The U.S. Ninth Circuit Court of Appeals recently ruled that probable cause does exist to search the home computer of a subscriber to a website that features child pornography.

Micah Gourde, a subscriber to Lolitagurls.com, was charged with violating 18 U.S.C. §§ 2252 and 2252A, which criminalize the possession, receipt and transmission of child pornography.  Gourde appealed a district court’s denial of a motion to suppress more than 100 images of child pornography seized from his home computer.   He claimed that the affidavit in support of the search lacked probable cause because it did not contain any evidence that he actually downloaded or possessed pornography.  The Ninth Circuit disagreed, basing its opinion on Supreme Court precedent that requires “‘fair probability,’ not certainty or even a preponderance of the evidence.”  Judge McKeown, for the Court,  held that it “neither strains logic nor defies common sense to conclude, based on the totality of these circumstances, that someone who paid for access for two months to a website that actually purveyed child pornography probably had viewed or downloaded such images onto his computer.”  Furthermore, the court cited the findings of FBI computer experts showing that any evidence of a crime was “almost certainly still on his computer, even if he had tried to delete the images” because of the long memory of computers.

Both the majority of the Court and the dissenting judges acknowledged that the digital universe poses unique challenges with respect to the Fourth Amendment.  However, the majority affirmed that “the results in this case, which hew[] to Supreme Court precedent, [are] hardly a step down the path of laxity and into the arms of Big Brother.”

 The case is US v. Gourde, __ F.3d ___, 2006 US App. Lexis 5890, Case No. 03-30262 (9th Cir 2006).