People v. Rabes

• Decision Date: 03 February 2011
• Docket Number: No. 07CA2176.,07CA2176.
• Citation: 258 P.3d 937
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee,v.Erik Deane RABES, Defendant–Appellant.
• Court: Colorado Court of Appeals

258 P.3d 937

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Erik Deane RABES, Defendant–Appellant.

No. 07CA2176.

Colorado Court of Appeals, Div. V.

Dec. 23, 2010.As Modified on Denial of Rehearing Feb. 3, 2011.

John W. Suthers, Attorney General, Corelle M. Spettigue, Assistant Attorney General, Denver, CO, for Plaintiff–Appellee.Douglas K. Wilson, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, CO, for Defendant–Appellant.Opinion by Judge WEBB.

Defendant, Erik Deane Rabes, appeals the judgment of conviction and sentences entered on a jury verdict finding him guilty of multiple offenses involving sexual contact with a child. We vacate the sentence on one misdemeanor count, remand for resentencing, and otherwise affirm.

I. Background

After receiving a tip from America Online that Rabes had uploaded images of child pornography for transmittal through his America Online account (the AOL images), the National Center for Missing and Exploited Children (NCMEC) forwarded the tip to Nebraska police. An investigator viewed the images and obtained a warrant. When police searched Rabes's house, they found images on his computer depicting sexual contacts between Rabes and a young girl.

Rabes's ex-wife identified the location in the images as the basement of a home in Colorado Springs, where she and Rabes had once lived. She recognized the girl in the pictures as M.V., the four-year-old child of a neighbor.

In Colorado, Rabes was charged with five counts: sexual assault on a child, sexual assault on a child by a person in a position of trust, two felony counts of sexual exploitation of a child, and a misdemeanor count of sexual exploitation of a child. Before trial on these charges, he pled guilty to production of child pornography in a related federal case.

A jury convicted Rabes as charged. He was sentenced to concurrent ten-year prison sentences for the sexual assault counts, and a concurrent 24–month prison term for the misdemeanor sexual exploitation count. For the two felony sexual exploitation counts, he received twelve-year prison sentences consecutive both to each other and to the other counts.

II. Suppression

Rabes first contends the trial court erred in denying his motion to suppress the items recovered in the search of his home. Specifically, he argues that the affidavit in support of the search warrant was “bare bones” because it did not include the AOL images or describe them, but only recited that the premises to be searched were believed to contain images “depict[ing] children in a sexually explicit manner, which would include visual representation or image of a person or portion of the nude human body.” We discern no error.

A. Standard of Review

A trial court's suppression ruling presents a mixed question of law and fact. People v. Alameno, 193 P.3d 830, 834 (Colo.2008). We defer to the trial court's findings of historical fact, but we review the court's legal conclusions de novo. Id.

B. Governing Law

To establish probable cause, an affidavit in support of a search warrant must allege “facts sufficient to cause a person of reasonable caution to believe that contraband or evidence of criminal activity is located at the place to be searched.” People v. Randolph, 4 P.3d 477, 481 (Colo.2000) (quoting People v. Turcotte–Schaeffer, 843 P.2d 658, 659–60 (Colo.1993)); see Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (probable cause exists when there is a fair probability that contraband or evidence of a crime will be found in a particular place). A “presumption of validity” attaches to the affidavit submitted in support of a search warrant. People v. Kerst, 181 P.3d 1167, 1171 (Colo.2008).

However, when the affidavit is based on a tip from an informant, the reviewing magistrate must take into account the totality of the circumstances, including the informant's veracity, reliability, and basis of knowledge, and the level of independent police corroboration. Randolph, 4 P.3d at 481–82.

In reviewing to determine if a search warrant was validly issued, we ask whether facts set forth in the supporting affidavit provided the issuing magistrate with a “substantial basis” for concluding that probable cause existed. Id. at 481. Because the probable cause standard does not readily lend itself to “mathematical certainties,” id. at 482, “we accord a magistrate's probable-cause determination great deference.” People v. Gutierrez, 222 P.3d 925, 937 (Colo.2009). But if an affidavit contains only conclusory statements devoid of facts from which a magistrate can independently determine probable cause, it is deemed a deficient “bare bones” affidavit. People v. Pacheco, 175 P.3d 91, 96 (Colo.2006).

Where images of child pornography are relied on to establish probable cause, courts differ on the level of specificity required to describe the images to the issuing magistrate. See United States v. Brunette, 256 F.3d 14, 19 (1st Cir.2001) (“Ordinarily, a magistrate judge must view an image in order to determine whether it depicts the lascivious exhibition of a child's genitals.”); United States v. Lowe, 516 F.3d 580, 586 (7th Cir.2008) (“As a general matter, an issuing court does not need to look at the images described in an affidavit in order to determine whether there is probable cause to believe that they constitute child pornography. A detailed verbal description [of the images] is sufficient.”); United States v. Chrobak, 289 F.3d 1043, 1045 (8th Cir.2002) (statement in affidavit that images depicted “sexually explicit conduct involving children under the age of 16” provided substantial basis for concluding that a search would uncover evidence of wrongdoing because this language “is almost identical to the language of 18 U.S.C. § 2252”); United States v. Smith, 795 F.2d 841, 848 (9th Cir.1986) (same) ¹ ; but see State v. Nuss, 279 Neb. 648, 781 N.W.2d 60, 67–68 (2010) (statement in affidavit that files and images constituted “child pornography” and that the search would yield depictions of children “in a sexually explicit manner” insufficient because it “does not use or even refer to the statutory definitions of sexually explicit conduct in describing the images”).²

C. Analysis

Initially, we decline to adopt an absolute requirement that images of child pornography must be attached to the affidavit to establish probable cause. See People v. Slusher, 844 P.2d 1222, 1228 (Colo.App.1992) (affidavit describing “photographs of nude young males and any other sexually explicit photographs or materials” was sufficiently particular); Nuss, 781 N.W.2d at 67 (while copies of images may be used to establish probable cause, they are not required).

Further, defendant's assertion that upholding the warrant despite lack of any description of the AOL images in the affidavit means “an issuing judge can simply trust the affiant's judgment that probable cause existed” ignores facts in the affidavit from which the magistrate could have concluded that the tip alleging that the AOL images constituted “child pornography” was reliable. It resulted from a mandatory reporting requirement imposed by a federal statute that requires Internet service providers to report to the NCMEC “CyberTipline” any “facts and circumstances” involving the transmission of apparent child pornography. See 18 U.S.C. § 2258A(a)(2)(A), (b) (2010). Then the NCMEC must forward such reports to the United States Attorney General, and may forward them to state or local law enforcement “for the purpose of enforcing State criminal law.” 18 U.S.C. § 2258A(c)(1)-(2).³ See United States v. Grant, 434 F.Supp.2d 735, 746 (D.Neb.2006) (upholding warrant based on affidavit reflecting “apparently unbiased computer repairman's claim to have seen ‘child pornography’ on a computer” he had serviced).

The affidavit also established that the investigating officer had seen the AOL images. And by examining these images, the officer corroborated the tip using his experience. See Turcotte–Schaeffer, 843 P.2d at 660 (finding probable cause where informant's statements were corroborated by the police). A magistrate may determine probable cause based on “reasonable inferences” from facts set forth in the affidavit, and may “utilize his common sense.” People v. Williams, 200 Colo. 187, 193, 613 P.2d 879, 883 (1980). That the officer concluded the images depicted child pornography was a reasonable inference based on common sense. See United States v. Van Shutters, 163 F.3d 331, 337–38 (6th Cir.1998) (accepting as common sense inference that affiant had observed defendant's residence), cited with approval in People v. Gall, 30 P.3d 145, 152 (Colo.2001).

Further, the investigating officer's conclusion that the search would yield images constituting child pornography was based on his extensive experience and training involving Internet crimes against children.⁴ The issuing magistrate could properly have considered this factor. People v. Eirish, 165 P.3d 848, 854 (Colo.App.2007) (an officer's training and experience may be considered in determining probable cause); compare Smith, 795 F.2d at 848 (“[M]agistrate reasonably considered the statement of an experienced postal inspector that the photos depicted ‘sexually explicit conduct’ ....”), with Brunette, 256 F.3d at 18 (affiant “had less than two years [ ] experience investigating child pornography crimes”).

Additionally, one of the statutes cited in the affidavit, Neb.Rev.Stat. § 28–1463.02, contains the phrase “sexually explicit conduct.” Echoing this phrase, the affidavit expresses a belief that the premises to be searched contain images depicting “children in a sexually explicit manner.” See Chrobak, 289 F.3d at 1045 (emphasizing statutory language in affidavit); Smith, 795 F.2d at 848 (same). Although Nuss holds otherwise, 781 N.W.2d at 65–66, we consider the better-reasoned view to be that “[t]here are very few pictures of actual children engaged in sexual acts...