PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3059
UNITED STATES OF AMERICA
vs.
STEPHEN MIKNEVICH,
Appellant.
___________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3-08-cr-00185-001)
District Judge: The Honorable William J. Nealon
___________
ARGUED MAY 19, 2010
BEFORE: FUENTES, HARDIMAN,
and NYGAARD, Circuit Judges.
(Filed: March 1, 2011)
___________
Nicholas F. Kravitz, Esq. (Argued)
Patrick A. Casey, Esq.
Myers Brier & Kelly
425 Spruce Street, Suite 200
Scranton, PA 18503
Counsel for Appellant
Francis P. Sempa, Esq. (Argued)
Office of the United States Attorney
235 North Washington Avenue, Suite 311
P. O. Box 309
Scranton, PA 18503
Counsel for Appellee
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
I.
We are asked to determine whether an affidavit
prepared by a law enforcement officer provided a substantial
basis for a Pennsylvania district justice=s finding of probable
cause to issue a search warrant. Appellant Stephen
Miknevich was arrested and charged with possession of child
2
pornography. These charges arose after police executed a
search warrant at his home and seized his computer. His
computer was later found to contain numerous images of
child pornography. After the search and seizure of the
computer, Miknevich gave oral and written admissions of
guilt to the arresting officers.
Miknevich then filed a motion to suppress in the
District Court, arguing that the warrant was issued without
probable cause. The District Court denied the motion,
finding that the accompanying affidavit contained an adequate
description of child pornography so as to support a probable
cause determination and, even had it not, the Leon good faith
exception applied. See United States v. Leon, 468 U.S. 897
(1984). Miknevich entered a conditional plea of guilty,
reserving the right to challenge the District Court=s probable
cause determination on appeal. He filed a notice of appeal
raising this issue and also challenging his sentence. We will
affirm.
II.
Because the contents of the affidavit are at issue, we
will quote from it directly as follows:
On 8/16/2007 at Approx. 1559 hr EDT,
Delaware State Police Cpt. R. Scott Garland
was conducting an investigation into the use of
P2P file sharing networks in the distribution of
child pornography images and movies in
violation of Pennsylvania Crime Code Section
3
631 (C), (D), Sexual Abuse of Children
(Possession and dissemination of Child
Pornography). While conducting this
investigation, an off-the-shelf publically
available gnutella client was used. At this
time, the network was queried for files indexed
by a term I know to be related to child
pornography. The network returned to Det.
Garland=s computer a list of files associated
with this term. The list contained details about
these files including the file name, file type, file
size, SHA1 value for the file and a number of
users on the network with the file or portions of
the file available for download by other gnutella
network users.
Det. Garland reviewed the list of files and
observed a file named, A!!Novo
Ptsc-Alyo(6yo)&Ali(7yo) Ptsc-littlenorwegian
angels stroke their erect clits-nudist child,@with
an SHA1 value of
RGQCV2AC6XD3JE5KULOBAJWQTVBBX
XHC. Det. Garland knows this file with this
SHA1 value to be child pornography. The
movie is described as children, under the age of
eighteen years old engaged in sexual acts and/or
poses. Det. Garland then attempted to
download this movie form (sic) those sharing it
on the network.
4
Shortly after Det. Garland indicated to
download the movie, the network returned a list
of users with their IP address, who had the file
or portions of the file available to download
from it. Det. Garland reviewed this list and
observed a user with the IP address of
75.75.148.179. The software was set to locate
computers sharing images of child pornography.
Det. Garland was presented with an IP address
of 75.75.148.179 and captured this IP address
by performing a ANetstat capture@ on 8/16/2007
@ 1559 hrs. EDT.
Lt. Peifer viewed the video file based on the
SHA1 value and based on my training and
experience the children appear to be under the
age of 18 years old.
On 9/17/2007, Lt. Peifer prepared a Court Order
in the Court of Common Pleas in Delaware
County [Pennsylvania] directing Comcast Cable
Communications to supply subscriber
information on the person assigned to IP
address 75.75.148.179 on 8/06/2007 @ 1559 hrs
ESDT. This order was submitted to Delaware
County Common Please (sic) Court Judge Frank
T. Hazel.
On 9/21/2007 at approx. 1616 hrs Lt. Peifer
received a response from Comcast Cable
5
Communications in reference to the court order
sent.
Comcast indicated that the IP address
75.75.148.179 on 8/16/2007 @1559 hrs EDT
was in use by the following subscriber in the
name of:
Steven Miknevich, 72 Pincecrest Ave., Lft,
Dallas, Pa. 18612 PH# 570-760-7643.
Based on this information, Pennsylvania State Trooper
Michael Gownley averred to a Pennsylvania district justice
that computer images depicting children less than eighteen
years of age engaged in sexual conduct were located at
Miknevich=s residence and that those depictions were
evidence of a crime involving the sexual abuse of children.
Gownley obtained a warrant and seized Miknevich=s
computer.
Miknevich argues that the warrant is infirm because
the Pennsylvania district justice premised his probable cause
determination on the file name and its related electronic
identification SHA1 value1, not on his or the investigating
1.
A SHA1 (or SHA-1) value is a mathematical
algorithm that stands for Secured Hash Algorithim used to
compute a condensed representation of a message or data file.
Thus it can act like a fingerprint. See, e.g., Lexmark Intern.,
Inc. v. Static Control Components, Inc., 387 F.3d 522, 530
(6th Cir. 2004).
6
officers= viewing of the file=s contents. Further, he maintains
that the only officer who did view the file did not say that he
saw child pornography and that the district justice only
inferred as much. According to Miknevich, speculation
cannot be the basis upon which a probable cause
determination is made.
III.
We first distinguish between the standards that govern
our review.2 We exercise plenary review over the District
Court=s evaluation of the Pennsylvania district justice=s
probable cause determination because the District Court
limited its decision to the information contained in the
warrant affidavit. United States v. Vosburgh, 602 F.3d 512,
526 (3d Cir. 2010); see also United States v. Stearn, 597 F.3d
540, 554 (3d Cir. 2010). Because our review of the District
Court=s decision denying Miknevich=s motion to suppress is
plenary, we apply the same deferential standard that the
District Court applied in reviewing the initial probable cause
determination. United States v. Jones, 994 F.2d 1051, 1055
(3d Cir. 1993). That is, we must pay Agreat deference@ to the
magistrate=s initial determination of probable cause. Illinois
v. Gates, 462 U.S. 213, 236 (1983).3
2.
The District Court had jurisdiction pursuant to 18
U.S.C. ' 3231. We have jurisdiction pursuant to 28 U.S.C. '
1291.
3.
Although the warrant was issued by a Pennsylvania
district justice, its validity is governed by federal law. United
States v. Rickus, 737 F.2d 360, 364 (3d Cir. 1984).
7
Thus, in reviewing the probable cause assessment, we
do not undertake a de novo review of whether probable cause
actually existed. Jones, 994 F.2d at 1054. Instead, like that
of the District Court, our role is limited to ensuring that a
magistrate4 had a Asubstantial basis@ for concluding that the
affidavit supporting the warrant established probable cause.
Id. at 1054-55; see also Gates, 462 U.S. at 236. When we
make this assessment, we confine ourselves Ato the facts that
were before the magistrate judge, i.e., the affidavit, and do not
consider information from other portions of the record.@
Jones, 944 F.2d at 1055. Moreover, Athe resolution of
doubtful or marginal cases in this area should be largely
determined by the preference to be accorded to warrants.@ Id.
at 1057-58. With that said, however, the great deference
afforded a magistrate=s determination Adoes not mean that
reviewing courts should simply rubber stamp a magistrate=s
conclusion.@ United States v. Tehfe, 722 F.2d 1114, 1117 (3d
Cir. 1983), cert. denied sub nom., Sanchez v. United States,
466 U.S. 904 (1984).
The principles governing a probable cause
determination are well established. A magistrate may find
probable cause when, viewing the totality of the
circumstances, Athere is a fair probability that contraband or
evidence of a crime will be found in a particular place.@
4.
We use the term Amagistrate@ generally, referring to
any member of the judiciary B federal or state B who has the
authority to issue warrants.
8
Gates, 462 U.S. at 238. Proof beyond a reasonable doubt is
not required. Id. at 235. Further, if a substantial basis exists
to support the magistrate=s probable cause finding, we must
uphold that finding even if a Adifferent magistrate judge might
have found the affidavit insufficient to support a warrant.@
United States v. Conley, 4 F.3d 1200, 1205 (3d Cir. 1993).
The duty of a reviewing court is Asimply to ensure that the
magistrate had a substantial basis for . . . concluding that
probable cause existed.@ Gates, 462 U.S. at 238. We have
held that Aprobable cause is a fluid concept@ that turns on Athe
assessment of probabilities in particular factual contexts not
readily, or even usefully, reduced to a neat set of legal rules.@
United States v. Shields, 458 F.3d 269, 277 (3d Cir. 2006)
(citing Gates, 462 U.S. at 232). The supporting affidavit to a
search warrant is to be read in its entirety and in a common
sense, nontechnical manner. See United States v. Williams,
124 F.3d 411, 420 (3d Cir. 1997).
IV.
Miknevich argues that the affidavit of probable cause
was deficient because it did not contain enough information to
give the Pennsylvania district justice a substantial basis to
conclude that there was a fair probability that contraband or
evidence of criminal activity would be found on his computer.
He points to several alleged defects: the affidavit does not
indicate that any investigating officer actually downloaded the
suspect video file; the affidavit does not indicate that anyone
ever actually viewed the suspect file; and the affidavit
contains no description of the suspected images or actions in
these files.
9
We credit Miknevich=s criticism of the affidavit as far
as it goes. The affidavit was, in parts, inartfully drafted.
This stems, no doubt, from the fact that the affiant took no
direct part in the investigation, and instead related the work of
other law enforcement officials B Det. Garland and Lt. Peifer.
Although the District Court relied on the fact that the
affidavit did not state that Garland never viewed the contents
of the file, the opposite is equally true B the affidavit does not
specifically state that he did. Garland conducted a search for
suspected child pornography using a term he knew to be
related to that crime. But Garland does not indicate what
that term was. His search generated a list of files associated
with this term, but Garland does not provide the district
justice with a detailed description of what those files depict.
After reviewing the list, one file with a particular SHA1 value
was noticed. Garland Aknew this file and this SHA1 value to
be child pornography.@ The detective, however, does not
indicate how he knew this information.
It is not unreasonable for us to assume that Garland
never actually viewed the images or videos. The affidavit
relates that he Aattempted@ to download the file contents,
which, we could conclude, means he was unsuccessful and
never actually viewed the contents of the files in question.
Further, Garland indicates that A[t]he movie is described as
children, under the age of eighteen years old engaged in
sexual acts and/or poses.@ Here, Garland relies on what
could be a second-hand description of the file=s contents B not
his own viewing of the contents. That, however, does not
make the affidavit infirm.
10
Garland forwarded his search results to Lt. Peifer of
the Delaware County Pennsylvania Internet Crimes Against
Children Task Force. The Government maintains that Peifer
did indeed view the file=s contents. Here again, the affidavit
is imprecise, relating that Piefer Aviewed the video file based
on the SHA1 value and based on [his] training and experience
the children appear to be under the age of 18 years old.@ The
statement that he viewed the file Abased on its SHA1 value@ is
confusing. It could indicate that Peifer merely viewed the
file as part of the listing generated by the search. Assuming,
however, that Peifer did view the contents of the file, he
nonetheless failed to describe any of the images contained
therein with any detail. He avers, based on his training and
experience, that the children Aappear to be@ under the age of
eighteen. Additionally, although the affidavit does state that
Peifer is Afamiliar with Peer-to-Peer file sharing,@ it does not
relate the extent of Peifer=s experience and training.
Thus, our review of the affidavit leaves a clear
impression: the state magistrate was presented with an
affidavit that provided no factual details regarding the
substance of the images in question. Although either the
actual production of the images, or a sufficiently detailed
description of them, satisfies the Fourth Amendment=s
probable cause requirement, an insufficiently detailed or
conclusory description cannot. See New York v. P.J. Video,
475 U.S. 868, 874 (1986). We believe, however, that even
given the infirmities we highlighted, the affidavit still
contained information sufficient to permit a finding of
probable cause by the magistrate.
11
A.
It is clear that a magistrate can determine probable
cause without seeing the images and/or viewing the contents
of an illicit computer file. The Supreme Court has stated
that:
[W]e have never held that a magistrate must
personally view allegedly obscene films prior to
issuing a warrant authorizing their seizure. On
the contrary, we think that a reasonably specific
affidavit detailing the content of a film
generally provides an adequate basis for the
magistrate to determine whether there is
probable cause to believe that the film is
obscene, and whether a warrant authorizing the
seizure of the film should issue.
P.J. Video, 475 U.S. at 847. We therefore reject any
suggestion that a magistrate must review the contents of the
actual files in question, or that a search warrant must include
copies of the images giving rise to the request for a warrant.5
5.
Although a magistrate is not required to do so, at least
one jurist has urged his colleagues to view such files. Judge
John Adams of the United States District Court for the
Northern District of Ohio recently wrote a passionate opinion
(albeit on sentencing), imploring reviewing courts to
Apersonally examine the images at issue and not simply rely
on a written description of their contents. There are some
12
Although magistrates do not have to view these files, the
question more pertinent here is whether the investigating
officers must do so.
It can be problematic, to say the least, when a warrant
application leaves one questioning whether anyone viewed the
contents of the file in question. Nothing in the opinion we
announce today should be taken as a rejection or relaxation of
what we believe continues to be the best procedure for law
enforcement officials to follow. It remains the better practice
for an applicant seeking a warrant based on images of alleged
child pornography to append the images or to provide a
description of the images sufficient to enable the magistrate to
determine independently whether probable cause exists. See,
images that are haunting and they cannot be unseen.
However, any uneasiness felt by the individual reviewing the
images pales in comparison to the harm caused by the image
being created in the first place.@ United States v.
Cunningham, 680 F. Supp. 2d 844, 854 (N.D. Ohio 2010); see
also United States v. Fiorella, 602 F. Supp. 2d 1057, 1075 n.8
(N.D. Iowa 2009) (AIt is easier to overlook the horrors of child
pornography when, as is often the case, the material at issue is
not presented to the sentencing judge. For purposes of
efficiency and minimization of re-victimization of the
children depicted, the government and the defendant will
often (and rightly so) enter into stipulations about the number
and nature of the photographs at issue. But the horrors of
child pornography are real even if those who sit in judgment
do not have occasion to view them.@).
13
e.g., United States v. LaFortune, 520 F.3d 50, 56 (1st Cir.
2008). Here, however, the magistrate could have drawn a
reasonable inference of the file=s contents based on its highly
descriptive name and SHA1 value.
B.
Determining the existence (or lack) of probable cause
involves making a Apractical, common-sense decision@ as to
whether, given the totality of facts, a Afair probability@ exists
that contraband will be found in a particular place. Gates,
462 U.S. at 238. Probable cause can be inferred by
Aconsidering the type of crime, the nature of the items sought,
the suspect=s opportunity for concealment and normal
inferences about where a criminal might hide the fruits of his
crime.@ United States v. Hodge, 246 F.3d 301, 305 (3d Cir.
2001) (citing United States v. Jones, 994 F.2d 1051 (3d Cir.
1993)) (internal quotation marks omitted). Indeed, we have
specifically instructed that an affidavit filed in support of an
application for a search warrant is to be read in its entirety,
with the focus on what the affidavit includes, not what is
missing. See Williams, 124 F.3d at 420; Jones, 994 F.2d at
1056.
The affidavit here provided the magistrate with
sufficient information to make an independent assessment of
probable cause. The title of the computer file at issue
contained highly graphic references to specific sexual acts
involving children. The file name refers to the ages of the
children (A6yo@ and A7yo@) and to graphic sexual activities
(Alittle norwegian angels stroke their erect clits@). This
14
description indicates minors engaged in sexually explicit
conduct. The unmistakable inference arising from this highly
descriptive file name is that the file=s contents include
material pertaining to the sexual exploitation of children.
Given the name of the file in question and its graphic
reference to specific sexual acts involving young children,
and given the file=s SHA1 value, this inference is a strong one
and established probable cause.
We recognize that file names are not always a
definitive indication of actual file content and, therefore, only
after downloading and viewing a particular file can one know
with certainty whether the content of the file is consistent with
its designated name. However, A[c]ertainty has no part in a
probable cause analysis.@ United States v. Frechette, 583
F.3d 374, 380 (6th Cir. 2009); see also Vosburgh, 602 F.3d at
527; United States v. Urban, 404 F.3d 754, 774 (3d Cir. 2005)
(quoting Tehfe, 722 F.2d at 117-18). On the contrary,
Aprobable cause requires only a probability or substantial
chance of criminal activity, not an actual showing of such
activity.@ Gates, 462 U.S. at 244 n.13. We acknowledge that
in some circumstances a computer file name may not provide
meaningful insight into its contents, especially where the file
name contains a term or name that is commonplace or
otherwise capable of different interpretations. However, it
does not necessarily follow that file names can never be
regarded as a logical indication of the file=s contents. A file=s
name may certainly be explicit and detailed enough so as to
permit a reasonable inference of what the file is likely to
depict. The unmistakable inference which arises from the
15
file name here is that its contents include material pertaining
to the sexual exploitation of children.
Further, the affidavit relates that Garland knew the file
in question contained child pornography because he
recognized the file=s SHA1 value,
RGQCV2AC6XD3JE5KULOBAJWQTVBBXXHC, as one
indicating child pornography. This too is relevant to
probable cause. The affidavit explains the significance of the
SHA1 value as a >digital fingerprint= and avers that the
investigating officers were familiar with the SHA1 value
associated with the file on Miknevich=s computer. We
conclude that the affidavit seeking the search warrant
contained sufficient facts to support a finding that there was a
fair probability that Miknevich possessed child pornography
and that there was evidence of such possession at the location
described in the affidavit. The District Court=s order
upholding the search warrant will be affirmed.
C.
Because we find that the affidavit presented to the
district justice was sufficient to provide a Asubstantial basis@
for finding a fair probability that evidence would be located
on Miknevich=s computer, we need not reach the issue of
good faith reliance on a warrant pursuant to Leon. Therefore,
and for the reasons set forth above, we will affirm the District
Court=s decision.
V.
16
As a final matter, Miknevich challenges his sentence of
151 months imprisonment. He argues this sentence violates
his right to be free from cruel and unusual punishment under
the Eighth Amendment to the Constitution. We employ a
plenary standard of review to a defendant=s Eighth
Amendment challenge to his sentence. United States v.
Walker, 473 F.3d 71, 75 (3d Cir. 2007). Where, as here, an
Eighth Amendment challenge to a sentence was not brought
before the District Court, we review for plain error. United
States v. Couch, 291 F.3d 251, 252-53 (3d Cir. 2002).
Finding no error, we will affirm Miknevich=s sentence.
We have pointed out that the Eighth Amendment
proscribes Apunishment >grossly disproportionate to the
severity of the crime.=@ United States v. Martorano, 866 F.2d
62, 69 (3d Cir. 1989) (quoting Ingraham v. Wright, 430 U.S.
651, 667 (1977)). Thus, A[a]lthough the [Supreme Court=s]
proportionality principle applies to sentences for terms of
years, only an extraordinary case will result in a constitutional
violation.@ Walker, 473 F.3d at 79 (citing Lockyer v. Andrade,
538 U.S. 63, 72, 77 (2003)).
Generally, a sentence within the limits imposed by
statute is neither excessive nor cruel and unusual under the
Eighth Amendment. See, e.g., United States v. Johnson,
451 F.3d 1239, 1243 (11th Cir. 2006) (quotation omitted).
This is so because we accord substantial deference to
Congress, as it possesses broad authority to determine the
types and limits of punishments for crimes. United States v.
Raad, 406 F.3d 1322, 1323 (11th Cir. 2005) (quotation marks
omitted). For that reason, the Supreme Court has made it
17
clear that, A>[o]utside the context of capital punishment,
successful challenges to the proportionality of particular
sentences [will be] exceedingly rare.=@ Solem v. Helm, 463
U.S. 277, 289-90 (1983) (quoting Rummel v. Estelle, 445 U.S.
263, 272 (1980)); see also United States v. Walker, 473 F.3d
71, 80 (3d Cir. 2007).
We fail to see how this is such an extraordinary case.
Miknevich=s guideline range was 151-188 months in prison.
Here, the District Court sentenced Miknevich to 151 months
imprisonmentBa sentence at the very bottom of the suggested
sentencing range. Miknevich has not shown, as is his burden,
that his sentence plainly violates the Eighth Amendment.
Moreover, this case does not remotely resemble any of the
cases in which the Supreme Court found a great disparity
between crime and sentence so as to constitute an Eighth
Amendment violation. See Solem, 463 U.S. at 303 (finding
that a sentence of life imprisonment without the possibility of
parole for a repeat offender whose prior crimes were
relatively minor and whose charged crime was minor and
nonviolent violated the proportionality principle of the Eighth
Amendment); Weems v. United States, 217 U.S. 349, 358, 382
(1910) (finding that a sentence of 15 years= imprisonment and
hard labor for falsifying a public document was
unconstitutional). In sum, the District Court did not plainly
err in sentencing Miknevich within the statutory limits, which
neither we nor the Supreme Court has held to be cruel and
unusual and Miknevich failed to meet his burden to establish
otherwise.
VI.
18
The District Court=s judgment of conviction and
sentence will be affirmed.
19