United States v. Micah J. Gourde

440 F.3d 1065, 2006 U.S. App. LEXIS 5890, 2006 WL 574302
CourtCourt of Appeals for the Ninth Circuit
DecidedMarch 9, 2006
Docket03-30262
StatusPublished
Cited by220 cases

This text of 440 F.3d 1065 (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, 440 F.3d 1065, 2006 U.S. App. LEXIS 5890, 2006 WL 574302 (9th Cir. 2006).

Opinions

McKEOWN, Circuit Judge:

The term “Lolita” conjures up images ranging from the literary depiction of the adolescent seduced by her stepfather in Vladimir Nabokov’s novel1 to erotic displays of young girls and child pornography. This case requires us to consider probable cause to search a computer for child pornography in the context of an Internet website, known as “Lolita-gurls.com,” that admittedly displayed child pornography.

Micah Gourde appeals from the district court’s denial of his motion to suppress more than 100 images of child pornography seized from his home computer. Gourde claims that the affidavit in support of the search lacked sufficient indi-cia of probable cause because it contained no evidence that Gourde actually downloaded or possessed child pornography. We disagree. Based on the totality of the circumstances, the magistrate judge who issued the warrant made a “practical, common-sense decision” that there was a “fair probability” that child pornography would be found on Gourde’s computer. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).2 The Fourth Amendment requires no more.

[1067]*1067BACKGROUND

I. THE AFFIDAVIT "

In May 2002, the FBI requested a warrant to search the residence of Micah Gourde for the purpose of seizing computer equipment and other materials containing evidence that he “probably caused the uploading, downloading and transmission of child pornography over the Internet” in violation of 18 U.S.C. §§ 2252 and 2252A, which criminalize the possession, receipt and transmission of child pornography. The following facts come from Special Agent David Moriguchi’s affidavit in support of the search warrant. See United States v. Anderson, 453 F.2d 174, 175 (9th Cir.1971) (“[A]ll data necessary to show probable cause for the issuance of a search warrant must be contained within the four corners of a written affidavit given under oath.”).

In August 2001, an undercover FBI agent discovered a website called “Lolita-gurls.com.” The first page of the site contained images of nude and partially-dressed girls, some prepubescent, along with this text:

Lolitagurls.com offers hard to find pics! With weekly updates and high quality pix inside, you cant go wrong if you like young girls! Lolitas.Full size High Quality Pictures 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.

The first page directed the user to a second page with more images of nude girls, some prepubescent, including three images displaying the genital areas of minors, and a caption reading “Lolitas age 12-17.” The second page contained this text:

Welcome to Lolitagurls. Over one thousand pictures of girls age 12-17! Naked lolita girls with weekly updates! What you will find here at Lolitagurls.com is a complete collection of young girl pics. BONUS: You can get movies/mpegs at our partners site after you join if you wish.

The second page also had testimonials from website members, such as “This lolita site has everything with young girls!” and “I’ve never seen in my life the pics of so cute pre-teen girls.” This page offered the viewer three ways to see other pages on the website: (1) take a free tour of the site, (2) become a new member of the site, or (3) log in as a returning member.

As part of his investigation, the undercover agent joined the website and was a member from August to December 2001. The membership fee was $19.95 per month, deducted automatically from the member’s credit card. Lancelot Security handled credit card processing and access control for Lolitagurls.com. Members received unlimited access to the website and were “allowed ... to download images directly from the website.” Browsing The entire website, whose “primary feature was the images section,” the undercover agent captured “hundreds of images” that “included adult pornography, child pornography, and child erotica.” These images included the lascivious display of the breasts and genitalia of girls under the age of eighteen.

The FBI eventually identified the owner and operator of Lolitagurls.com and, in January 2002, executed a search warrant. Among the seized items was his computer, which contained child pornography images that had been posted to the Lolita-gurls.com website. The owner “admitted ... that ‘Lolitagurls.com’ was a child pornography website he operated as a source of income.”

In response to a follow-up subpoena, Lancelot Security provided the FBI with information on Lolitagurls.com’s subscribers. Lancelot’s records listed Gourde as a member and provided his home address, [1068]*1068date of birth, email address, and the fact that he had been a subscriber from November 2001 until January 2002. Gourde never cancelled his membership — the FBI shut down the site at the end of January, while he was still a member.

The affidavit contained extensive background information on computers and the characteristics of child pornography collectors. One section set out legal and computer terms relevant to understanding how downloading and1 possessing child pornography would violate 18 U.S.C. § 2252. Citing FBI computer experts, the affidavit explained that if a computer had ever received or downloaded illegal images, the images would remain on the computer for an extended period. That is, even if the user sent the images to “recycle” and then deleted the files in the recycling bin, the files were not actually erased but were kept in the computer’s “slack space” until randomly overwritten, making even deleted files retrievable by computer forensic experts. Any evidence of a violation of 18 U.S.C. § 2252 would almost certainly remain on a computer long after the file had been viewed or downloaded and even after it had been deleted.

The affidavit also described the use of computers for child pornography activities. Based on his experience and that of other FBI experts, Moriguchi wrote that “[p]aid subscription websites are a forum through which persons with similar interests can view and download images in relative privacy.” He described how collectors and distributors of child pornography use the free email and online storage services of Internet portals such as Yahoo! and Hot-mail, among others, to operate anonymously because these websites require little identifying information. Communications through these portals result in both the intentional and unintentional storage of digital information, and a “user’s Internet activities generally leave traces or ‘footprints’ in the web cache.... ” Drawing on the expertise of the FBI Behavioral Analysis Unit, the affidavit listed certain “traits and characteristics ...

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Bluebook (online)
440 F.3d 1065, 2006 U.S. App. LEXIS 5890, 2006 WL 574302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-micah-j-gourde-ca9-2006.