People v. Rowland

• Docket Number: H048799
• Decision Date: 08 September 2022
• Citation: 82 Cal.App.5th 1099,299 Cal.Rptr.3d 206
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jeffrey Lee ROWLAND, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

82 Cal.App.5th 1099

299 Cal.Rptr.3d 206

The PEOPLE, Plaintiff and Respondent,

v.Jeffrey Lee ROWLAND, Defendant and Appellant.

H048799

Court of Appeal, Sixth District, California.

Filed September 8, 2022

Law Offices of Beles & Beles, Robert J. Beles, Paul McCarthy, and Michah Reyner, Oakland, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano, Supervising Deputy Attorney General, and Victoria Ratnikova for Plaintiff and Respondent.

Danner, Acting P.J.

We consider in this appeal the presumptive reliability of information from a third-party electronic communication service provider in an affidavit supporting the application for a search warrant for child pornography.

Defendant Jeffrey Lee Rowland pleaded no contest to possession of child pornography ( Pen. Code, § 311.11, subd. (a)¹ ) in exchange for two years’ formal probation with conditions, including serving nine months in the county jail. Before Rowland entered his no contest plea, the trial court had denied his motion to quash a search warrant that led to the seizure of his child pornography.

On appeal, Rowland claims that the search warrant was not supported by probable cause and the good faith exception to the exclusionary rule does not apply. Additionally, Rowland and the Attorney General agree that any unpaid balance of a criminal justice administration fee and probation supervision fee imposed at sentencing should be vacated.

For the reasons explained below, we reject Rowland's challenge to the search warrant. We decide, inter alia, that although the search warrant affidavit did not name the employee who submitted two child pornography cybertips to the National Center for Missing and Exploited Children (NCMEC) or the person who forwarded the cybertips from NCMEC to the police, the totality of the circumstances supported a determination that the cybertips came from unbiased citizen informants who could be presumed reliable and thus did not need any independent corroboration. In addition, we modify the judgment to vacate the unpaid portion of the criminal justice administration fee and probation supervision fee and affirm the judgment in all other respects.

I. FACTS AND PROCEDURAL BACKGROUND

A. Procedural History

On April 16, 2019, the Santa Clara County District Attorney filed a complaint charging Rowland with a single count of possessing or controlling matter depicting a person under 18 years of age personally engaging in or simulating sexual conduct ( § 311.11, subd. (a) ; count 1).

In September 2019, Rowland filed a motion under section 1538.5 to quash the search warrant (motion) that led to a search of his residence and seizure of his electronic devices, including a "PNY Thumb Drive."

The district attorney opposed Rowland's motion. In his opposition, the district attorney noted that the PNY thumb drive "contained an estimated 1,000 images of child pornography and 25 videos of child pornography."

On November 15, 2019, the trial court heard argument from the parties and denied Rowland's motion.

In December 2020, after the trial court indicated a sentence, Rowland pleaded no contest to count 1 as charged.

On January 7, 2021, the trial court suspended imposition of sentence and placed Rowland on formal probation for two years with various conditions, including serving nine months in the county jail. Additionally, the court ordered Rowland to pay various fees including a $129.75 criminal justice administration fee to the City of Los Altos (former Gov. Code, § 29550 et seq. ) and a probation supervision fee of $50 per month (former § 1203.1b ).

Rowland timely appealed from the denial of his motion to quash the search warrant and his "sentence or other matters occurring after the plea that do not affect the validity of the plea."

B. Background on the Search Warrant, Seizure of Evidence, and Motion to Quash

1. Search Warrant Affidavit and Statement of Probable Cause

On February 22, 2019, Los Altos Police Department Detective Edgar Nava authored an affidavit and accompanying statement of probable cause (jointly, the search warrant affidavit or affidavit) in support of a search warrant for Rowland's residence and two vehicles. In the statement of probable cause, Detective Nava said he had been a peace officer for over nine years and that, as a detective, his duties included investigating child exploitation crimes. Regarding his prior training, Nava stated that in 2018 he had "attended a Child Exploitation Investigation Class that reviewed child pornography, child predators, legal aspects and investigative guidelines." He also had "attended classes and seminars, including the Digital Online Safety Class, taught by Verizon Media, [and] Continuous Professional Training (C.P.T.), regarding the investigation of the cases within the aforementioned realm" of child exploitation. Although Nava had previously "investigated crimes against children, this [case was his] first investigation dealing with the crime of possessing child pornography."

Detective Nava explained that, based on his training and experience, he knew "there are suspects who sexually objectify children." Nava described how these suspects "receive sexual gratification and satisfaction from ... fantasy involving the use of images, videos, electronic media, and/or writings on or about sexual activity with children." Nava explained further that "[t]hese suspects will often collect and possess sexually explicit objects such as ... digital files (such as images or videos) which depict children or other young persons. Suspects who possess child pornography tend to collect it." Such suspects also commonly use "Internet searches" and "file sharing networks and programs" to obtain child pornography. "Because child pornography is illegal and not easily available," suspects/child predators tend "to save or retain the child pornography," "rarely, if ever, dispose of their sexually explicit materials," and "will treat their materials as prized possessions, causing collections to typically grow and leading to an obsession."

Additionally, Detective Nava explained that "[s]uspects will typically store child pornography and other sexually explicit material involving children in physical locations, such as a house or vehicle, or on their persons, or retain digital copies on electronic/digital storage devices." "Suspects who sexually objectify minors typically utilize electronic communication providers in an attempt to contact children via the internet or mobile applications for the purposes of sexual gratification." The suspects might "maintain contact information for their victims," "collect and maintain photographs or videos of children they are or have been involved with," "engage in activities or programs which will be of interest to the type of child victims they desire to attract," "collect, read, copy or maintain names, addresses, phone numbers or lists of persons who have similar sexual interests," "correspond via mail, e-mail, instant messages, or in person to share information about their exploits of children and/or the identities of their victims," and "exchange, trade, or sell photos and/or videos of child pornography with other persons with similar interests." "Such suspects go to great lengths to conceal and to protect their collections of illicit materials from discovery, theft, and damage." Furthermore, "deleted [digital] files can typically be recovered using forensic software."

Regarding his current investigation, Detective Nava stated that he was assigned to investigate a report about child pornography from Mountain View Police Department Sergeant Dahl—a member of the Silicon Valley Internet Crimes Against Children (SVICAC) Task Force. Dahl's "report indicated he investigated two ‘Cybertips’ of exploited children. The Cybertips were received from the [NCMEC], Cybertip 1 (#41968669) and Cybertip 2 (#42488363). NCMEC received the anonymous Cybertips from a Microsoft Online Operation employee who viewed both files" of apparent child pornography. "Both files were uploaded to the internet through the BingImage application from the IP address 108.90.42.164."² Nava stated the file name for each image attached to the cybertips, along with the date and time the two files were uploaded (i.e., October 11, 2018, at 10:08:56 UTC (Coordinated Universal Time) for Cybertip 1, and October 26, 2018, at 20:46:56 UTC for Cybertip 2).

Detective Nava stated that "[Sergeant] Dahl reviewed the images and confirmed both images appeared to be images of child pornography. He contacted Alexandra N[.] Gatlin, who is an Analyst 1 with the Child Victim Identification Program (CVIP). Gatlin confirmed via email to [Sergeant] Dahl that the person from Cybertip 1 had been identified and was confirmed to be underage at the time the photograph was taken. In a separate email, Gatlin informed [Sergeant] Dahl that the person in Cybertip 2 had not been identified." Dahl checked the IP address attached to the cybertips against "the American Registry of Internet Numbers (ARIN) and learned the IP address is assigned to a company named AT&T Mobility" (bolding omitted). On November 27, 2018, Dahl authored a search warrant for the subscriber information regarding the "IP address and learned the subscriber information was Richard Rowland," with an address in Los Altos, California (hereafter residence).

On January 15, 2019, Detective Nava met with Sergeant Dahl at the Mountain View Police Department and viewed "both images of child pornography associated with Cybertip 1 and Cybertip 2." Nava described the images in his statement of probable cause as follows. The image associated to Cybertip 1 "showed a fully nude female juvenile. The female sat in a bathtub that was partially filled with water. She sat with her legs spread open, exposing her vaginal area. The female was leaning back and was smiling for the camera. She had little to...