CASE ALERT

By: Ray Hill, Professor Emeritus, Santa Rosa J.C.

Cyber Tip Information Contained in a Search Warrant Affidavit is Considered Reliable (Peo. v. Rowland, 6DCA, #H048799, 9/3/22).

   Here is a child pornography case of “first impression” originating out of Los Altos P.D., Mountain View P.D. and the Silicon Valley Internet Crimes Against Children Task Force. This is the first California case establishing precedent that there is a presumption of reliability in the reporting of child sexual exploitation tips received in the course of business from a third-party communication service.

   Detectives received files from the National Center for Missing and Exploited Children (NCMEC) containing two images of suspected child pornography that had been uploaded from an identified I.P. address. The files were sent to the NCMEC by a Microsoft Online Operations employee after the images were identified by hashing technology and viewed, The Child Victim Identification Network confirmed the identity of one victim and that she was underage. Detectives sought a search warrant to obtain I.D. information on the account holder’s I.P. address and a second search warrant to search the defendant’s residence. A thumb drive was recovered containing 1000 images and 25 videos of child pornography. Defendant was convicted in Santa Clara County Superior Court.

   So, there is a move to quash the search warrant arguing three legal points (you gotta love defense counsel!).

1. The search warrant affidavit and not contain any identifying information on the Microsoft employee who viewed the files and forwarded them to the NCMEC. Thus, the information supplied was an uncorroborated, “anonymous tip” and unreliable.

2. The affidavit description of two images, of one underage female (10-13 years old) sitting in a partially filled bathtub, naked and smiling, while spreading her legs to expose her vagina and a second underage female (7-9 years old) standing naked in a bathtub with her hands spreading her pubic area and exposing her vagina was too vague to constitute child pornography. Also, there was no sexual activity displayed (Wow, defense counsel must have been smoking some high quality, purple Humboldt “bud” when writing up this brief!).

3. The information supplied, being four months old, was unreasonably stale and could not stand as the basis for believing more contraband would currently be found at the defendant’s house.

   6DCA made short work of these defense arguments:

   First, the reporting Microsoft employee was acting in connection with his/her employment and complying with the federal requirement for reporting. Technology companies like Yahoo, Microsoft and Goggle scan for child pornography and are required to report any discovery to the NCMEC which serves as a national clearinghouse for tip information. NCMEC is in turn statutorily obligated to report suspected child exploitation tips to law enforcement. The employee was a concerned and reliable informant, “volunteering information fortuitously, openly and through a motive of citizenship”. It was highly unlikely this person was an “imposter”. Thus, no additional corroboration of the informant’s identity was required in the search warrant affidavit.

   Second, defense counsel failed to read 311.4(d)(1) P.C. where the definition of child pornography includes “exhibition of genitals or the pubic area for the purpose of sexual stimulation of the viewer”. The affidavit description was sufficient to establish probable cause and no independent viewing of the images by a magistrate was necessary.

   Third, as articulated in the affidavit, based upon the detective’s experience and training, the method of operation of child porn lovers is to collect and maintain a library of these materials for lengthy periods of time (“they will treat their materials as prized possessions”). Their collection will typically grow and lead to an obsession. As opposed to a drug buy which occurred at the residence four months earlier, there is was a “fair probability” or “substantial chance” the contraband was still aboard.

    Please refer also to Bob Phillips past articles, “The Private Search Doctrine and Computerized Hashing Technology (LU Ref. #CAC00054, 12/15/21) and “Search Warrant and Probable Cause” (LU Ref. #CAC00079) 5/14/22).

   Evidence stands – pervert remains convicted! Good work by the detectives involved! Good precedent moving forward in the investigation of these important cases.

Stay Safe!

RH