State v. Gerard , 2016 N.C. App. LEXIS 975 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1014
Filed: 20 September 2016
Mecklenburg County, No. 10CRS218127-28, 30, 32, 34
STATE OF NORTH CAROLINA
v.
HEATH TAYLOR GERARD, Defendant
Appeal by defendant from judgments entered 7 May 2013 and order entered
20 May 2013 by Judge Yvonne Mims Evans in Superior Court, Mecklenburg County.
Heard in the Court of Appeals 10 February 2016.
Attorney General Roy A. Cooper III, by Assistant Attorney General Derrick C.
Mertz, for the State.
Tim Fulton Walker & Owen, PLLC, by Melissa Owen, for defendant-appellant.
STROUD, Judge.
Defendant appeals an order denying his motion to suppress and judgments
convicting him of six counts of third degree sexual exploitation of a minor. The trial
court erred in basing its determination upon the good faith exception under North
Carolina General Statute § 15A-974 but reached the correct result by denying the
motion to suppress, since the search warrant application and affidavit provided
sufficient information for the magistrate to make an independent and neutral
determination that probable cause existed for the issuance of the warrant which led
STATE V. GERARD
Opinion of the Court
to the search of defendant’s computer and discovery of child pornography. Therefore,
we affirm.
I. Background
The background of this case was summarized by this Court in State v. Gerard,
233 N.C. App. 599, 758 S.E.2d 903 (2014) (unpublished) (“Gerard I”). In summary,
defendant
was indicted on 7 June 2010 for six counts of third-degree
sexual exploitation of a minor. Detective C.E. Perez
(“Detective Perez”), of the Charlotte–Mecklenburg Police
Department, obtained a search warrant on 14 April 2010
to conduct a search of Defendant’s residence. Defendant
filed a motion on 3 April 2013 to suppress evidence seized
during the 14 April 2010 search of his residence.
Id. Thereafter, the trial court considered defendant’s motion to suppress, and “[i]n
an order entered on 20 May 2013, the trial court . . . concluded that the good faith
exception applied and denied Defendant’s motion to suppress. Defendant entered a
plea of guilty pursuant to Alford decision to six counts of third-degree sexual
exploitation of a minor. Defendant appeals.” Id. (quotation marks omitted).
This Court dismissed defendant’s appeal because defendant had “failed to give
notice of his intention to appeal[.]” Id. Thereafter, defendant filed a petition for writ
of certiorari which this Court “allowed for the purpose of reviewing the judgments
entered 7 May 2013 and the amended order entered 20 May 2013 by Judge Yvonne
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Mims Evans. Such review shall be limited to issues related to the denial of
defendant’s motion to suppress.”
II. Motion to Suppress
Defendant first contends that “the trial court erred in denying Mr. Gerard’s
motion to suppress on the ground that probable cause existed to issue a search
warrant.” (Original in all caps.) Relying primarily on North Carolina General
Statutes §§ 15A-244 and 245, defendant argues that the information in the affidavit
supporting the search warrant application did not include sufficiently detailed facts
and circumstances to support a determination that probable cause existed for
issuance of the warrant.
In ruling upon a motion to suppress evidence, the
trial court must set forth in the record its findings of fact
and conclusions of law. The general rule is that the trial
court should make findings of fact to show the bases of its
ruling. The standard of review in evaluating the denial of
a motion to suppress is whether competent evidence
supports the trial court’s findings of fact and whether the
findings of fact support the conclusions of law. Conclusions
of law are reviewed de novo.
State v. McCrary, 237 N.C. App. 48, 51–52, 764 S.E.2d 477, 479–80 (2014) (citations,
quotation marks, ellipses, and brackets omitted), aff'd in part and remanded, ___
N.C. ___, 780 S.E.2d 554 (2015).
Defendant does not challenge the trial court’s findings of fact. The State has
not presented any proposed issue challenging any of the trial court’s findings of fact
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Opinion of the Court
as an alternative basis under North Carolina Rule of Appellate Procedure 10(c) to
affirm the ruling, although the State does note
that the trial court’s finding of fact [27] regarding the
sufficiency of the information set forth in the warrant . . .
is more termed a conclusion of law, and appears to conflict
with its actual finding of fact regarding a reasonable
reading as a whole of the facts set forth in the affidavit.
(Quotation marks and footnote omitted)).
The trial court’s first 17 findings of fact set forth in detail Detective Perez’s
extensive training and experience as a police officer and certified computer forensics
examiner; a description of the Operation Peer Precision internet operation to identify
child pornography; how SHA1 values are used to identify child pornography files on
the internet; how Detective Perez identified the particular IP address as sharing
known child pornography files; his download and review of some of the images and
comparisons of SHA1 values to confirm that the files were child pornography; his
identification of the address to which the IP address was registered; and his
preparation of the search warrant application. Many of the details in findings of fact
1-17 were based upon Detective Perez’s testimony.
The remaining findings of fact essentially explain where Detective Perez’s
affidavit was lacking as compared to his testimony:
18. The search warrant application and affidavit of
probable cause presented to the magistrate on April
14, 2010, had significantly less detailed information
than the foregoing 17 Findings of Fact. The
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Opinion of the Court
application did name the officer applying for the
warrant and the items to be seized. It described the
premises to be searched and gave an address for the
premises. The application suggests that the search
will produce evidence of the crime of third-degree
sexual exploitation of a minor as defined in N.C.G.S.
14-190.17A. The basic requirements for applying for
the warrant are met.
19. The probable-cause affidavit did not describe
Detective Perez’s training and experience as a
certified computer forensics examiner or even his
basic training as a police officer.
20. The affidavit never defines "known child
pornography" or use[s] the statutory language set
forth in N.C.G.S. 14-190.17A.
21. The affidavit does not indicate that Detective Perez
used Peer Spectre and GnuWatch to identify the
seventeen files as child pornography. The affidavit
never says that Perez actually opened any of the
seventeen files and looked at the images or data. Nor
does it describe any of the data or images in the
seventeen files.
22. The affidavit does not name the seventeen files or
their SHA 1 values. It does not say the detective
actually compared the SHA 1 values of the IP
address to known child pornography and that they
were an exact match. The affidavit also fails to
explain why SHA value comparison is reliable in
cyber investigations.
23. The affidavit does not contain any facts to explain
the source of Detective Perez’s knowledge relating to
the SHA values of previously identified child
pornography.
24. However, upon reviewing the affidavit as a whole, a
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reasonable conclusion can be drawn that the way in
which Detective Perez knew that the files contained
known child pornography was by an SHA value
comparison of the SHA values of "previously
identified child pornography" and the SHA values of
the 17 files on Defendant’s computer that were
alleged child pornography.
25. The affidavit goes on to explain that based upon the
Detective’s training and experience, he knows that
those who have Internet access often possess
computers and other devices capable of storing
electronic media.
26. There is no evidence on the face of the application
for the search warrant that the magistrate sought
additional information from Detective Perez or that
he provided any information other than what
appears on the face of the document.
Because neither party has challenged any of these findings of fact, even if we
tend to disagree with the trial court’s description of portions of the affidavit, we must
accept the findings of fact as true. See Alexvale Furniture v. Alexander & Alexander,
93 N.C. App. 478, 481, 385 S.E.2d 796, 798 (1989) (“It is also the law that a trial
court’s unchallenged findings of fact are binding upon appeal[.]”) In summary, in its
previous findings of fact the trial court had determined that, although the trial court
found that although there was probable cause for issuance of the search warrant, the
facts necessary to establish probable cause were not present in the affidavit, but
rather were based upon the more detailed testimony of Detective Perez at the
hearing. Ultimately in its last “finding of fact,” number 27, which is actually a
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conclusion of law, the trial court concluded:
27. The Court finds that there was insufficient
information in the warrant application and the
Detective’s affidavit from which the magistrate
could make an independent and neutral
determination that probable cause existed for the
issuance of a warrant. However, the Detective acted
in good faith when he and other officers executed the
warrant.
Because the last “finding of fact” is actually a conclusion of law, we will review it
accordingly. Westmoreland v. High Point Healthcare, Inc., 218 N.C. App. 76, 79, 721
S.E.2d 712, 716 (2012) (“The labels findings of fact and conclusions of law employed
by the trial court in a written order do not determine the nature of our review. If the
trial court labels as a finding of fact what is in substance a conclusion of law, we
review that finding de novo.” (citation and quotation marks omitted)).
We must therefore consider de novo whether the trial court properly concluded,
based upon its findings of fact, that the search warrant application and affidavit did
not present sufficient information “from which the magistrate could make an
independent and neutral determination that probable cause existed for the issuance
of a warrant.” See McCrary, 237 N.C. App. at 51–52, 764 S.E.2d at 479. Our Supreme
Court has described how we should review issues of this type, noting that the trial
court’s legal conclusions are “fully reviewable on appeal[:]”
In so doing, we note that the parties do not challenge the
superior court’s findings of fact. Therefore, the scope of our
inquiry is limited to the superior court’s conclusions of law,
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Opinion of the Court
which are fully reviewable on appeal.
As this Court acknowledged in State v. Beam, when
addressing whether a search warrant is supported by
probable cause, a reviewing court must consider the
totality of the circumstances. In applying the totality of the
circumstances test, this Court has stated that an affidavit
is sufficient if it establishes reasonable cause to believe
that the proposed search probably will reveal the presence
upon the described premises of the items sought and that
those items will aid in the apprehension or conviction of the
offender. Probable cause does not mean actual and positive
cause nor import absolute certainty. Thus, under the
totality of the circumstances test, a reviewing court must
determine “whether the evidence as a whole provides a
substantial basis for concluding that probable cause exists.
In adhering to this standard of review, we are
cognizant that great deference should be paid a
magistrate’s determination of probable cause and that
after-the-fact scrutiny should not take the form of a de novo
review. We are also mindful that:
A grudging or negative attitude by reviewing
courts toward warrants is inconsistent with
the Fourth Amendment’s strong preference
for searches conducted pursuant to a warrant;
courts should not invalidate warrants by
interpreting affidavits in a hypertechnical,
rather than a commonsense, manner. The
resolution of doubtful or marginal cases in
this area should be largely determined by the
preference to be accorded to warrants.
Most importantly, we note that a magistrate is
entitled to draw reasonable inferences from the material
supplied to him by an applicant for a warrant. To that end,
it is well settled that whether probable cause has been
established is based on factual and practical considerations
of everyday life on which reasonable and prudent persons,
not legal technicians, act. Probable cause is a flexible,
common-sense standard. It does not demand any showing
that such a belief be correct or more likely true than false.
A practical, nontechnical probability is all that is required.
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State v. Sinapi, 359 N.C. 394, 397–99, 610 S.E.2d 362, 365 (2005) (citations, quotation
marks, ellipses, and brackets omitted).
Defendant insists that Detective Perez’s affidavit did not contain sufficient
information for a magistrate to determine there was probable cause, and the trial
court agreed, as it concluded that “there was insufficient information in the warrant
application and the Detective’s affidavit from which the magistrate could make an
independent and neutral determination that probable cause existed for the issuance
of a warrant.” The State argues that “the warrant application was sufficient for both
probable cause, and thus – under the proper standard of deference – to support the
magistrate’s issuance of the warrant under the statute.”
The trial court was correct that Detective Perez’s testimony was more detailed
than his affidavit, and the additional information makes the existence of probable
cause entirely clear, but the fact that Detective Perez gave such detailed testimony
about his law enforcement experience and the forensic computer investigations of
transmissions of child pornography over the internet does not make his affidavit
insufficient. The trial court sets the bar a bit too high by requiring such extensive
and detailed information in a search warrant affidavit. Id. at 398, 610 S.E.2d at 365
(“[A]n affidavit is sufficient if it establishes reasonable cause to believe that the
proposed search probably will reveal the presence upon the described premises of the
items sought and that those items will aid in the apprehension or conviction of the
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offender. Probable cause does not mean actual and positive cause nor import absolute
certainty.”). Our Supreme Court has noted that affidavits must be interpreted in a
“commonsense” manner and not in a “hypertechnical” manner. Id. The trial court’s
“hypertechnical,” id., interpretation is revealed in findings 21 through 23:
21. The affidavit does not indicate that Detective Perez
used Peer Spectre and GnuWatch to identify the
seventeen files as child pornography. The affidavit
never says that Perez actually opened any of the
seventeen files and looked at the images or data. Nor
does it describe any of the data or images in the
seventeen files.
22. The affidavit does not name the seventeen files or
their SHA 1 values. It does not say the detective
actually compared the SHA 1 values of the IP
address to known child pornography and that they
were an exact match. The affidavit also fails to
explain why SHA value comparison is reliable in
cyber investigations.
23. The affidavit does not contain any facts to explain
the source of Detective Perez’s knowledge relating to
the SHA values of previously identified child
pornography.
Yet in some findings which the trial court relied upon in finding good faith, the
trial court recognized the common-sense interpretation of the affidavit:
24. However, upon reviewing the affidavit as a whole, a
reasonable conclusion can be drawn that the way in
which Detective Perez knew that the files contained
known child pornography was by an SHA value
comparison of the SHA values of "previously
identified child pornography" and the SHA values of
the 17 files on Defendant’s computer that were
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Opinion of the Court
alleged child pornography.
25. The affidavit goes on to explain that based upon the
Detective’s training and experience, he knows that
those who have Internet access often possess
computers and other devices capable of storing
electronic media.
Since the SHA1 values are defined and described in detail in the affidavit itself, it is
obvious from the affidavit how Detective Perez identified the images as child
pornography, even without the more detailed technical information provided by his
testimony. The magistrate was “entitled to draw reasonable inferences from the
material supplied to him by” Detective Perez, and considering the affidavit in light of
“factual and practical considerations of everyday life on which reasonable and
prudent persons” act, id. at 399, 610 S.E.2d at 365, the magistrate could have
“reasonable cause to believe that the proposed search probably will reveal the
presence upon the described premises of the items sought and that those items will
aid in the apprehension or conviction of the offender.” Id. at 398, 610 S.E.2d at 365.
The trial court also concluded that “the warrant affidavit was ‘purely
conclusory’ in stating that probable cause existed.” In support of this conclusion,
defendant relies primarily upon State v. Campbell, 282 N.C. 125, 191 S.E.2d 752
(1972), a case also relied upon by the trial court as noted in the order. Campbell does
not deal with internet pornography but rather with drugs. See id. In Campbell, the
Supreme Court quoted another case in stating, “Probable cause cannot be shown by
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affidavits which are purely conclusory, stating only the affiant’s or an informer’s
belief that probable cause exists without detailing any of the underlying
circumstances upon which that belief is based[.]” Id. at 130-31, 191 S.E.2d 756
(citation and quotation marks omitted). In Campbell, the affidavit upon which the
search warrant was based stated that defendant and two others have “on [their]
premises certain property, to wit: illegally possessed drugs (narcotics, stimulants,
depressants), which constitutes evidence of a crime, to wit: possession of illegal
drugs[.]” Id. at 130, 191 S.E.2d 756. The affidavit identified the people who lived in
the house and stated that “[t]hey all have sold narcotics to Special Agent J. M. Burns
of the SBI and are all actively involved in drug sales to Campbell College students;
this is known from personal knowledge of affiant, interviews with reliable
confidential informants and local police officers.” Id.
The Supreme Court noted that
Nowhere in the affidavit is there any statement that
narcotic drugs were ever possessed or sold in or about the
dwelling to be searched. Nowhere in the affidavit are any
underlying circumstances detailed from which the
magistrate could reasonably conclude that the proposed
search would reveal the presence of illegal drugs in the
dwelling. The inference the State seeks to draw from the
contents of this affidavit—that narcotic drugs are illegally
possessed on the described premises—does not reasonably
arise from the facts alleged. Therefore, nothing in the
foregoing affidavit affords a reasonable basis upon which
the issuing magistrate could conclude that any illegal
possession or sale of narcotic drugs had occurred, or was
occurring, on the premises to be searched.
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Opinion of the Court
Id. at 131, 191 S.E.2d at 756.
The affidavit here is much more detailed than the one in Campbell, and it does
describe the “underlying circumstances upon which [Detective Perez’s] belief is
based[.]” Id. at 130-31, 191 S.E.2d at 756. Defendant essentially argues that the
affidavit must go into even more extensive technical detail than it did regarding the
law enforcement methods and software used to identity and track transmissions of
child pornography over the internet. And in his motion to suppress, defendant
contended that
for a judicial official to make an independent
determination about whether the images are likely
child pornography, the judicial official probably
must either view the images or receive a detailed
description of the images that allows the judicial
official to reach an independent conclusion about the
content of the images. A statement from the
applicant that the images “are child pornography” is
most likely insufficient, as it does not provide factual
information that the judicial official can use to
determine probable cause. . . .
28. Based on the description as set out in the warrant
application, it would be impossible for a reasonable
law enforcement officer to determine that any of the
files viewed by Det. Perez on December 3, 2009 were
actually child pornography. Det. Perez did not
include images, videos, or any other files that could
have been viewed by the magistrate in order to make
a determination of probable cause.
Essentially, defendant argues that identifying the alleged pornographic images as
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Opinion of the Court
known child pornography based upon the computer information is not enough -- the
pictures themselves should be provided with the affidavit. The trial court’s finding
suggest as much, since the trial court found as one of the affidavit’s deficiencies that
it “never says that Perez actually opened any of the seventeen files and looked at the
images or data. Nor does it describe any of the data or images in the seventeen files.”
They say that a picture is worth a thousand words, and it is true that attaching
copies of the allegedly pornographic images to the affidavit might make the existence
of probable cause immediately obvious. But this affidavit described the alleged child
pornography using methods developed by law enforcement agencies to track known
images transmitted over the internet, without further harm to the children victimized
by the creators and consumers of the pornography by republishing the images.1
Pictures which fall within the legal definition of child pornography can be difficult to
describe, as Justice Stewart of the United States Supreme Court explained,
I imply no criticism of the Court, which in those cases was
faced with the task of trying to define what may be
indefinable. I have reached the conclusion, which I think is
confirmed at least by negative implication in the Court’s
decisions since Roth and Alberts, that under the First and
Fourteenth Amendments criminal laws in this area are
constitutionally limited to hard-core pornography. I shall
not today attempt further to define the kinds of material I
understand to be embraced within that shorthand
1 We also note that even if a photograph were attached or described in graphic detail, the
magistrate would have no way to determine whether the person depicted is a real person or a
computer-generated image or the person’s age. The photographs identified by SHA1, “a mathematical
algorithm fingerprint of a computer file[,]” as described in the affidavit, have been “previously
identified [as] child pornography[.]”
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description; and perhaps I could never succeed in
intelligibly doing so. But I know it when I see it . . . .
Jacobellis v. Ohio, 378 U.S. 184, 197, 12 L. Ed. 2d 793, 803-04 (1964) (Stewart, J.,
concurring) (emphasis added) (footnotes omitted). Just like Justice Stewart, see id.,
Detective Perez knew it when he saw it as well, according to his testimony, but his
affidavit also described the use of SHA1 values to identify the images very specifically
as confirmed child pornography. Detective Perez’s affidavit did not rely solely upon
his own perception of the images as child pornography but upon SHA1 values of
known child pornography images.
The affidavit included detailed definitions of several technical terms as used
in the affidavit, including “internet,” “IP Address,” “online,” “peer-2-peer networks,”
“SHA1,” and “Gnutella.” Detective Perez averred that the Charlotte Mecklenburg
Police Department Cyber Crime Unit had conducted an internet operation “and
identified a computer at IP address 174.96.87.196 as actively participating in the
receipt and/or distribution of known child pornography.” “‘Known’ child pornography
is an image that has been presented to the National Center for Missing and Exploited
Children and the person in the image has actually been identified and determined to
be a child.” Detective Perez was able to identify the images as “known child
pornography” by the SHA1 values of the images. The affidavit defined SHA1 as an
algorithm
developed by the National Institute of Standards and
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Technology (NIST), along with the National Security
Agency (NSA), for use with the Digital Signature Standard
(DSS) as specified within the Secure Hash Standard (SHS).
The United States of America has adopted the SHA-1 hash
algorithm described herein as a Federal Information
Processing Standard. Basically the SHA1 is an algorithm
for computing a condensed representation of a message or
data file like a fingerprint.
As Detective Perez averred, the IP address “was utilizing a peer to peer file sharing
program identified as ‘Limewire’ to access and share the files, and that at least 17
files out of the 100 files that were being shared from the computer located at IP
address 174.96.87.196 were previously identified as known child pornography.” The
affidavit noted that “Detective Perez was able to establish a direct connection to the”
specific IP address, which was later identified by Time Warner Cable as assigned to
John Doe at 123 Main Street in Charlotte. 2 Using the SHA1 information to identify
the known images of child pornography eliminated the need to attach copies of the
images to the affidavit or to present them to the magistrate. Including copies of the
images themselves would further perpetuate the very harm the statutes regarding
child pornography were intended to prevent.
Although it appears North Carolina’s appellate courts have not addressed how
detailed the information regarding child pornography in a search warrant affidavit
should be, we find the analysis of similar cases by several federal courts instructive.
2 We have used a pseudonym for the name of the owner of the house in which defendant resided
and a false address to protect the identity and safety of the homeowner and other residents of the
home.
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The Court of Appeals for the Fourth Circuit addressed a similar case in United States
v. Wellman, 663 F.3d 224 (4th Cir. 2011), where the defendant argued that
the search warrant authorizing the search of his home was
defective, because the warrant application failed to include
either an exemplar or a description of an image alleged to
be child pornography. He contends that in the absence of
such information, the application merely contained the
officers’ conclusions that the material sought constituted
child pornography. According to Wellman, this defect in the
warrant application precluded the reviewing judge from
making an independent probable cause determination.
Id. at 227-28. Although the Wellman court ultimately based its determination upon
the good faith exception, the court discussed and rejected this contention that the
images must be included with the affidavit:
We decline to impose a requirement that a search
warrant application involving child pornography must
include an image of the alleged pornography. While the
inclusion of such material certainly would aid in the
probable cause determination, we do not impose a fixed
requirement or a bright-line rule, because law enforcement
officers legitimately may choose to include a variety of
information when submitting a search warrant
application. Instead, when considering the merits of a
judicial officer’s probable cause determination, we will
review a search warrant application in its entirety to
determine whether the application provided sufficient
information to support the issuance of the warrant.
Id. at 228-29 (citation omitted). In fact, the United States Supreme Court long ago
rejected the argument that the “magistrate must personally view allegedly obscene
films prior to issuing a warrant authorizing their seizure.” New York v. P.J. Video,
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Inc., 475 U.S. 868, 874 n.5 , 89 L. Ed. 2d 871, 879 n.5 (1986).
Other courts have also addressed the use of SHA1 values in search warrants
to identify child pornography which is being transmitted over the internet.
Traditional physical searches of papers are entirely different from the digital methods
used to identify information transmitted over the internet, not just in investigations
of pornography but in many types of investigations:
Hashing is a powerful and pervasive technique used
in nearly every examination of seized digital media. The
concept behind hashing is quite elegant: take a large
amount of data, such as a file or all the bits on a hard drive,
and use a complex mathematical algorithm to generate a
relatively compact numerical identifier (the hash value)
unique to that data. Examiners use hash values
throughout the forensics process, from acquiring the data,
through analysis, and even into legal proceedings. Hash
algorithms are used to confirm that when a copy of data is
made, the original is unaltered and the copy is identical,
bit-for-bit. That is, hashing is employed to confirm that
data analysis does not alter the evidence itself. Examiners
also use hash values to weed out files that are of no interest
in the investigation, such as operating system files, and to
identify files of particular interest.
It is clear that hashing has become an important
fixture in forensic examinations.
Richard P. Salgado, Fourth Amendment Search and the Power of the Hash, 119
Harvard Law Review Forum 38, 38 (2006).3
Overall, courts and judges – who are usually not conversant with the details of
3 As of 23 August 2016, available at http://federalevidence.com/pdf/2013/02Feb/EE-
4thAmSearch-Power%20of%20Hash.pdf.
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digital technology – seem to struggle a bit with reconciling prior cases which
addressed searches of paper-and-ink documents or tangible objects such as drugs and
weapons with the most recent methods of digital transmission of documents and the
highly specialized methods which law enforcement uses to conduct investigations of
this sort, but this type of internet investigation has been addressed in some cases:
Here, the magistrate found that the application and
affidavit: (1) described a method of communication known
as peer-to-peer (P2P) computer file sharing using the
worldwide Internet; (2) described how individuals wishing
to share child pornography use the P2P method to share
and trade digital files containing images of child
pornography; (3) described Agent Morral’s experience and
training in computer usage and investigation of child
pornography cases; (4) incorporated details of an
investigation by Agent Cecchini who accessed a P2P file
designated LimeWire and conducted a search looking for
users accessing known child pornography sites; (5) stated
that an IP address traced to Stults was identified as
accessing child pornography sites; and (6) recounted that
shared files from Stults’s computer were downloaded and
reviewed and were identified as containing numerous
images of child pornography.
U.S. v. Stults, 575 F.3d 834, 843–44 (8th Cir. 2009) (citation and quotation marks);
see, e.g., U.S. v. Pavulak, 700 F.3d 651, 660-65 (3rd Cir. 2012) (determining the
affidavit was insufficient to establish probable cause, but good faith applied); U.S. v.
Miknevich, 638 F.3d 178, 183 (3rd Cir. 2011) (“Thus, our review of the affidavit leaves
a clear impression: the state magistrate was presented with an affidavit that provided
no factual details regarding the substance of the images in question. Although either
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the actual production of the images, or a sufficiently detailed description of them,
satisfies the Fourth Amendment’s probable cause requirement, an insufficiently
detailed or conclusory description cannot. We believe, however, that even given the
infirmities we highlighted, the affidavit still contained information sufficient to
permit a finding of probable cause by the magistrate.” (citation omitted)). For
example, in U.S. v. Henderson, a similar investigation and affidavit led to the seizure
of child pornography on the defendant’s computer, and he raised the same arguments
in challenging the basis for issuance of the search warrant as defendant here. See
595 F.3d 1198, 1200 (10th Cir. 2010). The 10th Circuit Court of Appeals noted that
the affidavit described Special Agent Robert Leazenby’s
professional background; describes the general protocol
investigating officers use to identify distributors of child
pornography, including how officers usually determine
that a computer at a given IP address has transferred a
video with a particular SHA value; and states that
Leazenby “learned” that a computer with the relevant IP
address had shared videos with child-pornography-related
SHA values. His affidavit, however, does not identify: (1)
who informed Leazenby that a computer with the relevant
IP address had transferred child pornography; or (2) the
method used in this case to establish that a computer at
the specified IP address transferred videos with child-
pornography-associated SHA values.
Id. at 1199-1200 (footnote omitted). In Henderson, the Court ultimately based its
ruling upon the good faith exception, since “[t]he government wisely conceded at oral
argument that Leazenby’s affidavit is insufficient to establish probable cause.
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STATE V. GERARD
Opinion of the Court
Notably, the affidavit fails to identify how Leazenby’s source determined that a
computer with the relevant IP address—rather than some other computer—shared
videos with child-pornography-related SHA values.” Id. at 1201-02.
But here, the affidavit does identify how Detective Perez determined that the
“computer with the relevant IP address[,]” id., shared the child pornography:
“Detective Perez was able to establish a direct connection to the computer located at
IP address 174.96.87.196. During this connection Detective Perez determined that
the computer at IP address 174.96.87.196 was utilizing a peer to peer file sharing
program identified as ‘Limewire’ to access and share the files[.]” The affidavit also
stated how Detective Perez had obtained information that “a computer with the
relevant IP address had transferred child pornography[,]” id., by describing his use
of Operation Peer Precision and the Gnutella network. Here, the search warrant
application and affidavit included sufficient information to permit the magistrate to
make a neutral and independent determination of probable cause for the issuance of
a warrant; we determine that the trial court erred in concluding otherwise.
The trial court also concluded that “[t]he ‘good faith’ exception applies in this
case and therefore the evidence will not be suppressed.” Defendant argues that the
trial court erred in finding the good faith exception applicable, but we need not
address this argument since we have determined that the trial court erred in its
conclusion that the affidavit was not sufficient to support a determination of probable
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STATE V. GERARD
Opinion of the Court
cause. While the trial court’s reliance on good faith was misplaced, it ultimately came
to the correct determination in denying defendant’s motion to suppress, and
therefore, we affirm the order. See Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d
778, 779 (1989) (“If the correct result has been reached, the judgment will not be
disturbed even though the trial court may not have assigned the correct reason for
the judgment entered.”). This argument is overruled.
III. Conclusion
Because we have determined probable cause was established in the search
warrant application and affidavit, we need not address defendant’s argument
regarding good faith. Although the trial court erred in relying upon good faith as the
basis for denial of defendant’s motion to suppress, since the affidavit was sufficient
to support the magistrate’s determination of probable cause for issuance of the search
warrant, we affirm.
AFFIRMED.
Judges ELMORE and DIETZ concur.
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