The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER RE: DEFENDANT'S MEMORANDUM DECISION AND MOTION TO SUPPRESS EVIDENCE
This case is before the Court on Defendant's Motion to Suppress Evidence seized August 11, 2005 by Deputies of the Merced County Sheriff's Office pursuant to a search warrant issued by the Superior Court of California, County of Merced Judge on or about August 5, 2005. Defendants' computers were seized on August 11, 2005. The hard drives were forensically analyzed over the period August to September 23, 2005.
The search warrant was issued as the result of an investigation of Defendant based on an accusation by a juvenile female that the Defendant had shown her images of pornography on his computer. The Defendant also had allegedly attempted to take sexually explicit digital photographs of the minor female in the nude. The Defendant also was suspected of having sought to induce the 11 year old female, who was the daughter of his girlfriend, to view sexually explicit images on his computer. Defendant previously pled guilty to a violation of California Penal Code § 288.2, exhibiting harmful matter to a minor with the intent to seduce the minor. The events which form the bases for Defendant's conviction and the search warrant, occurred approximately twelve months prior to the August 5, 2005 issuance of the search warrant.
The detailed pornographic images described in the indictment were found on one of Defendant's computers seized pursuant to search warrant executed on August 11, 2005. The laptop computer, desktop computer, two external hard drives, zip disks, compact disk, and the evidence of Defendant's dominion and control of the premises and its contents, were all seized during that search.
A subsequent forensic analysis of the desktop computer revealed several images of the minor female victim, recovered from the computer hard drive, despite the computer user's attempt to delete them. Some photos depicted the victim posing with no shirt on, exposing her bare back, corroborating her previous description to law enforcement. There were also images of the 11 year old victim lying on the sofa with her clothes on, but with her legs spread. In one image, the victim had her legs spread and her hand down the front of her pants.
Forensic examination revealed on the same computer in unallocated or "slack" space (where the computer user had attempted to delete files but they had not yet been overwritten), which were recoverable with forensic software, images of one or more females who appeared to be approximately 14 years old in various stages of undress. Some images depicted a young girl completely nude showing her breasts and/or genital area. Additional numerous images were located under the location: /mypictures//preteen; which appeared to be child pornography. The approximately 60 images in this folder that depicted minors engaged in sexually explicit poses and/or in sexual acts with other minors or adults. Those images were accessed on dates ranging from June 16, 2005 to August 10, 2005. The folder had been created on December 27, 2002. Eighty-six (86) images of suspected child pornography were located in "slack space."
Additional evidence of child pornography files and how it was acquired were found on Defendant's computer. Twenty-seven (27) video files related to child pornography were found in a folder created December 27, 2002, last accessed on August 11, 2005. The peer-to-peer file-sharing program - Limewire was found on the computer in various folders associated with that program. Additional child pornography evidence was found on a Diamond Max 120 Gigabyte external hard drive seized at the Defendant's residence. The Defendant's guilty plea to the Penal Code § 288.2 charge was entered in July, 2008.
A. Affirmative Right to Challenge State Search Warrant
The government's argument that the Defendant's guilty plea to the 288.2 charge represents a break in the chain of events which preceded it in the criminal process and prevents him from raising independent claims related to deprivation of constitutional rights that occurred prior to the entry of the guilty plea, is not applicable. Tollett v. Henderson, 411 U.S. 258, 266 (1973).
As analyzed in open court, the defendant's "grooming" behavior and attempts to induce the minor to have exposure to sexual images and physical contact with him, provided probable cause for the issuance of the search warrant, for computer stored material related to the sexual exploitation of an 11 year old minor female. Whether or not the search warrant was supported by probable cause and properly executed, to the extent it is sought to provide the foundation for a separate crime, not charged by indictment in this court, does not defeat Defendant's standing to challenge the search in this separate federal prosecution.
B. Probable Cause for Issuance of the Search Warrant
The standard under Illinois v. Gates, 460 U.S. 213, 235 (1983) is that the evidence need only show the probability, not a prima facia showing, of criminal activity to justify issuance of the search warrant. The law requires that the evidence be sufficient to answer the "common sense, practical question whether there is 'probable cause' to believe that contraband or evidence is located in a particular place before issuing a search warrant." United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006). This ...