Chism v. Washington State , 661 F.3d 380 ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TODD M. CHISM, individually and 
as husband and wife; NICOLE C.
CHISM, individually and as wife
and husband,
No. 10-35085
Plaintiffs-Appellants,
v.  D.C. No.
2:09-cv-00025-LRS
WASHINGTON STATE; WASHINGTON
OPINION
STATE PATROL; RACHEL GARDNER,
individually; JOHN SAGER,
individually,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, Chief District Judge, Presiding
Argued and Submitted
February 11, 2011—Seattle, Washington
Filed August 25, 2011
Before: Betty B. Fletcher, Richard A. Paez, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Paez;
Dissent by Judge Ikuta
16307
16312 CHISM v. WASHINGTON STATE
COUNSEL
Robert A. Dunn and Susan C. Nelson, Dunn & Black, P.S.,
Spokane, Washington, for plaintiff-appellants Todd M. Chism
and Nicole C. Chism.
CHISM v. WASHINGTON STATE 16313
Robert M. McKenna, Attorney General, and Catherine Hen-
dricks, Senior Counsel, Seattle, Washington, for defendants-
appellees Rachel E. Gardner and John Sager.
OPINION
PAEZ, Circuit Judge:
This civil rights action under 42 U.S.C. § 1983 arises from
an internet child pornography investigation by Washington
State Police (WSP) Officers Rachel Gardner and John Sager
(“the officers”). As a result of information the officers
acquired, Todd Chism became the focus of their investigation.
Gardner prepared an affidavit in support of a search warrant
application, which Sager reviewed. On the basis of that affi-
davit, a magistrate judge issued a broad search warrant to
search Todd Chism’s home and business office. Relying on
the same information contained in Gardner’s affidavit, Deputy
Prosecuting Attorney Christian Peters obtained from the same
magistrate judge a warrant to arrest Todd for violating Wash-
ington’s child pornography laws.1 A few days later, several
WSP officers executed the search and arrest warrants.2 A
WSP detective eventually conducted forensic examinations of
the Chisms’ home computer and computers from the Spokane
Fire Department, where Todd Chism worked as a firefighter.
The investigation did not reveal any evidence of child pornog-
raphy, and charges were never filed against Todd Chism.
1
Specifically, the arrest warrant stated that probable cause existed to
support the arrest and detention of Todd for violations of Revised Code
of Washington §§ 9.68A.060 and 9.68A.070. Section 9.68A.060 prohibits
“sending or bringing into the state depictions of a minor engaged in sexu-
ally explicit conduct.” Section 9.68A.070 prohibits “possessi[ng] depic-
tions of a minor engaged in sexually explicit conduct.”
2
The police report detailing the investigation seems to indicate that
Sager was present for the search. It is unclear from the police report
whether Gardner was present.
16314 CHISM v. WASHINGTON STATE
Several months later, Todd and his wife, Nicole Chism,
filed this § 1983 action against the State of Washington, the
WSP, Detective Gardner, and Sergeant Sager, alleging—
among other things not relevant to this appeal—that the offi-
cers violated their Fourth and Fourteenth Amendment rights
by securing the search and arrest warrants with an affidavit
that deliberately or recklessly contained material omissions
and false statements.3 The Chisms and the officers filed cross
motions for summary judgment on the issue of qualified
immunity as to the constitutional claim. The district court
granted the officers’ motion, concluding that the officers’
conduct did not violate a clearly established constitutional
right of which a reasonable officer would have known. The
Chisms timely appealed.
We reverse the district court’s judgment and remand this
case for trial. Viewing the evidence in the light most favor-
able to the Chisms, we conclude that the Chisms have made
a substantial showing of the officers’ deliberate falsehood or
reckless disregard for the truth and have established that, but
for the dishonesty, the searches and arrest would not have
occurred. We also conclude that the officers are not entitled
to qualified immunity because the Chisms’ right to not be
searched and arrested as a result of judicial deception was
clearly established at the time Gardner prepared and submit-
ted her affidavit.
I. BACKGROUND
On July 3, 2007, Washington’s Missing and Exploited
Children Task Force (MECTF) received a tip from the
National Center for Missing and Exploited Children
(NCMEC). The tip advised MECTF that roughly one week
3
In addition to their constitutional claim, the Chisms’ First Amended
Complaint alleges nine other causes of action, most of which are tort
claims relating to events that occurred after the search and arrest warrants
were executed.
CHISM v. WASHINGTON STATE 16315
earlier, the web-hosting company Yahoo! had archived
images of child pornography that were contained on the web-
site http://foelonipwin-cmezixecvom.us/ (the “foel website”).
The tip listed Yahoo! user account qek9pj8z9ec@yahoo.com
(the “first user account”) as the “suspect.” The tip stated that
Internet Protocol (IP) address 68.113.11.494 was used to open
the first user account on May 11, 2007. The tip did not pro-
vide the time or date that the child pornographic images were
uploaded to the foel website, nor did it provide the IP address
from which the child pornographic images were uploaded.
Detective Gardner was assigned to investigate this tip.
On July 17, 2007, MECTF received another tip from
NCMEC. Similar to the first tip, the July 17 tip indicated that
two weeks earlier, Yahoo! archived images of child pornogra-
phy that were contained on the website
http://qemtudawyownufiseip.com (the “qem website”). The tip
listed Yahoo! user account qaagwcyI9ab@yahoo.com (the
“second user account”) as the “suspect.” The tip stated that IP
address 67.160.71.115 was used to open the second user
account on June 19, 2007. The tip did not provide the time or
date that the child pornographic images were uploaded, nor
did it provide the IP address from which the child porno-
graphic images were uploaded. WSP Detective Vic Mauro
was assigned to investigate this tip.
The detectives began their investigations by obtaining war-
rants to search Yahoo! records associated with the first and
second user accounts.5 In agreement with the first NCMEC
tip, the Yahoo! records indicated that the foel website was
4
As we have explained, “[e]very computer or server connected to the
Internet has a unique IP address.” United States v. Forrester, 512 F.3d
500, 510 n.5 (9th Cir. 2008).
5
The record indicates that Gardner and Mauro independently obtained
warrants to search Yahoo! records associated with the NCMEC tips
because at that point in the investigation the detectives had no reason to
believe the tips were connected.
16316 CHISM v. WASHINGTON STATE
created on May 11, 2007. The information for the first user
account listed the name “Mr. Nicole Chism” with birthday
May 20, 1966. The information indicated that “Mr. Nicole
Chism” lived in Chile and used zip code “ucc16.” The Yahoo!
records also showed that the first user logged in to the account
on June 18, 2007 from IP address 69.147.83.181, a different
IP address than the one used to create the foel website. The
billing information associated with the first user account listed
Nicole Chism’s name and contained the Chisms’ correct resi-
dential address, phone number, and credit card number, which
ended in 6907. Finally, the Yahoo! records showed that two
months of “domain service” for the foel website had been
paid with the Chisms’ credit card.6 The Chisms’ credit card
statements confirm that they were twice charged a monthly
fee for domain service for the foel website.
The information that Yahoo! provided about the second
user account was similar in character. In agreement with the
second NCMEC tip, the Yahoo! records indicated that the
qem website was created on June 19, 2007. The information
for the second user account listed the name “Mr. Nicole
Chism” with a birthday of March 11, 1977; indicated that
“Mr. Nicole Chism” was from Bolivia; and used zip code
“nf897.” The Yahoo! records also showed that the second
user logged in twice since opening the account. On July 3,
2007, the second user logged in twice: once from IP address
69.147.83.181 (the IP address from which the first user
logged in on June 18, 2007), and once from a different IP
address. Yahoo! did not provide any billing information for
the second user account, but the Chisms’ credit card state-
ments showed that Yahoo! charged them one hosting fee for
the qem website on June 22, 2007.
6
The “domain service” fee is a fee that Yahoo! charges to host, or, pro-
vide server space and internet connection, for an individual website. We
use the terms “domain service fee” and “hosting fee” interchangeably
throughout.
CHISM v. WASHINGTON STATE 16317
Detectives Gardner and Mauro also independently obtained
warrants to trace the IP addresses used to create the two user
accounts and websites. Detective Gardner learned that the IP
address used to open the first user account and to create the
foel website was traced to Cheryl Corn of Walla Walla,
Washington. The IP address used to open the second user
account and to create the qem website was traced to Vitina
Pleasant of Federal Way, Washington. It appears that neither
Gardner nor Mauro traced IP address 69.147.83.181—the IP
address from which the first user logged in on June 18, 2007
and the second user logged in on July 3, 2007.
A few months later, Mauro’s assignment was transferred to
WSP Detective Shelby Wilcox. After reviewing the informa-
tion from Yahoo!, Gardner and Wilcox noticed that both user
accounts used the name “Mr. Nicole Chism” and both web-
sites had at some point been accessed from the IP address
69.147.83.181. Gardner and Wilcox concluded that the tips
might be connected, and Gardner took over the investigation
of both tips. Gardner decided to investigate the Chism lead,
largely because Nicole’s name was common to both tips.
Gardner first determined that the Chisms’ 6907 card was a
Bank of America Visa credit card. Gardner contacted Bank of
America in September 2007 and learned from a Bank of
America employee that the Chisms had reported a lost credit
card in 2006. The 6907 card was a replacement for the lost
card. The Bank of America employee, however, informed
Gardner that no fraudulent activity had been reported on the
6907 card.7 Gardner eventually obtained credit card state-
ments for the 6907 card and confirmed that the Chisms had
7
This information was, in fact, false. The Chisms reported fraudulent
activity on their 6907 card in August 2007, roughly one month after Gard-
ner received the NCMEC tips and roughly one month before Gardner
spoke to Bank of America. Because the officers were not aware of this
reported fraud at the time Gardner drafted her affidavit, we place no sig-
nificance on the omission of this relevant information from the affidavit.
16318 CHISM v. WASHINGTON STATE
paid two charges for the foel website and one charge for the
qem website. On the basis of this information, Gardner con-
cluded that there was probable cause to believe that Todd
Chism had committed a crime.
In January 2008, Gardner submitted a search warrant appli-
cation and affidavit to a magistrate judge and obtained a war-
rant to search the Chisms’ home in Nine Mile Falls,
Washington, and Todd Chism’s workplace in Spokane, Wash-
ington. Sager reviewed the affidavit and agreed that probable
cause existed. On the same day, Deputy Prosecuting Attorney
Christian Peters obtained a warrant to arrest Todd for
“[s]ending, bringing into the state depictions of minor
engaged in sexually explicit conduct and [p]ossession of
depictions of [m]inor engaged in sexually explicit conduct.”
The warrants were executed five days later. WSP officers
arrested, detained, and interrogated Todd; they scoured the
Chisms’ home; and they seized the Chisms’ computers. No
child pornography was found, and criminal charges were
never filed against Todd.
The Chisms sued the State of Washington, the WSP, Detec-
tive Gardner, and Sergeant Sager under 42 U.S.C. § 1983,
alleging violations of their constitutional rights. Both the
Chisms and the officers moved for summary judgment on the
issue of qualified immunity, and the district court granted the
officers’ motion and denied the Chisms’ motion. The district
court then declined to exercise supplemental jurisdiction over
the Chisms’ state law claims, pursuant to 28 U.S.C.
§ 1367(c)(3), and dismissed them. The Chisms appeal the dis-
trict court’s grant of summary judgment.
II. ANALYSIS
[1] We review de novo a grant of summary judgment on
the ground of qualified immunity, and “must determine, view-
ing the evidence in the light most favorable to the nonmoving
party, whether there are any genuine issues of material fact
CHISM v. WASHINGTON STATE 16319
and whether the district court correctly applied the relevant
substantive law.” Prison Legal News v. Lehman, 397 F.3d
692, 698 (9th Cir. 2005) The officers are entitled to qualified
immunity unless: (1) the Chisms have “ma[de] out a violation
of a constitutional right,” and (2) “the right at issue was
‘clearly established’ at the time of [the officers’] alleged mis-
conduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (cit-
ing Saucier v. Katz, 533 U.S. 194, 201 (2001)); Bull v. City
and Cnty. of San Francisco, 595 F.3d 964, 971 (9th Cir. 2010)
(en banc). We may consider the two prongs of the qualified
immunity analysis in any order. Pearson, 555 U.S. at 236. We
begin with the first prong.
A. Constitutional Violation
[2] The Chisms argue that the officers violated their Fourth
Amendment rights through judicial deception.8 For the
Chisms’ judicial deception claim to survive summary judg-
ment, the Chisms “must 1) make a substantial showing of [the
officers’] deliberate falsehood or reckless disregard for the
truth and 2) establish that, but for the dishonesty, the
[searches and arrest] would not have occurred.” Liston v.
Cnty. of Riverside, 120 F.3d 965, 973 (9th Cir. 1997) (citing
Hervey v. Estes, 65 F.3d 784, 788-89 (9th Cir. 1995)) (inter-
nal quotation marks omitted).9
8
We disagree with the Dissent’s brief suggestion that the Chisms
waived the opportunity to argue that Gardner’s affidavit contained false
statements. The Chisms’ failure to precisely articulate each false statement
and omission to support their judicial deception claim does not undermine
our ability to consider all of the false statements and omissions contained
in Gardner’s affidavit. The Supreme Court has explained that it is claims
—not arguments—that are waived by failure to present an issue to the
court below. See Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374(1991); accord United States v. Guzman-Padilla, 573 F.3d 865, 877 (9th
Cir. 2009); United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir.
2004).
9
A judicial deception claim is different from a garden-variety claim that
a warrant lacked probable cause on its face. We have explained that a
16320 CHISM v. WASHINGTON STATE
[3] We first observe that Gardner’s affidavit contained sev-
eral false statements and omissions. The first false statement
contained in Gardner’s affidavit was her assertion that,
“[b]ased on the information received from NCMEC about the
images downloaded by Todd M. Chism, it is likely to believe
he was using internet service at his residence and/or his busi-
ness office.” Gardner’s allusion to “images downloaded by
Todd M. Chism” is inaccurate. When Gardner drafted the
affidavit, she possessed no information that Todd had ever
accessed any child pornographic images, let alone the particu-
lar images that were uploaded to the qem and foel websites.
Nor did Gardner have any evidence that the images were ever
downloaded by anyone. As far as Gardner knew, the only evi-
dence linking Todd to the websites was the fact that the credit
card he shared with Nicole was used to pay the hosting fees
for the sites. Thus, Gardner’s assertion that Todd downloaded
images of child pornography was not a truthful representation
of the evidence she had gathered.
[4] The second false statement contained in Gardner’s affi-
davit was her assertion that the Chisms’ credit card was “used
to purchase the images of child pornography from the web-
site.” This statement was false because the Chisms’ credit
card was not used to buy images of child pornography.
Rather, the Chisms’ card was used to pay hosting fees for the
sites to which illegal images were uploaded at some unknown
time, date, and location. Gardner’s statement that the Chisms’
plaintiff bringing a judicial deception claim “argues that [an officer] mis-
led the magistrate judge when applying for the warrant, and had the mag-
istrate considered all of the facts that the magistrate would not have found
probable cause.” Smith v. Almada, 640 F.3d 931, 937 (9th Cir. 2011). A
judicial deception claim can be contrasted with a garden-variety claim that
a warrant lacked probable cause on its face, in which “the arresting officer
enjoys qualified immunity unless the warrant application is so lacking in
indicia of probable cause as to render official belief in its existing unrea-
sonable.” Id. (quoting Malley v. Briggs, 475 U.S. 335, 344-45 (1986))
(internal quotation marks omitted).
CHISM v. WASHINGTON STATE 16321
card purchased child pornographic images was therefore
patently false.
[5] Gardner’s affidavit also contained several serious omis-
sions. First, Gardner omitted her discovery that the IP
addresses that were used to open the offending Yahoo! user
accounts and websites were traced to people other than the
Chisms. Second, Gardner omitted the fact that a third IP
address—69.147.83.18—was used to log in to both the first
and second user accounts on June 18, 2007, and that this IP
address was never traced. Third, Gardner omitted the fact that
Nicole shared the 6907 credit card account with Todd, even
though Nicole’s name—not Todd’s—was associated with the
two user accounts. Fourth, Gardner did not report that the user
accounts contained nonsensical identifying information.10
Having determined that Gardner’s affidavit contained false
statements and omissions, we next consider whether the
Chisms have made a substantial showing of the officers’
intentional or reckless disregard for the truth; and, if so,
whether their false statements and omissions were material to
the probable cause determinations. Liston, 120 F.3d at 973.
1. Intentional or Reckless Deception
[6] As a first element of their judicial deception claim, the
Chisms must demonstrate that the officers acted deliberately
or with reckless disregard for the truth in preparing the affida-
vit. Id. at 973. Because the Chisms appeal from a grant of
summary judgment, they need only make a “substantial show-
ing” of the officers’ deliberate or reckless false statements and
omissions. Id. “Clear proof of deliberat[ion] or reckless[ness]
is not required” at the summary judgment stage. United States
10
As described above, the first user account was registered with the
name “Mr. Nicole Chism,” the country Chile, and the zip code ucc16. The
second user account was registered with the name “Mr. Nicole Chism,”
the country Bolivia, and the zip code nf897.
16322 CHISM v. WASHINGTON STATE
v. Stanert, 762 F.2d 775, 781 (9th Cir.), amended by 769 F.2d
1410 (9th Cir. 1985). If the Chisms make such a substantial
showing, then “the question of intent or recklessness is a fac-
tual determination” that must be made by the trier of fact. Lis-
ton, 120 F.3d at 974 (internal quotation marks omitted).
Viewing the evidence in the light most favorable to the
Chisms, we conclude that the Chisms have made a substantial
showing that the officers’ deception was intentional or reck-
less. The most commonsense evidence that the officers acted
with at least a reckless disregard for the truth is that the omis-
sions and false statements contained in the affidavit were all
facts that were within Gardner’s personal knowledge. For
example, Gardner’s false reference to “images downloaded by
Todd Chism” was a statement that Gardner knew to be false
when she drafted her affidavit.
[7] The declaration Gardner filed in the district court simi-
larly demonstrates that she knew that the IP addresses used to
register the user accounts and websites were traced to other
people, and that she knew that the identifying information for
the Yahoo! accounts was nonsensical. The fact that the affida-
vit did not report important factual information that was
within the officers’ knowledge at the time Gardner prepared
her affidavit would allow a reasonable factfinder to conclude
that the officers acted with at least a reckless disregard for the
truth. See Butler v. Elle, 281 F.3d 1014, 1025-26 (9th Cir.
2002) (per curiam); Stanert, 762 F.2d at 781; see also Liston,
120 F.3d at 975 (“Given the importance of the [omitted infor-
mation] to the probable cause analysis . . . a jury could rea-
sonably conclude that [the affiant’s] failure to mention [that
information] in his affidavit amounted to at least reckless dis-
regard for the truth.”).
[8] A reasonable factfinder could also find that the officers
acted recklessly or intentionally because the false statements
and omissions contained in the affidavit all bolster the case
for probable cause, which suggests that the mistakes were not
the product of mere negligence. It is conspicuous that, cumu-
CHISM v. WASHINGTON STATE 16323
latively, the omissions purged the affidavit of any reference
to the possibility that someone other than Todd Chism was
responsible for the offending websites. Corn and Pleasant
were the people to whom the offending IP addresses were
traced, yet this information was omitted from the affidavit.
Nicole Chism’s credit card information was used to pay the
hosting fees, yet the fact that Nicole was an authorized user
of the credit card was omitted from the affidavit. All of the
information in each Yahoo! profile was nonsensical, yet this
information was omitted from the affidavit. In short, the net
effect of Gardner’s omissions was to obscure the prospect that
someone other than Todd Chism might have registered the
websites and uploaded images of child pornography. We have
no difficulty deciding that a reasonable factfinder, viewing the
evidence in the light most favorable to the Chisms, could con-
clude that Gardner’s omissions reflected an affiant “reporting
less than the total story . . . [to] manipulate the inferences a
magistrate will draw.” Stanert, 762 F.2d at 781. Accordingly,
we hold that the Chisms made a substantial showing of the
officers’ reckless or intentional disregard for the truth.
2. Materiality of the False Statements and Omissions
[9] Our inquiry does not end with the Chisms’ substantial
showing that the affidavit contained reckless or deliberate
false statements and omissions. To make out their judicial
deception claim, the Chisms must also establish that the false
statements and omissions were material to the magistrate
judge’s probable cause determination. Our inquiry into
whether the false statements and omissions were material is
a purely legal question, which we analyze de novo. See But-
ler, 281 F.3d at 1024. The false statements and omissions
contained in Gardner’s affidavit were material if “the affida-
vit, once corrected and supplemented,” would not have pro-
vided a magistrate judge with a substantial basis for finding
probable cause. Stanert, 762 F.2d at 782. We conclude that a
corrected version of Gardner’s affidavit would not have pro-
16324 CHISM v. WASHINGTON STATE
vided the magistrate with a substantial basis for finding prob-
able cause.
i. Materiality as to the Search Warrants
[10] While there is no “numerically precise degree of cer-
tainty corresponding to probable cause, . . . it is clear that only
the probability, and not a prima facie showing, of criminal
activity is the standard of probable cause.” Illinois v. Gates,
462 U.S. 213, 235 (1983) (citing Spinelli v. United States, 393
U.S. 410, 419 (1969)) (internal quotation marks omitted). The
Supreme Court has declined to articulate a “neat set of legal
rules” for evaluating probable cause, id. at 232, and instead
has instructed magistrate judges to determine probable cause
by considering the “totality-of-the-circumstances,” id. at 230.
In issuing a search warrant, the magistrate judge simply must
determine whether there is a “fair probability” that evidence
of a crime will be found. Id. at 238, 246.
[11] Our probable cause analysis is guided by United
States v. Gourde, 440 F.3d 1065 (9th Cir. 2006) (en banc), a
recent case involving the search of a criminal defendant’s
computer for images of child pornography. In Gourde, we
held that three key pieces of evidence, considered together,
were sufficient to establish probable cause to believe
Gourde’s computer contained images of child pornography:
(1) that the accessed website “was a child pornography site
whose primary content was in the form of images”; (2) that
as a subscriber to the website, “Gourde had access and wanted
access to these illegal images”; and (3) that “[h]aving paid for
multi-month access to a child pornography site,” and owing
to the “long memory of computers,” Gourde’s computer was
likely to contain evidence of a crime. Id. at 1070-71. In other
words, we looked for evidence in the affidavit: (1) that a
crime was committed; (2) that it was Gourde who committed
the crime; and (3) that evidence of the crime would be found
in the place to be searched. In light of this “triad of solid
facts,” we concluded that “the reasonable inference that
CHISM v. WASHINGTON STATE 16325
Gourde had received or downloaded [child pornographic]
images easily meets the ‘fair probability’ test.” Id. at 1071.
We use this framework to determine whether Gardner’s affi-
davit would have supported probable cause if it had presented
a truthful description of the evidence she collected during her
investigation of Todd Chism.
[12] Like the website at issue in Gourde, the parties do not
dispute that the qem and foel websites here contained images
of child pornography. Therefore, Gardner’s affidavit meets
the first prong of the Gourde inquiry: it presents evidence that
a crime was committed. We also assume without deciding that
Gardner’s affidavit satisfied the third prong of the Gourde
framework by presenting evidence that a computer used to
upload child pornographic images would contain evidence of
a crime.11 The remaining prong of the Gourde inquiry requires
us to consider whether a truthful version of Gardner’s affida-
vit would have provided a “fair probability” that Todd Chism
committed a crime.
[13] A truthful version of Gardner’s affidavit would have
indicated that the sole evidence connecting Todd Chism to
the child pornographic images was the fact that the credit card
he shared with Nicole was charged three times for hosting the
websites that contained child pornographic images. This con-
nection is a far cry from the facts presented in the affidavit,
which stated that Todd “downloaded” and “purchase[d]” child
pornography.12 A supplemented version of Gardner’s affidavit
11
Specifically, Gardner’s affidavit stated that “in [her] experiences and
from [her] conversations with computer forensic examiners, computer evi-
dence can remain stored on computers for extended periods of time,” and
can be recovered from a computer even if it is deleted by the user.” The
affidavit also stated that “[p]ersons involved in sending or receiving child
pornography tend to retain it for long periods of time.” The Chisms do not
challenge these assertions.
12
The Dissent downplays the significance of the affidavit’s misstate-
ments. We agree with the Dissent that the affidavit’s use of the word
16326 CHISM v. WASHINGTON STATE
also would have informed the magistrate judge that the IP
addresses used to register the websites were traced to people
other than the Chisms, and that the Yahoo! user accounts
associated with the websites contained nonsensical identifying
information. In considering all of the information available to
the officers, we do not think it sufficient to establish a fair
probability that evidence of a crime would be found at the
Chisms’ home or Todd Chism’s office.
[14] We find it particularly significant that the IP addresses
from which the qem and foel websites were created were
traced to internet subscribers hundreds of miles away from the
Chisms’ home in Nine Mile Falls, Washington. We have
explained that a computer that is connected to the internet can
be uniquely identified by its IP number, much like a land-line
phone can be uniquely identified by its phone number. See
Forrester, 512 F.3d at 510 n.5. Moreover, we have repeatedly
recognized the utility of using IP address information to
investigate child pornography offenders. See United States v.
Craighead, 539 F.3d 1073, 1080-81 (9th Cir. 2008) (holding
that probable cause existed where the IP address from which
child pornographic images were shared was traced to the
defendant); United States v. Hay, 231 F.3d 630, 634-35 (9th
Cir. 2000) (holding that an affidavit demonstrated probable
cause where the agent carefully detailed how the IP address
associated with the child pornographic images was connected
to the defendant). Our sister circuits take the same approach.
“downloaded” instead of “uploaded” is not material because evidence that
Todd Chism had uploaded images of child pornography—if such evidence
had existed—would have been just as damaging as evidence that he down-
loaded child pornography. See Revised Code of Washington
9.68A.050-9.68A.070 (prohibiting possessing, disseminating, and sending
child pornography). The problem with the affidavit is not that it uses the
word “downloaded” instead of “uploaded,” but rather, that it improperly
states that Todd Chism was the perpetrator. As we have explained, this
error was significant because there was no evidence that Todd Chism had
ever accessed either of the offending websites.
CHISM v. WASHINGTON STATE 16327
See, e.g., United States v. Vosburgh, 602 F.3d 512, 526-27 (3d
Cir. 2010) (“[S]everal Courts of Appeals have held that evi-
dence that the user of a computer employing a particular IP
address possessed or transmitted child pornography can sup-
port a search warrant for the physical premises linked to that
IP address.”) (footnote omitted); United States v. Stults, 575
F.3d 834, 843-44 (8th Cir. 2009); United States v. Perrine,
518 F.3d 1196, 1205-06 (10th Cir. 2008); United States v.
Perez, 484 F.3d 735, 738-40 (5th Cir. 2007); United States v.
Wagers, 452 F.3d 534, 539 (6th Cir. 2006)); Hay, 231 F.3d
at 635-36; see also United States v. Bynum, 604 F.3d 161, 165
(4th Cir. 2010).
[15] Here, the IP address associated with child porno-
graphic images led to locations different from the locations to
be searched, and the affidavit did not establish a physical link
between the illegal images and the locations to be searched.13
Several inferences would have to be drawn in order to con-
clude that Todd violated Washington’s laws against child por-
nography. First, one would have to infer that Todd had used
his wife’s name rather than his own to pay the hosting fees for
the sites. One would also have to infer that Todd devised a
way to access the foel and qem websites with a forged IP
address. Finally, one would have to infer from the previous
two inferences that Todd was the person who uploaded the
child pornographic images from his computer to the websites
at an unknown time, date, and location. This convoluted string
of inferences reduces the possibility that child pornography
13
We disagree with the Dissent that Gourde is factually indistinguish-
able from this case. In Gourde, we noted that the FBI was able to “link[ ]
the email user—‘gilbert95@yahoo.com,’ a known subscriber to [a child
pornographic website]—to Gourde and to his home address in Castle
Rock, Washington.” 440 F.3d at 1071. We did not specify in Gourde
whether the FBI used IP address information to link the user information
to Gourde, nor did any of the evidence in Gourde raise the specter of iden-
tity theft. In contrast to Gourde, several pieces of evidence in this case
suggested that Todd Chism was not connected to the child pornographic
images.
16328 CHISM v. WASHINGTON STATE
would be found at Todd Chism’s home and office to far
below a “fair probability.” See United States v. Weber, 923
F.2d 1338, 1345 (9th Cir. 1990) (explaining that “with each
succeeding inference, the last reached is less and less likely
to be true.”).14
Our conclusion also finds support in the WSP’s training
materials, which explain:
Much, if not all, of the cyber-evidence (the E-mail
addresses and IP addresses used) will lead you to an
innocent person. That’s why simply identifying
which account was used to commit a crime does not
provide you with probable cause to get a search or
arrest warrant for the name and address on that
account. You’ll need to do more investigating to
determine if there is a link between the account
holder (or other members of the household) with the
criminal activity that was committed with that
account.
The affidavit submitted by Marcus Lawson, the president of
a computer forensic company that examined Todd Chism’s
computers similarly admonishes:
[T]o have any success as an Internet criminal,
regardless of whether one was a thief, a hacker or a
child pornography collector, it would be incumbent
to use other people’s identities to do so. . . . It is pri-
marily for this reason that relying only on informa-
14
The Dissent argues that “the lack of a match between the IP addresses
used for registration and the Chisms’ IP address has no probative value.”
Dissent at 16339. We disagree. Where, unlike here, a person’s IP address
is used to upload or download child pornography, there is a direct link
between that person’s physical location and evidence of a crime. When
this direct link is absent, at least one, if not several, additional inferences
are necessary to conclude that evidence of a crime will be found at the
location to be searched.
CHISM v. WASHINGTON STATE 16329
tion provided by the user of a credit card that is
associated with criminal activity is inherently unreli-
able.
(emphasis added).
[16] We are mindful that “[a] letter-perfect affidavit is not
essential.” United States v. Esparza, 546 F.2d 841, 844 (9th
Cir. 1976). In this case, however, we do not believe that a rea-
sonable magistrate judge would have issued the search war-
rant if she had been apprised of an accurate version of the
evidence. We therefore hold that the affidavit’s false state-
ments and omissions were material to the probable cause
determination for the search warrants.
ii. Materiality as to Todd Chism’s Arrest
[17] Unlike the search warrants—which were supported by
Gardner’s affidavit—the warrant for Todd’s arrest was sup-
ported by a Certification of Probable Cause (CPC) from
Peters, a state prosecutor. In the CPC, Peters cited Gardner’s
investigation as the source of his information.
[18] Like Gardner’s affidavit, Peters’ CPC contained mate-
rial false statements and omissions. For example, like Gard-
ner’s affidavit, Peters’ CPC stated that the Chisms’ card was
used to “purchase the images of child pornography,” which is
a false statement. Also like Gardner’s affidavit, Peters’ CPC
omitted critical information, including the fact that the IP
addresses used to create the Yahoo! user accounts and web-
sites were traced to Corn and Pleasant. Peters similarly with-
held the fact that the two Yahoo! user accounts contained
nonsensical identifying information for the Chisms, and that
Nicole shared the 6907 credit card with Todd. These false
statements and omissions were material as to Todd Chism’s
arrest for the reasons discussed above.
[19] That the CPC supporting probable cause was submit-
ted by Peters—not Gardner—is inconsequential. In fact, the
16330 CHISM v. WASHINGTON STATE
officers do not dispute that they might be held responsible for
damages stemming from Todd’s arrest even though the war-
rant for this arrest was supported by Peters’ CPC rather than
Gardner’s affidavit. Moreover, we have held that a “deliberate
or reckless omission by a government official who is not the
affiant can be the basis for a [suppression claim under Franks
v. Delaware, 438 U.S. 154 (1978)].” United States v. DeLeon,
979 F.2d 761, 764 (9th Cir. 1992). Because Franks suppres-
sion claims and judicial deception claims under § 1983
involve the same constitutional right, we do not see any rea-
son to distinguish DeLeon from this case. Hervey, 65 F.3d at
789 (“The showing necessary to get to a jury in a section 1983
action is the same as the showing necessary to get an evidenti-
ary hearing under Franks.”). Therefore, we hold that the
Chisms have made out a judicial deception claim for Todd’s
arrest.
B. Qualified Immunity
[20] Qualified immunity shields the officers from liability
“insofar as their conduct d[id] not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). Although there are genuine triable issues of fact as to
the merits of the Chisms’ judicial deception claim, our discus-
sion in the previous section demonstrates that the Chisms
have made an adequate showing that there was a constitu-
tional violation. Therefore, we must consider whether the
Chisms’ constitutional rights were clearly established at the
time that Gardner submitted her affidavit.
[21] In determining whether the Chisms’ constitutional
rights were clearly established at the time of the officers’ con-
duct, we ask whether the contours of the Chisms’ rights were
so clear that “every ‘reasonable official would have under-
stood that what he is doing violates that right.’ ” Ashcroft v.
al-Kidd, 131 S. Ct. 2074, 2083 (2011) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). Although “[w]e do not
CHISM v. WASHINGTON STATE 16331
require a case directly on point, [ ] existing precedent must
have placed the statutory or constitutional question beyond
debate.” Id.[22] Our analysis of this prong is brief because we have
already held that governmental employees are not entitled to
qualified immunity on judicial deception claims. In Branch v.
Tunnell, 937 F.2d 1382 (9th Cir. 1991) (overruled on other
grounds by Galbraith v. City and Cnty. of Santa Clara, 307
F.3d 1119 (9th Cir. 2002)), we explained that
if an officer submitted an affidavit that contained
statements he knew to be false or would have known
were false had he not recklessly disregarded the truth
and no accurate information sufficient to constitute
probable cause attended the false statements, . . . he
cannot be said to have acted in a reasonable manner,
and the shield of qualified immunity is lost.
Id. at 1387 (quoting Olson v. Tyler, 771 F.2d 277, 281 (7th
Cir. 1985)) (internal quotation marks omitted). We have con-
sistently applied the rule that summary judgment on the
ground of qualified immunity is not appropriate once a plain-
tiff has made out a judicial deception claim.15 See, e.g., Liston,
120 F.3d at 972; Hervey, 65 F.3d at 788. In light of Branch,
Liston, and Hervey, we conclude that “every ‘reasonable offi-
15
In judicial deception cases, our qualified immunity analysis at the
summary judgment stage is swallowed by the question of reckless or
intentional disregard for the truth. See Butler, 281 F.3d at 1024 (noting
that “our cases effectively intertwine the qualified immunity question (1)
whether a reasonable officer should have known that he acted in violation
of a plaintiff’s constitutional rights with (2) the substantive recklessness
or dishonesty question”). We have explained that this “merger” is sensible
because “no reasonable officer could believe that it is constitutional to act
dishonestly or recklessly with regard to the basis for probable cause in
seeking a warrant. Accordingly, should a factfinder find against an official
on this state-of-mind question, qualified immunity would not be available
as a defense.” Id.16332 CHISM v. WASHINGTON STATE
cial would have understood’ ” that the Chisms had a constitu-
tional right to not be searched and arrested as a result of
judicial deception. al-Kidd, 131 S. Ct. at 2083. We therefore
hold that the officers are not entitled to qualified immunity.
III. CONCLUSION
For the foregoing reasons, we reverse the district court’s
grant of summary judgment to the officers.
REVERSED AND REMANDED.
IKUTA, Circuit Judge, dissenting:
In All the President’s Men, Deep Throat famously advised
two investigative journalists that in order to find the truth,
they had to “follow the money.” In United States v. Gourde,
we endorsed this maxim, holding that payment of subscription
fees to a site on which child pornography is available was suf-
ficient to support probable cause for a search warrant. 440
F.3d 1065, 1071 (9th Cir. 2006) (en banc). Despite the fact
that this case involved a direct connection between the
Chisms’ credit card and two websites populated with child
pornography, the majority holds that the evidence was insuffi-
cient to support probable cause, and therefore the district
court erred in granting summary judgment to the police on the
basis of qualified immunity. In doing so, the majority tram-
ples on controlling precedent and defies common sense. I
respectfully dissent.
I
The Washington State Police received a hot “cybertip”
about child pornography on two Yahoo!-hosted websites.
Yahoo! lets users create their own websites (with unique
domain names) and host their own content on those websites,
CHISM v. WASHINGTON STATE 16333
including populating the websites with images. Yahoo! may
also provide users with domain-based email accounts.
The first tip directed the police to a website with the URL
http://foelonipwin-cmezixecvom.us (referred to here as the
“foel” website). According to the tip, 14 images of child por-
nography had been uploaded to this website. The tip identified
the “screen user name” for the web site as “qek9pj8z9ec” and
the email associated with this website as
“qek9pj8z9ec@yahoo.com” (referred to here as the “qek”
user name and email). Yahoo!’s subscriber information for
the website identified the subscriber as “Nicole Chism,” with
the Chisms’ address and phone number, and the qek email
address. The user’s log-in name was “qek,” with the full name
given as “Mr. Nicole Chism,” and the country identified as
“Chile.” The Yahoo! Billing History showed that the Chisms’
credit card had paid for two months of web hosting fees for
the site.
The second tip identified a website with the URL
http://qemtudawyow-nufiseip.com (referred to here as the
“qem” website). According to the tip, 63 images of child por-
nography had been uploaded to this website. The tip identified
the email associated with this website as “qaagw-
cy19ab@yahoo.com” and the user name as “qaagwcy19ab”
(referred to here as the “qaag” email and user name). Yahoo!
did not provide subscriber information, but according to
Yahoo!, the user’s full name was “Mr. Nicole Chism,” the
log-in name was “qaag,” and the country was identified as
“Bolivia.” The Yahoo! Login Tracker showed that “qaag” had
logged into the website three times, once from the same IP
address used by “qek.”
The police followed up with Bank of America, which had
issued the credit card that paid for these child pornography
sites. According to the bank, the Chisms had not reported any
fraudulent activity on their card. Reviewing the card’s billing
records, the police confirmed that the Chisms’ credit card was
16334 CHISM v. WASHINGTON STATE
used pay for the foel website for two months and the qem
website for a month.
Based on this investigation, the police could reasonably
conclude that a person using the name Chism, providing the
Chisms’ home address and phone number, and paying with
the Chisms’ credit card, had created two websites, populated
them with child pornography, and logged on to the sites sev-
eral times. Does this create a “fair probability,” Illinois v.
Gates, 462 U.S. 213, 246 (1983), that child pornography
would be found on the Chisms’ computer? Did the magistrate
judge correctly answer the “commonsense, practical question”
that there was probable cause to believe that evidence of child
pornography was located at the Chisms’ residence? Id. at 230.
These questions answer themselves: it is reasonable to “fol-
low the money” from the child pornography website, to the
fees paying to host that website, to a credit card owned by the
Chisms, to the address for the payee (which is the same
address as the website’s subscriber), and from there to the
Chisms’ computer. And if there was any doubt, Gourde
requires us to hold that there was probable cause supporting
the warrant, as explained below. Therefore, the district court
did not err in rejecting the Chisms’ claim that their Fourth
Amendment rights were violated and granting summary judg-
ment in favor of the police.
II
Our en banc decision in United States v. Gourde is directly
on point and controls our probable cause analysis here.
In Gourde, the police investigated a website that featured
child pornography (called “Lolitagurls.com”) and obtained a
membership list. 440 F.3d at 1067. The list included the name
Micah Gourde, and provided Gourde’s name, home address,
date of birth, and email address. Id. at 1068. According to the
membership list, Gourde’s credit card had been used to pay
a fee of $19.95 a month for unlimited access to the website
CHISM v. WASHINGTON STATE 16335
and its images for over two months, until the FBI shut down
the site. Id. at 1067-68.
We concluded, based on the evidence that Gourde’s credit
card had been used to pay subscription fees to a site that con-
tained child pornography, that there was a “fair probability”
that “Gourde’s computer contained evidence that he violated”
federal child pornography laws. Id. at 1069.
First, we inferred that Gourde “had access and wanted
access to [ ] illegal images.” Id. at 1070. We based this infer-
ence on evidence that Gourde had been a paying member of
a website containing images of child pornography. Because
his credit card had been used to pay for access to the website,
and Gourde could not have paid two months of subscription
fees “by accident or by a mere click of a button,” id., we rea-
soned that Gourde had knowingly and willingly paid for
unlimited access to illegal images, see id. at 1070-71.
Given this conclusion, we made the further inference that
there was “near certainty that his computer would contain evi-
dence of a crime had he received or downloaded images” in
violation of federal law. Id. at 1071. As we explained, “[i]t
neither strains logic nor defies common sense to conclude,
based on the totality of these circumstances, that someone
who paid for access for two months to a website that actually
purveyed child pornography probably had viewed or down-
loaded such images onto his computer.” Id.Based on this “triad of solid facts,” namely that: (1) “the
site had illegal images,” (2) the inference that Gourde
intended to have and wanted access to these images; and (3)
our further inference that “these images were almost certainly
retrievable from his computer if he had ever received or
downloaded them,” we determined that “the reasonable infer-
ence that Gourde had received or downloaded images easily
meets the ‘fair probability’ test.” Id. “Employing the princi-
ples of Gates-practicality, common sense, a fluid and non-
16336 CHISM v. WASHINGTON STATE
technical conception of probable cause, and deference to the
magistrate’s determination,” we concluded that the search
warrant was supported by probable cause. Id.In reaching this conclusion, we rejected Gourde’s argument
that the police should have looked for evidence of Gourde’s
downloads in the computer hosting the child pornography
website, and his claim that “absent such concrete evidence,
the profile data and other facts are insufficient to support a
warrant.” Id. at 1072. We disagreed that the police had any
obligation to conduct such additional investigation or obtain
any additional evidence: Gourde asserted that the police did
not need to turn a “fair probability” into a “near certainty.” Id.
at 1073.
Gourde is directly applicable and controls the outcome of
this case. The same “triad of solid facts” found in Gourde are
present here: (1) the foel and qem websites contained images
of child pornography, (2) the Chisms’ credit card paid to host
both sites, raising the inference that the Chisms intended to
have and wanted access to these images, and therefore (3)
images of child pornography “were almost certainly retriev-
able from [the Chisms’] computer if [the Chisms] had ever
received or downloaded them.” Id. at 1071. Like the defen-
dant in Gourde, the Chisms could not have paid two months
of hosting fees for the sites “by accident or by a mere click
of a button,” id. at 1070, and the inference that the Chisms’
computer contained child pornography was eminently reason-
able given that they paid multi-month fees to host a child por-
nography website, see id. at 1071. Under Gourde, these two
facts raise the additional inference that images of child por-
nography were retrievable from the Chisms’ computer had
they “ever received or downloaded them.” Id. at 1071. Indeed,
this additional inference is even stronger here than it was in
Gourde, because there was evidence that the user names asso-
CHISM v. WASHINGTON STATE 16337
ciated with a “Mr. Nicole Chism” were used to log in to both
the foel and qem websites.1
Under any reasonable reading, Gourde dictates that the link
between the Chisms’ credit card and the websites containing
child pornography, coupled with the multi-month charges, the
repeated log-ins, and the lack of any billing challenge from
the Chisms, is necessarily sufficient to establish probable
cause. Even viewing the record in the light most favorable to
the Chisms, the police had probable cause to search the
Chisms’ residence irrespective of any alleged misrepresenta-
tions or omissions in the affidavits submitted to obtain the
search and arrest warrants. The Chisms therefore suffered no
Fourth Amendment violation, and their § 1983 claim for judi-
cial deception must fail as a matter of law.
III
In supporting its contrary conclusion, the majority relies on
both omissions and alleged false statements in the affidavit,
Maj. Op. at 16320-21, but places the most weight on alleged
misrepresentations that are clearly immaterial. Indeed, their
immateriality is amply evidenced by the fact that the Chisms
failed to even mention the alleged misrepresentations until
this appeal. Before the district court, the Chisms alleged only
that the affidavit contained material omissions. Now, for the
1
The majority’s attempt to distinguish Gourde is unavailing. See Maj.
Op. at 16327 n.13. In Gourde, the FBI used subscription information pro-
vided by Lancelot Security to link membership in the Lolitagurls.com
website to Gourde and his home address in Castle Rock, Washington. 440
F.3d at 1070-71. Here, the police used subscription information provided
by Yahoo! and credit card information provided by Bank of America to
link the user accounts for the foel and qem websites to the Chisms and
their home address in Nine Mile Falls, Washington. The information is
effectively identical. In addition, the majority’s attempted distinction of
Gourde on the ground that none of the evidence in that case raised “the
specter of identity theft” is peculiar, given the majority’s correct statement
that here the police had no reason to know of any reported credit card
fraud. Maj. Op. at 16317 n.7.
16338 CHISM v. WASHINGTON STATE
first time on appeal, the Chisms raise the claim that the affida-
vits contained recklessly made false statements. Even assum-
ing the latter claim is appropriately before us, cf. Whittaker
Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir. 1992),
it is baseless in any event.
To be clear, the Chisms have been able to dig up only two
alleged false statements in the police officers’ affidavit. First,
the affidavit notes the credit card number used to pay for the
foel website, and states: “This is the [credit] card the suspect
used to purchase the images of child pornography from the
website ‘[foel].’ ” Although the majority places much weight
on the fact that the credit card “was not used to buy images
of child pornography,” Maj. Op. at 16320, this error in the
affidavit is immaterial, given that the Chisms’ credit card was
used to buy the website itself, that is, to pay hosting fees for
a website populated with child pornography. While the affida-
vit’s misstatement may evince carelessness, or a lack of preci-
sion, it does not establish a deliberate or reckless disregard for
truth.
Second, the affidavit states, “Based on the information
received from NCMEC about the images downloaded by
Todd M. Chism, it is likely to believe he was using internet
services at his residence and/or business office.” Again, the
majority makes much of the fact that there was no evidence
that Todd Chism had downloaded images of child pornogra-
phy. But any error is again immaterial. The evidence estab-
lishes that someone controlling the foel website uploaded
child pornography to the website, and uploading images of
child pornography raises exactly the same inferences as
downloading such images. Moreover, Gourde instructs that
we can infer that a person who pays for access to images of
child pornography has downloaded them. 440 F.3d at 1071.
Again, the affidavit’s use of the word “download” instead of
“upload” cannot be the basis of a judicial deception claim.
The majority places less weight on the alleged omissions in
the affidavit, and for good reason: they are either immaterial,
CHISM v. WASHINGTON STATE 16339
or not really omissions at all. First, the majority points to the
affidavit’s failure to state that the IP addresses used to register
the foel and qem websites were traced to Cheryl Corn and
Vitina Pleasant. Maj. Op. at 16317, 16321. This carries little
weight, given that the credit card used to pay the hosting fees
for the sites and the usernames used to log in to both sites
were registered to the name “Chism.” Moreover, given the
existence of proxy software, which allows an unknown indi-
vidual to log on to the internet under another person’s IP
address, the lack of a match between the IP addresses used for
registration and the Chisms’ IP address has no probative
value. See, e.g., United States v. Vosburgh, 602 F.3d 512, 527
n.14 (3d Cir. 2010) (recognizing that “proxy servers can be
used to mask IP addresses”); Tagged, Inc. v. Does 1 Through
10, 2010 WL 370331, at *2 (N.D. Cal. Jan. 25, 2010) (finding
IP address information unreliable where pattern of IP
addresses indicated the use of a proxy server). In other words,
while a match between an IP address associated with porno-
graphic images and the IP address of a defendant’s computer
increases probable cause that the defendant is involved in a
crime, as the majority argues, Maj. Op. at 16326-27, no case
has relied on the reverse proposition (that the lack of a match
between an IP address associated with such images and the IP
address of the defendant’s computer reduces probable cause
of the defendant’s involvement). Indeed, in this case, the FBI
determined that proxy software had been installed on Cheryl
Corn’s computer, allowing an unknown individual to log onto
the internet under her IP address. Thus the absence of infor-
mation in the affidavit about the IP addresses used to register
the foel and qem sites was immaterial.
Second, Agent Gardner’s failure to disclose the fact that the
police never traced the IP address that was used to log in to
both the foel and qem websites, Maj. Op. at 16317, 16321,
cannot be deemed an omission: as in Gourde, the police have
no obligation to turn a “fair probability” into a “near certain-
ty” by conducting such an additional investigation. 440 F.3d
at 1071. As Gourde explained, “[a]n affidavit may support
16340 CHISM v. WASHINGTON STATE
probable cause even if the government fails to obtain poten-
tially dispositive information,” id. at 1073 n.5.2
Third, the majority’s reliance on the omission of the infor-
mation that Nicole and Todd Chism both used the credit card
that paid the hosting fees, Maj. Op. at 16320-21, is baffling.
Surely the failure to inform the magistrate judge that hus-
bands and wives often use the same credit card cannot be
deemed a material omission. At a minimum, this revelation
would not have changed the “fair probability” that child por-
nography would be found at the Chisms’ residence.
In fact, no weight can be placed on any of the alleged mis-
representations and omissions given the ample evidence to
support probable cause, and thus they cannot be used to sup-
port a judicial deception claim. It is well established that
“[o]missions or misstatements resulting from negligence or
good faith mistakes will not invalidate an affidavit which on
its face establishes probable cause.” United States v. Smith,
588 F.2d 737, 740 (9th Cir. 1978). Here, even if the affidavit
was corrected per the Chisms’ claimed omissions and misrep-
resentations, it was not “so lacking in indicia of probable
cause as to render official belief in its existence unreason-
able.” Malley v. Briggs, 475 U.S. 335, 345 (1986).
Finally, the majority errs in its determination that the affi-
davit failed to establish probable cause because the police did
not establish “a physical link between the illegal images and
the locations to be searched.” See Maj. Op. at 16327. The
majority’s ruling is directly contrary to the Supreme Court’s
decision in Gates, which held that a determination of probable
2
The majority’s argument that the lack of a match between the IP
address used to register the foel and qem websites is a material omission
and reduces probable cause because it means that “one additional infer-
ence is necessary to conclude that evidence of a crime will be found at the
location to be searched,” Maj. Op. at 16328 n.14, likewise runs afoul of
Gourde’s admonition that the government need not “obtain potentially dis-
positive information.” 440 F.3d at 1073 n.5.
CHISM v. WASHINGTON STATE 16341
cause must be based on the totality of the circumstances, not
on the presence or omission of specific items of evidence. 462
U.S. at 230-31; see also United States v. Martinez-Garcia,
397 F.3d 1205, 1217 (9th Cir. 2005). And it is directly con-
trary to Gourde, which rejected the necessity for the sort of
evidence (e.g., an IP address association or physical link) that
the majority suggests is required. There was no need, Gourde
tells us, for the police to develop any evidence that Gourde
had ever received or downloaded images, let alone evidence
of downloads traced to his IP address. See 440 F.3d at
1072-73. Given the government’s evidence that phony IP
addresses abound in cyberspace, the majority’s “physical
link” rule will baffle many an investigation into child pornog-
raphy and its users and peddlers.
IV
While it turns out that the Chisms were not responsible for
the child pornography websites under investigation by the
police, ample evidence pointed to the conclusion that they
were. The evidence established more than a fair probability
that child pornography would be found on computers at the
Chisms’ residence; indeed, Gourde compels the conclusion
that the police had probable cause for the search.3 Therefore,
there was no constitutional violation, and the district court did
not err in granting summary judgment to the police on the
basis of qualified immunity. In concluding that evidence lead-
ing to suspects who are paying to host their own child pornog-
raphy websites does not create a “fair probability” that child
pornography will be found on the suspects’ computer, the
majority turns its back on Deep Throat’s adage, our case law,
and the Supreme Court’s probable cause jurisprudence. I dis-
sent.
3
Though the arrest warrant is a closer question, the evidence also sup-
ported probable cause to arrest either Todd or Nicole Chism. See Smith v.
Almada, 640 F.3d 931, 937 (9th Cir. 2011).