McKEOWN, Circuit Judge:
Searches of electronic records pose unique challenges for "striking the right balance between the government's interest in law enforcement and the right of individuals to be free from unreasonable searches and seizures." United States v. Comprehensive Drug Testing, Inc. ("CDT III"), 621 F.3d 1162, 1177 (9th Cir.2010) (en banc) (per curiam). This is a recurring theme in our decisions. See, e.g., United States v. Cotterman, 709 F.3d 952, 957 (9th Cir.2013) (en banc) (highlighting "individual privacy interests in data on portable digital devices" as one basis for requiring the government to have reasonable suspicion for the forensic examination of a laptop). Because electronic devices could contain vast quantities of intermingled information, raising the risks inherent in over-seizing data, CDT III, 621 F.3d at 1177, law enforcement and judicial officers must be especially cognizant of privacy risks when drafting and executing search warrants for electronic evidence. We addressed this issue in CDT III, where we considered "the reality that over-seizing is an inherent part of the electronic search process," and held that this "reality" called for judicial officers to exercise "greater vigilance" in protecting against the danger that the process of identifying seizable electronic evidence could become a vehicle for the government to gain access to a larger pool of data that it has no probable cause to collect. Id. CDT III amended an earlier pending en banc decision that was issued a year before in 2009. United States v. Comprehensive Drug Testing, Inc. ("CDT II"), 579 F.3d 989 (9th Cir. 2009) (en banc) (revised and superseded by CDT III). Our case, involving a search
We now consider the implications of CDT III for Joseph Schesso, at whose residence law enforcement officers found 3,400 electronic images and 632 electronic videos of commercial child pornography pursuant to a warrant authorizing an electronic search of all of Schesso's computer equipment and digital storage devices. Because there was a fair probability that evidence of child pornography would be found on Schesso's computer system, the underlying facts supported a finding of probable cause. The warrant was not overbroad and did not raise the risks inherent in over-seizing that we considered in CDT III. The absence of precautionary search protocols, suggested as guidance in the plurality's concurring opinion in CDT III, was not fatal here. We therefore reverse the district court's grant of the motion to suppress.
In the fall of 2008, German authorities conducted an investigation into the online distribution of child pornography over a decentralized peer-to-peer file-sharing network known as "eDonkey." The network allows users to share files over the Internet by connecting directly to each other's computers. The investigation revealed, and later examination confirmed, that during a four-hour period in October 2008, an 18-minute child pornography video was made available for download over eDonkey by someone using an Internet Protocol ("IP") address — a unique, electronic numeric label linked to a specific device — located in the United States. German authorities advised Immigration and Customs Enforcement ("ICE") of this evidence and ICE Special Agent Julie Peay determined that the IP address was assigned to Schesso at his Vancouver, Washington, residence.
Detective Patrick Kennedy and Senior Digital Forensics Investigator Maggi Holbrook of the Vancouver Police Department assumed leadership of the investigation because the state had an independent interest in the crimes under investigation. Detective Kennedy, the case agent, prepared an affidavit supporting a warrant application to search Schesso's residence and seize evidence of violations of Washington statutes prohibiting possession of and dealing in child pornography. The application described the storage capacity of computers, the use of the Internet to distribute child pornography, the operation of peer-to-peer networks, and the known characteristics of child pornography collectors, such as their tendency to conceal sexually explicit images of children from discovery and to retain them indefinitely. The application further explained that due to the volume of evidence, the vulnerability of digital data, and the technical equipment and expertise needed to search digital devices, it would be necessary to remove the devices from the residence and conduct analysis and recovery of data off-site in a controlled laboratory environment.
A Washington state court judge approved the warrant in June 2010. The warrant noted that there was probable cause to search for evidence of dealing in and possession of child pornography, and authorized a search of Schesso's residence for "[a]ny computer or electronic equipment or digital data storage devices that are capable of being used" for those violations. The warrant permitted seized items to be transferred to the Vancouver Police Department Digital Evidence Cybercrime Unit or to any qualified law enforcement digital evidence processing lab for examination, analysis, and recovery of data. The warrant did not contain any protocols for sifting through the data or any provision for the return of non-evidentiary property.
The first search of Schesso's home resulted in the seizure of multiple pieces of electronic media and data storage devices pursuant to the terms of the warrant, including a custom-built computer tower and external storage devices such as camera memory cards. The forensic examination of these devices, conducted by Investigator Holbrook, revealed 3,400 images and 632 videos of commercial child pornography, including the video that German authorities determined had been shared over eDonkey. Analysis of a camera memory card also uncovered six deleted sexually explicit images of a young girl, later identified as Schesso's niece. Schesso's wife identified the couch and blanket depicted in those images as items in her home, and a second state search warrant was obtained to seize the blanket and a fabric sample from the couch. Investigator Holbrook halted her computer examination before completion because sufficient evidence had been found for prosecution and other cases required her attention.
The case was accepted for federal prosecution and Schesso was charged with production, distribution, receipt, and possession of child pornography in violation of 18 U.S.C. §§ 2251 and 2252A.
The district court initially granted the suppression motion as to all evidence seized pursuant to the two searches, but not as to Schesso's inculpatory statements. Schesso was unsuccessful in his arguments that the warrant was invalid due to staleness and that the government had acted in bad faith by seeking the warrant from a state judge rather than a federal judge. Nevertheless, the district court concluded that the affidavit failed to connect generalized statements about child pornography collectors to Schesso, thus rendering the warrant facially deficient and the good faith exception inapplicable.
The district court later issued a supplemental memorandum opinion that granted the suppression motion as to all evidence seized during both searches and as to Schesso's inculpatory statements. Although
The government now appeals the district court's suppression ruling. Schesso's trial is stayed pending this interlocutory appeal. We review de novo the district court's grant of a motion to suppress and its application of the good faith exception to the exclusionary rule. United States v. Maddox, 614 F.3d 1046, 1048 (9th Cir.2010); United States v. Crews, 502 F.3d 1130, 1135 (9th Cir.2007). We review for clear error whether the state court judge issuing the warrant had a substantial basis for concluding that probable cause existed and give "great deference" to such a finding. United States v. Hay, 231 F.3d 630, 634 n. 4 (9th Cir.2000) (citation omitted).
We disagree with the district court's conclusion that the warrant was facially overbroad and thus not supported by probable cause. In a somewhat unusual posture, the defense essentially conceded probable cause for the seizure, arguing that "the overriding problem was not the initial seizure of Mr. Schesso's devices, but the lack of any guidance or limits in the warrant for subsequently searching the intermingled data that was on them." Our review of the record reveals that the facts cited in the affidavit, combined with reasonable inferences drawn from those facts, provided probable cause to search Schesso's entire computer system and his digital storage devices for any evidence of possession of or dealing in child pornography.
There is no question that there was probable cause to believe that Schesso possessed the particular child pornography video uploaded to eDonkey in October 2008. Given the circumstances of that upload and the information supplied in the warrant application, the state court judge permissibly drew the "reasonable inference" that there was probable cause to believe Schesso had other child pornography materials as well. Illinois v. Gates, 462 U.S. 213, 240, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
Schesso did not merely possess a commercial child pornography video, which might have resulted from a onetime accidental download or inadvertent receipt. Key to the probable cause analysis is the evidence that Schesso took the affirmative step of uploading and distributing the video on a network designed for sharing and trading.
The judge issuing the warrant thus made the "practical, common-sense decision" that "given all the circumstances set forth in the affidavit before him ... there [was] a fair probability that contraband or evidence" of child pornography would be found on Schesso's computer and other digital storage equipment. Id. at 238, 103 S.Ct. 2317. This determination is in line with our precedent. See, e.g., United States v. Gourde, 440 F.3d 1065, 1069-71 (9th Cir.2006) (en banc) (emphasizing that probable cause means "fair probability," not certainty or even a preponderance of the evidence, and concluding that it was reasonable to infer that there was a fair probability that defendant "received or downloaded" child pornography images based on defendant's paid subscription to a child pornography website); United States v. Kelley, 482 F.3d 1047, 1053 (9th Cir. 2007) (concluding that it was reasonable to infer that defendant "was part of a network of persons interested in child pornography" and permissible to search defendant's computer based on evidence that defendant had received nine emails with attachments "containing the same type of illicit child pornography" that was found on the computers of two individuals who collected or distributed child pornography); United States v. Lacy, 119 F.3d 742, 745 (9th Cir.1997) (implying that it was reasonable to infer that defendant had the characteristics of a "collector[] of child pornography" based on evidence in the affidavit that defendant had downloaded at least two computerized visual depictions of child pornography).
Because there was a fair probability that the eDonkey video as well as other evidence of possession of and dealing in child pornography would be found on Schesso's digital equipment, the warrant was not overbroad. The government was faced with the challenge of searching for digital data that was not limited to a specific, known file or set of files. The government had no way of knowing which or how many illicit files there might be or where they might be stored, or of describing the items to be seized in a more precise manner. United States v. Adjani, 452 F.3d 1140, 1147-48 (9th Cir.2006) ("Warrants which describe generic categories of items are not necessarily invalid if a more precise description of the items subject to seizure is not possible.") (citation omitted). These factors, along with the detailed explanation of the need for off-site analysis and recovery, justify the seizure and subsequent off-premises search of Schesso's entire computer system and associated digital storage devices.
We have repeatedly found equally broad searches constitutional on similar or less evidence. See, e.g., United States v. Krupa, 658 F.3d 1174, 1178 (9th Cir.2011) (holding valid a search of fifteen computers at a residence based on evidence of one contraband image and a report of child neglect); United States v. Brobst, 558 F.3d 982, 993-94 (9th Cir.2009) (holding valid a warrant authorizing the search and seizure of photographs, computers, compact disks, floppy disks, hard drives, memory cards, printers, other portable digital devices, DVDs, and video tapes based on a witness's observation of one illicit photograph in defendant's home); Lacy, 119 F.3d at 746 (9th Cir.1997) (holding valid a warrant authorizing the "blanket seizure" of Lacy's
We are not convinced by Schesso's additional argument that there was no probable cause to seize the camera memory cards simply because Schesso was not suspected of producing child pornography. Camera memory cards have data storage functionality like any external digital storage device, and Schesso's custom-built computer tower had a port connecting directly to camera memory cards, allowing him to read, write, or import data between devices. At the time of the search, a camera was connected to one of the computers. The officers reasonably concluded that the camera memory cards were covered by the warrant as "digital data storage devices ... capable of being used to commit or further" the crimes of possession of and dealing in child pornography.
Nor are we persuaded that the information supporting the warrant application was stale. Information underlying a warrant is not stale "if there is sufficient basis to believe, based on a continuing pattern or other good reasons, that the items to be seized are still on the premises." Lacy, 119 F.3d at 745-46 (internal quotation marks and citation omitted). Such good reasons existed here: Detective Kennedy's affidavit explained that individuals who possess, distribute, or trade in child pornography "rarely, if ever, dispose of sexually explicit images of children" because these images are treated as "prized possessions." In light of the "nature of the criminal activity and property sought" and the reasonable inference that Schesso fit the profile of a collector, the state court judge had ample reason to believe that the eDonkey video or other digital child pornography files would be present at Schesso's residence a mere 20 months after the eDonkey incident. Id. at 745 (citation omitted); see also United States v. Allen, 625 F.3d 830, 842-43 (5th Cir.2010) (holding that an 18-month delay between when defendant sent child pornography images through a peer-to-peer networking site and issuance of a search warrant did not render the information stale); United States v. Morales-Aldahondo, 524 F.3d 115, 117-19 (1st Cir.2008) (concluding that the passage of over three years since the acquisition of information that defendant's brother, who shared defendant's residence, had purchased access to various child pornography websites, did not render that information stale).
Given these circumstances and the details contained in the affidavit, the state court judge had a substantial basis for and did not commit clear error in determining that there was probable cause for the warrant. We defer to that judgment.
The question we consider next is whether the electronic data search guidelines laid out in the CDT cases affect the outcome here. After considering constitutional requirements, the temporal sequence of the cases, and the advisory nature of the guidelines, we conclude that the absence of these protocols in Schesso's warrant neither violates the Fourth Amendment nor is inconsistent with CDT III or its predecessor case, Tamura. Schesso's scenario did not implicate the real concern animating the court in CDT III and Tamura: preventing the government from overseizing data and then using the process of identifying and segregating seizable electronic data "to bring constitutionally protected data into ... plain view." CDT III, 621 F.3d at 1171 (per curiam opinion).
In Tamura, the government had probable cause to seize three categories of paper records. To avoid the time-consuming
In CDT III, we reiterated the concerns expressed in Tamura in the context of electronic data. A short procedural history of CDT III is in order. During the time government agents were investigating Schesso, our court issued its original en banc decision, now known as CDT II, in a case involving steroid use by professional baseball players. The government had probable cause to seize the electronic drug testing records of ten baseball players from an independent company administering the drug testing program. CDT III, 621 F.3d at 1166. But the government requested authorization to seize considerably more data beyond that of the ten players for off-site segregation and examination. Id. at 1168. The magistrate judge granted the request subject to the government's following certain procedural safeguards "designed to ensure that data beyond the scope of the warrant would not fall into the hands of the investigating agents" — including that "law enforcement personnel trained in searching and seizing computer data," rather than investigating case agents, conduct the initial review and segregation of data. Id. at 1168-69.
Once the electronic data was seized, however, the government ignored the required protocols. Alongside the computer specialist, the investigating case agent reviewed the drug testing results of hundreds of professional athletes for whom probable cause had not been shown, and used what he learned to obtain subsequent search warrants based on the government's contention that the evidence was in "plain view." Id. at 1170-72. Referencing the district court's binding order that the government intentionally disregarded the warrant's procedural safeguards, we affirmed the district court's grant of the motion to return the records of all but the ten identified baseball players who had been suspected of criminal activity.
After CDT II, magistrate judges in the Western District of Washington took steps to implement the protocol, requiring the protocol for all warrants authorizing searches of electronically stored information. Because the government disagreed with this approach, ICE directed its agents not to agree to a waiver of plain view, for example, and adopted a practice of submitting its warrant applications to state judges rather than through the federal system.
Schesso's situation is unlike CDT III and Tamura in that the government properly executed the warrant, seizing only the devices covered by the warrant and for which it had shown probable cause. Based on the evidence that Schesso possessed and distributed a child pornography video on a peer-to-peer file-sharing network, law enforcement agents had probable cause to believe that Schesso was a child pornography collector and thus to search Schesso's computer system for any evidence of possession of or dealing in child pornography. In other words, Schesso's entire computer system and all his digital storage devices were suspect.
Tellingly, the search did not involve an over-seizure of data that could expose sensitive information about other individuals not implicated in any criminal activity — a key concern in both the per curiam and concurring opinions of CDT III
Although we conclude that the exercise of "greater vigilance" did not require invoking the CDT III search protocols in Schesso's case, judges may consider such protocols or a variation on those protocols as appropriate in electronic searches. We also note that Rule 41 of the Federal Rules of Criminal Procedure sets forth guidance for officers seeking electronically stored information.
Even if the warrant were deficient, the officers' reliance on it was objectively reasonable and the "good faith" exception to the exclusionary rule applies. United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) ("[T]he marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion."). The state court judge was not misled by information in the affidavit, he did not wholly abandon his judicial role, and the affidavit certainly was not "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Id. at 923, 104 S.Ct. 3405 (quoting Brown v. Illinois, 422 U.S. 590, 611, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (Powell, J., concurring in part)).
The rationale leading us to defer to the state court judge's determination of probable cause applies with even greater force to the question whether the officers' reliance on the warrant was objectively reasonable. The affidavit included sufficient evidence connecting Schesso to the profile of a child pornography collector to justify the officers' reliance on the warrant. We have previously upheld comparably broad warrants based on similar evidence. See, e.g., Krupa, 658 F.3d at 1178; Brobst, 558 F.3d at 993-94.
Our analysis is not affected by the officers' decision to seek a warrant from a Washington state court rather than the Western District of Washington. We recognize that the choice of forum was influenced by the Western District of Washington's policy at the time of requiring the search protocols outlined in CDT II. But evidence should be suppressed