United States v. Micah J. Gourde

Appellant Micah Gourde entered a conditional guilty plea to one count of possession of visual depictions of minors engaged in sexually explicit conduct in violation of 18 U.S.C. §§ 2252 (a)(4)(B) and (b)(2) and 2256. As stated in the plea agreement, Gourde admitted possessing more than 100 images of child pornography on his home computer; however, Gourde conditioned his guilty plea on his right to appeal the district court’s denial of his motion to suppress the images seized from his computer. He asserts that the affidavit in support of the search lacked sufficient indicia of probable cause because it contained no evidence that Gourde actually downloaded or otherwise possessed child pornography; moreover, he contends that the officers acted objectively unreasonable in relying on the allegedly unlawful warrant. We agree and reverse.

I. Background

a. Facts

In August 2001, an FBI agent, acting in an undercover capacity, discovered a website called, “Lolitagurls.com,” which described itself on its homepage as follows:

This page also contained several images of nude and partially dressed young girls.

The visitor to the website was then directed to a second page, where the…

concurring:

I concur in Judge Brunetti’s excellent opinion, the logic of which is required by our precedent in United States v. Hay, 231 F.3d 630 (9th Cir.2000), United States v. Lacy, 119 F.3d 742 (9th Cir.1997), and United States v. Weber, 923 F.2d 1338, 1342 (9th Cir.1991). I agree with the panel opinion’s persuasive application of this precedent. However, were I to examine anew the issue whether law enforcement officials had probable cause to search Gourde’s room and home computer for downloaded images of child pornography, and were I free to look only at first principles and Supreme Court precedent, I would be more inclined to decide that there was probable cause for this search made upon a warrant.

Gourde took affirmative steps to subscribe for a $19.95 fee to a website whose name—“lolitagurls.com”—suggests its prurient focus on young girls. The site boasts of access to “hard to find pics” of “preteen girls,” and brags that it contains “over one thousand pictures of girls ages 12-17!” It is possible that Gourde subscribed to the “mixed” site solely because it hosted some legitimate adult content. But I doubt it. The evidence collected by law enforcement officers, and…

382 F.3d 1003 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. Filed September 2, 2004. Janet L. Freeman, Assistant United States Attorney, Seattle, WA, for the appellee. Colin Fieman, Federal Public Defender's Office, Tacoma, WA, for the appellant. 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: BRUNETTI, McKEOWN, and GOULD, Circuit Judges. BRUNETTI, Circuit Judge: 1 Appellant Micah Gourde entered a conditional guilty plea to one count of possession of visual depictions of minors engaged in sexually explicit conduct in violation of 18 U.S.C. §§ 2252 (a)(4)(B) and (b)(2) and 2256. As stated in the plea agreement, Gourde admitted possessing more than 100 images of child pornography on his home computer; however, Gourde conditioned his guilty plea on his right to appeal the district court's denial of his motion to suppress the images seized from his computer. He asserts that the affidavit in support of the search lacked…