U.S. v. Miknevich

Decision Date01 March 2011
Docket NumberNo. 09–3059.,09–3059.
Citation638 F.3d 178
PartiesUNITED STATES of Americav.Stephen MIKNEVICH, Appellant.
CourtU.S. Court of Appeals — Third Circuit

OPINION TEXT STARTS HERE

Nicholas F. Kravitz, Esq. (Argued), Patrick A. Casey, Esq., Myers Brier & Kelly, Scranton, PA, for Appellant.Francis P. Sempa, Esq. (Argued), Office of the United States Attorney, Scranton, PA, for Appellee.BEFORE: FUENTES, HARDIMAN, and NYGAARD, Circuit Judges.

OPINION OF THE COURT

NYGAARD, Circuit Judge.

I.

We are asked to determine whether an affidavit prepared by a law enforcement officer provided a substantial basis for a Pennsylvania district justice's finding of probable cause to issue a search warrant. Appellant Stephen Miknevich was arrested and charged with possession of child pornography. These charges arose after police executed a search warrant at his home and seized his computer. His computer was later found to contain numerous images of child pornography. After the search and seizure of the computer, Miknevich gave oral and written admissions of guilt to the arresting officers.

Miknevich then filed a motion to suppress in the District Court, arguing that the warrant was issued without probable cause. The District Court denied the motion, finding that the accompanying affidavit contained an adequate description of child pornography so as to support a probable cause determination and, even had it not, the Leon good faith exception applied. See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Miknevich entered a conditional plea of guilty, reserving the right to challenge the District Court's probable cause determination on appeal. He filed a notice of appeal raising this issue and also challenging his sentence. We will affirm.

II.

Because the contents of the affidavit are at issue, we will quote from it directly as follows:

On 8/16/2007 at Approx. 1559 hr EDT, Delaware State Police Cpt. R. Scott Garland was conducting an investigation into the use of P2P file sharing networks in the distribution of child pornography images and movies in violation of Pennsylvania Crime Code Section 631(C), (D), Sexual Abuse of Children (Possession and dissemination of Child Pornography). While conducting this investigation, an off-the-shelf publically available gnutella client was used. At this time, the network was queried for files indexed by a term I know to be related to child pornography. The network returned to Det. Garland's computer a list of files associated with this term. The list contained details about these files including the file name, file type, file size, SHA1 value for the file and a number of users on the network with the file or portions of the file available for download by other gnutella network users.

Det. Garland reviewed the list of files and observed a file named, “!!Novo Ptsc-Alyo(6yo) & Ali(7yo) Ptsc-littlenorwegian angels stroke their erect clits-nudist child,” with an SHA1 value of RGQCV2AC6XD3JE5KULOBAJWQTVBBXXHC. Det. Garland knows this file with this SHA1 value to be child pornography. The movie is described as children, under the age of eighteen years old engaged in sexual acts and/or poses. Det. Garland then attempted to download this movie form (sic) those sharing it on the network.

Shortly after Det. Garland indicated to download the movie, the network returned a list of users with their IP address, who had the file or portions of the file available to download from it. Det. Garland reviewed this list and observed a user with the IP address of 75.75.148.179. The software was set to locate computers sharing images of child pornography. Det. Garland was presented with an IP address of 75.75.148.179 and captured this IP address by performing a “Netstat capture” on 8/16/2007 @ 1559 hrs. EDT.

Lt. Peifer viewed the video file based on the SHA1 value and based on my training and experience the children appear to be under the age of 18 years old.

On 9/17/2007, Lt. Peifer prepared a Court Order in the Court of Common Pleas in Delaware County [Pennsylvania] directing Comcast Cable Communications to supply subscriber information on the person assigned to IP address 75.75.148.179 on 8/06/2007 @ 1559 hrs ESDT. This order was submitted to Delaware County Common Please (sic) Court Judge Frank T. Hazel.

On 9/21/2007 at approx. 1616 hrs Lt. Peifer received a response from Comcast Cable Communications in reference to the court order sent.

Comcast indicated that the IP address 75.75.148.179 on 8/16/2007 @1559 hrs EDT was in use by the following subscriber in the name of:

Steven Miknevich, 72 Pincecrest Ave., Lft, Dallas, Pa. 18612 PH# 570–760–7643.

Based on this information, Pennsylvania State Trooper Michael Gownley averred to a Pennsylvania district justice that computer images depicting children less than eighteen years of age engaged in sexual conduct were located at Miknevich's residence and that those depictions were evidence of a crime involving the sexual abuse of children. Gownley obtained a warrant and seized Miknevich's computer.

Miknevich argues that the warrant is infirm because the Pennsylvania district justice premised his probable cause determination on the file name and its related electronic identification SHA1 value 1, not on his or the investigating officers' viewing of the file's contents. Further, he maintains that the only officer who did view the file did not say that he saw child pornography and that the district justice only inferred as much. According to Miknevich, speculation cannot be the basis upon which a probable cause determination is made.

III.

We first distinguish between the standards that govern our review.2 We exercise plenary review over the District Court's evaluation of the Pennsylvania district justice's probable cause determination because the District Court limited its decision to the information contained in the warrant affidavit. United States v. Vosburgh, 602 F.3d 512, 526 (3d Cir.2010); see also United States v. Stearn, 597 F.3d 540, 554 (3d Cir.2010). Because our review of the District Court's decision denying Miknevich's motion to suppress is plenary, we apply the same deferential standard that the District Court applied in reviewing the initial probable cause determination. United States v. Jones, 994 F.2d 1051, 1055 (3d Cir.1993). That is, we must pay “great deference” to the magistrate's initial determination of probable cause. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).3

Thus, in reviewing the probable cause assessment, we do not undertake a de novo review of whether probable cause actually existed. Jones, 994 F.2d at 1054. Instead, like that of the District Court, our role is limited to ensuring that a magistrate 4 had a “substantial basis” for concluding that the affidavit supporting the warrant established probable cause. Id. at 1054–55; see also Gates, 462 U.S. at 236, 103 S.Ct. 2317. When we make this assessment, we confine ourselves “to the facts that were before the magistrate judge, i.e., the affidavit, and do not consider information from other portions of the record.” Jones, 994 F.2d at 1055. Moreover, “the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” Id. at 1057–58. With that said, however, the great deference afforded a magistrate's determination “does not mean that reviewing courts should simply rubber stamp a magistrate's conclusion.” United States v. Tehfe, 722 F.2d 1114, 1117 (3d Cir.1983), cert. denied sub nom., Sanchez v. United States, 466 U.S. 904, 104 S.Ct. 1679, 80 L.Ed.2d 154 (1984).

The principles governing a probable cause determination are well established. A magistrate may find probable cause when, viewing the totality of the circumstances, “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. Proof beyond a reasonable doubt is not required. Id. at 235, 103 S.Ct. 2317. Further, if a substantial basis exists to support the magistrate's probable cause finding, we must uphold that finding even if a “different magistrate judge might have found the affidavit insufficient to support a warrant.” United States v. Conley, 4 F.3d 1200, 1205 (3d Cir.1993). The duty of 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, 103 S.Ct. 2317. We have held that “probable cause is a fluid concept” that turns on “the assessment of probabilities in particular factual contexts not readily, or even usefully, reduced to a neat set of legal rules.” United States v. Shields, 458 F.3d 269, 277 (3d Cir.2006) (citing Gates, 462 U.S. at 232, 103 S.Ct. 2317). The supporting affidavit to a search warrant is to be read in its entirety and in a common sense, nontechnical manner. See United States v. Williams, 124 F.3d 411, 420 (3d Cir.1997).

IV.

Miknevich argues that the affidavit of probable cause was deficient because it did not contain enough information to give the Pennsylvania district justice a substantial basis to conclude that there was a fair probability that contraband or evidence of criminal activity would be found on his computer. He points to several alleged defects: the affidavit does not indicate that any investigating officer actually downloaded the suspect video file; the affidavit does not indicate that anyone ever actually viewed the suspect file; and the affidavit contains no description of the suspected images or actions in these files.

We credit Miknevich's criticism of the affidavit as far as it goes. The affidavit was, in parts, inartfully drafted. This stems, no doubt, from the fact that the affiant took no direct part in the investigation, and instead related the work of other law enforcement officials—Det. Garland and Lt. Peifer. Although the District Court relied on the fact that the affidavit did...

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