Child Pornography, the External Hard Drive and the Password

U.S. v. Wolff, supra.He went on to explain how the prosecution arose, noting thaton September 24, 2015, Wolff’s wife, astudent at UC Berkeley, contacted Officer Kevin Vincent of the University of California Police Department (`UCPD) to report that `she had discovered childpornography on an external computer hard drive that belonged to Wolff. SeeSept. 25, 2014, SearchWarrant and Affidavit (`First Search Warrant) 1, Dkt. No. 28-1. Ms. Wolfftold Officer Vincent she had used her husband’s computer with his permissionthe previous day while he was out of town, and in the course of performing acomputer search came upon files with names similar to `stepfather fuckingstepdaughter and `two men having sex with a teenage girl. Id.2; Declaration of Kevin Vincent (`Vincent Decl.) 5, Dkt. No. 29. Her initialattempts to open the files were unsuccessful.See id.The next day, she tried to access thefiles on her husband’s `WD My Passport external hard drive. First SearchWarrant 3; Vincent Decl. 8. She found that it was password protected, butnoticing that the password hint was `moarDanish for `mothershe was able todeduce that the password was `jegelskermoar, Danish for `ilovemother. VincentDecl. 8; Incident Report, Dkt. No. 29-2.On the drive, shefound what she described as hundreds of images of minors engaged in sexualacts or exposing themselves in a sexual manner. First Search Warrant 4. Thefolders containing the pictures were `buried deep within other folder groups,and were categorized by name and ethnicity. SeeIncident Report. Ms. Wolff estimated that `the femalechildren in the images ranged in age from 8 to 14 years old, although most of themwere age 8 to 10 years old. First Search Warrant 4. On the evening ofSeptember 24, 2014, she turned the drive over to Officer Vincent. Id.5; Incident Report; Vincent Decl. 10.On September 25, 2014, Sergeant AndrewTucker of UCPD prepared a search warrant affidavit recounting these facts andseeking judicial permission to search the drive. See First SearchWarrant. Judge Tara Desautels of the Alameda Superior Court issued the warrantthat afternoon.See id. After the warrant was issued, UCPD sent thehard drive to a crime lab for testing.SeeDeclaration ofAndrew Tucker (`Tucker Decl.) 8, Dkt. No. 28; Sept. 30, 2014, Search Warrantand Affidavit (`Second Search Warrant) 6, Dkt. No. 28-2. That same day,Officer Vincent went back to Ms. Wolff’s apartment, where she gave him twolaptops, a tablet, a digital camcorder, two cell phones, and six thumb drives.Vincent Decl. 14.U.S. v. Wolff, supra. (Dkt. Is an abbreviation referring to thecourts docket.)The opinion goes on to explain that, onSeptember 30, 2014, Sergeant Tuckerprepared a second search warrant affidavit, seeking judicial permission tosearch the newly acquired electronic devices.SeeSecondSearch Warrant. The affidavit contained allegations almost identical to theones submitted on September 25 and a new paragraph describing the generalcharacteristics of pedophiles `[b]ased on [his] training and experience. Seeid. 8. Judge Desautels signed the warrant the same day,seeSecondSearch Warrant, and Sergeant Tucker submitted the additional electronics to thecrime lab.The crime lab analysis revealed 93,158images of suspected child pornography on Wolff’s hard drive, among otherfindings. Dkt. Nos. 28-5, 28-6. The government filed an indictment on December18, 2014, charging Mr. Wolff with one count of possession of child pornographyin violation of18 U.S. Code 2252(a)(4)(B). SeeDkt. No. 1.On February 19, 2015, the government filed a superseding indictment, allegingcounts for possession,18 U.S. Code 2252(a)(4)(B), and receipt,18U.S. Code 2252(a)(2), of child pornography.SeeDkt. No. 14.U.S. v. Wolff, supra. You can read about the statutes under which Wolff was charged here.You can read more about the facts and thecharges in the case in the news story you can find here and the press releaseyou can find here. The District Court Judge then explained that Wolffchallenges both the government’s initial acquisition of his electronic devicesand the lawfulness of the two state warrants that the government obtained tosearch them. U.S. v. Wolff, supra. Heanalyzed each issue, in this order. U.S. v. Wolff, supra. Wolffs first argument was that the governmentcould not accept his electronic devicesfrom Ms. Wolff without a warrant. Although he concedes that his wife turned thedevices over voluntarily and without coercion,seeHearing Tr.at 16:4-5, Dkt. No. 37, he nevertheless contends that the government’s actionsconstituted a warrantless seizure that does not fall within a recognized Fourth Amendment exception.U.S. v. Wolff, supra. The judge went on to explain that [a]s an initial matter, Wolff’sargument that the government’s acceptance of the devices constitutes a FourthAmendment seizure of any kindlet alone an unlawful oneis ill taken. The NinthCircuit has held that `evidence discovered in a private search is not subjectto exclusion for failure to obtain a search warrant or otherwise comply withthe requirements of the [F]ourth [A]mendment because `the [F]ourth [A]mendmentprotects against unreasonable intrusions by the government, but not against theconduct of private individuals. U.S. v. Sherwin, 539 F.2d 1, 5-6 (U.S.Court of Appeals for the 9th Circuit 1976);see also U.S. v. Tosti,733 F.3d 816, 821 (U.S. Court of Appeals for the 9th Circuit 2013)(`TheFourth Amendment’s proscriptions on searches and seizures are inapplicable toprivate action). Wolff contends thatSherwin isoutdated and was implicitly overruled inU.S. v. Jacobsen, 466 U.S.109 (1984), which held that receipt by Drug Enforcement Agency officers of asuspicious package found by Federal Express employees was a seizure.Jacobsen,supra. . . . (`theagents’ assertion of dominion and control over the package and its contents didconstitute a seizure. . . .). The problem with this argument is that a year afterJacobsen, the Ninth CircuitcitedSherwinto reiterate that `[t]he government’s acceptanceof documents obtained in a private search and voluntarily relinquished togovernment agents does not constitute a seizure. . . . U.S. v. Black,767 F.2d 1334, 1340 n.4 (U.S. Court of Appeals for the 9th Circuit 1985). Whilethe Court may not be bound by circuit precedent when there is an interveningand clearly irreconcilable Supreme Court opinion,see Miller v. Gammie,335 F.3d 889, 893 (U.S. Court of Appeals for the 9th Circuit 2003)(enbanc), Wolff has not shown thatJacobsenamounts to a seachange in precedent, and he also fails to point to any authority for the notionthat this Court can refuse to follow a precedential Ninth Circuit opinion basedon a Supreme Court decision that predates it.U.S. v. Wolff, supra.The judge went on to explain that Wolff’s argument also fails on specificsubstantive grounds.U.S. v. Jacobsenaffirmed the propositionthat the Fourth Amendment `is wholly inapplicable to a search or seizure, evenan unreasonable one, effected by a private individual not acting as an agent ofthe Government or with the participation or knowledge of any governmental official.official. U.S. v. Jacobsen, 466 U.S. at 113(quotingWalterv. U.S., 447 U.S. 649 (1980)). Contrary to Wolff’s suggestion,Jacobsenclearlypermitted the UCPD’s warrantless acceptance of the electronic devices from Ms.Wolff. The case holds that the lawfulness of a government search subsequent toa private search `must be tested by the degree to which [the government]exceeded the scope of the private search. SeeU.S. v. Jacobsen, supra. As Mr. Wolff concedes, the governmentdid not search within the external hard drive or electronics prior to obtaininga warrant.. . . There was no government search at all that mightexceed the scope of Ms. Wolff’s private search. Nor was the warrantless seizureof the devices, even assuming it was a seizure, unreasonable. AsJacobsenfound,the government agents may have `seized the narcotics package, but since it `remainedunsealed, and the Federal Express employees had invited the agents to examineits contents, the `seizure was not unreasonable.U.S. v. Jacobsen, supra. U.S. v. Wolff, supra.The District Court Judge went on to point out that Wolff cites no case to the contrary.InU.S. v. Tosti, 733 F.3d 814 (2013), the Ninth Circuit upheld twopolice searches, neither of which is analogous to the government’s allegedseizure here. The first took place in 2005, when Tosti gave his computer to aCompUSA store for servicing, and an employee found child pornography onit.See U.S. v. Tosti, supra. Police detectives arrived on the scene andviewed both thumbnails and full-sized versions of the same images the employeehad seen.See U.S. v. Tosti, supra. Based on what they saw, thedetectives seized Tosti’s computer.See id. The court of appeals upheld the searchunder the private search exception, without addressing the detectives’ seizureof the computer. See U.S. v. Tosti, supra. The second search took placein 2009, after Tosti’s wife turned over various electronic devices from theirshared residence to the police and signed a `Consent to Search form purportingto allow the government to search the items she had turned over.SeeU.S. v. Tosti, supra.The Ninth Circuit opinion examined onlythe search of the devices, not their seizure.See U.S. v. Tosti,supra. Nothing in the opinionaddresses, much less finds unlawful, a challenged seizure.The other cases Wolff cites are equallyinapposite. InU.S. v. Trejo, police officers physically went tothe defendant’s home, seized his computers based on permission from hisparents, who lived in the same house, and searched the devices without awarrant.See 471 Fed.Appx. 442 (U.S. Court of Appeals for the 6th Circuit 2012). . . . Trejoaddressed the constitutionality of boththe search and seizure together, and does not touch on the issue at hand: theconstitutionality of a warrantless seizure accompanied by a search conductedpursuant to a warrant.See U.S. v. Trejo, supra. The same is trueof the three-paragraph memorandum disposition inU.S. v. Thomas,302 Fed.Appx. 558 (U.S. Court of Appeals for the 9th Circuit 2008),and the unpublished district court opinion inU.S. v. Smith, 2010WL 1949364, at *6-7 (U.S. District Court for the District of Arizona Apr. 19,2010).U.S. v. Wolff, supra.The judge then took up Wolffs second argument, that theAlameda County Superior Court erred in finding probable cause and issuingsearch warrants to search his electronics based on the affidavits submitted bythe police. U.S. v. Wolff, supra. (To obtain a search warrant, a state or federal lawenforcement officer must submit an application for the warrant and affidavitsthat establish facts which show there is probable cause for the issuance, andexecution, of the warrant. You can see asearch warrant and an affidavit here.)The judge then went on to explain that`[a] court evaluating theconstitutionality of a search conducted pursuant to a search warrant issued bya magistrate reviews the magistrate’s probable cause determination for clearerror. U.S. v. Nguyen, 673 F.3d 1259 (U.S. Court of Appeals for the 9thCircuit 2012). The reviewing court’s duty is to ensure the magistrate had a`substantial basis for . . . conclud[ing] probable cause existed.Jonesv. U.S., 362 U.S. 257 (1960),overruled on other grounds by U.S. v.Salvucci, 448 U.S. 83 (1980). `Probable cause exists when, considering thetotality of the circumstances, the affidavit shows that there is a fairprobability that contraband or evidence of a crime will be found in aparticular place. U.S. v. Fernandez, 388 F.3d 1199 (U.S. Court ofAppeals for the 9th Circuit 2004) 2004)(internal quotation marksomitted).U.S. v. Wolff, supra.The District Court Judge also noted that Wolffcontends that the statement in both affidavitsthat Ms. Wolff saw `hundreds of images of minors engaged in sexual acts orexposing themselves in a sexual manner does not amount to probable cause thatshe saw child pornography, because Ms. Wolff’s notion of sexual acts orexposure might conceivably include conduct that does not qualify as childpornography. It is certainly true, as Wolff points out, that child pornographyhas a specific legal definition. A photograph or video qualifies as childpornography if its production involved the use of a minor engaged in `sexuallyexplicit conduct, which means actual or simulated sexual intercourse,bestiality, masturbation, sadistic or masochistic abuse, or lasciviousexhibition of the genitals or pubic area.See 18 U.S. Code 2256(2)(A)(i)-(v),(8)(A).U.S. v. Wolff, supra. He also explained that Wolff’s argument goes too far. Anaffidavit does not fail to pass muster just because it does not exhaustivelydetail how the photos and videos fit into one of the statutory categories. Onmultiple occasions, the Ninth Circuit has found descriptions of the sort atissue here adequate to uphold a magistrate’s issuance of a warrant.InU.S. v. Smith, 795 F.2d841 (U.S. Court of Appeals for the 9th Circuit 1986), for example,the court upheld a warrant based on an affidavit that was considerably moreconclusory than the ones here. In Smith, the court primarily relied onan affidavit from an `experienced postal inspector stating that he had seenphotos from the defendant depicting `three juvenile girls engaged in explicitsexual conduct along with a citation to18 U.S. Code 2255in otherwords, the language of the statute itself, with no further factual descriptionof what the photos depicted.See U.S. v. Smith, supra. Although thecourt said that `more specific descriptions of the photographs would have beendesirable and expressed some unease with the fact `that the government did notpresent and the magistrate did not see the photos in question before the warrantissued, it upheld the warrant.U.S. v. Smith, supra. The affidavit in Smithalsoincluded a statement by a pediatrician that the girls depicted were undereighteen, the defendant’s admission that he took the pictures and `would justhave to take more if the photos were not returned to him, and statements bytwo of the girls that they had posed for the photos and that the defendant kepta `whip-like device at his residence, but contained no further factualdescription of the photos sufficient to show that it fell into one of thestatutory categories.U.S. v. Smith, supra. Wolff’s suggestion that Court disregardthe adequacy of the words `explicit sexual conduct inSmithtofind the words `sexual acts deficient in this case draws too nice a distinction.U.S. v. Wolff, supra. The judge then noted that [e]ven more squarely on point isU.S.v. Patrick, 365 Fed.Appx. 834 (U.S. Court of Appeals for the 9th Circuit 2010)(unpublished). The Ninth Circuit upheld the sufficiency of an affidavitrecounting that a lay computer technician had informed the affiant that he hadseen`pornographic pictures of children involved in sexual acts on thedefendant’s computer. U.S. v. Smith, supra. The court emphasized thatthe technician was not anonymous and that there were no inconsistencies in thetechnician’s report or evidence of any motive to lie, all of which is true inthis case as well.See U.S. v. Smith, supra. Indeed, the facts hereare even more supportive of probable cause, since the source of the informationwas Wolff’s wife, not a stranger.See also U.S. v. Battershell, 457F.3d 1048 (U.S. Court of Appeals for the 9th Circuit 2006)(factthat a witness was `turning in her boyfriend . . .enhances the credibility ofher statement).U.S. v. Smith, supra.But he also explainedthat Wolff says Patrickis anon-published disposition that is not binding on this Court. That is true, butthe fact that the Court is not obligated to follow it does not preclude theCourt from finding it to be persuasive, which it does. At the very least,Patrickprecludessuppression based on the good-faith exception to the exclusionary rule. `Goodfaith reliance exists if the agents’ affidavit establishes at least a colorableargument for probable cause, and the agents relied on the search warrant in anobjectively reasonable manner. U.S. v. Shi, 525 F.3d 709 (U.S. Court ofAppeals for the 9th Circuit 2008). Even if the Court were inclined to find that the affidavit, as written, did not amount to probable causeand it is not soinclinedthe fact thatPatrickupheld the sufficiency of anaffidavit with virtually identical languageis at least evidence that anyissues associated with the affidavits are `sufficient to create disagreementamong thoughtful and competent judges as to the existence of probable cause,warranting application of the good-faith exception.See U.S. v. Leon, 468 U.S. 897 (1984).U.S. v. Smith, supra.The District CourtJudge went on to explain that, [t]ellingly, Wolff cites no case wherean affidavit like the one at issue here was found inadequate. The in-circuitcases he cites where an affidavit’s description of photographs was foundinadequate to support probable cause involved situations where the plainlanguage of the affidavit unambiguously included subject matter that was notcovered by the statute, rather than an allegedly imprecise term that someone,somewhere might conceivably understand to include lawful photographs. SeeU.S. Battershell, 457 F.3d 1048 (U.S. Court of Appeals for the 9thCircuit 2006)(description of a photograph as `a young female (8-10 YOA)naked in a bathtub did not indicate whether there was `lascivious exhibitionof the genitals or pubic area as required by the statute);U.S. v. Busby,2011 WL 6303367 (U.S. District Court for the Northern District of California 2011)(suppressingevidence where affidavit described models as `female, mid to late teensbecause that description `necessarily includes individuals who are 18 and 19years-old). A description does not fail to provide probable cause just becausea defendant can hypothesize an innocent reading of it. To hold otherwise wouldeffectively impose a rote requirement on affiants and witnesses to parrot thelanguage of the statute. It is difficult to imagine a rule more out of stepwith the Supreme Court’s repeated descriptions of probable cause as `a fluidconcept that admits of a `practical, nontechnical conception rather than`[r]igid legal rules.Illinois v. Gates, 462 U.S. 213 (1983);seealso Maryland v. Pringle, 540 U.S. 366 (2003).U.S. v. Smith, supra.The judge thennoted that Wolffalsostresses the fact that the affidavit in this case was based on the words anddescriptions of layperson, his wife. Courts have certainly held that the factthat an affiant has some experience with child pornography can give added heftto an identification. See, e.g., U.S. v. Krupa, 658 F.3d 1174 (U.S.Court of Appeals for the 9th Circuit 2011). And non-expert declarations,unaccompanied by copies of the illegal photographs, have been found to beadequate in many cases.See U.S. v. Hill, 459 F.3d 966 (U.S. Courtof Appeals for the 9th Circuit 2006) (relying on an affidavit from acomputer technician); Patrick, 365 Fed.Appx. at 836-37(same). Presumingthat an affidavit based on a lay description is inadequate, as defendant seemsto urge, is impossible to square withU.S. v. Battershell’s holdingthat `[a]ny rational adult person can recognize sexually explicit conductengaged in by children under the age of 16 when he sees it and that `we haveaccepted, for purposes of an affidavit in support of a search warrant, theconclusory age estimates made by civilians and other untrained lay witnesseswithout demanding a detailed explanation of how the witnesses reached thatconclusion. U.S. v. Battershell, supra (quotingU.S. v. Hurt,808 F.2d 707 (U.S. Court of Appeals for the 9th Circuit 1987)). Itwould also cripple investigatory efforts in cases like this one, where theimages were discovered by a private individual on a hard drive. Law enforcementwould be forced to try to repeat exactly the private search, a course of actionfraught with its own potential constitutional pitfalls, as evidenced by thefact that there is presently a circuit split about how far reconstructedsearches of hard drives and computers can go.Compare U.S. v. Lichtenberger,786 F.3d 478 (U.S. Court of Appeals for the 6th Circuit 2015)(holding thatpolice officer exceeded scope of private search where there was no `virtualcertainty that the files he viewed were the same ones the private individualpreviously viewed on the same computer)with Rann v. Atchison, 689F.3d 832 (U.S. Court of Appeals for the 7th Circuit 2012) (permitting police toview images on digital media device where private individual had previouslyviewed other images on same device)and U.S. v. Runyan, 275 F.3d449, 464-65 (U.S. Court of Appeals for the 5th Circuit 2001)(holding that the police do not exceed privatesearch where they examine more files on a drive than the private searcher did).Consequently,the Court will not disturb the state court judge’s issuance of the two warrantsin this case. Additionally, the Court finds that excluding the fruits of thesearches conducted pursuant to the warrants would not be appropriate, since thegood faith exception would apply even if the affidavits did not make out ashowing of probable cause.U.S. v. Smith, supra.

The judge thereforedenied Smiths motion to suppress. U.S.v. Smith, supra.

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