United States v. Morel

United States Court of Appeals
For the First Circuit

No. 17-1696

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID MOREL, JR.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph Laplante, U.S. District Judge]

Before

Lynch, Lipez, and Barron,
Circuit Judges.

Daniel N. Marx, with whom Fick & Marx LLP was on brief, for
appellant.
Seth R. Aframe, Assistant U.S. Attorney, with whom Scott W.
Murray, United States Attorney, was on brief, for appellee.

April 19, 2019
 LYNCH, Circuit Judge. After the district court denied

his motions to suppress evidence, David Morel, Jr., entered a

conditional plea to one count of possessing child pornography in

violation of 18 U.S.C. § 2252(a)(4)(B). He was sentenced to

seventy months' imprisonment. Morel uploaded child pornography

images to a digital album on Imgur, an image hosting website. Law

enforcement learned of the images on Imgur from the National Center

for Missing and Exploited Children (NCMEC), which had received a

report about the images from an anonymous tipster.

On appeal, Morel challenges the district court's

determinations that Morel had no reasonable expectation of privacy

in the images he uploaded to Imgur or in his internet protocol

(IP) address, and that the state warrant to search Morel's computer

was supported by probable cause. We affirm.

I.

A. Facts

We describe the findings of fact made by the district

court after evidentiary hearings on the motions to suppress. We

supplement those facts, as necessary, with other facts from the

record.

1. CyberTipline Report

The investigation of Morel began with an anonymous

report submitted to NCMEC. NCMEC is a non-profit organization

that maintains the "CyberTipline," a website through which members

- 2 -
of the public, law enforcement, and others report child

exploitation and child pornography. Those using the CyberTipline

to make a report are required to include the date, time, and

substance of the incident in the report, and may submit reports

anonymously. Electronic service providers that "obtain[] actual

knowledge of any facts and circumstances . . . from which there is

an apparent violation" or a "planned or imminent" violation of

statutes concerning child pornography are legally obligated to

report such information to NCMEC. 18 U.S.C. § 2258A(a). NCMEC

must forward reports it receives to an appropriate law enforcement

agency. Id. § 2258A(c).

On November 23, 2013, an unidentified individual

submitted a report, which included a list of Uniform Resource

Locators (URLs) said to depict child pornography, to the

CyberTipline. The list of URLs spanned two pages. This tipster

did not include any personal identifying information in the

report.1 NCMEC staff analysts investigated the contents of the

report. One of the URLs listed in the report led to a "gallery"

or "album" of images hosted by Imgur. Each image in the album

also had its own specific URL; an analyst obtained the URLs of the

images in the album that appeared to contain child pornography

1 NCMEC captured the IP address from which the report was
sent, but did not take the step of identifying the person(s)
associated with that IP address.

- 3 -
without clicking on the individual URLs,2 and copied those URLs

into a report.

On November 26, 2013, NCMEC sent a notice to Imgur

summarizing the instances of child pornography reported to have

been found on its website, which included URLs of images reported

by the tipster. NCMEC's notice asked Imgur to "[p]lease review

the reported URL[s] to determine if [they] contain[] content that

violates federal and/or state law or your Terms of Service or

Member Services Agreement."

After reviewing the reported URLs, Imgur filed reports

with NCMEC concerning three images obtained through the

CyberTipline, stating that the corresponding URLs flagged by NCMEC

appeared to contain child pornography. Imgur attached copies of

the three images to the reports. Imgur provided the IP address

from which the images were uploaded to Imgur's servers, which was

the same for all three images. Imgur also reported that the images

were uploaded in November 2013. Imgur then deleted the images

from its server. Using a publicly available website, NCMEC looked

up the IP address included in Imgur's report and learned that it

was associated with a Comcast subscriber in Derry, New Hampshire.

2 At a suppression hearing, the witness from NCMEC
explained, "[t]his staff member did not click on any links . . . .
[W]hat they did is they took their mouse, hovered over the images
that appeared to depict child pornography, they copied that image
location and put it into the report."

- 4 -
 On December 6, 2013, Imgur submitted three additional

reports of alleged child pornography associated with the same IP

address to NCMEC through the CyberTipline. Those images had also

been uploaded to Imgur in November 2013. That made a total of six

reported images of alleged child pornography from this IP address.

2. The Investigation

NCMEC provided the six reports to the New Hampshire

Internet Crimes Against Children Task Force on December 12, 2013,

which forwarded the reports to the Derry, New Hampshire Police

Department on January 10, 2014. Detective Kennedy Richard,

experienced in investigating child pornography and child sexual

exploitation, reviewed the images in the reports. He entered the

IP address from the reports into a publicly-available website and

learned that the IP address was associated with a Comcast account.

He then obtained a subpoena requesting information from Comcast

about the owner of the IP address. On February 14, 2014, Detective

Richard learned that the IP address belonged to a David Morel at

Pingree Hill Road in Derry, New Hampshire.

About two weeks earlier, on February 1, 2014, David

Morel, Jr., had reported to the Derry Police Department that his

laptop computer was stolen during a burglary of the Pingree Hill

Road residence. The Derry Police Department recovered the stolen

computer and other stolen property the following week. Morel went

to the police station on February 7, 2014, and identified the

- 5 -
computer he had reported stolen. The police retained the computer

as evidence of the burglary.

In late March 2014, Detective Richard called the Pingree

Hill Road residence. Two weeks later, Morel's father called

Detective Richard back and stated that his son, David Morel, Jr.,

had lived at the Pingree Hill Road residence on the date that the

images were uploaded in November 2013, but had moved out later, in

February 2014. Morel's father stated that he did not use the email

address associated with the Comcast account connected to the IP

address in question, but that he believed his son used that email

address.

On April 16, 2014, Detective Richard sought and obtained

a warrant from a New Hampshire state court to search Morel's

computer, which was still in police custody. In the affidavit

supporting the warrant application, Detective Richard did not

attach the six suspected child pornography images, which depicted

different girls. The affidavit stated that Detective Richard had

worked as a Derry police officer since 1993, and had been a

detective for the Derry Police Department since 1999. As a

detective, his primary assignment was in the Juvenile Division as

an investigator. He had received specialized training concerning

sexual assault investigations, including in child abuse and

exploitation cases. He had also been a member of the Internet

Crimes Against Children Task Force since 2005, and had assisted in

- 6 -
the execution of about fifty search warrants related to possession

and distribution of illegal child sexual abuse and exploitation

images.

The affidavit described the NCMEC reports and the IP

address information connected to Morel. The affidavit also

described the nudity and the sexual or sexually suggestive

positioning of the girls depicted in each of the six suspected

child pornography images. Some images contained more than one

girl. The ages of the different girls were described as follows:

(1) "A naked female . . . . She appears to be under the age of

10"; (2) "Two naked females . . . both believed to be under the

age of 10"; (3) "A female believed to be under the age of 10"; (4)

"Two naked females believed to be under the age of 13"; (5) "A

naked female [sic] to be under the age of 13"; and (6) "A naked

female believed to be under the age of 13." The affidavit

specified that some of the other females in the images were of

"unknown age." The affidavit did not describe the girls in such

terms as "pubescent" or "prepubescent."

Pursuant to the warrant, Detective Richard obtained a

forensic copy of the hard drive of Morel's computer, which was

still in police custody. He reviewed the contents and saw what he

estimated to be about 200 videos and images of child pornography.

- 7 -
 On April 28, 2014, Morel was arrested on the charge of

attempted possession of child sexual abuse images.3 Morel was

taken into custody and Detective Richard interviewed him at the

Derry police station. Morel was given Miranda warnings, waived

his Fifth Amendment rights, and admitted to possessing child

pornography on his computer.

3. Imgur Terms of Service and Image Hosting Practices

The Imgur Terms of Service stated at the time, in

relevant part:

You can upload images anonymously and share
them online with only the people you choose to
share them with. If you make them publicly
available, they may be featured in the
gallery. This means that if you upload an
image to share with your friend, only your
friend will be able to access it online.
However, if you share an image with Facebook,
Twitter, Digg, Reddit, et cetera, then it may
end up in the gallery.

The following witnesses testified at the suppression

hearings: Brianna Walker, an Imgur employee who was an online

3 At a suppression hearing, Detective Richard testified
that he found out later that the reason a Derry prosecutor
originally charged Morel with attempted possession of such images
is that "[w]ith attempted possession you don't have to prove that
it was an actual child depicted in the photo or identify the
child." Detective Richard had thought Morel was arrested for
possession of child pornography based on the search of his
computer, but the prosecutor later told him that "it had to be
attempted possession of child pornography" because "[t]hey don't
charge possession. They charge attempted possession."

- 8 -
"store manager" and who also handled "user support" and "rules";4

John Shehan, the vice president of NCMEC; and Detective Richard.

Walker explained that Imgur permits "anonymous uploads,"

meaning that there is no requirement that a person set up an

account to upload images to Imgur. A user can upload photos to

Imgur that "everyone in the world can see," and that are available

on Imgur's "public gallery." Walker explained that,

alternatively, an Imgur user can "make a private album which can

only be accessed from your account; however, each image can still

be seen by anyone using the direct image link." When asked if an

image on a "private" album can "be found in any other particular

method," Walker explained, "Google would have crawled through the

images so they'd be available . . . if you searched for them."

When asked, "is there any way that a person using [Imgur] to upload

photos can be sure that their image is private and can never be

seen," Walker responded, "No, that's impossible." Walker

explained:

[Y]ou can share the URL [to a private album]
with anyone and only those people will be able
to see it, but anyone can still access the
image by using the URL. So they could guess
it, it would still be searchable on Google.
So it's impossible for any of this to be
completely private . . . . It couldn't be

4 Walker explained that her role involved not only
handling online sales, but also responding to emails from users
with complaints or issues, and deleting child pornography and
copyrighted images from Imgur.

- 9 -
 found on [Imgur], but . . . you could still
guess it or find it on a search engine.

Imgur staff can also view images that users have uploaded to

private Imgur albums.

The record does not establish whether Morel chose a

private album for the images at issue. Walker first testified

that "[i]t's more likely that he selected private, but . . .

there's no way to know." She then clarified, "I can circle back

and look at his account, but I'm pretty sure it was private." The

prosecutor later stated that her "understanding was that the

records in regard to this account were no longer kept by [Imgur]."

Walker testified that there was no way for Imgur to track

whether Morel shared the URLs of the images he uploaded with

anyone, and no way to track whether other people accessed those

URLs. Imgur keeps a count of the number of times an image is

viewed but does not track whether each viewer is the person who

uploaded the image or is a third party.

The IP address of the person who uploads an image to

Imgur is accessible only to Imgur staff. Imgur does not actively

search or use software to detect child pornography uploaded by

users, but when it receives reports of such images, it reviews the

images, and if they appear to contain child pornography, Imgur

reports them to NCMEC. Imgur then deletes the offending images.

- 10 -
Notice of this policy is included in the Terms of Service, which

Imgur users must agree to before using Imgur.

B. Procedural History of Suppression Motions

Morel's first suppression motion sought to suppress

images of child pornography obtained from his computer and

statements he made during custodial interrogation, arguing that

this evidence was obtained pursuant to a warrantless search by

Imgur, acting at the instigation of NCMEC. His second motion

sought to suppress images obtained from his computer, arguing the

computer was searched pursuant to a warrant that lacked probable

cause.5 This second motion also stated that Imgur improperly

provided NCMEC with the IP address from which Morel uploaded the

images to Imgur.6

The district court held evidentiary hearings on the

suppression motions on February 24, 2016 (during which the Imgur

employee and the NCMEC vice president testified), and September

22, 2016 (during which Detective Richard testified). The district

court denied the motions in electronic orders, supplemented by a

later written decision. Morel pleaded guilty to one count of

5 Morel's third motion to suppress (not at issue on appeal)
sought to suppress evidence from what he argued was an
unconstitutional warrantless arrest.

6 Morel's second suppression motion did not sufficiently
develop this argument concerning Morel's IP address, but defense
counsel made the argument at a suppression hearing, and the
district court considered it.

- 11 -
possession of child pornography on December 19, 2016, pursuant to

a plea agreement, reserving his right to appeal the denial of his

first two suppression motions.

On April 14, 2017, the district court entered a written

order stating its reasons for denying Morel's suppression motions.

United States v. Morel, No. 14-CR-148-JL, 2017 WL 1376363 (D.N.H.

Apr. 14, 2017), reconsideration denied, 2017 WL 2773538 (D.N.H.

June 26, 2017). The district court determined that Morel had not

met his burden of showing that he had a reasonable expectation of

privacy in the images uploaded to Imgur because the images were

"publicly available" and "[n]o evidence suggests that Morel took

affirmative steps to protect the images." Id. at *6. The court

also noted that both the anonymous tipster and an NCMEC employee

were able to access the images. Id. The court explained that

"the uploaded images are more akin to information shared on a peer-

to-peer network than to emails. Such information, once made

available to others, no longer enjoys a reasonable expectation of

privacy." Id.

As to the IP address information, the court agreed with

the "myriad authorities affirm[ing] that 'subscriber information

provided to an internet provider is not protected by the Fourth

Amendment's privacy expectation.'" Id. at *7 (quoting United

States v. Perrine, 518 F.3d 1196, 1204-05 (10th Cir. 2008)). The

court did not reach Morel's argument that Imgur uploaded the images

- 12 -
at "the behest of [NCMEC] and, thus, that Imgur's review amounted

to a warrantless governmental search." Id. at *1.

As to the sufficiency of the state search warrant, the

district court determined that although Detective Richard did not

attach the alleged child pornography images to his affidavit, the

warrant issued was valid as there was probable cause to believe

that the images depicted girls under the age of eighteen. That

was because Detective Richard's affidavit stated that he believed

some of the girls depicted to be under ten years old and some under

thirteen years old. Id. at *9. The district court found that

Detective Richard's training and experience supported the

reliability of his conclusion. Id.

II.

When reviewing the denial of motions to suppress, we

review the district court's factual findings for clear error and

its legal conclusions, including ultimate constitutional

determinations, de novo. United States v. D'Andrea, 648 F.3d 1,

5 (1st Cir. 2011). We first consider Morel's argument that,

contrary to the district court's conclusions, he had a reasonable

expectation of privacy in his IP address information and in the

images he uploaded to Imgur. We then turn to his argument that

the warrant to search his computer was not supported by probable

cause.

- 13 -
A. Whether Morel Had a Reasonable Expectation of Privacy in the
IP Address or the Images

"The Supreme Court has set out a two-part test" for

analyzing whether a defendant had a reasonable expectation of

privacy: "first, whether the movant has exhibited an actual,

subjective, expectation of privacy; and second, whether such

subjective expectation is one that society is prepared to recognize

as objectively reasonable." United States v. Rheault, 561 F.3d

55, 59 (1st Cir. 2009) (citing Smith v. Maryland, 442 U.S. 735,

740 (1979)).

"[T]he defendant carries the burden of making the

threshold showing that he has 'a reasonable expectation of privacy

in the area searched and in relation to the items seized.'" United

States v. Stokes, 829 F.3d 47, 51 (1st Cir. 2016) (quoting United

States v. Aguirre, 839 F.2d 854, 856 (1st Cir. 1988)). "Only then

can he 'challenge the admissibility of evidence on fourth amendment

grounds.'" Id. (quoting United States v. Gomez, 770 F.2d 251, 253

(1st Cir. 1985)). "This burden must be carried at the time of the

pretrial hearing and on the record compiled at that hearing." Id.

(quoting Aguirre, 839 F.2d at 856). The district court held that

Morel had not met this burden. We agree.

Morel's primary argument is that Carpenter v. United

States, 138 S. Ct. 2206 (2018), has effected a sea change in the

law of reasonable expectation of privacy, and he is the beneficiary

- 14 -
of that change, both as to his IP address information and the

images uploaded to Imgur. But Carpenter does not go so far;

Morel's argument fails under Carpenter and under post-Carpenter

caselaw.

Carpenter held that "an individual maintains a

legitimate expectation of privacy in the record of his physical

movements as captured through CSLI [cell-site location

information]."7 138 S. Ct. 2217. Carpenter did not announce a

wholesale abandonment of the third-party doctrine. That doctrine

states that "a person has no legitimate expectation of privacy in

information he voluntarily turns over to third parties . . . 'even

if the information is revealed on the assumption that it will be

used only for a limited purpose and the confidence placed in the

third party will not be betrayed.'" Smith, 442 U.S. at 743-44

(quoting United States v. Miller, 425 U.S. 435, 443 (1976)).

Carpenter declined to extend the third-party doctrine to

the months of CSLI gathered by law enforcement in that case, 138

S. Ct. at 2216, because, as we recently explained:

[G]iven the location information that CSLI
conveyed and the fact that a cell phone user

7 Carpenter expressly declined to decide "whether there is
a limited period for which the Government may obtain an
individual's historical CSLI free from Fourth Amendment scrutiny,
and if so, how long that period might be," and concluded that "[i]t
is sufficient for our purposes today to hold that accessing seven
days of CSLI constitutes a Fourth Amendment search." Carpenter,
138 S. Ct. at 2217 n.3.

- 15 -
 transmits it simply by possessing the cell
phone, if the government could access the CSLI
that it had acquired without a warrant in that
case, then the result would be that "[o]nly
the few without cell phones could escape" what
would amount to "tireless and absolute
surveillance."8

United States v. Hood, ___ F.3d ___, No. 18-1407, 2019 WL 1466943,

at *3 (1st Cir. Apr. 3, 2019) (quoting Carpenter, 138 S. Ct. at

2218).

1. IP Address Information

Morel challenges the district court's decision that

"subscriber information provided to an internet provider is not

protected by the Fourth Amendment's privacy expectation." Morel,

2017 WL 1376363, at *7 (quoting Perrine, 518 F.3d at 1204-05).

Morel argues that this reasoning is no longer valid after

Carpenter.

Our decision in Hood resolves this argument against

Morel. 2019 WL 1466943, at *4. In Hood, the defendant was indicted

on charges of transportation and receipt of child pornography, and

moved to suppress evidence, including his IP address information,

8 Other circuits have held in accord with Hood, 2019 WL
1466943 at *3-4, that Carpenter did not eliminate the third-party
doctrine. United States v. Contreras, 905 F.3d 853, 857 (5th Cir.
2018); Presley v. United States, 895 F.3d 1284, 1291 (11th Cir.
2018), cert. denied, No. 18-831, 2019 WL 1318587 (U.S. Mar. 25,
2019) (mem.). Carpenter's self-described "narrow" holding, 138 S.
Ct. at 2220, does not support Morel's argument that he had a
reasonable expectation of privacy in his IP address information or
in the images uploaded to Imgur.

- 16 -
that was connected to information shared on a smartphone messaging

application. Id. at *1-2. Like Morel, the defendant in Hood

argued that under Carpenter, the third-party doctrine should not

apply to IP address information that the government gathered from

the smartphone messaging company.

Hood rejected this argument, because unlike CSLI

information, IP address information on its own does not provide

information concerning location. Id. at *4. "The IP address data

is merely a string of numbers associated with a device that had,

at one time, accessed a wireless network." Id. And, unlike CSLI,

"an internet user generates the IP address data . . . only by

making the affirmative decision to access a website or

application." Id. Morel attempts to distinguish Hood on the

ground that here, Morel "accessed the internet from a personal

computer that he used in his family home." But Hood did not turn

on the location from which the defendant accessed the internet.

IP address information of the kind and amount collected

here -- gathered from an internet company -- simply does not give

rise to the concerns identified in Carpenter. As in Hood, Morel

did not have a reasonable expectation of privacy in the IP address

information that the government obtained from Imgur. It is that

information which connected Morel to the uploaded images.

- 17 -
 2. Images Uploaded to Imgur

Morel argues that he had a reasonable expectation of

privacy in the images uploaded to Imgur. He disputes the district

court's conclusions that the images uploaded to Imgur were publicly

available, and that Morel did not take affirmative steps to

maintain the privacy of the images he uploaded to Imgur. There

was no clear error in the court's findings of fact, and we agree

with its legal conclusions based on those facts.

Whether a defendant has a reasonable expectation of

privacy is a fact-specific inquiry. Aguirre, 839 F.2d at 857.

"What a person knowingly exposes to the public, even in his own

home or office, is not a subject of Fourth Amendment protection."

Katz v. United States, 389 U.S. 347, 351 (1967). "But what he

seeks to preserve as private, even in an area accessible to the

public, may be constitutionally protected." Id.

Factors especially relevant to determining whether one

has a reasonable expectation of privacy include "ownership,

possession and/or control; historical use of the property searched

or the thing seized; ability to regulate access; the totality of

the surrounding circumstances; the existence or nonexistence of a

subjective anticipation of privacy; and the objective

reasonableness of such an expectancy under the facts of a given

case." Stokes, 829 F.3d at 53 (quoting Aguirre, 839 F.2d at 856–

57).

- 18 -
 The district court did not err in finding that "[n]o

evidence suggests that Morel took affirmative steps to protect the

images." Morel, 2017 WL 1376363, at *6. The record shows that

Morel chose to upload the images to a website that makes it

"impossible" to prevent third parties from accessing the images,

whether the images are uploaded to "public" or "private" albums.

Morel did not choose one of the more private website alternatives

which exist. Viewing the Imgur images would not even require use

of a password to gain access. And at least two third parties, the

tipster and the NCMEC employee, did access the images Morel

uploaded. An "NCMEC employee was able to open the gallery page

and view the image thumbnails presented simply by entering the

provided URL." Id.

Nor did the district court err in finding that the images

were publicly available. The evidence was that "everyone in the

world can see" images uploaded to public Imgur albums, and that

those images are available on Imgur's public galleries. And even

"private" Imgur albums can be seen by anyone who had the

corresponding URL; there is no way to prevent third parties from

accessing and sharing the URL.

On these facts, the classic third-party doctrine

analysis prevents Morel from showing that he had a reasonable

expectation of privacy in the images uploaded to Imgur. Morel

argues that the district court did not find that Morel actually

- 19 -
shared any URLs with a third party. But this does not establish

that Morel met his burden. He put on no evidence that he had not

shared the URLs. And even if Morel had not shared the URLs, the

evidence shows that he could not have prevented third parties from

finding the images through a Google search or a lucky guess at the

URL,9 and third parties did access the images in this case.

Morel also relies on United States v. Mancini, 8 F.3d

104 (1st Cir. 1993), for the proposition that "shared access to a

document does not prevent one from claiming Fourth Amendment

protection in that document." Id. at 108. That case involved a

town official sharing a single hard copy of an appointment calendar

(kept in the town's archive attic) with his secretaries, who had

a position of confidence with him. Id. at 108-09. This case is

nothing like Mancini, and involved strangers, even random

strangers, having access to images on a website.

B. Probable Cause Supporting the Search Warrant

Morel argues that the state warrant to search his

computer was not supported by probable cause to believe that the

girls depicted in the images were under the age of eighteen. The

district court correctly held that the warrant was supported by

probable cause. For the first time on appeal, Morel also argues

9 Morel argues that it is highly unlikely that someone
could have guessed or found the URLs at issue here, because they
were composed of random numbers and letters, but he presented no
evidence to this effect.

- 20 -
there was no probable cause to believe the girls depicted were

"real," rather than virtual, children.

"The standard we apply in determining the sufficiency of

an affidavit" supporting a state or federal warrant "is whether

the 'totality of the circumstances' stated in the affidavit

demonstrates probable cause to search either the premises or the

person." United States v. Khounsavanh, 113 F.3d 279, 283 (1st

Cir. 1997) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)).

"Probable cause does not require either certainty or an unusually

high degree of assurance. All that is needed is a 'reasonable

likelihood' that incriminating evidence will turn up during a

proposed search." United States v. Clark, 685 F.3d 72, 76 (1st

Cir. 2012) (citation omitted) (quoting Valente v. Wallace, 332

F.3d 30, 32 (1st Cir. 2003)).

1. Whether There Was Probable Cause That the Images Depicted
Girls Under the Age of Eighteen

Morel argues that in preparing the affidavit, Detective

Richard failed to follow the "best practice" outlined in United

States v. Syphers, 426 F.3d 461, 467 (1st Cir. 2005), and United

States v. LaFortune, 520 F.3d 50, 58 (1st Cir. 2008), of attaching

the suspected child pornography images to the warrant application

or providing a sufficiently detailed description of the images.

- 21 -
 LaFortune stated that the "best practice" language in

Syphers was dicta, but that

we now confirm [that dicta] as a holding
essential to our decision here: The best
practice is for an applicant seeking a warrant
based on images of alleged child pornography
to append the images or provide a sufficiently
specific description of the images to enable
the magistrate judge to determine
independently whether they probably depict
real children.

LaFortune, 520 F.3d at 58 (quoting Syphers, 426 F.3d at 467). "An

officer who fails to follow this approach without good reason faces

a substantial risk that the application for a warrant will not

establish probable cause." Syphers, 426 F.3d at 467. Morel

overreads LaFortune and Syphers. The risk described is not a

certainty that there is no probable cause; it is the Fourth

Amendment standard for probable cause which governs.

The "best practice" language in LaFortune is not

applicable here in any event because the warrant was issued by a

state court. The "best practice" judicial gloss cannot be imposed

onto state courts. The question before us is simply whether the

affidavit was supported by probable cause to believe the girls

depicted in the images were under eighteen years old.

The warrant affidavit was sufficient to establish

probable cause because it stated that Detective Richard believed

that at least four of the girls depicted in three of the images

were under the age of ten. An under-ten-year-old girl does not

- 22 -
look like, and is not mistaken for, an eighteen-year-old girl.

While images of older minor girls may require more evidence of

age, that is not true for images of girls aged under ten. The

statement that the images depicted girls believed to be under the

age of ten is not a boilerplate recitation "synonymous with the

statutory definition of a minor."10 Morel, 2017 WL 1376363, at *9.

It is highly improbable that Detective Richard, an

officer experienced and trained in this field, would mistake an

eighteen-year-old girl for an under-ten-year-old girl. The

affidavit shows that Detective Richard was careful in assessing

the ages of the different girls depicted, stating that he believed

some to be under the age of ten, others to be under the age of

thirteen, and still others to be of an "unknown age." Richard had

sufficient experience to make such assessments. The affidavit

stated that Detective Richard had been a police officer for over

two decades, had received specialized training in child abuse and

exploitation cases, had been on the Internet Crimes Against

10 The district court noted that at a suppression hearing,
"Det[ective] Richard confirmed what his words themselves conveyed:
that he described the individuals as he did because they appeared,
to him, to be prepubescent." Morel, 2017 WL 1376363, at *9. But
our assessment of probable cause must be based on "information
provided in the four corners of the affidavit supporting the
warrant application." United States v. Vigeant, 176 F.3d 565, 569
(1st Cir. 1999). The affidavit in this case did not state that
Detective Richard believed the females in the images were
"prepubescent."

- 23 -
Children Task Force for nearly a decade, and had assisted in the

execution of about fifty search warrants related to possession and

distribution of child pornography. That training and experience

likely informed his belief that the girls depicted in the images

were under age eighteen.11

2. Whether There Was Probable Cause That the Images Depicted
Real Children

Morel raises the issue of whether the girls depicted

were real, as opposed to virtual, for the first time on appeal, so

it is waived. See United States v. Oquendo-Rivas, 750 F.3d 12, 17

(1st Cir. 2014).

Morel argues that he did not waive this argument because,

at a suppression hearing, the district court discussed caselaw

stating that a magistrate judge must be able to independently

determine whether the images "probably depict real children." See

Syphers, 426 F.3d at 467; LaFortune, 520 F.3d at 58. This

reference to caselaw does not preserve the issue. Morel also

argues that this issue is "integral to the probable cause

determination," and that the government could not have been

surprised by it. We disagree. At the suppression hearings, the

parties and the district court only considered the issue raised:

11 Contrary to Morel's argument, Detective Richard was not
required to apply the Tanner Scale to assess the ages of the girls
in the images. United States v. Hilton is inapposite, because
that case involved the government's burden of proof at trial. 386
F.3d 13, 15 (1st Cir. 2004).

- 24 -
whether the warrant was sufficient for probable cause as to the

ages of the girls. This was not enough to apprise the district

court of the issue of whether the girls were real. See McCoy v.

Mass. Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991) ("If claims

are merely insinuated rather than actually articulated in the trial

court, we will ordinarily refuse to deem them preserved for

appellate review.").

III.

The district court's denial of Morel's suppression

motions is affirmed.

- 25 -