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-
AWI-1
PETER JOHN KRUPA,
Defendant-Appellant. ORDER AND
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 September 30, 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.
18593
18596 UNITED STATES v. KRUPA
COUNSEL
Katherine Hart, Fresno, California, for defendant-appellant
Peter John Krupa.
Benjamin B. Wagner, United States Attorney, and Brian W.
Enos (argued), Assistant United States Attorney, Fresno, Cali-
fornia, for the United States.
ORDER
The petition for rehearing is granted, the opinion and dis-
sent filed on February 7, 2011 are withdrawn, and a new opin-
ion and dissent are filed concurrent with this order.
The grant of the petition for rehearing and the filing of a
new opinion and dissent moots the petition for rehearing en
banc. The parties may file new petitions for rehearing from
the new opinion and dissent pursuant to Federal Rule of
Appellate Procedure 40.
UNITED STATES v. KRUPA 18597
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, a
civilian. 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.
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, some of which
were linked together. The military police asked Krupa for
consent to take the computers and he initially agreed.
On Tuesday, April 16, 2002, Agent 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. Reynolds described the pho-
tograph to be of a nude 15- to 17-year-old female with a web-
site label of “www.nude-teens.com.” On Sunday, April 21,
2002, Reynolds was hospitalized for chest pain. The follow-
18598 UNITED STATES v. KRUPA
ing day, Krupa revoked his consent to the search of the com-
puters.
Reynolds remained hospitalized until April 25, 2002. While
in the hospital he sought authority to continue his search of
the computers “for any further items of contraband.” The
request was based on the photograph and the fact that consent
had been revoked. On April 29, 2002, Colonel LaFave, the
appointed Primary Search Authority Military Magistrate,
signed a search warrant.1 Reynolds resumed his forensic anal-
ysis 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-
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
1
Krupa’s appeal does not question the propriety of Colonel LaFave act-
ing as the issuing magistrate.
2
Ultimately 52 images and an additional 48 movies of child pornogra-
phy were located within the computers.
UNITED STATES v. KRUPA 18599
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
that 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, 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:
“[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
18600 UNITED STATES v. KRUPA
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)3; 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-
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).
The agent’s affidavit presented to Colonel LaFave first set
forth the agent’s qualifications to conduct investigations of
computers and recover digital evidence, as well as his experi-
ence in investigations related to computer crimes and child
pornography. The affidavit then stated that base police,
3
The Supreme Court has granted cert to review Millender, cert. granted
79 U.S.L.W. 3727 (U.S. June 27, 2011) (No. 10-704).
UNITED STATES v. KRUPA 18601
responding to a report of child neglect, determined that “there
were several computers at the location and that there was no
custodial parents at the house only an individual KRUPA who
was not affiliated with the military.” The affidavit stated that
Krupa “had care and custody of the residence,” which
included the 13 computer towers and two laptops. Reynolds’
affidavit stated that during his initial investigation of the com-
puters, before consent was withdrawn, he located “an image
of suspected contraband,” specifically a “photograph [that]
appeared to be of a nude 15 to 17 year old female with a web
site label of www.nude-teens.com.”
[3] Although a close case, we conclude that Colonel
LaFave reasonably concluded that there was probable cause
to issue a search warrant. Reynolds’ affidavit set forth his
qualifications as a trained investigator of computers for com-
puter crimes and child pornography. Accordingly, the Colonel
was entitled to give some deference to the agent’s statement
that the photograph constituted an “image of suspected con-
traband,” even though the affidavit’s description of the photo-
graph did not necessarily support the conclusion that the
photograph constituted child pornography. Furthermore, the
affidavit indicated that the police had responded to “a report
of child neglect,” that no custodial parents were at the resi-
dence, that Krupa, who was not affiliated with the military,
had care and custody of the residence, and that the residence
contained 15 computers. In sum, the investigator’s assertion
that he had found an “image of suspected contraband” —
implicitly referring to child pornography — in computers
seized from a home for which there had been a report of child
neglect, and where there was no custodial parent present, cre-
ated a “fair probability” that contraband or evidence would be
found in the computers. See Gates, 462 U.S. at 238.
Our opinion in Battershell does not compel a contrary per-
spective. There, we held that a single photograph of a young
girl between 8 and 10 standing nude in a bath tub is insuffi-
cient to establish probable cause. 457 F.3d at 1051. However,
18602 UNITED STATES v. KRUPA
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.4 In contrast,
here the presence of 15 computers under the control of a civil-
ian with no apparent ties to the military in a home on a mili-
tary base in which children resided and for which the military
police had received a report of child neglect, is unquestion-
ably suspicious. In this context, even accepting that the pic-
ture, with its tag “www.nude-teens.com,” was not child
pornography, 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.
Even if we were to conclude that there was not probable
cause to support the warrant, we would affirm the district
court on its finding that the warrant fit within the good-faith
exception set forth in United States v. Leon, 468 U.S. 897
(1984). We “review de novo the district courts’ application of
the good faith reliance exception.” United States v. Crews,
502 F.3d 1130, 1135 (9th Cir. 2007). We have generally held
that “[i]n borderline cases, preference will be accorded to
4
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.
UNITED STATES v. KRUPA 18603
warrants and to the decision of the magistrate issuing it,” id.,
and accordingly, give the district court’s findings some defer-
ence. See U.S. v. SDI Future Health, Inc., 568 F.3d 684, 706
(9th Cir. 2009).
In Crews, we explained that:
For the good faith reliance exception to apply, the
officers must have relied on the search warrant in an
objectively reasonable manner. United States v.
Clark, 31 F.3d 831, 835 (9th Cir. 1994). The affida-
vit “must establish at least a colorable argument for
probable cause” for the exception to apply. United
States v. Luong, 470 F.3d 898, 903 (9th Cir. 2006).
Therefore, if there is a colorable argument that the
search of Apartment 3 was supported by probable
cause, the officer’s reliance on the search warrant
was objectively reasonable.
In United States v. Shi, 525 F.3d 709, 731 (9th Cir. 2008), we
reiterated “[g]ood faith reliance exists if the agents’ affidavit
establishes ‘at least a colorable argument for probable cause,’
and the agents relied on the search warrant in an objectively
reasonable manner.” (internal citation omitted).
[4] We conclude that the district court reasonably deter-
mined that in 2002 — four years prior to our opinion in Bat-
tershell — there was a “colorable argument for probable
cause” for the issuance of the search warrant based on the cir-
cumstances under which the 15 computers were found and the
discovery of the suspect photograph by Agent Reynolds in his
initial search of the computers. As the district court noted,
there is no showing that “Agent Reynolds lied, was untruth-
ful, gave false information, or misled the magistrate in any
way,” and the presence of 15 computers, some linked
together, was obviously “unusual.” We agree that if the war-
rant itself lacks probable cause, the Leon good-faith exception
applies, and the evidence need not be suppressed.
18604 UNITED STATES v. KRUPA
[5] Finally, 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. Alternatively, even if we
were to determine that there was not probable cause for the
warrant, we would affirm the district court’s determination
that the warrant fit within the good-faith exception set forth
in Leon, 468 U.S. 897. Accordingly, the district court’s denial
of Krupa’s motion to suppress is AFFIRMED.
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
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 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,
UNITED STATES v. KRUPA 18605
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).
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 18599 (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
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 Ewing v. City of Stockton, 588 F.3d 1218, 1223 (9th Cir.
2009).
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-
18606 UNITED STATES v. KRUPA
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, United
States v. Leon, 468 U.S. 897, 915 (1984), reviewing the mag-
istrate’s ultimate finding as to probable cause for clear error.
Hill, 459 F.3d at 970.
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.1 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 a nude 15 to 17 year
old female with a web site label of www.nude-teens.com.”
And that fact was insufficient to provide probable cause to
believe that Krupa’s computers contained child pornography.
II.
Before turning to that single fact, I discuss other facts that
the majority maintains alone support 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 police had
responded to a “report of child neglect”; and the presence of
15 computers. Maj. op. at 18601. I agree with the district
court that none of these factors have any pertinence at all to
whether the warrant was issued with probable cause to believe
that Krupa possessed child pornography, much less add up to
probable cause without more.2
1
The text of the affidavit in support of the search warrant is attached,
in its entirety, as an appendix to this opinion.
2
“In reviewing a search warrant on probable cause grounds, this Court,
like the district court, is limited to the information and circumstances con-
tained within the four corners of the underlying affidavit.” Crowe v.
County of San Diego, 608 F.3d 406, 434 (9th Cir. 2010) (citation and quo-
UNITED STATES v. KRUPA 18607
We must consider, of course, “the totality of the circum-
stances” in assessing probable cause. United States v. Hay,
231 F.3d 630, 635 (9th Cir. 2000) (citation omitted). But a
particular fact is only relevant to this inquiry insofar as its
existence makes it more likely that the suspect is engaged in
the criminal activity suspected. See, e.g., Millender v. County
of Los Angeles, 620 F.3d 1016, 1030 (9th Cir. 2010) (en
banc), cert. granted, ___ S.Ct. ___, 2011 WL 2518829
(2011); 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 child pornography on
his computers, and I certainly see no connection.3 This fact is
just useless trivia.
The majority’s related invocation of Morgan v. United
States, 323 F.3d 776, 778 (9th Cir. 2003) to suggest that “ci-
vilians such as Krupa impliedly consent to searches when
they enter a military base,” Maj. op. at 18604, fails badly.
There is a very good reason why this argument was, as the
majority notes, “not addressed by the parties,” id. at 18604:
it is undisputed that Krupa did not consent. In fact, Krupa
expressly revoked his consent to Reynolds searching his com-
puters. See id. at 18598 (“Krupa revoked his consent to the
search of the computers.”). Thus, to make any sense at all, the
majority’s suggestion that Krupa impliedly consented to the
search of his computers (even after he had revoked his
tation marks omitted). Consequently, many of the facts the majority recites
at the outset of the opinion—that the house was in disarray, that Sgt.
Velasco was in the Philippines, and what Krupa said to an FBI agent—are
not pertinent to our inquiry, as they did not appear in the affidavit support-
ing the application for the search warrant.
3
Although the majority repeatedly emphasizes the oddity of Krupa, a
civilian, staying at Andrews Air Force Base, the back story is quite mun-
dane and not at all suspicious. Krupa was a decorated member of the
United States Air Force for six years, receiving his honorable discharge
months prior to the incidents in question.
18608 UNITED STATES v. KRUPA
express consent) must encompass the notion that this implied
consent was irrevocable. The majority provides nothing to
support this radical suggestion.4
That there were 15 computers in the home fares no better
in supporting probable cause than the civilian-on-a-military-
base fact. Neither the majority nor the government 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). Instead, the government asserts that the
computer collection is inherently “suspicious[ ],” but does not
endeavor to explain why, or how this “suspicion” is at all
related to the likelihood that the computers had child pornog-
raphy (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 information.” United States v. Comprehensive Drug
Testing, Inc., 621 F.3d 1162, 1175 (9th Cir. 2010) (en banc).
So the ability or likelihood of collecting even large amounts
of child pornography does not increase simply because some-
one has multiple computers instead of one; a person so
inclined can download reams of child pornography on a single
computer with an internet connection.5 See id.
4
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.
5
The majority also never explains why it matters that “some of [the
computers]”—in reality, three of them—“were linked together,” Maj. op.
at 18597, no doubt because it doesn’t. In the first place, that fact does not
appear in the search warrant application affidavit, so it is irrelevant. See
UNITED STATES v. KRUPA 18609
Further, the government suggests that the “defendant’s first
providing consent to review his many computers and then
revoking this consent” supported probable cause, and the affi-
davit supporting the warrant application also recited this fact
as supporting probable cause. But that fact cannot be consid-
ered for present purposes either. “[R]efusal to consent to a
warrantless search is privileged conduct which cannot be con-
sidered as evidence of criminal wrongdoing.” United States v.
Prescott, 581 F.2d 1343, 1351 (9th Cir. 1978); see also Gasho
v. United States, 39 F.3d 1420, 1438-39 (9th Cir. 1994)
(same).
Finally, the majority also places weight on the affidavit’s
hearsay mention of a “report of child neglect,” Maj. op. at
18601, but there are three problems with doing so. First, the
affidavit gives zero indication as to whether the allegation
was ever substantiated. Second, the affidavit’s “report of child
neglect” language is, at best, misleading hyperbole; in fact,
the children’s mother, according to the police report, asked
the police to go by the home to check on her children when
they did not arrive at the train station as previously arranged.
The government’s brief is more honest, calling the visit a
“child welfare check.” Insofar as the misleading “child
neglect” label supported probable cause, it must be disre-
garded. See United States v. Flyer, 633 F.3d 911, 916 (9th
Cir. 2011); Crowe, 608 F.3d at 435; United States v. Craig-
head, 539 F.3d 1073, 1080 (9th Cir. 2008). Third, and most
note 2, supra. Moreover, all the majority posits about the linkage is that
it was “unusual.” Maj. op. at 18603. An “unusual” fact only supports prob-
able cause if it is probative of criminal activity. See Gates, 462 U.S. at
238; Hill, 459 F.3d at 970 (“The Constitution is clear; a magistrate may
authorize a search of a location only if officers establish probable cause
to believe evidence of a crime may be found there.”). In any event, local
area networks (LAN) are not unusual; they are an exceedingly common
fact of modern life, used by technophiles and Luddites alike. The record
indicates that Krupa used the LAN at issue here to play computer games
with his Air Force friends.
18610 UNITED STATES v. KRUPA
importantly, a generalized report that someone is neglecting
children in his care, even if substantiated, does not provide
probable cause to think that child pornography would be
found on his computers.
The majority nonetheless goes so far as to hold that these
irrelevant facts, taken together—“the presence of fifteen com-
puters under the control of a civilian with no apparent ties to
the military in a home on a military base in which children
resided and for which the military police had received a report
of child neglect”—is “unquestionably suspicious” enough to
constitute, without more, “a fair probability that contraband or
evidence of a crime would be found on the computers. Maj.
op. at 18601-02 (quotation marks omitted). In other words,
the majority maintains that even “accepting that the picture”
described in the affidavit “was not child pornography,” there
was probable cause for the search. Id. at 18602.
Not so. Zero plus zero plus zero equals zero, not probable
cause.
For one thing, a search warrant affidavit must establish a
“nexus . . . between the item to be seized and [the allegedly]
criminal behavior.” Warden, Md. Penitentiary v. Hayden, 387
U.S. 294, 307 (1967). In other words, “probable cause must
be examined in terms of cause to believe that the evidence
sought will aid in a particular apprehension or conviction,”
and not just whether, if law enforcement were allowed to
poke around enough, they might find evidence of something
illegal. Id. (emphasis added); see also United States v. Rubio,
727 F.2d 786, 793 (1983). Second, the compendium of facts
relied upon could not provide probable cause of any crime.
Civilians stay with friends on military bases; people watch
their friends’ children; and today, people have computers,
even many computers, in their homes. These facts, even taken
together and mixed with dollops of deference, simply do not
support seizing and searching someone’s computers.
UNITED STATES v. KRUPA 18611
III.
That leaves the question whether, the majority’s extrava-
gant holding concerning the existence of probable cause even
without the photograph aside, the photograph could supply the
missing probable cause. The photo was not included with the
affidavit in support of the search warrant, and was described
only as “appear[ing] to be of a nude 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)).6 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, if any.
The affidavit stated only that the female appeared to be 15
to 17 and was nude. It said nothing about what parts of her
body were depicted, much less that they were exhibited
lasciviously—that is, “so presented by the photographer as to
arouse or satisfy the sexual cravings of a voyeur.” Hill, 459
6
Cal. Penal Code § 311.3, also recited by the affidavit, is identical in all
material respects.
18612 UNITED STATES v. KRUPA
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 at 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,
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
UNITED STATES v. KRUPA 18613
absent some effort—apparently not undertaken here, despite
ample opportunity to do so—to ascertain whether that website
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.”
The majority tries to fill that gap with the assertion that
because the affidavit recited Reynolds’ experience and train-
ing, the magistrate “was entitled to give some deference to
[Reynolds’] statement that the photograph constituted an
‘image of suspected contraband,’ even though the affidavit’s
description of the photograph did not necessarily support the
conclusion that the photograph constituted child pornogra-
phy.” Maj. op. at 18601. No, he wasn’t. The Fourth Amend-
ment’s warrant requirement rests on the understanding that
the protection of liberty requires review by independent mag-
istrates before a search is authorized, not just taking the gov-
ernment’s word when it claims the need and justification to
subject individuals to non-consensual searches of their prop-
erty. See, e.g., Leon, 468 U.S. at 915; Coolidge v. New Hamp-
shire, 403 U.S. 443, 449-53 (1971). That principle is the basis
for the rule that we cannot look beyond “the four corners of
the underlying affidavit,” Crowe, 608 F.3d at 434 (citation
omitted), even if the affiant had knowledge supporting proba-
ble cause that he never disclosed to the issuing magistrate, see
Whiteley v. Warden, 401 U.S. 560, 565 n.8 (1971). “A con-
trary rule”—adopted by the majority here—“render[s] the
18614 UNITED STATES v. KRUPA
warrant requirements of the Fourth Amendment meaning-
less.” Id.
Of course, there are circumstances in which the affiant’s
opinion, if informed by relevant experience and training and
grounded in the facts of the case, can be helpful in ascertain-
ing the existence of probable cause. See generally United
States v. Weber, 923 F.2d 1338, 1344-45 (9th Cir. 1990). But
even then, a magistrate never “defers” to an affiant. Rather,
“[s]ufficient information must be presented to the magistrate
to allow that official to determine probable cause; his action
cannot be a mere ratification of the bare conclusions of oth-
ers.” Leon, 468 U.S. at 915 (quoting Gates, 462 U.S. at 239).
Moreover, this is a situation in which Reynolds’ experience
and training mattered not at all, as neither gave him any more
expertise than the average layperson as to the principal issue
determining probable cause here: whether the photograph at
issue “exhibited the genitals or pubic area” of the individual
depicted. Battershell, 457 F.3d at 1051.
Further, even if this were a situation in which Reynolds’
experience and training potentially could be relevant, his affi-
davit makes no effort to connect his experience and training
to the facts of this case. In this respect, the affidavit is less
adequate than the one found deficient in Weber, which at least
averred that the affiant’s substantial experience led him to
believe that the suspect was a collector of child pornography.
923 F.2d at 1345. Here, by contrast, the only statements
Reynolds makes about his experience with child pornography
cases is that he has “observed numerous examples of child
pornography” and “conducted and participated in investiga-
tions related to computer crimes and child pornography.”
Even more so than in Weber, these “boilerplate recitations
designed to meet all law enforcement needs . . . . may have
added fat to the affidavit, but certainly no muscle.” Weber,
923 F.2d at 1345-46.
UNITED STATES v. KRUPA 18615
In sum, the only conclusion consistent with Battershell and
the Fourth Amendment is that the affidavit did not provide
probable cause for the search warrant.
IV.
The Leon alternative holding the majority tacks on at the
end of its opinion won’t wash either. As already described,
there is simply no question that the warrant here was issued
on precisely the sort of impermissibly “bare bones” affidavit
of which Gates warned, see Gates, 462 U.S. at 239, and no
reasonable officer would have thought that it provided proba-
ble 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 ren-
der official belief in its existence entirely unreasonable.”);
Weber, 923 F.2d at 1346 (same).
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. 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 chil-
dren 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 exigency, it had long since
dissipated by the time Reynolds obtained the search warrant
some two weeks after the computers were seized. As a conse-
quence, “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 do not question the subjective good faith of
the government, it acted entirely unreasonably in preparing
the affidavit it presented.” Id.
18616 UNITED STATES v. KRUPA
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
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
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. “Given the current environment of increas-
ing government surveillance and the long memories of com-
puters, we must not let the nature of the alleged crime, child
pornography, skew our analysis or make us ‘lax’ in our duty
to guard the privacy protected by the Fourth Amendment.”
Gourde, 440 F.3d at 1074.
I respectfully dissent.
UNITED STATES v. KRUPA 18617
APPENDIX: Affidavit In Support of Search Authority
Statement of Qualifications:
I, Dennis Reynolds, your affiant, duly sworn peace officer
employed by the Stanislaus County Sheriff’s Department[ ],
and have been since July 1998. I am currently assigned to the
Sacramento Valley Hi-Tech Crimes Task Force. And have
been so assigned since July 2000. In Oct 2001 I was recalled
to active duty. I am a Master Sergeant in the United Stated
Air Force and I am currently assigned as an Investigator for
the 95th Security Forces Squadron, investigations section. I
have been an Air Force Security Policeman in the Air Force
Reserve [s]ince January 1996[.] Further I have been involved
[i]n [m]ilitary and [c]ivilian [l]aw [e]nforcement for 24 Years.
I attended the U.S. Army Military Police School in 1979
upon completion of my training I worked various assignments
of patrol, physical security, and minor crimes investigation
during various assignments[.]
In October 1981, upon leaving active duty I [j]oined the
California Army National Guard. I was assigned as a Military
Police Investigator[.] I completed training and course work
for this assignment in March 1982. My course work included
criminal investigations, rules of evidence, and search and sei-
zure. I held the assignment till [sic] December 1990. In
December 1990 I was assigned as a CID Special Agent
(reserve) with The U.S. Army Criminal Investigations Com-
mand. I was assigned to a General Crimes Team. During this
assignment I investigated many crimes including financial,
sex crimes, arsons, auto theft, and homicides. I held this duty
assignment until I transferred to the Air Force Reserve in
1996.
In February 1983 I became a full time sworn peace officer
for the Orange County Sheriff’s Department where I attended
the Orange County Sheriff’s Academy. I received 670 [h]ours
18618 UNITED STATES v. KRUPA
of instruction in the detection and investigation of criminal
activity. I was assigned to adult detention/[p]atrol where I
worked until 1986.
From January 1990 to July 1992 I attended Consumnes
River College where I completed 39 semester units in the
study of criminal investigations, police community relations,
Rules of Evidence, and Search and Seizure. In April 1993 I
became a Reserve Police Officer for the Patterson Police
Department, patrol division until July 1998 where I gained
first-hand experience in detection and investigation of crimi-
nal activity. I have investigated a multitude of crimes includ-
ing threats, violent assaults, robberies, thefts, check fraud,
narcotic offenses, and traffic accidents. In July 1998 I became
a Deputy Sheriff-Coroner with the Stanislaus County Sher-
iff’s Department. In October 1998 I was assigned as a Detec-
tive/computer crimes investigator/computer forensics
examiner with the Stanislaus County Sheriff’s Department. I
was assigned to the Sacramento Valley Hi-Tech Crime Task
Force in July 2000.
I am responsible for conducting investigations of comput-
ers and recovery of digital evidence from various types of dig-
ital media. During the course of my employment I have
observed numerous examples of child pornography in all
forms of media including computer media. I have conducted
and participated in investigations related to computer crimes
and child pornography.
I have attended numerous California Peace Officer Stan-
dards and Training courses including Legal Aspects of Inves-
tigations, Narcotic Investigations, Traffic Accident
Investigations, Special Weapons and Tactics, Firearms
Instructor, and Advanced Officer Training. I have also
attended seventeen computer investigation courses where I
have received over 628 hours of instruction in the area of
computer Crimes, Internet Investigations and Child Exploita-
tion; I also hold two California Peace Officer Standards and
UNITED STATES v. KRUPA 18619
Training certifications as a computer crimes special-
ist/investigator. I have also conducted over 200 computer
forensic examinations [i]n the past two years.
I am a member of several professional associations includ-
ing; the High Technology Crime Investigators Association,
High Technology Crime Network, California Narcotic Offi-
cers Association, The National Tactical Officers Association,
and the Peace Officers Research Association of California.
Summary:
This case concerns possible child pornography and contra-
band[.]
Facts in Support:
On Friday April 12, 2002[,] I, Inv Dennis Reynolds[,] was
advised by TSgt Kennedy that he had responded to [redacted
address] for a report of child neglect. As a result of this patrol
response[,] TSgt Kennedy [a]dvised me that there were sev-
eral computers at the location and the there [sic] were no cus-
todial parents at the house only an individual KRUPA who
was not affiliated with the military. This person had care and
custody of the residence. I asked TSgt Kennedy to establish
if there was anything that involved possession or any other
types of contraband at the location in addition to asking for
consent to review the data contained with this the computers
[sic] of any floppies o[r] CDROM media at the location. Con-
sent was given and 13 computer towers and 2 laptop systems.
[sic]
1. During the course of investigating this case and work-
ing under the original consent I located an image of suspected
contraband. This photograph appeared to be of a nude 15 to
17 year old female with a web site label of www.nude-
teens.com[.] [B]ased on this photograph being located and the
fact that consent has been revoked by both Mr. KRUPA and
18620 UNITED STATES v. KRUPA
SSgt Velasco I am requesting authority to continue this search
for any further items of contraband. But as these systems were
used by both parties, and based on the common use of this
system I am requesting search authority.
Conclusion:
Based on the above facts, and your affiant[’]s knowledge,
training and experience, and the experience of other law
enforcement personnel[,] I request that search authority be
issued with respect to the requested location and for the sei-
zure of said property.
There is probable cause to believe that the suspect has vio-
lated laws of the United States. Specifically, Title 18 U.S.C.
2252 and 2252A which make it a crime to knowingly possess,
transport, ship[,] receive, distribute, or reproduce material
involving the sexual exploitation of minors (2252) or material
constituting or containing child pornography. (2252A)
[T]hese materials are contraband[,] as well as violations of
California Penal Code Section 311.1 Possession of Child Por-
nography.
Digital media is instrumentality of the crime and/or contra-
band or a container for evidence relating to the crime and will
be removed for off-scene search. The amount of time cur-
rently required for this examination is 120 days plus 10 days
for review.
/s/ Dennis Reynolds, Msgt, USAF
Investigator, 95th Security Forces Squadron
/s/ David A. LaFave, Col, USAF
Search Magistrate, Edwards AFB, CA
Date: [blank] Time: [blank]