U.S. v. Hill

Decision Date11 August 2006
Docket NumberNo. 05-50219.,05-50219.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Justin Barrett HILL, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Carlton F. Gunn, Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellant.

Michael R. Wilner (argued) and Thomas P. O'Brien, Assistant United States Attorneys, and Los Angeles, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California Alex Kozinski, Circuit Judge, Presiding. D.C. No. CR-02-01289-AK-01.

Before: SCHROEDER, Chief Judge, GOODWIN and FISHER, Circuit Judges.

FISHER, Circuit Judge:

Justin Hill conditionally pled guilty to possession of child pornography subject to his challenge to the admission of evidence that he contends was seized in violation of the Fourth Amendment. His appeal involves the validity of a warrant to search his computer and storage media for evidence that he possessed pornographic (i.e., lascivious) images of children. We must also decide whether it was reasonable under the Fourth Amendment for the police to take all of Hill's computer storage media from his home (they did not find his computer) so they could conduct their search offsite in a police laboratory, rather than carrying out the search onsite and taking only whatever evidence of child pornography they might find. As we recently discussed in United States v. Adjani, 452 F.3d 1140 (9th Cir.2006), because computers typically contain so much information beyond the scope of the criminal investigation, computer-related searches can raise difficult Fourth Amendment issues different from those encountered when searching paper files. Judge Kozinski, sitting as the district court in this case, thoughtfully addressed some of these issues in a published opinion upholding the validity of the search warrant and its execution. United States v. Hill, 322 F.Supp.2d 1081, 1092 (C.D.Cal.2004). We affirm the district court's ruling in most but not all respects for the reasons Judge Kozinski stated; to the extent we do agree with that reasoning, we adopt it verbatim in this opinion. In sum, we affirm the district court's denial of the defendant's motion to suppress evidence.

I. Background

As the district court explained:

A computer technician was repairing defendant's computer when she discovered what she believed to be child pornography. She called Long Beach police, and the detective who took the call obtained a search warrant from a judge of the Long Beach Superior Court. The warrant authorized a search of the computer repair store and seizure of the computer, any work orders relating to the computer, "all storage media belonging to either the computer or the individual identifying himself as defendant at the location," and "all sexually explicit images depicting minors contained in the storage media." By the time the detective arrived at the store to execute the warrant, defendant had picked up his computer. . . . [T]he detective [submitted an affidavit, which included the computer technician's sworn statement describing the images. On the basis of this affidavit, the officer obtained] a second warrant, this one directed at defendant's home, authorizing seizure of the same items.

The affidavit on which the warrants were based described "two images of child pornography":

Image 1

Is a color picture of a female, white, approximately 15 years old, with long dark brown hair. The female is in a room standing between a couch and a coffee table. There is a framed picture on the wall above the couch. She is wearing only a long blouse and pair of socks. The blouse is open and she is exposing her breast and pubic area to the camera, which she is facing while leaning to her left.

Image 2

Is a color picture of a [sic in affidavit] two females, white, approximately 7-9 years of age, both with dirty blond hair. These females are standing on a beach during the daytime. The shorter of the two females is standing to the right of the picture while the other female is standing behind her. Both females are facing the camera askew and wearing only a robe, which is open exposing the undeveloped breast and pubic area of both girls. They both are turning their faces away from the camera preventing the viewer from seeing their faces.

Officers executed the search warrant but did not find the computer in defendant's apartment.1 In what appeared to be defendant's bedroom, they found and seized computer storage media[, specifically: 22 5.25-inch floppy disks, two CD-ROMs, 124 3.5-inch floppy disks and six zip disks.] [Two of the zip disks] were eventually determined to contain images of child pornography; [officers] also seized other evidence consistent with the warrant. Defendant was subsequently charged with one count of possession of child pornography,2 in violation of 18 U.S.C. § 2252A(a)(5)(B).3

Hill, 322 F.Supp.2d at 1083-84 (alterations in original).

In the district court, the defendant moved to suppress the evidence recovered from the two zip disks on the grounds that, (1) contrary to the magistrate's finding, the warrant affidavit did not establish probable cause to believe the defendant was guilty of criminal activity; and (2) the warrant was over-broad in allowing seizure of all discovered computer storage media with no regard to whether such media contained child pornography, and in placing no limitation on the police officers' search of the seized disks. Id. at 1084.4 The district court denied the motion to suppress and the defendant conditionally pled guilty to the charge, reserving the right to appeal the district court's evidentiary ruling.5 This timely appeal followed.

II. Standard of Review

We review de novo the district court's denial of a motion to suppress evidence. United States v. Meek, 366 F.3d 705, 711 (9th Cir.2004). We review for clear error a magistrate's finding of probable cause to issue a search warrant and give "great deference" to such a finding. United States v. Hay, 231 F.3d 630, 634 n. 4 (9th Cir.2000).

III. Discussion
A. Probable Cause

The defendant argues first that the affidavit submitted in support of the search warrant was insufficient to establish probable cause to believe the defendant was guilty of criminal activity. We do not agree.

"[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. The Constitution is clear; a magistrate may authorize a search of a location only if officers establish probable cause to believe evidence of a crime may be found there. Probable cause means only a "fair probability," not certainty, and requires consideration of the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Accordingly, we must determine whether the officer's affidavit, which described the two images from the defendant's computer as showing three different, minor girls with their breasts and pubic areas exposed, established a fair probability that there was child pornography or evidence thereof to be found in computer hardware or software at the defendant's home. We agree with the district court that the affidavit did establish probable cause, but reach that conclusion somewhat differently.

Child pornography is a particularly repulsive crime, but not all images of nude children are pornographic. For example, "a family snapshot of a nude child bathing presumably would not" be criminal. Hill, 322 F.Supp.2d at 1086. Moreover, the law recognizes that some images of nudity may merit First Amendment protection because they serve artistic or other purposes, and possessing those images cannot be criminal. See Osborne v. Ohio, 495 U.S. 103, 112-13, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) (upholding Ohio's child pornography law because it had been interpreted to criminalize possession of images depicting not just nudity, but "nudity constitut[ing] a lewd exhibition"); New York v. Ferber, 458 U.S. 747, 765 n. 18, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) ("[N]udity, without more[,] is protected expression."). Images depicting "minor[s] engag[ed] in sexually explicit conduct" are, however, prohibited. 18 U.S.C. § 2256(8)(A). "[S]exually explicit conduct," in turn, is defined to include "graphic or simulated lascivious exhibition of the genitals or pubic area of any person." 18 U.S.C. § 2256(2)(A)(v) (emphasis added). Thus the more precise question we must answer is whether the officer's affidavit established probable cause that the images on the defendant's computer were — as described — lascivious.6 See Hill, 322 F.Supp.2d at 1084. In answering that question, it is important to remember that in issuing the search warrant, the magistrate had to make a practical, commonsense decision, based on the totality of the circumstances presented to him in the affidavit, that there was a "fair probability" that the images were lascivious. See United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir.2006) (en banc).7

Various courts have attempted to articulate a test for determining lasciviousness. Many have relied upon a six-factor test originated in United States v. Dost:

(1) whether the focal point of the visual depiction is on the child's genitalia or pubic area;

(2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

(3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

(4) whether the child is fully or partially clothed, or nude;

(5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

(6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

636 F.Supp. 828, 832 (S.D.Cal.1986), ...

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