United States v. Krupa , 633 F.3d 1148 ( 2011 )

Opinion by Judge CALLAHAN; Dissent by Judge BERZON.

OPINION

CALLAHAN, Circuit Judge:

Peter Krupa appeals from his conditional guilty plea to receiving material involving the sexual exploitation of minors in violation of 18 U.S.C. § 2252(a)(2). Krupa challenges the district court’s denial of his motion to suppress evidence seized from computers in his custody. On grounds that differ slightly from those proffered by the district court we affirm the denial of the motion to suppress.

On April 12, 2002, the military police at Edwards Air Force Base received a call from Rhonda Velasco. She was worried because her ten-year-old daughter and five-year-old son, who were living on the base with her ex-husband, Sergeant Velasco, had not arrived at the train station in Lancaster as previously arranged. Accordingly, the military police went to Sgt. Velasco’s home. There they encountered Peter Krupa. He indicated that he was taking care of the children while Sgt. Velasco was in the Philippines until April 21, and showed the military police a written note to that effect.

The home was in complete disarray with clothing strewn on the floor and in the hall. Of particular concern were the presence of 13 computer towers and two laptops. The military police asked Krupa for consent to take the computers and he initially agreed.

On Tuesday, April 16, 2002, Investigator Reynolds (who is trained in, and specializes in investigating computers and digital evidence) was assigned to investigate the seized computers. In his initial search of the computers Reynolds located an image of suspected contraband. This photograph appeared to be of a nude 15- to 17-year-old female with a website label of “www. nude-teens.com.” On Sunday, April 21, 2002, Reynolds was hospitalized for chest pain. The following day, both Sgt. Velasco and Krupa revoked their consents to the search of the computers.

Reynolds remained hospitalized until April 25, 2002. While in the hospital he sought consent for “military search authority” for the computers. The request was based on the photograph and the fact that consent had been revoked. Reynolds sought “authority to continue this search for any further items of contraband.” On April 29, 2002, Colonel LaFave, the appointed Primary Search Authority Military Magistrate, signed the search warrant.¹ Reynolds resumed his forensic analysis of the computers, locating adult pornography and 22 images of child pornography.

Sometime thereafter, the matter was transferred to the Federal Bureau of Investigation (“FBI”). Both parties agree that on May 14, 2002, during a non-custodial interview, an FBI Special Agent showed Krupa the suspected child pornographic images recovered from one of the computers and asked him if he recognized the images. Krupa allegedly stated that he “had probably viewed all the images because he recognized that the structure of the filename printed above the computer images to be the same structure he uses to name computer files on his computers.” On the basis of the evidence obtained pursuant to the military search warrant and Krupa’s statement, the FBI sought and procured a federal search warrant from Judge Wanger of the Eastern District of California.²

Krupa was indicted for violating 18 U.S.C. § 2252(a)(4)— possession of visual depictions of minors engaging in sexually explicit conduct. Krupa moved to suppress the evidence seized from his computer. The district judge found that Krupa had standing to challenge the seizure of the computers and had withdrawn his consent. The district court determined that although the single photograph was insufficient to show probable cause, citing United States v. Battershell, 457 F.3d 1048 (9th Cir.2006), the motion to suppress would be denied under the good-faith exception set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

Krupa then pled guilty to receipt of materials depicting sexual exploitation of minors and entered into a plea agreement which reserved his right to appeal the denial of the motion to suppress. He was sentenced to 41 months of incarceration.

We review de novo the district court’s denial of a motion to suppress evidence. United States v. Hill, 459 F.3d 966, 970 (9th Cir.2006). We review for clear error a magistrate’s finding of probable cause to issue a search warrant, as well as a Leon good-faith exception, and give “great deference” to such findings. Id.; see also United States v. Hay, 231 F.3d 630, 634 n. 4 (9th Cir.2000).

As we noted in Hill, our review starts with the Constitution. We stated:

“[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. The Constitution is clear; a magistrate may authorize a search of a location only if officers establish probable cause to believe evidence of a crime may be found there. Probable cause means only a “fair probability,” not certainty, and requires consideration of the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

Hill, 459 F.3d at 970. In Gates, the Supreme Court observed that:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding]” that probable cause existed. Jones v. United States [362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)].

In applying this standard, we have reiterated the Supreme Court’s directive that a magistrate’s determination of probable cause should be paid great deference by reviewing courts. See Millender v. County of Los Angeles, 620 F.3d 1016, 1025 (9th Cir.2010); U.S. v. Kelley, 482 F.3d 1047, 1050 (9th Cir.2007); Battershell, 457 F.3d at 1050.

We have further noted that Gates signaled a change from a technical approach to probable cause to “a return to the ‘totality of the circumstances’ test and emphasized that probable cause means ‘fair probability, not certainty or even a preponderance of the evidence.’ ” United States v, Gourde, 440 F.3d 1065, 1069 (9th Cir.2006) (en banc). In Kelley, we explained that “[w]hether there is a fair probability depends upon the totality of the circumstances, including reasonable inferences, and is a ‘commonsense, practical question,’ ” for which “[n]either certainty nor a preponderance of the evidence is required.” 482 F.3d at 1050 (quoting Gates, 462 U.S. at 246, 103 S.Ct. 2317, and Gourde, 440 F.3d at 1069).

Although this is a close case, we conclude that Colonel LaFave could reasonably conclude that there was probable cause to issue a search warrant. The district court reasonably thought that pursuant to Battershell, the single picture of a nude teenage girl was not sufficient in itself to support a search warrant. Here, however, the picture must be placed in the context of the exigent unusual circumstances. Military police, responding to a call from a distressed mother, went to a home on the military base assigned to Sgt. Velasco. They found that Sgt. Velasco was not at home, was not even in the country, and was not expected to return for another nine days. His minor children were living in what Krupa’s brief describes as “complete disarray,” under the purported supervision of Krupa, who was a civilian with no apparent connection to the armed forces. Moreover, Krupa had control over the 13 computer towers and two laptops that were in the home. The military police found this concentration of computers in such a surrounding to be suspicious and sought to take the computers. Krupa consented to the police taking the computers. Reynolds was then assigned to investigate whether the computers were being used for criminal purposes. His initial investigation revealed a picture of a nude teenager, which he believed was evidence of child pornography. But before he could confirm that the computers were being used to store child pornography, or possibly used for other criminal activity, Reynolds’ investigation was interrupted by his health problems.

Thus, when Reynolds sought to continue his ongoing investigation, Krupa’s intervening revocation of his consent to the search of the computers required that Reynolds obtain a warrant to continue his investigation. At that point in time the picture of a nude teenager, with its tag “www.nude-teens.com,” was strong supporting evidence that the fifteen computers found in a home in disarray on a military base were being used for criminal purposes. Moreover, a ten-year-old girl and a five-year-old boy were living in the disheveled residence. Accordingly, Colonel LaFave could reasonably conclude that was probable cause to support the issuance of the search warrant.

Our opinion in Battershell, does not compel a contrary perspective. There, we held that a single photograph of a young girl between 8 and 10 standing nude in a bath tub is insufficient to establish probable cause. 457 F.3d at 1051. However, we went on to hold that a second picture and the totality of the circumstances did establish probable cause and we affirmed the denial of the motion to suppress. Id. at 1054. In Battershell, other than the two photographs extracted from Battershell’s computer, there was no reason for the authorities to suspect any criminal activity. Similarly, in Hill, but for a computer technician’s discovery of what she believed to be child pornography on the defendant’s computer, 459 F.3d at 968, there was no indication of criminal activity.³ In contrast, here, the presence of fifteen computers under the control of a civilian with no apparent ties to the military in a home of a sergeant (who was out of the country) on a military base in which two minor children resided and which was in “complete disarray” is unquestionably suspicious. Thus, in this context, even if the picture by itself was insufficient to establish probable cause, when supplemented with its tag “www.nude-teens.com,” and the fact that Reynolds had only started his investigation of the 15 computers, we cannot say that Colonel LaFave could not reasonably conclude that there was “a fair probability that contraband or evidence of a crime” would be found on the computers.

In addition, although not addressed by the parties, we note that the search took place on a military base and that our case law at least suggests that civilians such as Krupa impliedly consent to searches when they enter a military base. See Morgan v. United States, 323 F.3d 776, 778 (9th Cir.2003) (holding that a warrantless search of a person seeking to enter Edwards Air Force Base may be deemed reasonable based on the implied consent of the person searched).

In sum, giving the appropriate deference to Colonel LaFave’s determination as required by Gates, 462 U.S. 213, 103 S.Ct. 2317, and our own precedent, we conclude that he could have reasonably determined that there was probable cause to support the issuance of the search warrant. Accordingly, the district court’s denial of Krupa’s motion to suppress is AFFIRMED.⁴

1 . Krupa's appeal does not question the propriety of Colonel LaFave acting as the issuing magistrate.

2 . It appears that ultimately 52 images and an additional 48 movies of child pornography were located within the computers.

3 . The difficulty inherent in determining whether a photograph of a minor is a “lascivious exhibition of the genitals or pubic area” as proscribed by 18 U.S.C. § 2256(2)(A)(v), the issue in Battershell, is illustrated by the subsequent opinion in Hill, 459 F.3d 966. In Hill, we determined that a state judge finding of probable cause was “well within his discretion,” even though the description of the photographs (on which the judge issued the warrant) was not very different from the description of the first photograph in Battershell. See Hill, 459 F.3d at 968-69, 972. Moreover, Battershell and Hill were decided well after Colonel LaFave issued the search warrant in this case and thus were not available to guide his decision.

4 . Because we determine that Colonel LaFave could have reasonably concluded that there was probable cause to issue the search warrant, we need not, and do not, consider the district court’s invocation of the good-faith exception set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).