U.S. v. Kelley

• Decision Date: 01 March 2007
• Docket Number: No. 05-10547.,05-10547.
• Citation: 482 F.3d 1047
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Kenneth KELLEY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

482 F.3d 1047

UNITED STATES of America, Plaintiff-Appellant, v. Kenneth KELLEY, Defendant-Appellee.

No. 05-10547.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 20, 2006.

Filed March 1, 2007.

Amended April 9, 2007.

Amber S. Rosen, Assistant United States Attorney, San Jose, CA, for the plaintiff-appellant.

Elizabeth M. Falk, Assistant Federal Public Defender, San Francisco, CA, for the defendant-appellee.

Appeal from the United States District Court for the Northern District of California; Phyllis J. Hamilton, District Judge, Presiding. D.C. No. CR-05-00125-PJH.

Before SANDRA DAY O'CONNOR, Associate Justice (Ret.),^* PAMELA ANN RYMER, and SIDNEY R. THOMAS, Circuit Judges.

ORDER AMENDING OPINION AND GRANTING APPELLANT'S MOTION FOR CLARIFICATION AND AMENDED OPINION

RYMER, Circuit Judge.

ORDER

The opinion in this case, which appears at slip op. 2285, 2007 WL 610974¹ (9th Cir. March 1, 2007), is hereby amended as follows: the first paragraph of section III beginning at slip op. 2293, 2007 WL 610974 is hereby amended to read: "Kelley argues, and the government does not seriously dispute, that unwitting receipt of e-mail containing contraband will not support probable cause. See 18 U.S.C. § 2252A(a)(2) (criminalizing the knowing receipt of child pornography); United States v. Romm, 455 F.3d 990, 998 (9th Cir.2006) (holding that a person receives child pornography if he seeks it out). The disagreement centers on whether the affidavit is sufficient even though it lacks direct evidence that Kelley actually solicited the offending attachments."

Accordingly, the petition for clarification is GRANTED.

OPINION

Kenneth Kelley's home computer was searched for images of child pornography pursuant to a warrant based on information discovered during two unrelated computer searches for child pornography, demonstrating that Kelley had received nine e-mails with attachments depicting young boys in sexually explicit positions. He moved to suppress evidence obtained in the search after he was indicted for possessing child pornography in violation of 18 U.S.C. § 2252A(a) (5)(B), and for receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2). Granting the motion, the district court found that probable cause was not established by proof of receipt of e-mails absent direct evidence about those who had sent them, Kelley's connection with the persons who owned the other computers on which e-mails to his screen name appeared, or Kelley's having reached out in some way for the pornography attached to the transmissions. The government appeals, arguing that the district court improperly applied a bright-line rule for what is required to establish probable cause in a case involving possession of child pornography, whereas the totality of the circumstances, which it submits is the proper test, allows the reasonable inference that Kelley wanted to receive the offending e-mails.

Since the district court's decision in this case, this court has made clear that probable cause to search a computer for evidence of child pornography turns on the totality of the circumstances, including reasonable inferences. United States v Gourde, 440 F.3d 1065, 1071 (9th Cir.2006) (en banc). In this case, there is a reasonable inference from facts set out in the affidavit that Kelley was not an accidental recipient of e-mails with attachments containing illicit child pornography. As we conclude that it was fairly probable that child pornography Kelley willingly received would be found on his computer, we reverse.

I

Kelley's account on America On Line (AOL) was searched in December, 2004, and his home computer was searched in February, 2005. This appeal concerns the February, 2005 search of his computer, but Kelley's problems stem from an investigation by German police officers into the activities of a German citizen, Herman Mumenthaler, in 2002. Executing a search warrant on November 11 of that year, they found 25 outgoing, and 450 incoming, e-mails on Mumenthaler's computers that contained child pornographic attachments. "Gay1dude" was listed as a recipient on four of these e-mails that had attachments depicting images of boys between the ages of 8 and 14, including images of masturbation and oral copulation between two minor males. It was confirmed that "Gay1dude" was a screen name that Kenneth Michael Kelley used for his e-mail account on AOL. He also used other screen names, including "KKEL924," "Mickeydice," "Rockenwry," "Sirfreelancalot," "Coppalozoeetrope," "HIGH5JIVELIVE," and "K MICHAEL KELLEY." Acting on this information, American authorities sought, and obtained, a warrant that was issued on December 2, 2004 to search the content of Kelley's AOL account. This search revealed 500 images of child pornography that Kelley sent or received, consisting primarily of prepubescent males in sexually explicit poses. Kelley's motion to suppress evidence obtained in this search was granted June 17, 2005, and that ruling has not been appealed.

Meanwhile, on February 9, 2005, the government applied for a second warrant to search Kelley's residence, including his computer, for child pornography. The affidavit in support was made by a Special Agent with the United States Department of Homeland Security, United States Immigration and Customs Enforcement (ICE), assigned to the office of the Special Agent in Charge, San Francisco, California. It describes the German child pornography investigation involving Mumenthaler, and summarizes the contents of Kelley's AOL account from the December 2, 2004 search. The affidavit also relates details of a separate child pornography trafficking investigation that originated in Wichita, Kansas, involving Ronald D. Hutchings. According to the affidavit, on September 10, 2004, ICE agents served a search warrant on AOL for Hutchings's e-mail accounts which turned up evidence that Kelley, using the screen name "K MICHAEL KELLEY," and Hutchings, using the screen name "Young-bottom16," each received five e-mails with 38 attachments from an individual using the screen name "Badatt178" on August 10 and 15, 2004. Of the 38 attachments, 36 were image files (JPEGs) and two were movie files (MPEGs). The JPEGs included images of boys approximately 10-15 years of age in sexually explicit positions, including erect penises, masturbation, oral copulation between young males and anal intercourse between young and adult males. One MPEG depicts a young boy about four years old engaged in intercourse with an adult male while the other depicts a young girl about six being forced to perform oral sex on an adult male. In addition, the affidavit generally describes how computer connections to the Internet, and e-mail, work. Based on his training and experience, the affiant avers that persons whose sexual objects are minors collect sexually explicit material for their own sexual gratification and fantasy; that they tend to possess and trade this material in a clandestine manner; and that they often assemble lists or addresses of persons with similar sexual interests that may have been generated by personal contact or through advertisements in various publications. The affidavit further states that such persons almost always maintain their material at home or some other secure location where it is readily available, and rarely, if ever, dispose of the collection. Finally, the affidavit explains that the computer has become one of the preferred methods of distribution of pornographic materials.

A magistrate judge authorized the warrant on February 19, 2005. Forensic examination of Kelley's computer turned up numerous images of child pornography, in both picture and movie formats, depicting young boys engaged in sexual acts with adult males.

Kelley again moved to suppress, maintaining that the affidavit accompanying the February 9, 2005 application, without the evidence seized from his AOL account pursuant to the December 2, 2004 warrant, failed to establish probable cause. Although finding it a close call, the district court agreed. The court reasoned that the excised affidavit did not explain how or where the e-mails, originating from unidentified sources, ended up on the computers of two traffickers. It observed that no volitional act is required by the owner of an e-mail account for that account to receive e-mails, and conversely that it is almost impossible to prevent someone else from sending unwanted e-mail. Therefore, the court held, something more than proof of receipt or opening an e-mail is required to establish probable cause that the recipient is in actual possession of contraband contained in an e-mail attachment. As it was unable to conclude that there was a direct connection between Kelley and known traffickers, and evidence of his intent, or solicitation, or actual opening of the attachments was critical, but missing, the court granted Kelley's motion to suppress.

The government timely appeals from this order.

II

The standards for determining probable cause for a search were spelled out in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and apply with equal force to cases involving child pornography on a computer. United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir.2006) (en banc). Thus, probable cause means a "fair probability" that contraband or evidence is located in a particular place. Gates, 462 U.S. at 246, 103 S.Ct. 2317; Gourde, 440 F.3d at 1069. Whether there is a fair probability depends upon the totality of the circumstances, including reasonable inferences, and is a "commonsense, practical question." Gourde, 440 F.3d at 1069 (citing and quoting Gates, 462 U.S. at 230, 246, 103 S.Ct. 2317). Neither certainty nor a preponderance of the evidence is required. Id. (citing Gates, 462 U.S. at 246, 103 S.Ct. 2317).

Normally, we do not "flyspeck" the affidavit supporting a search warrant through de novo review; rather, the magistrate judge's determination...