Opinion
E044998
2-26-2009
THE PEOPLE, Plaintiff and Respondent, v. AARON WILLIAM HARTNETT, Defendant and Appellant.
David Joseph Macher for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
Pursuant to a plea agreement, defendant pled guilty to two counts of possession of child pornography (Pen. Code, § 311.11, subd. (a)) (counts 3 & 4). In return, the remaining allegations were dismissed, and defendant was granted formal probation on various terms and conditions, including serving 180 days in county jail. On appeal, defendant contends (1) the magistrate erred in issuing a search warrant; and (2) the good faith exception does not apply. We reject these contentions and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On September 27, 2002, United States custom agents arrested a resident of the Philippines who was selling child pornography. In the course of their investigation, agents discovered that on December 16, 2001, and March 28, 2002, defendant had purchased, or attempted to purchase, child pornography from the man they had arrested. Examination of the arrested mans e-mail showed that he had bilked the majority of his buyers.
Custom agents then set up a reverse sting operation wherein they posed as representatives of a phony company involved in the distribution of child pornography. On October 23, 2003, custom agents mailed a letter to defendant and indicated he could purchase "taboo" pornographic videos from the company. The letter also noted that defendants name had been obtained from the man arrested in the Philippines. Defendant responded that he was interested in videos depicting pedophilia, preteen girls, and incest. On January 13, 2004, custom agents sent defendant a catalogue that described various pornographic videotapes featuring children. On February 11, 2004, defendant ordered one of the fictitious videotapes, called "Tag Team," which the catalog indicated would portray two 10-year-old brothers and two 12-year-old sisters engaged in various sexual acts. Defendant had enclosed a signed check in the amount of $32.95, which had the words "Tag Team" written in the memorandum.
In April 2004, the custom agents contacted the Riverside County Sheriffs Department concerning their investigation of defendant. On April 22, 2004, detectives obtained a search warrant for defendants residence and vehicles. In his declaration, Detective Steven Welch noted that he had investigated numerous cases involving child molestation, had interviewed subjects suspected of child molestation, and had assisted in the successful prosecution of crimes involving child molestation. Detective Welch also declared that he had participated in the preparation and execution of search and arrest warrants for Internet-related crimes, and that he had spoken numerous times to experienced sexual crime investigators. Detective Welch opined that, based on his own training and experience and that of other investigators with whom he had consulted, an individual who acquires child pornography commonly retains the collection he has amassed in a variety of media.
Detective Welch also averred that he had worked closely with Special Agent Curtis Hafley of the U.S. Immigration and Customs Enforcement Department and that Agent Hafley, based on his training and experience, had defined a preferential sexual offender as an individual with a primary sexual interest in children. Detective Welch included the following information he had learned from Agent Hafley in his declaration in support of the search warrant: Agent Hafley had explained that individuals who had a genuine sexual interest in children often collected and traded sexually explicit depictions of children, as well as images of children engaged in sexual activity. Agent Hafley also stated that preferential sexual offenders receive sexual gratification from actual contact with children or from fantasies involving children and that images of children may be retained and stored through the use of photographs, negatives, videotapes, books, magazines, slides, movies, computer disks, and compact disks. Agent Hafley further noted that preferential sexual offenders rarely, if ever, dispose of such materials and that they treat them as prized possessions. In addition, Agent Hafley explained that preferential sexual offenders may also collect child erotica that would include toys, games, drawings, fantasy writings, diaries, souvenirs, sexual aids, manuals, letters, books about children, psychological textbooks on pedophilia, and ordinary photographs of children; and that preferential sexual offenders use these materials for their own sexual gratification, and also at times to lower a childs inhibitions toward sexual contact with other children or with adults.
Riverside County Sheriffs Department detectives executed the search warrant on April 27, 2004, and seized a total of three computers from defendants residence. Following a forensic examination of those computers, detectives found files on two of defendants hard drives containing at least 5,000 pornographic images depicting children as young as two or three years old engaged in oral copulation and sexual intercourse. Defendant was arrested on that same day.
II
DISCUSSION
Defendant contends the search warrant was not based on probable cause and was therefore invalid. Specifically, he claims that because the information was stale the search warrant lacked probable cause.
Following a lengthy discussion at the suppression hearing, the court denied defendants suppression motion. The court determined that in these types of cases, the defendants "collect and never destroy" the child pornographic material and impliedly found the information in the affidavit was not stale.
"[A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrates `determination of probable cause should be paid great deference by reviewing courts." (Illinois v. Gates (1983) 462 U.S. 213, 236, quoting Spinelli v. United States (1969) 393 U.S. 410, 419.) "The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." (Illinois v. Gates, supra, at p. 238.) In other words, "Probable cause is a `strong suspicion that what is being sought will be in the location to be searched." (People v. Deutsch (1996) 44 Cal.App.4th 1224, 1232.)
On appeal, we consider only whether there was "a `substantial basis for the finding that the property sought was `"probably present" on the premises." (People v. Pressey (2002) 102 Cal.App.4th 1178, 1182.) "Accordingly, the magistrates determination will not be overturned unless the supporting affidavit fails as a matter of law to support the finding of probable cause. [Citations.] Doubtful or marginal cases are resolved in favor of upholding the warrant." (Fenwick & West v. Superior Court (1996) 43 Cal.App.4th 1272, 1278.)
Where the affidavit provides sufficient information to enable the magistrate to act independently rather than merely ratifying the conclusions of the affiant, the affidavit is legally sufficient. (Illinois v. Gates, supra, 462 U.S. at p. 239.) "Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." (United States v. Ventresca (1965) 380 U.S. 102, 109.)
Defendant argues that the search warrant affidavit in this case lacked probable cause because it was based on stale information. The time element factors into the probable cause determination because "[a]n affidavit supporting a search warrant must provide probable cause to believe the material to be seized is still on the premises when the warrant is sought." (People v. McDaniels (1994) 21 Cal.App.4th 1560, 1564.) No clear cut rule establishes when the time span must be deemed too attenuated; the issue of staleness turns on the facts of each particular case. (Alexander v. Superior Court (1973) 9 Cal.3d 387, 393; People v. Gibson (2001) 90 Cal.App.4th 371, 380.) If there are special circumstances that would justify the conclusion by a person of ordinary prudence that the alleged illegal activity had persisted from the time of the stale information to the present, then the passage of time has not deprived the old information of all value. (Alexander, at p. 393; People v. Mikesell (1996) 46 Cal.App.4th 1711, 1718.)
Although evidence even a few weeks old may be considered stale in some cases, the ongoing nature of the criminal activity at issue in this case allows for the consideration of evidence that might be deemed too remote in a different context. (See People v. Hulland (2003) 110 Cal.App.4th 1646, 1652 [nature of the activity may justify reliance on more remote information]; U.S. v. Newsom (7th Cir. 2005) 402 F.3d 780, 783 ["[i]nformation a year old is not necessarily stale as a matter of law, especially where child pornography is concerned"].) Relying in part on the tendency of child pornography collectors to retain the material for lengthy periods of time, several courts have upheld search warrants for child pornography based on information that might otherwise be considered stale. (See, e.g., U.S. v. Lacy (9th Cir. 1997) 119 F.3d 742, 745 [upholding warrant based on information that the defendant downloaded child pornography 10 months earlier and on assertion that this type of person would generally retain it]; U.S. v. Harvey (3d Cir. 1993) 2 F.3d 1318, 1322-1323 [upholding warrant based on delivery of pornographic materials on several occasions, from two to 15 months prior to issuance of warrant, and on statement that pedophiles rarely, if ever, dispose of their illicit material]; see also U.S. v. Rabe (9th Cir. 1988) 848 F.2d 994, 997) [upholding warrant based on seizure of child pornography addressed to defendant two years earlier plus recent correspondence with the defendant showing continued interest in material; affidavit detailed habits of child pornography collectors];Newsom, at p. 783 [upholding warrant based on girlfriends observation of child pornography one year earlier and on her recent discovery of videos of her daughter naked; referencing fact that collectors tend to retain their materials for long periods of time].)
Here, Detective Welchs affidavit clearly supported a finding by the magistrate that defendant had possessed child pornography in April 2004. The question is whether the information provided to the magistrate in the affidavit was sufficient to allow the magistrate to independently decide that there was a fair probability that defendant continued to possess those items nearly two years later.
While the affidavit may be marginal in this case, the preference for warrants requires us to defer to the magistrates decision. The nature of the items in question and the circumstances described in the affidavit provided some support for an independent conclusion that there was a fair probability that defendant retained these items even two years later. The evidence presented to the magistrate suggested that defendant was a collector of child pornography and not someone with only a passing interest in the illicit material. Defendant had ordered child pornography from the man in the Philippines on two occasions, paying a total of $280. Even if, as defendant notes, the affidavit contained information that the man had bilked his clients and there was no basis to conclude defendant had received the videotapes, a reasonable inference can be made that defendant had received the videotapes at least on the first occasion. If he had been truly "ripped off" after the first time he placed his order for the illicit material, defendant cannot plausibly explain why he would have sent the man money again, on the second occasion. In addition, the affidavit explained that whenever an initial inquiry was made, the man would send "numerous child pornography images based upon the persons preference, either male or female" along with instructions "describing the procedures for ordering child pornography videos [from him]." The affidavit therefore established a strong suspicion that defendant had received at least some pornographic images depicting children.
The affidavit also details, based on the affiants considerable experience and expertise, the proclivities and predilections of child pornography users, including the tendency to value the illicit material and to retain it. (People v. Deutsch, supra, 44 Cal.App.4th at p. 1232 [the opinions of an experienced officer may be considered by the magistrate in making a probable cause determination].) Defendants response to the fictitious inquires sent to him by custom agents in January 2004 also suggests that defendant was a sophisticated collector of child pornography. In short, defendants substantial interest in the illicit material, when combined with the known practices of child pornography collectors, supports a "strong suspicion" that defendant retained at least some of the material in 2004. No special expertise was required to reach the conclusion that a person who frequently views child pornography and maintains a collection of print and video pornography is a collector who would be unlikely to dispose of these items. It follows that the magistrate could have independently concluded that the child pornography sought by the warrant was fairly likely to be found in defendants home even several years after defendant ordered the illicit material from the man in the Philippines.
In any event, even if we assume arguendo that the magistrate erred in issuing the warrant, evidence obtained based on a warrant issued without probable cause need not be suppressed if the officer executing the warrant is acting in objective good faith in relying on the warrant. (United States v. Leon (1984) 468 U.S. 897, 918 (Leon).) "In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause." (Id. at p. 926.)
In other words, when an officer conducts a search under the authority of a warrant issued by a neutral and detached magistrate, this normally establishes that the law enforcement officer has acted in good faith in conducting the search. (Leon, supra, 468 U.S. at p. 922; People v. MacAvoy (1984) 162 Cal.App.3d 746, 763.) "[T]here is a presumption that officers are conducting a search with good faith belief in its validity when the search is conducted pursuant to a warrant." (MacAvoy, at p. 763.) The officers reliance on the magistrates probable cause determination must be objectively reasonable. In some circumstances, the officer will have no reasonable grounds for believing that the warrant was properly issued. (Leon, at pp. 922-923.)
An inquiry into objective reasonableness is confined to the question of whether a reasonably well-trained officer would have known that the search was illegal despite the magistrates authorization. (Leon, supra, 468 U.S. at pp. 922-923, fn. 23.) A good faith belief may not be objectively reasonable and suppression therefore appropriate if (1) the magistrate was misled by information in the affidavit that the affiant knew or should have known was false, (2) the magistrate wholly abandoned his judicial role, (3) the warrant was facially deficient in failing to particularize the place to be searched or things to be seized, or (4) the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. (Id. at p. 923.)
Here, even if we were to determine that the magistrate erred in issuing the warrant, the officers acted in good faith reliance upon what, by all appearances, was a valid warrant; thus, the evidence garnered in their search would have remained admissible. There is no indication that this magistrate abandoned his detached or neutral role. Likewise, there is no evidence to suggest that the affidavit in support of the warrant contained any dishonest statements, material omissions, or facially lacked probable cause. Therefore, the court properly determined that the evidence obtained pursuant to the search warrant was admissible.
III
DISPOSITION
The judgment is affirmed.
We concur:
RAMIREZ, P.J.
GAUT, J. --------------- Notes: The factual background is taken from the affidavit in support of the search warrant, the testimony at defendants preliminary hearing, and the probation report.