The 9th U.S. Circuit Court of Appeals said Thursday that a U.S. District Court erred in refusing to suppress evidence seized from appellant Micah Gourde’s computer as an FBI affidavit failed to link his membership to a mixed child and adult porn website and his possession of child porn.
Gourde, of Castle Rock, Wash., had been charged with one count of possession of visual depictions of minors engaged in sexually explicit conduct.
He admitted to possessing more than 100 images of child pornography on his home computer; however, Gourde conditioned his guilty plea on his right to appeal the district court’s denial of his motion to suppress the images seized from his computer.
Thursday’s decision ruled for Gourde, who contended that the FBI acted “objectively unreasonable in relying on the allegedly unlawful warrant.”
The FBI built its case based on an investigation of Lolitagurls.com.
Acting in an undercover capacity, an FBI agent discovered Lolitagurls.com, which described itself on its homepage as site that offered “hard to find pics! With weekly updates and high quality pics inside, you cant go wrong if you like young girls!”
Lolitagurls.com was touted as having “over one thousand pictures of girls ages 12-17!”
The site, costing $19.95 a month, contained adult pornography, child porn and child erotica, according to an FBI affidavit, which noted that some of the images the agent downloaded depicted sexually explicit poses of naked young girls.
Subsequently the owner of the site, Keith Fields of Hiawatha, Iowa, provided information through a federal grand jury subpoena on members of Lolitagurls.com after his arrest.
Among the records obtained, the FBI discovered information regarding Gourde and his email address, gilbert_95@yahoo.com.
Gourde had, according to FBI records, been a member of Lolitagurls.com from November 2001 through January 2002.
But in Thursday’s ruling, the court found that the FBI did not corroborate evidence linking his membership to the site and Gourde’s probable possession of child pornography.
“[T]he officers had ample opportunity to analyze the server seized from the owner of Lolitagurls.com,” Judge Melvin Brunetti wrote for the majority in the opinion. “Because the officers failed … to present other target-specific corroborating information linking Gourde’s two-month membership to a mixed child pornography/adult pornography website to his probable possession of child pornography, they acted objectively unreasonably in applying for and executing the warrant at issue.”
However, Judge Ronald M. Gould, who concurred in the 3-0 panel decision, noted that the legal system impedes legitimate law enforcement efforts to cut off the demand and thereby affect the supply of child pornography.
“We do a disservice to one of the most vulnerable segments of our society,” Gould wrote. “It is too bad that the 9th Circuit’s prior precedents on searches for child pornography impose a more rigorous test for probable cause than that called for by common sense and common experience.”
“It would be better if we rethought and reformulated the requirements of our [federal appellate] law,” Gould said.
The case is United States vs. Michah J. Gourde, No. 03-30262
