                                FIRST DIVISION
                                 DOYLE, C. J.,
                             ANDREWS and RAY, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                      March 8, 2017




In the Court of Appeals of Georgia
 A16A1843. RAY v. THE STATE.

      RAY, Judge.

      After a stipulated bench trial, Nicholas Ray was convicted on four counts of

sexual exploitation of children and one count of tampering with evidence. He appeals

from the judgment of conviction and sentence, asserting error in the trial court’s

denial of his motion to suppress. For the reasons that follow, we affirm.

      The evidence presented at the hearing on the motion to suppress shows that in

September of 2014, Agent Harrell of the Georgia Bureau of Investigation (GBI) was

able to obtain downloads of child pornography from a computer that had an internet

protocol (IP) address that was associated with a house located at 9 Couch Road in

Senoia, Georgia. Agent Harrell turned his findings over to Agent Jackson, who was

assigned to the GBI’s Child Exploitation and Computer Crimes Unit. After viewing
the downloads personally to determine that they were child pornography, Agent

Jackson sought and obtained a search warrant for the residence, which was

determined to belong to Shelly Dvorak.1

      When Agent Jackson executed the search warrant at Dvorak’s residence,

Dvorak and her three children were present.2 Dvorak informed Agent Jackson that

neither she nor her children had ever viewed any child pornography or made any

searches on the internet for anything related to child pornography. After questioning

Dvorak and her children, and after examining all of their computers and digital

devices, Agent Jackson confirmed that there was no evidence of child pornography

at Dvorak’s residence. Nor was there any evidence that there had been any attempt

to access child pornography on any of their computers or digital devices. After

determining that Dvorak’s wireless internet router was password protected, Agent

Jackson asked Dvorak if she had given anyone else the password to access her

internet router, and Dvorak stated that she had given the password to her neighbor,

Ray. Although Dvorak stated that other neighbors had used her internet in the past,

      1
        Ray does not challenge the sufficiency of the search warrant for Dvorak’s
residence.
      2
        The evidence shows that Dvorak was divorced, and that she and her three
children were the sole occupants of the residence.

                                          2
Dvorak specifically identified Ray as the neighbor who would often park his vehicle

in her driveway and sit there for hours using her internet, and that he had recently

done so in the days preceding the issuance of the search warrant for her residence.

      Based on the information that Dvorak had given her, Agent Jackson and two

other GBI agents went to Ray’s residence to conduct a “knock and talk.” When Agent

Jackson approached Ray and informed him that she wanted to speak with him about

an investigation involving computers, Ray declined to speak with her and closed his

front door. Accordingly, Agent Jackson went to get a search warrant for Ray’s

residence.

      In her application and sworn affidavit in support of the search warrant for

Ray’s residence, Agent Jackson stated, in pertinent part, as follows:

      On Friday, October 3, 2014, SPECIAL AGENT (SA) CYNTHIA
      JACKSON received a peer to peer case from SA JOHN HARRELL.
      Previously, SA HARRELL downloaded videos of suspected child
      pornography by using Ares, a file sharing program. . . . The suspect IP
      address was 24.159.106.241[.] . . . SA JACKSON viewed the videos.
      One of the videos depicted a boy, approximately between the ages of 11
      and 13, masturbating. Another video depicted a boy, approximately
      between the ages of 11 and 13, with another person ejaculating his
      penis. File names of the downloads included the following: 14 y o boy
      in boxers, webcam jack off.mpeg [and] bibcam - boy 12 cums with

                                         3
sound kdv pjk.mpg[.] The IP address 24.159.106.241 was associated
with Charter Communications. SA HARRELL sent Charter
Communications a subpoena and requested subscriber information for
specific dates and times for the aforementioned IP address. The results
showed SHELLY DVORAK as the subscriber with an address of 9
Couch Rd., Senoia, Georgia. . . . On Friday, October 17, 2014, SA
JACKSON, along with other GBI Agents executed a search warrant at
9 Couch Rd., Senoia, Georgia. Upon entry, SA JACKSON made contact
with SHELLY DVORAK and her 3 children. . . . SA JACKSON
interviewed DVORAK who essentially stated the following: She had
been living at the residence for approximately 7 years. She was divorced
[from her former husband] in May, 2014. DVORAK confirmed Charter
Communications as her Internet Service Provider. Only DVORAK and
her 3 sons . . . lived at the residence. DVORAK stated that there were
multiple digital devices in the residence including an iPad, Kindle,
laptop [computer], desktop [computer], and 3 phones. . . . She had never
viewed or searched for pornography or child pornography. DVORAK
stated that her Wi-Fi was password protected. However, she stated that
her neighbor, NICHOLAS RAY, had her Wi-Fi password and often
parked in her driveway and/or sat at her house for hours using her
internet service. It was not uncommon for RAY to be at DVORAK’S
residence for hours throughout the week using her internet service.
DVORAK had known RAY for approximately 7 years and he had been
using DVORAK’S internet service for approximately 5 years. DVORAK
stated that RAY had recently used the internet service this week. SA
JACKSON spoke to [DVORAK’S] 3 children and they did not use the
internet to view pornography or child pornography. SA JACKSON

                                   4
      along with SA BROOKE LINDSEY and SA ROBERT DEVANE went
      to 285 Couch Rd., Senoia, Georgia to make contact with NICHOLAS
      RAY. RAY refused to answer any of SA JACKSON’S questions. SA
      JACKSON received intelligence results for RAY. RAY was previously
      arrested for false imprisonment and sexual battery. Based on the
      information provided by SHELLY DVORAK and the fact that
      NICHOLAS RAY used DVORAK’S internet service nearly every week
      for hours at a time, SA Jackson is requesting a search warrant for 285
      Couch Rd., Senoia, Coweta County, Georgia.


In addition to her affidavit, Agent Jackson gave sworn oral testimony to the

magistrate judge in support of her application for the search warrant for Ray’s

residence. She offered testimony about the details of her investigation leading up to

the request for the search warrant, the evidence that she obtained, her questioning of

Dvorak and her children, Dvorak’s level of cooperation, the fact that no evidence of

child pornography or attempts to access such material was found on the computers

and digital devices at Dvorak’s residence, and the fact that Ray had used Dvorak’s

password protected internet service while parked in her driveway during the

timeframe the child pornography was downloaded. After considering Agent Jackson’s

affidavit and testimony, the magistrate issued the search warrant.




                                          5
      As Agent Jackson was executing the search warrant at Ray’s residence, another

GBI agent initiated a traffic stop of Ray’s pickup truck. During this traffic stop, the

GBI agent observed a laptop computer in Ray’s truck, and he relayed that information

to Agent Jackson. This information was consistent with Dvorak’s statement that Ray

had recently accessed her internet service while sitting in his truck in her driveway.

Accordingly, Agent Jackson sought and obtained a separate search warrant for the

search of the truck. The affidavit for the search warrant for the truck was based

largely on the same information that was presented to the magistrate in support of the

search warrant for Ray’s residence, with the additional fact that the GBI agent had

observed the laptop in Ray’s truck.

      GBI Agents completed their search after Ray arrived at the residence. When

GBI agents seized the laptop computer from Ray’s truck, they discovered that a file-

shredding program was running on the laptop, actively erasing files from the hard

drive. Nevertheless, the GBI was able to recover several files containing child

pornography from the laptop, including one of the videos that was specifically

referenced in the affidavits for the search warrants.




                                          6
      1. Ray asserts that the trial court should have granted his motion to suppress

evidence obtained during the execution of search warrants for his home and his

vehicle, contending that the information presented to the magistrate judge by law

enforcement was inadequate to establish probable cause to support the warrants. We

disagree.

      The magistrate’s task in determining if probable cause exists to issue a
      search warrant is simply to make a practical, common-sense decision
      whether, given all the circumstances set forth in the affidavit [and
      testimony] before him, 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.
      Our duty in reviewing the magistrate’s decision in this case is to
      determine if the magistrate had a substantial basis for concluding that
      probable cause existed to issue the search warrants. 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. Even doubtful
      cases should be resolved in favor of upholding a magistrate’s
      determination that a warrant is proper.


(Citations omitted.) Galloway v. State, 332 Ga. App. 389, 389-390 (772 SE2d 832)

(2015). Where, as here, the affiant for the search warrant relies on information

obtained from an informant, “probable cause is determined by the totality of the

circumstances surrounding (1) the basis of the informant’s knowledge and (2) the

                                         7
informant’s veracity or reliability. However, a deficiency in one may be compensated

for, in determining the overall reliability of a tip, by a strong showing as to the other,

or by some other indicia of reliability.” (Citations and punctuation omitted.) Id. at

390.

       (a) After the execution of the initial search warrant at Dvorak’s residence failed

to produce any evidence of child pornography, the GBI relied on the information

provided by Dvorak to turn their investigation toward Ray. Ray argues that the

information provided to the magistrate judge in support of the subsequent search

warrants for his residence and truck failed to establish Dvorak’s reliability. We

disagree.

       As an initial matter, we note that the unique circumstances of this case create

somewhat of an ambiguity as to whether Dvorak should be deemed a “concerned

citizen” or an “informant.” If the person providing information regarding possible

criminal activity to law enforcement is a law-abiding “concerned citizen” whose

identity is known to the police, the information provided to law enforcement is

presumed to be reliable. See Durden v. State, 320 Ga. App. 218, 221 (1) (739 SE2d

676) (2013). In contrast, if the person providing such information is an anonymous

informant or a person of unknown reliability, the information provided must be

                                            8
independently corroborated by law-enforcement. Manzione v. State, 312 Ga. App.

638, 641 (a) (719 SE2d 533) (2011). We need not make this distinction here,

however, as the information provided to the magistrate was sufficient to establish

reliability under either standard.

      Although Dvorak may have been previously unknown to Agent Jackson before

the execution of the search warrant at her residence, Agent Jackson was able to assess

Dvorak’s credibility during questioning. She learned that Dvorak was a divorced

mother of three children, and that she and her children were the only ones who lived

at her residence. Dvorak denied having any child pornography, and Agent Jackson

was able to corroborate this information upon searching her residence and examining

all of the computers and digital devices located there. Agent Jackson noted that

Dvorak was “[v]ery cooperative, [and] very straight forward,” and that Dvorak

“offered any and all information [that was requested].” Implicit in these facts is that

Dvorak was a law-abiding woman who would be justifiably concerned upon learning

that her wireless internet router was being used to distribute child pornography.

Accordingly, she immediately informed Agent Jackson that she had given Ray access

to her password-protected internet service, that he would often park his vehicle in her



                                          9
driveway and sit there for hours using her internet, and that he had recently done so

in the days preceding the issuance of the search warrant for her residence.

      We have held that face-to-face communication between an informant and a law

enforcement officer is inherently more reliable than information from an anonymous

source because the officer receiving the information “had the opportunity to observe

the informant’s demeanor and perceived credibility.” (Citation and punctuation

omitted.) Durden, supra at 222 (1). Furthermore, when a person observes certain

activity and then later learns that such activity is relevant to a criminal investigation

and immediately reports it in person directly to a law enforcement officer, we see no

reason why that person cannot be deemed a concerned citizen. See generally, id. (“a

citizen who witnesses criminal activity and then immediately reports it in person

directly to a police officer also can be deemed a concerned citizen, even if her identity

is not known to the police”) (citations omitted). Furthermore, Dvorak’s information

that Ray used her internet service while sitting in his truck in her driveway during the

relevant timeframe was corroborated when a GBI agent observed the laptop computer

in Ray’s truck during a traffic stop.

      As all of the above facts were provided to the magistrate judge during the

warrant application process, we find no error in the magistrate judge’s determination,

                                           10
under the totality of the circumstances, that the information supplied by Dvorak was

reliable.

       (b) Ray also asserts that the information provided by Dvorak was insufficient

to establish probable cause to believe that he was in possession of child pornography.

He argues that there were other possible explanations for his use of Dvorak’s internet

service, that Dvorak never stated that she observed him searching for or downloading

child pornography, and that other neighbors may have accessed her internet service.

His arguments are unpersuasive.

       In making such arguments, Ray apparently wishes to equate the standard

required for probable cause for a search warrant with the standard required for

conviction. This is incorrect. A magistrate does not analyze the information in a

warrant affidavit using the “beyond a reasonable doubt” standard, but rather makes

a common-sense decision whether, given all the circumstances set forth in the

affidavit, a “fair probability” exists that evidence will be found in a particular place.

Galloway, supra at 389. Although Dvorak stated that other neighbors had used her

internet in the past, Dvorak specifically identified Ray as the neighbor who had

accessed her password protected internet service during the approximate timeframe

the child pornography was downloaded.

                                           11
      Furthermore, the establishment of probable cause was not limited to the

information provided by Dvorak. Here, the information provided to the magistrate

judge shows that the GBI detected child pornography being distributed from

Dvorak’s IP address, that no evidence of child pornography was located during the

search of Dvorak’s residence, computers, and digital devices, and that Ray accessed

her password-protected internet service during the timeframe when the GBI detected

the distribution of child pornography through Dvorak’s IP address.3 Based on the

totality of the circumstances, we conclude that the magistrate judge had a substantial

basis for concluding that probable cause existed to issue the search warrants at issue.

      (c) Lastly, Ray contends that the information that Agent Jackson provided in

her affidavit to the magistrate judge concerning Ray’s prior arrest for sexual battery

and his refusal to speak with the GBI agents was irrelevant to the determination of

probable cause for the search warrants. However, the magistrate judge testified at the

hearing on the motion to suppress that he did not consider Ray’s prior arrest in

determining the issue of probable cause. Furthermore, we have reviewed the

magistrate judge’s testimony in its entirety, and it is clear that he focused on the


      3
        As to the application for the search warrant for Ray’s vehicle, there was the
additional evidence that the GBI officer had seen a computer in his pickup truck.

                                          12
information concerning Ray’s frequent use of Dvorak’s internet during the timeframe

in which the child pornography was downloaded in determining probable cause.

Accordingly, we find no basis for reversal.

      Judgment affirmed. Doyle, C. J., and Andrews, J., concur.




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