People v. Wadleigh ( 2023 )

Filed 7/12/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A165017
v.
DANIEL BENJAMIN WADLEIGH, (San Mateo County
Defendant and Appellant. Super. Ct. No. 20-SF-002550-A)
Daniel Wadleigh appeals from the denial of his motion pursuant
to Penal Code section 1538.51 to suppress evidence found during
searches of his residence and electronic accounts. After the trial court
found the evidence admissible, Wadleigh pled no contest to one count of
possessing child pornography in violation of section 311.11,
subdivision (a).
Wadleigh argues that the warrants authorizing the two searches
were invalid because their descriptions of four images in his electronic
accounts lacked sufficient factual detail from which the magistrate
could determine that (1) the subjects were minors and (2) the images
depicted sexual conduct within the meaning of section 311.4,
subdivision (d)(1). Wadleigh further contends that the officer,
Detective Ronald DeRespini, who prepared the warrant affidavits
recklessly and inaccurately described the first image. The officer,
1 Further statutory references are to the Penal Code.
Wadleigh argues, should have included the actual images in the
warrant applications.
We conclude that the warrant applications contained sufficient
factual detail to establish probable cause, and therefore affirm. But
while we find no error in this case, the fact that the officer misdescribed
one of the images (as the Attorney General acknowledges), and testified
that he was taught not to include images of suspected child
pornography in warrant applications, prompts us to explain why we
agree with other courts that the preferable course is to include the
actual images purporting to establish probable cause.
BACKGROUND
A. The Warrants and Searches
Adobe Systems Incorporated (Adobe) reported a “Cybertip” to the
National Center on Missing and Exploited Children (NCMEC) in
June 2019.2 NCMEC reported the tip to law enforcement. Detective
Ronald DeRespini of the San Mateo County Sheriff’s Office
investigated the tip.
The tip stated that someone with the username
“mrwadleigh@sbcglobal.net” had uploaded 23 images of suspected child
pornography to an Adobe account. The Adobe account was associated
with an IP address linked to an AT&T Internet Services (AT&T)
2 As the warrant affidavit explained, “NCMEC serves as a
clearinghouse of information about missing and exploited children and
operates a ‘CyberTipline’ that the public may use to report internet-
related child sexual exploitation. NCMEC forwards the Cybertips to
the appropriate law enforcement agency for further investigation.”
(See 18 U.S.C. § 2258A [requiring electronic communication service
providers to report apparent violations of child pornography laws to
NCMEC].)
2
account. DeRespini prepared a search warrant application to gather
subscriber information for both accounts. In his affidavit supporting
the warrant application, DeRespini identified four of the 23 images as
child pornography. He described those images as follows:
“File name: file_IMG_6801.jpg
“Photo description: The image depicts a young female, who
appears to be under the age of 16 years old laying on her
right side, on a bed. She appears to be nude except for
fishnet stockings, with a pink bow affixed to them. Her
chest is fully exposed, and she appears to be engaged in
sexual intercourse with an almost completely obscured
male. She is looking towards the male, and she has both of
her hands placed on the bed.
“File name: file_IMG_6821.jpg
“Photo description: The image depicts two young females
who appears [sic] to be under the age of 13 years old, laying
down on a towel. They both appear to be in bikini-type
swimwear. The female in the lower part of the image has
her legs spread open in a sexual manner to arouse the
viewer.
“File name: file_IMG_6829.jpg
“Photo description: The image depicts a young female, who
appears to be under the age of 13 years old. She is wearing
a blue and yellow bathing suit. She is faced toward the
viewer. She has her legs spread open in a sexual manner to
arouse the viewer, and the imprint of her labia majora is
clearly visible.
“File name: file_IMG_68371.jpg
“Photo description: The image depicts a young female, who
appears to be under the age of 13 years old. She is wearing
a white and pink ballerina outfit. She is faced toward the
viewer. She has her legs spread open in a sexual manner to
arouse the viewer, and the imprint of her labia majora is
clearly visible. . . .”
3
(Some internal formatting omitted.)
DeRespini explained that those who possess child pornography
tend to keep the materials indefinitely. He also noted that his
“observations of the subjects’ approximate ages are based on the
following. I am a father, as well as an uncle, and have observed the
changes in physical appearance, stature, and body structure of my
children, nieces, and nephews as they aged. I was also assigned as a
school resource officer for four and a half years and interacted with
thousands of children in this age range, and observed the changes in
physical appearance, stature, and body structure as the children grew
older. Finally, I have been investigating child pornography cases for
over a year and have viewed thousands of pictures of children in this
age range, and have seen the differences in appearance, stature, and
body structure of the children in these images.” DeRespini concluded,
therefore, that the images “depict a minor performing sexual acts, as
well as minors depicted in sexually suggestive positions,” and that a
search of the Adobe account would show additional evidence of crimes
involving child pornography. He also sought information from both
Adobe and AT&T to identify the owner of the accounts and the owner’s
geographical location.
DeRespini did not include any of the images with the warrant
application. A magistrate authorized the search based on the
application.
After executing the search warrant, DeRespini learned the
address of Wadleigh’s likely residence and that the Adobe and AT&T
accounts belonged to Wadleigh. The search yielded additional evidence
of child pornography: three zip files, two of which contained a combined
4
total of 41 images of suspected child pornography. In the following
months, DeRespini conducted social media searches and surveillance at
Wadleigh’s suspected home. Through the searches and surveillance
DeRespini confirmed Wadleigh’s residence and identified Wadleigh’s
vehicle.
DeRespini prepared a second search warrant application. This
time, he sought authorization to search Wadleigh’s person, vehicle, and
residence; to search for and seize his electronic devices and stored
digital media; and to conduct a forensic examination of any items
seized. DeRespini restated his experience and training related to child
pornography offenses, including the paragraph describing his
experience determining the relative age of image subjects, and
elaborated on the reasons he expected to find additional child
pornography in the search. The affidavit repeated verbatim the
description of the four images in the first search warrant, but again did
not include the actual images. The second warrant application also did
not contain any of the 41 images found in the first search.
A different magistrate judge signed the second warrant. Law
enforcement officers executed the warrant and seized various items
that contained additional images of suspected child pornography.
B. Court Proceedings
Wadleigh was charged with one felony count of violating
section 311.11, subdivision (a). He later moved to suppress the
evidence gathered in the searches. The trial court construed
Wadleigh’s motion as seeking not only to suppress the evidence, but
also to traverse the search warrant pursuant to Franks v. Delaware
(1978) 438 U.S. 154 (Franks).
5
In January 2021, the trial court first heard argument and took
testimony on the motion to suppress and to traverse the warrants.
Among other things, DeRespini testified that he had been taught not to
include images of suspected child pornography in warrant applications,
and had never included them in the approximately one dozen
applications he had done.
Later, the court held a second suppression hearing and orally
denied the motion to suppress and to traverse the warrants. As the
court explained, the “issue then really comes down to [United States v.]
Perkins [(9th Cir. 2017) 850 F.3d 1109 (Perkins)] whether . . . a warrant
is invalid if the magistrate did not actually view the images
themselves. . . . [T]he Court did find . . . that the first image that was
described by [DeRespini], the Court cannot say that was an extremely
accurate description of the first image.”3
“The next three images the Court found that the descriptions
were very, very accurate as to what those images were. And so the
question would be, if the Court believes that Perkins mandates a
viewing of the images, then we would stop there. But, again, as I
stated the Court in reading Perkins and putting all of the
circumstances together . . . that the Court would find that the officer’s
background and experience and his descriptions were accurate for the
magistrate reviewing the warrant and specific enough for the
magistrate reviewing the warrant to base the finding of probable cause
on those descriptions.
3 The judge also stated: “I would agree with [Wadleigh] for that
first image that the description was difficult to find out what
[DeRespini] w[as] talking about. It didn’t really, to me, match the
photograph.”
6
“And for that reason, the Court would deny the motion to
suppress the evidence or to traverse the warrant.”
Wadleigh pled no contest to one count of violating section 311.11,
subdivision (a), and the trial court sentenced him to two years of
probation and six months of jail time. Wadleigh timely appealed.
DISCUSSION
On appeal, Wadleigh claims three primary errors arising from
the two warrants. First, Wadleigh asserts that DeRespini’s factual
descriptions in the warrant applications were insufficient to establish
probable cause that the subjects of the four images were minors.
Second, he contends that DeRespini’s descriptions failed to establish
probable cause that the four images depicted prohibited sexual conduct
as described in section 311.4, subdivision (d). Third, Wadleigh
contends that DeRespini included in the applications a recklessly
inaccurate description of the first image. Under Franks, he argues, the
evidence discovered in the searches should have been excluded because
the magistrate would not have found probable cause for the searches if
the inaccurate description had been omitted from the warrant
applications and the image had been provided in its place. (Franks,
supra, 438 U.S. at pp. 155–156.) Wadleigh also argues that, if we
conclude the warrants are invalid, the good faith exception set forth in
United States v. Leon (1984) 468 U.S. 897 (Leon) does not save the
seized evidence from suppression.
We disagree with Wadleigh on the first two points. As to the
third point, we conclude that, even assuming DeRespini’s inaccurate
description of the first image was made recklessly or intentionally,
probable cause still existed for the searches based on the remaining
7
contents of the warrant applications. Having rejected these arguments,
we do not reach the good faith question under Leon.
1. Standard of Review
“ ‘In California, issues relating to the suppression of evidence
derived from governmental searches and seizures are reviewed under
federal constitutional standards.’ ” (People v. Macabeo (2016) 1 Cal.5th
1206, 1212; see People v. McWilliams (2023) 14 Cal.5th 429, 437, fn. 2.)
When reviewing such issues, “we defer to the [trial] court’s factual
findings, express or implied, where supported by substantial evidence.
[Citation.] To determine whether, based on the facts so found, a search
or seizure was reasonable under the Fourth Amendment, we exercise
our independent judgment.” (People v. Fayed (2020) 9 Cal.5th 147,
186.)
2. Probable Cause
To determine whether probable cause exists, we ask “whether the
magistrate had a substantial basis for concluding a fair probability
existed that a search would uncover wrongdoing.” (People v. Kraft
(2000) 23 Cal.4th 978, 1040.) “ ‘ “The test for probable cause is not
reducible to ‘precise definition or quantification.’ ” [Citation.] But . . .
it is “ ‘less than a preponderance of the evidence or even a prima facie
case.” ’ ” (People v. Rowland (2022) 82 Cal.App.5th 1099, 1110
(Rowland).)
Section 311.11, subdivision (a) prohibits the knowing possession
of “any . . . image . . . the production of which involves the use of a
person under 18 years of age, knowing that the matter depicts a person
under 18 years of age personally engaging in or simulating sexual
conduct, as defined in subdivision (d) of Section 311.4.” Section 311.4,
8
subdivision (d)(1) defines “ ‘sexual conduct’ ” to include “any of the
following, whether actual or simulated: sexual intercourse, . . . [or]
exhibition of the genitals or pubic . . . area for the purpose of sexual
stimulation of the viewer. . . .” The parties appear to agree that the
first image should be analyzed within the category of actual or
simulated sexual intercourse and the second through fourth images
within the category of the exhibition of the genitals or pubic area for
the purpose of sexual stimulation of the viewer. We must therefore
consider whether the magistrates, having considered the warrant
applications, including DeRespini’s descriptions of the images, had a
substantial basis to conclude there was a fair probability that Wadleigh
possessed child pornography.
Wadleigh argues the warrant applications failed to establish
probable cause in two ways—first, by failing to provide sufficient
information as to the image subjects’ age, and second, by failing to
provide sufficient information establishing that the images depicted
sexual conduct. We consider these arguments in turn.
a. The Affidavits’ Descriptions of the Subjects’ Ages
Wadleigh argues that DeRespini’s affidavits did not establish
probable cause as to the image subjects’ minority.
A warrant affidavit that recites “a mere conclusory statement” is
not sufficient to establish probable cause. (Illinois v. Gates (1983)
462 U.S. 213, 239.) Here, the entirety of DeRespini’s treatment of the
image subjects’ ages were his statements that: “The image[s] depict[] a
young female [or females], who appear[] to be under the age of 16 [or
13] years old.” These statements, standing alone, are conclusory.
DeRespini did not supply even an estimated three-year age range for
9
the image subjects, as has been found sufficient, in context and along
with other information, in federal cases. (See United States v.
Battershell (9th Cir. 2006) 457 F.3d 1048, 1053–1054 (Battershell).) In
Battershell, the affiant-officer investigating child pornography included
in the warrant application a description of two images. (Id. at p. 1049.)
The first “showed ‘a young female (8–10 YOA) naked in a bathtub. The
second picture showed another young female having sexual inter-course
with an adult male.’ ” (Ibid.) In grammatical context and supported by
reliable reports from two civilians that the defendant had images on his
computer of “kids having sex,” the court held that the warrant
application’s reference to the “ ‘young female having sexual inter-
course’ ” in the second picture was sufficient to establish probable cause
that the “young female” was between eight and ten years old, and
therefore a minor. (Id. at pp. 1049, 1053–1054.)
Here, as in Battershell, the warrant affidavits contained more
information than just DeRespini’s rough estimates of the image
subjects’ age. The NCMEC cybertip was the equivalent of a reliable tip
from a concerned citizen, a factor supporting a finding of probable
cause. (Rowland, supra, 82 Cal.App.5th at pp. 1103, 1112–1118; see
Battershell, supra, 457 F.3d at p. 1054.) DeRespini also explained his
training and experience in both warrant affidavits: He is a father and
an uncle; had been a school resource officer for four and half years and
during that time encountered thousands of children in this age range;
had worked on child pornography cases for more than a year at the
time he completed the affidavits; and in the course of his work had
viewed thousands of images of children in this age range. This
experience allowed him to evaluate “the differences in appearance,
10
stature, and body structure of the children in these images” and to
estimate their ages. (People v. Nicholls (2008) 159 Cal.App.4th 703,
711–712 [an officer may interpret facts in warrant applications based
on their expertise and a magistrate may consider their expertise as a
factor supporting probable cause]; Battershell, 457 F.3d at p. 1054
[conclusory age estimates, without further detail, may establish
probable cause]; see also United States v. Wiegand (9th Cir. 1987)
812 F.2d 1239, 1243 [“Common sense suggests that most of the time
one can tell the difference between a child and an adult”].) Together,
the rough estimates, along with the presumptively reliable Cybertip
and DeRespini’s training and experience, were sufficient to establish
probable cause as to the subjects’ minority.4
Wadleigh points to United States v. Syphers (1st Cir. 2005)
426 F.3d 461, as mandating that warrant applications include either
the images themselves or a description of the physiological and
developmental features of the image subjects. But Syphers never
actually ruled on the issue; instead, the court concluded that, even if
the warrant applications were insufficient as to age, the Leon good faith
exception excused their insufficiencies. (Id. at pp. 466–467; cf. United
States v. Pavulak (3d Cir. 2012) 700 F.3d 651, 661 [concluding that
bare assertion by two civilians that they had observed defendant
“ ‘viewing child pornography’ of females between twelve and eighteen
years old,” without material corroboration, did not establish probable
cause that defendant possessed child pornography].)
4Because several factors support a finding of probable cause as to
the subjects’ age, People v. Vital (2019) 40 Cal.App.5th 925, 936, a case
in which there was “no evidence of . . . age,” is not relevant here.
11
Nonetheless, as we will discuss further post, we agree with
Wadleigh that “a neutral and detached magistrate” (Illinois v. Gates,
supra, 462 U.S. at p. 240), should in general view suspected images of
child pornography and make the ultimate determination that the
depicted individuals are minors. On the facts here, however, we
conclude that the magistrate had a substantial basis to conclude the
images depicted minors.
b. The Affidavits’ Description of Sexual Conduct
Wadleigh next argues that DeRespini’s descriptions in the
warrant affidavits were insufficient to establish that the images
depicted sexual conduct.5 According to Wadleigh, an individual viewing
the images would need to make a series of subjective judgment calls to
so conclude: With respect to the first image, one would have to
conclude that the subject was having sexual intercourse with another
person, and with respect to the second through fourth images, that the
subjects were posed and the images composed to exhibit their genital
and pubic areas “for the purpose of sexual stimulation of the viewer.”
(§ 311.4, subd. (d)(1).) Wadleigh does not identify any specific
additional detail that should have been included in the descriptions,
but rather points to Perkins as creating a bright line rule that any
5 The federal child pornography statute prohibits the “lascivious
exhibition of the . . . genitals[] or pubic area of any person.” (18 U.S.C.
§ 2256, subd. (2)(A)(v).) “[E]xhibiting the genitals or pubic . . . area for
the purpose of sexual stimulation of the viewer” under section 311.4,
subdivision (d)(1), “means the same thing as a lascivious exhibition of
the genitals” under federal law, and accordingly we rely here on federal
precedents. (People v. Kongs (1994) 30 Cal.App.4th 1741, 1754 (Kongs),
citing United States v. Wiegand, supra, 812 F.2d at p. 1243.)
12
warrant application must include the images themselves, not just
descriptions.
We agree that, particularly with respect to the second through
fourth images, a person would have to make subjective judgment calls
regarding whether they exhibit the subjects’ genitals or pubic areas to
stimulate the viewer sexually.6 We also agree that DeRespini should
have included the actual images in the warrant applications. We
nonetheless conclude that under controlling law, DeRespini was not
required to include the images themselves, and his descriptions of the
images were sufficient to establish probable cause for the searches.
Perkins does suggest that law enforcement must include any
images in warrant applications for searches of child pornography. (See
Perkins, supra, 850 F.3d at pp. 1118, 1119.) The actual images are
particularly important where the conduct allegedly involves minors
exhibiting their genitals or pubic areas lasciviously or, analogously, for
the sexual stimulation of the viewer—in either case an inherently
subjective conclusion. (Id. at pp. 1116, 1118; Battershell, supra,
457 F.3d at pp. 1051–1054; United States v. Brunette (1st Cir. 2001)
256 F.3d 14, 19 (Brunette) [“Ordinarily, a magistrate judge must view
an image in order to determine whether it depicts the lascivious
exhibition of a child’s genitals”]; see fn. 5, ante; cf. Battershell, 457 F.3d
at p. 1051 [noting that other, objective categories of sexual conduct,
such as sexual intercourse, bestiality, and masturbation are “ ‘ clearly
defined and easily recognized’ ”].)
6 Because the first image raises potential Franks and other
issues, as described post, we consider only the descriptions of the
second through fourth images.
13
But Perkins’ ostensible rule arose from unique facts. (See
Perkins, supra, 850 F.3d at p. 1118 [“Given the circumstances of this
case, [the officer] was required to provide copies of the images for the
magistrate’s independent review” (italics added)].) There, two different
officers from different jurisdictions reviewed the same images, applied
similar legal standards, and came to conflicting conclusions regarding
whether one of the images was child pornography.7 (Id. at pp. 1113–
1114, 1117 & fn. 3.) The officers also described the assertedly
pornographic image in materially different ways: One officer described
the image subject’s breasts and pubic areas as “clearly visible,” while
the other wrote that they were of “decrease[d] prominence” and a
“minor aspect” of the photo, respectively. (Id. at pp. 1113–1114.) And
Perkins was decided over a dissent; even the judges disagreed as to
whether the images were child pornography. (Compare id. at p. 1122
[“Viewing the [disputed] image as a whole, we conclude . . . that it does
not depict the ‘lascivious exhibition of the genitals or pubic area’ ”] with
id. at p. 1128 (dis. opn. of Murguia, J.) [“The images in this case are at
the very least borderline child pornography”].) That jurists, having
carefully considered the matter, can come to opposing conclusions
regarding the images only underscores that Perkins was a uniquely
challenging case.
We also do not believe Perkins could have set forth an absolute
rule in the face of contrary precedent in a highly analogous case. In
New York v. P.J. Video, Inc. (1986) 475 U.S. 868, 874, fn. 5, the
Supreme Court explained that it had “never held that a magistrate
7The officers agreed the second image was not. (Perkins, supra,850 F.3d at pp. 1113, 1114.)
14
must personally view allegedly obscene films prior to issuing a warrant
authorizing their seizure. [Citation.] On the contrary, we think that a
reasonably specific affidavit describing the content of a film generally
provides an adequate basis for the magistrate to determine whether
there is probable cause to believe that the film is obscene, and whether
a warrant authorizing the seizure of the film should issue.” Indeed,
subsequent Ninth Circuit and California cases have concluded that a
magistrate need not necessarily view the actual images of child
pornography, even while at times acknowledging the better practice is
to include them in warrant applications. (See Rowland, supra,
82 Cal.App.5th at p. 1120; United States v. Rosenow (9th Cir. 2022)
50 F.4th 715, 738–739; United States v. Kaiser (9th Cir. 2019)
771 Fed. Appx. 441, 443; see also United States v. Hill (9th Cir. 2006)
459 F.3d 966, 969, fn. 4. [pre-Perkins ruling]; United States v. Smith
(9th Cir. 1986) 795 F.2d 841, 847 [same]; United States v. Pena
(9th Cir. 2008) 266 Fed. Appx. 574, 576 [same]; United States v. Moyer
(9th Cir. 2007) 256 Fed. Appx. 61, 62–63 [same].)
While Perkins did not set forth a bright line rule, its facts—
including the “borderline” nature of the images—highlight the reasons
law enforcement officers should routinely provide images of suspected
child pornography in warrant applications and thereby allow
magistrates to serve their function as neutral and independent arbiters
of probable cause. (See United States v. Pavulak, supra, 700 F.3d at
p. 661.) By applying our criminal laws to warrant applications,
magistrates guard the fundamental privacy interests animating the
Fourth Amendment. “The right of officers to thrust themselves into a
home is . . . a grave concern, not only to the individual but to a society
15
which chooses to dwell in reasonable security and freedom from
surveillance. When the right of privacy must reasonably yield to the
right of search is, as a rule, to be decided by a judicial officer, not by a
policeman . . . .” (Johnson v. United States (1948) 333 U.S. 10, 14.)
Thus, the Fourth Amendment’s “protection consists in requiring that []
inferences be drawn by a neutral and detached magistrate instead of
being judged by the officer engaged in the often competitive enterprise
of ferreting out crime.” (Id. at pp. 13–14.) And by applying Fourth
Amendment principles to child pornography laws, magistrates also
protect fundamental First Amendment and other interests. “Child
pornography is a particularly repulsive crime, but not all images of
nude children are pornographic. For example, ‘a family snapshot of a
nude child bathing presumably would not’ be criminal. [Citation.]
Moreover, 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.” (United
States v. Hill, supra, 459 F.3d at p. 970; see also generally Ashcroft v.
Free Speech Coalition (2002) 535 U.S. 234 [child pornography laws
implicate the First Amendment]; New York v. Ferber (1982) 458 U.S.
747 [similar].)
Careful deliberation and balancing of the various legal interests
at stake are all the more important when the images at issue require
subjective evaluation. (Perkins, supra, 850 F.3d at pp. 1122–1123 [“We
emphasize that this was an investigation of a suspected ‘lascivious’
image . . . the meaning of which is subjective”].) As a best practice, a
neutral magistrate should have had the opportunity in Perkins, and
here, to make a probable cause determination using the best
16
information available—the images themselves. Adding a layer of
subjective evaluation by law enforcement officers—to say nothing of the
possibility for misdescription—does not aid a magistrate’s probable
cause determination, but rather merely invites a later challenge by the
defendant. We recognize that, when the officer does not personally
appear before the magistrate and instead relies on email, there may be
technological issues that need to be resolved, such as file size limits or
firewalls that prevent these types of images from being sent. However,
as a general matter, providing the magistrate with copies of the images
is possible. Here, DeRespini had the images and there is no suggestion
that he could not have presented them directly to the magistrates.8 At
worst, had the magistrates viewed the images and found probable
cause lacking, DeRespini would have had to investigate further. (See
United States v. Zimmerman (3d Cir. 2002) 277 F.3d 426, 437, fn. 7.)
Perhaps for these reasons, we are not aware of a case—and the
parties have identified none—advising law enforcement generally not
to include images of child pornography in warrant applications. Given
the essential role of a neutral magistrate, “[w]e are troubled by the fact
that the government did not present and the magistrate did not see the
photos in question before the warrant issued.” (United States v. Smith,
supra, 795 F.2d at p. 847). More concerningly, DeRespini testified that
he was taught not to include the images. (Cf. Perkins, supra, 850 F.3d
at p. 1115 [agent similarly testified that the “general practice” was not
8 We do not mean to imply that sending the images relieves the
officer of his or her duties of providing sufficient facts and opinions to
establish probable cause, but only that the magistrate should have the
opportunity to view the images to confirm that he or she agrees with
the officer’s conclusion.
17
to provide copies of the images].) We reiterate that officers should,
whenever possible, include images of suspected child pornography in
warrant applications, particularly where, as here, a subjective
evaluation is necessary to determine whether the images’ content is
prohibited.
Of course, we also expect law enforcement officers, prosecutors,
and courts to protect the privacy interests of the minors depicted in the
suspected pornography. (See § 964, subd. (a) [district attorney and
court in each county, in consultation with law enforcement, must
establish a mutually agreeable procedure to protect the confidentiality
of victim information in search warrant applications].) When a search
warrant has been executed, the documents and records relating to the
warrant become public after it is executed and returned or 10 days
after issuance. (§ 1534, subd. (a).) Requests to seal should therefore be
filed in conjunction with search warrant applications that contain
suspected images of child pornography. (See, e.g., People v. Jackson
(2005) 128 Cal.App.4th 1009, 1023 [trial court properly sealed portions
of search warrant affidavit describing defendant’s alleged sexual
misconduct with two minors]; People v. Hobbs (1994) 7 Cal.4th 948, 963
[confidential informant information].)9
Having rejected Wadleigh’s assertion that the warrant
applications were per se inadequate without the images, we apply our
9 The highly specific sealing procedures governing the filing of
records filed or lodged with courts in civil and criminal cases generally
(Cal. Rules of Court, rules 2.550, 2.551) do not apply to sealed search
warrant affidavits where a mutually agreeable sealing protocol under
Penal Code section 964, subdivision (a), is in place. (See Advisory Com.
com. on Cal. Rules of Court, rule 2.550 [rules 2.550, 2.551 “do not apply
to records that courts must keep confidential by law,” citing Hobbs].)
18
independent judgment to conclude that DeRespini’s descriptions of the
images established probable cause. “[A] detailed description, including
the focal point and setting of the image, and pose and attire of the
subject, will generally suffice” to establish probable cause. (Brunette,
supra, 256 F.3d at p. 20; see also Kongs, supra, 30 Cal.App.4th at
pp. 1754–1755 [applying similar and frequently used factors from
United States v. Dost (S.D. Cal. 1986) 636 F.Supp. 828, 832].)
Here, as indicated by DeRespini’s descriptions, the children’s
“legs-apart poses were sexually suggestive and unnatural.” (Kongs,
supra, 30 Cal.App.4th at p. 1755.)10 The children were not nude, but
were wearing “abbreviated attire,” i.e., swimsuits and a ballerina outfit
through which the children’s genitalia could be discerned. (United
States v. Knox (3d Cir. 1994) 32 F.3d 733, 744; see Kongs, at pp. 1755–
1756 [nudity not required under section 311.4, subsection (d)(1)].)
Although DeRespini did not explicitly so state, his descriptions imply
that the images’ focal points were the children’s pubic areas. (See
Rowland, supra, 82 Cal.App.5th at pp. 1107, 1119–1120 [children posed
to emphasize their genitalia]; United States v. Wiegand, supra,
812 F.2d at p. 1244 [same].) Evaluating the “overall content” of the
image descriptions, we conclude they established that the images
exhibited the children’s genitals or pubic areas for the sexual
stimulation of the viewer. (Kongs, at pp. 1755–1757; see also People v.
Spurlock (2003) 114 Cal.App.4th 1122, 1133–1134.)
10Kongs was decided in a slightly different context—evaluating
whether there was sufficient evidence to indict the defendant for
violating section 311.11, subdivision (a), among other offenses. (See
Kongs, supra, 30 Cal.App.4th at pp. 1752–1757.) Yet the same
substantive analysis applies here, where we consider whether the
images fall within the statutory definition of child pornography.
19
3. Franks
In Franks, the United States Supreme Court held that, where a
“defendant makes a substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless disregard for
the truth, was included . . . in [a] warrant affidavit,” and then proves
the statement was reckless or intentional, “the affidavit’s false material
[is] set to one side.” (Franks, supra, 438 U.S. at pp. 155–156; see People
v. Panah (2005) 35 Cal.4th 395, 456.) If “the affidavit’s remaining
content is insufficient to establish probable cause, the search warrant
must be voided and the fruits of the search excluded . . . .” (Franks, at
p. 156; see People v. Panah, at p. 456.)
Wadleigh argues that DeRespini misrepresented the content of
the first image. We, like the trial court, find DeRespini’s description of
that image inaccurate. But whether the inaccuracies reflected
intentional misrepresentations or reckless disregard for the truth, or
merely “ ‘inadvertence and inattention to detail’ ” (Brunette, supra,
256 F.3d at pp. 16, 20), we conclude the warrants survive Franks
scrutiny.
Putting the first image to one side, the warrants established
probable cause for the searches.11 As discussed ante, the warrant
applications described three images depicting individuals DeRespini
concluded, based on his experience, were minors. DeRespini’s factual
descriptions of the three images indicated that the individuals in the
11Wadleigh suggests that a Franks inquiry would involve not
only omitting the inaccurate description from the warrant applications,
but also including the first image itself in the applications. Because no
absolute rule required DeRespini to include the images in the warrant
applications, we do not address this aspect of his argument.
20
images were posing unnaturally and in such a manner as to “exhibit[]
[their] genitals or pubic . . . area[s] for the purpose of sexual
stimulation of the viewer.” (§ 311.4, subd. (d).) The applications also
recounted that Wadleigh downloaded 23 images of suspected child
pornography using his electronic accounts (and an additional 41 such
images were discovered in the first search) and explained that
individuals who view child pornography tend to collect and store such
images indefinitely. These allegations established a fair probability
that Wadleigh possessed child pornography and that evidence of his
possession would be discovered in a search of his electronic accounts,
devices, and storage items. The warrants were valid, notwithstanding
any Franks issue with the first image.
4. Leon
Because we conclude that the warrant applications established
probable cause and that the warrants should not be invalidated under
Franks, we do not reach the good faith exception set forth in Leon.
(People v. Nicholls, supra, 159 Cal.App.4th at p. 715.)
DISPOSITION
The judgment is affirmed.
GOLDMAN, J.
WE CONCUR:
STREETER, Acting P. J.
FINEMAN, J. *
*Judge of the Superior Court of California, County of San Mateo,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
21
Trial Court: Superior Court of San Mateo County
Trial Judge: Honorable Richard H. DuBois
Counsel for Defendant and John Halley
Appellant:
Counsel for Plaintiff and Rob Bonta
Respondent: Attorney General of California
Lance E. Winters
Chief Assistant Attorney General
Jeffrey M. Laurence
Senior Assistant Attorney General
Eric D. Share
Supervising Deputy Attorney General
Brady Baldwin
Deputy Attorney General
22