Filed 9/11/14 P. v. Bernal CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040437
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1242138)

         v.

JEREMY ROCHA BERNAL,

         Defendant and Appellant.




                                           I.        INTRODUCTION
         After the trial court denied his motion to suppress evidence, defendant Jeremy
Rocha Bernal pleaded no contest to possession of child pornography. (Pen. Code,
§ 311.11, subd. (a).1) Defendant was placed on probation and ordered to serve four
months in county jail plus 60 days of hard labor.
         On appeal, defendant contends the trial court erred by denying his motion to
suppress. He argues that there was no probable cause to support issuance of a search
warrant for his residence, which was associated with an internet protocol address from
which child pornography was being transmitted. We disagree and will affirm the
judgment.


         1
             All further statutory references are to the Penal Code unless otherwise indicated.
                                 II.    BACKGROUND
       A.     Factual Background
       On August 2, 2011, while working with the Silicon Valley Internet Crimes
Against Children Task Force, San Jose Police Officer Russell Chubon applied for and
obtained a search warrant for the premises of 752 Wedgewood Drive.
       In his probable cause statement, Officer Chubon described his training and
expertise in investigating sexual assaults, child pornography, child sexual exploitation,
and child molestation. His training included a 40-hour course on child pornography
investigative techniques, a 28-hour course on child pornography peer-to-peer
investigations, and a 21-hour course on commercial sexual exploitation of children.
       Officer Chubon explained that peer-to-peer networks are frequently used by
persons trading in child pornography. A person can install peer-to-peer software in order
to search for and download pornography that is located on other users’ computers.
Officer Chubon further explained that Internet Protocol (IP) addresses are used to identify
the location of computers on the internet. With an IP address, police can identify a user’s
internet service provider, and the service provider can identify the account holder.
       On separate occasions, Officer Chubon and another officer had both used peer-to-
peer software to locate a computer that was sharing files containing child pornography.
The computer had an IP address of 98.248.73.18. That IP address was assigned to
Comcast Cable Communications, Inc., which informed the officers that the account was
associated with a residence at 752 Wedgewood Drive. The account was in defendant’s
uncle’s name.
       On August 4, 2011, officers served the search warrant at 752 Wedgewood Drive, a
three or four bedroom single family residence where five or six people lived, including
defendant. In a hall closet, officers found compact discs and DVD’s containing child
pornography. Defendant was present during the search and acknowledged the items in
the closet belonged to him. Defendant’s sister confirmed that defendant had been

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sleeping on the couch and keeping his belongings in the hall closet. Defendant’s sister
also stated that defendant was in charge of maintaining the family computer.
       B.     Procedural Background
       Defendant was charged with possession of child pornography. (§ 311.11,
subd. (a).) He subsequently filed a motion to quash the search warrant and suppress
evidence. In the motion, defendant argued that the search warrant was issued without
probable cause and that the good faith exception to the exclusionary rule did not apply
because a reasonable and well-trained officer would have known that the affidavit failed
to establish probable cause. Specifically, defendant argued that because his residence
was equipped with an “open wireless router,” another person could have been linked into
the IP address from which the child pornography had been shared. Defendant attached a
declaration from an expert who asserted that “anyone in range of the wireless router
could connect to the network in the Bernal residence without a password” and that
activities performed by such a person could be traced back to the IP address associated
with that residence.
       The prosecution filed a memorandum in opposition to defendant’s motion to
suppress. The prosecution argued that probable cause to search existed despite the
possibility that someone else had accessed the network at defendant’s residence, and that
in any event, the officers executing the search relied in good faith on the issuance of the
warrant.
       At the hearing on defendant’s motion to suppress, trial counsel asserted that an IP
address is not associated with a particular computer, but with a signal. Since the signal
came from a wireless network, it could have been accessed by someone outside the
residence. He argued that because there was no “corroboration that this computer
actually rested inside that house,” there was not a “fair probability” that the child
pornography would be found in the house.



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       The trial court noted there was a “possibility” that someone outside the home had
accessed the network, but that there was “still a fair probability” that the child
pornography was actually located in the home. The trial court denied defendant’s motion
to suppress.

                                    III.   DISCUSSION
       Defendant contends the trial court erred by denying his motion to suppress. He
claims the search warrant affidavit was based on speculation that child pornography
would be located at 752 Wedgewood Drive, since the IP address could have been
accessed by someone else over the open wireless network.
       A.      Standard of Review
       “In ruling on a motion to suppress, the trial court must find the historical facts,
select the rule of law, and apply it to the facts in order to determine whether the law as
applied has been violated. [Citation.] We review the court’s resolution of the factual
inquiry under the deferential substantial evidence standard. The ruling on whether the
applicable law applies to the facts is a mixed question of law and fact that is subject to
independent review. [Citation.]” (People v. Ramos (2004) 34 Cal.4th 494, 505.)
       B.      Probable Cause Standard
       “Probable cause to search exists when, based upon the totality of the
circumstances described in the affidavit, ‘there is a fair probability that contraband or
evidence of a crime will be found in a particular place.’ [Citations.]” (People v. Farley
(2009) 46 Cal.4th 1053, 1098, quoting Illinois v. Gates (1983) 462 U.S. 213, 238.) “A
‘practical, nontechnical’ probability that incriminating evidence is involved is all that is
required.” (Texas v. Brown (1983) 460 U.S. 730, 742.) “ ‘The process does not deal with
hard certainties, but with probabilities.’ ” (Ibid.)




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       C.     Analysis
       Defendant has not cited, and we have not found, any published California case
supporting his argument.2 Federal cases have uniformly rejected the claim that the use of
an unsecured wireless network vitiates the probable cause that would otherwise exist to
search the home of an Internet subscriber whose IP address is used to access child
pornography. (See, e.g., United States v. Vosburgh (3d Cir. 2010) 602 F.3d 512, 526 &
fn. 13 [listing cases]; United States v. Perez (5th Cir. 2007) 484 F.3d 735, 740 (Perez);
United States v. Hay (9th Cir. 2000) 231 F.3d 630, 634-635; U.S. v. Carter (D. Nev.
2008) 549 F.Supp.2d 1257, 1267 [affidavit was not misleading insofar as it represented
that there was probable cause to believe child pornography was located at premises
associated with a particular IP address].)
       In Perez, the defendant claimed “that the association of an IP address with a
physical address does not give rise to probable cause to search that address,” since
neighbors could have accessed an unsecure wireless connection to make the illicit
transmissions. (Perez, supra, 484 F.3d at p. 740.) The Fifth Circuit rejected the claim:
“[T]hough it was possible that the transmissions originated outside of the residence to
which the IP address was assigned, it remained likely that the source of the transmissions
was inside that residence. [Citation.] ‘[P]robable cause does not require proof beyond a
reasonable doubt.’ [Citation.]” (Ibid., italics added, fn. omitted.)
       We agree with the federal cases cited above. Here, it was possible that the child
pornography originated outside of the residence to which the IP address was assigned, but


       2
          Defendant cites several unpublished federal district court opinions that recognize
it is possible for neighbors and passersby to access an unsecured wireless network, but he
does not claim that any cases have held that this possibility vitiates probable cause for a
search warrant. Defendant also asserts that “[r]ecognized experts in the area of cyber
crimes have long agreed that the identification of an IP address alone is insufficient to
support . . . the issuance of a search warrant,” and he quotes from a journal article, but
provides an insufficient citation for the journal.

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“it remained likely that the source of the transmissions was inside that residence.” (See
Perez, supra, 484 F.3d at p. 740.) In other words, although it may not have been certain
that the child pornography came from the residence associated with the IP address, there
remained at least “a fair probability that contraband or evidence of a crime” would be
found there. (Illinois v. Gates, supra, 462 U.S. at p. 238.) The trial court did not err by
denying defendant’s motion to suppress.

                                   IV.   DISPOSITION
       The judgment is affirmed.




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                             ___________________________________________
                             BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MÁRQUEZ, J.




__________________________
GROVER, J.
