P. v. Stone

Filed 2/17/06 P. v. Stone C4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, George W. Clarke, Judge. Affirmed.

After unsuccessfully moving to suppress evidence (Pen. Code, § 1538.5),^[1] Larry Brandon Stone pleaded guilty to one count of oral copulation with a minor (§ 288a, subdivision (b)(2)) and one count of employing a minor to perform prohibited sexual acts. (§ 311.4, subd. (c).) The court suspended imposition of sentence and placed Stone on formal probation with certain terms and conditions. Stone contends agents lacked probable cause to search his residence and seize his computer; that the supporting affidavit provided to the issuing magistrate judge sufficed only to infer his possession of child pornography and consequently did not meet the standard for probable cause justifying the search. He further contends the evidence gathered as a result of the search cannot be admitted under the "good faith" exception to the exclusionary rule set forth in United States v. Leon (1984) 468 U.S. 897 (Leon). We conclude Stone's paid subscription to two different websites containing child pornography, combined with the affiant agent's training, knowledge and expertise, supports a finding of probable cause to conclude Stone possessed such material at his residence (§ 311.11, subd. (a)). Alternatively, we uphold the trial court's admission of the evidence based on Leon. For these reasons, we conclude the court properly denied Stone's suppression motion, and thus affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2002, Richard Hakala, then a special agent with the United States Customs Service,^[2] received information from a federal agent in Los Angeles about a child pornography web site operated by individuals located in New Zealand. Specifically, Hakala learned that an individual named Glenn William Roberts had been investigated by the New Zealand Department of Internal Affairs (NZDIA), a New Zealand law enforcement agency, for hosting two web sites – "boyzgal.com" and "boystars.net" (the latter originally "boystars.co.za") – containing sexually explicit images of boys between the age of six and fourteen. According to an investigation report, NZDIA claimed that between the two web sites there were approximately 2000 images of boys between the ages of three and fourteen engaging in various forms of sexual activity and posing to expose their genitals. Roberts, who claimed he had been hosting the web sites for about a year, stated that each site had an area for persons to become a member by paying a monthly fee of $29.95. Agents searching Roberts's residence found over 97,000 images of boys ranging in age from three to fourteen and obtained financial records indicating that Roberts was receiving monies from EAN/Lancelot Security LLC (EAN/Lancelot), a credit card processing company designed facilitate membership to adult entertainment sites on the Internet.

EAN/Lancelot provided information to the Los Angeles investigators that Stone, a San Diego County resident, was a paying customer of the member's only area on the "boystars.co.za" web site. His membership began on November 2, 2000, and was terminated on December 26, 2000. EAN/Lancelot also provided the credit card information, date of birth, address and Internet Protocol (IP) address that Stone entered on signing up for the membership.

In October 2002, Hakala learned from the Internet Crimes Against Children (ICAC) task force in Dallas, Texas that Stone, using the screen name larrystone2@home.com, had purchased access on April 23, 2001, to a child pornography web site entitled "lolitasworld.org" using an Internet business known as Site Key. In December 2002 San Diego agents obtained further information showing Stone, residing at 3620 Columbia Street in San Diego, California, had purchased access to "boystars.co.za."^[3]

In March 2003, Agent Hakala verified Stone's current address as being 987 Pepper Villa Court in El Cajon, California. The agent again verified Stone's address via his registered vehicles, as well as through Cox Communications using an administrative summons requesting the location of the individual using Stone's screen name.

In July 2003, Agent Hakala submitted an affidavit and request for a federal search warrant of Stone's residence, including any computers, computer equipment and associated peripheral devices, and cameras. In his affidavit, the agent set out the foregoing facts concerning the separate investigations as well as his conclusion based on his training, experience and knowledge that persons who purchase access to a web site containing child pornography do so with the intent of downloading the image files either to a floppy disk or CD, or with the intent to print the images for viewing at a later date, and generally keep the images for years for self gratification or acceptance by others who share their sexual interest in children. Agent Hakala further averred that individuals engaging in child pornography maintain a collection of images and other materials used to further their interests over time, and that he had reason to believe the information to be obtained from Cox Communications^[4] would provide crucial evidence in the investigation of Stone's case.

A United States magistrate judge issued the warrant and on July 9, 2003, agents searched Stone's Pepper Villa Court residence, finding a digital camera containing graphic images of a nude male youth engaging in sexual acts, including with Stone. Agents also seized Stone's computer and found e-mails indicating Stone had been sexually active with an underage boy and had provided the boy pornography.

Following the filing of charges against him, Stone moved to quash the search warrant and suppress the evidence found at his residence. The trial court denied the motion on two independent grounds: (1) the agents acted under a valid warrant supported by probable cause, and (2) the agents acted in objective good faith and within the scope of their duties in obtaining the warrant. Stone appeals.

DISCUSSION

I. Standard of Review

"The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing." (People v. Kraft (2000) 23 Cal.4th 978, 1040 (Kraft), quoting Illinois v. Gates (1983) 462 U.S. 213, 238-239 & People v. Camarella (1991) 54 Cal.3d 592, 600-601 (Camarella).)

" 'The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.' [Citation] . . . 'In determining the sufficiency of an affidavit for the issuance of a search warrant the test of probable cause is approximately the same as that applicable to an arrest without a warrant, . . . [citations], namely, whether the facts contained in the affidavit are such as would lead a man of ordinary caution or prudence to believe, and conscientiously to entertain, a strong suspicion of the guilt of the accused.' [Citation.] The magistrate's determination of probable cause is entitled to deferential review." (Kraft, at pp. 1040-1041.)

"The burden is on [the defendant] to establish invalidity of [a] search warrant[ ]." (Fenwick & West v. Superior Court (1996) 43 Cal.App.4th 1272, 1278.) Doubtful or marginal cases should be resolved in favor of upholding the warrant. (United States v. Ventresca (1965) 380 U.S.102, 109; People v. Superior Court (Corona) (1981) 30 Cal.3d 193, 207; Fenwick, 43 Cal.App.4th at p. 1278.)

II. Probable Cause Supported the Warrant

Relying primarily on United States v. Gourde (2004) 382 F.3d 1003 (Gourde), Stone argues the warrant was insufficient because, as in Gourde, it was only possible to merely infer from Agent Hakala's supporting affidavit that Stone possessed child pornography and thus the affidavit did not establish probable cause to believe Stone actually possessed such pornography.^[5]

Stone acknowledges that the Ninth Circuit Court of Appeals has ordered a rehearing en banc of Gourde, thereby vacating the original decision. (United States v. Gourde (9th Cir. 2005) 416 F.3d 961; see People v. Roldan (2005) 35 Cal.4th 646, 718, fn. 31.) Even assuming Gourde was still citable authority, we note decisions of lower federal courts are " 'persuasive but not controlling.' " (People v. Mantanez (2002) 98 Cal.App.4th 354, 358, quoting People v. Camacho (2000) 23 Cal.4th 824, 837.)

In Gourde, the attesting officer's affidavit revealed that the defendant had subscribed for two months to a "mixed" pornography website, i.e., containing both legal adult pornography and illegal child pornography. (Gourde, supra, 382 F.3d at pp. 1008, 1013.) The officer admitted he had no evidence the defendant actually downloaded, received, transmitted or otherwise possessed any child pornography, even though the government had the capability of determining whether he actually used the web site to do this. (Id. at p. 1008.) The Ninth Circuit panel placed great weight on these facts, distinguishing the circumstances from those where evidence of a subscription to an exclusively child pornography website was coupled with other corroborating information such as automatic e-mail transmissions or suggestive screen names indicating an interest in children. (Id. at pp. 1012-1013.) The court reasoned the government's affidavit permitted only a "lengthy and improbable" chain of inferences, and thereby failed to establish a fair probability that child pornography would actually be found on the defendant's computer or related equipment. (Id. at pp. 1011, 1013.) It suggested additional corroborating evidence – actual downloading, automatic e-mail transmissions, or a suggestive screen name indicating sexual interest in children – was needed: "Requiring the government to buttress its affidavit with personalized information linking a website member to actual child pornography strikes a reasonable balance between safeguarding the important Fourth Amendment principles embodied in the probable cause requirement and ensuring that the government can effectively prosecute possessors and distributors of child pornography." (Id. at pp. 1012-1013.)

We decline to adopt a rule that probable cause in these circumstances requires corroborating evidence of actual downloading or possession of child pornography or

" 'extreme interest in young children.' " (Gourde, supra, 382 F.3d at p. 1012.) The inferences to be drawn from Agent Hakala's affidavit are not so attenuated that they could not reasonably have been accepted by the issuing magistrate as establishing a fair probability that Stone possessed child pornography at his residence. There is no dispute that the web sites to which Stone obtained paid subscriptions contained thousands of images of child pornography, and Stone has not shown these are "mixed" web sites containing legal images in addition to illegal child pornography. In fact, Agent Hakala testified at the suppression hearing that he understood both the "boystars.co.za" and "Lolitasworld.org" sites were not mixed sites; that they contained strictly child pornography.

Further, we believe it reasonable to infer that during the period of Stone's subscription, he accessed the web sites at some point on a home computer. Agent Hakala averred, based on his training, experience and knowledge of individuals who subscribe to child pornography web sites and engage in child pornography, that Stone was likely to maintain a collection of images of child pornography. Agent Hakala's affidavit sufficiently demonstrated that he believed under the circumstances child pornography could be found at Stone's residence, and his training and experience is relevant to the probable cause determination. (Accord People v. Ulloa (2002) 101 Cal.App.4th 1000, 1007 [based on affidavit showing defendant had been communicating with a minor by computer, court drew a reasonable inference that defendant's computer would contain relevant incriminating information and that it would be located in his home, demonstrating probable cause for search of residence]; People v. Cleland (1990) 225 Cal.App.3d 388, 390-393 [possession of drugs on defendant's person plus expert opinion that contraband likely to be found at residence sufficient for probable cause; United States v. Sayakhom (9th Cir. 1999) 186 F.3d 928, 934 [affidavit based on postal inspector's experience and belief that operators of businesses that involve paperwork typically leave paperwork in their cars and residence provided sufficient probable cause to believe evidence of mail fraud would be found in defendant's residence and car]; United States v. Terry (9th Cir. 1990) 911 F.2d 272, 275 [agent's first hand knowledge of defendant's drug possession and experience with other drug dealers provided magistrate reasonable ground to believe that contraband might be found in defendant's residence].)

In our view, the evidence, combined with the agent's training, experience and knowledge, permits a common sense conclusion: that a person who voluntarily subscribes to such child pornography web sites and remains a member for approximately two months without canceling his subscription would download such pornography from the web site or otherwise have it in his possession or control within the meaning of section 311.11. "In child pornography cases, courts have repeatedly recognized that collectors of child pornography tend to retain their materials, and . . . it is probable that [Stone], having visited several websites known to have child pornography accessible on them, would have images, files, and/or electronic data evincing his downloading, possessing, viewing, accessing or distributing child pornography." (United States v. Wagers (2004) 339 F.Supp.2d 934, 941; accord U.S. v. Coreas (E.D.N.Y. 2003) 259 F.Supp.2d 218, 221 [affidavit describing background of an internet group known as "Candyman," the purpose of which was sharing messages, photographs and videos relating to child pornography, and describing the proclivity of members to use such groups to collect, trade and retain such images, combined with evidence that defendant joined the group, was sufficient to establish probable cause to believe that search of defendant's computer would reveal evidence of criminal activity]; U.S. v. Froman (5th Cir. 2004) 355 F.3d 882, 888-891 [affidavit describing purpose and working of Candyman internet group and showing defendant, who used screen names reflecting interest in child pornography, joined group for approximately one month until it was shut down, was sufficient to establish probable cause for search of defendant's apartment]; U.S. v. Bailey (D. Neb., 2003) 272 F.Supp.2d 822, 824-825 ["knowingly becoming a computer subscriber to a specialized internet site that frequently, obviously, unquestionably and sometimes automatically distributes electronic images of child pornography to other computer subscribers alone establishes probable cause for a search of the target subscriber's computer even though it is conceivable that the person subscribing to the child pornography site did so for innocent purposes and even though there is no direct evidence that the target subscriber actually received child pornography on his or her computer"].) We recognize that in U.S. v. Froman, relied upon by the People, the supporting affidavit also showed the defendant used suggestive screen names indicating an interest in child pornography (U.S. v. Froman, 355 F.3d at p. 890); we would find probable cause under the circumstances presented there absent evidence of the defendant's use of such names. Giving the magistrate judge's decision great deference as we must (Kraft, supra, 23 Cal.4th at p. 1041; Illinois v. Gates, supra, 462 U.S. at p. 236), we conclude based on Agent Hakala's affidavit there was a fair probability that evidence or fruits of criminal wrongdoing would be found in Stone's residence. Because the application for a search warrant articulated sufficient probable cause to justify the issuance of a search warrant for Stone's residence, the court properly denied his suppression motion.

III. Leon Exception

Even if we were to conclude the warrant was lacking in probable cause, we agree with the People that under Leon, supra, 468 U.S. 897, the affidavit had sufficient indicia of probable cause for Agent Hakala to reasonably rely upon the warrant's validity.

In Leon, supra, 468 U.S. 897, the United States Supreme Court held that evidence obtained under a facially valid search warrant later determined to be invalid is admissible if the officers executed the search in objectively reasonable reliance upon the validity of a search warrant issued by a neutral magistrate. (Id. at pp. 922-923; People v. Bradford (1997) 15 Cal.4th 1229, 1291-1292; Camarella, supra, 54 Cal.3d at pp. 602-603.) The court in Leon noted several exceptions to the admissibility of evidence seized under these circumstances, including situations in which the warrant is based on an affidavit " 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable' " or the warrant "was so facially deficient that the executing officer could not reasonably presume it to be valid." (Leon, supra, 468 U.S. at p. 923; Camarella, supra, 54 Cal.3d at p. 603.) Under Leon, the issue is whether a reasonably well-trained officer in the officer's position would have known that his affidavit failed to establish probable cause and that he should have refrained from applying for the warrant. (Camarella, supra, 54 Cal.3d at pp. 604, 606.) The objective reasonableness of an officer's decision to apply for a warrant must be judged based on the affidavit and the other evidence known to the officer at the time of the warrant application and on the evidence presented to the magistrate, without consideration of the fact that the magistrate accepted the affidavit. (Camarella, supra, at p. 605; People v. Hernandez (1994) 30 Cal.App.4th 919, 925.) The test in Leon charges the police officer with knowledge of well-established legal principles, as well as an ability to apply the facts of a particular situation to these principles. (Leon, supra, 468 U.S. at p. 920, fn. 20; see also U.S. v. Koerth (7th Cir.2002) 312 F.3d 862, 869-870.) One means of showing objectively reasonable reliance is to measure the probable cause stated in the affidavit against other affidavits held to state probable cause in prior judicial decisions. In making a comparison of affidavits, the proper inquiries are whether there is evidence sufficient to create disagreement among thoughtful and competent judges as to the existence of probable cause (Leon, supra, 486 U.S. at p. 926) and whether a well-trained police officer reasonably could have believed that his affidavit presented a close or debatable question on the issue of probable cause. (Camarella, supra, 54 Cal.3d at

p. 606.) The People have the burden of establishing " 'objectively reasonable' reliance." (Camarella, supra, 54 Cal.3d at p. 596.)

The People here met their burden. Agent Hakala's affidavit set forth information of Stone's activities in accessing and purchasing memberships in child pornography web sites obtained from two different investigations in New Zealand and Texas, investigations that cannot reasonably be described as " 'bare bones. . . .' " (Camarella, supra, 54 Cal.3d at p. 596.) Agent Hakala learned Stone had purchased memberships in two child pornography web sites that contained thousands of images of child pornography, and knew, based on his training, experience and knowledge of individuals who engage in child pornography in this manner, that Stone was likely to maintain a collection of images of child pornography. We cannot say an objective and reasonable law enforcement agent would have known the affidavit as it existed at the time it was to be presented to the magistrate was legally insufficient to establish probable cause. (Camarella, supra, at p. 606.)

Stone's only argument against application of Leon's good faith exception is based on Gourde, supra, 382 F.3d 1003. He argues the agents could not have acted in good faith because "[t]here is no information provided that [Stone] actually accessed the prohibited part of the website or that he downloaded any of the illegal images at the site." As the People point out, however, Agent Hakala submitted his affidavit to the magistrate judge in July 2003, over a year before the Ninth Circuit filed its decision in Gourde. Before Gourde, it is without question in our view that a well-trained police officer or agent reasonably could have believed that his affidavit presented a "close or debatable question" on the issue of probable cause. Under the circumstances, Agent Hakala's reliance on the warrant was objectively reasonable under Leon, supra, 468 U.S. 897, and thus the court did not err in denying Stone's motion to suppress.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

I CONCUR:

BENKE, Acting P. J.

I CONCUR IN THE RESULT:

IRION, J.

Publication courtesy of Vista restraining order attorney (http://www.mcmillanlaw.us/) And Vista Lawyers Directory ( http://www.fearnotlaw.com/ )

^[1] All statutory references are to the Penal Code unless otherwise specified.

^[2] As a result of the creation of the Department of Homeland Security, by the time of the suppression hearing, Agent Hakala was a special agent with the United States Bureau of Immigration and Customs Enforcement.

^[3] At oral argument, the Attorney General represented that the record showed Stone had renewed his subscription at least once. We are unable to find evidence in the supporting affidavit or record other than Stone had "activated his access to the website

'boystars.co.za' on November 2, 2000[,] and appeared to deactivate the subscription on December 26, 2000" and approximately four months later purchased access to the "lolitasworld.org" web site. Agent Hakala averred that the cost of accessing the member's only portion of Roberts's websites was $29.95 per month. However, Agent Hakala's affidavit does not explain (nor did he testify at the suppression hearing) whether a member of these sites must separately pay for each month of membership, or whether several months of membership may be purchased at one time. Thus, we are unable to conclude Stone renewed his membership at the end of November 2000 to pay for December 2000.

^[4] Presumably the reference to Cox Communications is the result of a combination of an affidavit seeking to obtain a warrant to search Stone's account(s) at Cox Communications with the affidavit to search Stone's residence.

^[5] Section 311.11 makes it a public offense to knowingly possess or control media depicting child pornography. (See In re Alva (2004) 33 Cal.4th 254, 262.) It provides: "Every person who knowingly possesses or controls any matter, representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip, the production of which involves the use of a person under the age of 18 years, knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct, as defined in subdivision (d) of Section 311.4, is guilty of a public offense and shall be punished by imprisonment in the county jail for up to one year, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both the fine and imprisonment."