U.S. v. Battershell

• Decision Date: 10 August 2006
• Docket Number: No. 05-30397.,05-30397.
• Citation: 457 F.3d 1048
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joel BATTERSHELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

457 F.3d 1048

UNITED STATES of America, Plaintiff-Appellee, v. Joel BATTERSHELL, Defendant-Appellant.

No. 05-30397.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 2006.

Filed August 10, 2006.

Colin Fieman, Assistant Federal Public Defender, Tacoma, WA, for the defendant-appellant.

John McKay, United States Attorney, Seattle, WA, for the plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington; Franklin D. Burgess, District Judge, Presiding. D.C. No. CR-04-05525-FDB.

Before ROBERT R. BEEZER, RICHARD C. TALLMAN, and JAY S. BYBEE, Circuit Judges.

OPINION

TALLMAN, Circuit Judge.

We are asked to determine whether a search warrant application describing allegedly illegal photos contained on a computer was sufficient to establish probable cause to search the computer when the application did not include copies of the offending images.

Vancouver, Washington, police seized Joel Battershell's computer after responding to a call from Battershell's girlfriend and her sister that they had found child pornography on it. Four months later, a police forensic detective trained in retrieving computer evidence applied for a search warrant to examine its contents. The warrant application signed by the forensic investigator did not include copies of the digital photographs taken by patrol officers of two pictures the officers had seen on the computer when they took the complaint. The police report appended to the warrant application, however, recited the women's original complaint that the computer contained photos of "kids having sex" as well as the officers' description of the two photos they had viewed.

A Clark County, Washington, district court judge found the warrant application sufficient to establish probable cause that Battershell's computer contained images of minors engaged in sexually explicit activity. Following the search, Battershell was indicted for possession of more than 2,500 prohibited images located on his computer and he moved to suppress the evidence seized pursuant to the warrant on grounds that the warrant was invalid. The United States district judge denied his motion and this appeal followed a conditional plea of guilty. We affirm.

I

The following facts are drawn from the evidence presented at the suppression hearing before the federal district court and on the court's factual findings in support of its ruling.

On April 6, 2004, Vancouver Police Officer Steven Lobdell responded to a call from Grace Smith, Battershell's girlfriend, reporting that she and her sister had found pictures of minors engaged in sexual activity on Battershell's computer. Smith had been living at Battershell's home for three months and was given permission to use the computer so that she and her sister could look for jobs online. Smith and her sister told Officer Lobdell that while using Battershell's computer they had opened a file entitled "Potter," in which they saw pictures of "kids having sex." Smith and her sister also told the officer that Battershell was the only Windows user.

Smith and her sister opened the "Potter" folder and gave Officer Lobdell permission to view several small thumbnail photos. It was clear that some of the photos showed undressed people, but Officer Lobdell enlarged two pictures to see more details. According to Officer Lobdell's report, which was included in the warrant application, the first picture showed "a young female (8-10 YOA) naked in a bathtub. The second picture showed another young female having sexual intercourse with an adult male. This confirmed that the pictures were illegal to obtain."

Officer Lobdell retrieved a digital camera from his police car and "took photos of [the two pictures he had enlarged] to document should there be a computer problem." At this time Officer Jennings arrived at the home and "also observed the photos to confirm they were on the computer." The officers then turned the computer off and seized it.

Officer Lobdell called Vancouver police computer forensics investigator Maggi Holbrook for advice on how to handle the computer. She told him to place it into evidence and said that she would later obtain a warrant to search the computer for pictures. On August 28, 2004, after obtaining the search warrant from a Washington state court judge, Holbrook conducted a forensic examination of Battershell's computer and uncovered 2,731 images depicting the sexual abuse and exploitation of children. These images were found on the hard drive in the "Potter" folder and on a compact disk taken from the computer.

After Battershell was indicted by a federal grand jury, and following an evidentiary hearing, the district court denied Battershell's motion to suppress the evidence, ruling that the warrant application established probable case. Battershell and the government then entered into a conditional plea agreement pursuant to Rule 11(c) of the Federal Rules of Criminal Procedure for violation of possessing visual depictions of minors engaged in sexually explicit conduct. 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2), and 2256 (2000 & Supp.2005). The district court sentenced Battershell to thirty-six months of imprisonment. This timely appeal followed.

II

A

A district court's denial of a motion to suppress evidence is reviewed de novo. United States v. Bynum, 362 F.3d 574, 578 (9th Cir.2004). The factual findings underlying the denial of the motion are reviewed for clear error. Id.

The governing legal principles are clear and easy to apply in this case. We want to encourage police officers to obtain search warrants and we rely on the judgment of neutral and detached magistrates to determine whether probable cause exists to support their issuance. "A magistrate's determination of probable cause should be paid great deference by reviewing courts," Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (internal quotation marks omitted), and can only be reversed if it is clearly erroneous. United States v. Moreno, 758 F.2d 425, 427 (9th Cir.1985); see also United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) ("Reasonable minds frequently may differ on the question whether a particular affidavit establishes probable cause, and we have thus concluded that the preference for warrants is most appropriately effectuated by according great deference to a magistrate's determination." (internal quotation marks omitted)).

In Gates, the Supreme Court abandoned the old reliability and corroboration tests of Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and "reaffirm[ed] the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations." 462 U.S. at 238, 103 S.Ct. 2317. The Court held that "[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238, 103 S.Ct. 2317 (emphasis added); see also Walden v. Carmack, 156 F.3d 861, 870 (8th Cir.1998) ("[Search warrant a]pplications and affidavits should be read with common sense and not in a grudging, hyper technical fashion."). Our role as "a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed." Gates, 462 U.S. at 238-39, 103 S.Ct. 2317 (internal quotation marks and alteration omitted). Indeed, we recently clarified en banc that "[w]e are not in a position to flyspeck the affidavit through de novo review." United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir.2006) (en banc).

To withstand review, we must determine that the warrant application made a sufficient showing that there was probable cause for the magistrate to believe that the pictures likely to be found on Battershell's computer depicted: (1) sexually explicit conduct; and (2) a minor engaged in that conduct. See 18 U.S.C. §§ 2252(A) and 2256. We are satisfied that it did.¹

B

Federal law² defines five categories of "sexually explicit conduct" with respect to child pornography. See 18 U.S.C. § 2256(2)(A). The first four categories deal with specific conduct that is easy to identify and describe: "(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; [and] (iv) sadistic or masochistic abuse . . . ." Id.; see also United States v. Jasorka, 153 F.3d 58, 60 (2d Cir.1998) (quoting the district court's declaration that the conduct involved in the first four categories is "clearly defined and easily recognized"). The second photo falls within the first category.

The fifth category, exemplified by the bathtub photo, is the "lascivious exhibition of the genitals or pubic area of any person." 18 U.S.C. § 2256(2)(A)(v). The fifth category, which turns on the meaning of "lascivious," is far more subjective and open to interpretation than the first four. See United States v. Brunette, 256 F.3d 14, 18 (1st Cir.2001) ("[T]he identification of images that are lascivious will almost always involve, to some degree, a subjective and conclusory determination on the part of the viewer." (internal quotation marks omitted)); United States v. Getzel, 196 F.Supp.2d 88, 91 (D.N.H.2002) (ruling that the identification of images as lascivious is "subjective").

Officer Lobdell described the first photograph as "a young female (8-10 YOA) naked in a bathtub." The government correctly concedes that the description of the first photograph is insufficient to establish probable cause because the first photograph falls within the fifth category of child pornography: "lascivious exhibition of the genitals or pubic...