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                 THE SUPREME COURT OF NEW HAMPSHIRE

                             ___________________________


Rockingham
No. 2012-674


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                               ROBERT LETOILE, JR.

                          Argued: November 13, 2013
                         Opinion Issued: May 16, 2014

      Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant
attorney general, on the brief and orally), for the State.

      James B. Reis, assistant appellate defender, of Concord, on the brief and
orally, for the defendant.

       BASSETT, J. The defendant, Robert Letoile, Jr., appeals his convictions,
following a jury trial, on twenty-six charges of possession of child pornography.
See RSA 649-A:3 (Supp. 2013). He argues that the Superior Court (Delker, J.)
erred when it denied his motion to suppress evidence derived from the search
of his home computer. We affirm.

     The defendant is appealing the denial of his motion to suppress a second
warrant after the superior court granted a suppression motion on the initial
warrant. On April 11, 2010, the defendant’s ex-wife complained to the
Hampstead Police Department that, while using the defendant’s computer, she
clicked on the browsing history and found disturbing links to websites that
potentially contained child pornography. She was not able to access the
websites at that time because her internet connection was not working.

       In a follow-up meeting with the police, the defendant’s ex-wife explained
that she had started checking the defendant’s browsing history six months
earlier, and it was at that time that she first noticed child pornography on the
defendant’s computer. According to the police affidavit for the search warrant,
she described the images as depicting “nude young undeveloped girls (well
under 18 years of age).” She told the police that the links that she had viewed
most recently had titles with the words “young girls/young teens.”

       Based upon this information, the police secured a search warrant and
seized the defendant’s computer. The defendant moved to suppress all
evidence and statements obtained as a result of the search warrant, arguing, in
part, that the affidavit failed to establish probable cause because it did not
provide a sufficient description of the alleged child pornography. In September
2011, after a hearing, the superior court granted the motion, ruling that the
search warrant did not describe the images with sufficient particularity.

       Shortly thereafter, the defendant’s ex-wife again met with the Hampstead
Police. At that time, she described in greater detail five images that she had
viewed on websites on the defendant’s computer after clicking on links listed in
his browsing history. Although the ex-wife had stated at a prior meeting that
the defendant had a desktop file containing child pornography, she had not
described the file images that she had viewed. At the next meeting, she stated
that she had seen the five images six months earlier, and explained that she
had not provided these details earlier because she did not know that they were
important. Based upon the new information, Officer Conway submitted
another application for a warrant to search the defendant’s computer and hard
drive. The 10th Circuit – Salem District Division (Sullivan, J.) granted the
application. The search of the defendant’s computer and hard drive revealed
images and movies containing child pornography. The State charged the
defendant with twenty-nine counts of possession of child pornography, and
twenty-nine counts of attempted possession of child pornography.

      The defendant again moved to suppress all evidence and statements
obtained as a result of the search warrant, arguing that there was no probable
cause and that “even if probable cause existed, it was based upon factual
allegations that remained ‘tainted’ from the initial unlawful search and
seizure.” After a hearing, the superior court denied the motion, concluding
that the statements from the defendant’s ex-wife, including her more detailed
descriptions of the images, “would lead a reasonable person to believe that
there was a substantial likelihood that child pornography would actually be



                                       2
found on the computer.” The trial court further concluded that the references
to the first warrant in Conway’s affidavit did not taint the second warrant.
After a three-day jury trial, the defendant was found guilty of twenty-six counts
of possession of child pornography. This appeal followed.

       On appeal, the defendant argues that the trial court violated Part I,
Article 19 of the State Constitution and the Fourth and Fourteenth
Amendments to the United States Constitution by denying his motion to
suppress. He asserts that: (1) Conway’s affidavit failed to set forth sufficient
facts linking child pornography to his computer; and (2) references in Conway’s
affidavit to the evidence seized pursuant to the first warrant prejudiced the fair
and impartial determination of whether probable cause existed. We first
address the defendant’s claims under the State Constitution and rely upon
federal law only to aid in our analysis. See State v. Ball, 124 N.H. 226, 231-33
(1983).

      I. Probable Cause

      The defendant argues that there was insufficient evidence linking the five
images of child pornography described by his ex-wife to his computer because
“the images were located on unknown websites that [she had] accessed, not on
the hard drive of the computer itself.” The State contends that both
information contained within Conway’s affidavit as well as common knowledge
supported the trial court’s determination. We agree with the State.

       “Part I, Article 19 of the State Constitution requires that search warrants
be issued only upon a finding of probable cause.” State v. Ward, 163 N.H. 156,
159 (2012). “Probable cause exists if a person of ordinary caution would
justifiably believe that what is sought will be found through the search and will
aid in a particular apprehension or conviction.” Id. “The police must
demonstrate in an application for a search warrant that there is a substantial
likelihood that the items sought will be found in the place to be searched.”
State v. Ball, 164 N.H. 204, 207 (2012). “However, they need not establish with
certainty, or even beyond a reasonable doubt, that the search will lead to the
desired result.” Id. (quotation omitted).

       We apply a totality-of-the-circumstances test to review the sufficiency of
an affidavit submitted with a warrant application. Id. The task of the issuing
court is to make a practical, common-sense decision whether given all the
circumstances set forth in the affidavit before it, 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. Id.




                                        3
       Our duty as the reviewing court is to ensure that the issuing magistrate
had a substantial basis for concluding that probable cause existed. Id. “While
an affidavit may establish probable cause without the observance of
contraband at the location to be searched,” in order to meet constitutional
muster, “affidavits must establish a sufficient nexus between the illicit objects
and the place to be searched.” Id. As a reviewing court, we may consider only
the information that the police brought to the issuing court’s attention (here,
the district division). Id.

        “We review the superior court’s order de novo except with respect to any
controlling factual findings.” Id. In this case, we review the superior court’s
order de novo because there were no controlling facts that it determined in the
first instance. See id. at 207-08. We afford much deference to the district
division’s probable cause determination and will not invalidate warrants by
reading the supporting affidavit in a hypertechnical sense. Id. at 208. “Rather,
we review the affidavit in a common-sense manner, and determine close cases
by the preference to be accorded to warrants.” Id. (quotation omitted).

      The defendant’s ex-wife stated that she found a “large” number of links
to pornographic websites. She explained in detail that some of the sites had
images of adult males engaging in genital contact with minor females, while
other sites had images that depicted minor females engaged in sexual acts with
each other. As the defendant concedes, his ex-wife’s descriptions of the five
images were facially sufficient to establish that the images were child
pornography.

      He argues, however, that the magistrate lacked probable cause because
his ex-wife described images that were found on websites, rather than located
on the hard drive of the computer itself. He contends that the trial court
erroneously inferred that because the links had been viewed on the defendant’s
computer, it was therefore probable that the pornographic images had been
downloaded. The State counters that the trial court properly viewed the
warrant in a common-sense manner and drew upon common knowledge about
the manner in which computers retain files and images.

      We are not persuaded by the defendant’s argument. Probable cause does
not require conclusive proof of illegal activity – instead, the magistrate
determines, in light of the affidavit provided, whether there is a “fair
probability” that contraband will be found in a particular place. Ball, 164 N.H.
at 207. Here, the district division made the common-sense inference that there
was a fair probability that downloaded images from the websites listed in the
defendant’s browser history would be found on the defendant’s computer and
hard drive.




                                        4
       The defendant further contends that evidence of a visit to a website
cannot support the conclusion that child pornography was downloaded on a
computer because “websites are inherently transitory in nature,” and,
therefore, “the affidavit did not establish that the images viewed by [his ex-wife]
were likely to be the same images that existed on those websites at some earlier
point in time.” We disagree.

       The fact that the defendant’s ex-wife stated that she “first located child
pornography on [the defendant’s] computer” through his browsing history, at a
time when the defendant was living at home and using the computer, supports
the inference that the images viewed by the defendant’s ex-wife were the same
as the images viewed by the defendant. Moreover, the fact that the websites
contained the words “young girls/young teens” supports the inference that,
although the images may have changed, the content of the websites continued
to include child pornography. While another possible inference is that the
website content changed and that no child pornography existed on the websites
when the defendant visited them and that he never downloaded any child
pornography, the mere existence of such an alternative scenario does not
defeat a finding of probable cause. To be sure, it was not certain that child
pornography would be found on the defendant’s computer, but neither
certainty, nor proof beyond a reasonable doubt, nor even proof by a
preponderance of the evidence, is required for a magistrate to find probable
cause. See id. What is required is a fair probability that evidence of a crime
will be found in a particular place. Id. That standard was satisfied here.

       The defendant cites United States v. Zimmerman, 277 F.3d 426 (3d Cir.
2002), for the proposition that a search warrant must state that the defendant
downloaded the pornography. However, there are several important
distinctions between Zimmerman and this case. In Zimmerman, the defendant
was accused of having shown one video clip of adult pornography to a minor
six months prior to the execution of a search warrant for his home and home
computer. Zimmerman, 277 F.3d at 430-31, 434. The Third Circuit Court of
Appeals suppressed evidence derived from the search warrant, finding that the
information supporting probable cause to find adult pornography was stale,
and that, as the Government conceded, there was no probable cause to search
for child pornography. See id. at 432-34. Consequently, the court did not have
occasion to consider whether an individual must download a file in order to
establish probable cause sufficient to search for child pornography. Further,
virtually the entire affidavit of the police officer in Zimmerman recounted
incidents in which the defendant allegedly sexually accosted students, and
pornography was mentioned only briefly. See id. at 431. Here, in contrast,
Conway’s affidavit was focused on the defendant’s alleged possession of child
pornography.




                                        5
        Finally, in Zimmerman, the court emphasized that the affidavit of the
officer did not suggest that the defendant had downloaded adult pornography,
and, consequently, there was no indication that it would be found in his home.
Id. at 435. Here, although the defendant correctly notes that Conway’s affidavit
did not specifically state that the defendant had downloaded child pornography
files, there were additional facts set forth in the application that would allow a
reasonable person to conclude that there was a fair probability that the
defendant possessed child pornography. Although the defendant’s ex-wife did
not describe the images contained within the desktop file, she characterized the
computer file as containing child pornography. This supports the inference
that the defendant was downloading the images from the websites that he
visited. Additionally, we agree with the trial court that it is now common
knowledge “that a computer’s browsing history would leave behind images in a
temporary file on the computer’s hard drive that could be accessed at a later
date or time.” See Smith v. State, 887 A.2d 470, 471-72 (Del. 2005) (upholding
trial court’s finding of probable cause when trial court concluded that “it rises
to the level of common knowledge that imagery in computers is still in
existence and is persistent”). In light of the totality of this evidence, we find
that, based on the information in the affidavit, the trial court had a substantial
basis to conclude that probable cause existed.

       Our conclusion is consistent with case law in other jurisdictions where
courts have upheld a finding of probable cause even though the affidavits
supporting search warrants did not state that the defendants had downloaded
child pornography to their computers. See, e.g., United States v. Kleinkauf,
No. 11-40971, 2012 WL 3030347, at *2 (5th Cir. July 25, 2012) (concluding
that the affidavit did not need to allege that defendant downloaded child
pornography because the defendant’s subscription to “Hardlovers” was
“sufficient for the magistrate judge to reasonably infer the nature of the website
and the likelihood that child pornography would be found in the places
identified by the affidavit”); United States v. Frechette, 583 F.3d 374, 379 (6th
Cir. 2009) (concluding that “[e]vidence that an individual subscribed to child
pornography web sites supports the conclusion that he has likely downloaded,
kept, and otherwise possessed the material” (quotation omitted)); United States
v. Gourde, 440 F.3d 1065, 1070-72 (9th Cir. 2006) (en banc) (concluding that
payment and registration for a subscription to child pornography website
supported a probable cause determination); United States v. Wagers, 452 F.3d
534, 540 (6th Cir. 2006) (noting that “evidence that a person has visited or
subscribed to websites containing child pornography supports the conclusion
that he has likely downloaded, kept, and otherwise possessed the material”);
United States v. Martin, 426 F.3d 68, 74-76 (2d Cir. 2005) (holding that
affidavit supported probable cause determination when the affidavit stated only
that an occupant of defendant’s home subscribed to child pornography e-
group); United States v. Bershchansky, 958 F. Supp. 2d 354, 376 (E.D.N.Y.




                                        6
2013) (explaining “downloading is not necessary for a finding of probable
cause”).

      The defendant argues that the cases from other jurisdictions are
distinguishable because here there is no allegation that the defendant paid for
a subscription to a child pornography website, that he was a known collector of
child pornography, or that he had prior convictions for possession of child
pornography. However, his argument misses the mark. In those cases, the
circumstances alluded to by the defendant were not, in fact, necessary for a
finding of probable cause. Moreover, other courts have found probable cause
notwithstanding the absence of the circumstances described by the defendant.
For example, in United States v. Christie, the federal district court found
probable cause for the search of the defendant’s computer based on
observations made by police officers of a user posting links to child
pornography on a password-protected website from an IP address assigned to
the defendant’s dwelling. United States v. Christie, 570 F. Supp. 2d 657, 678-
79 (D.N.J. 2008); see also United States v. Abraham, No. CR 05-344, 2006 WL
1344303, at *4 (W.D. Pa. 2006) (fact that affidavit did not allege that defendant
downloaded video clip was “irrelevant since the Affidavit of Probable Cause
expressly explained that even if the Defendant never downloaded the image in
question, a forensic examiner would be able to find the image on Defendant’s
computer”).

      We note that the defendant cites cases from other jurisdictions in which
the defendant’s visit to a child pornography website – in the absence of
evidence that the defendant downloaded the images – was deemed insufficient
to support a conviction for possession of child pornography. However, these
cases are inapposite: The issue in this case is solely whether probable cause
existed to issue a search warrant. Accordingly, we need not address the issue
of whether the State must prove that a defendant actually downloaded child
pornography in order to convict a defendant of possession of child
pornography.

      As the Federal Constitution offers the defendant no greater protection
than the State Constitution under these circumstances, see Ward, 163 N.H. at
163, we reach the same result under the Federal Constitution as we do under
the State Constitution.

      II. References to The First Search

       The defendant next argues that the trial court erred in denying his
motion to suppress because Conway’s affidavit referenced the “evidence that
was illegally seized pursuant to the first warrant.” The defendant contends
that these references “prejudiced what should have been a fair and impartial
determination of whether probable cause existed.” We note that the defendant



                                       7
does not argue that the police violated his state and federal constitutional
rights by maintaining possession of the computer between the suppression of
the first warrant and the grant of the second warrant. The State responds that,
after excising all references to the first warrant, Conway’s affidavit was
sufficient to establish probable cause. We agree with the State.

       In the affidavit for the second warrant, Conway set forth the information
provided by the defendant’s ex-wife, and also described: (1) that the police had
seized the defendant’s computer under the first warrant; (2) that the computer
was released for forensic analysis and the timeline of that analysis; and (3) that
in the analysis, the police found images on the defendant’s computer, which
led to the first charges for possession of child pornography.

       “A warrant based in part upon illegally seized evidence is nonetheless
valid so long as there was enough other evidence to establish probable cause.”
State v. Orde, 161 N.H. 260, 269 (2010). “Thus, to test the validity of a search
warrant issued upon an affidavit referencing illegally seized evidence, the
reviewing court excises the tainted information and examines the remaining
information to determine whether it establishes probable cause.” Id.

     Here, given that the first warrant was invalid, evidence obtained
pursuant to the first warrant must be excised and cannot be used to establish
probable cause for issuance of the second search warrant. See State v.
Newcomb, 161 N.H. 666, 672-73 (2011).

      We conclude that, after striking the references to the illegally seized
evidence, Conway’s affidavit established probable cause for the issuance of a
search warrant. We agree with the trial court that the references to the first
warrant contained in Conway’s affidavit provided only the procedural history of
the case “necessary to evaluate whether the computer was handled and stored
in a manner that preserved the evidence which might be contained on the
computer.” The detailed information furnished by the defendant’s ex-wife
provided a sufficient basis for the finding of probable cause.

       To the extent that the defendant argues that the second search warrant
violated his rights under the Federal Constitution because its supporting
application referenced the first warrant, he has not adequately developed this
argument for our review, so we decline to address it. See State v. Euliano, 161
N.H. 601, 608 (2011).

      III. Additional Arguments

     Finally, the defendant argues that the trial court erred in not
suppressing the search warrant because the magistrate failed to examine the
images independently to determine if they were child pornography. He also



                                        8
contends that the trial court erred in not suppressing the search warrant
because Conway’s affidavit contained irrelevant information regarding the
defendant’s alleged prior sexual assaults of his ex-wife and her two daughters.
However, the record does not reflect that these arguments were raised before
the trial court. We generally do not consider issues raised on appeal that were
not presented in the trial court. Id. at 610-11. It is the burden of the
appealing party to provide this court with a record sufficient to decide the
issues raised on appeal and to demonstrate that the appellant raised those
issues before the trial court. Id. As the defendant has failed to meet his
burden, we will not address these arguments.

                                                 Affirmed.

      DALIANIS, C.J., and HICKS, CONBOY and LYNN, JJ., concurred.




                                       9
