658 F.3d 1174 (9th Cir. 2011), 09-10396, United States v. Krupa

Docket Nº:09-10396.
Citation:658 F.3d 1174
Opinion Judge:CALLAHAN, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Peter John KRUPA, Defendant-Appellant.
Attorney:Katherine Hart, Fresno, CA, for defendant-appellant Peter John Krupa. Benjamin B. Wagner, United States Attorney, and Brian W. Enos (argued), Assistant United States Attorney, Fresno, CA, for the United States.
Judge Panel:Before: MARSHA S. BERZON and CONSUELO M. CALLAHAN, Circuit Judges, and CHARLES R. WOLLE, Senior District Judge.[*] Opinion by Judge CALLAHAN; Dissent by Judge BERZON. BERZON, Circuit Judge, dissenting:
Case Date:September 30, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1174

658 F.3d 1174 (9th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,

v.

Peter John KRUPA, Defendant-Appellant.

No. 09-10396.

United States Court of Appeals, Ninth Circuit.

September 30, 2011

Argued and Submitted Oct. 4, 2010.

Page 1175

Katherine Hart, Fresno, CA, for defendant-appellant Peter John Krupa.

Benjamin B. Wagner, United States Attorney, and Brian W. Enos (argued), Assistant United States Attorney, Fresno, CA, for the United States.

Appeal from the United States District Court for the Eastern District of California, Anthony W. Ishii, Chief District Judge, Presiding. D.C. No. 1:04-cr-05141-AWI-1.

Before: MARSHA S. BERZON and CONSUELO M. CALLAHAN, Circuit Judges, and CHARLES R. WOLLE, Senior District Judge.[*]

Opinion by Judge CALLAHAN; Dissent by Judge BERZON.

ORDER

CALLAHAN, Circuit Judge:

The petition for rehearing is granted, the opinion and dissent filed on February 7, 2011 are withdrawn, and a new opinion and dissent are filed concurrent with this order.

The grant of the petition for rehearing and the filing of a new opinion and dissent moots the petition for rehearing en banc. The parties may file new petitions for rehearing from the new opinion and dissent pursuant to Federal Rule of Appellate Procedure 40.

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OPINION

Peter Krupa appeals from his conditional guilty plea to receiving material involving the sexual exploitation of minors in violation of 18 U.S.C. § 2252(a)(2). Krupa challenges the district court's denial of his motion to suppress evidence seized from computers in his custody. On grounds that differ slightly from those proffered by the district court, we affirm the denial of the motion to suppress.

On April 12, 2002, the military police at Edwards Air Force Base received a call from Rhonda Velasco. She was worried because her ten-year-old daughter and five-year-old son, who were living on the base with her ex-husband, Sergeant Velasco, had not arrived at the train station in Lancaster as previously arranged. Accordingly, the military police went to Sgt. Velasco's home. There they encountered Peter Krupa, a civilian. He indicated that he was taking care of the children while Sgt. Velasco was in the Philippines until April 21, and showed the military police a written note to that effect.

The home was in complete disarray with clothing strewn on the floor and in the hall. Of particular concern were the presence of 13 computer towers and two laptops, some of which were linked together. The military police asked Krupa for consent to take the computers and he initially agreed.

On Tuesday, April 16, 2002, Agent Reynolds (who is trained in, and specializes in investigating computers and digital evidence) was assigned to investigate the seized computers. In his initial search of the computers Reynolds located an image of suspected contraband. Reynolds described the photograph to be of a nude 15- to 17-year-old female with a website label of " www. nude- teens. com." On Sunday, April 21, 2002, Reynolds was hospitalized for chest pain. The following day, Krupa revoked his consent to the search of the computers.

Reynolds remained hospitalized until April 25, 2002. While in the hospital he sought authority to continue his search of the computers " for any further items of contraband." The request was based on the photograph and the fact that consent had been revoked. On April 29, 2002, Colonel LaFave, the appointed Primary Search Authority Military Magistrate, signed a search warrant. 1 Reynolds resumed his forensic analysis of the computers, locating adult pornography and 22 images of child pornography.

Sometime thereafter, the matter was transferred to the Federal Bureau of Investigation (" FBI" ). Both parties agree that on May 14, 2002, during a non-custodial interview, an FBI Special Agent showed Krupa the suspected child pornographic images recovered from one of the computers and asked him if he recognized the images. Krupa allegedly stated that he " had probably viewed all the images because he recognized that the structure of the filename printed above the computer images to be the same structure he uses to name computer files on his computers." On the basis of the evidence obtained pursuant to the military search warrant and Krupa's statement, the FBI sought and procured a federal search warrant from Judge Wanger of the Eastern District of California. 2

Krupa was indicted for violating 18 U.S.C. § 2252(a)(4)— possession of visual depictions of minors engaging in sexually explicit conduct. Krupa moved to suppress

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the evidence seized from his computer. The district judge found that Krupa had standing to challenge the seizure of the computers and had withdrawn his consent. The district court determined that although the single photograph was insufficient to show probable cause, citing United States v. Battershell, 457 F.3d 1048 (9th Cir.2006), the motion to suppress would be denied under the good-faith exception set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

Krupa then pled guilty to receipt of materials depicting sexual exploitation of minors and entered into a plea agreement that reserved his right to appeal the denial of the motion to suppress. He was sentenced to 41 months of incarceration.

We review de novo the district court's denial of a motion to suppress evidence. United States v. Hill, 459 F.3d 966, 970 (9th Cir.2006). We review for clear error a magistrate's finding of probable cause to issue a search warrant, and give " great deference" to such findings. Id.; see also United States v. Hay, 231 F.3d 630, 634 n. 4 (9th Cir.2000).

As we noted in Hill, our review starts with the Constitution. We stated:

" [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).

Hill, 459 F.3d at 970. In Gates, the Supreme Court observed that:

The 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, 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. And the duty of a reviewing court is simply to ensure that the magistrate had a " substantial basis for ... conclud[ing]" that probable cause existed. Jones v. United States [362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) ].

In applying this standard, we have reiterated the Supreme Court's directive that a magistrate's determination of probable cause should be paid great deference by reviewing courts. See Millender v. County of Los Angeles, 620 F.3d 1016, 1025 (9th Cir.2010)3; U.S. v. Kelley, 482 F.3d 1047, 1050 (9th Cir.2007); Battershell, 457 F.3d at 1050.

We have further noted that Gates signaled a change from a technical approach to probable cause to " a return to the ‘ totality of the circumstances' test and emphasized that probable cause means ‘ fair probability, not certainty or even a preponderance of the evidence.’ " United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir.2006) (en banc). In Kelley, we explained that " [w]hether there is a fair probability depends upon the totality of the circumstances, including reasonable inferences, and is a ‘ commonsense, practical question,’ " for which " [n]either certainty

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nor a preponderance of the evidence is required." 482 F.3d at 1050 (quoting Gates, 462 U.S. at 246, 103 S.Ct. 2317, and Gourde, 440 F.3d at 1069).

The agent's affidavit presented to Colonel LaFave first set forth the agent's qualifications to conduct investigations of computers and recover digital evidence, as well as his experience in investigations related to computer crimes and child pornography. The affidavit then stated that base police, responding to a report of child neglect, determined that " there were several computers at the location and that there was no custodial parents at the house only an individual KRUPA who was not affiliated with the military." The affidavit stated that Krupa " had care and custody of the residence," which included the 13 computer towers and two laptops. Reynolds' affidavit stated that during his initial investigation of the computers, before consent was withdrawn, he located " an image of suspected contraband," specifically a " photograph [that] appeared to be of a nude 15 to 17 year old female with a web site label of www. nude- teens. com. "

Although a close case, we conclude that Colonel LaFave reasonably concluded that there was probable cause to issue a search warrant. Reynolds' affidavit set forth his qualifications as a trained investigator of computers for computer crimes and child pornography. Accordingly, the Colonel was entitled to give some deference to the agent's statement that the photograph constituted an " image of suspected contraband," even though the affidavit's description of the photograph did not necessarily support the conclusion that the photograph constituted child pornography. Furthermore, the affidavit indicated that the police had responded to " a report of child neglect," that no custodial parents were at...

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