Shirley v. State

330 Ga.App. 424

765 S.E.2d 491

SHIRLEY

v.The STATE.

No. A14A0979.

Court of Appeals of Georgia.

Nov. 21, 2014.

Reconsideration Denied Dec. 16, 2014.

Crawford & Boyle, Eric Charles Crawford, for Appellant.

Richard Carter Armond, Asst. Dist. Atty., Daniel J. Porter, Dist. Atty., for Appellee.

Opinion

RAY, Judge.

After a Gwinnett County grand jury indicted Michael Scott Shirley on 17 counts of sexual exploitation of children (OCGA § 16–12–100 ), he filed a motion to suppress. The trial court denied Shirley's motion, and we granted his interlocutory appeal. Shirley contends that the trial court erred in denying his motion because the warrant affidavit and application were not supported by probable cause and because the information supporting the warrant was stale. For the reasons that follow, we affirm.

Viewing the evidence to uphold the trial court's findings and judgment, Henson v. State, 314 Ga.App. 152, 153, 723 S.E.2d 456 (2012), the record shows that on January 20, 2011, the Federal Bureau of Investigation's Safe Child Task Force (“FBI”) received information from an investigation by German authorities regarding a web site used to distribute child pornography. The German authorities identified several internet protocol (“IP”) addresses, including one from which 150 full—and thumbnail-sized image files had been accessed on July 22, 2009. In response to a federal administrative subpoena, AT & T Internet Services identified the IP address from which the images had been accessed as belonging to Shirley and located at a particular residential address. On February 18, 2011, two police officers, including the one who signed the warrant affidavit, attempted to make contact with Shirley at that address, but received no answer. They left a business card, and later that evening, Shirley left two voicemail messages for one of the officers. On February 21, 2011, Shirley came to the Lawrenceville police department for an interview. He asked that his wife not be interviewed because of her stress level. During the interview, Shirley stated that he did not look at pornography on the internet, and that he had one desktop computer and one laptop that he had purchased for his son.¹ When asked about his knowledge of someone accessing a German website to view child pornography, he invoked his right to remain silent until he could speak with an attorney.

In the search warrant affidavit, the officer listed “Possession Of Child Pornography” pursuant to OCGA § 16–12–100(b)(8) as the offense at issue, described the role of the computer as an instrumentality for obtaining and storing child pornography, and sought a warrant for Shirley's residence, including any computers and electronic devices that could possibly contain child pornography. The magistrate indicated on the face of the warrant that she did not consider the officer's oral testimony in granting the warrant. The warrant was sworn, issued, and executed on February 21, 2011. Shirley filed a motion to suppress, which the trial court denied. This appeal followed.

In State v. Palmer, 285 Ga. 75, 673 S.E.2d 237 (2009), our Supreme Court described the standards applicable to the various levels of judicial scrutiny involved in the warrant process. A magistrate determines if probable cause exists to issue a warrant by making

a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before [her], including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. The trial court may then examine the issue as a first level of review, guided by the Fourth Amendment's strong preference for searches conducted pursuant to a warrant, and the principle that substantial deference must be accorded a magistrate's decision to issue a search warrant based on a finding of probable cause.... Our appellate courts will review the search warrant to determine the existence of probable cause using the totality of the circumstances analysis .... [and] to determine if the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant.... In reviewing the trial court's grant or denial of a motion to suppress, we apply the well-established principles that the trial court's findings as to disputed facts will be upheld unless clearly erroneous and the trial court's application of the law to undisputed facts is subject to de novo review, keeping in mind that a magistrate's decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court.

(Citations and punctuation omitted.) Id. at 77–78, 673 S.E.2d 237. Applying this standard, we move to Shirley's arguments in support of his enumerations of error.

1. Shirley asserts that the trial court erred in denying his motion to suppress because the police officer's affidavit and application were legally insufficient to establish probable cause to show that the images in question were illegal child pornography. Specifically, Shirley argues that the magistrate relied on the officer's conclusion that the images showed child pornography without using independent facts to evaluate that conclusion. He contends that the affidavit did not describe the images and that there is no indication whether the officer viewed the images.²

Georgia has so far not directly addressed the issue of what type of information provides a substantial basis for granting a warrant in the context of child pornography. Thus, we turn to persuasive authority in our circuit and in other jurisdictions for guidance. First, we find no requirement in our state law or in our circuit that a judge who reviews a search warrant application must actually view the images that allegedly show child pornography.³ See United States v. Smith, 459 F.3d 1276, 1291(III) (B), n. 15 (11th Cir.2006) (“While it may have been prudent for the magistrate judge to view the photos [of alleged child pornography] independently, we cannot say that, as a matter of law, the court must view the evidence to determine whether probable cause existed.”)

Second, although ideally an affidavit would, inter alia, describe the images, other circuits have held that an affidavit using the generalized description “child pornography” may offer “sufficient indicia of probable cause to issue a warrant ... in that the meaning of the term ‘child pornography’ and its illegality were sufficiently conveyed so that the judge understood what type of evidence was required.” United States v. Simpson, 152 F.3d 1241, 1246–1247(II) (A) (10th Cir.1998) (emphasis in original) (finding probable cause where affiant gave judge no copies of unlawful materials and did not describe materials in detail). This is so because the words ‘child pornography’ “need no expert training or experience to clarify their meaning.” (Citation, punctuation and emphasis omitted.) United States v. Layne, 43 F.3d 127, 133 (5th Cir.1995) (warrants seeking “ assorted pornographic videotapes; assorted pornographic magazines; assorted devices” and “[c]hild pornography; records of victims; drawings; pictures; computer disks; sexual devices; videotapes; child abuse books; magazines; audiotapes; and any other obscene or child pornographic material” found sufficient to limit officers' discretion). Id. at 132–133. Accord United States v. Hurt, 808 F.2d 707, 708 (9th Cir.1987), cert. denied, Hurt v. United States, 484 U.S. 816, 108 S.Ct. 69, 98 L.Ed.2d 33 (1987) (warrant commanding officers to search for material showing minors “engaged in sexually explicit activity” found sufficient). Further, “[t]he term[ ] ‘child pornography’ ... [is] not so uncertain as to make the warrant defective[.] ... The Constitution requires no greater precision.” (Citations omitted.) United States v. Koelling, 992 F.2d 817, 822(II) (A) (8th Cir.1993). See also United States v. Grant,

434 F.Supp.2d 735, 746–747(III) (D.Neb.2006), affirmed United States v. Grant, 490 F.3d 627, 631–633 (8th Cir.2007) (computer repairman's statement that he saw child pornography on computer he was fixing was sufficient to establish probable cause).

As Shirley points out, other circuits have taken a different approach. Compare United States v. Pavulak, 700 F.3d 651, 657 (I)(A), 660–665(II) (3d Cir.2012) (finding the words “child pornography” inadequate to support probable cause, but declining to suppress the information because officers relied on the warrant in good faith); United States v. Brunette, 256 F.3d 14, 17–18 (A) ( 1st Cir.2001) (requiring either that a magistrate view the images or receive a detailed factual description).

We, however, are persuaded by the reasoning of the Fifth, Eighth, Ninth, Tenth, and Eleventh Circuits as outlined above. “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 to be accorded to warrants.” (Citation omitted.) Palmer, supra at 77–78, 673 S.E.2d 237. The affidavit was supported by probable cause.

Finally, it is well settled that an officer may rely on hearsay information in his affidavit.

Hearsay and even hearsay upon hearsay may be sufficient to furnish the basis for the issuance of a valid warrant if the magistrate is informed of some of the underlying circumstances supporting the affiant's underlying conclusions and his belief that the informant was credible or his information reliable. There must be a substantial basis for crediting such hearsay.

(Citation and punctuation omitted.) Cochran v. State, 281 Ga. 4, 5–6, 635 S.E.2d 701 (2006). Here, the magistrate was informed of the circumstances supporting the officer's conclusions. The affidavit states that the officer relied on information from the FBI, which had received a tip from German authorities about images accessed...