                                                                           FILED
                                                                OOUPT OF APPEALS
                                                                      DI    6S1O34 11

                                                               2013 APR -2 AM 8:

                                                                STATE OF'AS1-
                                                                      INGTON
                                                                         I
                                                                 BY
                                                                                TY --




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION II

STATE OF WASHINGTON,                                            No. 42521 1 II
                                                                          - -


                             Respondent,

       v.



JAMES MICHAEL       BEEBE,                                 UNPUBLISHED OPINION


                             Appellant.



       JOHANSON, A. .
                 J.
                  C            James Michael Beebe appeals his stipulated facts bench trial
                                —


conviction for one count of possession of depictions of a minor engaged in sexually explicit

conduct. He argues the trial court erred when it denied his motion to suppress evidence gathered

as a result of a search warrant. He contends that (1)probable cause did not support the search

warrant and the information in the statement of probable cause was stale; and (2)the search

warrant lacked particularity and was overbroad, encompassing materials that are protected by the
First Amendment.     Because probable cause supported the search warrant, the supporting

information was not stale, and any potential lack of particularity or overbroadness can be cured

by severing portions of the search warrant, we   affirm.
No. 42521 1 II
          - -



                                              FACTS


                                          I. INVESTIGATION


        In October 2007, the federal Innocent Images Unit (IIU) obtained a spreadsheet

containing information about transactions individuals in the United States had engaged in with

iWest, a payment website that processed payment for subscription websites known to contain
child   pornography. The spreadsheet. showed that between July 23 and August 29, 2007,

someone using Beebe's name, Comcast e mail address, phone number, and physical address had
                                      -

paid $ 95 to $99. 5 to subscribe to three websites: All 18 Lolitas, Extreme Material, and
      79.       9
Pedoland Kidz Porn. In response to a subpoena, Comcast verified that the Comcast subscriber e-
         -

mail address was Beebe's and that the address they had for Beebe matched the physical address

reported in the spreadsheet.

         An undercover agent had purchased access to, visited the Extreme Material website, and
                                  child
                               of "                       Clerk's   Papers ( CP) at   61.   The agent
viewed several    depictions              pornography."

conducted a screen capture of some of the images.' Washington State Patrol Detective Kim

Holmes reviewed those images and believed them to " epict minors engaged in sexually explicit
                                                  d

conduct."CP at 61. In March 2009, Detective Holmes verified that Beebe was still listed as the

Comcast subscriber at the address given in the IIU spreadsheet.




1 The IIU and United States Immigration and Customs Enforcement (ICE), part of a joint
                                                                            as
initiative, were conducting a covert investigation in which they attempted to gain access to
commercial websites purporting to offer child pornography.



                                                  2
No. 42521 1 II
          - -



                                      II. SEARCH WARRANT


       On April 22, 2009, Detective Holmes applied for a search warrant authorizing a search of

Beebe's home. In her affidavit, she stated:

       As a result of my training and experience, and based upon my conversations with
       other experienced law enforcement officers with whom I am associated, I know
       that individuals involved with trading and collecting child pornography are need
       driven, and their behavior is predictable and long term. The images collected by
       these individuals are of significant value to them. The collection is protected and
       safeguarded at any cost, and will only be discarded in extreme situations of being
       exposed or detected.

CP at 26. She also stated:


       Persons involved in sending or receiving child pornography tend to retain it for
       long periods of time. They collect books, magazines, newspapers and other
       writings on the subject of sexual activities involving children. They maintain
       ledgers, carry books and or other writings that contains [ sic] identities of the
                                /
       person(
             s)who     are   involved in similar acts. Their behavior is need driven and
       these individuals prize the images obtained[,]
                                                    traded and or sold. In addition to
                                                               /
       their "
             emotional" value, the images are valuable as trading selling material and,
                                                                  /
       therefore, are rarely destroyed or deleted by the individual collected....

               Furthermore, in my experience and from my conversations with computer
       forensic examiners, computer evidence can remain stored on computers for
       extended periods of time. Even when computer evidence is deleted it may still be
       recovered from computer hard drives, floppy disks, or other computer information
       storage devices.

CP at 28 29.
         -


       Detective Holmes also described the IIU ICE investigation of commercial websites
                                                /

offering child pornography through the "payment website"iWest. CP at 30. She stated that the

investigation established that iWest processed payments for more than 200 child pornography

websites and that iWest did not "appear to exist outside of these child pornography websites."

CP at 30. She also set out the information that the IIU investigators had provided as described




                                                3
No.42521 1 II
         - -




above, including that the information indicated that Beebe had attempted to "
                                                                            subscribe to several

websites, to include Extreme Material, by utilizing the iWest payment webpage." CP at 30.

Detective Holmes concluded that there was probable cause to believe that records about the

distribution of depictions of minors engaged in sexually explicit conduct were maintained in

Beebe's private electronic mail, computer files, computer storage facilities, or other data storage

facilities.


         The    court   issued   a   search warrant   for   Beebe's   residence.     The   search   warrant


encompassed Beebe's computer and.computer devices, storage materials, and peripheral devices;

documents that could be "indicators of occupancy" or show the location of other storage

facilities; business records; and electronic communications.              CP   at    65.   In addition, it

encompassed photography equipment and related media storage, and

           a]y photographs, pictures,
            n                                albums    of    photographs, books,       newspapers,
         magazines, and other writings on the subject of sexual activities involving
         children, pictures and /or drawings depicting children under the age of eighteen
         years who may be victims of the aforementioned offenses, and photographs
         and or pictures depicting minors under the age of eighteen years engaged in
             /
           sexually explicit conduct as defined in RCW 9. ).
                                                       011( 8A.
                                                          3
                                                          6

CP at 66.


           On April 23, 2009, officers searched Beebe's house and seized his computer. A forensic
computer examination located a video and three images depicting minors engaging in sexually

explicit    conduct.    The State charged Beebe by first amended information with one count of




2
    The record does not state whether officers seized any other items     during    this search.
No. 42521 1 II
          - -




possession of depictions of a minor engaged in sexually explicit conduct, occurring between
July 23, 2007 and April 23, 2009.

                              111. SUPPRESSION MOTION AND BENCH TRIAL


         Beebe moved to suppress the evidence found                  during   the   April 23, 2009   search.   He


argued that ( 1) the search warrant lacked particularity and was overbroad because it

encompassed constitutionally protected materials; and (2)the affidavit supporting the search

warrant    was    stale and failed to establish        probable   cause   for the search.    At the suppression

hearing, Beebe specifically challenged -the portion of the search warrant allowing seizure of

photographs, pictures, albums,"and "books, newspapers, magazines, and writings,"and the

like, as lacking " articularity."Verbatim Report of Proceedings (Oct. 11, 2010)at 8 9. The trial
                 p                                                                  -

court denied the motion to suppress.

          After we denied discretionary review of the trial court's order denying Beebe's

suppression motion, the parties agreed            to   a
                                                           stipulated facts   bench trial.   The stipulated facts

summarized the investigation that resulted in finding four computer files depicting minors

engaged    in    sexually explicit conduct   on   Beebe's computer.           The stipulation indicated that "a

majority" of these files "were accessed by the user on April 20, 2009 in the evening, three days


3
    Former RCW 9.
               070 2006).
                68A. (
4
  Beebe assigns error to the trial court's written findings of fact 1. and 1. and written
                                                                      2        3
conclusions of law 2.
                    3   through 2. . But he does not present any argument related to these
                                  6
assignments of error beyond challenging the probable cause finding and the scope of the search
warrant. Accordingly, we limit our analysis to those arguments. RAP 103(
                                                                    6).,  a)(
5
    See Ruling Denying Review, State v. Beebe, No. 41494 5 II filed Feb. 3,2011).
                                                         - - (



                                                            5
No. 42521 1 II
          - -



prior   to the   computer being seized." CP    at 80.   The stipulation did not mention any other

evidence that had been obtained during the April 23 search. The trial court found Beebe guilty

of possession of depictions of a minor engaged in sexually explicit conduct.

         Beebe appeals.

                                            ANALYSIS


                                 I. PROBABLE CAUSE AND STALENESS


         Beebe first argues that the trial court erred in denying the motion to suppress because

Detective Holmes's affidavit did not establish probable cause that a crime had been committed.

Specifically, he argues that the affidavit did not establish that he had ever "downloaded" any

sexually explicit material or that any evidence would still be in his possession more than a year

and a half after the initial investigation. Br. of Appellant at 10.

                  We generally review the issuance of a search warrant only for abuse of
         discretion. Normally we give great deference to the issuing judge or magistrate.
         However, at the suppression hearing the trial court acts in an appellate like-
         capacity; its review, like ours, is limited to the four corners of the affidavit
         supporting probable cause. Although we defer to the magistrate's determination,
         the trial court's assessment of probable cause is a legal conclusion we review de
         novo.




                A search warrant should be issued only if the application shows probable
         cause that the defendant is involved in criminal activity and that evidence of the
         criminal activity will be found in the place to be searched. The probable cause
         requirement is a fact based determination that represents a compromise between
                               -
         the competing interests of enforcing the law and protecting the individual's right
         to privacy. The affidavit should be evaluated in a commonsense manner, rather
         than hyper -technically. But an affidavit in support of a search warrant must be
         based on more than mere suspicion or personal belief that evidence of a crime will
         be found on the premises searched. Probable cause for a search requires a nexus
         between criminal activity and the item to be seized and between that item and the
         place to be searched.




                                                   G
No. 42521 1 II
          - -




State v. Neth, 165 Wn. d 177, 182 83, 196 P. d 658 (2008)citations omitted). Probable cause
                     2            -        3              (                  "

is established when an affidavit supporting a search warrant provides sufficient facts for a

reasonable person to conclude there is a probability the defendant is involved in the criminal

activity."State v. Vickers, 148 Wn. d 91, 108, 59 P. d 58 (2002)citations omitted).
                                  2                3             (

                 In some situations, the evidence relied upon in support of a warrant
       application may become stale so that probable cause no longer exists. State v.
       Smith, 60 Wn. App. 592, 602, 805 P. d 256[,
                                         2       review denied, 116 Wn. d 1031]
                                                                      2
       1991). As explained in Smith, one factor to consider in assessing whether
       evidence is stale is the number of days intervening between the date on which the
       evidence    was   gathered   and the date   on   which the warrant   was   issued. 60 Wn.
       App. at 602 (citing State v. Higby, 26 Wn. App. 457, 460, 613 P. d 1192 (1980)).
                                                                       2
       The passage of time, however, is "not controlling."Smith, 60 Wn. App. at 602,
       805 P. d 256 (citing Higby, 26 Wn. App. at 460, 613 P. d 1192). Other factors
             2                                                2           "
       to be considered include the nature of the crime, the nature of the criminal, the
       character of the evidence to be seized, and the nature of the place to be
       searched."Smith, 60 Wn. App. at 602, 805 P. d 256 (citing Higby, 26 Wn. App.
                                                 2
        460, 613
       at           P. d
                     2     1192; 2 W. LAFAVE, SEARCH         AND   SEIZURE, § 3. ( 77 (2d ed.
                                                                              a)
                                                                               7 at
       1987)).

State v. Garbaccio, 151 Wri. App. 716, 728, 214 P. d 168 ( 2009) emphasis added),review
                                                 3               (

denied, 168 Wn. d 1027 (2010).
              2

       We hold that Detective Holmes's affidavit provided sufficient probable cause to support

the search warrant and sufficient facts to establish that the evidence sought would likely still be

in Beebe's home despite the delay in obtaining the search warrant. The illegal activity identified

in the affidavit included possession of child pornography. The affidavit established that (1)over

an approximately one month period, someone using Beebe's computer purchased access to three
                     -

websites from a payment website known to service only child pornography websites, and at least

one of these websites contained child pornography; ( )collectors of child pornography value
                                                   2

their materials and tend to retain those materials; and ( )
                                                        3 computer files can remain on computers




                                                        7
No. 42521 1 II
          - -




for extended periods of time, can be transferred to other media or storage devices, or can be

recovered   even   after   they   are   deleted.   Although Beebe is correct that Detective Holmes's

affidavit did not specifically state that Beebe had downloaded files from any website, the fact

that Beebe purchased access to three sites through a payment website that serviced only child

pornography websites and that he made these purchases over a month long period would allow a
                                                                    -

reasonable person to conclude that there was a probability that he had downloaded.files.

Additionally, a reasonable person could conclude, based on the nature of the crime and the

character of the evidence to be seized, that there was a probability that Beebe either retained the

same computer or had transferred his existing files to a new computer and that he still possessed

the actual files or some record of those files. These facts would allow a reasonable person to

conclude that there was a probability that, at the time of the search, ( )Beebe's computer or
                                                                       1

related storage devices contained child pornography, and (2)there was reason to believe those

files may still exist despite the length of time since the original investigation.

       Beebe attempts to distinguish this case from Garbaccio. In Garbaccio, an investigation

disclosed that multiple child pornography computer files from the defendant's computer had

been made publically available on the internet and investigating officers obtained a search
warrant five months after these files were discovered. 151 Wn. App. at 721 22. Division One of
                                                                           -

this court held that ( 1) probable cause supported the warrant because investigators had

established that the publically-
                               available files had come from the defendant's computer; and (2)

the information in the supporting affidavit was not stale because the affidavit established that

collectors of child pornography often retain the contraband" and, even if the actual files were no

longer there, the computer would likely            contain metadata related to the contraband material.
No. 42521 1 II
          - -




Garbaccio, 151 Wn. App. at 729. Beebe asserts that his case is different because there was no

evidence that he had made any files available to the public and there was no evidence that he had

actually   downloaded any files himself.     Although Garbaccio involved significantly stronger

evidence supporting probable cause, Beebe does not show that evidence must rise to that level to

support probable   cause.   As discussed above, we hold that the evidence was sufficient to

establish probable cause and to show that the files would still likely be available.

       Beebe also attempts to distinguish his case from United States v. Lacy, 119 F. d 742 (9th
                                                                                    3

Cir. 1997),
          cent. denied, 523 U. . 1101 (1998),
                             S              essentially asserting that there was no evidence

here that he had downloaded        any   files.   He also asserts that although the Lacy court

acknowledges that computer files may be available for some time after a file has been

downloaded, it did not condone a conclusion that such files would be available indefinitely. As

discussed above, although there may not have been any direct evidence that Beebe had

downloaded files, there were sufficient facts in the affidavit to allow a reasonable person to

conclude that he had done so. Additionally, although the Lacy court stated that it was " nwilling
                                                                                       u

to assume that collectors of child pornography keep their materials indefinitely," also noted
                                                                                 it

that the affiant's assertion that such individuals are known to keep their materials "for long

periods,"combined with the electronic nature of the materials, was sufficient to justify the

issuance of a warrant 10 months after the investigation. Lacy, 119 F. d at 746. Here, although
                                                                    3

the delay in obtaining the search warrant was longer, Detective Holmes had verified that Beebe

was still using the same IP address at the same location. The affidavit also established that files,

or evidence of such files, can remain available for a long time. This was sufficient to allow a




                                                   0
No. 42521 1 II
          - -



reasonable person to conclude that it was likely that the evidence could still be found on' eebe'
                                                                                        s B

computer.

        Beebe also relies on United States v. Weber, 923 F.d 1338 (9th Cir. 1990).But Weber is
                                                          2

inapposite because it addresses whether an officer's statement that certain categories of

individuals are known to retain printed versions of prohibited materials for long periods of time

was   sufficient to support the warrant.   Weber, 923 F. d
                                                       2     at 1344 45.
                                                                     -      This case, in contrast,

involves electronic files rather than printed materials. Here, it was much more likely that any
downloaded files were still present, and Detective Holmes's affidavit established that this was a

possibility, even if the original files had been deleted. See also United States v. Gourde, 440

F.d 1065, 1071 ( 9th Cir. 2006) acknowledging that computer files may be restored after
 3                              (

deletion and that there is a likelihood that there would remain at least a "digital footprint of the

images "), cert. denied, 549 U. . 1032 (2006);
                              S              Lacy, 119 F.d at 746 47 (
                                                        3         - holding that the nature

of the crime involving child pornography, as set forth in the affidavit, provided `
                                                                         "        good reason[ ]'

to believe the computerized visual depictions downloaded by Lacy would be present in his

apartment when the search was conducted ten months later. ").

        Relying on Gourde, 440 F.d 1065, Beebe also argues that probable cause cannot be
                                3

established unless there was evidence that he had taken continuous affirmative steps to access the

prohibited   materials.   In Gourde, the defendant had paid a $19. 5 monthly subscription to a
                                                                 9


6
  This case also differs from Weber because there was no evidence in Weber suggesting that the
defendant had ever received or accepted any prohibited print materials, whereas here, Detective
Holmes's affidavit was sufficient to allow a reasonable person to conclude that Beebe had
downloaded files. Weber, 923 F. d at 1340.
                              2




                                                 10
No.42521 1 II
         - -



website that provided access to child pornography, he paid the subscription for three consecutive

months, and the search warrant was issued a mere four months after the last possible date that the

defendant could have accessed the site. Gourde, 440 F. d at 1071. The Gourde court noted that
                                                     3

1)the subscription itself was sufficient to create probable cause that the defendant had

intentionally availed himself of the site and created a "fair probability"that the defendant "had,

in   fact,received   or   downloaded   images "; and ( ) nature of computers indicated that there was
                                                     2 the

still a likelihood that any such files would still be on the computer. Gourde, 440 F. d at 1071
                                                                                    3

internal quotation        marks   omitted). Beebe argues that the fact the defendant in Gourde paid a

monthly subscription for three consecutive months demonstrates that "continuous, affirmative

steps"are required to find probable cause. Br. of Appellant at 12. But the Gourde court did not

state that the length of time the defendant had been a member was a significant factor. The court

merely indicated that obtaining a membership required an intentional act, and that was a factor

that could support probable cause.

         Here, there was nothing in the affidavit about whether Beebe's membership with Extreme

Materials or the two other sites he paid to join were monthly obligations or whether the

memberships ran for a longer period of time. But, regardless of the length of his memberships,

Beebe's intentional act of paying for three memberships to websites that provided access to

illegal materials, creates a reasonable probability that he accessed those sites and downloaded

materials.    Combined with the. fact that computers retain data for long periods of time, this

information clearly provided probable cause supporting the search warrant.




                                                      11
No. 42521 1 II
          - -



                                         II. PARTICULARITY


       Beebe next argues that the search warrant was overbroad and lacked sufficient

particularity because it allowed for the seizure of materials protected by the First Amendment.

Specifically, he asserts that the warrant was overbroad because it included many items that were

unrelated to the statutory definitions of sexually explicit materials,"namely "photography

equipment, photographs, pictures, books, newspapers, magazines and other writings on the

subject of sexual activities involving children, pictures and or drawings depicting children under
           `                                                  /

the age of 18 years who may be victims of the aforementioned offenses, as well as any

photographs or pictures depicting minors under the age of 18 years engaging in sexually explicit

conduct   as   defined in RCW   011( 8A. Br. of Appellant at 14 (citing CP at 36).Beebe is
                                9. 3).
                                   6            "'

not entitled to relief on this ground.

       A warrant is overbroad when it describes many items but fails to link some of them to the

offense. State v. Griffith, 129 Wn..
                                  App. 482, 489, 120 P. d 610 (2005)citing State v. Perrone,
                                                      3              (

119 Wn. d 538, 555 56, 834 P. d 611 (1992)),
      2            -        2             review denied, 156 Wn. d 1037 (2006). And
                                                               2

courts require a heightened degree. of particularity when a search warrant includes items

protected by the First Amendment, such as books and films. State v. Chambers, 88 Wn. App.

640, 644, 945 P. d 1172 (1997) citing Perrone, 119 Wn. d at 547; Gonzales v. State, 577
               2               (                     2

2d
S. .226, 228, cent. denied, 444 U. . 853 (1979)). even presuming that that the search
 W                               S              But

warrant was overbroad or insufficiently particular as to the materials Beebe asserts were

protected by the First Amendment, under the severability doctrine, only the invalid portions of

the warrant must be suppressed unless the valid portions of the warrant cannot be meaningfully

severed from the warrant as a whole. Perrone, 119 Wn. d at 556 57.
                                                    2          -



                                                 12
No. 42521 1 II
          - -




       Here, the potentially -invalid portions of the search warrant can be meaningfully severed.

The computer and related equipment and storage media were specifically named in the warrant

and were connected to the crime because the statement of probable cause clearly alleged that

Beebe obtained the unlawful         images   via his    computer.   Any reference to the potentially-

constitutionally -protected materials that Beebe now claims, such as books and photographs,

could easily be removed from the warrant without rendering it meaningless. Additionally, based

on the record before us, the computer was the only evidence seized that the trial court considered

in convicting Beebe. Thus, even if the trial court should have suppressed the items seized under

the remainder of the warrant, the evidence that supports Beebe's conviction, namely the

computer, was validly seized. See Griffith, 129 Wn. App. at 489.

       Holding that the trial court did not err in denying the motion to suppress, we affirm.

       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

040,
2.6.it is so ordered.
 0




                                                                       Johanson, A. .
                                                                                 J.
                                                                                  C
We concur:




         0a            At, J


                               J.
                 W&
                  gen,



                                                       13
