State v. Henz

• Decision Date: 23 March 2022
• Docket Number: A-1-CA-38830
• Citation: 514 P.3d 1
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. James B. HENZ, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

514 P.3d 1

STATE of New Mexico, Plaintiff-Appellant,

v.James B. HENZ, Defendant-Appellee.

No. A-1-CA-38830

Court of Appeals of New Mexico.

Filing Date: March 23, 2022

Certiorari Granted, June 27, 2022, No. S-1-SC-39350

Hector H. Balderas, Attorney General, Santa Fe, NM, Charles J. Gutierrez, Assistant Attorney General, Albuquerque, NM, for Appellant

Bennett J. Baur, Chief Public Defender, Charles D. Agoos, Assistant Appellate Defender, Santa Fe, NM, for Appellee

HANISEE, Chief Judge.

{1} The State appeals the district court's grant of Defendant James Henz's motion to suppress child pornography found in the search of his home, arguing that the district court erred in finding that the issued search warrant was not supported by probable cause. In this opinion, we examine for the first time the requisite level of description and verification necessary in an affidavit supporting the application for a search warrant for child pornography when the factual basis for the warrant are the reports of third-party electronic communication service providers (providers). We reverse.

BACKGROUND

{2} On August 5, 2019, Defendant was charged with one count of possession of a visual medium of sexual exploitation of children under eighteen years of age (possession of child pornography), contrary to NMSA 1978, Section 30-6A-3(A) (2016) (child pornography statute). The charge arose following two independent reports, one from Tumblr and one from Google, Inc., to the National Center for Missing and Exploited Children (NCMEC) that a user had posted child pornography onto both respective internet platforms.

{3} In the affidavit supporting Bernalillo County Sheriff's Department Detective Kyle Hartsock's request for a search warrant, Detective Hartsock included the following information about the reports sent to NCMEC by Tumblr and Google:

On February 22 and 24, 2014[,] an internet [provider] called Tumblr sent two tips to NCMEC, who then sent [the information] to the [New Mexico Attorney General's (NMAG's) Office] on March 11, 2014, concerning a registered user of Tumblr who was involved in incidents of child pornography.

Tumblr states that the user with moniker "allsoyummmy" utilize[d] the internet protocol [(IP)] address of 70.210.201.40 at the time of the incident. On [February 20, 2014,] that user posted approximately [six] images that contained explicit images of children in sexual acts or positions. The user also added the text "I trade pictures" and provided his email address and [messaging app] user name. The NMAG's office conducted a preliminary investigation into the user name and the email address that was posted[,] and identified a video of the user[,] as well as the name of James Hen[z] or James Medina with a date of birth [later identified to be that of Defendant's], as well as a Twitter profile indicating the user was in Albuquerque, New Mexico.

Affiant received a second tip that came back to the same user. [The provider] Google ... report[ed] that on July 7, 2014[,] the user killajamo505 uploaded child pornography images to [Google's] cloud service from IP address 107.4.45.176. Affiant went before a grand jury and asked for a subpoena to Comcast for IP address 107.4.45.176 on the date and time of the Google incident, asking for the subscriber information. Affiant did receive the information back from Comcast, which indicated that it is registered to Jeanette Medina. Comcast indicated that on the date in question the address was 6325 Sumac Dr SW, [in Albuquerque, New Mexico] but was disconnected on [August 4, 2014], and reconnected at 5715 Timberline Ave NW[, also in Albuquerque, New Mexico].

{4} Based on Detective Hartsock's affidavit, a search warrant for Defendant's residence was issued by a metropolitan court judge (the issuing court) in Bernalillo County, New Mexico. During the execution of the search warrant, law enforcement recovered multiple electronic devices containing forty images depicting child pornography. As well, Defendant told Detective Hartsock that he possessed child pornography, operated the usernames reported by Tumblr and Google, and "had a problem" with viewing child pornography.

{5} Defendant filed a motion to suppress evidence recovered during the search, arguing that the affidavit was insufficient to establish probable cause because it failed to contain either adequate descriptions of the images that purportedly constituted child pornography, or independent verification that such images violated New Mexico's child pornography statute. Following a hearing, the district court granted Defendant's motion to suppress. In its order, the district court characterized the tips from Tumblr and Google as "conclusory assertion[s]" that certain images contained child pornography, stating that such assertions "fail[ed] to provide the necessary descriptive detail to allow the issuing court to judge independently whether the images constituted ‘child pornography’ that would be prohibited under New Mexico law." The district court further found that the question of "[w]hether images described as ‘child pornography’ are prohibited under New Mexico law may include [an] analysis of several factors including camera angles, the acts depicted, the setting of the image, etc." The district court stated that "[r]elying on a conclusion, whether from law enforcement or a third party, that an image constitutes ‘child pornography’ provides no information to the issuing court to evaluate the more subjective elements under New Mexico law[,]" and "[g]iven the subjectivity involved in determining whether materials constitute ‘child pornography,’ such that there is probable cause to believe the law is being or has been violated," an issuing court must "be provided with sufficient detailed information," which could "include the images themselves, sufficient factual details of the images, or other factual information from which the issuing court can evaluate the nature of the images or materials." Finding that the affidavit supporting the application for a search warrant did not explain the basis for Tumblr and Google to believe the images in question constituted child pornography as prohibited by New Mexico law, the district court found there to be an insufficient basis upon which to find probable cause and granted Defendant's motion to suppress. The State appeals.

DISCUSSION

{6} The State argues on appeal that the district court erred in reversing the issuing court's probable cause determination and granting Defendant's motion to suppress because the search warrant was supported by probable cause. More specifically, the State contends that Tumblr and Google are credible sources, the information contained in their tips was reliable, and Detective Hartsock's affidavit provided a substantial basis for the issuing court to have concluded that a search of Defendant's home would uncover evidence of child pornography. In response, Defendant argues that the affidavit failed to establish probable cause because it did not include any description of the relevant images from which an issuing court could conclude that a violation of the child pornography statute occurred or any indication that either law enforcement or the issuing court viewed the images to confirm they contained illegal content. Defendant also raises an additional argument that the children's court has exclusive jurisdiction of the case because Defendant was seventeen years old when law enforcement received the first tip from Tumblr. We address each issue in turn.

I. The Search Warrant Was Supported by Probable Cause

{7} In reviewing the district court's grant of Defendant's motion to suppress, "the reviewing court must determine whether the affidavit as a whole, and the reasonable inferences that may be drawn therefrom, provide a substantial basis for determining that there is probable cause to believe that a search will uncover evidence of wrongdoing." State v. Williamson , 2009-NMSC-039, ¶ 29, 146 N.M. 488, 212 P.3d 376. "[T]he substantial basis standard of review is more deferential than the de novo review applied to questions of law, but less deferential than the substantial evidence standard applied to questions of fact." Id. ¶ 30. Thus, "if the factual basis for the warrant is sufficiently detailed in the search warrant affidavit and the issuing court has found probable cause, the reviewing courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner." Id. (alteration, internal quotation marks, and citation omitted).

{8} "The constitutional validity of a search warrant, under the Fourth Amendment as well as Article II, Section 10 of the New Mexico Constitution, depends on whether the affidavit for a search warrant demonstrates that there is probable cause to believe that a crime is occurring or that seizable evidence of a crime exists at a particular location." State v. Price , 2020-NMSC-014, ¶ 14, 470 P.3d 265. A search warrant may be issued when "sufficient facts are presented in a sworn affidavit to enable the [issuing court] to make an informed, deliberate, and independent determination that probable cause exists." State v. Gonzales , 2003-NMCA-008, ¶ 11, 133 N.M. 158, 61 P.3d 867, abrogated on other grounds by State v. Williamson , 2009-NMSC-039, ¶ 29, 146 N.M. 488, 212 P.3d 376.

The issuing court "must have sufficient facts upon which to conclude that there is a reasonable probability that evidence of a crime will be found in the place to be searched." Id. ¶ 12. In making this determination, the issuing court must consider solely the information within the four corners of the affidavit submitted in support of a search warrant. See Williamson , 2009-NMSC-039, ¶ 31, 146 N.M. 488, 212 P.3d 376. "The degree of proof necessary to establish probable cause for the issuance of a search warrant is more than a suspicion or possibility but less than a certainty of proof." State v. Vest , 2011-NMCA-037, ¶ 7, 149 N.M. 548,...