State v. Woldridge

• Decision Date: 04 May 2007
• Docket Number: No. 2D06-2466.,2D06-2466.
• Parties: STATE of Florida, Appellant, v. James Laird WOLDRIDGE, Appellee.
• Court: Florida District Court of Appeals

958 So.2d 455

STATE of Florida, Appellant, v. James Laird WOLDRIDGE, Appellee.

No. 2D06-2466.

District Court of Appeal of Florida, Second District.

May 4, 2007.

Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellant.

Joseph A. Eustace, Jr., of Anthony J. LaSpada, P.A., Tampa, for Appellee.

PER CURIAM.

The State appeals the trial court's order granting James Woldridge's motion to suppress evidence seized pursuant to a search warrant for his residence. The trial court found that the warrant application contained insufficient information about the source of a tip to establish probable cause. Because the trial court focused its attention on an entity that was not the actual source of the tip, the trial court erred in finding that the magistrate abused his discretion in issuing the warrant. Accordingly, we reverse.

Woldridge was charged by information with ten counts of possession of child pornography in violation of section 827.071(5), Florida Statutes (2004). He filed a motion to suppress the evidence seized from his residence on the grounds that the information contained in the affidavit for the search warrant was legally insufficient to support a finding of probable cause.

The affidavit supporting the search warrant application related that Officer Margaret Grow of the Hillsborough County Sheriff's Office had received four reports from the National Center for Missing and Exploited Children (NCMEC) which related that America Online (AOL) had reported that an AOL user with a specific screen name had attempted to e-mail files containing child pornography. After receiving the reports and reviewing the images, Grow subpoenaed AOL for the subscriber information for the specified screen name. In response to the subpoena, AOL identified Woldridge as the account holder of the screen name. Grow's affidavit then detailed the additional investigation she conducted to confirm where Woldridge was living and receiving internet service. It also detailed Grow's background in the investigation of on-line child pornography cases and provided background information concerning the characteristics of individuals who use the internet to view and exchange "cyberporn."

The warrant application sought a warrant to search Woldridge's home for "computer equipment," which it defined to include various computer and electronic "storage devices." After reviewing the warrant application, including the affidavit prepared by Grow, the magistrate issued a search warrant for Woldridge's home. Pursuant to the search warrant, officers seized Woldridge's computer and found various pornographic images of children on the hard drive.

In Woldridge's motion to suppress the evidence seized pursuant to the search warrant, he argued that the warrant application was insufficient to establish probable cause because the affidavit in support of the application contained no information concerning the veracity or basis of knowledge of NCMEC, which he identified as the alleged tipster. The State, on the other hand, argued that AOL was the only tipster involved and that its tip was presumptively reliable because AOL was a "citizen-informant." The trial court granted the motion to suppress, finding the application legally insufficient to establish probable cause because the affidavit did not contain sufficient information to establish the reliability of NCMEC. This appeal followed.

For a warrant to issue, the issuing magistrate must find probable cause to believe that the contraband is presently in the residence. State v. Bernie, 472 So.2d 1243, 1246 (Fla. 2d DCA 1985).

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.

Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); see also Alabama v. White, 496 U.S. 325, 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

State v. Gonzalez, 884 So.2d 330, 333 (Fla. 2d DCA 2004); see also Pagan v. State, 830 So.2d 792, 806 (Fla.2002). Because the determination of probable cause must be made from the four corners of the affidavit, the affidavit itself must contain either information concerning the informant's veracity or sufficient independent corroborating evidence. Pagan, 830 So.2d at 806-07.

When a trial court is called upon to review a magistrate's decision to issue a search warrant, the trial court does not conduct a de novo determination of whether there was probable cause to issue the warrant. Bonilla v. State, 579 So.2d 802, 805 (Fla. 5th DCA 1991). Instead, the trial court determines only whether substantial evidence supported the magistrate's determination that probable cause existed. Id.; see also Gonzalez, 884 So.2d at 333; Garcia v. State, 872 So.2d 326, 329 (Fla. 2d DCA 2004). Thus, the trial court should not disturb an issuing magistrate's determination absent a clear demonstration that the magistrate abused his discretion in relying on the information in the affidavit supporting the warrant application to find probable cause. State v. Price, 564 So.2d 1239, 1241 (Fla. 5th DCA 1990).

In this appeal, the State argues that the trial court erred in focusing its attention on the reliability of NCMEC. As it did in the trial court, the State argues that AOL was the only tipster involved and that its tip was presumptively reliable because AOL was a "citizen informant." We agree that AOL was the only tipster. Additionally, although we hesitate to hold that, as a matter of law, a corporation can always be a citizen informant, we hold that AOL's compliance with a federal law mandating that it report Woldridge's activities to NCMEC provides a presumption of reliability akin to that afforded a citizen informant. Accordingly, we hold that the affidavit at issue provided probable cause to issue the search warrant.

First, it is clear from the search warrant affidavit that the tip came from AOL, not NCMEC. The pertinent part of the affidavit states:

Affiant received four reports from the National Center for Missing and Exploited Children. The four reports from the National Center for Missing and Exploited Children listed the Internet Service Provider America Online (AOL) reporting an AOL user twithtt@aol.com who attempted to email files depicting child pornography.

(Emphasis added.) From this language, it is clear that the relevant information originated with AOL, not NCMEC. Thus, AOL was the only "tipster" involved, and the critical question for the issuing magistrate was the reliability of AOL, not NCMEC.

Second, the reliability of the tip from AOL can be presumed because federal law compelled AOL's report to NCMEC. Although not mentioned by either party in their briefs, AOL was required to report the attempted transmission of these child pornography images to NCMEC for forwarding to law enforcement. Under 42 U.S.C. § 13032(b)(1) (2004), any internet service provider that obtains facts from which a violation of federal child pornography laws is apparent must report the facts and circumstances to the Cyber Tip Line at NCMEC. NCMEC then forwards the reported information to both state and federal law enforcement officials. 42 U.S.C. § 13032(b)(1), (b)(3). An internet service provider that fails to report such facts is subject to significant fines. 42 U.S.C. § 13032(b)(4).

We find that this statutory reporting requirement supports the reliability of AOL's tip. Contrary to Woldridge's position at oral argument, the possibility of the imposition of fines for failing to report the transmission of child pornography does not make AOL's tip less reliable. Nothing about the possible imposition of fines would encourage AOL to make false reports to NCMEC. Further, while it is true that the search warrant affidavit does not reference this statutory mandate, the magistrate and the trial court, like all citizens, are charged with knowing the applicable law.

In addition, AOL was acting in a manner analogous to that of a citizen informant when it forwarded the information to NCMEC. "A citizen-informant is one who is `motivated not by pecuniary gain, but by the desire to further justice.'" State v. Maynard, 783 So.2d 226,...