Hughes (Aaron) v. State

 probability that contraband or evidence of [the] crime will be found in a
particular place," Illinois v. Gates, 462 U.S. 213, 238 (1983). When
reviewing a magistrate's probable cause determination, "[Wm reviewing
court is not to conduct a de novo probable cause determination but instead
is merely to decide whether the evidence viewed as a whole provided a
substantial basis for the magistrate's finding." Keesee v. State, 110 Nev.
997, 1002, 879 P.2d 63, 67 (1994). When reviewing a district court's
ultimate decision regarding a motion to suppress, this court reviews
findings of fact for clear error, but the legal consequences of those facts de
novo. State v. Beckman, 129 Nev. „ 305 P.3d 912, 916 (2013).
We conclude that Hughes' argument lacks merit. The warrant
and accompanying affidavit aver that a witness found a letter containing
sexual and romantic language in Hughes' home. It appeared to be from
Hughes' daughter to Hughes. The witness also provided several emails
between Hughes and his daughter that contained language indicative of a
romantic relationship. Similar language was found in emails between
Hughes and his daughter on Hughes' computer at his former place of
employment. These facts support the court's probable cause
determination that further documents and emails proving this
relationship might be found in Hughes' residence, see United States v.
Terry, 522 F.3d 645, 648-49 (6th Cir. 2008) (it is reasonable to infer that a
suspect used a computer in his home to send messages over the internet),
as well as DNA evidence indicating a sexual relationship.
However, the affidavit in support of the warrant does not set
forth sufficient facts to conclude that there is a fair probability that
Hughes' home contained incriminating photographs or videos. See Gates,
462 U.S. at 238. The evidence demonstrated a reasonable probability that
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Hughes may be engaged in a sexual relationship with his daughter, but
contained no evidence any relationship had been memorialized in a visual
depiction. The affiant's opinion that "perpetrators of this type of crime
often take photographs of their physical encounters with their victims," in
and of itself, was insufficient to establish probable cause to search for
photographs or videos. See Dougherty v. City of Covina, 654 F.3d 892, 897-
99 (9th Cir. 2011) (concluding that allegation of molestation and
professional opinion of affiant is not sufficient to establish probable cause
to search for child pornography). However, the precedent addressing
whether an allegation of child molestation establishes probable cause to
search for child pornography was ambiguous at the time the warrant was
served in 2008. United States v. Needham, 718 F.3d 1190, 1195-96 (9th
Cir. 2013). Therefore, we conclude that the officer's good faith reliance on
the warrant was reasonable under the circumstances and does not support
exclusion of the evidence. See United States v. Leon, 468 U.S. 897, 922
(1984) ("[A] warrant issued by a magistrate normally suffices to establish'
that a law enforcement officer has 'acted in good faith in conducting the
search." (quoting United States v. Ross, 456 U.S. 798, 823 n.32 (1982))).
Having considered Hughes' contention and concluded that it
lacks merit, we
ORDER the judgment of conviction AFFIRMED.
s
r J.
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Parraguirre Saitta
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cc: Hon. Nancy L. Porter, District Judge
Law Office of Tammy M. Riggs, PLLC
Attorney General/Carson City
Elko County District Attorney
Elko County Clerk
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