FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10396
Plaintiff-Appellee, D.C. No.
v. 1:04-cr-05141-
PETER JOHN KRUPA, AWI-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief District Judge, Presiding
Argued and Submitted
October 4, 2010—San Francisco, California
Filed February 7, 2011
Before: Marsha S. Berzon and Consuelo M. Callahan,
Circuit Judges, and Charles R. Wolle,
Senior District Judge.*
Opinion by Judge Callahan;
Dissent by Judge Berzon
*The Honorable Charles R. Wolle, Senior District Judge for the U.S.
District Court for Southern Iowa, Des Moines, sitting by designation.
2259
2262 UNITED STATES v. KRUPA
COUNSEL
Katherine Hart of Fresno, California, for defendant-appellant
Peter John Krupa.
Benjamin B. Wagner, United States Attorney, and Brian W.
Enos (argued), Assistant United States Attorney, of Fresno,
California, for the United States.
OPINION
CALLAHAN, Circuit Judge:
Peter Krupa appeals from his conditional guilty plea to
receiving material involving the sexual exploitation of minors
in violation of 18 U.S.C. § 2252(a)(2). Krupa challenges the
district court’s denial of his motion to suppress evidence
seized from computers in his custody. On grounds that differ
slightly from those proffered by the district court we affirm
the denial of the motion to suppress.
On April 12, 2002, the military police at Edwards Air Force
Base received a call from Rhonda Velasco. She was worried
because her ten-year-old daughter and five-year-old son, who
were living on the base with her ex-husband, Sergeant
Velasco, had not arrived at the train station in Lancaster as
previously arranged. Accordingly, the military police went to
Sgt. Velasco’s home. There they encountered Peter Krupa. He
indicated that he was taking care of the children while Sgt.
Velasco was in the Philippines until April 21, and showed the
military police a written note to that effect.
UNITED STATES v. KRUPA 2263
The home was in complete disarray with clothing strewn on
the floor and in the hall. Of particular concern were the pres-
ence of 13 computer towers and two laptops. The military
police asked Krupa for consent to take the computers and he
initially agreed.
On Tuesday, April 16, 2002, Investigator Reynolds (who is
trained in, and specializes in investigating computers and dig-
ital evidence) was assigned to investigate the seized comput-
ers. In his initial search of the computers Reynolds located an
image of suspected contraband. This photograph appeared to
be of a nude 15- to 17-year-old female with a website label
of “www.nude-teens.com.” On Sunday, April 21, 2002, Reyn-
olds was hospitalized for chest pain. The following day, both
Sgt. Velasco and Krupa revoked their consents to the search
of the computers.
Reynolds remained hospitalized until April 25, 2002. While
in the hospital he sought consent for “military search authori-
ty” for the computers. The request was based on the photo-
graph and the fact that consent had been revoked. Reynolds
sought “authority to continue this search for any further items
of contraband.” On April 29, 2002, Colonel LaFave, the
appointed Primary Search Authority Military Magistrate,
signed the search warrant.1 Reynolds resumed his forensic
analysis of the computers, locating adult pornography and 22
images of child pornography.
Sometime thereafter, the matter was transferred to the Fed-
eral Bureau of Investigation (“FBI”). Both parties agree that
on May 14, 2002, during a non-custodial interview, an FBI
Special Agent showed Krupa the suspected child porno-
graphic images recovered from one of the computers and
asked him if he recognized the images. Krupa allegedly stated
that he “had probably viewed all the images because he recog-
1
Krupa’s appeal does not question the propriety of Colonel LaFave act-
ing as the issuing magistrate.
2264 UNITED STATES v. KRUPA
nized that the structure of the filename printed above the com-
puter images to be the same structure he uses to name
computer files on his computers.” On the basis of the evi-
dence obtained pursuant to the military search warrant and
Krupa’s statement, the FBI sought and procured a federal
search warrant from Judge Wanger of the Eastern District of
California.2
Krupa was indicted for violating 18 U.S.C. § 2252(a)(4) —
possession of visual depictions of minors engaging in sexually
explicit conduct. Krupa moved to suppress the evidence
seized from his computer. The district judge found that Krupa
had standing to challenge the seizure of the computers and
had withdrawn his consent. The district court determined that
although the single photograph was insufficient to show prob-
able cause, citing United States v. Battershell, 457 F.3d 1048
(9th Cir. 2006), the motion to suppress would be denied under
the good-faith exception set forth in United States v. Leon,
468 U.S. 897 (1984).
Krupa then pled guilty to receipt of materials depicting sex-
ual exploitation of minors and entered into a plea agreement
which reserved his right to appeal the denial of the motion to
suppress. He was sentenced to 41 months of incarceration.
We review de novo the district court’s denial of a motion
to suppress evidence. United States v. Hill, 459 F.3d 966, 970
(9th Cir. 2006). We review for clear error a magistrate’s find-
ing of probable cause to issue a search warrant, as well as a
Leon good-faith exception, and give “great deference” to such
findings. Id.; see also United States v. Hay, 231 F.3d 630, 634
n. 4 (9th Cir. 2000).
[1] As we noted in Hill, our review starts with the Consti-
tution. We stated:
2
It appears that ultimately 52 images and an additional 48 movies of
child pornography were located within the computers.
UNITED STATES v. KRUPA 2265
“[N]o Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.” U.S. Const. amend. IV. The
Constitution is clear; a magistrate may authorize a
search of a location only if officers establish proba-
ble cause to believe evidence of a crime may be
found there. Probable cause means only a “fair prob-
ability,” not certainty, and requires consideration of
the totality of the circumstances. Illinois v. Gates,
462 U.S. 213, 238, . . . (1983).
Hill, 459 F.3d at 970. In Gates, the Supreme Court observed
that:
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, including the “veracity” and “basis of knowl-
edge” of persons supplying hearsay information,
there is a fair probability that contraband or evidence
of a crime will be found in a particular place. And
the duty of a reviewing court is simply to ensure that
the magistrate had a “substantial basis for . . . con-
clud[ing]” that probable cause existed. Jones v.
United States [362 U.S. 257, 271 (1960)].
In applying this standard, we have reiterated the Supreme
Court’s directive that a magistrate’s determination of probable
cause should be paid great deference by reviewing courts. See
Millender v. County of Los Angeles, 620 F.3d 1016, 1025 (9th
Cir. 2010); U.S. v. Kelley, 482 F.3d 1047, 1050 (9th Cir.
2007); Battershell, 457 F.3d at 1050.
[2] We have further noted that Gates signaled a change
from a technical approach to probable cause to “a return to the
‘totality of the circumstances’ test and emphasized that proba-
ble cause means ‘fair probability, not certainty or even a pre-
2266 UNITED STATES v. KRUPA
ponderance of the evidence.’ ” United States v, Gourde, 440
F.3d 1065, 1069 (9th Cir. 2006) (en banc). In Kelley, we
explained that “[w]hether there is a fair probability depends
upon the totality of the circumstances, including reasonable
inferences, and is a ‘commonsense, practical question,’ ” for
which “[n]either certainty nor a preponderance of the evi-
dence is required.” 482 F.3d at 1050 (quoting Gates, 462 U.S.
at 246, and Gourde, 440 F.3d at 1069).
[3] Although this is a close case, we conclude that Colonel
LaFave could reasonably conclude that there was probable
cause to issue a search warrant. The district court reasonably
thought that pursuant to Battershell, the single picture of a
nude teenage girl was not sufficient in itself to support a
search warrant. Here, however, the picture must be placed in
the context of the exigent unusual circumstances. Military
police, responding to a call from a distressed mother, went to
a home on the military base assigned to Sgt. Velasco. They
found that Sgt. Velasco was not at home, was not even in the
country, and was not expected to return for another nine days.
His minor children were living in what Krupa’s brief
describes as “complete disarray,” under the purported supervi-
sion of Krupa, who was a civilian with no apparent connec-
tion to the armed forces. Moreover, Krupa had control over
the 13 computer towers and two laptops that were in the
home. The military police found this concentration of com-
puters in such a surrounding to be suspicious and sought to
take the computers. Krupa consented to the police taking the
computers. Reynolds was then assigned to investigate whether
the computers were being used for criminal purposes. His ini-
tial investigation revealed a picture of a nude teenager, which
he believed was evidence of child pornography. But before he
could confirm that the computers were being used to store
child pornography, or possibly used for other criminal activ-
ity, Reynolds’ investigation was interrupted by his health
problems.
[4] Thus, when Reynolds sought to continue his ongoing
investigation, Krupa’s intervening revocation of his consent to
UNITED STATES v. KRUPA 2267
the search of the computers required that Reynolds obtain a
warrant to continue his investigation. At that point in time the
picture of a nude teenager, with its tag “www.nude-
teens.com,” was strong supporting evidence that the fifteen
computers found in a home in disarray on a military base
were being used for criminal purposes. Moreover, a ten-year-
old girl and a five-year-old boy were living in the disheveled
residence. Accordingly, Colonel LaFave could reasonably
conclude that was probable cause to support the issuance of
the search warrant.
[5] Our opinion in Battershell, does not compel a contrary
perspective. There, we held that a single photograph of a
young girl between 8 and 10 standing nude in a bath tub is
insufficient to establish probable cause. 457 F.3d at 1051.
However, we went on to hold that a second picture and the
totality of the circumstances did establish probable cause and
we affirmed the denial of the motion to suppress. Id. at 1054.
In Battershell, other than the two photographs extracted from
Battershell’s computer, there was no reason for the authorities
to suspect any criminal activity. Similarly, in Hill, but for a
computer technician’s discovery of what she believed to be
child pornography on the defendant’s computer, 459 F.3d at
968, there was no indication of criminal activity.3 In contrast,
here, the presence of fifteen computers under the control of a
civilian with no apparent ties to the military in a home of a
sergeant (who was out of the country) on a military base in
which two minor children resided and which was in “com-
3
The difficulty inherent in determining whether a photograph of a minor
is a “lascivious exhibition of the genitals or pubic area” as proscribed by
18 U.S.C. § 2256(2)(A)(v), the issue in Battershell, is illustrated by the
subsequent opinion in Hill, 459 F.3d 966. In Hill, we determined that a
state judge finding of probable cause was “well within his discretion,”
even though the description of the photographs (on which the judge issued
the warrant ) was not very different from the description of the first photo-
graph in Battershell. See Hill, 459 F.3d at 968-69, 972. Moreover, Batter-
shell and Hill were decided well after Colonel LaFave issued the search
warrant in this case and thus were not available to guide his decision.
2268 UNITED STATES v. KRUPA
plete disarray” is unquestionably suspicious. Thus, in this
context, even if the picture by itself was insufficient to estab-
lish probable cause, when supplemented with its tag
“www.nude-teens.com,” and the fact that Reynolds had only
started his investigation of the 15 computers, we cannot say
that Colonel LaFave could not reasonably conclude that there
was “a fair probability that contraband or evidence of a
crime” would be found on the computers.
In addition, although not addressed by the parties, we note
that the search took place on a military base and that our case
law at least suggests that civilians such as Krupa impliedly
consent to searches when they enter a military base. See Mor-
gan v. United States, 323 F.3d 776, 778 (9th Cir. 2003) (hold-
ing that a warrantless search of a person seeking to enter
Edwards Air Force Base may be deemed reasonable based on
the implied consent of the person searched).
In sum, giving the appropriate deference to Colonel
LaFave’s determination as required by Gates, 462 U.S. 213,
and our own precedent, we conclude that he could have rea-
sonably determined that there was probable cause to support
the issuance of the search warrant. Accordingly, the district
court’s denial of Krupa’s motion to suppress is AFFIRMED.4
BERZON, Circuit Judge, dissenting:
The majority seems to imagine “probable cause” as a cloud
that follows certain people around, created by their idiosyn-
cratic habits and irresponsible friends, and persisting even
though the individuals are not suspected of any particular
4
Because we determine that Colonel LaFave could have reasonably con-
cluded that there was probable cause to issue the search warrant, we need
not, and do not, consider the district court’s invocation of the good-faith
exception set forth in United States v. Leon, 468 U.S. 897 (1984).
UNITED STATES v. KRUPA 2269
crime. This “probable cause” cloud, the majority imagines, is
available for invocation by law enforcement to justify virtu-
ally any search. But, as the case law makes clear, probable
cause does not exist in the air. And probable cause to think
that someone is odd or a slob or that his friend is a negligent
father does not justify seizing and searching his computers.
Instead, to justify a Fourth Amendment search, there must
be probable cause to think that “contraband or evidence of a
crime will be found in a particular place.” Illinois v. Gates,
462 U.S. 213, 238 (1983). In a case, such as this one, where
the items to be seized — images on a computer — could be,
and usually are, innocuous in nature, an affidavit in support
of a search warrant must establish a “fair probability” that the
images actually are contraband or evidence of a crime. Id.
Here, “the more precise question we must answer is whether
the officer’s affidavit established probable cause that the
images on the defendant’s computer were — as described —
lascivious.” United States v. Hill, 459 F.3d 966, 970-71 (9th
Cir. 2006); cf. Millender v. County of Los Angeles, 620 F.3d
1016, 1030 (9th Cir. 2010) (en banc) (holding that probable
cause to believe that guns are present in a location does not
establish probable cause to search, as “the possession and pur-
chase of guns by itself does not constitute contraband or evi-
dence of a crime.”).
Because the majority loses sight of these fundamental pre-
cepts, I respectfully dissent.
I.
Although the majority stresses that we are to give “great
deference” to a magistrate’s probable cause finding, Maj. op.
at 2264 (quoting Hill, 459 F.3d at 970), deference has never
meant abdicating our role to ensure that the Fourth Amend-
ment is respected. As explained in Gates, this deference is
meant to account for “the Fourth Amendment’s strong prefer-
ence for searches conducted pursuant to a warrant,” lest police
2270 UNITED STATES v. KRUPA
conclude that warrants are simply not worth the trouble and
“resort to warrantless searches, with the hope of relying on
consent or some other exception to the Warrant Clause that
might develop at the time of the search.” 462 U.S. at 236.
Accordingly, Gates instructs us to interpret affidavits in a
“commonsense,” rather than “hypertechnical” manner, id.,
resolving “doubtful or marginal cases” in favor of upholding
the warrant’s validity, id. at 237 n.10 (citation omitted); see
also Millender, 620 F.3d at 1030 (“[W]e are deferential to a
magistrate’s determination of probable cause and consider the
language of a warrant and affidavit in a common sense and
practical manner.”).
Nonetheless, Gates was clear that we “must continue to
conscientiously review the sufficiency of affidavits on which
warrants are issued” to ensure that the magistrate’s issuance
of the warrant was not “a mere ratification of the bare conclu-
sions of others.” 462 U.S. at 239. In practice, applying the
requisite deference means that we look to see whether there
was “a ‘substantial basis’ for probable cause to search.” Mil-
lender, 620 F.3d at 1030 (quoting United States v. Leon, 468
U.S. 897, 915 (1984)).
This is not a “doubtful or marginal case[ ].” Gates, 462
U.S. at 237 n.10. The affidavit supporting the search warrant
for Krupa’s computers was indubitably inadequate to provide
probable cause. As the district court noted, there was but a
single fact arguably supporting probable cause: the discovery
of a photograph that “appeared to be of 15 to 17 year old
female with a web site label of www.nude-teens.com.”
II.
Before turning to that single fact, I note that the majority
maintains that the following additional facts also supported
probable cause: that Sgt. Velasco was out of the country and
had left his two children in the care of Krupa, who was a
civilian; that the home was “complete disarray”; and the pres-
UNITED STATES v. KRUPA 2271
ence of 15 computers.1 Maj. op. at 2266. I agree with the dis-
trict court that none of these additional factors have any
pertinence at all to whether the warrant was issued with prob-
able cause to believe that Krupa possessed child pornography.
First, the living conditions of the residence, however
deplorable, were not mentioned in the affidavit for the mili-
tary search warrant. Similarly, the affidavit makes no mention
of Sgt. Velasco’s whereabouts; it states only that when an
officer visited the residence, “there were no custodial parents
at the house[,] only [Krupa,] who was not affiliated with the
military.” So, even if these facts were at all probative of pos-
session of child pornography — which they are not — they
cannot validate the issuance of the warrant. “[I]n reviewing a
search warrant, we are ‘limited to the information and circum-
stances contained within the four corners of the underlying
affidavit.’ ” Millender, 620 F.3d at 1029 (quoting Crowe v.
County of San Diego, 593 F.3d 841, 869 (9th Cir. 2010)).
As to the facts that were mentioned in the affidavit, we
must consider, of course, “the totality of the circumstances”
in assessing probable cause. United States v. Hay, 231 F.3d
630, 634 n. 4 (9th Cir. 2000) (quoting Gates, 462 U.S. at
238). But a particular fact is only relevant to this inquiry inso-
far as its existence makes it more likely that the suspect is
engaged in the criminal activity suspected. See, e.g., Mil-
lender, 620 F.3d at 1030; Gonzalez-Rivera v. INS, 22 F.3d
1441, 1446-47 (9th Cir. 1994). Neither the government nor
the majority explains how the fact that Krupa was a civilian
living on a military base makes it more likely that there was
1
The government suggests as well that the “defendant’s first providing
consent to review his many computers and then revoking this consent”
supported probable cause. The affidavit supporting the warrant application
also recited this fact as supporting probable cause. But “refusal to consent
to a warrantless search is privileged conduct which cannot be considered
as evidence of criminal wrongdoing.” United States v. Prescott, 581 F.2d
1343, 1351-52 (9th Cir. 1978); see also Gasho v. United States, 39 F.3d
1420, 1438-39 (9th Cir. 1994) (same).
2272 UNITED STATES v. KRUPA
child pornography on his computers, and I certainly see no
connection. This fact is just useless trivia.
The same is true with regard to the fact that there were 15
computers in the home. Neither the majority nor the govern-
ment has explained how this fact makes it one whit more
likely that Krupa had child pornography. There is not even the
bare assertion that, for example, having that many computers,
which Krupa apparently refurbished and resold, fits a “pro-
file” of a collector of child pornography, such as the one dis-
cussed in United States v. Gourde, 440 F.3d 1065, 1072 (9th
Cir. 2006) (en banc). The government asserts that the com-
puter collection is “suspicious[ ],” but does not endeavor to
explain why, or how this “suspicion” is at all related to the
conclusion that the computers had child pornography (or any
other contraband) on their hard drives. As we recently had
occasion to note, “even inexpensive electronic storage media
today can store the equivalent of millions of pages of informa-
tion.” United States v. Comprehensive Drug Testing, Inc., 621
F.3d 1162, 1176 (9th Cir. 2010) (en banc). So it is certainly
not common knowledge that having multiple computers
instead of one makes collecting even very large amounts of
child pornography any more likely; a person so inclined can
download reams of child pornography on a single computer
with an internet connection. See id.2
2
The majority’s invocation of Morgan v. United States, 323 F.3d 776,
778 (9th Cir. 2003) to suggest that “civilians such as Krupa impliedly con-
sent to searches when they enter a military base,” Maj. op. at 2268, fails
badly. There is a very good reason why this argument was, as the majority
notes, “not addressed by the parties,” id.: it is undisputed that Krupa did
not consent. In fact, Krupa expressly revoked his consent to Reynolds
searching his computers. See Maj. op. at 2263 (“[B]oth Sgt. Velasco and
Krupa revoked their consents to the search of the computers.”). Thus, to
make any sense at all, the majority’s suggestion that Krupa impliedly con-
sented to the search of his computers (even after he had revoked his
express consent) must encompass the notion that this implied consent was
irrevocable. The majority provides nothing to support this radical sugges-
tion.
UNITED STATES v. KRUPA 2273
III.
That leaves just the photograph, which was not included
with the affidavit in support of the search warrant. The photo
was described only as “appear[ing] to be of 15 to 17 year old
female.”
United States v. Battershell, 457 F.3d 1048 (9th Cir. 2006)
dictates that this bare description cannot possibly provide
probable cause. As Battershell relates:
Federal law defines five categories of “sexually
explicit conduct” with respect to child pornography.
The first four categories deal with specific conduct
that is easy to identify and describe: “(i) sexual inter-
course, including genital-genital, oral-genital, anal-
genital, or oral-anal, whether between persons of the
same or opposite sex; (ii) bestiality; (iii) masturba-
tion; [and] (iv) sadistic or masochistic abuse . . . .
The fifth category . . . is the “lascivious exhibition
of the genitals or pubic area of any person.”
Id. at 1051 (quoting 18 U.S.C. § 2256(2)(A)).3 The affidavit
in this case makes no mention of any particular conduct, so
the photograph found on Krupa’s computer can only have
fallen into the fifth category.
The affidavit stated only that the female appeared to be 15
Moreover, Morgan concerns only an implied consent to a search of the
person on initial entry onto a military base. Morgan does not suggest, nor
does any other case of which I am aware, that implied consent carries over
as long as the civilian is on the base (or here, even after he has left the
base) and is transferred to his far-out-of-reach possessions as well as his
person.
3
Cal. Penal Code § 311.3, also recited by the affidavit, is identical in all
material respects.
2274 UNITED STATES v. KRUPA
to 17 and was nude. It said nothing about what parts of her
body were depicted, much less that they were exhibited las-
civiously — that is, “so presented by the photographer as to
arouse or satisfy the sexual cravings of a voyeur.” Hill, 459
F.3d at 972 (quoting United States v. Wiegand, 812 F.2d
1239, 1244 (9th Cir. 1987)). And of course, “not all images
of nude children are pornographic.” Id. at 970; see also id.
(“For example, ‘a family snapshot of a nude child bathing
presumably would not’ be criminal.” (citation omitted)).
Indeed, “the law recognizes that some images of nudity may
merit First Amendment protection because they serve artistic
or other purposes, and possessing those images cannot be
criminal.” Id. The affidavit supporting the search warrant said
absolutely nothing from which one could conclude that this
image was child pornography, rather than art. For all we know
from this description, the photograph was taken by a latter-
day Renoir, intent on portraying from the back a young
woman bathing.
The upshot is that here, as in Battershell, the affidavit’s
terse description, absent an accompanying photo-
graph, is insufficient to establish probable cause that
the photograph lasciviously exhibited the genitals or
pubic area because [its] conclusory statement is an
inherently subjective analysis and it is unclear if the
photograph exhibited the young female’s genitals or
pubic area.
Battershell, 457 F.3d 1051.
In one respect, the affidavit here is even more deficient
than that in Battershell, which involved a young female esti-
mated at 8 to 10 years of age. Id. The subject of the photo-
graph here, by contrast, appeared to be 15 to 17 years old.
Had that estimate been low by just a year, this photograph
would not have been illegal child pornography, but rather,
UNITED STATES v. KRUPA 2275
perfectly legal adult pornography, injecting an additional fac-
tor of uncertainty absent in Battershell.
That the photograph had “a web site label” of www.nude-
teens.com adds nothing to the probable cause analysis, at least
absent some effort — apparently not undertaken here, despite
ample opportunity to do so — to ascertain whether that web-
site actually provides pornographic photographs of underage
teenage girls. The website name itself does not indicate that
some, much less most or all, of the photographs on it were
pornographic, nor is there any other evidence so indicating.
By way of contrast, in Gourde, the search warrant affidavit
contained “unequivocal” evidence that a particular website (of
which the defendant was a paid subscriber) “was a child por-
nography site whose primary content was in the form of
images.” 440 F.3d at 1070. Not only did the owner admit as
much, see id., but a government agent also extensively
explored the website, see id. at 1067. Here, in contrast, the
only thing we know is that the photograph had a uniform
resource locator (URL) “label” of “www.nude-teens.com.”
In sum, the only conclusion consistent with Battershell is
that the affidavit did not provide probable cause for the search
warrant.
IV.
As to the Leon holding of the district court, it won’t wash
either. As already described, there is simply no question that
the warrant here was issued on precisely the sort of imper-
missibly “bare bones” affidavit of which Gates warned, see
Gates, 462 U.S. at 239, and no reasonable officer would have
thought that it provided probable cause. See Leon, 468 U.S.
at 899 (“[A]n officer [does not] manifest objective good faith
in relying on a warrant based on an affidavit so lacking in
indicia of probable cause as to render official belief in its
existence entirely unreasonable.”); United States v. Weber,
923 F.2d 1338, 1346 (9th Cir. 1990) (same).
2276 UNITED STATES v. KRUPA
I note that the government has not argued that this was a
situation requiring quick decisionmaking or a hastily-drafted
affidavit. For good reason. Although Reynolds’ illness obvi-
ously complicated matters, that fact, even coupled with the
revocation of consent, did not create the risk that Krupa
would destroy incriminating evidence, as the computers were
in the government’s possession.
Nonetheless, the majority suggests that there were “exi-
gent” circumstances. Maj. op. at 2266. That is simply untrue.
As the majority relates, the computers were seized on April
12. From that point on, the computers were in the possession
of the government, the children were safely in the custody of
their mother, and Krupa was told that he was not permitted to
stay in Sgt. Velasco’s residence. Thus, if there was any exi-
gency, it had long since dissipated when Reynolds obtained
the search warrant some two weeks after the computers were
seized. So, the majority’s suggestion notwithstanding, “there
was no need for the ‘hurried judgment’ upon which law
enforcement decisions must often be based,” Weber, 923 F.2d
at 1346 (citation omitted), and, as in Weber, “[a]lthough we
need not question the subjective good faith of the government,
it acted entirely unreasonably in preparing the affidavit it
presented.” Id.
Conclusion
For the foregoing reasons, I would hold that the affidavit
did not provide probable cause to search Krupa’s computers,
reverse the district court’s application of Leon’s good-faith
exception, and remand for consideration of whether, after
excising the suppressed evidence from the affidavit support-
ing the second search warrant, probable cause remained for
the issuance of the second search warrant.
I cannot help but think that had this case involved anything
but child pornography, it would come out differently. I fear
that understandable abhorrence of this particular crime can
UNITED STATES v. KRUPA 2277
infect judicial judgment. We would do well to remember that
the protections of the Fourth Amendment do not depend on
the nature of the suspected criminal activity, any more than
they do on the race or gender of the suspect. And that is par-
ticularly so where the issue is the searching of personal com-
puters, on which more and more extremely sensitive
information is stored. See Comprehensive Drug Testing, 621
F.3d at 1176-77.
I respectfully dissent.