Pena

MEMORANDUM *

Defendant-Appellant Juan Pena challenges the district court’s denial of his motion to suppress evidence of child pornography obtained pursuant to a search warrant for his home and personal computer. This evidence led to a conditional plea of guilty to distribution and receipt of child pornography under 18 U.S.C. § 2252A(a)(2)(A). We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

The search warrant for Pena’s home and computer was supported by affidavits from two investigating police officers, Officer Chad Detterman and Officer Tim Bardwell. As set forth in his affidavit, Detterman was conducting an on-line child pornography investigation posing as a fourteen-year-old girl. That investigation led him to a chat room titled “preten89101112,” where he solicited electronic correspondence from other members in the chat room. In response to that solicitation, Pena (operating under the screen name “Ucandoitagain”) emailed Detterman several sexually explicit photographs of what appeared to be teenage and preteen girls. In his affidavit, Detterman estimated that the females depicted were between the ages of ten and fourteen. After determining that the…

dissenting:

I respectfully dissent.

Considering just how intrusive a computer search and seizure is for all sorts of information unrelated to crime, great care is needed in evaluating whether there is probable cause. 1 I do not think that the *578 search warrant affidavits of the Washington and Ohio police officers established a “fair probability” sufficient for probable cause. 2 Although that standard is lower than “certainty or even a preponderance of evidence,” it is higher than the mere suspicion that would be required for a Terry stop. 3

The pictures at issue were not shown to the magistrate who issued the search warrant, so all he had were the affidavits of the Ohio police officer and the Washington police officer. The Ohio police officer described the four females pictured as being “approximately fourteen,” “approximately fourteen,” “approximately ten or eleven,” and “approximately ten to twelve.” The Washington police officer wrote that “the ages of the females are difficult to estimate,” but “the females did appear to be minors,” which would mean under eighteen. Without seeing the pictures, I do not see how the magistrate could accept the two affidavits as establishing…