United States v. Kelley ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-10547
Plaintiff-Appellant, D.C. No.
v. CR-05-00125-PJH
KENNETH KELLEY, ORDER
Defendant-Appellee. AMENDING
 OPINION AND
GRANTING
APPELLANT’S
MOTION FOR
CLARIFICATION
AND AMENDED
 OPINION
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted
October 20, 2006—San Francisco, California
Filed March 1, 2007
Amended April 9, 2007
Before: Sandra Day O’Connor, Associate Justice (Ret.),*
Pamela Ann Rymer, and Sidney R. Thomas, Circuit Judges.
Opinion by Judge Rymer
*The Honorable Sandra Day O’Connor, Associate Justice of the United
States Supreme Court (Ret.), sitting by designation pursuant to 28 U.S.C.
§ 294(a).
3977
3980 UNITED STATES v. KELLEY
COUNSEL
Amber S. Rosen, Assistant United States Attorney, San Jose,
California, for the plaintiff-appellant.
Elizabeth M. Falk, Assistant Federal Public Defender, San
Francisco, California, for the defendant-appellee.
ORDER
The opinion in this case, which appears at slip op. 22851
(9th Cir. March 1, 2007), is hereby amended as follows: the
first paragraph of section III beginning at slip op. 2293 is
hereby amended to read: “Kelley argues, and the government
does not seriously dispute, that unwitting receipt of e-mail
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 por-
nography 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 attach-
ments.”
1
478 F.3d 1068 (9th Cir. 2007).
UNITED STATES v. KELLEY 3981
Accordingly, the petition for clarification is GRANTED.
OPINION
RYMER, Circuit Judge:
Kenneth Kelley’s home computer was searched for images
of child pornography pursuant to a warrant based on informa-
tion discovered during two unrelated computer searches for
child pornography, demonstrating that Kelley had received
nine e-mails with attachments depicting young boys in sexu-
ally explicit positions. He moved to suppress evidence
obtained in the search after he was indicted for possessing
child pornography in violation of 18 U.S.C. § 2252A(a)
(5)(B), and for receiving child pornography in violation of 18
U.S.C. § 2252A(a)(2). Granting the motion, the district court
found that probable cause was not established by proof of
receipt of e-mails absent direct evidence about those who had
sent them, Kelley’s connection with the persons who owned
the other computers on which e-mails to his screen name
appeared, or Kelley’s having reached out in some way for the
pornography attached to the transmissions. The government
appeals, arguing that the district court improperly applied a
bright-line rule for what is required to establish probable
cause in a case involving possession of child pornography,
whereas the totality of the circumstances, which it submits is
the proper test, allows the reasonable inference that Kelley
wanted to receive the offending e-mails.
Since the district court’s decision in this case, this court has
made clear that probable cause to search a computer for evi-
dence of child pornography turns on the totality of the circum-
stances, including reasonable inferences. United States v.
Gourde, 440 F.3d 1065, 1071 (9th Cir. 2006) (en banc). In
this case, there is a reasonable inference from facts set out in
the affidavit that Kelley was not an accidental recipient of e-
3982 UNITED STATES v. KELLEY
mails with attachments containing illicit child pornography.
As we conclude that it was fairly probable that child pornog-
raphy Kelley willingly received would be found on his com-
puter, we reverse.
I
Kelley’s account on America On Line (AOL) was searched
in December, 2004, and his home computer was searched in
February, 2005. This appeal concerns the February, 2005
search of his computer, but Kelley’s problems stem from an
investigation by German police officers into the activities of
a German citizen, Herman Mumenthaler, in 2002. Executing
a search warrant on November 11 of that year, they found 25
outgoing, and 450 incoming, e-mails on Mumenthaler’s com-
puters that contained child pornographic attachments.
“Gay1dude” was listed as a recipient on four of these e-mails
that had attachments depicting images of boys between the
ages of 8 and 14, including images of masturbation and oral
copulation between two minor males. It was confirmed
that “Gay1dude” was a screen name that Kenneth Michael
Kelley used for his e-mail account on AOL. He also used
other screen names, including “KKEL924,” “Mickeydice,”
“Rockenwry,” “Sirfreelancalot,” “Coppalozoeetrope,”
“HIGH5JIVELIVE,” and “K MICHAEL KELLEY.” Acting
on this information, American authorities sought, and
obtained, a warrant that was issued on December 2, 2004 to
search the content of Kelley’s AOL account. This search
revealed 500 images of child pornography that Kelley sent or
received, consisting primarily of prepubescent males in sexu-
ally explicit poses. Kelley’s motion to suppress evidence
obtained in this search was granted June 17, 2005, and that
ruling has not been appealed.
Meanwhile, on February 9, 2005, the government applied
for a second warrant to search Kelley’s residence, including
his computer, for child pornography. The affidavit in support
was made by a Special Agent with the United States Depart-
UNITED STATES v. KELLEY 3983
ment of Homeland Security, United States Immigration and
Customs Enforcement (ICE), assigned to the office of the
Special Agent in Charge, San Francisco, California. It
describes the German child pornography investigation involv-
ing Mumenthaler, and summarizes the contents of Kelley’s
AOL account from the December 2, 2004 search. The affida-
vit also relates details of a separate child pornography traf-
ficking investigation that originated in Wichita, Kansas,
involving Ronald D. Hutchings. According to the affidavit, on
September 10, 2004, ICE agents served a search warrant on
AOL for Hutchings’s e-mail accounts which turned up evi-
dence that Kelley, using the screen name “K MICHAEL
KELLEY,” and Hutchings, using the screen name “Young-
bottom16,” each received five e-mails with 38 attachments
from an individual using the screen name “Badatt178” on
August 10 and 15, 2004. Of the 38 attachments, 36 were
image files (JPEGs) and two were movie files (MPEGs). The
JPEGs included images of boys approximately 10-15 years of
age in sexually explicit positions, including erect penises,
masturbation, oral copulation between young males and anal
intercourse between young and adult males. One MPEG
depicts a young boy about four years old engaged in inter-
course with an adult male while the other depicts a young girl
about six being forced to perform oral sex on an adult male.
In addition, the affidavit generally describes how computer
connections to the Internet, and e-mail, work. Based on his
training and experience, the affiant avers that persons whose
sexual objects are minors collect sexually explicit material for
their own sexual gratification and fantasy; that they tend to
possess and trade this material in a clandestine manner; and
that they often assemble lists or addresses of persons with
similar sexual interests that may have been generated by per-
sonal contact or through advertisements in various publica-
tions. The affidavit further states that such persons almost
always maintain their material at home or some other secure
location where it is readily available, and rarely, if ever, dis-
pose of the collection. Finally, the affidavit explains that the
3984 UNITED STATES v. KELLEY
computer has become one of the preferred methods of distri-
bution of pornographic materials.
A magistrate judge authorized the warrant on February 19,
2005. Forensic examination of Kelley’s computer turned up
numerous images of child pornography, in both picture and
movie formats, depicting young boys engaged in sexual acts
with adult males.
Kelley again moved to suppress, maintaining that the affi-
davit accompanying the February 9, 2005 application, without
the evidence seized from his AOL account pursuant to the
December 2, 2004 warrant, failed to establish probable cause.
Although finding it a close call, the district court agreed. The
court reasoned that the excised affidavit did not explain how
or where the e-mails, originating from unidentified sources,
ended up on the computers of two traffickers. It observed that
no volitional act is required by the owner of an e-mail account
for that account to receive e-mails, and conversely that it is
almost impossible to prevent someone else from sending
unwanted e-mail. Therefore, the court held, something more
than proof of receipt or opening an e-mail is required to estab-
lish probable cause that the recipient is in actual possession of
contraband contained in an e-mail attachment. As it was
unable to conclude that there was a direct connection between
Kelley and known traffickers, and evidence of his intent, or
solicition, or actual opening of the attachments was critical,
but missing, the court granted Kelley’s motion to suppress.
The government timely appeals from this order.
II
The standards for determining probable cause for a search
were spelled out in Illinois v. Gates, 462 U.S. 213 (1983), and
apply with equal force to cases involving child pornography
on a computer. United States v. Gourde, 440 F.3d 1064, 1069
(9th Cir. 2006) (en banc). Thus, probable cause means a “fair
UNITED STATES v. KELLEY 3985
probability” that contraband or evidence is located in a partic-
ular place. Gates, 462 U.S. at 246; Gourde, 440 F.3d at 1069.
Whether there is a fair probability depends upon the totality
of the circumstances, including reasonable inferences, and is
a “commonsense, practical question.” Gourde, 440 F.3d at
1069 (citing and quoting Gates, 462 U.S. at 230, 246). Nei-
ther certainty nor a preponderance of the evidence is required.
Id. (citing Gates, 462 U.S. at 246).
Normally, we do not “flyspeck” the affidavit supporting a
search warrant through de novo review; rather, the magistrate
judge’s determination “ ‘should be paid great deference.’ ”
Gourde, 440 F.3d at 1069 (quoting Gates, 462 U.S. at 236
(quoting Spinelli v. United States, 393 U.S. 410, 419 (1969))).
In addition, the Supreme Court has reminded reviewing courts
that “[a]lthough in a particular case it may not be easy to
determine when an affidavit demonstrates the existence of
probable cause, resolution of doubtful or marginal cases in
this area should largely be determined by the preference to be
accorded to warrants.” Gates, 462 U.S. at 237 n.10 (quoting
United States v. Ventresca, 380 U.S. 102, 109 (1965).
This case presents an unusual situation because a portion of
the affidavit was redacted by the district court. The propriety
of the redaction is unchallenged. Other circuits have con-
cluded that review of the sufficiency of an excised affidavit
cannot be deferential. See, e.g., United States v. Elkins, 300
F.3d 638, 651 (6th Cir. 2002); United States v. Kolodziej, 712
F.2d 975, 977 (5th Cir. 1983). We agree that this limited
exception to the “great deference” rule makes sense, for the
magistrate’s judgment would have been based on facts that
are no longer on the table. In this case, the paragraph that was
purged recites powerful evidence seized from Kelley’s AOL
account that cannot be factored into the probable cause calcu-
lus. We have no way of telling the extent to which the excised
portion influenced the magistrate judge’s determination.
Therefore, we will review his determination without particular
deference. The ultimate question remains whether there is a
3986 UNITED STATES v. KELLEY
substantial basis for concluding that the search would likely
uncover evidence of wrongdoing. See Gates, 462 U.S. at 236;
see also United States v. Bishop, 264 F.3d 919, 924 (9th Cir.
2001) (noting that once an affidavit is purged of illegally
obtained information, the court determines whether the
remaining facts still afford a substantial basis for concluding
that the search warrant was supported by probable cause).
III
Kelley argues, and the government does not seriously dis-
pute, that unwitting receipt of e-mail 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.
[1] The government maintains that the totality of the cir-
cumstances allows the reasonable inference that Kelley
wanted the offending e-mails, even though there was no direct
evidence that he solicited them, because he was sent multiple
e-mails with sexually explicit images of children, he was
linked to two individuals known to possess or receive child
pornography, the child pornography was of the same type and
this shows Kelley’s interest, the type of child pornography
Kelley was sent is not the kind of material likely to be
received by unwitting recipients, and he received the contra-
band on different occasions at two different screen names.
Kelley, on the other hand, points out that there was no evi-
dence about who sent the small number of e-mails or when
some of them were sent; or that he solicited, desired, opened,
or even received them as the e-mails could have been bounced
back by a spam blocker; or that connects him to the offender
typology; or that corroborates any interest or intent on his part
to obtain or possess child pornography. Therefore, he submits,
UNITED STATES v. KELLEY 3987
the inferences drawn by the district court about personal e-
mail are reasonable, whereas the inferences urged by the gov-
ernment are both unsupported in the affidavit and contrary to
other reasonable inferences that the court could draw based on
its practical experience and common sense.
[2] Recently sitting en banc in Gourde, we made clear that
probable cause to search a computer for child pornography is
determined under the “totality of the circumstances test” rein-
stated by Gates. Accordingly, “a probable cause determina-
tion may be based in part on reasonable inferences.” Gourde,
440 F.3d at 1071. This means, as Gourde illustrates, that it
can be “fairly probable” that images of child pornography
would be found on Kelley’s computer without concrete evi-
dence that Kelley actually solicited the e-mails if it appears
likely that he did from the facts averred in the affidavit and
reasonable inferences drawn from them.
Gourde involved a warrant to search a computer for child
pornography in the context of an internet website that dis-
played child pornography. Gourde had joined the website.
The affidavit established that the website, “Lolitagurls.com,”
contained illegal content; Gourde subscribed to “Lolitagurls-
.com,” by paying for a membership; membership gave him
unlimited access to illegal images; and he remained a member
for two months (until the FBI shut down the site). These facts
indicated that Gourde intended to have and wanted to have
access to illegal images on the site. There were no facts, how-
ever, showing that Gourde had actually received or down-
loaded images. He argued that a search warrant for child
pornography may issue only if the government provides con-
crete evidence, without relying on any inferences, that he
actually received or possessed offending images. This court
rejected this argument. Id. at 1074. Instead, this court found
that it was not illogical or contrary to common sense to con-
clude from Gourde’s having paid for access to the website for
two months that he probably had viewed or downloaded such
3988 UNITED STATES v. KELLEY
images onto his computer. Hence, the warrant was supported
by probable cause.
The circumstances in Gourde are different from the circum-
stances in this case, and easier to resolve in favor of the war-
rant, because Gourde took the affirmative steps of obtaining
and paying for a membership to access illegal images which
Kelley did not do. Gourde’s intentional steps to become a
member of the website were the facts supporting the inference
that he viewed or downloaded illicit images. It does not fol-
low from the absence of such facts in Kelley’s case that the
affidavit fails the probable cause test. Rather, the question is
whether there is some other set of facts that supports the same
kind of inference — that he knowingly received the e-mail
attachments.
It is undisputed that Kelley was the subscriber for AOL
screen names “Gay1dude” and “K MICHAEL KELLEY,”
among others. Kelley’s account with AOL, which he opened
in 1999, was active, with a listed address of a P.O. Box in San
Francisco, California. Kelley provided a phone number and
credit card for the account. Twenty-five outgoing e-mails and
450 incoming e-mails found on computers at the residence of
Herbert Mumenthaler in Düsseldorf, Germany, contained
child pornographic attachments. This indicates that Mumen-
thaler was a trafficker in child pornography. Kelley’s screen
name “Gay1dude” was the recipient of four e-mails that were
also on Mumenthaler’s computers. The e-mails received by
“Gay1dude” that were also on Mumenthaler’s computers con-
tained attachments with 15 child pornographic or erotica
images depicting boys between the ages of 7 and 13 in vari-
ous sexually explicit positions.
In addition, five e-mails with 38 attachments containing
child pornography or child erotica from an individual using
the screen name “Badatt178” were received by Kelley, using
the screen name “K MICHAEL KELLEY,” and by Ronald D.
Hutchings, who lives in Wichita, Kansas and used the screen
UNITED STATES v. KELLEY 3989
name “Youngbottom16.” Thirty-six of the files received by
both Kelley and Hutchings were image files and two were
movie files. The image files depict young males in various
sexually explicit positions; the two movie files show an adult
male performing sex acts upon a four-year old boy and a six-
to-eight-year old girl.
[3] Thus, the salient facts are that Kelley, using two differ-
ent screen names, received nine different e-mails with numer-
ous attachments containing the same type of illicit child
pornography (depicting sexually graphic conduct by young
boys) that two other, unrelated individuals also had on their
computers. There is no question that at least one of these indi-
viduals, Mumenthaler, also distributes child pornography, and
that Hutchings collects it. As the affidavit explains, those who
collect child pornography often collect addresses of persons
with similar interests as a means of referral, exchange, and
profit. The reasonable inference from receipt of e-mails in
care of different screen names that pertain to a discrete type
of pornography — young boys in sexually explicit poses —
and that also ended up on the computers of two unrelated peo-
ple who were also receiving or distributing the same type of
material, is that Kelley was part of network of persons inter-
ested in child pornography primarily involving young boys.
As a matter of practical, common sense, this is unlikely to
occur without prior communication or connection. From these
circumstances it is reasonable to infer a “fair probability” that
attachments depicting child pornography were addressed to
Kelley’s screen names because he wanted them to be.
We are mindful of the possibility that these e-mails could
have been spam, as Kelley suggests. The affidavit does not
specifically discount this possibility, and Kelley relies heavily
on the fact that distribution of inappropriate and unsolicited
material has become a reality of Internet life. We have previ-
ously rejected a similar argument, however. See United States
v. Hay, 231 F.3d 630, 633-34 (9th Cir. 2000). In Hay, a war-
rant to search the defendant’s computer was issued based on
3990 UNITED STATES v. KELLEY
information that his Internet address had received a transmis-
sion of 19 images of child pornography from a known trader.
The transmission was made through a protocol for direct
transfer of files, not by e-mail, but like Kelley, Hay argued
that pornographic images can be received by spam as well as
unintentionally by programs that automatically download files
in bulk for later viewing. As in this case, the affidavit said
nothing to disprove either possibility. Nevertheless, this court
held that the magistrate judge was entitled to infer that there
had been prior communication and that the transfers were nei-
ther unsolicited nor accidental.
[4] Forceful though the spam argument might be in differ-
ent circumstances, we are not persuaded by Kelley’s view in
the circumstances of this case where, like Hay, it is reasonable
to infer that receipt of transmissions with a particular type of
illicit child pornography was neither unsolicited nor acciden-
tal. Kelley did not receive an e-mail containing illicit porno-
graphic images, or even two or three, but nine such e-mails
sent to more than one of his screen names. That he received
the same kind of attachments on multiple occasions and in
different screen names makes it more probable that the trans-
missions were not accidental. The attachments were not a var-
ied, random assortment of inappropriate subjects; they were,
with one exception, of young boys in graphic sexual poses.
Further, the images were not just of pornography, which can
be perfectly legal, but were of a plainly unlawful sort. And
others apparently interested in receiving or sending the same
genre of pornography received (and kept) the same attach-
ments.
We are also unpersuaded that the lack of further evidence
such as who sent the e-mails to Kelley or how some of them
ended up on Mumenthaler’s computer and others on Hutch-
ings’s, undermines the “fair probability” of willing receipt
shown by the totality of the circumstances. Gates does not
compel the government to provide more facts than necessary
to show a “fair probability.” Gourde, 440 F.3d at 1071. Con-
UNITED STATES v. KELLEY 3991
sequently, it does not matter whether additional facts could
have been obtained or recited if the totality of the circum-
stances that are set forth adds up to a “fair probability” that
Kelley willingly received child pornography which will be
found on his computer. The affidavit establishes that Mumen-
thaler had copies of offending e-mails sent to Kelley, and that
Hutchings and Kelley were jointly copied on e-mails. The
logical inference is that Mumenthaler, who was a trader, had
copies of the e-mails sent to Kelley because Mumenthaler was
copied on them, or received a forwarded copy with Kelley’s
screen name in the “header” (sender/recipient information), or
sent them to Kelley himself. Whoever the sources may have
been, they were including Kelley in their distribution of con-
traband along with a known trafficker. Likewise, regardless of
who “Badatt178” was, he sent Hutchings and Kelley five e-
mails on two different days with attachments containing
explicit sexual images of young children. It is reasonable to
infer that the communications, given these connections, are
not purely coincidental.
Relying on United States v. Weber, 923 F.2d 1338, 1344
(9th Cir. 1991), Kelley faults the affidavit on the additional
ground that it provided an “offender typology” but failed to
connect him to the profile. In Weber, the defendant placed an
order for four pictures of child pornography and, anticipating
a planned delivery, officers obtained a warrant to search his
house for other similar items. We found inadequate the affi-
ant’s boilerplate recitation of how child molesters, pedophiles,
and child pornography collectors behave because, absent evi-
dence indicating that Weber was any of these things, probable
cause did not exist that Weber would have material other than
the four pictures at his house. However, the affidavit in this
case provides evidence that Kelley’s screen names appear on
multiple e-mails with attachments containing child pornogra-
phy of young boys in sexually explicit positions. The typol-
ogy reports that persons who collect this type of sexually
explicit material rarely dispose of it. While the affidavit offers
no external corroboration of Kelley’s interest in young boys,
3992 UNITED STATES v. KELLEY
it can be inferred from the fact that nine separate e-mails with
the same type of attachments were received on different occa-
sions spanning at least ten months that those images and oth-
ers would be found on Kelley’s computer. See Hay, 231 F.3d
at 635 (noting that the question is whether contraband is likely
to be on the suspect’s computer, not whether the affidavit
shows that the defendant did or did not fall within the class
of persons likely to collect child pornography).
Finally, Kelley disputes the inference that spammers are
not likely to send out contraband. He suggests that prescrip-
tion drugs are often marketed through e-mails, even though it
is illegal to do so without a prescription, and that sexually-
charged offers to join hotlines or subscribe to pornography
websites are common. The receipt of such unwanted or illegal
invitations, he posits, does not fairly imply anything about the
recipient. We have no occasion to comment on this, for the e-
mails Kelley received are more than an invitation; they con-
sist of hardcore child pornography that it is illegal to distrib-
ute as well as to receive or possess. The affidavit also
indicates that this particular kind of pornography is exchanged
clandestinely. Given this practice and the patent illegality of
the material received by Kelley, we cannot say that it is insen-
sible to infer, as part of the mix that informs the totality of the
circumstances, that indiscriminate distribution was unlikely.
[5] As Gates, Gourde and Hay emphasize, a location such
as Kelley’s computer can be searched for evidence of a crime
even if there is no probable cause for arrest, or a prima facie
showing of criminal activity, let alone proof sufficient to pros-
ecute a criminal case beyond a reasonable doubt, or even to
prevail under the civil burden that it is more likely true than
not that he knowingly received or possessed child pornogra-
phy. See Gates, 462 U.S. at 235; Gourde, 440 F.3d at 1072-
73; Hay, 231 F.3d at 635. Put differently, we are not asked to
decide whether Kelley could be arrested, or convicted on the
basis of the evidence in the affidavit. We must simply decide
whether there is a “fair probability” that, based upon the facts
UNITED STATES v. KELLEY 3993
set forth and inferences from them, his computer would house
child pornography which he willingly received. See Gourde,
440 F.3d at 1066 (observing that the Fourth Amendment
requires “no more” than this). We are not required to decide,
and we do not decide, whether receipt of e-mail in any cir-
cumstances other than those present in this case would sup-
port a finding of probable cause. We conclude only that the
totality of the circumstances described in the affidavit for the
search of Kelley’s computer makes it fairly probable that
images of child pornography, which he received willingly,
would be found on his computer. The affidavit does not fall
short of probable cause solely because it contained no con-
crete evidence that Kelley actually solicited the nine e-mails
he received. Rather, reasonable inferences from the facts
averred can, and in this case do, supply the missing links. The
reasonable inference here is that Kelley would not have
received so many e-mails on different occasions, addressed to
different screen names, containing attachments that depict the
same genre of illicit child pornography, that were also on the
computers of other collectors of the same genre of child por-
nography, unless he wanted to receive them. For these rea-
sons, the excised warrant was supported by probable cause,
and evidence obtained pursuant to it should not have been
suppressed.
REVERSED.
THOMAS, Circuit Judge, dissenting:
Each day, billions of unsolicited email messages are sent
over the Internet.1 These unwanted emails, popularly termed
1
See Adam Hamel, Note, “Will the CAN-SPAM Act of 2003 Finally Put
a Lid on Unsolicited E-mail?,” 39 New Eng. L. Rev. 961, 961 (2006)
(“Spam accounts for as much as eighty percent of the estimated fifty-
seven billion e-mail messages that are transmitted across the Internet
daily.”); Brad Stone, Spam Doubles, Finding new Ways to Deliver Itself,
N.Y. Times, Dec. 6, 2006, at A1 (noting that “[w]orldwide volumes of
spam have doubled since last year” and that nine out of every ten email
messages is junk mail).
3994 UNITED STATES v. KELLEY
“spam,”2 often carry commercial messages. Many of the com-
mercial messages are dubious in nature and origin, and a sub-
stantial proportion consists of pornographic images or links to
pornographic websites. Spam may also contain child pornog-
raphy 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:
Pornographic spam is more likely than other spam to
contain fraudulent or misleading subject lines. In its
recent report, the FTC found that more than 40 per-
cent of all pornographic spam either did not alert
recipients to images contained in the message or
contained false subject lines, thus “making it more
2
The term “spam” in this context does not refer to the processed meat
product invented by Jay Hormel in 1937, but apparently was derived from
a sketch by the British comedy group Monty Python’s Flying Circus first
broadcast in 1970, in which a restaurant patron is presented with a menu
containing nothing but variants of Spam. Compuserve, Inc. v. Cyber Pro-
motions, Inc., 962 F. Supp. 1015, 1018 n.1 (S.D. Ohio 1997). As part of
the routine, a group of Vikings in the restaurant insistently sing a chorus
about Spam, increasing in volume until other conversation is impossible.
“Hence, the analogy applied because [unsolicited commercial e-mail] was
drowning out normal discourse on the Internet.” Hamel, 39 New Eng. L.
Rev. at 963 n.18.
3
See, e.g., Leslie Brooks Suzukamo, Reports of Child-Porn Spam Are
Increasing, St. Paul Pioneer Press, Dec. 17, 2001, at A1; Paul Mores,
Child Porn E-mails Shock Residents Hit by Spam, Hamilton Spectator,
Oct. 18, 2005, at A3; Mark I. Johnson, Volusia Seizes Child Porn Stash;
Edgewater Man Netted in N.Y.-Based Sting, Daytona News-J., Oct. 4,
2005, at 1C (describing child pornography investigation that began with
a tip from someone who received “a spam email offering child pornogra-
phy”); The Spaminators: So Why Do They Call It “Spam”?, Chi. Trib.,
April 23, 2003, at 9 (stating that the FBI investigated child pornography
spam in 1996). See also Anti-Child Porn Organization, at http://
www.antichildporn.org/mailadvisory.html (describing spam containing
embedded images of child sexual abuse); FBI, Baltimore Field Office,
“Cyber Crime,” at http://baltimore.fbi.gov/cyber_crime.htm (requesting
reports of child pornography spam).
UNITED STATES v. KELLEY 3995
likely that recipients would open the messages with-
out knowing that pornographic images will appear.”
United States Senate Committee on Commerce, Science, and
Transportation, CAN-SPAM 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 con-
flicts with our precedent, I would affirm the well-reasoned
judgment of the district court that the warrant lacked probable
cause.
I
This is not the first time we have confronted the question
of whether unsolicited communication can form the basis for
probable cause. In United States v. Weber, we considered the
government’s claim that it had probable cause to search a
defendant’s house for child pornography based on evidence
that he had been sent — but had never picked up from the
post office — material advertising child pornography and had
later ordered four photographs from a government-created
distributor. 923 F.2d 1338, 1344 (9th Cir. 1991). We con-
cluded under those circumstances that the government lacked
probable cause for the search. We held that the mere receipt
of pornographic images and the subsequent ordering of photo-
graphs did not create a “fair probability” that the government
would find child pornography at the defendant’s house on the
date of the search. Id. at 1344-45. Significant to the reasoning
of Weber was the lack of evidence that the defendant was
either a child molester or a collector of child pornography. Id.
at 1345.
3996 UNITED STATES v. KELLEY
We recently considered the impact of Weber and its prog-
eny on pornography distributed via the Internet in United
States v. Gourde, 440 F.3d 1065 (9th Cir. 2006) (en banc). In
Gourde, we examined a search of a defendant’s computer
based on affidavit evidence that he had taken “ ‘steps to affir-
matively join’ the website” featuring downloadable child por-
nography. Id. at 1068. In sustaining the warrant, we
emphasized that “Gourde’s status as a member manifested his
intention and desire to obtain illegal images.” Id. at 1070. In
order to become a member, Gourde had to provide his home
address, his email address, and his credit card information. Id.
He then had to consent to have the fee deducted from his
credit card every month. Id. We explained that “these steps,
however easy, only could have been intentional and were not
insignificant. Gourde could not have become a member by
accident or by a mere click of a button.” Id. (emphasis added).
In Gourde, we distinguished Weber precisely on the
grounds of Gourde’s unambiguous affirmative steps. We
explained that “Gourde’s continuous, affirmative steps to
access a child pornography website can hardly be compared
to the single controlled buy in Weber two years after his ini-
tial, and unconsummated, foray into child pornography.” Id.
at 1074 (emphasis added). See also United States v. Lacy, 119
F.3d 742, 745 (9th Cir. 1997) (noting that defendant took
affirmative steps by placing telephone calls to and download-
ing photographs from a computer bulletin board system
located in Denmark); United States v. Froman, 355 F.3d 882,
890-91 (5th Cir. 2004) (relying in part on evidence in the affi-
davit that defendant took affirmative steps to join child por-
nography group and did not cancel his membership even
though it was easy to do so).
In addition to holding that probable cause for a residential
search was established when a defendant took affirmative
steps to acquire child pornography, we have also sustained
searches based on evidence suggesting that the defendant is a
pedophile or child pornography collector. In United States v.
UNITED STATES v. KELLEY 3997
Hay, we upheld a magistrate judge’s finding of probable
cause by relying in part on the fact that “there was evidence
of Hay’s extreme interest in young children.” 231 F.3d 630,
632-33, 634 (9th Cir. 2000). This evidence, combined with
his receipt of nineteen child pornography images through a
direct transfer download onto his computer, distinguished Hay
from Weber and made it much more probable that the images
“were neither unsolicited nor accidental.” Id. at 634.
Similarly, the Tenth Circuit has relied on evidence of a
defendant’s personal history, in combination with his receipt
of emails containing child pornography, to establish probable
cause. United States v. Rice, 358 F.3d 1268 (10th Cir. 2004),
overruled on other grounds by United States v. Rice, 405 F.3d
1108 (10th Cir. 2005). There, the defendant was a teacher
who had, in a previous school system, taken pictures of two
young girls in bikinis that “suggested an unhealthy and inap-
propriate interest in the bodies of young girls.” Id. at 1275.
This additional evidence of the defendant’s interest in young
children was present in the affidavit and was an important fac-
tor in the Tenth Circuit’s decision to find the affidavit suffi-
cient. Id.
In sum, we have sustained searches based on evidence (1)
of affirmative acts to acquire child pornography, (2) of the
defendant’s tendencies toward pedophilia, or (3) that the
defendant was a collector of child pornography. We have
never held — until today — that mere receipt of unsolicited
pornographic material, without more, establishes probable
cause to search a residence for child pornography.
II
The paucity of the evidence that the government offered in
support of the warrant is quite evident. The only evidence
upon which the government relied at the time of the search
was that Mr. Kelley had been sent nine emails containing
child pornography over a period of at least nine months, quite
3998 UNITED STATES v. KELLEY
possibly longer. There was no evidence that Mr. Kelley
requested the emails, viewed the emails, or actually received
the emails in his “Inbox.” There was no evidence refuting the
possibility that Mr. Kelley’s email program routed the emails
to his spam folder, or that Mr. Kelley deleted the emails upon
receipt. Nor was there evidence that Mr. Kelley at any point
made any affirmative attempt to obtain child pornography or
that he collected child pornography or had any affinity for it.
In short, there was no evidence that these nine emails were
anything more than unsolicited spam.4
Holding that the evidence the government submitted in this
case constituted probable cause for an extensive residential
search cannot be reconciled with the principles we adopted in
Weber, Gourde, and Hay.
I can well understand the government’s motivation. Child
pornography is a scourge on our nation. But every hour, mil-
lions of unsolicited and deceptively disguised emails are sent
to innocent computer users. Lowering our standards of proba-
ble cause to permit government intrusion into private resi-
dences based solely on proof of mere transmittal of
unsolicited email constitutes an unwarranted erosion of the
Fourth Amendment.
For these reasons, I respectfully dissent.
4
Aside from the allegation that Kelley had been sent pornographic mes-
sages, the rest of the probable cause affidavit consisted of generic, boiler-
plate language — the use of which we eschewed in Weber. 923 F.2d at
1345 (noting that the affidavit contained “rambling boilerplate recitations”
about pedophiles and collectors of child pornography, but “not a whit of
evidence . . . indicating that Weber was a ‘child molester.’ ”).