United States v. Morel ( 2019 )

United States Court of Appeals
For the First Circuit
No. 17-1696
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID MOREL, JR.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph Laplante, U.S. District Judge]
Before
Lynch, Lipez, and Barron,
Circuit Judges.
Daniel N. Marx, with whom Fick & Marx LLP was on brief, for
appellant.
Seth R. Aframe, Assistant U.S. Attorney, with whom Scott W.
Murray, United States Attorney, was on brief, for appellee.
April 19, 2019
LYNCH, Circuit Judge. After the district court denied
his motions to suppress evidence, David Morel, Jr., entered a
conditional plea to one count of possessing child pornography in
violation of 18 U.S.C. § 2252(a)(4)(B). He was sentenced to
seventy months' imprisonment. Morel uploaded child pornography
images to a digital album on Imgur, an image hosting website. Law
enforcement learned of the images on Imgur from the National Center
for Missing and Exploited Children (NCMEC), which had received a
report about the images from an anonymous tipster.
On appeal, Morel challenges the district court's
determinations that Morel had no reasonable expectation of privacy
in the images he uploaded to Imgur or in his internet protocol
(IP) address, and that the state warrant to search Morel's computer
was supported by probable cause. We affirm.
I.
A. Facts
We describe the findings of fact made by the district
court after evidentiary hearings on the motions to suppress. We
supplement those facts, as necessary, with other facts from the
record.
1. CyberTipline Report
The investigation of Morel began with an anonymous
report submitted to NCMEC. NCMEC is a non-profit organization
that maintains the "CyberTipline," a website through which members
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of the public, law enforcement, and others report child
exploitation and child pornography. Those using the CyberTipline
to make a report are required to include the date, time, and
substance of the incident in the report, and may submit reports
anonymously. Electronic service providers that "obtain[] actual
knowledge of any facts and circumstances . . . from which there is
an apparent violation" or a "planned or imminent" violation of
statutes concerning child pornography are legally obligated to
report such information to NCMEC. 18 U.S.C. § 2258A(a). NCMEC
must forward reports it receives to an appropriate law enforcement
agency. Id. § 2258A(c).
On November 23, 2013, an unidentified individual
submitted a report, which included a list of Uniform Resource
Locators (URLs) said to depict child pornography, to the
CyberTipline. The list of URLs spanned two pages. This tipster
did not include any personal identifying information in the
report.1 NCMEC staff analysts investigated the contents of the
report. One of the URLs listed in the report led to a "gallery"
or "album" of images hosted by Imgur. Each image in the album
also had its own specific URL; an analyst obtained the URLs of the
images in the album that appeared to contain child pornography
1 NCMEC captured the IP address from which the report was
sent, but did not take the step of identifying the person(s)
associated with that IP address.
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without clicking on the individual URLs,2 and copied those URLs
into a report.
On November 26, 2013, NCMEC sent a notice to Imgur
summarizing the instances of child pornography reported to have
been found on its website, which included URLs of images reported
by the tipster. NCMEC's notice asked Imgur to "[p]lease review
the reported URL[s] to determine if [they] contain[] content that
violates federal and/or state law or your Terms of Service or
Member Services Agreement."
After reviewing the reported URLs, Imgur filed reports
with NCMEC concerning three images obtained through the
CyberTipline, stating that the corresponding URLs flagged by NCMEC
appeared to contain child pornography. Imgur attached copies of
the three images to the reports. Imgur provided the IP address
from which the images were uploaded to Imgur's servers, which was
the same for all three images. Imgur also reported that the images
were uploaded in November 2013. Imgur then deleted the images
from its server. Using a publicly available website, NCMEC looked
up the IP address included in Imgur's report and learned that it
was associated with a Comcast subscriber in Derry, New Hampshire.
2 At a suppression hearing, the witness from NCMEC
explained, "[t]his staff member did not click on any links . . . .
[W]hat they did is they took their mouse, hovered over the images
that appeared to depict child pornography, they copied that image
location and put it into the report."
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On December 6, 2013, Imgur submitted three additional
reports of alleged child pornography associated with the same IP
address to NCMEC through the CyberTipline. Those images had also
been uploaded to Imgur in November 2013. That made a total of six
reported images of alleged child pornography from this IP address.
2. The Investigation
NCMEC provided the six reports to the New Hampshire
Internet Crimes Against Children Task Force on December 12, 2013,
which forwarded the reports to the Derry, New Hampshire Police
Department on January 10, 2014. Detective Kennedy Richard,
experienced in investigating child pornography and child sexual
exploitation, reviewed the images in the reports. He entered the
IP address from the reports into a publicly-available website and
learned that the IP address was associated with a Comcast account.
He then obtained a subpoena requesting information from Comcast
about the owner of the IP address. On February 14, 2014, Detective
Richard learned that the IP address belonged to a David Morel at
Pingree Hill Road in Derry, New Hampshire.
About two weeks earlier, on February 1, 2014, David
Morel, Jr., had reported to the Derry Police Department that his
laptop computer was stolen during a burglary of the Pingree Hill
Road residence. The Derry Police Department recovered the stolen
computer and other stolen property the following week. Morel went
to the police station on February 7, 2014, and identified the
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computer he had reported stolen. The police retained the computer
as evidence of the burglary.
In late March 2014, Detective Richard called the Pingree
Hill Road residence. Two weeks later, Morel's father called
Detective Richard back and stated that his son, David Morel, Jr.,
had lived at the Pingree Hill Road residence on the date that the
images were uploaded in November 2013, but had moved out later, in
February 2014. Morel's father stated that he did not use the email
address associated with the Comcast account connected to the IP
address in question, but that he believed his son used that email
address.
On April 16, 2014, Detective Richard sought and obtained
a warrant from a New Hampshire state court to search Morel's
computer, which was still in police custody. In the affidavit
supporting the warrant application, Detective Richard did not
attach the six suspected child pornography images, which depicted
different girls. The affidavit stated that Detective Richard had
worked as a Derry police officer since 1993, and had been a
detective for the Derry Police Department since 1999. As a
detective, his primary assignment was in the Juvenile Division as
an investigator. He had received specialized training concerning
sexual assault investigations, including in child abuse and
exploitation cases. He had also been a member of the Internet
Crimes Against Children Task Force since 2005, and had assisted in
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the execution of about fifty search warrants related to possession
and distribution of illegal child sexual abuse and exploitation
images.
The affidavit described the NCMEC reports and the IP
address information connected to Morel. The affidavit also
described the nudity and the sexual or sexually suggestive
positioning of the girls depicted in each of the six suspected
child pornography images. Some images contained more than one
girl. The ages of the different girls were described as follows:
(1) "A naked female . . . . She appears to be under the age of
10"; (2) "Two naked females . . . both believed to be under the
age of 10"; (3) "A female believed to be under the age of 10"; (4)
"Two naked females believed to be under the age of 13"; (5) "A
naked female [sic] to be under the age of 13"; and (6) "A naked
female believed to be under the age of 13." The affidavit
specified that some of the other females in the images were of
"unknown age." The affidavit did not describe the girls in such
terms as "pubescent" or "prepubescent."
Pursuant to the warrant, Detective Richard obtained a
forensic copy of the hard drive of Morel's computer, which was
still in police custody. He reviewed the contents and saw what he
estimated to be about 200 videos and images of child pornography.
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On April 28, 2014, Morel was arrested on the charge of
attempted possession of child sexual abuse images.3 Morel was
taken into custody and Detective Richard interviewed him at the
Derry police station. Morel was given Miranda warnings, waived
his Fifth Amendment rights, and admitted to possessing child
pornography on his computer.
3. Imgur Terms of Service and Image Hosting Practices
The Imgur Terms of Service stated at the time, in
relevant part:
You can upload images anonymously and share
them online with only the people you choose to
share them with. If you make them publicly
available, they may be featured in the
gallery. This means that if you upload an
image to share with your friend, only your
friend will be able to access it online.
However, if you share an image with Facebook,
Twitter, Digg, Reddit, et cetera, then it may
end up in the gallery.
The following witnesses testified at the suppression
hearings: Brianna Walker, an Imgur employee who was an online
3 At a suppression hearing, Detective Richard testified
that he found out later that the reason a Derry prosecutor
originally charged Morel with attempted possession of such images
is that "[w]ith attempted possession you don't have to prove that
it was an actual child depicted in the photo or identify the
child." Detective Richard had thought Morel was arrested for
possession of child pornography based on the search of his
computer, but the prosecutor later told him that "it had to be
attempted possession of child pornography" because "[t]hey don't
charge possession. They charge attempted possession."
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"store manager" and who also handled "user support" and "rules";4
John Shehan, the vice president of NCMEC; and Detective Richard.
Walker explained that Imgur permits "anonymous uploads,"
meaning that there is no requirement that a person set up an
account to upload images to Imgur. A user can upload photos to
Imgur that "everyone in the world can see," and that are available
on Imgur's "public gallery." Walker explained that,
alternatively, an Imgur user can "make a private album which can
only be accessed from your account; however, each image can still
be seen by anyone using the direct image link." When asked if an
image on a "private" album can "be found in any other particular
method," Walker explained, "Google would have crawled through the
images so they'd be available . . . if you searched for them."
When asked, "is there any way that a person using [Imgur] to upload
photos can be sure that their image is private and can never be
seen," Walker responded, "No, that's impossible." Walker
explained:
[Y]ou can share the URL [to a private album]
with anyone and only those people will be able
to see it, but anyone can still access the
image by using the URL. So they could guess
it, it would still be searchable on Google.
So it's impossible for any of this to be
completely private . . . . It couldn't be
4 Walker explained that her role involved not only
handling online sales, but also responding to emails from users
with complaints or issues, and deleting child pornography and
copyrighted images from Imgur.
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found on [Imgur], but . . . you could still
guess it or find it on a search engine.
Imgur staff can also view images that users have uploaded to
private Imgur albums.
The record does not establish whether Morel chose a
private album for the images at issue. Walker first testified
that "[i]t's more likely that he selected private, but . . .
there's no way to know." She then clarified, "I can circle back
and look at his account, but I'm pretty sure it was private." The
prosecutor later stated that her "understanding was that the
records in regard to this account were no longer kept by [Imgur]."
Walker testified that there was no way for Imgur to track
whether Morel shared the URLs of the images he uploaded with
anyone, and no way to track whether other people accessed those
URLs. Imgur keeps a count of the number of times an image is
viewed but does not track whether each viewer is the person who
uploaded the image or is a third party.
The IP address of the person who uploads an image to
Imgur is accessible only to Imgur staff. Imgur does not actively
search or use software to detect child pornography uploaded by
users, but when it receives reports of such images, it reviews the
images, and if they appear to contain child pornography, Imgur
reports them to NCMEC. Imgur then deletes the offending images.
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Notice of this policy is included in the Terms of Service, which
Imgur users must agree to before using Imgur.
B. Procedural History of Suppression Motions
Morel's first suppression motion sought to suppress
images of child pornography obtained from his computer and
statements he made during custodial interrogation, arguing that
this evidence was obtained pursuant to a warrantless search by
Imgur, acting at the instigation of NCMEC. His second motion
sought to suppress images obtained from his computer, arguing the
computer was searched pursuant to a warrant that lacked probable
cause.5 This second motion also stated that Imgur improperly
provided NCMEC with the IP address from which Morel uploaded the
images to Imgur.6
The district court held evidentiary hearings on the
suppression motions on February 24, 2016 (during which the Imgur
employee and the NCMEC vice president testified), and September
22, 2016 (during which Detective Richard testified). The district
court denied the motions in electronic orders, supplemented by a
later written decision. Morel pleaded guilty to one count of
5 Morel's third motion to suppress (not at issue on appeal)
sought to suppress evidence from what he argued was an
unconstitutional warrantless arrest.
6 Morel's second suppression motion did not sufficiently
develop this argument concerning Morel's IP address, but defense
counsel made the argument at a suppression hearing, and the
district court considered it.
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possession of child pornography on December 19, 2016, pursuant to
a plea agreement, reserving his right to appeal the denial of his
first two suppression motions.
On April 14, 2017, the district court entered a written
order stating its reasons for denying Morel's suppression motions.
United States v. Morel, No. 14-CR-148-JL, 2017 WL 1376363 (D.N.H.
Apr. 14, 2017), reconsideration denied, 2017 WL 2773538 (D.N.H.
June 26, 2017). The district court determined that Morel had not
met his burden of showing that he had a reasonable expectation of
privacy in the images uploaded to Imgur because the images were
"publicly available" and "[n]o evidence suggests that Morel took
affirmative steps to protect the images." Id. at *6. The court
also noted that both the anonymous tipster and an NCMEC employee
were able to access the images. Id. The court explained that
"the uploaded images are more akin to information shared on a peer-
to-peer network than to emails. Such information, once made
available to others, no longer enjoys a reasonable expectation of
privacy." Id.
As to the IP address information, the court agreed with
the "myriad authorities affirm[ing] that 'subscriber information
provided to an internet provider is not protected by the Fourth
Amendment's privacy expectation.'" Id. at *7 (quoting United
States v. Perrine, 518 F.3d 1196, 1204-05 (10th Cir. 2008)). The
court did not reach Morel's argument that Imgur uploaded the images
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at "the behest of [NCMEC] and, thus, that Imgur's review amounted
to a warrantless governmental search." Id. at *1.
As to the sufficiency of the state search warrant, the
district court determined that although Detective Richard did not
attach the alleged child pornography images to his affidavit, the
warrant issued was valid as there was probable cause to believe
that the images depicted girls under the age of eighteen. That
was because Detective Richard's affidavit stated that he believed
some of the girls depicted to be under ten years old and some under
thirteen years old. Id. at *9. The district court found that
Detective Richard's training and experience supported the
reliability of his conclusion. Id.
II.
When reviewing the denial of motions to suppress, we
review the district court's factual findings for clear error and
its legal conclusions, including ultimate constitutional
determinations, de novo. United States v. D'Andrea, 648 F.3d 1,
5 (1st Cir. 2011). We first consider Morel's argument that,
contrary to the district court's conclusions, he had a reasonable
expectation of privacy in his IP address information and in the
images he uploaded to Imgur. We then turn to his argument that
the warrant to search his computer was not supported by probable
cause.
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A. Whether Morel Had a Reasonable Expectation of Privacy in the
IP Address or the Images
"The Supreme Court has set out a two-part test" for
analyzing whether a defendant had a reasonable expectation of
privacy: "first, whether the movant has exhibited an actual,
subjective, expectation of privacy; and second, whether such
subjective expectation is one that society is prepared to recognize
as objectively reasonable." United States v. Rheault, 561 F.3d
55, 59 (1st Cir. 2009) (citing Smith v. Maryland, 442 U.S. 735,
740 (1979)).
"[T]he defendant carries the burden of making the
threshold showing that he has 'a reasonable expectation of privacy
in the area searched and in relation to the items seized.'" United
States v. Stokes, 829 F.3d 47, 51 (1st Cir. 2016) (quoting United
States v. Aguirre, 839 F.2d 854, 856 (1st Cir. 1988)). "Only then
can he 'challenge the admissibility of evidence on fourth amendment
grounds.'" Id. (quoting United States v. Gomez, 770 F.2d 251, 253
(1st Cir. 1985)). "This burden must be carried at the time of the
pretrial hearing and on the record compiled at that hearing." Id.
(quoting Aguirre, 839 F.2d at 856). The district court held that
Morel had not met this burden. We agree.
Morel's primary argument is that Carpenter v. United
States, 138 S. Ct. 2206 (2018), has effected a sea change in the
law of reasonable expectation of privacy, and he is the beneficiary
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of that change, both as to his IP address information and the
images uploaded to Imgur. But Carpenter does not go so far;
Morel's argument fails under Carpenter and under post-Carpenter
caselaw.
Carpenter held that "an individual maintains a
legitimate expectation of privacy in the record of his physical
movements as captured through CSLI [cell-site location
information]."7 138 S. Ct. 2217. Carpenter did not announce a
wholesale abandonment of the third-party doctrine. That doctrine
states that "a person has no legitimate expectation of privacy in
information he voluntarily turns over to third parties . . . 'even
if the information is revealed on the assumption that it will be
used only for a limited purpose and the confidence placed in the
third party will not be betrayed.'" Smith, 442 U.S. at 743-44
(quoting United States v. Miller, 425 U.S. 435, 443 (1976)).
Carpenter declined to extend the third-party doctrine to
the months of CSLI gathered by law enforcement in that case, 138
S. Ct. at 2216, because, as we recently explained:
[G]iven the location information that CSLI
conveyed and the fact that a cell phone user
7 Carpenter expressly declined to decide "whether there is
a limited period for which the Government may obtain an
individual's historical CSLI free from Fourth Amendment scrutiny,
and if so, how long that period might be," and concluded that "[i]t
is sufficient for our purposes today to hold that accessing seven
days of CSLI constitutes a Fourth Amendment search." Carpenter,
138 S. Ct. at 2217 n.3.
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transmits it simply by possessing the cell
phone, if the government could access the CSLI
that it had acquired without a warrant in that
case, then the result would be that "[o]nly
the few without cell phones could escape" what
would amount to "tireless and absolute
surveillance."8
United States v. Hood, ___ F.3d ___, No. 18-1407, 2019 WL 1466943,
at *3 (1st Cir. Apr. 3, 2019) (quoting Carpenter, 138 S. Ct. at
2218).
1. IP Address Information
Morel challenges the district court's decision that
"subscriber information provided to an internet provider is not
protected by the Fourth Amendment's privacy expectation." Morel,
2017 WL 1376363, at *7 (quoting Perrine, 518 F.3d at 1204-05).
Morel argues that this reasoning is no longer valid after
Carpenter.
Our decision in Hood resolves this argument against
Morel. 2019 WL 1466943, at *4. In Hood, the defendant was indicted
on charges of transportation and receipt of child pornography, and
moved to suppress evidence, including his IP address information,
8 Other circuits have held in accord with Hood, 2019 WL
1466943 at *3-4, that Carpenter did not eliminate the third-party
doctrine. United States v. Contreras, 905 F.3d 853, 857 (5th Cir.
2018); Presley v. United States, 895 F.3d 1284, 1291 (11th Cir.
2018), cert. denied, No. 18-831, 2019 WL 1318587 (U.S. Mar. 25,
2019) (mem.). Carpenter's self-described "narrow" holding, 138 S.
Ct. at 2220, does not support Morel's argument that he had a
reasonable expectation of privacy in his IP address information or
in the images uploaded to Imgur.
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that was connected to information shared on a smartphone messaging
application. Id. at *1-2. Like Morel, the defendant in Hood
argued that under Carpenter, the third-party doctrine should not
apply to IP address information that the government gathered from
the smartphone messaging company.
Hood rejected this argument, because unlike CSLI
information, IP address information on its own does not provide
information concerning location. Id. at *4. "The IP address data
is merely a string of numbers associated with a device that had,
at one time, accessed a wireless network." Id. And, unlike CSLI,
"an internet user generates the IP address data . . . only by
making the affirmative decision to access a website or
application." Id. Morel attempts to distinguish Hood on the
ground that here, Morel "accessed the internet from a personal
computer that he used in his family home." But Hood did not turn
on the location from which the defendant accessed the internet.
IP address information of the kind and amount collected
here -- gathered from an internet company -- simply does not give
rise to the concerns identified in Carpenter. As in Hood, Morel
did not have a reasonable expectation of privacy in the IP address
information that the government obtained from Imgur. It is that
information which connected Morel to the uploaded images.
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2. Images Uploaded to Imgur
Morel argues that he had a reasonable expectation of
privacy in the images uploaded to Imgur. He disputes the district
court's conclusions that the images uploaded to Imgur were publicly
available, and that Morel did not take affirmative steps to
maintain the privacy of the images he uploaded to Imgur. There
was no clear error in the court's findings of fact, and we agree
with its legal conclusions based on those facts.
Whether a defendant has a reasonable expectation of
privacy is a fact-specific inquiry. Aguirre, 839 F.2d at 857.
"What a person knowingly exposes to the public, even in his own
home or office, is not a subject of Fourth Amendment protection."
Katz v. United States, 389 U.S. 347, 351 (1967). "But what he
seeks to preserve as private, even in an area accessible to the
public, may be constitutionally protected." Id.
Factors especially relevant to determining whether one
has a reasonable expectation of privacy include "ownership,
possession and/or control; historical use of the property searched
or the thing seized; ability to regulate access; the totality of
the surrounding circumstances; the existence or nonexistence of a
subjective anticipation of privacy; and the objective
reasonableness of such an expectancy under the facts of a given
case." Stokes, 829 F.3d at 53 (quoting Aguirre, 839 F.2d at 856–
57).
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The district court did not err in finding that "[n]o
evidence suggests that Morel took affirmative steps to protect the
images." Morel, 2017 WL 1376363, at *6. The record shows that
Morel chose to upload the images to a website that makes it
"impossible" to prevent third parties from accessing the images,
whether the images are uploaded to "public" or "private" albums.
Morel did not choose one of the more private website alternatives
which exist. Viewing the Imgur images would not even require use
of a password to gain access. And at least two third parties, the
tipster and the NCMEC employee, did access the images Morel
uploaded. An "NCMEC employee was able to open the gallery page
and view the image thumbnails presented simply by entering the
provided URL." Id.
Nor did the district court err in finding that the images
were publicly available. The evidence was that "everyone in the
world can see" images uploaded to public Imgur albums, and that
those images are available on Imgur's public galleries. And even
"private" Imgur albums can be seen by anyone who had the
corresponding URL; there is no way to prevent third parties from
accessing and sharing the URL.
On these facts, the classic third-party doctrine
analysis prevents Morel from showing that he had a reasonable
expectation of privacy in the images uploaded to Imgur. Morel
argues that the district court did not find that Morel actually
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shared any URLs with a third party. But this does not establish
that Morel met his burden. He put on no evidence that he had not
shared the URLs. And even if Morel had not shared the URLs, the
evidence shows that he could not have prevented third parties from
finding the images through a Google search or a lucky guess at the
URL,9 and third parties did access the images in this case.
Morel also relies on United States v. Mancini, 8 F.3d
104 (1st Cir. 1993), for the proposition that "shared access to a
document does not prevent one from claiming Fourth Amendment
protection in that document." Id. at 108. That case involved a
town official sharing a single hard copy of an appointment calendar
(kept in the town's archive attic) with his secretaries, who had
a position of confidence with him. Id. at 108-09. This case is
nothing like Mancini, and involved strangers, even random
strangers, having access to images on a website.
B. Probable Cause Supporting the Search Warrant
Morel argues that the state warrant to search his
computer was not supported by probable cause to believe that the
girls depicted in the images were under the age of eighteen. The
district court correctly held that the warrant was supported by
probable cause. For the first time on appeal, Morel also argues
9 Morel argues that it is highly unlikely that someone
could have guessed or found the URLs at issue here, because they
were composed of random numbers and letters, but he presented no
evidence to this effect.
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there was no probable cause to believe the girls depicted were
"real," rather than virtual, children.
"The standard we apply in determining the sufficiency of
an affidavit" supporting a state or federal warrant "is whether
the 'totality of the circumstances' stated in the affidavit
demonstrates probable cause to search either the premises or the
person." United States v. Khounsavanh, 113 F.3d 279, 283 (1st
Cir. 1997) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)).
"Probable cause does not require either certainty or an unusually
high degree of assurance. All that is needed is a 'reasonable
likelihood' that incriminating evidence will turn up during a
proposed search." United States v. Clark, 685 F.3d 72, 76 (1st
Cir. 2012) (citation omitted) (quoting Valente v. Wallace, 332
F.3d 30, 32 (1st Cir. 2003)).
1. Whether There Was Probable Cause That the Images Depicted
Girls Under the Age of Eighteen
Morel argues that in preparing the affidavit, Detective
Richard failed to follow the "best practice" outlined in United
States v. Syphers, 426 F.3d 461, 467 (1st Cir. 2005), and United
States v. LaFortune, 520 F.3d 50, 58 (1st Cir. 2008), of attaching
the suspected child pornography images to the warrant application
or providing a sufficiently detailed description of the images.
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LaFortune stated that the "best practice" language in
Syphers was dicta, but that
we now confirm [that dicta] as a holding
essential to our decision here: The best
practice is for an applicant seeking a warrant
based on images of alleged child pornography
to append the images or provide a sufficiently
specific description of the images to enable
the magistrate judge to determine
independently whether they probably depict
real children.
LaFortune, 520 F.3d at 58 (quoting Syphers, 426 F.3d at 467). "An
officer who fails to follow this approach without good reason faces
a substantial risk that the application for a warrant will not
establish probable cause." Syphers, 426 F.3d at 467. Morel
overreads LaFortune and Syphers. The risk described is not a
certainty that there is no probable cause; it is the Fourth
Amendment standard for probable cause which governs.
The "best practice" language in LaFortune is not
applicable here in any event because the warrant was issued by a
state court. The "best practice" judicial gloss cannot be imposed
onto state courts. The question before us is simply whether the
affidavit was supported by probable cause to believe the girls
depicted in the images were under eighteen years old.
The warrant affidavit was sufficient to establish
probable cause because it stated that Detective Richard believed
that at least four of the girls depicted in three of the images
were under the age of ten. An under-ten-year-old girl does not
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look like, and is not mistaken for, an eighteen-year-old girl.
While images of older minor girls may require more evidence of
age, that is not true for images of girls aged under ten. The
statement that the images depicted girls believed to be under the
age of ten is not a boilerplate recitation "synonymous with the
statutory definition of a minor."10 Morel, 2017 WL 1376363, at *9.
It is highly improbable that Detective Richard, an
officer experienced and trained in this field, would mistake an
eighteen-year-old girl for an under-ten-year-old girl. The
affidavit shows that Detective Richard was careful in assessing
the ages of the different girls depicted, stating that he believed
some to be under the age of ten, others to be under the age of
thirteen, and still others to be of an "unknown age." Richard had
sufficient experience to make such assessments. The affidavit
stated that Detective Richard had been a police officer for over
two decades, had received specialized training in child abuse and
exploitation cases, had been on the Internet Crimes Against
10 The district court noted that at a suppression hearing,
"Det[ective] Richard confirmed what his words themselves conveyed:
that he described the individuals as he did because they appeared,
to him, to be prepubescent." Morel, 2017 WL 1376363, at *9. But
our assessment of probable cause must be based on "information
provided in the four corners of the affidavit supporting the
warrant application." United States v. Vigeant, 176 F.3d 565, 569
(1st Cir. 1999). The affidavit in this case did not state that
Detective Richard believed the females in the images were
"prepubescent."
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Children Task Force for nearly a decade, and had assisted in the
execution of about fifty search warrants related to possession and
distribution of child pornography. That training and experience
likely informed his belief that the girls depicted in the images
were under age eighteen.11
2. Whether There Was Probable Cause That the Images Depicted
Real Children
Morel raises the issue of whether the girls depicted
were real, as opposed to virtual, for the first time on appeal, so
it is waived. See United States v. Oquendo-Rivas, 750 F.3d 12, 17
(1st Cir. 2014).
Morel argues that he did not waive this argument because,
at a suppression hearing, the district court discussed caselaw
stating that a magistrate judge must be able to independently
determine whether the images "probably depict real children." See
Syphers, 426 F.3d at 467; LaFortune, 520 F.3d at 58. This
reference to caselaw does not preserve the issue. Morel also
argues that this issue is "integral to the probable cause
determination," and that the government could not have been
surprised by it. We disagree. At the suppression hearings, the
parties and the district court only considered the issue raised:
11 Contrary to Morel's argument, Detective Richard was not
required to apply the Tanner Scale to assess the ages of the girls
in the images. United States v. Hilton is inapposite, because
that case involved the government's burden of proof at trial. 386
F.3d 13, 15 (1st Cir. 2004).
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whether the warrant was sufficient for probable cause as to the
ages of the girls. This was not enough to apprise the district
court of the issue of whether the girls were real. See McCoy v.
Mass. Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991) ("If claims
are merely insinuated rather than actually articulated in the trial
court, we will ordinarily refuse to deem them preserved for
appellate review.").
III.
The district court's denial of Morel's suppression
motions is affirmed.
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