United States v. Micah J. Gourde

382 F.3d 1003, 2004 U.S. App. LEXIS 18584, 2004 WL 1945331
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 2, 2004
Docket03-30262
StatusPublished
Cited by19 cases

This text of 382 F.3d 1003 (United States v. Micah J. Gourde) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Micah J. Gourde, 382 F.3d 1003, 2004 U.S. App. LEXIS 18584, 2004 WL 1945331 (9th Cir. 2004).

Opinions

[1005]*1005BRUNETTI, Circuit Judge:

Appellant Micah Gourde entered a conditional guilty plea to one count of possession of visual depictions of minors engaged in sexually explicit conduct in violation of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2) and 2256. As stated in the plea agreement, Gourde admitted possessing more than 100 images of child pornography on his home computer; however, Gourde conditioned his guilty plea on his right to appeal the district court’s denial of his motion to suppress the images seized from his computer. He asserts that the affidavit in support of the search lacked sufficient indicia of probable cause because it contained no evidence that Gourde actually downloaded or otherwise possessed child pornography; moreover, he contends that the officers acted objectively unreasonable in relying on the allegedly unlawful warrant. We agree and reverse.

I. Background

a. Facts1

In August 2001, an FBI agent, acting in an undercover capacity, discovered a website called, “Lolitagurls.com,” which described itself on its homepage as follows:

Lolitagurls.com offers hard to find pics! With weekly updates and high quality pics inside, you cant go wrong if you like young girls! ... Lolitas ... Full size High Quality Pictured inside Join Now — -instant access here! THIS SITE updated weekly WITH NEW LOLITA pics. This site is in full compliance with United States Code Title 18 Part I Chapter 110 Section 2256.

This page also contained several images of nude and partially dressed young girls.

The visitor to the website was then directed to a second page, where the visitor could either take a free “tour” of the site, join, or sign on if already a member. This page stated,

Welcome to Lolitagurls. over one thousand pictures of girls ages 12-17! Naked Lolita girls with weekly updates! What you will find here at Lolita-gurls.com is a complete collection of young girl pics. BONUS: You can get movies/mpegs at our partner site after you join if you wish. MEMBERS COMMENT ON THE SITE: ‘Wow! I have never seen so many good pictures of lolitas, thanks for updating often with lots of lolita girls Z ever!” — David—usa “What a site! You have the best lolita girls pics ever!” Terrance- — -Europe “Keep it up! This lolita site has everything with young girls!” — Eddie—Canada “These lolita pictures are first in my collection/most lolita sites cost $80 or more but you have the best!” — William — USA I was really stunned with surprise when joined your site. I’ve never seen in my life the pics of so cute preteen girls. But here I found an ocean of such pies!!! Thank you! “— Nikolay, Russia”

This page also contained images of young girls, some of whieh the affidavit described as “prepubeseent,” under the caption, “Lo-litas age 12-17.”

The undercover agent joined the site using a credit card. Membership required a monthly fee of $19.95, which was assessed automatically each month unless the member took steps to cancel the membership. Lolitagurls.com employed Lancelot Security to process credit card and membership information. Once a “member,” the agent obtained a password for [1006]*1006unlimited access to the site. Images on Lolitagurls.com were updated every twelve to twenty days, and members could download the images directly from the site to their personal computers. During the approximately three months the agent was a member, he was able to download over 100 images. The site contained adult pornography, child pornography, and child erotica. The affidavit noted that some of the images the agent downloaded depicted sexually explicit poses of naked young girls.

The FBI investigation revealed that the owner of the website was Keith Fields of Hiawatha, Iowa. The FBI executed a search warrant of Fields’s home; among the items seized was Fields’s computer, which contained child pornography including images that were posted on Lolitagurls.com. Fields admitted that Lol-itagurls.com was a child pornography website, which he operated as a source of income.

In response to a federal grand jury subpoena, Lancelot Security provided information to the FBI regarding members of Lolitagurls.com. Among the records obtained, FBI discovered information regarding “Micah Gourde” of “Castle Rock, Washington.” The records revealed that Gourde used the email address, “gil-bert_95@yahoo.com,” and that he listed his birth date as December 8, 1976. The membership information also indicated that Gourde had been a member of Lolita-gurls.com from November 2001 through January 2002.

In addition to the facts recited above, the affidavit contained a section of definitions of terms such as “child erotica,” “child pornography,” “computer,” “IP address,” etc.; a comprehensive discussion of the logistical aspects of computer searches; a general explanation of the use of computers in the child pornography trade; and a lengthy recitation of the behavioral characteristics and methods of child pornography collectors.

The discussion regarding collectors of child pornography was based on the expertise of FBI Supervisory Special Agent James Clemente, who had worked in the FBI’s Behavioral Analysis Unit since 1998. The affidavit also noted Clemente’s extensive background and training in the areas of sex crime offenders and on-line sex crimes against children. The affidavit then described certain traits and characteristics that are “generally found to exist” in cases involving individuals who collect child pornography, including that the majority of child pornography collectors: (1) have a sexual attraction to children; (2) amass sexually explicit materials, including photographs, magazines, motion pictures, video tapes, books, slides, etc.; (3) “rarely, if ever,” dispose of their sexually explicit materials and may go to great lengths to conceal and protect them from discovery, theft, and damage; and (4) often seek out like-minded individuals, either in person or on the Internet, to share information and trade child pornography and/or child erotica in order to gain status, acceptance and support as well as to “rationalize and validate their deviant sexual interest and associated behavior.”

Following this discussion of the traits and tendencies of child pornography collectors, Moriguchi stated:

The following facts lead me to believe that MICAH GOURDE is a collector of child pornography, and as such is likely to maintain for long periods of time a collection of child pornography and related evidence:
a. GOURDE took steps affirmatively to join the website ‘Lolitagurls.com’, which advertises pictures of young girls and offers images of minors engaged in sexually explicit conduct.
[1007]*1007b. GOURDE remained a member of this website for over two months, although once he gained access to the website, he could have easily removed himself from its list of subscribers. During this time, he had access to hundreds of images, including historical postings to the site, which could easily be downloaded during his period of membership.
c.

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382 F.3d 1003, 2004 U.S. App. LEXIS 18584, 2004 WL 1945331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-micah-j-gourde-ca9-2004.