United States v. Micah J. Gourde

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: 1 The term "Lolita" conjures up images ranging from the literary depiction of the adolescent seduced by her stepfather in Vladimir Nabokov's novel 1 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…

The term “Lolita” conjures up images ranging from the literary depiction of the adolescent seduced by her stepfather in Vladimir Nabokov’s novel 1 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 “Lolita-gurls.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 indi-cia 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.

*1067 BACKGROUND

I. THE AFFIDAVIT "

In May 2002, the FBI requested a…

dissenting:

In this age of increasing government surveillance, lawful and unlawful, and of the retention of all our deeds and thoughts on computers long after we may believe they have been removed, it is important that courts not grow lax in their duty to protect our right to privacy and that they remain vigilant against efforts to weaken our Fourth Amendment protections. It is easy for courts to lose sight of these objectives when the government seeks to obtain evidence of child pornography or narcotics violations. Here, I believe, our court is making an unfortunate error. Let me be clear — no one is suggesting “fly-specking” this case. What is needed instead is a sensitivity to constitutional principles.

The government purports to apply the “totality of the circumstances” test when assessing whether there was a “fair probability” that Gourde possessed illegal images on his computer at the time the warrant was issued. In reaching its conclusion that a fair probability did exist, the majority ignores a critical circumstance: At the time the government sought the warrant, it possessed direct evidence that established whether Gourde *1075 in fact had or had not downloaded illegal…

dissenting:

I respectfully dissent. The careful decision by the panel 1 was correct and should be left alone. There was no probable cause because there was no evidence that Gourde had downloaded any child pornography.

Is the holding of the majority opinion that if a person has subscribed to a site that has legal and illegal material, that suffices as probable cause for a search warrant? That if a person has paid money to look at material that is illegal to possess, he probably possesses it? If the holding is narrower than these formulations, everyone’s computer would be safer were the narrowing restrictions made clear. If it is not, the majority opinion is dangerous to everyone’s privacy. In my view, the majority errs in concluding that there was probable cause for a search because its inferences depend on unarticu-lated assumptions that do not make sense. The majority implicitly assumes that a person who likes something probably possesses it, even if possession is against the law.

The importance of this case is considerable because, for most people, their computers are their most private spaces. People commonly talk about the bedroom as a very private space, yet when they have…