State v. McNutt

303 Or.App. 142

463 P.3d 563

STATE of Oregon, Plaintiff-Appellant,

v.Scott Michael MCNUTT II, Defendant-Respondent.

A167963

Court of Appeals of Oregon.

Argued and submitted October 30, 2019.

March 18, 2020

Christopher A. Perdue, Assistant Attorney General, argued the cause for appellant. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Adam L. Dean, Portland, argued the cause and filed the brief for respondent.

Before DeHoog, Presiding Judge, and Mooney, Judge, and Kistler, Senior Judge.

KISTLER, S. J.

The state appeals from a pretrial order granting defendant's motion to suppress evidence obtained pursuant to a search warrant. The trial court ruled that the affidavit filed in support of the warrant did not establish probable cause that the files on defendant's computer contained child pornography. We reverse the trial court's order.

We take the facts from the affidavit filed in support of the warrant. BitTorrent is a peer-to-peer (P2P) file-sharing network that allows persons to share pictures and videos over the internet. "P2P file sharing networks, including the BitTorrent network, are frequently used to trade digital files of child pornography." A BitTorrent user will begin the process of sharing files by creating a "torrent." The torrent does not contain the file being shared; rather, it typically contains a name or description of the file and identifies computers in the BitTorrent network where the file may be found.¹

A person looking for a particular subject on the BitTorrent network can conduct a keyword search to find torrents that describe files of potential interest. The affiant explained:

"For example, a person interested in obtaining child pornographic images on the BitTorrent network would open the BitTorrent client application on his/her computer and conduct a keyword search for files using a term such as ‘preteen sex.’ *** The results of the torrent search are typically returned to the user's computer by displaying them on the torrent hosting website. The hosting website will typically display information about the torrent, which can include the name of the torrent file, the name of the file(s) referenced in the torrent file, the file(s) size, and the ‘info-hash’ SHA-1 value of the torrent file. The user then selects a torrent of interest to download to their computer."

In this case, two Oregon detectives were investigating the BitTorrent network to identify persons sharing child pornography in Oregon. One detective focused on a particular computer located in Oregon "because it was associated with a torrent" that referred to "a file of investigative interest to child pornography investigations." Based on the information contained in the torrent, the detective "directly connected" to the computer and downloaded the following file from that computer: "Cp 9Yo Dad Cum Face Dee And Desi Zadoom Pedo Cumshot 9.mpg."

Two days later, the detective investigated another torrent that "was identified as being a file of investigative interest to child pornography investigations." That torrent was associated with the same computer, and the detective downloaded the following file from that computer: "11yo - girl - Preteen girl just wants to Fuck & Suck (Sound).avi." At approximately the same time, the other detective learned that the computer from which those two files were downloaded was located in defendant's home in Washington County.² During a 30-day period, the detectives downloaded approximately 300 files from a computer in defendant's home.³

The detectives transferred all the downloaded files to Detective Kiurski in the Washington County Sheriff's Office. Kiurski has substantial training and experience in investigating child sex crimes.⁴ He "briefly looked at some of th[e] files [downloaded from the computer in defendant's home] and verified that there were over 300 files downloaded between 1/2/17 and 2/3/17 from the [computer in defendant's home] to [the detectives’ computer] and that those files did contain child pornography."

Based on that and other information, Kiurski concluded that he had

"probable cause to believe that one or more of the occupants residing at [defendant's home between August 2016 and January 25, 2017] used a computer(s), cell phone(s), tablet(s) or mobile electronic device, that more likely than not is located [at defendant's home] to engage in Encouraging Child Sexual Abuse in the First Degree in violation of ORS 163.684 and Encouraging Child Sexual Abuse in the Second Degree in violation of ORS 163.686."

Kiurski requested a warrant authorizing the seizure and search of computers and related electronic devices for evidence of the crimes of first- and second-degree encouraging child sexual abuse. See ORS 163.684 (defining first-degree encouraging child sexual abuse); ORS 163.686 (defining second-degree encouraging child sexual abuse). Having concluded that there was probable cause to seize and search those devices, the magistrate issued the warrant.

Defendant moved to suppress the evidence discovered as a result of executing the warrant. His argument in support of the motion was narrow. He did not challenge any of the facts recited in the affidavit, nor did he dispute that the affidavit established probable cause that all the downloaded files (the two named files and the approximately 300 unnamed files) would be found on a computer in his home and related electronic devices. He did not contend that the warrant was overbroad, nor did he argue that the officers exceeded the scope of the warrant in executing it.⁵ Rather, his argument focused on one issue: He argued that the warrant failed to establish probable cause that any file on his computer contained child pornography.

On that issue, defendant began from the premise that Kiurski's affidavit reduced to a conclusory assertion that some of the files downloaded from a computer in defendant's home contained "child pornography." Defendant contended that, to establish probable cause, the affidavit needed either to attach copies of the downloaded files to the affidavit, describe specifically the contents of the downloaded files, or include more inculpatory circumstances than Kiurski's affidavit had. Defendant reasoned that a conclusory assertion that the files contained child pornography did not provide a sufficient basis for the magistrate to make an independent determination that the files, in fact, depicted children engaged in sexual conduct. The state responded that not only did the affidavit establish that a detective who was experienced in investigating child sex crimes had viewed the files and determined that they contained child pornography, but the attendant circumstances set out in the affidavit corroborated Kiurski's determination. It followed, the state argued, that the magistrate reasonably concluded that the affidavit established probable cause.

After carefully considering the parties’ arguments, the trial court ruled in defendant's favor. It accordingly granted his motion to suppress and entered a pretrial order suppressing the evidence discovered as a result of the warrant. The state appeals from that order.

On appeal, the parties reiterate the positions they asserted below. Additionally, defendant argues that the trial court's ruling may be affirmed on an alternative ground. He argues for the first time on appeal that, even if the affidavit was sufficient to establish probable cause, the warrant did not comply with State v. Mansor , 363 Or. 185, 421 P.3d 323 (2018). We begin with the predicate question whether the warrant established probable cause that the files on a computer in defendant's home contained child pornography.

In doing so, we analyze that question initially under Article I, section 9, of the Oregon Constitution and then turn to the Fourth Amendment to the United States Constitution.

I. PROBABLE CAUSE

A. Article I, Section 9

As noted above, defendant does not controvert or otherwise challenge any of the facts set out in the affidavit. We accordingly accept those facts as true, as well as any inferences that the magistrate reasonably could have drawn from them. See State v. Webber , 281 Or. App. 342, 347 & n. 7, 383 P.3d 951 (2016) (stating the standard of review). The question accordingly becomes a legal one: Did the facts in the affidavit and all reasonable inferences that can be drawn from those facts establish probable cause that a computer in defendant's home contained "visual recording[s] of sexually explicit conduct involving a child."⁶ See ORS 163.684 (prohibiting producing or distributing visual recordings of sexually explicit conduct involving a child or possessing that material with the intent to distribute it); ORS 163.686 (prohibiting possessing or acquiring visual recordings of sexually explicit conduct involving a child); State v. Bray , 342 Or. 711, 717-18, 160 P.3d 983 (2007) (discussing the crime of first-degree encouraging child sexual abuse).

In answering that question, we use the phrase "child pornography" in this opinion as a shorthand way of describing the material that ORS 163.684 and ORS 163.686 prohibit—namely, visual recordings of sexually explicit conduct involving a child. Additionally, in determining whether Kiurski's affidavit established probable cause that the files on defendant's computer contained child pornography, we are mindful that "[t]he standard is one of probability, not certainty," and that "the facts articulated in support of probable cause must be assessed in a commonsense and realistic fashion." State v. Foster , 350 Or. 161, 169, 252 P.3d 292 (2011).

With those considerations in mind, we turn to three sets of facts set out in the affidavit that, we conclude, collectively establish probable cause that the files on a computer in defendant's home contained child pornography: (1) the two named files that were downloaded from a computer in defendant's home; (2) an experienced detective's assessment after viewing some of the...