United States v. Kenneth Kelley

482 F.3d 1047 UNITED STATES of America, Plaintiff-Appellant, v. Kenneth KELLEY, Defendant-Appellee. No. 05-10547. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 20, 2006. Filed March 1, 2007. Amended April 9, 2007. Amber S. Rosen, Assistant United States Attorney, San Jose, CA, for the plaintiff-appellant. Elizabeth M. Falk, Assistant Federal Public Defender, San Francisco, CA, for the defendant-appellee. Appeal from the United States District Court for the Northern District of California; Phyllis J. Hamilton, District Judge, Presiding. D.C. No. CR-05-00125-PJH. Before SANDRA DAY O'CONNOR, Associate Justice (Ret.), * PAMELA ANN RYMER, and SIDNEY R. THOMAS, Circuit Judges. ORDER AMENDING OPINION AND GRANTING APPELLANT'S MOTION FOR CLARIFICATION AND AMENDED OPINION RYMER, Circuit Judge. ORDER 1 The opinion in this case, which appears at slip op. 2285, 2007 WL 610974 1 (9th Cir. March 1, 2007), is hereby amended as follows: the first paragraph of section III beginning at slip op. 2293, 2007 WL 610974 is hereby amended to read: "Kelley argues, and the government does not seriously dispute, that unwitting receipt of e-mail containing contraband will not…

dissenting:

Each day, billions of unsolicited email messages are sent over the Internet. 1 These unwanted emails, popularly termed “spam,” 2 often carry commercial messages. Many of the commercial messages are dubious in nature and origin, and a substantial proportion consists of pornographic *1056 images or links to pornographic websites. Spam may also contain child pornography or links to illegal websites containing child pornography. 3 The true content of these messages is often disguised. As the United States Senate Committee on Commerce, Science, and Transportation noted:

United States Senate Committee on Commerce, Science, and Transportation, CANSPAM Act of 2003, S. Rep. 108-102, p. 4 (July 16, 2003).

Despite the enormous volume of unsolicited pornographic emails sent every day, with the true content concealed from the recipient, the majority holds that the mere transmission of unsolicited pornographic emails creates probable cause to search the entire house of the email recipient. Because I respectfully disagree with this conclusion, and because it conflicts with our precedent, I would affirm the well-reasoned judgment of the district court that the warrant lacked…

ORDER AMENDING OPINION AND GRANTING APPELLANT’S MOTION FOR CLARIFICATION AND AMENDED OPINION

ORDER

The opinion in this case, which appears at slip op. 2285, 2007 WL 610974 1 (9th Cir. March 1, 2007), is hereby amended as follows: the first paragraph of section III beginning at slip op. 2293, 2007 WL 610974 is hereby amended to read: “Kelley argues, and the government does not seriously dispute, that unwitting receipt of email containing contraband will not support probable cause. See 18 U.S.C. § 2252A(a)(2) (criminalizing the knowing receipt of child pornography); United States v. Romm, 455 F.3d 990, 998 (9th Cir.2006) (holding that a person receives child pornography if he seeks it out). The disagreement centers on whether the affidavit is sufficient even though it lacks direct evidence that Kelley actually solicited the offending attachments.”

Accordingly, the petition for clarification is GRANTED.

OPINION

Kenneth Kelley’s home computer was searched for images of child pornography pursuant to a warrant based on information discovered during two unrelated computer searches for child pornography, demonstrating that Kelley had received nine e-mails with attachments depicting…