U.S. v. Gourde

• Decision Date: 09 March 2006
• Docket Number: No. 03-30262.,03-30262.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Micah J. GOURDE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1065

440 F.3d 1065

UNITED STATES of America, Plaintiff-Appellee, v. Micah J. GOURDE, Defendant-Appellant.

No. 03-30262.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 9, 2004.

Panel Opinion Filed September 2, 2004.

Rehearing En Banc Granted July 14, 2005.^*

Argued and Submitted En Banc September 27, 2005.

En Banc Opinion Filed March 9, 2006.

Colin Fieman, Assistant Federal Public Defender, Tacoma, WA, for appellant Micah Gourde.

Janet L. Freeman, Assistant United States Attorney, Seattle, WA, for appellee United States.

Appeal from the United States District Court for the Western District of Washington; Franklin D. Burgess, District Judge, Presiding. D.C. No. CR-02-06067-FDB.

Before: SCHROEDER, Chief Judge, REINHARDT, BRUNETTI, O'SCANNLAIN, RYMER, KLEINFELD, THOMAS, McKEOWN, GOULD, CALLAHAN, and BEA, Circuit Judges.

McKEOWN, Circuit Judge:

The term "Lolita" conjures up images ranging from the literary depiction of the adolescent seduced by her stepfather in Vladimir Nabokov's novel¹ to erotic displays of young girls and child pornography. This case requires us to consider probable cause to search a computer for child pornography in the context of an Internet website, known as "Lolitagurls.com," that admittedly displayed child pornography.

Micah Gourde appeals from the district court's denial of his motion to suppress more than 100 images of child pornography seized from his home computer. Gourde claims that the affidavit in support of the search lacked sufficient indicia of probable cause because it contained no evidence that Gourde actually downloaded or possessed child pornography. We disagree. Based on the totality of the circumstances, the magistrate judge who issued the warrant made a "practical, common-sense decision" that there was a "fair probability" that child pornography would be found on Gourde's computer. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).² The Fourth Amendment requires no more.

BACKGROUND

I. THE AFFIDAVIT

In May 2002, the FBI requested a warrant to search the residence of Micah Gourde for the purpose of seizing computer equipment and other materials containing evidence that he "probably caused the uploading, downloading and transmission of child pornography over the Internet" in violation of 18 U.S.C. §§ 2252 and 2252A, which criminalize the possession, receipt and transmission of child pornography. The following facts come from Special Agent David Moriguchi's affidavit in support of the search warrant. See United States v. Anderson, 453 F.2d 174, 175 (9th Cir.1971) ("[A]ll data necessary to show probable cause for the issuance of a search warrant must be contained within the four corners of a written affidavit given under oath.").

In August 2001, an undercover FBI agent discovered a website called "Lolitagurls.com." The first page of the site contained images of nude and partially-dressed girls, some prepubescent, along with this text:

Lolitagurls.com offers hard to find pics! With weekly updates and high quality pix inside, you cant go wrong if you like young girls! Lolitas.Full size High Quality Pictures inside Join Now — instant access here THIS SITE updated weekly WITH NEW LOLITA PICS This site is in full compliance with United States Code Title 18 Part I Chapter 110 Section 2256.

The first page directed the user to a second page with more images of nude girls, some prepubescent, including three images displaying the genital areas of minors, and a caption reading "Lolitas age 12-17."

The second page contained this text:

Welcome to Lolitagurls. Over one thousand pictures of girls age 12-17! Naked lolita girls with weekly updates! What you will find here at Lolitagurls.com is a complete collection of young girl pics. BONUS: You can get movies/mpegs at our partners site after you join if you wish.

The second page also had testimonials from website members, such as "This lolita site has everything with young girls!" and "I've never seen in my life the pics of so cute pre-teen girls." This page offered the viewer three ways to see other pages on the website: (1) take a free tour of the site, (2) become a new member of the site, or (3) log in as a returning member.

As part of his investigation, the undercover agent joined the website and was a member from August to December 2001. The membership fee was $19.95 per month, deducted automatically from the member's credit card. Lancelot Security handled credit card processing and access control for Lolitagurls.com. Members received unlimited access to the website and were "allowed . . . to download images directly from the website." Browsing the entire website, whose "primary feature was the images section," the undercover agent captured "hundreds of images" that "included adult pornography, child pornography, and child erotica." These images included the lascivious display of the breasts and genitalia of girls under the age of eighteen.

The FBI eventually identified the owner and operator of Lolitagurls.com and, in January 2002, executed a search warrant. Among the seized items was his computer, which contained child pornography images that had been posted to the Lolitagurls.com website. The owner "admitted... that `Lolitagurls.com' was a child pornography website he operated as a source of income."

In response to a follow-up subpoena, Lancelot Security provided the FBI with information on Lolitagurls.com's subscribers. Lancelot's records listed Gourde as a member and provided his home address date of birth, email address, and the fact that he had been a subscriber from November 2001 until January 2002. Gourde never cancelled his membership — the FBI shut down the site at the end of January, while he was still a member.

The affidavit contained extensive background information on computers and the characteristics of child pornography collectors. One section set out legal and computer terms relevant to understanding how downloading and possessing child pornography would violate 18 U.S.C. § 2252. Citing FBI computer experts, the affidavit explained that if a computer had ever received or downloaded illegal images, the images would remain on the computer for an extended period. That is, even if the user sent the images to "recycle" and then deleted the files in the recycling bin, the files were not actually erased but were kept in the computer's "slack space" until randomly overwritten, making even deleted files retrievable by computer forensic experts. Any evidence of a violation of 18 U.S.C. § 2252 would almost certainly remain on a computer long after the file had been viewed or downloaded and even after it had been deleted.

The affidavit also described the use of computers for child pornography activities. Based on his experience and that of other FBI experts, Moriguchi wrote that "[p]aid subscription websites are a forum through which persons with similar interests can view and download images in relative privacy." He described how collectors and distributors of child pornography use the free email and online storage services of Internet portals such as Yahoo! and Hotmail, among others, to operate anonymously because these websites require little identifying information. Communications through these portals result in both the intentional and unintentional storage of digital information, and a "user's Internet activities generally leave traces or `footprints' in the web cache. . . ." Drawing on the expertise of the FBI Behavioral Analysis Unit, the affidavit listed certain "traits and characteristics . . . generally found to exist and be true in . . . individuals who collect child pornography." According to the affidavit, the majority of collectors are sexually attracted to children, "collect sexually explicit materials" including digital images for their own sexual gratification, also collect child erotica (images that are not themselves child pornography but still fuel their sexual fantasies involving children), "rarely, if ever, dispose of their sexually explicit materials," and "seek out like-minded individuals, either in person or on the Internet."

The affidavit concluded by identifying facts about Gourde that made it fairly probable that he was a child pornography collector and maintained a collection of child pornography and related evidence: (1) Gourde "took steps to affirmatively join" the website; (2) the website "advertised pictures of young girls"; (3) the website offered images of young girls engaged in sexually explicit conduct; (4) Gourde remained a member for over two months, although he could have cancelled at any time; (5) Gourde had access to hundreds of images, including historical postings to the website; and (6) any time Gourde visited the website, he had to have seen images of "naked prepubescent females with a caption that described them as twelve to seventeen-year-old girls."

II. PROCEDURAL BACKGROUND

On the strength of Moriguchi's affidavit, the magistrate judge issued a warrant to search Gourde's residence and computers. The FBI searched Gourde's house and seized his computer, which contained over 100 images of child pornography and erotica.

Gourde filed a motion to suppress the images found on his computer. At the suppression hearing, the district court heard testimony from two FBI agents, including Moriguchi. The district court restricted its ruling to "the face of the affidavit," and denied Gourde's motion to suppress. The district court determined that the recitations in the affidavit supported a fair probability that evidence of a crime would be found on Gourde's computer. The judge applied a "common sense approach" to conclude that evidence of a subscription to even a "mixed" site — one that offered both legal adult pornography and illegal child pornography—provided the necessary "fair probability" to "look further."

Shortly after, Gourde pleaded guilty to one count of possession of visual depictions of minors...