This post examines a recent opinion issued by a U.S. District Court Judge who sits in the U.S. District Court for the Northern District of California: U.S. v. Wolff, 2015 WL 5960117 (2015). The judge begins the opinion by explaining
that
Konrad Wolff is charged with one count of possessing child pornography and one count of receiving child pornography.
He moves to suppress the results of searches of his hard drives and electronic
devices.
U.S. v. Wolff, supra.
He went on to explain how the prosecution arose, noting that
on
September 24, 2015, Wolff's wife, a
student at UC Berkeley, contacted Officer Kevin Vincent of the University of California Police Department (`UCPD’) to report that `she had discovered child
pornography on an external computer hard drive’ that belonged to Wolff. See Sept. 25, 2014, Search
Warrant and Affidavit (`First Search Warrant’) ¶ 1, Dkt. No. 28-1. Ms. Wolff
told Officer Vincent she had used her husband's computer with his permission
the previous day while he was out of town, and in the course of performing a
computer search came upon files with names similar to `stepfather fucking
stepdaughter’ and `two men having sex with a teenage girl.’ Id. ¶
2; Declaration of Kevin Vincent (`Vincent Decl.’) ¶ 5, Dkt. No. 29. Her initial
attempts to open the files were unsuccessful. See id.
The next day, she tried to access the
files on her husband's `WD My Passport’ external hard drive. First Search
Warrant ¶ 3; Vincent Decl. ¶ 8. She found that it was password protected, but
noticing that the password hint was `moar’—Danish for `mother’—she was able to
deduce that the password was `jegelskermoar,’ Danish for `ilovemother.’ Vincent
Decl. ¶ 8; Incident Report, Dkt. No. 29-2. On the drive, she
found what she described as ‘”hundreds” of images of minors engaged in sexual
acts or exposing themselves in a sexual manner.’ First Search Warrant ¶ 4. The
folders containing the pictures were `buried deep within other folder groups,
and were categorized by name and ethnicity.’ See Incident Report.
Ms. Wolff estimated that `the female
children in the images ranged in age from 8 to 14 years old, although most of them
were age 8 to 10 years old.’ First Search Warrant ¶ 4. On the evening of
September 24, 2014, she turned the drive over to Officer Vincent. Id. ¶
5; Incident Report; Vincent Decl. ¶ 10.
On September 25, 2014, Sergeant Andrew
Tucker of UCPD prepared a search warrant affidavit recounting these facts and
seeking judicial permission to search the drive. See First Search
Warrant. Judge Tara Desautels of the Alameda Superior Court issued the warrant
that afternoon. See id. After the warrant was issued, UCPD sent the
hard drive to a crime lab for testing. See Declaration of
Andrew Tucker (`Tucker Decl.’) ¶ 8, Dkt. No. 28; Sept. 30, 2014, Search Warrant
and Affidavit (`Second Search Warrant’) ¶ 6, Dkt. No. 28-2. That same day,
Officer Vincent went back to Ms. Wolff's apartment, where she gave him two
laptops, a tablet, a digital camcorder, two cell phones, and six thumb drives.
Vincent Decl. ¶ 14.
U.S. v. Wolff, supra. (“Dkt.” Is an abbreviation referring to the
court’s docket.)
The opinion goes on to explain that, on
September 30, 2014, Sergeant Tucker
prepared a second search warrant affidavit, seeking judicial permission to
search the newly acquired electronic devices. See Second
Search Warrant. The affidavit contained allegations almost identical to the
ones submitted on September 25 and a new paragraph describing the general
characteristics of pedophiles `[b]ased on [his] training and experience.’ See
id. ¶ 8. Judge Desautels signed the warrant the same day, see Second
Search Warrant, and Sergeant Tucker submitted the additional electronics to the
crime lab.
The crime lab analysis revealed 93,158
images of suspected child pornography on Wolff's hard drive, among other
findings. Dkt. Nos. 28-5, 28-6. The government filed an indictment on December
18, 2014, charging Mr. Wolff with one count of possession of child pornography
in violation of 18 U.S. Code § 2252(a)(4)(B). See Dkt. No. 1.
On February 19, 2015, the government filed a superseding indictment, alleging
counts for possession, 18 U.S. Code § 2252(a)(4)(B), and receipt, 18
U.S. Code § 2252(a)(2), of child pornography. See Dkt. No. 14.
U.S. v. Wolff, supra. You can read about the statutes under which Wolff was charged here. You can read more about the facts and the
charges in the case in the news story you can find here and the press release
you can find here.
The District Court Judge then explained that “Wolff
challenges both the government's initial acquisition of his electronic devices
and the lawfulness of the two state warrants that the government obtained to
search them.” U.S. v. Wolff, supra. He
analyzed each issue, in this order. U.S. v. Wolff, supra.
Wolff’s first argument was that the government
could not accept his electronic devices
from Ms. Wolff without a warrant. Although he concedes that his wife turned the
devices over voluntarily and without coercion, see Hearing Tr.
at 16:4-5, Dkt. No. 37, he nevertheless contends that the government's actions
constituted a warrantless seizure that does not fall within a recognized Fourth Amendment exception.
U.S. v. Wolff, supra. The judge went on to explain that
[a]s an initial matter, Wolff's
argument that the government's acceptance of the devices constitutes a Fourth
Amendment seizure of any kind—let alone an unlawful one—is ill taken. The Ninth
Circuit has held that `evidence discovered in a private search is not subject
to exclusion for failure to obtain a search warrant or otherwise comply with
the requirements of the [F]ourth [A]mendment’ because `the [F]ourth [A]mendment
protects against unreasonable intrusions by the government, but not against the
conduct of private individuals.’ U.S. v. Sherwin, 539 F.2d 1, 5-6 (U.S.Court of Appeals for the 9th Circuit 1976); see also U.S. v. Tosti,
733 F.3d 816, 821 (U.S. Court of Appeals for the 9th Circuit 2013) (`The
Fourth Amendment's proscriptions on searches and seizures are inapplicable to
private action’).
Wolff contends that Sherwin is
outdated and was implicitly overruled in U.S. v. Jacobsen, 466 U.S.109 (1984), which held that receipt by Drug Enforcement Agency officers of a
suspicious package found by Federal Express employees was a seizure. Jacobsen,
supra. . . . (`the
agents' assertion of dominion and control over the package and its contents did
constitute a “seizure”. . . .’). The problem with this argument is that a year after
Jacobsen, the Ninth Circuit
cited Sherwin to reiterate that `[t]he government's acceptance
of documents obtained in a private search and voluntarily relinquished to
government agents does not constitute a seizure. . . .’ U.S. v. Black,
767 F.2d 1334, 1340 n.4 (U.S. Court of Appeals for the 9th Circuit 1985). While
the Court may not be bound by circuit precedent when there is an intervening
and clearly irreconcilable Supreme Court opinion, see Miller v. Gammie,
335 F.3d 889, 893 (U.S. Court of Appeals for the 9th Circuit 2003) (enbanc), Wolff has not shown that Jacobsen amounts to a sea
change in precedent, and he also fails to point to any authority for the notion
that this Court can refuse to follow a precedential Ninth Circuit opinion based
on a Supreme Court decision that predates it.
U.S. v. Wolff, supra.
The judge went on to explain that
Wolff's argument also fails on specific
substantive grounds. U.S. v. Jacobsen affirmed the proposition
that the Fourth Amendment `is wholly inapplicable ‘to a search or seizure, even
an unreasonable one, effected by a private individual not acting as an agent of
the Government or with the participation or knowledge of any governmental official.’
official.’” U.S. v. Jacobsen, 466 U.S. at 113 (quoting Walterv. U.S., 447 U.S. 649 (1980)). Contrary to Wolff's suggestion, Jacobsen clearly
permitted the UCPD's warrantless acceptance of the electronic devices from Ms.
Wolff. The case holds that the lawfulness of a government search subsequent to
a private search `must be tested by the degree to which [the government]
exceeded the scope of the private search.’ See
U.S. v. Jacobsen, supra.
As Mr. Wolff concedes, the government
did not search within the external hard drive or electronics prior to obtaining
a warrant. . . . There was no government search at all that might
exceed the scope of Ms. Wolff's private search. Nor was the warrantless seizure
of the devices, even assuming it was a seizure, unreasonable. As Jacobsen found,
the government agents may have `seized’ the narcotics package, but since it `remained
unsealed, and the Federal Express employees had invited the agents to examine
its contents,’ the `seizure was not unreasonable.’ U.S. v. Jacobsen, supra.
U.S. v. Wolff, supra.
The District Court Judge went on to point out that
Wolff cites no case to the contrary.
In U.S. v. Tosti, 733 F.3d 814 (2013), the Ninth Circuit upheld two
police searches, neither of which is analogous to the government's alleged
seizure here. The first took place in 2005, when Tosti gave his computer to a
CompUSA store for servicing, and an employee found child pornography on
it. See U.S. v. Tosti, supra. Police detectives arrived on the scene and
viewed both thumbnails and full-sized versions of the same images the employee
had seen. See U.S. v. Tosti, supra. Based on what they saw, the
detectives seized Tosti's computer. See id. The court of appeals upheld the search
under the private search exception, without addressing the detectives' seizure
of the computer. See U.S. v. Tosti, supra. The second search took place
in 2009, after Tosti's wife turned over various electronic devices from their
shared residence to the police and signed a `Consent to Search’ form purporting
to allow the government to search the items she had turned over. See
U.S. v. Tosti, supra.
The Ninth Circuit opinion examined only
the search of the devices, not their seizure. See U.S. v. Tosti,
supra. Nothing in the opinion
addresses, much less finds unlawful, a challenged seizure.
The other cases Wolff cites are equally
inapposite. In U.S. v. Trejo, police officers physically went to
the defendant's home, seized his computers based on permission from his
parents, who lived in the same house, and searched the devices without a
warrant. See 471 Fed.Appx. 442 (U.S. Court of Appeals for the 6th Circuit 2012). . . . Trejo addressed the constitutionality of both
the search and seizure together, and does not touch on the issue at hand: the
constitutionality of a warrantless seizure accompanied by a search conducted
pursuant to a warrant. See U.S. v. Trejo, supra. The same is true
of the three-paragraph memorandum disposition in U.S. v. Thomas,
302 Fed.Appx. 558 (U.S. Court of Appeals for the 9th Circuit 2008),
and the unpublished district court opinion in U.S. v. Smith, 2010
WL 1949364, at *6-7 (U.S. District Court for the District of Arizona Apr. 19,
2010).
U.S. v. Wolff, supra.
The judge then took up Wolff’s second argument, “that the
Alameda County Superior Court erred in finding probable cause and issuing
search warrants to search his electronics based on the affidavits submitted by
the police.” U.S. v. Wolff, supra.
(To obtain a search warrant, a state or federal law
enforcement officer must submit an application for the warrant and affidavits
that establish facts which show there is probable cause for the issuance, and
execution, of the warrant. You can see a
search warrant and an affidavit here.)
The judge then went on to explain that
`[a] court evaluating the
constitutionality of a search conducted pursuant to a search warrant issued by
a magistrate reviews the magistrate's probable cause determination for clear
error.’ U.S. v. Nguyen, 673 F.3d 1259 (U.S. Court of Appeals for the 9th
Circuit 2012). The reviewing court's duty is to ensure the magistrate had a
`substantial basis for . . . conclud[ing]’ probable cause existed. Jones
v. U.S., 362 U.S. 257 (1960), overruled on other grounds by U.S. v.
Salvucci, 448 U.S. 83 (1980). `Probable cause exists when, considering the
totality of the circumstances, the affidavit shows that there is a fair
probability that contraband or evidence of a crime will be found in a
particular place.’ U.S. v. Fernandez, 388 F.3d 1199 (U.S. Court of
Appeals for the 9th Circuit 2004) 2004) (internal quotation marks
omitted).
U.S. v. Wolff, supra.
The District Court Judge also noted that Wolff
contends that the statement in both affidavits
that Ms. Wolff saw `hundreds’ of images of minors engaged in sexual acts or
exposing themselves in a sexual manner’ does not amount to probable cause that
she saw child pornography, because Ms. Wolff's notion of sexual acts or
exposure might conceivably include conduct that does not qualify as child
pornography. It is certainly true, as Wolff points out, that child pornography
has a specific legal definition. A photograph or video qualifies as child
pornography if its production involved the use of a minor engaged in `sexually
explicit conduct,’ which means actual or simulated sexual intercourse,
bestiality, masturbation, sadistic or masochistic abuse, or lascivious
exhibition of the genitals or pubic area. See 18 U.S. Code §2256(2)(A)(i)-(v), (8)(A).
U.S. v. Wolff, supra. He also explained that
Wolff's argument goes too far. An
affidavit does not fail to pass muster just because it does not exhaustively
detail how the photos and videos fit into one of the statutory categories. On
multiple occasions, the Ninth Circuit has found descriptions of the sort at
issue here adequate to uphold a magistrate's issuance of a warrant.
In U.S. v. Smith, 795 F.2d
841 (U.S. Court of Appeals for the 9th Circuit 1986), for example,
the court upheld a warrant based on an affidavit that was considerably more
conclusory than the ones here. In Smith, the court primarily relied on
an affidavit from an `experienced postal inspector’ stating that he had seen
photos from the defendant depicting `three juvenile girls engaged in “explicit
sexual conduct”’ along with a citation to 18 U.S. Code § 2255—in other
words, the language of the statute itself, with no further factual description
of what the photos depicted. See U.S. v. Smith, supra. Although the
court said that `more specific descriptions of the photographs would have been
desirable’ and expressed some unease with the fact `that the government did not
present and the magistrate did not see the photos in question before the warrant
issued,’ it upheld the warrant. U.S. v. Smith, supra.
The affidavit in Smith also
included a statement by a pediatrician that the girls depicted were under
eighteen, the defendant's admission that he took the pictures and `would just
have to take more’ if the photos were not returned to him, and statements by
two of the girls that they had posed for the photos and that the defendant kept
a `whip-like’ device at his residence, but contained no further factual
description of the photos sufficient to show that it fell into one of the
statutory categories. U.S. v. Smith, supra. Wolff's suggestion that Court disregard
the adequacy of the words `explicit sexual conduct’ in Smith to
find the words `sexual acts’ deficient in this case draws too nice a distinction.
U.S. v. Wolff, supra.
The judge then noted that
[e]ven more squarely on point is U.S.
v. Patrick, 365 Fed.Appx. 834 (U.S. Court of Appeals for the 9th Circuit 2010)
(unpublished). The Ninth Circuit upheld the sufficiency of an affidavit
recounting that a lay computer technician had informed the affiant that he had
seen `pornographic pictures of children involved in sexual acts’ on the
defendant's computer. U.S. v. Smith, supra. The court emphasized that
the technician was not anonymous and that there were no inconsistencies in the
technician's report or evidence of any motive to lie, all of which is true in
this case as well. See U.S. v. Smith, supra. Indeed, the facts here
are even more supportive of probable cause, since the source of the information
was Wolff's wife, not a stranger. See also U.S. v. Battershell, 457
F.3d 1048 (U.S. Court of Appeals for the 9th Circuit 2006) (fact
that a witness was `turning in her boyfriend . . .enhances the credibility of
her statement’).
U.S. v. Smith, supra.
But he also explained
that
Wolff says Patrick is a
non-published disposition that is not binding on this Court. That is true, but
the fact that the Court is not obligated to follow it does not preclude the
Court from finding it to be persuasive, which it does. At the very least, Patrick precludes
suppression based on the good-faith exception to the exclusionary rule. `Good
faith reliance exists if the agents' affidavit establishes “at least a colorable
argument for probable cause,” and the agents relied on the search warrant in an
objectively reasonable manner.’ U.S. v. Shi, 525 F.3d 709 (U.S. Court of
Appeals for the 9th Circuit 2008). Even if the Court were inclined to find that the affidavit, as written, did not amount to probable cause—and it is not so
inclined—the fact that Patrick upheld the sufficiency of an
affidavit with virtually identical language is at least evidence that any
issues associated with the affidavits are `sufficient to create disagreement
among thoughtful and competent judges as to the existence of probable cause,’
warranting application of the good-faith exception. See U.S. v. Leon, 468 U.S. 897 (1984).
U.S. v. Smith, supra.
The District Court
Judge went on to explain that,
[t]ellingly, Wolff cites no case where
an affidavit like the one at issue here was found inadequate. The in-circuit
cases he cites where an affidavit's description of photographs was found
inadequate to support probable cause involved situations where the plain
language of the affidavit unambiguously included subject matter that was not
covered by the statute, rather than an allegedly imprecise term that someone,
somewhere might conceivably understand to include lawful photographs. See
U.S. Battershell, 457 F.3d 1048 (U.S. Court of Appeals for the 9th
Circuit 2006) (description of a photograph as `a young female (8-10 YOA)
naked in a bathtub’ did not indicate whether there was `lascivious exhibition
of the genitals or pubic area’ as required by the statute); U.S. v. Busby,
2011 WL 6303367 (U.S. District Court for the Northern District of California 2011) (suppressing
evidence where affidavit described models as `female, mid to late teens’
because that description `necessarily includes individuals who are 18 and 19
years-old’). A description does not fail to provide probable cause just because
a defendant can hypothesize an innocent reading of it. To hold otherwise would
effectively impose a rote requirement on affiants and witnesses to parrot the
language of the statute. It is difficult to imagine a rule more out of step
with the Supreme Court's repeated descriptions of probable cause as `a fluid
concept’ that admits of a `practical, nontechnical conception’ rather than
`[r]igid legal rules.’ Illinois v. Gates, 462 U.S. 213 (1983); see
also Maryland v. Pringle, 540 U.S. 366 (2003).
U.S. v. Smith, supra.
The judge then
noted that Wolff
also
stresses the fact that the affidavit in this case was based on the words and
descriptions of layperson, his wife. Courts have certainly held that the fact
that an affiant has some experience with child pornography can give added heft
to an identification. See, e.g., U.S. v. Krupa, 658 F.3d 1174 (U.S.
Court of Appeals for the 9th Circuit 2011). And non-expert declarations,
unaccompanied by copies of the illegal photographs, have been found to be
adequate in many cases. See U.S. v. Hill, 459 F.3d 966 (U.S. Court
of Appeals for the 9th Circuit 2006) (relying on an affidavit from a
computer technician); Patrick, 365 Fed.Appx. at 836-37(same).
Presuming
that an affidavit based on a lay description is inadequate, as defendant seems
to urge, is impossible to square with U.S. v. Battershell's holding
that `[a]ny rational adult person can recognize sexually explicit conduct
engaged in by children under the age of 16 when he sees it’ and that `we have
accepted, for purposes of an affidavit in support of a search warrant, the
conclusory age estimates made by civilians and other untrained lay witnesses
without demanding a detailed explanation of how the witnesses reached that
conclusion.’ U.S. v. Battershell, supra (quoting U.S. v. Hurt,
808 F.2d 707 (U.S. Court of Appeals for the 9th Circuit 1987)).
It
would also cripple investigatory efforts in cases like this one, where the
images were discovered by a private individual on a hard drive. Law enforcement
would be forced to try to repeat exactly the private search, a course of action
fraught with its own potential constitutional pitfalls, as evidenced by the
fact that there is presently a circuit split about how far reconstructed
searches of hard drives and computers can go. Compare U.S. v. Lichtenberger,
786 F.3d 478 (U.S. Court of Appeals for the 6th Circuit 2015)(holding that
police officer exceeded scope of private search where there was no `virtual
certainty’ that the files he viewed were the same ones the private individual
previously viewed on the same computer) with Rann v. Atchison, 689
F.3d 832 (U.S. Court of Appeals for the 7th Circuit 2012) (permitting police to
view images on digital media device where private individual had previously
viewed other images on same device) and U.S. v. Runyan, 275 F.3d
449, 464-65 (U.S. Court of Appeals for the 5th Circuit 2001) (holding that the police do not exceed private
search where they examine more files on a drive than the private searcher did).
Consequently,
the Court will not disturb the state court judge's issuance of the two warrants
in this case. Additionally, the Court finds that excluding the fruits of the
searches conducted pursuant to the warrants would not be appropriate, since the
good faith exception would apply even if the affidavits did not make out a
showing of probable cause.
U.S. v. Smith, supra.
The judge therefore
denied Smith’s motion to suppress. U.S.
v. Smith, supra.
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