the same that, as a result in the affidavit mention Here, lacking.” Id. cause was having computer of the owner seized the which, if con- material information omitted Lolitagurls.com, possessed it operator of along the affida- with the material in sidered images, any, been sent records of what vit, finding required a of a lack of would have Nothing in through the website. to Gourde probable cause. suggests majority even cited the cases disclose that majority argues government's it is irrelevant failure to that the dispositive possessed critical did not examine government failed to examine the it but any- claiming sought possession, a warrant its evidence before evidence it had in relevant thing omission other than material is not what that “the benchmark magistrate’s determination of may support An to the could have' done. cause. fails probable cause even if *11 cause, if it critical evidence in magistrate, would tell the he knew of ble when has sis omission, something that government’s the possession its but decides to avoid becom- wrong. magistrate was Had the been ad- content, ing aware of the it creates a “cir- facts, of all the relevant I doubt that vised cumstance” which casts substantial doubt warrant; rather, he would have issued the probability on the that the individual does have told expect he would the possess in fact illegal go away and come back government properly When this circumstance is the after it had looked at website owner’s weighed along upon with the others relied computer and determined whether there majority, longer it can no the be said probable cause. was indeed that magistrate the record before the majority improperly brushes aside judge probability” showed a “fair that importance government’s ability the Gourde downloaded or otherwise received to determine whether Gourde had down- illegal images. The record makes three illegal images. It ar- loaded or received First, things paid clear: Gourde for a gues prove it did not need to that membership in a website contained definitely Gourde downloaded or received legal illegal images both in unknown illegal images order to show that there website).3 (i.e., proportions a “mixed” Sec- a “fair possessed was he ond, government ability had the Ante at images computer. such on his any significant expen- determine —without That certainly 1073. is true —but it is not diture of time or effort—from the evidence present the issue case. In conclud- possessed Gourde whether had ever ing government’s that the ability to deter- any downloaded from Lolita- history mine Gourde’s download immate- is and, so, if gurls.com any whether of those probable rial to the analysis, cause Third, illegal.4 were majority types confuses two different government that the offered in support of information: evidence that the provided the warrant no evidence that could have obtained but that it did not any Gourde had ever downloaded images, possess at the it applied time for a war- legal illegal, from the website. The rant, and evidence that the government “totality of gives the[se] circumstances” possession had its at the time it applied best, rise to one of two conclusions. At for the warrant but did not utilize—evi- “totality of the circumstances” indi- dence that ques- would have answered the cates that the government engaged in tion whether there was cause. “conscious avoidance” and deliberately This case involves the latter Al- type. chose not to avail itself of the information though government certainly need not possession provide its that would have estab- proof definitive that an individual downloaded or lished whether pos- otherwise received Gourde downloaded or images on computer proba- to establish illegal images seeking sessed before Although majority ing suppression hearing, Special Agent labels the website a site,” "child it was in fact Moriguchi, applied David who for the war- is, "mixed”—that it contained both im- computer, rant to search Gourde's home and (such ages pornography) as adult as well as testified that months before the FBI four illegal ones. warrant, sought the Gourde search the FBI had seized the of the owner and "[wjhether majority argues 4. The operator Lolitagurls.com, and that could or would have found such data ... seized contained the information not clear from the record.” Ante However, images, any, about majority’s ignores what had been sent strong claim contrary through evidence to the in the record. Dur- Gourde the website. left alone. There was no worst, “totality of the At warrant. govern- there no that the cause because evidence suggests
circumstances” information any pornog- access that ment did downloaded *12 downloaded had not that Gourde raphy. found any- warrant sought the images, but illegal holding majority opinion the Is nor “common “logic”
way.5 Neither if has to a site person that subscribed majority guideposts the the use sense”—to material, that illegal that has “totality-of-the- to the as central identifies for a suffices as cause search ante at 1071'— analysis,” circumstances money paid That if a has warrant? government’s answer to the an provides illegal pos- at material that is to look In the absence irregular behavior. sess, possesses it? If the probably he provide failure to of its explanation some than these formula- holding is narrower evidence its with the magistrate the tions, everyone’s computer would be safer can it I do not believe possession, narrowing restrictions made were the probable cause. properly establish not, majority opinion If it the is clear. is an as to whether Perhaps if no evidence everyone’s privacy. my In dangerous to or other- had in fact downloaded individual view, majority concluding the errs illegal images was received wise for a was cause there search in a membership possession, government’s on unarticu- depend its inferences because be sufficient alone would “mixed” website not make assumptions that do sense. lated probability” a “fair to establish that a majority implicitly assumes images on his such possessed individual something probably pos- person who likes That case is not Perhaps not. computer. it, possession against is even sesses Here, admit- before us. law. that, it for the applied at the time ted importance of this case is considera- warrant, that could evidence possessed because, comput- their people, for most ble conclusively whether have determined People private spaces. most ers are their or received had downloaded the bedroom as commonly talk about membership a result of his images as they have space, yet when very private Yet, pro- it failed the “mixed” website. perfect guests including all the parties, — dispositive evi- court with this vide the their coats strangers invited to toss —are majority ignores Regrettably, dence. guests is But if one of those on the bed. so, it fails to doing fact. this critical computer, the host’s caught exploring the circum- “totality consider invitation. will his last be dis- Accordingly, respectfully I stances.” peo- on just many too secrets There are sent. legal, some embar- ple’s computers, most KLEINFELD, Judge, Circuit potentially tragic rassing, and some dissenting: liberality in implications, for loose their and his- Emails allowing search warrants. careful deci- dissent. The respectfully is or- may that someone tory links show correct and should by panel1 was sion to in- government's failure they from the drawn the circumstances 5. We must consider information con- sought by clude in was existed at the time warrant computer. tained in the seized we know to be the government, not what time the search. At the circumstances after Gourde, (9th issued, F.3d 1003 were the two these the warrant Cir.2004). could have been possible conclusions majority: considering the dering being kept for a disease stated medication circumstances,” “totality of there a family from Or is secret even members. being child is “fair that what is looked they may show that someone’s by parents for a serious for will be found at the location to be being counseled sense, prac- problem anyone that is none of else’s busi- searched? This is common may question magistrate sup- a married mother of three tical that the ness. Or steamy correspon- posed issuing to ask before a search war- carrying be email high boyfriend. an old school rant.3 dence with respectable, middle-aged anOr otherwise The answer has come from the stat- may looking dirty gentleman pic- defining ute the crimes at issue and the *13 public as a conscientious offi- tures. Just application. search warrant Common may cial be hounded out of office because a questions issuing magistrate sense for the party guest magazine found a homosexual to are police looking ask “what are the she to the bathroom at his
when
went
“why
they
they
for?” and
do
think
will find
house, people’s
may
lives
be ruined be-
application
evidence of it there?” The
for
legal
embarrassing
cause of
but
materials
says
the search
warrant
And,
in all
computers.
found
their
but wanted to search Gourde’s home for “evi-
areas,
largest metropolitan
really
possession,
of
receipt
dence
and transmis-
does not matter whether
formal
sion of child
pornography”
violation of
charges
police
ensue—if the
or other visi-
§§
18 U.S.C.
2252 and 2252A. So the
material,
tors find the
it will be all over
you looking
question
“what are
for?”
is
newspaper
town and hinted at in the
with-
precisely
satisfactorily.
answered
and
days.
in a few
serious,
question
unavoidable next
Nor
only problem.
are secrets the
War-
that an issuing magistrate
obligated
is
to
seizure,
ordinarily
just
rants
direct
not
“why
you
ask is
think
do
there is a fair
search,
computers
by
and
are often shared
probability
finding
of
such evidence on
family members. Seizure of a shared fam-
computer?”
Gourde’s
Here is where the
ily computer may, though unrelated to the
affidavit fails to make out
It
the case.
effectively
law enforcement purpose,
con-
only
website,
establishes
“Lolita-
book,
professor’s
fiscate a
a student’s al- gurls.com,” had criminal
pornogra-
child
thesis,
completed
most
Ph.D.
or a busi- phy on
along
legally permis-
with much
it—
payable,
ness’s accounts
and receivable.
paid
sible material —and that Gourde had
People
get
legitimate
cannot
their
work
it.
subscribe to
That
is not
$19.95
done if
police
their
is at the
matter,
enough, as a common sense
be-
suspect-
station because of someone else’s
(1)
cause:
might
using
have been
ed child pornography downloads. Sex
legal
the website to look at the
rather than
with
disgusting
children is so
to most of us
(2)
material,
illegal
even if Gourde
may
allowing
we
be too liberal
just
subscribed
because he liked to look at
searches when the
investi-
pornography,
child
common sense
gates
priva-
child
cases. The
suggests that
stay
he also liked to
out of
cy of people’s computers
important
is too
jail, so he would look but
possessing.
avoid
to let it
disgust.
be eroded
sexual
I generally agree with
analy-
the careful
question
an issuing magistrate
panel opinion
sis
about the mixed
fairly
should ask of a search
dissent,
warrant
nature of the
site.4
this
I focus
213, 230,
2.Illinois
462 U.S.
3.
Id. at
S.Ct.
(1983).
S.Ct.
mostly
subscriber would
pornogra-
us assume that
to child
an attraction
let
dence
that a
an inference
the assurance of lawfulness and
support
not
think that
phy does
out
The affidavit sets
it.
mere window
possesses
all the
material were
infer,
at least
cause
ample
Let us further assume that as
dressing.
novel,
Nabakov’s
of Vladmir
sense,
one knows
subscription to
of common
matter
purveyor
“Lolitagurls.com”
“totality of
Lolitagurls.com suffices
name,
claim to
its
its
pornography:
that there is a
circumstances”
establish
age 12-
1,000
girls
“pictures
have over
a subscriber has a
probability”5
“fair
girls,”
“naked lolita
17,”
reference
its
looking
interest
criminal
perverted
partially
of “nude
and the
Though satisfied from
pornography.
prepubescent”
some
young girls,
dressed
had this
probably
affidavit that Gourde
subscrip-
pages promoting
tour
on the free
desire,
issuing magis-
an
perverted sexual
in the sub-
tions,
images posted
and the
rejected
still have
the warrant
should
trate
depicted
“some
of which
section
scriber
a “fair
it still did
establish
because
display of the breast
lascivious
of a child
probability” that evidence
of 18.”
age
under the
girls
genitalia
*14
crime
be found on
nography
hand,
indica-
there were
the other
On
computer.
Gourde’s
inference
supported
the
tions
not be assumed to
The reason he could
would want the
or most subscribers
some
pornography
posses-
is that
possess child
the
legal pornography:
access to
site for
very
is a
serious
pornography
sion
inis
“This site
language said
promotional
say
he had
and the affidavit did
crime
States Code
with United
compliance
full
any. He could use the site
downloaded
2256”;
Chapter
110 Section
Title 18 Part
without down-
pornography
at child
look
of “naked lolita
the reference
in
it,
assumption
the
loading
a reasonable
from
in a
sentence
was
different
girls”
he had download-
of evidence that
absence
12-17”;
price,
age
“girls
$19.95
suggests that
Common sense
ed
one
month,
extraordinarily high as
was not
not,
or
has the desire
everyone, pervert
contraband; much of the
expect of
might
ordinary desire to
jail.
stay out of
(the
does not
on the site
material
that must
jail is a factor
stay out of
large
portion,
it is a small
say whether
totality
of circumstances.
considered
all)
FBI
what the
almost
was
portion, or
that an
to assume
would be irrational
It
legal pornogra-
said
agent’s affidavit
subjecting
between
is indifferent
individual
...
consisting
pornography
of “adult
phy,
avoiding
to criminal sanctions
himself
might
Thus a
erotica.”
and child
object
them,
while
he can
when
attain
at and
to look
subscribe to
site
well
crime for
To commit the
avoiding them.
The subscriber
legal material.
download
evidence,
sought
one
warrant
knowing
proclivity
might well think —
something more than look: he
do
has to
and of
goods
their
puffing
for
of merchants
know-
at the least
ship, produce, or
must
themselves
models to make
ability
pornography
ingly possess.
two
they
he would
than
are —that
look younger
say
vieiving
at issue do not
statutes
looking at the sort
pleasure
have
Congress
crime.
is a
to him without
appealed
pay
it a crime to
make
perhaps
could
looking
anything
risk of
not.
it did
images, but
view such
law.
of federal
violation
involved
S.Ct. 2317.
Section
mails,
“knowingly
one
or
“knowingly transports
ships,”
or
ties for
who
who
receives,”
“knowingly
“knowingly repro-
transports
ships,” “knowingly
or
receives
distributes,”
distribution,”
...
“knowingly
“knowingly reproduces
...
or
duces
for
sells,”
distribution,”
“knowingly possesses
or
with intent
and so forth.7 There
(A)
relating
special
§
and territorial
2252. Certain activities
to materi-
maritime
States,
exploitation
jurisdiction
any
involving
minors
of the United
or on
al
the sexual
to,
by,
building owned
leased
land or
or
(a) Any person who—
otherwise used
or under the control of
(1) knowingly transports
ships in inter-
or
States,
the Government of the United
or in
foreign
by any
state or
commerce
means
country
the Indian
as defined in section
mails,
including by computer
any
or
visual
title, knowingly possesses
of this
or
depiction, if—
books,
films,
magazines, periodicals,
more
(A)
producing
depiction
of such visual
tapes,
video
or other matter which contain
engaging
involves the use of minor
any
depiction;
visual
or
conduct;
sexually explicit
books,
(B) knowingly possesses 1 or more
(B)
depiction
con-
such visual
is of such
films,
magazines, periodicals,
tapes,
video
duct;
any
or other matter which contain
visual
receives,
distributes,
(2) knowingly
any
or
mailed,
depiction that has been
or has been
mailed,
depiction
visual
that has been
or
shipped
transported
or
in interstate or for-
shipped
transported
has been
or
in inter-
commerce,
eign
produced
or which was
commerce,
foreign
state or
or which con-
using materials which have been mailed or
tains materials which have been mailed or
shipped
transported, by any
so
or
means
shipped
any
transported, by
so
means
including by computer, if—
including by
knowingly repro-
computer, or
(i)
producing
depiction
of such visual
depiction
duces
visual
for distribution
engaging
involves the use of a minor
foreign
in interstate or
commerce or
conduct;
*15
sexually explicit
and
mails,
through the
if—
(ii)
depiction
such visual
is of
con-
such
(A)
producing
depiction
of such visual
duct;
engaging
involves the use of a minor
punished
provided
shall be
as
in subsection
conduct;
sexually explicit
(b)
this section.
(B)
depiction
such visual
is of such con-
duct;
§
relating
2252A. Certain activities
to mate-
(3) either—
constituting
containing
pornogra-
rial
or
child
(A)
special
maritime and territorial
phy
States,
jurisdiction
any
United
or on
to,
(a)
building
by,
Any person
land or
owned
leased
or
who—
(1)
mails,
by
knowingly
transports
ships
otherwise used
or under the control of
or
or
States,
the Government of the
foreign
by any
United
or in
in interstate or
commerce
means,
country
the Indian
including by computer, any
as defined in section
child
title, knowingly
pos-
pornography;
1151 of this
sells or
(2)
any
knowingly
sesses with intent to sell
visual de-
receives or distributes—
(A)
piction;
any
or
pornography
child
that has been
(B)
mailed,
knowingly
possesses
or
shipped
transported
sells
with intent
or
or
in inter-
means,
any
depiction
foreign
to sell
visual
by any
that has been
state or
commerce
mailed,
shipped
transported
including by computer;
or has been
or
or
commerce,
(B)
foreign
any
in interstate or
or which
material
that
contains
mailed,
produced using
nography
materials which have
shipped
that has been
or
shipped
transported,
transported
been mailed or so
foreign
or
or
in interstate or
com-
means,
means,
by any
including by computer,
by any
including by comput-
if—
merce
-
(i)
er;
producing
depiction
of such visual
(3)
engaging
knowingly—
involves
use of a
minor
conduct;
(A)
sexually explicit
reproduces any
(ii)
mails,
depiction
through
such visual
is of such con-
distribution
or in inter-
duct;
means,
foreign
by any
or
state or
commerce
(4)
including by computer;
either-—(cid:127)
or
(Text
language
of the stat-
page
on
embraced within
continued
nothing in either
ute.”
2388)
looking.
criminalizes
statute
the law is
spirit
purpose
Though the
get
to
About the closest the statutes
pornogra-
out the child
stamp
to
doubtless
looking
phrase “knowingly
mere
is the
re-
pen-
have no
industry, criminal laws
phy
Though precedent
ceives.”
does not settle
princi-
no
There is
or emanations.
umbras
question,
square
it does not
with com-
liberty, or more
more essential
ple
looking
knowingly
mon sense to treat
law,
in our
than
what
deeply
True,
imbued
receiving.
electrons have to turn a
prin-
That
prohibited,
permitted.
is
lot of bits into ones and zeroes on the
concerns,
why
look,
are
him
ciple,
process
and due
looker’s
to enable
construed;
strictly
signals
are
and he has received the electronic
criminal statutes
is,
read
that do this. But that is not much differ-
criminal law is not
“[a]
plainly
light
picture
ent from
waves from a
stimu-
to include what is not
expansively
book,
advertises,
(B) knowingly possesses any
maga-
(B)
presents,
promotes,
distrib-
film,
mails,
zine,
utes,
periodical,
videotape, computer
through
or in
solicits
or
disk,
foreign
by any
any
an
commerce
or
other material that contains
interstate or
means,
any
including by computer,
image
material
that has been
mailed,
purported
shipped
transported
material
in a manner
or
in inter-
or
or
belief,
means,
foreign
by any
is intended to
or
commerce
reflects
state or
believe, that the material
including by computer,
pro-
another to
cause
or that was
is, or
purported
using
material
contains—
or
duced
materials
that have been
(i)
mailed,
depiction of a minor
an obscene visual
shipped
transported in
or
or
inter-
conduct;
means,
sexually explicit
or
engaging in
foreign
by any
or
commerce
state
(ii)
depiction
minor
of an actual
a visual
including by computer; or
conduct;
sexually explicit
distributes, offers, sends,
engaging in
(6)knowingly
or
(4) either'— n
any
depiction,
provides to a minor
visual
(A)
special
and territorial
film, video,
maritime
pic-
including any photograph,
States,
jurisdiction of the United
or
ture,
generated image
pic-
or
or
to,
building
by,
or
owned
leased
land or
ture,
by
produced
elec-
whether made or
used
or under the control
mechanical,
means,
otherwise
tronic,
where
or other
Government, or in the
is,
be,
depiction
appears
such visual
1151),
(as
country
defined in section
Indian
engaging
sexually explicit con-
minor
duct'— n
knowingly
possesses
the intent
sells or
with
*16
any
pornography;
or
to sell
mailed,
(A)
shipped, or trans-
that has been
(B)
possesses
knowingly
or
with the
sells
by
foreign
ported
or
commerce
in interstate
any
pornography that
intent to sell
means, including by computer;
any
mailed,
transported
shipped
or
or
has been
(B)
using
produced
materials that
that was
by any
foreign
or
commerce
in interstate
mailed, shipped,
transported
or
have been
means, including by computer,
that was
or
foreign
by any
commerce
in interstate or
using
have been
produced
materials that
means, including by computer; or
mailed,
shipped
transported in inter-
or
or
distribution, offer,
(C)
sending, or
means,
by any
foreign
state or
commerce
accomplished using
provision
the mails
is
including by computer;
transmitting
causing
trans-
by
or
to be
or
(5) either—
any
in inter-
mitted
wire communication
(A)
special
and territorial
maritime
commerce,
including by
foreign
or
state
States,
any
jurisdiction of the United
or on
computer,
to,
by,
building
leased
or
land or
owned
inducing
persuading a
purposes of
or
for
by
used
or under the control
otherwise
any activity
is
participate in
minor to
Government,
the
States
or in
the United
illegal.
1151),
(as
country
in section
Indian
defined
provided
punished as
in subsection
shall be
book, magazine,
knowingly possesses any
(b).
disk,
film, videotape, computer
periodical,
States,
335 U.S.
348-
v. United
contains an im-
8. Kordel
other material that
or
(1948).
The affidavit does tendency focus on the Lolitagurls.com like opposed private of a collector of child pornography pre- question raised, emails. The might be serve the collected. That squares “why they?” wouldn’t The answer is that Carrasco, 9. See United States v. engaged sexually minors ex- (9th Cir.2001) ("To prove con- plicit conduct. possession, structive must b. GOURDE remained a member of this prove a sufficient connection the de- between months, although for over two website once fendant and the support contraband to gained website, he access to the he could inference the defendant exercised domin- easily have removed himself from the list of firearms.”). ion and control over the *17 time, During subscribers. this he had ac- images, cess to including hundreds of his- is the paragraph Here affidavit 33 in its site, postings torical to the which could entirety: easily during be downloaded period following facts lead me to believe membership. that MICAH GOURDE is a collector of Any c. logged time GOURDE would have pornography, likely and as such is website, on to this he would have long periods maintain for time a collec- have viewed prepubescent of naked tion and related evi- caption females with that described them dence: seventeen-year-old as girls, yet twelve to steps affirmatively a.GOURDE took he join 'Lolitagurls.com', the website did not un-subscribe to this website for at young advertises girls and offers least two months. crime, site, they a serious ed from the when down- and is possession was them, statutes or other information indicat- viewing is not. The simple loaded while exactly what was sent from Iowa.” penalties ranging ing out earlier set quoted in mandatory nothing There.was estab- forty years with from five to lishing any- that ever downloaded years mínimums fifteen for the high as thing Lolitagurls.com, and of- from and the silence offenses various that the FBI had checked the penal- suggested in them.11 These denoted fenders collecting, history like- download and found that he had high price impose ties they might even if not. ly many people to deter collect.
like to magistrate A have issuing careful would question, “why con- to ask himself the should warrant affidavit also The search is, images, that it does not believe Gourde has such screaming tains one silence: that he is a collector?” And the common that the server showed downloads say affidavit, be, particular- sense answer would have to computer. to Gourde’s downloads, inly that the the absence of evidence of signed May establishes fool, mer- “Not unless he is a since he can look Lolitagurls.com FBI took the smut risk, likely criminal be January 2001. There without and would chant’s collecting by heavy months deterred from plenty of time these several to it.” Part of the “total- through applied it to determine what ad- sanctions go ity legal images, yet there is no of circumstances” is the environ- dresses downloaded received ment which the individual lives. Com- mention that Gourde’s address lawyer suggests people mon that a lot of any. experienced judge, To an or sense they might that things where informa- would do a lot of silences are loud whom going empty freeway, like to on an ordinarily provided, that is '90 tion would do— owed, paying crossing at an acci- less taxes than are like an absence of skid marks light an intersection on a red when there is personal injury complaint dent scene or traffic, music on injury downloading pirated but no no alleging grievous physical it wage loss. The the internet —were not for expenses medical for them- they generate trouble would stronger inference from this silence download, affidavit, by doing them. not that Gourde did selves is FBI looked and found that but that seri Ordinarily the criminal law takes computer did not receive down- Gourde’s A ously the effectiveness of deterrence. loads. sentencing court is commanded Con that the sentence “afford supported by gress to assure negative This inference to criminal con hearing, adequate deterrence testimony suppression at the 12 All are not deterred people agent acknowledged duct.” where time, are de people all of the but most say opera- fair to that a record of the “It’s everybody is website, of the time. Not images it con- terred most tions of this $250,000 out, by the tained, buying from cars they were sent deterred when and are, either, people so transmitted, emailed, high prices but most information not be reasonable to assume traced from the Iowa would could have been probably car lover has infor- a multimillionaire server.” He also conceded to the common sense Applying “would Ferrari. mation available from the server circumstances, issuing mag totality inform the include information *18 that while suppose would have to somebody download- istrate F.B.I. about whether 3553(a)(2)(B). (b). See, 2252(b), § §§ 12. 18 U.S.C. 18 U.S.C. 2252A 1084 United v. Martin might States perverted well have sexual was determined girls, “primarily
interest in little to be ... effecting illegal he would also have activity,”16 was, stay prison. Lolitagurls.com the normal desire to out of but as ex- above, plained satisfy by ambiguous. He could more In our looking both desires precedent, own we used possessing. pro- but not If he had a fast the collector inter connection, file personal when the defendant had a net he could look online about website that an in- demonstrated “extreme as fast as he could look at on his young terest children.”17 Unlike each Considering legal hard drive. risk cases, partic- these there is no evidence images, he it would take downloaded some ular suggest to Gourde to more, he is a thing such as a statement illegal images.18 collector of purveyor’s affidavit that the smut comput er showed that Gourde’s majority The concludes downloads, probable received to establish probable by made out assuming cause cause that Gourde collected the anyone who an subscribes to internet site Why would he collect on his hard legal illegal with both material must when, subscriber, drive aas he could look collect illegal material from the site. This whenever he wanted without assumption stacks upon inference infer- provides risk? The affidavit experienced until ence the conclusion is too weak to judgment (though not scientific in the support privacy the invasion of by entailed sense that Daubert13 and Kumho Tire14 a search warrant. each “[W]ith succeed- require) that inference, collectors horde their collect ing the last reached is less and ibles, but no to suggest likely cause less privacy be true.”19 The of a Gourde was a collector. perversion with a sexual might danger make him a to our children seems majority generally cases the cites unlikely itself an candidate for concern. have factors addition to membership site But overwhelming importance support an collecting inference privacy of people’s computers makes it is the crime for which the —which essential to assure ugly that —even in this sought warrant opposed evidence—as corner of human perversion probable — cases, looking. non-criminal In those seriously cause interpreted remain pre- inferences were based on individualized requisite for search warrants. facts, not In profiling. mere Therefore, respectfully dissent. Froman, v. only joined defendant not e-group “Candy- man,” but also identified himself with announcing perverted
aliases sexual in-
terest in
girls.15
little
group
internet
Pharmaceuticals,
Daubert Merrell Dow
Hay,
17. United States v.
630,
231 F.3d
634
Inc.,
579,
2786,
509 U.S.
(9th Cir.2000).
113 S.Ct.
125
(1993).
L.Ed.2d 469
Illinois,
85, 90,
18. See Ybarra v.
444 U.S.
100
Co.,
Carmichael,
14. Kumho Tire
Ltd. v.
338,
(1979) ("a
S.Ct.
15. United States v. F.3d (5th Cir.2002). 890-91 Weber, 19. United States v. 923 F.2d (9th Cir.1990). Martin, 16. United States v. (2nd Cir.2005).