People v. Rowland

Filed 9/8/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H048799
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. B1901606)
v.
JEFFREY LEE ROWLAND,
Defendant and Appellant.
We consider in this appeal the presumptive reliability of information from a third-
party electronic communication service provider in an affidavit supporting the application
for a search warrant for child pornography.
Defendant Jeffrey Lee Rowland pleaded no contest to possession of child
pornography (Pen. Code, § 311.11, subd. (a)1) in exchange for two years’ formal
probation with conditions, including serving nine months in the county jail. Before
Rowland entered his no contest plea, the trial court had denied his motion to quash a
search warrant that led to the seizure of his child pornography.
On appeal, Rowland claims that the search warrant was not supported by probable
cause and the good faith exception to the exclusionary rule does not apply. Additionally,
Rowland and the Attorney General agree that any unpaid balance of a criminal justice
1
Unspecified statutory references are to the Penal Code.
administration fee and probation supervision fee imposed at sentencing should be
vacated.
For the reasons explained below, we reject Rowland’s challenge to the search
warrant. We decide, inter alia, that although the search warrant affidavit did not name the
employee who submitted two child pornography cybertips to the National Center for
Missing and Exploited Children (NCMEC) or the person who forwarded the cybertips
from NCMEC to the police, the totality of the circumstances supported a determination
that the cybertips came from unbiased citizen informants who could be presumed reliable
and thus did not need any independent corroboration. In addition, we modify the
judgment to vacate the unpaid portion of the criminal justice administration fee and
probation supervision fee and affirm the judgment in all other respects.
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural History
On April 16, 2019, the Santa Clara County District Attorney filed a complaint
charging Rowland with a single count of possessing or controlling matter depicting a
person under 18 years of age personally engaging in or simulating sexual conduct
(§ 311.11, subd. (a); count 1).
In September 2019, Rowland filed a motion under section 1538.5 to quash the
search warrant (motion) that led to a search of his residence and seizure of his electronic
devices, including a “PNY Thumb Drive.”
The district attorney opposed Rowland’s motion. In his opposition, the district
attorney noted that the PNY thumb drive “contained an estimated 1,000 images of child
pornography and 25 videos of child pornography.”
On November 15, 2019, the trial court heard argument from the parties and denied
Rowland’s motion.
In December 2020, after the trial court indicated a sentence, Rowland pleaded no
contest to count 1 as charged.
2
On January 7, 2021, the trial court suspended imposition of sentence and placed
Rowland on formal probation for two years with various conditions, including serving
nine months in the county jail. Additionally, the court ordered Rowland to pay various
fees including a $129.75 criminal justice administration fee to the City of Los Altos
(former Gov. Code, § 29550 et seq.) and a probation supervision fee of $50 per month
(former § 1203.1b).
Rowland timely appealed from the denial of his motion to quash the search
warrant and his “sentence or other matters occurring after the plea that do not affect the
validity of the plea.”
B. Background on the Search Warrant, Seizure of Evidence, and Motion to Quash
1. Search Warrant Affidavit and Statement of Probable Cause
On February 22, 2019, Los Altos Police Department Detective Edgar Nava
authored an affidavit and accompanying statement of probable cause (jointly, the search
warrant affidavit or affidavit) in support of a search warrant for Rowland’s residence and
two vehicles. In the statement of probable cause, Detective Nava said he had been a
peace officer for over nine years and that, as a detective, his duties included investigating
child exploitation crimes. Regarding his prior training, Nava stated that in 2018 he had
“attended a Child Exploitation Investigation Class that reviewed child pornography, child
predators, legal aspects and investigative guidelines.” He also had “attended classes and
seminars, including the Digital Online Safety Class, taught by Verizon Media, [and]
Continuous Professional Training (C.P.T.), regarding the investigation of the cases within
the aforementioned realm” of child exploitation. Although Nava had previously
“investigated crimes against children, this [case was his] first investigation dealing with
the crime of possessing child pornography.”
Detective Nava explained that, based on his training and experience, he knew
“there are suspects who sexually objectify children.” Nava described how these suspects
“receive sexual gratification and satisfaction from . . . fantasy involving the use of
3
images, videos, electronic media, and/or writings on or about sexual activity with
children.” Nava explained further that “[t]hese suspects will often collect and possess
sexually explicit objects such as . . . digital files (such as images or videos) which depict
children or other young persons. Suspects who possess child pornography tend to collect
it.” Such suspects also commonly use “Internet searches” and “file sharing networks and
programs” to obtain child pornography. “Because child pornography is illegal and not
easily available,” suspects/child predators tend “to save or retain the child pornography,”
“rarely, if ever, dispose of their sexually explicit materials,” and “will treat their materials
as prized possessions, causing collections to typically grow and leading to an obsession.”
Additionally, Detective Nava explained that “[s]uspects will typically store child
pornography and other sexually explicit material involving children in physical locations,
such as a house or vehicle, or on their persons, or retain digital copies on
electronic/digital storage devices.” “Suspects who sexually objectify minors typically
utilize electronic communication providers in an attempt to contact children via the
internet or mobile applications for the purposes of sexual gratification.” The suspects
might “maintain contact information for their victims,” “collect and maintain
photographs or videos of children they are or have been involved with,” “engage in
activities or programs which will be of interest to the type of child victims they desire to
attract,” “collect, read, copy or maintain names, addresses, phone numbers or lists of
persons who have similar sexual interests,” “correspond via mail, e-mail, instant
messages, or in person to share information about their exploits of children and/or the
identities of their victims,” and “exchange, trade, or sell photos and/or videos of child
pornography with other persons with similar interests.” “Such suspects go to great
lengths to conceal and to protect their collections of illicit materials from discovery, theft,
and damage.” Furthermore, “deleted [digital] files can typically be recovered using
forensic software.”
4
Regarding his current investigation, Detective Nava stated that he was assigned to
investigate a report about child pornography from Mountain View Police Department
Sergeant Dahl—a member of the Silicon Valley Internet Crimes Against Children
(SVICAC) Task Force. Dahl’s “report indicated he investigated two ‘Cybertips’ of
exploited children. The Cybertips were received from the [NCMEC], Cybertip 1
(#41968669) and Cybertip 2 (#42488363). NCMEC received the anonymous Cybertips
from a Microsoft Online Operation employee who viewed both files” of apparent child
pornography. “Both files were uploaded to the internet through the BingImage
application from the IP address 108.90.42.164.”2 Nava stated the file name for each
image attached to the cybertips, along with the date and time the two files were uploaded
(i.e., October 11, 2018, at 10:08:56 UTC (Coordinated Universal Time) for Cybertip 1,
and October 26, 2018, at 20:46:56 UTC for Cybertip 2).
Detective Nava stated that “[Sergeant] Dahl reviewed the images and confirmed
both images appeared to be images of child pornography. He contacted Alexandra N[.]
Gatlin, who is an Analyst 1 with the Child Victim Identification Program (CVIP). Gatlin
confirmed via email to [Sergeant] Dahl that the person from Cybertip 1 had been
identified and was confirmed to be underage at the time the photograph was taken. In a
separate email, Gatlin informed [Sergeant] Dahl that the person in Cybertip 2 had not
been identified.” Dahl checked the IP address attached to the cybertips against “the
American Registry of Internet Numbers (ARIN) and learned the IP address is assigned to
a company named AT&T Mobility” (bolding omitted). On November 27, 2018, Dahl
authored a search warrant for the subscriber information regarding the “IP address and
2
“ ‘[A]n IP address . . . is a unique number identifying the location of an end[-]
user’s computer. When an end-user logs onto a[n] internet service provider, the user is
assigned a unique IP number that will be used for that entire . . . session. Only one
computer can use a particular IP address at any specific date and time.’ ” (People v.
Evensen (2016) 4 Cal.App.5th 1020, 1022, fn. 1; see also People v. Nguyen (2017) 12
Cal.App.5th 574, 577.)
5
learned the subscriber information was Richard Rowland,” with an address in Los Altos,
California (hereafter residence).
On January 15, 2019, Detective Nava met with Sergeant Dahl at the Mountain
View Police Department and viewed “both images of child pornography associated with
Cybertip 1 and Cybertip 2.” Nava described the images in his statement of probable
cause as follows. The image associated to Cybertip 1 “showed a fully nude female
juvenile. The female sat in a bathtub that was partially filled with water. She sat with her
legs spread open, exposing her vaginal area. The female was leaning back and was
smiling for the camera. She had little to no breast development, was small in stature and
appeared to be in the early stages of pubic hair growth.” The image associated to
Cybertip 2 “showed a fully nude female juvenile who seemed to be standing in a bathtub.
The female juvenile had both hands above her vagina area and appeared to be spreading
her vagina. The female juvenile had no breast development and was positioned with her
head [] facing downward. The female was very small in stature and had no pubic hair.”
Nava stated his belief that the females depicted in each photo were, respectively,
“between the ages of 10 to 13 years old” and “7 to 9 years old.” Further, Nava said that,
based on his training and experience, he believed each child “was positioned in [a]
manner to expose the female juvenile’s vagina for the sexual gratification of the viewer.”
On January 17, 2019, Detective Nava conducted surveillance of the residence in
Los Altos, approached it, and using a cell phone, “noticed the only unsecured Wi-Fi
signal was a signal named ‘xfinitywifi.’ ” On February 22, 2019, Los Altos Police
Department detectives conducted additional surveillance and obtained photographs of the
front of the residence. “An Accurint check of the residence revealed two possible
residents, Richard Rowland (84 years old) and Jeffrey Rowland (37 years old). Both
residents ha[d] valid drivers’ licenses and vehicles registered to them,” namely a 2011
Audi for Richard Rowland and a 2016 Jeep for Jeffrey Rowland.
6
Detective Nava asserted that, based on the facts provided, he had “reasonable
cause to believe, and d[id] believe, that evidence of the commission[] of felonies, to wit:
violation(s) of [section] 311.11[, subdivision] (a) – Possession of Child Pornography, and
property documenting commission of said felonies, will be located on the premises
described above.” Detective Nava “request[ed] that a daytime search warrant be issued.”
On February 22, 2019 (the same day that Detective Nava signed the affidavit),
based on the information in Nava’s affidavit, a judge of the Santa Clara County Superior
Court found probable cause and issued a search warrant for the residence, the 2011 Audi,
and the 2016 Jeep for “evidence and instrumentalities of possession of child pornography
. . . occurring from January 1, 2000 to present.”
2. Seizure of Evidence from Rowland’s Residence
Five days after the search warrant issued, on February 27, 2019, police officers
executed the warrant and seized the following items: Two Western Digital storage
devices, a Dell tower computer, a PNY thumb drive, an Apple iPhone, an Apple laptop,
and an Apple computer. The PNY thumb drive “contained an estimated 1,000 images of
child pornography and 25 videos of child pornography.”
3. Rowland’s Motion to Quash
In his motion to quash the search warrant, Rowland claimed that the search
warrant affidavit failed to state probable cause. He argued the showing was defective
because: (1) “The only information in the affidavit linking the contraband to defendant is
based entirely on an uncorroborated anonymous tip.” (2) “The two images at issue that
the affiant identifies as child pornography that form the basis of the search do not show
minors engaged in sex acts. The affidavit merely describes two underage females sitting
or standing in bathtubs with their legs spread displaying their vaginas. It is not possible
to tell from affiant’s description whether the two images are child pornography.” (3)
“The information linking the images to defendant’s address was four months old,
rendering it stale.” Rowland further asserted that “the search warrant affidavit, on its
7
face, is so lacking in probable cause that it cannot even meet the minimum standards of
the ‘good faith’ rule.” Rowland urged the trial court to quash the search warrant and
suppress the evidence seized, as well as any “statements and derivative evidence.”
In opposition to the motion, the prosecutor contended that probable cause
supported the warrant. The prosecutor urged the trial court to consider the tips from
Microsoft as a report from a concerned citizen rather than an anonymous tipster. The
prosecutor asserted further that Detective Nava’s descriptions of the two images provided
sufficient basis to conclude the images were child pornography and the magistrate was
not obligated to personally view the images. The prosecutor also argued that the
information supporting probable cause was not stale. Additionally, the prosecutor
maintained that, even if probable cause did not support the issuance of the search warrant,
the seized evidence should not be suppressed because it is “saved by the good faith rule.”
On November 15, 2019, the trial court heard oral argument on Rowland’s motion.3
The court began the proceeding by providing its tentative ruling to the parties. The court
explained, “Based on the affidavit by the officer, I found there was more than a fair
probability that evidence of a crime would be found in executing that warrant. [¶] I
found that the tips and tipster described . . . were best seen as information from a citizen
observing a crime rather than a so-called common informant.” The court acknowledged
the existence of case law related to that issue and stated, “I thought that there was indicia
of enough [] trustworthiness based on what I read . . . in the affidavit to reach that
conclusion.” Furthermore, the court stated that it did not find the information in the
affidavit to be stale because there was no “common sense reason to believe that child
porn[ography] at a search site would be gone in less than four months between the
download date and the application for the search warrant.” Based on Detective Nava’s
descriptions of the two images, the court “conclude[d] there was probable cause to
3
The judge who ruled on the motion is the same bench officer who had previously
signed the search warrant.
8
believe that those images were child pornography.” The court “didn’t think it was
necessary for [it] to . . . actually view the images to reach that conclusion.”
The trial court found unpersuasive Rowland’s argument that the affidavit was
deficient because it did not state that the police knew the identity of the informant as
allegedly required by the “citizen informant exception.” The court explained, “I thought
there was enough there, a description. I’m not sure that it would really move the ball
forward in this case to have a particular name, given the route that it had -- and I don’t
know that that would really give the court any better information to be able to assess
reliability and credibility.”
II. DISCUSSION
A. Search Warrant
Rowland contends the trial court erred by denying his motion to quash the search
warrant because: (1) the only information in the affidavit linking the alleged child
pornography to Rowland’s residence came from an uncorroborated “anonymous tipster,”
which is insufficient to provide probable cause; (2) Detective Nava’s description of the
two images was too vague for the magistrate to conclude that they were child
pornography; (3) the information supporting the warrant was too stale to establish
probable cause; and (4) the good faith exception to the exclusionary rule does not apply.
1. Relevant Legal Principles
“ ‘The standard of appellate review of a trial court’s ruling on a motion to suppress
is well established. We defer to the trial court’s factual findings, express or implied,
where supported by substantial evidence. In determining whether, on the facts so found,
the search or seizure was reasonable under the Fourth Amendment, we exercise our
independent judgment.’ ” (People v. Redd (2010) 48 Cal.4th 691, 719.)
A defendant may move to suppress evidence on the ground that a search or seizure
with a warrant was unreasonable for various reasons. (See § 1538.5, subd. (a)(1)(B)(i)–
9
(v).4) “ ‘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.)
“The pertinent rules governing a Fourth Amendment challenge to the validity of a
search warrant, and the search conducted pursuant to it, are well-settled. ‘The question
facing a reviewing court asked to determine whether probable cause supported the
issuance of the warrant is whether the magistrate had a substantial basis for concluding a
fair probability existed that a search would uncover wrongdoing.’ [Citations.] ‘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.” ’
[Citation.] ‘ “The task of the issuing magistrate is simply to make a practical,
commonsense decision whether, given all the circumstances set forth in the affidavit
before him [or her], . . . there is a fair probability that contraband or evidence of a crime
will be found in a particular place.” ’ [Citations.] ‘The magistrate’s determination of
probable cause is entitled to deferential review.’ [Citations.] . . . [T]he warrant ‘can be
upset only if the affidavit fails as a matter of law to set forth sufficient competent
evidence’ supporting the finding of probable cause.” (People v. Westerfield (2019) 6
Cal.5th 632, 659–660 (Westerfield).) “Although in a particular case it may not be easy to
determine when an affidavit demonstrates the existence of probable cause, the resolution
of doubtful or marginal cases in this area should be largely determined by the preference
4
Penal Code section 1538.5, subdivision (a)(1), provides in relevant part: “A
defendant may move for the return of property or to suppress as evidence any tangible or
intangible thing obtained as a result of a search or seizure on either of the following
grounds: [¶] . . . (B) The search or seizure with a warrant was unreasonable because any
of the following apply: [¶] (i) The warrant is insufficient on its face. [¶] (ii) The
property or evidence obtained is not that described in the warrant. [¶] (iii) There was not
probable cause for the issuance of the warrant. [¶] (iv) The method of execution of the
warrant violated federal or state constitutional standards. [¶] (v) There was any other
violation of federal or state constitutional standards.”
10
to be accorded to warrants.” (United States v. Ventresca (1965) 380 U.S. 102, 109; see
also People v. Weiss (1999) 20 Cal.4th 1073, 1082–1083.)
Regarding persons who provide information to police about possible criminal
activity, the California Supreme Court “ ‘ha[s] distinguished between those informants
who “are often criminally disposed or implicated, and supply their ‘tips’ . . . in secret, and
for pecuniary or other personal gain” and victims or chance witnesses of crime who
“volunteer their information fortuitously, openly, and through motives of good
citizenship.” ’ ” (People v. Scott (2011) 52 Cal.4th 452, 475, quoting People v. Ramey
(1976) 16 Cal.3d 263, 268–269 (Ramey).)
There is no requirement that information provided by a citizen informant be
corroborated for it to constitute probable cause supporting the issuance of a warrant. (See
Ramey, supra, 16 Cal.3d at p. 269; People v. Smith (1976) 17 Cal.3d 845, 852 [“An
untested citizen-informant who has personally observed the commission of a crime is
presumptively reliable.”].) As Ramey explained, “It may therefore be stated as a general
proposition that private citizens who are witnesses to or victims of a criminal act, absent
some circumstance that would cast doubt upon their information, should be considered
reliable. This does not, of course, dispense with the requirement that the informant—
whether citizen or otherwise—furnish underlying facts sufficiently detailed to cause a
reasonable person to believe that a crime had been committed and the named suspect was
the perpetrator; and the rule also presupposes that the police be aware of the identity of
the person providing the information and of his status as a true citizen informant. (People
v. Abbott (1970) 3 Cal.App.3d 966, 970–971 [(Abbott)].) In short, probable cause will
not be provided by conclusionary information or anonymous informants, but neither a
previous demonstration of reliability nor subsequent corroboration is ordinarily necessary
when witnesses to or victims of criminal activities report their observations in detail to
the authorities.” (Ramey, at p. 269; see also People v. Hogan (1969) 71 Cal.2d 888, 890–
891 (Hogan).)
11
Furthermore, “[i]n order for the presumption of reliability to apply, [] the affidavit
must affirmatively set forth the circumstances from which the existence of citizen-
informer status can reasonably be inferred by a neutral and detached magistrate.”
(People v. Kershaw (1983) 147 Cal.App.3d 750, 755 (Kershaw); see also People v.
Lombera (1989) 210 Cal.App.3d 29, 32 [“[I] is not necessary that the informant’s name
be disclosed in the affidavit for the status of citizen informant and its attendant
presumption of reliability to attach.”]; People v. Superior Court (Haflich) (1986) 180
Cal.App.3d 759, 768 (Haflich).)
“[W]hen . . . the police do obtain a warrant, that warrant is presumed valid.”
(People v. Amador (2000) 24 Cal.4th 387, 393; see also People v. Panah (2005) 35
Cal.4th 395, 456 [“ ‘ “[T]here is a presumption of validity with respect to the
affidavit.” ’ ”].) “Because a search conducted pursuant to a search warrant is presumed
lawful, the burden of establishing the invalidity of the search warrant rests upon the
defendant.” (People v. Lazalde (2004) 120 Cal.App.4th 858, 865; Amador, at p. 393.)
“In the ordinary case, an officer cannot be expected to question the magistrate’s
probable-cause determination or his [or her] judgment that the form of the warrant is
technically sufficient.” (United States v. Leon (1984) 468 U.S. 897, 921 (Leon).) “In
Leon, the Supreme Court held that when ‘an officer acting with objective good faith has
obtained a search warrant from a judge or magistrate and acted within its scope,’ the
‘marginal or nonexistent benefits’ produced by suppressing the evidence obtained ‘cannot
justify the substantial costs of exclusion.’ [Citation.] ‘[T]he exclusionary rule is
designed to deter police misconduct rather than to punish the errors of judges and
magistrates.’ [Citation.] Therefore, suppression of evidence is an appropriate remedy
only if ‘the magistrate or judge in issuing [the] warrant was misled by information in an
affidavit that the affiant knew was false or would have known was false except for his
reckless disregard of the truth,’ the affidavit is ‘ “so lacking in indicia of probable cause
as to render official belief in its existence entirely unreasonable,” ’ or the affidavit is so
12
deficient in particularizing the place to be searched or the things to be seized that the
executing officer ‘cannot reasonably presume it to be valid.’ [Citation.] In considering
the issue, we apply the objective test of ‘ “whether a reasonably well trained officer
would have known that the search was illegal despite the magistrate’s authorization.” ’
[Citations.] We review the trial court’s application of the good faith exception de novo.”
(People v. Lazarus (2015) 238 Cal.App.4th 734, 766–767 (Lazarus).)
2. Analysis
a. Citizen Informant
We begin our analysis by addressing Rowland’s contentions concerning the nature
of the informants and information they provided to police about the two images uploaded
from an IP address ultimately tied to his residence. Rowland argues the search warrant
affidavit lacks necessary details about the identity and actions of the “ ‘Microsoft Online
Operation’ employee” (Microsoft employee) who provided the cybertips to NCMEC.
Likewise, Rowland asserts that the affidavit fails to provide information about the
interaction between the Microsoft employee and NCMEC or the identity of the person at
NCMEC who passed the cybertips on to Sergeant Dahl. Based on these alleged
deficiencies, Rowland contends “the essential information tying the images to [his] IP
address / computer was provided by an anonymous tipster,” such anonymously provided
information “is legally insufficient to provide probable cause,” and thus “the warrant
affidavit could not show that there would be ‘a fair probability that contraband or
evidence of a crime will be found in a particular place,’ ” namely, his residence.
The Attorney General counters that the cybertips were sufficiently reliable to
support the magistrate’s probable cause finding. The Attorney General asserts that the
cybertips are akin to reports by citizen informants, federal law obligated Microsoft to
submit the information about apparent child pornography to NCMEC, and the cybertips
were corroborated by the images, confirmation that one of the depicted girls was
13
underage, and the IP address. The Attorney General further contends that Rowland has
failed to meet his burden to establish the invalidity of the search warrant.
We are not persuaded by Rowland that the magistrate acted improperly under the
present circumstances in finding the unnamed Microsoft and NCMEC employees to be
presumptively reliable citizen informants. Widely available information reveals that
“ ‘[t]echnology companies like Yahoo, Google and Microsoft scan for child pornography
and are required to report any discoveries to the National Center for Missing and
Exploited Children.’ ”5 (United States v. Brown (2d Cir. 2016) 843 F.3d 74, 85, fn. 2
(conc. opn. of Sack, J.), quoting Savage & Perlroth, Yahoo Said to Have Adapted Email
Scanner to Aid U.S. Surveillance, N.Y. Times (Oct. 6, 2016) at pp. B1, B6; see also
Wilson, supra, 56 Cal.App.5th at pp. 137–138, 143–144 [describing Google’s method,
dating back to 2008, for “ensur[ing] its systems were free of illegal content, particularly
child sexual abuse material”].)
Although Microsoft is not required by federal law to monitor its users or seek out
child pornography, the company “has a duty under federal law [as a service provider] to
report apparent child pornography to the NCMEC once it obtains actual knowledge of
such content.” (Wilson, supra, 56 Cal.App.5th at p. 138, fn. 6, citing 18 U.S.C.
§ 2258A(a); see also United States v. Bohannon (N.D. Cal. 2020) 506 F.Supp.3d 907,
914, fn. 3 [“Microsoft must report information to NCMEC when it has actual knowledge
of child pornography [citation] but is not required to maintain a sophisticated system for
obtaining such knowledge.”]; 18 U.S.C. § 2258E(6).) The report to NCMEC must
include, among other information, the service provider’s “individual point of contact” (18
U.S.C. § 2258A(a)(1)(B)(i)), and may include information regarding the identity of the
5
Rowland makes no argument that Microsoft, its employee, or NCMEC acted as
government agents in this case. Generally, independent reports of child pornography by
technology companies “constitute private action that was not performed at the direction
of the government.” (People v. Wilson (2020) 56 Cal.App.5th 128, 144 (Wilson).)
14
individual who appears to have violated child pornography laws (e.g., the related IP
address) and other relevant information (18 U.S.C. § 2258A(b)). Knowing and willful
failure to make a report is punishable by a fine of at least $150,000. (18 U.S.C.
§ 2258A(e).)
Relatedly, “NCMEC is statutorily obligated to serve as a national clearinghouse
and maintain a tip line for internet service providers to report suspected child sexual
exploitation violations. [Citations.] NCMEC is statutorily obligated to forward those
reports, known as ‘Cybertips,’ to federal law enforcement and may, and often does,
forward the reports to state and local law enforcement.” (Wilson, supra, 56 Cal.App.5th
at p. 137, fn. 5; see also 18 U.S.C. § 2258A(c).)
Although the search warrant affidavit here did not state the federal law obligations
imposed on both Microsoft and NCMEC regarding child pornography, we presume the
magistrate knew the law when reviewing the affidavit and deciding whether it stated
probable cause. (See People v. Martin (2005) 127 Cal.App.4th 970, 977 [“A judge is
presumed to know and follow the law.”], disapproved on other grounds in People v.
Achrem (2013) 213 Cal.App.4th 153, 157; Di Sabatino v. State Bar (1980) 27 Cal.3d 159,
162, fn. 2.) Moreover, because the child pornography reporting obligation is a known
legal requirement, a magistrate’s consideration of that legal requirement does not amount
to improper consideration of facts that do not “appear within the ‘ “four corners of the
warrant affidavit.” ’ ” (People v. Clark (2014) 230 Cal.App.4th 490, 497; see also People
v. Thompson (1979) 89 Cal.App.3d 425, 429 [“The affidavit must be read in a common
sense fashion and in the light of matters which are of common knowledge.”]; State v.
Woldridge (Fla.Dist.Ct.App. 2007) 958 So.2d 455, 459 (Woldridge) [“while it is true that
the search warrant affidavit does not reference this statutory mandate, the magistrate and
the trial court, like all citizens, are charged with knowing the applicable law”].)
Although no California court has issued a published decision examining the
reliability and credibility of service providers and NCMEC with regard to their reports of
15
child pornography, one federal court of appeals recently “h[e]ld that an NCMEC cyber-
tip generated by information provided to NCMEC by an internet company such as
Google carries with it significant indicia of reliability. The [relevant federal law] imbues
such significant reliability by mandating ‘electronic communication service provider[s]
[and] remote computing service[s]’ to report illicit, questionable activity that comes
through their servers.” (United States v. Landreneau (5th Cir. 2020) 967 F.3d 443, 453.)
Several other courts have come to similar conclusions about reports of child pornography
from service provides through NCMEC to law enforcement. (See United States v.
Cameron (D.Me. 2009) 652 F.Supp.2d 74, 82 [rejecting a challenge to a warrant that
contained information from unnamed sources at Yahoo! and NCMEC and noting “each
carries significant indicia of reliability”]; United States v. Kling (N.D.Iowa, July 12,
2006, No. CR06-3007 MWB) WL 1980179, at *6, report and recommendation adopted
(N.D.Iowa, July 21, 2006) WL 2054375 [finding no merit to the “argument that the
warrant affidavit could not support a probable cause finding because it failed to identify
the individual Yahoo employee who provided the original information about
pornographic photographs being uploaded to or downloaded from the site.”]; People v.
Rabes (Colo.Ct.App. 2010) 258 P.3d 937, 941 [explaining that “the magistrate could
have concluded that the tip [from AOL to NCMEC] alleging that the AOL images
constituted ‘child pornography’ was reliable”].)
Likewise, other jurisdictions have held that service providers “are presumed to be
reliable sources akin to identified citizen informants.” (State v. Henz (N.M.Ct.App.
2022) 514 P.3d 1, 7, cert. granted June 27, 2022, No. S-1-SC-39350.) In Henz, the New
Mexico Court of Appeals recently discussed several decisions from courts in other states
and concluded: “We agree with the above jurisdictions that have determined providers
like Tumblr and Google [(i.e., the service providers in that case)] to be credible sources
who, by first-hand knowledge, gather their reported information regarding the
transmission or receipt of child pornography in a reliable fashion, and adopt those
16
jurisdictions’ reasoning here.” (Id. at *6.) The decisions from other jurisdictions relied
on by the New Mexico Court of Appeals include State v. Sisson (Del.Super.Ct. 2005) 883
A.2d 868, 880, affd. Sisson v. State (Del. 2006) 903 A.2d 288 [“AOL was essentially a
citizen witness to a crime and, as such, is presumed to be reliable. Accordingly, the
Court finds that, under the circumstances, AOL was a reliable informant and no
independent corroboration of the information provided by AOL was required.”];
Woldridge, supra, 958 So.2d at pp. 458–459 [“hold[ing] that AOL’s compliance with a
federal law mandating that it report [the defendant]’s activities to NCMEC provides a
presumption of reliability akin to that afforded a citizen informant”]; Manzione v. State
(Ga. Ct. App. 2011) 312 Ga.App. 638, 642 [719 S.E.2d 533, 538] [stating that law
enforcement is “entitled to presume the reliability of the Yahoo! report as transmitted
through NCMEC without independently verifying the credibility of the Yahoo! employee
who initially viewed the offensive images”]; State v. Silverstein (Wis.Ct.App. 2017) 378
Wis.2d 42, 57 [902 N.W.2d 550, 557] [explaining that even if the identity of the person
working for a service provider who reported to NCMEC is unknown, the service provider
“is not an anonymous entity” because it is “a named, traceable entity that is reporting a
crime in furtherance of public safety,” “gains nothing from making the tip,” and “is under
federal mandate to report suspected child abuse to NCMEC,” an obligation which courts
have held “heightens the reliability of the tip”]; and Adams v. State (Ala.Crim.App. 2020)
316 So.3d 260, 266 [“hold[ing] that the tip from the Internet company was presumed
reliable based on the mandatory federal reporting requirements” and noting that the
police had “corroborated the tip by reviewing the images and verifying the IP address and
the user’s name and physical address,” and “there was no ‘basis for the warrant-issuing
magistrate to conclude that the . . . source was not credible.’ ”].)
In the face of the decisions from other jurisdictions, Rowland contends that, under
California Supreme Court and other California precedent, the police must know the
identity of their informant at the time they submit the search warrant affidavit in order for
17
that informant to be considered a citizen informant and presumed reliable. Rowland also
“knows of no published California case holding that all employees of an organization can
be presumed reliable if the organization is found to be reliable” and asserts that “[t]he
idea that an unknown employee of a reliable organization could be treated as a ‘citizen
informant’ goes far beyond” our Supreme Court’s decisions in Hogan, supra, 71 Cal.2d
888, and Ramey, supra, 16 Cal.3d 263.
In Hogan, the California Supreme Court explained that “information from a
citizen who purports to be the victim of a robbery or an assault has been held sufficient
even though his reliability has not been previously tested. [Citations.] Such a person,
who may expect to be called to testify after an arrest, and may be exposing himself to an
action for malicious prosecution if he makes unfounded charges, is more than a mere
informer who gives a tip to law enforcement officers that a person is engaged in a course
of criminal conduct.” (Hogan, supra, 71 Cal.2d at pp. 890–891; see also Abbott, supra, 3
Cal.App.3d at p. 971 [discussing Hogan and stating that “the rationale for the citizen
informer rule requires knowledge of the ‘citizen’s’ identity”].)
As discussed ante, in Ramey, our Supreme Court similarly stated that the citizen-
informant rule “presupposes that the police be aware of the identity of the person
providing the information and of his status as a true citizen informant.” (Ramey, supra,
16 Cal.3d at p. 269.)
We disagree with Rowland’s assertion that, under our Supreme Court’s decisions,
it is improper in the present case to consider the unnamed Microsoft employee who
viewed the two images and forwarded them to NCMEC as a citizen informant. Although
the search warrant affidavit does not provide information regarding the identity of the
Microsoft employee and further describes the cybertips as “anonymous,” the critical
question is whether the affidavit “affirmatively set[s] forth the circumstances from which
the existence of citizen-informer status can reasonably be inferred by a neutral and
detached magistrate.” (Kershaw, supra, 147 Cal.App.3d at p. 755.)
18
As one Court of Appeal has explained, Ramey’s statement regarding the
informant’s identity and status as a citizen informant “does not mean the police
necessarily must obtain the name of an informant before they act on his information.
Unless the informant is a well known public figure whose reputation for probity is
virtually synonymous with his name, determination of his name alone adds nothing to his
reliability. Rather the police must have reason to believe, and in fact believe, the
informant is truly a citizen informant as opposed to a police informant. This belief and
its reasonableness must be gathered from the surrounding circumstances one of which,
mere name alone, is rarely relevant.”6 (Haflich, supra, 180 Cal.App.3d at p. 768.)
Here, the affidavit informed the magistrate that a person who worked for
Microsoft notified NCMEC about two suspect images that the employee had viewed. For
the reasons discussed above, the magistrate could reasonably infer from this information
that the Microsoft employee had acted in accord with Microsoft’s legal obligation as a
service provider when reporting the apparent child pornography to NCMEC. (See
Wilson, supra, 56 Cal.App.5th at p. 137, fn. 5 & p. 138, fn. 6.) Furthermore, the
magistrate could reasonably infer that the person was in fact a Microsoft employee acting
in the course of his or her employment and complying with the company’s federal
reporting mandate for several reasons. First, the information provided indicated that the
images were uploaded using a Microsoft product, “Bing Image.” (See Getty Images
(U.S.), Inc. v. Microsoft Corp. (S.D.N.Y. 2014) 61 F.Supp.3d 301, 302.) Second, the
6
In Haflich, the Court of Appeal addressed a situation in which a police officer
did not obtain the identity of an alleged crime victim (Porter) to whom the officer had
spoken, in person, before conducting a warrantless entry and search of a residence. The
court noted that “Porter’s status as a citizen informant is unquestioned. Furthermore,
unlike the anonymous informant in Ramey, Porter was physically present when he
conveyed his information to the police and he personally directed [the officer] to the
scene of the alleged crime. [Citation.] Failure to obtain Porter’s name prior to entering
defendant’s house does not foreclose reasonable reliance on his information.” (Haflich,
supra, 180 Cal.App.3d at p. 768.)
19
information was detailed, such that it included the IP address from which the image files
were uploaded to the Internet, the file names, and the exact times at which they were
uploaded. Third, the fact that NCMEC—a longstanding clearinghouse and operator of
the tipline—forwarded the cybertips to law enforcement suggests that the tips were
submitted through the normal channel to NCMEC, and NCMEC had no reason to believe
the tips (identified as coming from an employee at Microsoft, an established and major
information technology company) were fraudulent. Lastly, the police subsequently
reviewed the forwarded images and deemed them to be child pornography, confirming
the reason why a Microsoft employee would have submitted a tip to NCMEC in the first
place.
Although the affidavit fails to provide a name for the Microsoft employee who
viewed and then sent the images and attendant information to NCMEC, federal law
required that the cybertips include an “individual point of contact” at Microsoft. (18
U.S.C. § 2258A(a)(1)(B)(i).) Further, as a service provider, Microsoft was required to
preserve the contents of its cybertips and related information for at least 90 days after
submission to NCMEC. (See 18 U.S.C. § 2258A(h).) Given these requirements and the
fact that the images here are electronic, it reasonable to believe that the police would have
been able to trace the links in the chain between Microsoft, NCMEC, and themselves
such that the specific people involved in the submission of the cybertips could have been
found and held accountable if the tips were false.
Additionally, under the facts stated in the affidavit, it is not probable that the
person who contacted NCMEC was an imposter unaffiliated with Microsoft who, for
some personal or nefarious reason, fabricated the tips using his or her own child
pornography to frame Rowland. To have done so, the person would have had to have
known that the provided IP address had been assigned to Rowland’s residence/computer
equipment at the date and time stated in the tip. It also appears improbable that someone
at NCMEC or a NCMEC imposter would have fabricated the cybertips and then sent
20
them to law enforcement. In fact, Rowland acknowledges that NCMEC simply acted as a
conduit for passage of the information. In this context, the magistrate could reasonably
presume that nefarious efforts by an imposter would have been recognized and exposed
by law enforcement. The magistrate also could reasonably infer that the reporting
persons here were in fact affiliated with Microsoft and NCMEC.
All in all, the police and magistrate (based on the search warrant affidavit) had
reason to believe that the cybertips came from a reliable witness employed by Microsoft
who acted in accord with Microsoft’s federal obligation to report apparent child
pornography. The police and magistrate also had reason to believe that a reliable person
at NCMEC forwarded the two pornographic images to the police in accord with
NCMEC’s legal obligation. That the affidavit did not provide the name of the individual
at Microsoft who originally submitted the tips or the person who forwarded the tips from
NCMEC to the police does not, under the totality of the circumstances, undermine the
determination that the tips came from unbiased citizen informants who could be
presumed reliable and thus did not need any independent corroboration. Hence, we
conclude the trial court did not err by rejecting Rowland’s argument that the search
warrant affidavit was deficient because an alleged anonymous tipster provided the
information linking him to the two pornographic images.
b. Description of the Images
Rowland contends that the description of the two images set forth in the search
warrant affidavit was too vague for the magistrate to conclude that they were in fact child
pornography and thus other child pornography would be found when searching his
property. He asserts that although a magistrate need not review images involving
“explicit sex acts,” if the images are described (as in this case) “very general[ly]” as
involving “two nude female juveniles in bathtubs with their legs open exposing their
vaginas,” the magistrate has to view the images to determine if they are child
pornography.
21
The affidavit here described both images as depicting “a fully nude female
juvenile” in a bathtub. The juvenile in the image attendant to Cybertip 1 was sitting in
the tub “with her legs spread open, exposing her vaginal area,” “leaning back and []
smiling for the camera.” The juvenile in the image attendant to Cybertip 2 “had both
hands above her vagina area and appeared to be spreading her vagina” while apparently
standing in a bathtub. The affidavit also described the juveniles’ stature and stage of
sexual development and included Detective Nava’s belief about their ages and
positioning “for the sexual gratification of the viewer.” Additionally, Detective Nava
relayed Sergeant Dahl’s confirmation of the minor status of one of the juveniles and
Sergeant Dahl’s opinion that the images constituted child pornography.
Section 311.11, subdivision (a), prohibits knowing possession of “any matter,
representation of information, data, or 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.” (§ 311.11, subd. (a).)
In turn, section 311.4, subdivision (d)(1), defines “ ‘sexual conduct’ ” as “any of
the following, whether actual or simulated: sexual intercourse, oral copulation, anal
intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual
masochism, penetration of the vagina or rectum by any object in a lewd or lascivious
manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual
stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288, or
excretory functions performed in a lewd or lascivious manner, whether or not any of the
above conduct is performed alone or between members of the same or opposite sex or
between humans and animals. An act is simulated when it gives the appearance of being
sexual conduct.” (§ 311.4, subd. (d)(1), italics added.) (See also People v. Kongs (1994)
30 Cal.App.4th 1741, 1754–1757 (Kongs) [describing the requirements of section 311.4,
subdivision (d)(1)].)
22
The descriptions provided by Detective Nava satisfied the definition of child
pornography as set forth in the relevant statutes. The depicted females were underage,
nude, in a bathtub, and exhibiting their genitals. One female had her legs spread while
leaning back and smiling. The other appeared to be spreading her vagina with her head
facing downward. As described, the images showed the females in unnatural poses that
were sexually evocative. (See Kongs, supra, 30 Cal.App.4th at pp. 1755, 1757.) We
conclude the descriptions in the affidavit established that the images were child
pornography, such that they depicted an “exhibition of the genitals or pubic . . . area for
the purpose of sexual stimulation of the viewer.” (§ 311.4, subd. (d)(1).) Moreover,
when reviewing the affidavit, the magistrate could properly rely on Detective Nava’s and
Sergeant Dahl’s expertise and assessment of the images as child pornography. (See
People v. Sandlin (1991) 230 Cal.App.3d 1310, 1315; People v. Nicholls (2008) 159
Cal.App.4th 703, 711 (Nicholls); see also United States v. Krupa (9th Cir. 2011) 658 F.3d
1174, 1178.)
Additionally, we are not persuaded that the magistrate was required to view the
images in this case in order to ascertain probable cause. Because the description of the
images in the affidavit was sufficient to reasonably believe that the images amounted to
child pornography under California law, the magistrate could rely on that description and
did not have to view the images to decide whether a warrant should issue to search and
seize Rowland’s property. (See New York v. P.J. Video, Inc. (1986) 475 U.S. 868, 874,
fn. 5 [noting that the high court had “never held that a magistrate must personally view
allegedly obscene films prior to issuing a warrant authorizing their seizure,” and stating
“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”].)
23
c. Staleness
Rowland contends the information about the uploading of images from an IP
address tied to him was stale because the search warrant was not executed until February
27, 2019, over four months after the uploading occurred.7 He further asserts that the
affidavit fails to provide information “that suggests that someone in possession of two
images showing only nudity would keep a collection of child pornography information
indefinitely.”
“Information that is remote in time may be deemed stale and thus unworthy of
consideration in determining whether an affidavit for a search warrant is supported by
probable cause.” (People v. Hulland (2003) 110 Cal.App.4th 1646, 1652.) “No bright-
line rule defines the point at which information is considered stale. [Citation.] Rather,
‘the question of staleness depends on the facts of each case.’ [Citation.] ‘If
circumstances would justify a person of ordinary prudence to conclude that an activity
had continued to the present time, then the passage of time will not render the
information stale.’ ” (People v. Carrington (2009) 47 Cal.4th 145, 163–164.)
“The question turns on whether ‘facts supporting the warrant application establish
it is substantially probable the evidence sought will still be at the location at the time of
the search.’ [Citation.] ‘Substantial delays do not render warrants stale where the
defendant is not likely to dispose of the items police seek to seize.’ ” (Lazarus, supra,
238 Cal.App.4th at pp. 764–765; see also United States v. Morales-Aldahondo (1st Cir.
2008) 524 F.3d 115, 119 (Morales-Aldahondo) [Courts “must assess the nature of the
information, the nature and characteristics of the suspected criminal activity, and the
likely endurance of the information.”]; United States v. Seiver (7th Cir. 2012) 692 F.3d
7The image attached to Cybertip 1 was uploaded on October 11, 2018 (139 days
before the search). The image attached to Cybertip 2 was uploaded on October 26, 2018
(124 days before the search). Detective Nava submitted the search warrant affidavit on
February 22, 2019, and the magistrate signed the warrant that day. The police executed
the warrant five days later.
24
774, 777 [“ ‘Staleness’ is highly relevant to the legality of a search for a perishable or
consumable object, like cocaine, but rarely relevant when it is a computer file.
Computers and computer equipment are ‘not the type of evidence that rapidly dissipates
or degrades.’ ”].)
Courts have recognized that persons who possess child pornography are likely to
retain it for lengthy periods. (See, e.g., United States v. Wagner (10th Cir. 2020) 951
F.3d 1232, 1246 [“Courts are less receptive to staleness challenges when the warrant
concerns child pornography because ‘persons interested in those materials [are likely to
hoard them] in the privacy of their homes . . . for significant periods of time.’ ”]; United
States v. Irving (2d Cir. 2006) 452 F.3d 110, 125 [“When a defendant is suspected of
possessing child pornography, the staleness determination is unique because it is well
known that ‘images of child pornography are likely to be hoarded by persons interested in
those materials in the privacy of their homes.’ ”]; United States v. Richardson (4th Cir.
2010) 607 F.3d 357, 370; Morales-Aldahondo, supra, 524 F.3d at p. 119; United States v.
Lacy (9th Cir.1997) 119 F.3d 742, 746 (Lacy).)
Here, the affidavit stated that the two pornographic images were uploaded from
Rowland’s IP address 15 days apart in October 2018. Additionally, Detective Nava
described, based on his training and experience, the common tendencies of persons who
“sexually objectify children,” including that they derive sexual gratification and
satisfaction “from fantasy involving the use of images . . . about sexual activity with
children,” “will often collect and possess sexually explicit objects such as . . . digital files
. . . which depict children,” and “tend to collect” child pornography. Nava explained
that “[b]ecause child pornography is illegal and not easily available, suspects must
typically use significant efforts to locate and obtain it.” This effort “will typically lead a
suspect/child predator to save or retain the child pornography” and “rarely, if ever,
dispose of their sexually explicit materials.” Nava also explained that even if such person
25
were to “delete their digital files containing child pornography,” those “deleted files can
typically be recovered using forensic software.”
Considering the instant facts, Detective Nava’s opinions, and the relevant legal
principles, we discern no error in the magistrate’s determination that the affidavit’s
information was not stale. Four months is not an inordinate amount of time when digital
child pornography is at issue. (See United States v. Newsom (7th Cir. 2005) 402 F.3d
780, 783 [“Information a year old is not necessarily stale as a matter of law, especially
where child pornography is concerned.”]; Lacy, supra, 119 F.3d 742 at p. 746 [finding
information not stale where there was “ ‘good reason[]’ ” to believe computerized images
of child pornography would still be present 10 months later].) Further, the uploading of
two images over a couple of weeks suggests that the person who uploaded the images had
an ongoing interest in child pornography, did not act purely by mistake or ignorance
when posting the two images to the Internet, and could reasonably be considered a person
who sexually objectifies children. These circumstances, combined with the information
contained in the affidavit regarding the proclivities and predilections of persons who
sexually objectify children and view child pornography, provided the magistrate a
substantial basis for finding that child pornography would be found on Rowland’s
property in February 2019.
We are not persuaded by Rowland’s reliance on United States v. Weber (9th Cir.
1990) 923 F.2d 1338, which is distinguishable on its facts. In Weber, the court described
the information possessed by the agent who signed the affidavit as follows: “He knew
(1) that two years previously, [the defendant] had been sent advertising material that was
described by the customs agent who intercepted it as ‘apparently’ child pornography; (2)
that although [the defendant] was advised that Customs had the material, he never
claimed it; (3) that there was no proof that [the defendant] requested the advertising
material; and (4) that [the defendant] answered a government-generated advertisement for
child pornography and ordered materials that were to be delivered by the government just
26
before the execution of the warrant.” (Id. at p. 1344.) The court observed that “to find
probable cause for the materials listed in . . . the warrant [(i.e., various forms of child
pornography)] would be to justify virtually any search of the home of a person who has
once placed an order for child pornography—even if he never receives the materials
ordered.” (Ibid.) The court also rejected the government’s reliance on opinions
regarding the habits of “ ‘child molesters,’ ‘pedophiles,’ and ‘child pornography
collectors’ ” because the affidavit failed to provide “reason to believe that [the defendant]
was one of the ‘types’ described or possessed any of the habits ascribed to such types.”
(Id. at p. 1345.)
By contrast to Weber, in the present case Detective Nava’s opinions were
combined with concrete information establishing that someone at Rowland’s residence
had twice uploaded child pornography in the recent past. The magistrate thus could
reasonably conclude that the person who did so was “a member of the class of persons
who tended to keep child pornography.” (Nicholls, supra, 159 Cal.App.4th at p. 713; see
also Lacy, supra, 119 F.3d at p. 746, fn. 6 [distinguishing Weber on the ground that the
affidavit “contained sufficient evidence that [the defendant] had downloaded
computerized visual depictions of child pornography to provide a foundation for evidence
regarding the practices of possessors of such pornography”].)
In sum, we agree with the magistrate that the search warrant affidavit sufficiently
provided probable cause to believe that evidence of the possession of child pornography
could be found in Rowland’s residence and the vehicles identified in the search warrant.
Rowland has not established that the affidavit failed to provide “ ‘sufficient competent
evidence’ ” to support the magistrate’s finding of probable cause. (Westerfield, supra, 6
Cal.5th at p. 660.)
d. Good-Faith Exception
Because we conclude the search warrant affidavit demonstrated a fair probability
that a search would uncover wrongdoing, there is no need to examine whether the good
27
faith exception to the exclusionary rule applies. (See People v. Hansborough (1988) 199
Cal.App.3d 579, 584–585.) Nevertheless, because the People contended at trial (and now
on appeal) that even if there were deficiencies in the affidavit, the seized evidence should
not be suppressed because the police executing the warrant acted in good faith, we will
address the People’s contention.
“The good faith exception to the exclusionary rule applies when police act in
objectively reasonable reliance on a search warrant issued by a detached and neutral
magistrate. [Citation.] The prosecution bears the burden to prove officers’ reliance on a
warrant was objectively reasonable. [Citation.] ‘This objective standard “requires
officers to have a reasonable knowledge of what the law prohibits.” ’ ” (People v.
Nguyen (2017) 12 Cal.App.5th 574, 586–587; see also Lazarus, supra, 238 Cal.App.4th
at pp. 766–767.)
Here, Rowland does not contend that the affidavit contained false information, the
warrant was issued by a magistrate who “wholly abandoned his judicial role,” or the
warrant was “so facially deficient —i.e., in failing to particularize the place to be
searched or the things to be seized—that the executing officers [could not] reasonably
presume it to be valid.” (Leon, supra, 468 U.S. at p. 923.) Rather, the present dispute
turns on whether the affidavit “ ‘so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable.’ ” (Ibid.) Rowland grounds his
argument against application of the good faith exception on the same contentions we
have addressed ante regarding the alleged deficiencies in the affidavit.
For substantially the same reasons that we hold the warrant was supported by
probable cause, we conclude that the good faith exception applies. Given that there was
no published California precedent on the question whether a cybertip from a service
provider (like Microsoft through NCMEC) could be presumed reliable under the citizen-
informant rule, but several other jurisdictions had previously concluded that such tip is
presumptively reliable and akin to a tip provided by an identified citizen informant, we
28
decide the police could have reasonably relied in this instance on the magistrate’s finding
of probable cause. (See People v. Pressey (2002) 102 Cal.App.4th 1178, 1191.)
Similarly, with regard to the alleged vagueness of the image descriptions and staleness,
under the facts, precedent, and statutes discussed ante, there was a basis for the police
officers involved in the search to have concluded that there were reasonable grounds to
support probable cause. Therefore, we discern no error in the trial court’s ruling denying
Rowland’s motion to quash the search warrant.
B. Court-Imposed Fees
“On September 18, 2020, the Governor signed Assembly Bill [No.] 1869
. . . [¶] . . . [which] abrogated the authority to impose and collect 23 different
administrative fees, including, as relevant here, the probation supervision fee and the
criminal justice administration fee.” (People v. Greeley (2021) 70 Cal.App.5th 609, 625
(Greeley).) Assembly Bill No. 1869 added section 1465.9 to the Penal Code and section
6111 to the Government Code. (Stats. 2020, ch. 92, §§ 11, 62.) Relevant to the
probation supervision fee, current section 1465.9, subdivision (a), provides that “[t]he
balance of any court-imposed costs pursuant to” former section 1203.1b, as that section
“read on June 30, 2021, shall be unenforceable and uncollectible and any portion of a
judgment imposing those costs shall be vacated.”8 (§ 1465.9; Stats. 2021, ch. 257, § 35.)
“Relevant to the criminal justice administration fee, Government Code section 6111
provides, ‘On and after July 1, 2021, the unpaid balance of any court-imposed costs
pursuant to [Government Code] [s]ection 27712, subdivision (c) or (f) of [Government
Code] [s]ection 29550, and [Government Code] [s]ections 29550.1, 29550.2, and
8
Section 1465.9 originally provided: “(a) On and after July 1, 2021, the balance
of any court-imposed costs pursuant to [s]ection 987.4, subdivision (a) of [s]ection 987.5,
[s]ections 987.8, 1203, 1203.1e, 1203.016, 1203.018, 1203.1b, 1208.2, 1210.15, 3010.8,
4024.2, and 6266, as those sections read on June 30, 2021, shall be unenforceable and
uncollectible and any portion of a judgment imposing those costs shall be vacated. [¶]
(b) This section shall become operative on July 1, 2021.” (Stats. 2020, Ch. 92, § 62.)
29
29550.3, as those sections read on June 30, 2021, is unenforceable and uncollectible and
any portion of a judgment imposing those costs shall be vacated.’ ” (Greeley, at pp. 625–
626.)
Based on this change in the law, we requested supplemental briefing from the
parties on the effect of Government Code section 6111 on the criminal justice
administration fee and section 1465.9 on the probation supervision fee ordered at
Rowland’s sentencing. In his supplemental letter brief, the Attorney General concedes
that both Government Code section 6111 and section 1465.9 apply here and states that
Rowland is no longer responsible for any unpaid balance (as of July 1, 2021) on the
criminal justice administration fee and probation supervision fee. The Attorney General
further contends that, under current section 1465.9, subdivision (a), Rowland is not
entitled to recoup any portion of the probation supervision fee that he may have paid
before July 1, 2021. Rowland agrees with the Attorney General (but notes “that this is
the result only if [his] conviction is otherwise affirmed”).
We agree that Government Code section 6111 and section 1465.9 apply to this
matter, the unpaid balance of the criminal justice administration fee and probation
supervision fee are unenforceable and uncollectible, and the portion of the judgment
imposing those fees must be vacated. (See Greeley, supra, 70 Cal.App.5th at pp. 626–
627; People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 953–954; People v. Pacheco
(2022) 75 Cal.App.5th 207, 214–215.) Thus, we will modify the judgment as required by
the new law and direct the trial court to prepare an amended minute order reflecting the
modification.
III. DISPOSITION
The trial court’s January 7, 2021 order imposing a $129.75 criminal justice
administration fee (former Gov. Code, § 29550 et seq.) and a $50 monthly probation
supervision fee (former Pen. Code, § 1203.1b) is modified to vacate any portion of the
criminal justice administration fee and probation supervision fee that remained unpaid as
30
of July 1, 2021. In all other respects, the judgment is affirmed. The trial court shall
prepare an amended minute order to reflect the vacatur of the criminal justice
administration fee and probation supervision fee.
31
______________________________________
Danner, Acting P.J.
WE CONCUR:
____________________________________
Lie, J.
____________________________________
Wilson, J.
H048799
People v. Rowland
Trial Court: County of Santa Clara
Trial Judge: Hon. Panteha E. Saban
Counsel: Law Offices of Beles & Beles, Robert J. Beles, Paul McCarthy, and
Michah Reyner for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Jeffrey M. Laurence, Senior Assistant Attorney General,
Donna M. Provenzano, Supervising Deputy Attorney General, and
Victoria Ratnikova for Plaintiff and Respondent.
H048799
People v. Rowland