State v. Dowman , 151 N.H. 162 ( 2004 )

DALIANIS, J.

The defendant, Stephen Dowman, was convicted on seven counts of possessing child pornography. See RSA 649-A:3 (Supp. 2003). The defendant appeals, arguing that the Superior Court (Galway, J.) erred in denying his motion to suppress on the grounds that the affidavit supporting the application for a search warrant lacked the detail and specificity necessary to support probable cause. We affirm.

On September 26, 2001, Detective Brook Lemoine of the Nashua Police Department applied for a warrant to search the defendant’s computer equipment. Lemoine included within the affidavit supporting the warrant the following facts:

Lemoine had been a police officer since 1986, and had been assigned to the Detective Bureau Youth Services Division since March 1997, where he received training in the investigation of child sexual abuse and exploitation, and had made numerous arrests and obtained convictions. Lemoine learned of the defendant when he attended a “Northern New England Internet Crimes against Children Task Force meeting” at which he was briefed on an investigation known as “Operation Avalanche.” Operation Avalanche began in April 1999, and continued for two years, during which time detectives with the Dallas, Texas Police Department, the Child Exploitation/Internet Crimes against Children Squad of the United States Postal Service, and state and local law enforcement groups, conducted an investigation centering upon a Texas company known as Landslide Productions (Landslide). As a result of this investigation, detectives gained access to Landslide’s detailed billing records for customers who had used credit cards to purchase items from the site.

At the task force meeting, Lemoine was provided with a list of clients in New Hampshire of Landslide who used credit cards to purchase products that were determined to contain child pornography. The defendant’s name was on that list and reflected that he purchased a video entitled, “xxxteens.” Thereafter, Lemoine met with the defendant and informed him that the investigation revealed that he had purchased child pornography from Landslide. The defendant consented to allow Lemoine to inspect his home computer and external disks.

Upon inspecting the computer, Lemoine saw “numerous color thumbnail images of what appeared to be naked children.” He also examined an external CD disk and one 1 Gigabyte Jaz Disk on which he saw “numerous images of children in various naked poses as well as numerous video clips.” After questioning, the defendant admitted that about twenty-five percent of the image files on his computer and disks contained child pornography. Lemoine then stated, in his affidavit: “I believe probable cause exists that evidence and instrumentalities of the crime of possessing- child pornography contrary to Revised Statutes Annotated 649:A:3 sec I (e)... [have been found making it a felony] if anyone knowingly buys, procures, possesses, or controls any visual representation of a child engaging in sexual activity.” Lemoine submitted the affidavit to the magistrate, although he did not submit any copies of the images he observed.

The defendant argues that the' superior court erred in denying his motion to suppress because the affidavit supporting the search warrant did not establish probable cause, and that in doing so it violated his rights under the Federal and State Constitutions. U.S. CONST, amends. IV, XIV; N.H. CONST. pt. I, art. 19. We first address the defendant’s claim under the State Constitution, and cite federal opinions for guidance only. See State v. Ball, 124 N.H. 226, 231-33 (1983).

In this case, we review the sufficiency of the affidavit de novo, as there were no controlling facts determined at the superior court level in the first instance. State v. Fish, 142 N.H. 524, 528 (1997). We pay great deference to a magistrate’s determination of probable cause and interpret the evidence submitted in support of a warrant in a common sense manner, giving due consideration to the preference to be accorded warrants. See id.

“Although child pornography falls outside the protection of the First Amendment, the determination of whether an image depicts child pornography is a quintessential First Amendment ruling because such decisions define the limits of the largely unprotected category of child pornography.” United States v. Brunette, 256 F.3d 14, 17 n.1 (1st Cir. 2001) (quotations omitted). “[A]n application for a warrant authorizing the seizure of materials presumptively protected by the First Amendment should be evaluated under the same standard of probable cause used to review warrant applications generally.” New York v. P.J. Video, Inc., 475 U.S. 868, 875 (1986).

Part I, Article 19 mandates that search warrants- issue only upon cause or foundation supported by oath or affirmation. State v. McMinn, 144 N.H. 34, 38 (1999). This language requires an issuing magistrate to find probable cause. Id. Probable cause is established where a person of ordinary caution would justifiably believe that what is sought will be found through the search and will aid in a particular apprehension or conviction. Id. To obtain a search warrant, the police must show that at the time of the application for the warrant there is a substantial likelihood of finding the items sought; they need not establish with certainty that the search will lead to the desired result. State v. Cobb, 143 N.H. 638, 652 (1999).

The defendant argues that the affidavit submitted to the magistrate, without copies of the images described therein, was inadequate in depth and detail and should have therefore been suppressed. He relies upon United States v. Brunette, in which the First Circuit Court of Appeals held that a “judge cannot ordinarily make [a determination as to whether there is probable cause for a search warrant to issue] without either a look at the allegedly pornographic images, or at least an assessment based on a detailed, factual description of them.” Brunette, 256 F.3d at 18.

In this case, we need not determine whether Lemoine’s statement, in which he asserted that he believed that the images of children in various naked poses constituted a violation of RSA 649-A:3, failed to satisfy the standard laid out in Brunette, because we find this case to be more like United States v. Roberts, 274 F.3d 1007 (5th Cir. 2001), cert. denied,_ U.S._(U.S. April 26, 2004) (No. 03-9534).

In Roberts, a customs agent was informed that the defendant would be flying on a particular flight and typically carried disks containing child pornography packed in his shaving kit. Roberts, 274 F.3d at 1009. When Roberts disembarked from the flight, the agent approached Roberts and asked him to open his bags. Id. The agent discovered diskettes inside the shaving kit and asked Roberts to describe what the disks contained. Id. at 1009-10. Roberts admitted “there was some child pornography on the diskettes.” Id. at 1010. The agent asked Roberts, “’What do you mean child pornography, like the teen stuff on the internet... ?’” Id. Roberts replied, ‘“No, young kids’, followed by ‘six’, which [the agent] understood to mean the diskettes contained images of six-year-old children.” Id.

The Fifth Circuit Court of Appeals held that Roberts’ admission that the diskettes contained child pornography constituted sufficient grounds to support a finding of probable cause to execute a search or seizure of those diskettes. The court based its ruling upon the grounds that “[a]dmissions of crime, like admissions against proprietary interests, carry their own indicia of credibility — sufficient at least to support a finding of probable cause.” Id. at 1016 (quotation omitted); see also State v. Moreau, 113 N.H. 303, 306 (1973).

Therefore, we conclude that this case is readily distinguishable from Brunette because the affidavit accompanying the warrant stated that the defendant admitted that twenty-five percent of the image files on his computer and disks contained child pornography. Even if we assume that Lemoine did not describe the observed images in detail sufficient to meet the Brunette standard, the defendant’s admission provided sufficient “other indicia of probable cause,” Brunette, 256 F.3d at 19, to support the magistrate’s finding of probable cause. See Roberts, 274 F.3d at 1016-17; see also United States v. Smith, 795 F.2d 841, 847-49 (9th Cir. 1986), cert. denied, 481 U.S. 1032 (1987).

As the Federal Constitution offers the defendant no greater protection than does our State Constitution under these circumstances, see McMinn, 144 N.H. at 38; Cobb, 143 N.H. at 652; Brunette, 256 F.3d at 16, we reach the same result under the Federal Constitution as we do under the State Constitution.

Affirmed.

Broderick, C.J., and Nadeau, J., concurred; Duggan, J., dissented.