Sunday, March 12, 2006

Case o’ The Week: Fourth Gourde by Ninth, Computer Searches in Child Porn Cases

An en banc court of the Ninth issues a disappointing Fourth Amendment decision regarding computers and child porn in United States v. Micah J. Gourde, __ F.3d __, Slip Op. at 2357 (9th Cir. March 9, 2006), available here. The decision inspires vigorous and thoughtful dissents from Judges Reinhardt and Kleinfeld (left).

Players: Hard-fought case by Tacoma AFPD Colin Fieman. Majority opinion by Judge McKeown.

Facts: Gourde was a paid member of “,” a “mixed” website that had illegal child porn, and legal child erotica and adult porn. Slip op. at 2364. The FBI busted the site and interviewed the owner, who admitted that it was a child porn website. Id. at 2363. The feds seized the site host computer, but apparently never checked to see what Gourde actually downloaded. Instead, the FBI successfully secured a warrant to search Gourde’s computer. Id. at 2364. The search affidavit described how child porn recipients keep images, that computers store images for a long time, and explained that Gourde had taken affirmative steps to join the site. Id. at 2364-65. The affidavit did not describe any efforts used to determine whether Gourde actually downloaded child porn. The search lead to a bust, a conviction, and a conditional plea preserving the search challenge. A three-judge panel reversed the search; that decision went en banc.

Issue(s): Gourde claims that the affidavit in support of the search lacked sufficient indicia of probable cause because it contained no evidence that Gourde actually downloaded or possessed child pornography.” Id. at 2361.

Held: “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. . . . The Fourth Amendment requires no more.” Id. at 2361 (citation and footnote omitted).

Of Note: This opinion sparked heated dissents from two unlikely allies: Judges Reinhardt and Kleinfeld. The en banc opinion conducts a deferential Gates analysis of the decision to issue the warrant, and finds that the “reasonable inference that Gourde had received or downloaded images easily meets the ‘fair probability test.’” Id. at 2370. Reinhardt is appalled. Under his Franks analysis, the majority does not demonstrate “sensitivity to constitutional principles” when it ignored the fact that the feds possessed “a computer that would reveal whether the defendant had downloaded child pornography” and declined “to examine it.” Id. at 2377. This is particularly troubling when the website contained “mixed” images - legal and illegal porn. Id. at 2379. Kleinfeld also dissents, explaining “the majority errs in concluding that there was probable cause for a search because its inferences depend on unarticulated assumptions that do not make sense.” Id. at 2381. Kleinfeld seems right, the majority seems wrong. The majority’s key, faulty assumption is, “Gourde’s status as a member manifested his intention and desire to obtain illegal images.” Id. at 2368. That is not true: membership status also entitled Gourde to secure legal porn, and legal child erotica. The majority’s assertion that membership = possession of illegal child porn is not explained. More importantly, before the warrant application the feds had the means to show probable cause by simply examining the seized host computer and seeing whether Gourde actually downloaded the images. The FBI search affidavit in this case demonstrates either incompetence or hubris: neither shortcoming should have been sanctioned by the en banc majority.

How to Use: The silver lining in this dark cloud is the survival of United States v. Weber, 923 F.2d 1338 (9th Cir. 1991). Id. at 2374. In Weber, a defendant was targeted via mail by the feds, and offered child porn. Id. The Ninth reversed that search because the warrant would have justified “virtually any search of a home of a person who once placed an order for child pornography . . . .” Id. The majority flatly distinguishes Weber, which is good: that important decision survives unscathed.

For Further Reading: In his dissent, Judge Kleinfeld offers a series of – colorful – examples of private secrets that are no business of the government. Id. at 2381-82. Nominated by Bush I in ‘91, Kleinfeld is a big supporter of the Ninth Circuit split. See interview here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at


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