ACCEPTED
03-14-00090-CR
3806155
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/16/2015 5:00:42 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00090-CR
FILED IN
3rd COURT OF APPEALS
Jn tbe Qeourt of ~peals for tbe m;btrb ~upreme AUSTIN, TEXAS
1/16/2015 5:00:42 PM
jfubicial 1!\istrict of mexas at ~ustin JEFFREY D. KYLE
Clerk
No. D-1-DC-10-100006
In the District Court for the 299th
Judicial District, Travis County, Texas
PAUL MARTIN AHERN, APPELLANT
v.
STATE OF TEXAS, APPELLEE
APPELLANT'S REPLY BRIEF
Oral Argument Requested
DAVID GONZALEZ
State Bar No. 24012711
KRISTIN ETTER
State Bar No. 24038884
SUMPTER & GONZALEZ, L.L.P
206 East 9th Street, Ste. 1511
Austin, Texas 78701
Tel.: (512) 381-9955
Fax: (512) 485-3121
ATTORNEYS FOR APPELLANT
TABLE OF CONTENTS
PARTIES TO TRIAL COURT'S FINAL JUDG:MENT .......................................... 4
INDEX OF AUTHORITIES ..................................................................................... 3
INTRODUCTION ..................................................................................................... 5
ARGUMENT ............................................................................................................. 8
The uploading of two images of child pornography over a fifteen month period
does not qualify as "ongoing criminal activity" nor does that assertion, without
more, support an assumption that Mr. Ahern was a "collector" of child
pornography ............................................................................................................ 8
A. Two images of child pornography over a fifteen month period
. not evi.dence of ''ongoing
IS . or contmuous
. . . 1 activity
cnmina . . ,, ............................. . 10
B. Two uploads of child pornography with nothing more is not
evidence that Mr. Ahern was a "collector" of child pornography ....................... 12
CONCLUSION ....................................................................................................... 13
PRAYER ................................................................................................................. 14
Appellant's Reply Brief- Page 2
Paul Martin Ahern v. State ofTexas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3rd District ofTexas
Trial Court Cause No. DIDC10100006; in the 299'h District Court ofTravis County, Texas
INDEX OF AUTHORITIES
CASES
TEXAS
COURT OF CRIMINAL APPEALS
Wise v. State, 364 S.W.3d 900, (Tex.Crim.App. 2012) ......................................... 8
THIRD COURT OF APPEALS
Kennedy v. State, 338 S.W.3d 84, (Tex.App.-Austin 2011, no pet.) .......... ,. ....... 11
Taylor v. State, 54 S.W.3d 21 (Tex.App.-Amarillo 2001) ................................... 14
FEDERAL
CIRCUIT COURTS
United States v. Gourde, 440 F .3d I 065 (9th Cir. 2006) ........................................ 6
United States v. Harvey, 2 F.3d 1318 (3rd Cir.1993) ............................................ 12
United States v. Lacy, 119 F.3d 742 (9th Cir. 1997) ............................................. 11
United States v. Newsome, 402 F .3d 780 (7th Cir. 2005) ...................................... 12
United States v. Pitts, 6 F .3d 1366 (9th Cir. 1993) ................................................. 7
United States v. Wagner, 989 F .2d 69 (2nd Cir. 1993) ......................................... 11
DISTRICT COURTS
United States v. Coon, 2011 WL 1871165 (W.D.N.Y.2011) ............................ 7,11
United States v. Greathouse, 297 F. Supp. 2nd 1264 (D. Or. 2003) .................. 7,10
Appellant's Reply Brief- Page 3
Paul Martin Ahern v. State ofTexas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3rri District ofTexas
Trial Court Cause No. DJDC10100006; in the 299h District Court ofTravis County, Texas
PARTIES TO TRIAL COURT'S FINAL JUDGMENT
In accordance with Tex.R.App.Proc. 38.l(a), Appellant certifies that the
following is a complete list of the parties and their counsel:
(a) the State of Texas represented by:
Mary Ann Farrington- trial attorney
Travis County District Attorney's Office
PO Box 1748
Austin, TX 78767
Rosa Theofanis - appellate attorney
Travis County District Attorney's Office
PO Box 1748
Austin, TX 78767
Scott Taliaferro - appellate attorney
Travis County District Attorney's Office
PO Box 1748
Austin, TX 78767
(b)Mr. Paul Martin Ahem, represented by:
David Gonzalez - trial and appellate attorney
State Bar No. 24012711
Sumpter & Gonzalez, L.L.P.
206 East 9th Street, Suite.1511
Austin, Texas 78701
Kristin Etter - trial and appellate attorney
State Bar No. 24038884
Sumpter & Gonzalez, L.L.P.
206 East 9th Street, Suite 1511
Austin, Texas 78701
Appellant's Reply Brief- Page 4
Paul Martin Ahern v. State of Texas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3rd District ofTexas
Trial Court Cause No. DlDC10100006; in the 299'h District Court ofTravis County, Texas
TO THE HONORABLE JUDGES OF THE COURT OF APPEALS:
COMES NOW, Paul Martin Ahem, Appellant in this cause, by and through
his Attorneys of record, David Gonzalez and Kristin Etter, and, pursuant to the
provisions of Tex.R.App.Pro. 38, et seq., files this Appellant's Reply Brief on
original appeal.
INTRODUCTION
The nature of this case follows the path of how outliers in society test the
principles of Constitutional law. Members of white supremacist groups may
communicate their racist beliefs under the protection of the First Amendment.
Murderers may rely upon the Fifth Amendment to invoke their right to remain
silent when confronted in a hostile interrogation. Even citizens and noncitizens
retain their Sixth Amendment right to counsel when there is overwhelming
evidence that they committed a terrorist act against this country.
And people who use their computer to look at naked people - including
child erotica - retain a Fourth Amendment protection of their right to privacy
absent probable cause they currently possess child pornography.
It has been proposed that "[s]ex with children is so disgusting to most of us
that we may be too liberal in allowing searches when the government investigates
child pornography cases. The privacy of people's computers is too important to let
Appellant's Reply Brief- Page 5
Paul Martin Ahern v. State ofTexas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3rd District ofTexas
Trial Court Cause No. DIDCIOI00006; in the 29!l' District Court ofTravis County, Texas
it be eroded by sexual disgust." United States v. Gourde, 440 F.3d 1065, 1078 (9th
Cir. 2006) (Kleinfeld, J. dissenting). "In this age of increasing government
surveillance, lawful and unlawful, and of the retention of all our deeds and
thoughts on computers long after we may believe they have been removed, it is
important that courts not grow lax in their duty to protect our right to privacy and
that they remain vigilant against efforts to weaken our Fourth Amendment
protections. It is easy for courts to lose sight of these objectives when the
government seeks to obtain evidence of child pornography . . ."United States v.
Gourde, 440 F.3d 1065, 1074 (9th Cir. 2006) (Reinhardt, J., dissenting).
These spirited and principled dissenting opinions do not embrace the
objectionable and offensive nature of child pornography. Rather, the opinions
express significant concerns in our cognitive bias that we bend the rules in order to
refuse protection to materials that we find disgusting and abhorrent. Regretfully,
many courts have taken a more lax approach to the staleness doctrine in the context
of child pornography cases. Even so, sufficient evidence or probable cause must
still be alleged in the search warrant. Probable cause to believe that a suspect has
committed a crime is not by itself adequate to obtain a search warrant for a
suspect's home and claims of staleness must still be evaluated "in light of the
Aopellant's Reply Brief- Page 6
Paul Martin Ahern v. State ofTexas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3rJ District ofTexas
Trial Court Cause No. DIDC10100006; in the 299h District Court ofTravis County, Texas
particular facts of the case and the nature of the criminal activity and property
sought." United States v. Pitts, 6 F.3d 1366, 1369 (9th Cir. 1993).
The State concedes the search warrant "affidavit included positive
verification of only two of the reported child pornographic images as being child
pornography" over a fifteen month period. STATE'S BRIEF at 20 (emphasis added).
However, in an attempt to bolster its position that the search warrant was not stale,
the government mischaracterizes- inadvertently or not- a central issue in this
case: that "the suspected child pornographic images that were uploaded based on
the 'Cybertips' were far greater in number" and that the affidavit stated that
"appellant's account was implicated in three formal complaints for uploading
hundreds of child pornographic images." STATE'S BRIEF at 20-22 (emphasis
added). Those statements are false and inaccurate. Nothing in the affidavit
supports these assertions. There is simply no basis, in law or in fact, for the State's
mischaracterizations.
As a consequence, because the State's entire argument rests on the faulty
assumption that there were hundreds of images of child pornography referenced in
the affidavit, all of its arguments and the attempts to distinguish Mr. Ahem's
supporting caselaw such as Coon and Greathouse are unfounded and misguided.
Because the search warrant affidavit only identifies two images of child
Appellant's Reply Brief- Page 7
Paul Martin Ahern v. State ofTexas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3rJ District ofTexas
Trial Court Cause No. D1DC10100006; in the 29ffh District Court ofTravis County, Texas
pornography that were uploaded over a fifteen month period prior to the search
warrant application, the search warrant was stale and thus not supported by
probable cause.
ARGUMENT
The uploading of two images of child pornography over a fifteen month
period does not qualify as "ongoing criminal activity" nor does that
assertion, without more, support an assumption that Mr. Ahern was a
"collector" of child pornography.
The State argues the search warrant affidavit was based upon Sgt. Padron
receiving information that on November 16, 2008 and December 29, 2008 a
Flickr.com subscriber "had uploaded 181 images of child pornography (emphasis
added)." STATE'S BRIEF, at 18. That is a misquote of the affidavit. The correct
quotation is that on November 16, 2008 and on December 29, 2008 a Flicker.com
subscriber had uploaded "181 images that contained child pornography" R.R. VI,
11 (emphasis added). Then on March 27, 2009, a Flicker.com subscriber again
uploaded 70 images "that contained child pornography." R.R. VI, 12 (emphasis
added).
At first glance this appears to be a semantic difference. It is not. In the
affidavit, after personally viewing presumably all of the images, Sgt. Padron
confirmed that there were only two images of child pornography out of the two
hundred fifty one images. This is a crucial distinction. While possession of child
Appellant's Reply Brief- Page 8
Paul Martin Ahern v. State of Texas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3rcJ District ofTexas
Trial Court Cause No. DIDCI0100006; in the 299'11 District Court ofTravis County, Texas
pornography is obviously illegal, possession of adult pornography or child erotica
• 1
1s not.
Thus, while the search warrant affidavit references the uploading of 181
images and 70 images on those three separate dates, in analyzing the sufficiency of
the search warrant affidavit, there were only two confirmed images of child
pornography, "img92.jpg" and "img 154.jpg," out of two hundred fifty one total
images. R.R. VI, 17-18. This is notable because that means that only .008% ofthe
images that Mr. Ahem was accused of uploading were verifiable images of child
pornography, a factor which weighs against any finding that Mr. Ahem was a
"collector" of child pornography. This significant distinction, as to whether the
affidavit stated there were hundreds of images of child pornography or only two
images, is critical when analyzing the four comers of the affidavit to determine
whether Mr. Ahem was in fact involved in ongoing criminal activity and whether
he meets a "collector" profile.
1
Child erotica has been described as a "picture of a child either clothed or nude" that is not illegal. Wise v. State,
364 S. W.3d 900, 907 FN6 (Tex.Crirn.App. 20 12). The further issue- whether or not images of child erotica would
give rise to probable cause to search for child pornography- raises both First Amendment and Fourth Amendment
concerns that were not raised in the search warrant affidavit. Could the state obtain a search warrant based upon an
internet search history where a user was looking for "teen pornography" on the basis that it may also include child
pornography? Are all pictures of naked children subject to an analysis about whether there would be probable cause
to search for lewd pictures of naked children? Had the Detective alleged that the presence of child erotica is
probable cause for child pornography, the magistrate could have conducted a different analysis. In the case at bar,
appe11ant argues that the semantics used provide a false impression that Mr. Ahem uploaded hundreds of pictures of
child pornography - the same impression the State advances in its brief.
Appellant's Reply Brief- Page 9
Paul Martin Ahern v. State ofTexas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3rd District ofTexas
Trial Court Cause No. DIDCIOI00006; in the 299'h District Court ofTravis County, Texas
A. Two uploads of child pornography over a fifteen month period
with nothing more is not evidence of "ongoing or continuous
criminal activity."
In Coon, the warrant was executed eleven months after one known image of
child pornography was discovered to have been downloaded from the defendant's
computer. United States v. Coon, 2011 WL 1871165, *4-5 (W.D.N.Y.). There,
the officers took the same steps it did here; namely they verified the IP address,
subscriber name, and physical address and conducted a criminal history check. In
that case, the court noted that there was no evidence that suggested that the
defendant collected or hoarded child pornography and that the one year lapse in
time without corroboration made the warrant stale. Id. at *3-4.
Likewise, in United States v. Greathouse, the showing of probable cause
consisted of a download of eight child pornography images and four child
pornography videos on one date thirteen months prior to the application of the
search warrant court. United States v. Greathouse, 291 F.Supp.2d 1264, 1273
(D.Or.2003). There, in finding that the "thirteen month delay in this case is simply
too long," the court stated that "[i]f a line must be drawn in internet child
pornography cases, I find that the line is one year absent evidence of ongoing or
continuous criminal activity (emphasis added)." I d.
Appellant's Reply Brief- Page I 0
Paul Martin Ahern v. State of Texas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3rJ District ofTexas
Trial Court Cause No. DIDC10100006; in the 29911 District Court ofTravis County, Texas
Here, Mr. Ahem was identified as the account holder in December of 2008
(after suspicious uploads occurred November 16, 2008 and December 29, 2008)
and the last suspicious upload occurred in March 2009 (though it is unclear which
of the three dates produced the two images) yet the application of the search
warrant did not occur until February 11, 2010. There was no further criminal
activity after March 2009 and no further investigation to "freshen up" the stale
evidence. This is critical because the rationale behind the stale concept in search
warrant affidavits is that the facts must be sufficiently close in time to the issuance
of the warrant and the search so that probable cause can be said to exist at the time
of the search - not as of sometime in the past. See United States v. Wagner, 989
F.2d 69, 75 (2d Cir. 1993) (holding that six week delay between drug purchase and
search warrant affidavit was stale).
In fact, similar to Coon, the only "investigation" that occurred in the almost
fifteen month period was a verification of the IP address, subscriber name, and
physical address, a criminal history check, and a drive by Mr. Ahem's home.
Unlike other cases relied on by the goverrunent there was no evidence of "activity
of a protracted and continuous nature, i.e., a course of conduct." Kennedy v. State,
338 S.W.3d at 93 (Tex.App.-Austin 2011, no pet.); see also, United States v. Lacy,
119 F .3d 742, 746 (9th Cir. 1997) (defendant contacted child pornography bulletin
Appellant's Reply Brief- Page 11
Paul Martin Ahern v. State ofTexas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3rJ District ofTexas
Trial Court Cause No. DIDC10100006; in the 299'h District Court ofTravis County, Texas
board system sixteen times and downloaded six images of child pornography);
United States v. Harvey, 2 F.3d 1318, 1322-23 (3d Cir. 1993) (evidence defendant
possessed child pornography 13-15 months previously not stale where supported
by evidence of additional mailings within two months of warrant's execution);
United States v. Newsome, 402 F.3d 780, 783 (7th Cir. 2005) (where police did not
base the search warrant on the year-old pornographic images alone but also relied
on the recent discovery by the defendant's girlfriend of a pornographic tape of her
minor daughter).
B. Two images of child pornography with nothing more is not
evidence that Mr. Ahern was a "collector" of child pornography.
The State tries to further justify its position that there was sufficient
evidence in the search warrant affidavit to warrant a fmding that Mr. Ahem was a
child pornography "collector" based on its continued erroneous position that
"scores of images had been reported to be uploaded over a four month period of
time in three separate uploads." STATE's BRIEF at 52-53. However, per the
affidavit, Mr. Ahem didn't upload "scores of images," he uploaded two. In no
other context would possession of two items qualify someone as a collector. The
uploading of two images of child pornography without any further evidence is not
under any stretch of the caselaw sufficient to place Mr. Ahem under the child
pornography "collector" profile." Unlike other cases, there was no evidence of
Appelhint's Reply Brief- Page 12
Paul Martin Ahern v. State ofTexas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3rcJ District of Texas
Trial Court Cause No. DIDCI0100006; in the 299'11 District Court ofTravis County, Texas
visiting other child pornography websites; nothing to suggest that he was a
pedophile or that he was engaged in any ongoing criminal conduct. The fact is that
there was no other indicia of continued criminal activity whatsoever that would
qualify Mr. Ahem as a child pornography "collector." See United States v.
Greathouse, 297 F.Spp.2d 1264 (D.Ore. 2003) (finding that a tip that the suspect's
computer one year earlier contained child pornography was stale, and thus did not
provide probable cause for search warrant for seizure of the computer, despite
investigating officer's affidavit stating child pornography collectors routinely
maintained their materials for long periods of time, where the officer did not
specify the basis for his statement, and there was no evidence that the defendant
was a pedophile or that he engaged in any ongoing criminal activity).
CONCLUSION
In conclusion, contrary to the State's assertion, the affidavit does not contain
a fair probability of finding child pornography at Mr. Ahem's home arising from
the facts that governmental authorities had information that 1) two images
depicting child pornography were uploaded by a Flickr.com subscriber under Mr.
Ahem's account fifteen months prior to the search warrant application; 2) Mr.
Ahem's address listed under the Flickr.com account was 3904 Avenue G, Austin
Texas 78751; and 3) Mr. Ahem did in fact live at 3904 Avenue G, Austin Texas
Appellant's Reply Brief- Page 13
Paul Martin Ahern v. State ofTexas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3rd District ofTexas
Trial Court Cause No. DIDC10100006; in the 299'h District Court ofTravis County, Texas
78751. "More is needed before the sanctity of one's home can be invaded by the
government; it is not enough to simply conclude that contraband is in one's home
merely because the suspect has a home." Taylor v. State, 54 S.W.3d 21, 27
(Tex.App.-Amarillo 2001 ).
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully
prays that this Honorable Court sustain his points of error, reverse the order of the
trial court denying Appellant's Motion to Suppress Evidence, and order that all
evidence seized as a result of the illegal seizure and search be suppressed.
Respectfully submitted,
SUMPTER & GONZALEZ, L.L.P.
206 E. 9th Street, Ste. 1511
Austin, Texas 78701
Telephone: (512) 381-9955
Facsimile: (512) 485-3121
By: /S/ Kristin Etter
Kristin Etter
State Bar No. 24038884
kristin@sg-llp.com
By: /S/ David Gonzalez
David Gonzalez
State Bar No. 24012711
david@sg-llp.com
Appellant's Reply Brief- Page 14
Paul Martin Ahern v. State of Texas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3'd District o[Texas
Trial Court Cause No. D I DC I 0 I00006; in the 299'h District Court of Travis County, Texas
CERTIFICATE OF COMPLIANCE
I hereby certify that this document was generated by a computer using
Microsoft Word which indicates that the word count of this document is 2,860 per
Tex. R.App. P. 9.4(i).
Is/ David Gonzalez
David Gonzalez
Appellant's Reply Brief- Page 15
Paul Martin Ahern v. State ofTexas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the J'd District ofTexas
Trial Court Cause No. D I DC 101 00006; in the 299'11 District Court of Travis County, Texas
CERTIFICATE OF SERVICE
I hereby certify that on January 16, 2015, a true and correct copy of
Appellant's Reply Brief was served on the following attorneys in accordance with
the requirement of the Texas Rules of Appellate Procedure via electronic filing or
email.
Mary Ann Farrington- trial attorney
Travis County District Attorney
PO Box 1748
Austin, TX 78767
Scott Taliaferro- appellate attorney
Travis County District Attorney
PO Box 1748
Austin, TX 78767
Rosa Theofanis - appellate attorney
Travis County District Attorney
PO Box 1748
Austin, TX 78767
Is/ David Gonzalez
David Gonzalez
Appellant's Reply Brief- Page 16
Paul Martin Ahern v. State of Texas
Appeal No. 03- I 4-00090-CR in the Court ofAppeals for the 3'd District of Texas
Trial Court Cause No. D1DCIOI00006; in the 299'11 District Court ofTravis County, Texas