FILED
NOT FOR PUBLICATION JUL 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10367
Plaintiff - Appellee, D.C. No. 1:08-cr-00667-JMS-1
v.
MEMORANDUM *
DAVID E. KUBA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, District Judge, Presiding
Argued and Submitted June 17, 2010
Honolulu, Hawaii
Before: B. FLETCHER, PREGERSON, and CLIFTON, Circuit Judges.
David E. Kuba appeals the district court’s denial of his motion to suppress
evidence obtained from the search of his home and computer. As the parties are
familiar with the facts, procedural history, and arguments, we will not recount
them here. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We review de novo a district court's denial of a motion to suppress and the
validity of a search warrant. United States v. Crews, 502 F.3d 1130, 1135 (9th Cir.
2007). The trial court's factual findings are reviewed for clear error. United States
v. Bynum, 362 F.3d 574, 578 (9th Cir. 2004). Determinations of probable cause are
reviewed de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996).
There was sufficient evidence in the warrant affidavit to support probable
cause. Probable cause means a “fair probability that contraband or evidence is
located in a particular place. Whether there is a fair probability depends upon the
totality of the circumstances, including reasonable inferences, and is a
commonsense, practical question. Neither certainty nor a preponderance of the
evidence is required.” United States v. Kelley, 482 F.3d 1047, 1050 (9th Cir.2007)
(internal citations and quotations omitted). “Although in a particular case it may
not be easy to determine when an affidavit demonstrates the existence of probable
cause, resolution of doubtful or marginal cases in this area should largely be
determined by the preference to be accorded to warrants.” Illinois v. Gates, 462
U.S. 213, 237 (1983).
The magistrate judge was presented with an affidavit containing facts that
circumstantially indicated a fair probability that Kuba had purchased a 20-day
subscription to a certain website and would likely have accessed and retained
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images therefrom. The affidavit also noted that a forensic examiner could likely
retrieve evidence of images from a computer even if the images had been deleted.
The circumstantial evidence contained in the affidavit met the standard of probable
cause established in Kelley. See United States v. Gourde, 440 F.3d 1065, 1074 (9th
Cir. 2006) (en banc) (holding that evidence of a subscription to a certain website
was sufficient to establish probable cause to search the subscriber’s computer for
illegal files downloaded from that website).
Probable cause was not stale because of the passage of nearly twelve months
from the date of the defendant's suspected subscription to the issuance of the search
warrant. Staleness is a flexible concept that depends largely upon the nature of the
crime and the items to be seized. United States v. Greany, 929 F.2d 523, 525 (9th
Cir. 1991). “The mere lapse of substantial amounts of time is not controlling.”
United States v. Lacy, 119 F.3d 742, 745 (9th Cir. 1997). There was a fair
probability that the images had not been deleted in the meantime, and, even if they
had, that evidence of the images could still be obtained from the computer.
AFFIRMED.
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