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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Hillsborough-northern judicial district
No. 2017-0280


                        THE STATE OF NEW HAMPSHIRE

                                           v.

                                ROBERT NORMAN

                             Argued: May 15, 2018
                          Opinion Issued: July 6, 2018

      Gordon J. MacDonald, attorney general (Katherine A. Triffon, attorney,
on the brief and orally), for the State.


      Thomas Barnard, senior assistant appellate defender, of Concord, on the
brief and orally, for the defendant.

       HANTZ MARCONI, J. The defendant, Robert Norman, appeals his
convictions on seven counts of possession of child sexual abuse images
following a bench trial on stipulated facts in Superior Court (Brown, J.). See
RSA 649-A:3, I(a) (2016). On appeal, he argues that the superior court erred
by denying his motion to suppress in which he argued that the affidavit
submitted in support of the search warrant application failed to establish
probable cause that his electronic devices would contain child sexual abuse
images. He also argues that the evidence was insufficient to prove, beyond a
reasonable doubt, that the images associated with the seven indictments depict
sexually explicit conduct. See RSA 649-A:2, III (2016), :3, I(a). He further
challenges three of the indictments on the ground that the images associated
with them do not depict a child. See RSA 649-A:2, I (2016), :3, I(a). We reverse
and remand.

I. Motion to Suppress

      A. Affidavit

       The following facts are drawn from the affidavit submitted in support of
the search warrant application. In February 2016, members of the
Hillsborough County Street Crimes Task Force were conducting surveillance in
the Wal-Mart parking lot in Amherst. The officers observed a man, later
identified as the defendant, who appeared to be passed out in the driver’s seat
of his pick-up truck. Concerned that he might have overdosed, they
approached the vehicle.

       Upon reaching the vehicle, the officers knocked on the window, and the
defendant sat up. They noticed that his pants were pulled down to his ankles
and that his genitals were exposed. They further observed a cell phone, and a
laptop computer displaying a partially nude adult female in a provocative
position.

       After some discussion with the defendant, he consented to a search of
his laptop, cell phone, and vehicle. On the laptop, the police found “numerous
folders . . . which contained images of women in various stages of undress and
positions.” Interspersed among those images were images of children whom
the officers estimated were “between the ages of 6 and 15.” “The younger of the
children were in sundresses,” and “[t]he teenage females were in cheerleader
outfits.” When questioned about the images, the defendant stated that he did
not have any nieces or nephews and that there were no photographs of family
members on his computer. The defendant also “admitted that he was inclined
to have images of younger females if they were wearing pantyhose or tights.”

       The defendant was subsequently arrested for indecent exposure and
lewdness. See RSA 645:1 (2016). The police seized his cell phone, his laptop,
and an external hard drive that they found in the vehicle. At the police station,
the defendant was questioned further about the images observed on his
computer. He told the police that “there were some folders on his laptop which
contained pornography” and “estimated that there were approximately 500
images.” He denied that his cell phone contained pornography. The defendant
also stated that he used the external hard drive found in his vehicle “to back
up his computer,” and that he “used the public access wifi service at the
Nashua Library to access the Torrent website to download movies and
television shows . . . so that the downloads would not be traced back to him.”



                                        2
The defendant told the police that he does not use “the Torrent network for
pornography”; instead, he “uses Google and Yahoo!” to search for pornography.

       “When asked specifically about the images of the children, [the
defendant] stated that the images sometimes appear when he searches for his
fetishes[:] pantyhose, legs, and/or feet.” The defendant told the police that, to
his knowledge, none of the images were “of someone who is pre-teen.” He
“added that he likes ‘cheesecake pictures,’” which are “images that are meant
to be a tease, not nude, but suggestive.” The officer-affiant who later applied
for the search warrant averred that “[t]his description matches that of what
officers observed mixed within the adult pornography observed,” and that
“[t]hese types of images are referred to as child erotica, which is typically a
prelude to sexually explicit images of children.”

      The defendant was also questioned about his conduct in the pick-up
truck. He initially told the police that “his pants were down as a result of
preparing to change his underwear when his girlfriend called,” but later
“admitted that his laptop was open with one of his images to ‘stimulate’
himself.”

       During the interview, the police questioned the defendant about “a
similar situation” that had occurred in Salem. The defendant claimed that he
was arrested by the Salem police for disorderly conduct after giving someone
the middle finger. The interviewing detectives contacted the Salem police who
reported that the defendant had actually been arrested for indecent exposure
and lewdness as well as disorderly conduct in August 2014, after he was found
in a parked vehicle in a similar state of undress, viewing adult pornography on
his laptop. Although this information established that the defendant had not
been fully forthcoming in his description of his Salem arrest, it provided no
evidence that he had been found in possession of child pornography.

       Near the end of the February 2016 interview, the defendant refused a
request by the police to provide the password to his laptop, stating that “there
were banking records on his computer.” The police thereafter applied for a
warrant to search the defendant’s laptop, external hard drive, and cell phone
for evidence of the crime of possession of child sexual abuse images.

       In addition to the information recounted above, the affidavit supporting
the search warrant application contained information based on the training
and experience of the officer-affiant. He averred that, “[b]ased on [his] previous
investigative experience related to child pornography investigations, [his]
training, and the experience of other law enforcement officers with whom [he
has] had discussions, [he] know[s] there are certain characteristics common to
individuals who . . . possess . . . child pornography.” He averred that such
individuals: (1) “may receive sexual gratification, stimulation, and satisfaction
from . . . fantasies they may have [when] viewing children engaged in sexual


                                        3
activity or in sexually suggestive poses, . . . in person, in photographs, or other
visual media, or from literature describing such activity”; (2) “may collect
sexually explicit or suggestive materials” and “often use these materials for
their own sexual arousal and gratification”; (3) “almost always possess and
maintain their ‘hard copies’ of child pornographic material . . . in the privacy
and security of their home” and “typically retain pictures, films, photographs,
. . . child erotica, and videotapes for many years”; (4) “often maintain their child
pornography images in a digital or electronic format in a safe, secure and
private environment, such as a computer”; (5) “may correspond with and/or
meet others to share information and materials” related to child pornography;
(6) “generally have knowledge about how to access hidden and secretive cloud
based locations involved with child pornography”; and (7) “typically prefer not
to be without their child pornography for a prolonged time period.”

       The Circuit Court (Ryan, J.) granted the search warrant application
based upon the submitted affidavit. A forensic examination of the defendant’s
laptop and external hard drive revealed the images that later served as the
basis for the charges of possession of child sexual abuse images. Each charge
was based upon a separate digital image found on the defendant’s electronic
devices. Before trial, the defendant moved to suppress the images, arguing
that the affidavit supporting the search warrant application failed to establish
probable cause. The superior court denied the motion, after determining that
the affidavit established “a fair probability that evidence of child pornography
would be found on [the] defendant’s computer and hard drive.”

      B. Analysis

       The defendant argues that the search warrant was not supported by
probable cause, in violation of the State and Federal Constitutions. See N.H.
CONST. pt. I, art. 19; U.S. CONST. amends. IV, XIV. We first address the
defendant’s claim under the State Constitution and rely upon federal law only
to aid our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).

      Part I, Article 19 of the State Constitution requires that search warrants
be issued only upon a finding of probable cause. State v. Ball, 164 N.H. 204,
207 (2012). Probable cause to search 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 task of the issuing magistrate “is to make a practical, common-sense
decision whether[,] given all the circumstances set forth in the affidavit . . . ,
there is a fair probability that contraband or evidence of a crime will be found
in a particular place.” Id. (quotation omitted); see Illinois v. Gates, 462 U.S.
213, 238 (1983). Although an affidavit may establish probable cause to search
without the observance of contraband at the place to be searched, to meet



                                         4
constitutional muster, it must evince a sufficient nexus between the illicit
objects and the place to be searched. Ball, 164 N.H. at 207.

       We afford much deference to the magistrate’s probable cause
determination. Id. at 208. Our task on appeal is “to ensure that the
magistrate had a substantial basis for concluding that probable cause existed.”
Gates, 462 U.S. at 238-39 (quotation, ellipsis, and brackets omitted); see Ball,
164 N.H. at 207. In so doing, we may consider only the information that was
brought to the magistrate’s attention, which in this case is restricted to the
information set forth in the affidavit supporting the warrant application. See
Ball, 164 N.H. at 207.

       Like the magistrate, we review the affidavit in a common-sense manner.
Id. We “will not invalidate warrants by reading the supporting affidavit in a
hypertechnical sense,” and we resolve “close cases by the preference to be
accorded to warrants.” Id. at 208 (quotation omitted); see Gates, 462 U.S. at
236. Nevertheless, under this standard, we may properly conclude that a
warrant is invalid because the magistrate’s probable cause determination
“reflected an improper analysis of the totality of the circumstances.” Ball, 164
N.H. at 207 (quotation omitted). We review the superior court’s decision
regarding the sufficiency of the affidavit de novo. See id.

       The issue in this case is whether the affidavit provided the magistrate
with a substantial basis for finding that there was a fair probability that the
defendant’s laptop, cell phone, or external hard drive contained child sexual
abuse images. A child sexual abuse image is an image that depicts a child
engaged in “sexually explicit conduct.” RSA 649-A:3, I(a). A “child” is a person
younger than 18 years of age. RSA 649-A:2, I. “Sexually explicit conduct”
includes: masturbation; touching one’s own “sexual organs” or those of another
“in the context of a sexual relationship”; actual or simulated “normal or
perverted” sexual intercourse, “whether alone or between members of the same
or opposite sex”; and “any lewd exhibitions” of the buttocks or genitals. RSA
649-A:2, III.

       Viewing the affidavit in a common-sense manner and considering the
totality of the circumstances set forth therein, we conclude that the magistrate
did not have a substantial basis for finding that there was a fair probability
that child sexual abuse images would be found on the defendant’s electronic
devices. In this case, the images that the officers viewed on the defendant’s
laptop were of adult women “in various stages of undress and positions,” girls
in sundresses, and female teenagers in cheerleader outfits. The affidavit did
not allege that any of the images the police viewed constituted child sexual
abuse images. See United States v. Edwards, 813 F.3d 953, 963, 965 (10th
Cir. 2015). On appeal, the State does not contend otherwise. The defendant’s
inclination to view pornographic images of adult women, images of girls in
sundresses and teenagers in cheerleader outfits, or images of “younger


                                        5
females” in pantyhose or tights is insufficient to support the inference that he
would commit the crime of possessing child sexual abuse images and that his
electronic devices would contain such images. See Jacobson v. United States,
503 U.S. 540, 551 (1992).

       “In other contexts, courts are reluctant to presume that persons are
inclined to engage in certain illegal activity based on having engaged in a
particular legal activity.” Edwards, 813 F.3d at 964. In Jacobson, for example,
an entrapment defense case, the United States Supreme Court found that the
petitioner was “acting within the law” when he received magazines containing
“sexually explicit depictions of children” because, at the time, that conduct was
lawful. Jacobson, 503 U.S. at 551. The Court ruled that his receipt of the
magazines could not establish his predisposition to receive or possess child
pornography “independent of the Government’s acts,” as required to defeat his
entrapment defense. Id. at 554. As the Court explained, “proof that petitioner
engaged in legal conduct and possessed certain generalized personal
inclinations is not sufficient evidence to prove beyond a reasonable doubt that
he would have been predisposed to commit the crime charged independent of
the Government’s coaxing.” Id. at 551 n.3. “Evidence of predisposition to do
what once was lawful is not, by itself, sufficient to show predisposition to do
what is now illegal, for there is a common understanding that most people obey
the law even when they disapprove of it.” Id. at 551.

      “Admittedly, Jacobson is distinguishable not only because of its focus on
entrapment but also because . . . [it] concerns the quantum of evidence
required for proof beyond a reasonable doubt at trial.” Edwards, 813 F.3d at
964 (citations omitted). “Nevertheless, we find its reasoning instructive on the
danger of assuming that legal conduct standing alone suggests the actor is also
inclined to engage in criminal conduct.” Id.

      We acknowledge that “the relevant inquiry is not whether particular
conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to
particular types of noncriminal acts,” Gates, 462 U.S. at 243 n.13, and that
“innocent or legal conduct may be infused with the degree of suspicion
necessary to support a finding of probable cause when examined through the
lens of those versed in the field of law enforcement,” Edwards, 813 F.3d at 965
(quotations omitted). However, even when we view the affidavit through the
insight provided by the officer-affiant’s law enforcement experience, we
conclude that it failed to provide a link between the viewing of legal adult
pornography and so-called “child erotica” and the possession of child sexual
abuse images sufficient to establish a fair probability that such illegal images
would be found on the defendant’s laptop, external hard drive, and/or cell
phone. See id. at 964-69.




                                        6
       The affidavit contained only one allegation purporting to link the
possession of “child erotica” with the possession of child sexual abuse images:
the affiant’s averment that “child erotica . . . is typically a prelude to sexually
explicit images of children.” However, the affiant did not provide any
foundation for this statement. Rather the affidavit posited that individuals who
have sexual images of children typically retain those images, including child
erotica, for many years. If the officer-affiant meant that people who possess
child pornography have been shown to have possessed “child erotica” before
possessing the child pornography, we have no reason to question that this may
“typically” be true. However, the problem here is that there was no evidence
that the defendant possessed child pornography — instead, that was what the
police were hoping to learn by obtaining the warrant. If what the officer-affiant
meant, however, was that people who possess only non-pornographic images of
children “typically” also possess child pornography, the affidavit provided no
basis on which to assess the accuracy of that assertion.

      In addition, the affidavit included allegations about the common
characteristics of individuals who possess child pornography. However, those
allegations were “not drafted with the facts of this case or this particular
defendant in mind.” United States v. Weber, 923 F.2d 1338, 1345 (9th Cir.
1990). The officer-affiant averred that he knew that “there are certain
characteristics common to individuals who . . . possess . . . images of child
pornography” and that the defendant “likely displays” those characteristics.
However, the affidavit failed to allege any facts that would provide a substantial
basis for believing that the defendant actually exhibited those characteristics.

       For example, the officer-affiant averred that one common characteristic
of individuals who possess child pornography is that they receive sexual
gratification “from contact with children” or “from fantasies they may have
[when] viewing children engaged in sexual activity or in sexually suggestive
poses.” Yet, there were no allegations that the defendant had any contact with
children or that he fantasized about children. Similarly, the officer-affiant
averred that individuals who possess child pornography may collect “sexually
explicit or suggestive materials” featuring children for “their own sexual arousal
and gratification” or use such “materials to lower the inhibitions of children
they are attempting to seduce,” yet there were no allegations that the defendant
collected such materials or that he used them to seduce children. Nor does the
affidavit’s general statement that individuals who possess child pornography
“often maintain their child pornography images” in a computer suffice. “There
simply is nothing in this statement indicating that it is more (or less) likely that
[the defendant’s] computer might contain images of child pornography.” United
States v. Falso, 544 F.3d 110, 122 (2d Cir. 2008). In short, the officer-affiant’s
assertions about the common characteristics of those who possess child sexual
abuse images do not establish a fair probability that the defendant shared
those characteristics. See Edwards, 813 F.3d at 969.



                                         7
       In this case, the defendant was viewing pornographic images of adult
women, not of children. The other images the officers viewed on his laptop
were of girls in sundresses and female teenagers in cheerleader outfits, and,
although the officer-affiant describes those images as “child erotica,”1 he does
not aver that they constitute child sexual abuse images. The fact that the
defendant’s laptop contained pornographic images of adult women and non-
pornographic images of “younger females” did not provide a substantial basis
for the magistrate to find probable cause that it also contained child sexual
abuse images. See United States v. Perkins, 850 F.3d 1109, 1120, 1122 (9th
Cir. 2017) (holding that the defendant’s “legal possession of two non-
pornographic images” and two 20-year-old convictions for incest and child
molestation were insufficient to support probable cause to search for child
pornography). Accordingly, we reverse the superior court’s conclusion to the
contrary. Because the defendant has prevailed under the State Constitution,
we need not reach his argument under the Federal Constitution. See Ball, 124
N.H. at 237.

II. Sufficiency of the Evidence

       Although we conclude that the evidence obtained from the search warrant
should have been suppressed at trial, we address the defendant’s argument that
the evidence was insufficient to convict him because the State has not indicated
whether it intends to retry him, and because, if the evidence was insufficient,
“the Double Jeopardy Clauses of both the New Hampshire and United States
Constitutions would preclude a new trial.” State v. Gordon, 161 N.H. 410, 418
(2011) (quotation omitted). When analyzing the sufficiency of the evidence, we
consider all of the evidence, including that which was erroneously admitted. Id.;
see State v. Morrill, 169 N.H. 709, 718 (2017) (explaining that “although the
evidence seized during the search . . . should not have been admitted at trial, we
consider this evidence in assessing the defendant’s challenge to the sufficiency of
the evidence”).

       RSA 649-A:3 states, in relevant part, that “[n]o person shall knowingly . . .
possess . . . any visual representation of a child engaging in sexually explicit
conduct.” RSA 649-A:3, I(a). The defendant argues that the evidence was
insufficient to prove, beyond a reasonable doubt, that the images associated with
the seven indictments depict “sexually explicit conduct.” See RSA 649-A:2, III, :3,
I(a). He further challenges three of the indictments on the ground that the
images associated with them do not depict an individual younger than 18 years
of age. See RSA 649-A:2, I (defining “[c]hild” as “any person under the age of 18
years”).

       When considering a challenge to the sufficiency of the evidence, we
objectively review the record to determine whether a rational trier of fact could

1   We note that “child erotica” is a legally inexact term.


                                                     8
have found the essential elements of the crime beyond a reasonable doubt,
considering all of the evidence and all reasonable inferences therefrom in the
light most favorable to the State. State v. Houghton, 168 N.H. 269, 271 (2015).
We will assume, without deciding, that the images are circumstantial evidence of
the age of the individuals depicted. See id. “When the evidence is solely
circumstantial, it must exclude all rational conclusions except guilt.” State v.
Lopez, 162 N.H. 153, 155 (2011) (quotation omitted). “Under this standard,
however, we still consider the evidence in the light most favorable to the State
and examine each evidentiary item in context, not in isolation.” Id. (quotation
omitted).

      A. Age

      The defendant contends that the evidence was insufficient to prove,
beyond a reasonable doubt, that the images associated with indictments
1240145C, 1240148C, and 1240149C depict an individual younger than 18
years of age. “We have previously observed that the determination of the age of
the subjects in a photograph is for the trier of fact, relying on everyday
observations and common experiences.” Houghton, 168 N.H. at 272 (quotation
and brackets omitted). “In determining child pornography, based upon its
everyday experiences, a trier of fact can determine from a photograph whether
the subject is under the age of 18.” Id. (quotation omitted).

      Indictment 1240145C: The girl in the image associated with this
indictment is very small in stature and appears to have no indicators of
puberty. Her face is that of a young child.

       Indictment 1240148C: The face of the girl in the image associated with
this indictment appears to be that of a younger teenager. Her lack of body
development suggests that she has not completed puberty.

      Indictment 1240149C: The girl in the image associated with this
indictment appears to be a young child. She is small in stature. There are no
indicators that she has started puberty.

      Viewing these images in the light most favorable to the State, we
conclude that the evidence was sufficient for a rational trier of fact to have
found, beyond a reasonable doubt, that these images depict girls younger than
18 years of age.

      B. Sexually Explicit Conduct

      The defendant also contends that the evidence was insufficient for a
rational trier of fact to have found, beyond a reasonable doubt, that the images
associated with the seven indictments depict “sexually explicit conduct.” See
RSA 649-A:3, I(a). “Sexually explicit conduct” is statutorily defined as:


                                        9
      human masturbation, the touching of the actor’s or other person’s
      sexual organs in the context of a sexual relationship, sexual
      intercourse actual or simulated, normal or perverted, whether
      alone or between members of the same or opposite sex or between
      humans and animals, or any lewd exhibitions of the buttocks,
      genitals, flagellation, bondage, or torture. Sexual intercourse is
      simulated when it depicts explicit sexual intercourse that gives the
      appearance of the consummation of sexual intercourse, normal or
      perverted.

RSA 649-A:2, III. The specific sexually explicit conduct at issue with these
seven images is an alleged lewd exhibition of the buttocks or genitals.

       The legislature has not defined what constitutes a lewd exhibition of the
buttocks or genitals. See Lopez, 162 N.H. at 156. In Lopez, we identified the
following factors as “instructive” in determining whether a visual depiction
constitutes “a lewd exhibition of the genitals”:

      1) whether the focal point of the visual depiction is on the child’s
      genitalia or pubic area;

      2) whether the setting of the visual depiction is sexually suggestive,
      i.e., in a place or pose generally associated with sexual activity;

      3) whether the child is depicted in an unnatural pose, or in
      inappropriate attire, considering the age of the child;

      4) whether the child is fully or partially clothed, or nude;

      5) whether the visual depiction suggests sexual coyness or a
      willingness to engage in sexual activity; [and]

      6) whether the visual depiction is intended or designed to elicit a
      sexual response in the viewer.

Id. (quotation omitted). Not all of these factors must be present to conclude
that a visual depiction is a lewd exhibition. Id.

      Indictment 1240142C: The image associated with this indictment depicts
a naked, prepubescent girl with strappy high heels and flowers in her hair.
Her pose is unnatural; one of the cheeks of her buttocks is exposed.

      Indictment 1240143C: The image associated with this indictment depicts
a naked, prepubescent girl lying on her side displaying her buttocks as well as
her genitals.



                                        10
     Indictment 1240145C: The image associated with this indictment depicts
a naked, prepubescent girl lying on her stomach with her head resting on her
hands, the position of her legs drawing attention to her naked buttocks.

     Indictment 1240146C: The image associated with this indictment depicts
a naked, prepubescent girl lying on her side, displaying her genitals.

      Indictment 1240147C: The image associated with this indictment depicts
a naked, prepubescent girl lying on her side in the water, with her legs spread
apart, displaying her buttocks as well as her genitals.

     Indictment 1240148C: The image associated with this indictment depicts
a naked pubescent girl, buttock exposed, lying unnaturally, bent back on top of
another naked female.

      Indictment 1240149C: The image associated with this indictment depicts
a prepubescent girl posing naked on a carpet, with her feet spread apart,
displaying her genitals.

      Based upon our review of the images in the light most favorable to the
State, and after considering the above-enumerated factors, we conclude that
the evidence was sufficient for a rational trier of fact to have found, beyond a
reasonable doubt, that each image depicts “sexually explicit conduct.”

                                                   Reversed and remanded.

      LYNN, C.J., and HICKS, BASSETT, and DONOVAN, JJ., concurred.




                                        11
