                                                                                             ACCEPTED
                                                                                        03-14-00090-CR
                                                                                               3806155
                                                                              THIRD COURT OF APPEALS
                                                                                         AUSTIN, TEXAS
                                                                                   1/16/2015 5:00:42 PM
                                                                                      JEFFREY D. KYLE
                                                                                                 CLERK


                                  No. 03-14-00090-CR
                                                                        FILED IN
                                                                 3rd COURT OF APPEALS
    Jn tbe Qeourt of ~peals for tbe m;btrb ~upreme                   AUSTIN, TEXAS
                                                                 1/16/2015 5:00:42 PM
         jfubicial 1!\istrict of mexas at ~ustin                   JEFFREY D. KYLE
                                                                         Clerk




                                 No. D-1-DC-10-100006

                          In the District Court for the 299th
                       Judicial District, Travis County, Texas


                         PAUL MARTIN AHERN, APPELLANT
                                          v.
                             STATE OF TEXAS, APPELLEE



                            APPELLANT'S REPLY BRIEF



                             Oral Argument Requested




DAVID GONZALEZ
State Bar No. 24012711

KRISTIN ETTER
State Bar No. 24038884

SUMPTER & GONZALEZ, L.L.P
206 East 9th Street, Ste. 1511
Austin, Texas 78701
Tel.: (512) 381-9955
Fax: (512) 485-3121

ATTORNEYS FOR APPELLANT
TABLE OF CONTENTS

PARTIES TO TRIAL COURT'S FINAL JUDG:MENT .......................................... 4

INDEX OF AUTHORITIES ..................................................................................... 3

INTRODUCTION ..................................................................................................... 5

ARGUMENT ............................................................................................................. 8

  The uploading of two images of child pornography over a fifteen month period
  does not qualify as "ongoing criminal activity" nor does that assertion, without
  more, support an assumption that Mr. Ahern was a "collector" of child
  pornography ............................................................................................................ 8

  A. Two images of child pornography over a fifteen month period
  . not evi.dence of ''ongoing
  IS                       . or contmuous
                                    .       . . 1 activity
                                          cnmina     . . ,, ............................. . 10

  B. Two uploads of child pornography with nothing more is not
  evidence that Mr. Ahern was a "collector" of child pornography ....................... 12

CONCLUSION ....................................................................................................... 13

PRAYER ................................................................................................................. 14




Appellant's Reply Brief- Page 2
Paul Martin Ahern v. State ofTexas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3rd District ofTexas
Trial Court Cause No. DIDC10100006; in the 299'h District Court ofTravis County, Texas
                                   INDEX OF AUTHORITIES
CASES

TEXAS

  COURT OF CRIMINAL APPEALS

  Wise v. State, 364 S.W.3d 900, (Tex.Crim.App. 2012) ......................................... 8

  THIRD COURT OF APPEALS

  Kennedy v. State, 338 S.W.3d 84, (Tex.App.-Austin 2011, no pet.) .......... ,. ....... 11

  Taylor v. State, 54 S.W.3d 21 (Tex.App.-Amarillo 2001) ................................... 14

FEDERAL

  CIRCUIT COURTS

  United States v. Gourde, 440 F .3d I 065 (9th Cir. 2006) ........................................ 6

  United States v. Harvey, 2 F.3d 1318 (3rd Cir.1993) ............................................ 12

  United States v. Lacy, 119 F.3d 742 (9th Cir. 1997) ............................................. 11

  United States v. Newsome, 402 F .3d 780 (7th Cir. 2005) ...................................... 12

  United States v. Pitts, 6 F .3d 1366 (9th Cir. 1993) ................................................. 7

  United States v. Wagner, 989 F .2d 69 (2nd Cir. 1993) ......................................... 11

  DISTRICT COURTS

  United States v. Coon, 2011 WL 1871165 (W.D.N.Y.2011) ............................ 7,11

  United States v. Greathouse, 297 F. Supp. 2nd 1264 (D. Or. 2003) .................. 7,10



Appellant's Reply Brief- Page 3
Paul Martin Ahern v. State ofTexas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3rri District ofTexas
Trial Court Cause No. DJDC10100006; in the 299h District Court ofTravis County, Texas
                 PARTIES TO TRIAL COURT'S FINAL JUDGMENT


         In accordance with Tex.R.App.Proc. 38.l(a), Appellant certifies that the

following is a complete list of the parties and their counsel:

         (a) the State of Texas represented by:

                 Mary Ann Farrington- trial attorney
                 Travis County District Attorney's Office
                 PO Box 1748
                 Austin, TX 78767

                 Rosa Theofanis - appellate attorney
                 Travis County District Attorney's Office
                 PO Box 1748
                 Austin, TX 78767

                 Scott Taliaferro - appellate attorney
                 Travis County District Attorney's Office
                 PO Box 1748
                 Austin, TX 78767

         (b)Mr. Paul Martin Ahem, represented by:

                 David Gonzalez - trial and appellate attorney
                 State Bar No. 24012711
                 Sumpter & Gonzalez, L.L.P.
                 206 East 9th Street, Suite.1511
                 Austin, Texas 78701

                 Kristin Etter - trial and appellate attorney
                 State Bar No. 24038884
                 Sumpter & Gonzalez, L.L.P.
                 206 East 9th Street, Suite 1511
                 Austin, Texas 78701


Appellant's Reply Brief- Page 4
Paul Martin Ahern v. State of Texas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3rd District ofTexas
Trial Court Cause No. DlDC10100006; in the 299'h District Court ofTravis County, Texas
TO THE HONORABLE JUDGES OF THE COURT OF APPEALS:

        COMES NOW, Paul Martin Ahem, Appellant in this cause, by and through

his Attorneys of record, David Gonzalez and Kristin Etter, and, pursuant to the

provisions of Tex.R.App.Pro. 38, et seq., files this Appellant's Reply Brief on

original appeal.


                                           INTRODUCTION

        The nature of this case follows the path of how outliers in society test the

principles of Constitutional law. Members of white supremacist groups may

communicate their racist beliefs under the protection of the First Amendment.

Murderers may rely upon the Fifth Amendment to invoke their right to remain

silent when confronted in a hostile interrogation. Even citizens and noncitizens

retain their Sixth Amendment right to counsel when there is overwhelming

evidence that they committed a terrorist act against this country.

        And people who use their computer to look at naked people - including

child erotica - retain a Fourth Amendment protection of their right to privacy

absent probable cause they currently possess child pornography.

        It has been proposed that "[s]ex with children is so disgusting to most of us

that we may be too liberal in allowing searches when the government investigates

child pornography cases. The privacy of people's computers is too important to let

Appellant's Reply Brief- Page 5
Paul Martin Ahern v. State ofTexas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3rd District ofTexas
Trial Court Cause No. DIDCIOI00006; in the 29!l' District Court ofTravis County, Texas
it be eroded by sexual disgust." United States v. Gourde, 440 F.3d 1065, 1078 (9th

Cir. 2006) (Kleinfeld, J. dissenting). "In this age of increasing government

surveillance, lawful and unlawful, and of the retention of all our deeds and

thoughts on computers long after we may believe they have been removed, it is

important that courts not grow lax in their duty to protect our right to privacy and

that they remain vigilant against efforts to weaken our Fourth Amendment

protections. It is easy for courts to lose sight of these objectives when the

government seeks to obtain evidence of child pornography . . ."United States v.

Gourde, 440 F.3d 1065, 1074 (9th Cir. 2006) (Reinhardt, J., dissenting).

        These spirited and principled dissenting opinions do not embrace the

objectionable and offensive nature of child pornography. Rather, the opinions

express significant concerns in our cognitive bias that we bend the rules in order to

refuse protection to materials that we find disgusting and abhorrent. Regretfully,

many courts have taken a more lax approach to the staleness doctrine in the context

of child pornography cases. Even so, sufficient evidence or probable cause must

still be alleged in the search warrant. Probable cause to believe that a suspect has

committed a crime is not by itself adequate to obtain a search warrant for a

suspect's home and claims of staleness must still be evaluated "in light of the




Aopellant's Reply Brief- Page 6
Paul Martin Ahern v. State ofTexas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3rJ District ofTexas
Trial Court Cause No. DIDC10100006; in the 299h District Court ofTravis County, Texas
particular facts of the case and the nature of the criminal activity and property

sought." United States v. Pitts, 6 F.3d 1366, 1369 (9th Cir. 1993).

        The State concedes the search warrant "affidavit included positive

verification of only two of the reported child pornographic images as being child

pornography" over a fifteen month period. STATE'S BRIEF at 20 (emphasis added).

However, in an attempt to bolster its position that the search warrant was not stale,

the government mischaracterizes- inadvertently or not- a central issue in this

case: that "the suspected child pornographic images that were uploaded based on

the 'Cybertips' were far greater in number" and that the affidavit stated that

"appellant's account was implicated in three formal complaints for uploading

hundreds of child pornographic images."                       STATE'S BRIEF at 20-22 (emphasis

added).      Those statements are false and inaccurate. Nothing in the affidavit

supports these assertions. There is simply no basis, in law or in fact, for the State's

mischaracterizations.

        As a consequence, because the State's entire argument rests on the faulty

assumption that there were hundreds of images of child pornography referenced in

the affidavit, all of its arguments and the attempts to distinguish Mr. Ahem's

supporting caselaw such as Coon and Greathouse are unfounded and misguided.

Because the search warrant affidavit only identifies two images of child


Appellant's Reply Brief- Page 7
Paul Martin Ahern v. State ofTexas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3rJ District ofTexas
Trial Court Cause No. D1DC10100006; in the 29ffh District Court ofTravis County, Texas
pornography that were uploaded over a fifteen month period prior to the search

warrant application, the search warrant was stale and thus not supported by

probable cause.

                                               ARGUMENT

         The uploading of two images of child pornography over a fifteen month
         period does not qualify as "ongoing criminal activity" nor does that
         assertion, without more, support an assumption that Mr. Ahern was a
         "collector" of child pornography.

         The State argues the search warrant affidavit was based upon Sgt. Padron

receiving information that on November 16, 2008 and December 29, 2008 a

Flickr.com subscriber "had uploaded 181 images of child pornography (emphasis

added)." STATE'S BRIEF, at 18. That is a misquote of the affidavit. The correct

quotation is that on November 16, 2008 and on December 29, 2008 a Flicker.com

subscriber had uploaded "181 images that contained child pornography" R.R. VI,

11 (emphasis added). Then on March 27, 2009, a Flicker.com subscriber again

uploaded 70 images "that contained child pornography." R.R. VI, 12 (emphasis

added).

         At first glance this appears to be a semantic difference. It is not. In the

affidavit, after personally viewing presumably all of the images, Sgt. Padron

confirmed that there were only two images of child pornography out of the two

hundred fifty one images. This is a crucial distinction. While possession of child

Appellant's Reply Brief- Page 8
Paul Martin Ahern v. State of Texas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3rcJ District ofTexas
Trial Court Cause No. DIDCI0100006; in the 299'11 District Court ofTravis County, Texas
pornography is obviously illegal, possession of adult pornography or child erotica
•         1
1s not.

          Thus, while the search warrant affidavit references the uploading of 181

images and 70 images on those three separate dates, in analyzing the sufficiency of

the search warrant affidavit, there were only two confirmed images of child

pornography, "img92.jpg" and "img 154.jpg," out of two hundred fifty one total

images. R.R. VI, 17-18. This is notable because that means that only .008% ofthe

images that Mr. Ahem was accused of uploading were verifiable images of child

pornography, a factor which weighs against any finding that Mr. Ahem was a

"collector" of child pornography. This significant distinction, as to whether the

affidavit stated there were hundreds of images of child pornography or only two

images, is critical when analyzing the four comers of the affidavit to determine

whether Mr. Ahem was in fact involved in ongoing criminal activity and whether

he meets a "collector" profile.




    1
  Child erotica has been described as a "picture of a child either clothed or nude" that is not illegal. Wise v. State,
364 S. W.3d 900, 907 FN6 (Tex.Crirn.App. 20 12). The further issue- whether or not images of child erotica would
give rise to probable cause to search for child pornography- raises both First Amendment and Fourth Amendment
concerns that were not raised in the search warrant affidavit. Could the state obtain a search warrant based upon an
internet search history where a user was looking for "teen pornography" on the basis that it may also include child
pornography? Are all pictures of naked children subject to an analysis about whether there would be probable cause
to search for lewd pictures of naked children? Had the Detective alleged that the presence of child erotica is
probable cause for child pornography, the magistrate could have conducted a different analysis. In the case at bar,
appe11ant argues that the semantics used provide a false impression that Mr. Ahem uploaded hundreds of pictures of
child pornography - the same impression the State advances in its brief.

Appellant's Reply Brief- Page 9
Paul Martin Ahern v. State ofTexas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3rd District ofTexas
Trial Court Cause No. DIDCIOI00006; in the 299'h District Court ofTravis County, Texas
         A.      Two uploads of child pornography over a fifteen month period
                 with nothing more is not evidence of "ongoing or continuous
                 criminal activity."

         In Coon, the warrant was executed eleven months after one known image of

child pornography was discovered to have been downloaded from the defendant's

computer. United States v. Coon, 2011 WL 1871165, *4-5 (W.D.N.Y.). There,

the officers took the same steps it did here; namely they verified the IP address,

subscriber name, and physical address and conducted a criminal history check. In

that case, the court noted that there was no evidence that suggested that the

defendant collected or hoarded child pornography and that the one year lapse in

time without corroboration made the warrant stale. Id. at *3-4.

         Likewise, in United States v. Greathouse, the showing of probable cause

consisted of a download of eight child pornography images and four child

pornography videos on one date thirteen months prior to the application of the

search warrant court.            United States v. Greathouse, 291 F.Supp.2d 1264, 1273

(D.Or.2003). There, in finding that the "thirteen month delay in this case is simply

too long," the court stated that "[i]f a line must be drawn in internet child

pornography cases, I find that the line is one year absent evidence of ongoing or

continuous criminal activity (emphasis added)." I d.




Appellant's Reply Brief- Page I 0
Paul Martin Ahern v. State of Texas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3rJ District ofTexas
Trial Court Cause No. DIDC10100006; in the 29911 District Court ofTravis County, Texas
         Here, Mr. Ahem was identified as the account holder in December of 2008

(after suspicious uploads occurred November 16, 2008 and December 29, 2008)

and the last suspicious upload occurred in March 2009 (though it is unclear which

of the three dates produced the two images) yet the application of the search

warrant did not occur until February 11, 2010. There was no further criminal

activity after March 2009 and no further investigation to "freshen up" the stale

evidence. This is critical because the rationale behind the stale concept in search

warrant affidavits is that the facts must be sufficiently close in time to the issuance

of the warrant and the search so that probable cause can be said to exist at the time

of the search - not as of sometime in the past. See United States v. Wagner, 989

F.2d 69, 75 (2d Cir. 1993) (holding that six week delay between drug purchase and

search warrant affidavit was stale).

         In fact, similar to Coon, the only "investigation" that occurred in the almost

fifteen month period was a verification of the IP address, subscriber name, and

physical address, a criminal history check, and a drive by Mr. Ahem's home.

Unlike other cases relied on by the goverrunent there was no evidence of "activity

of a protracted and continuous nature, i.e., a course of conduct." Kennedy v. State,

338 S.W.3d at 93 (Tex.App.-Austin 2011, no pet.); see also, United States v. Lacy,

119 F .3d 742, 746 (9th Cir. 1997) (defendant contacted child pornography bulletin


Appellant's Reply Brief- Page 11
Paul Martin Ahern v. State ofTexas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3rJ District ofTexas
Trial Court Cause No. DIDC10100006; in the 299'h District Court ofTravis County, Texas
board system sixteen times and downloaded six images of child pornography);

United States v. Harvey, 2 F.3d 1318, 1322-23 (3d Cir. 1993) (evidence defendant

possessed child pornography 13-15 months previously not stale where supported

by evidence of additional mailings within two months of warrant's execution);

United States v. Newsome, 402 F.3d 780, 783 (7th Cir. 2005) (where police did not

base the search warrant on the year-old pornographic images alone but also relied

on the recent discovery by the defendant's girlfriend of a pornographic tape of her

minor daughter).

        B.       Two images of child pornography with nothing more is not
                 evidence that Mr. Ahern was a "collector" of child pornography.

        The State tries to further justify its position that there was sufficient

evidence in the search warrant affidavit to warrant a fmding that Mr. Ahem was a

child pornography "collector" based on its continued erroneous position that

"scores of images had been reported to be uploaded over a four month period of

time in three separate uploads."                  STATE's BRIEF         at 52-53.         However, per the

affidavit, Mr. Ahem didn't upload "scores of images," he uploaded two. In no

other context would possession of two items qualify someone as a collector. The

uploading of two images of child pornography without any further evidence is not

under any stretch of the caselaw sufficient to place Mr. Ahem under the child

pornography "collector" profile." Unlike other cases, there was no evidence of

Appelhint's Reply Brief- Page 12
Paul Martin Ahern v. State ofTexas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3rcJ District of Texas
Trial Court Cause No. DIDCI0100006; in the 299'11 District Court ofTravis County, Texas
visiting other child pornography websites; nothing to suggest that he was a

pedophile or that he was engaged in any ongoing criminal conduct. The fact is that

there was no other indicia of continued criminal activity whatsoever that would

qualify Mr. Ahem as a child pornography "collector."                              See United States v.

Greathouse, 297 F.Spp.2d 1264 (D.Ore. 2003) (finding that a tip that the suspect's

computer one year earlier contained child pornography was stale, and thus did not

provide probable cause for search warrant for seizure of the computer, despite

investigating officer's affidavit stating child pornography collectors routinely

maintained their materials for long periods of time, where the officer did not

specify the basis for his statement, and there was no evidence that the defendant

was a pedophile or that he engaged in any ongoing criminal activity).

                                             CONCLUSION

        In conclusion, contrary to the State's assertion, the affidavit does not contain

a fair probability of finding child pornography at Mr. Ahem's home arising from

the facts that governmental authorities had information that 1) two images

depicting child pornography were uploaded by a Flickr.com subscriber under Mr.

Ahem's account fifteen months prior to the search warrant application; 2) Mr.

Ahem's address listed under the Flickr.com account was 3904 Avenue G, Austin

Texas 78751; and 3) Mr. Ahem did in fact live at 3904 Avenue G, Austin Texas


Appellant's Reply Brief- Page 13
Paul Martin Ahern v. State ofTexas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3rd District ofTexas
Trial Court Cause No. DIDC10100006; in the 299'h District Court ofTravis County, Texas
78751. "More is needed before the sanctity of one's home can be invaded by the

government; it is not enough to simply conclude that contraband is in one's home

merely because the suspect has a home."                            Taylor v. State, 54 S.W.3d 21, 27

(Tex.App.-Amarillo 2001 ).



                                                     PRAYER

         WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

prays that this Honorable Court sustain his points of error, reverse the order of the

trial court denying Appellant's Motion to Suppress Evidence, and order that all

evidence seized as a result of the illegal seizure and search be suppressed.

                                                        Respectfully submitted,

                                                        SUMPTER & GONZALEZ, L.L.P.
                                                        206 E. 9th Street, Ste. 1511
                                                        Austin, Texas 78701
                                                        Telephone: (512) 381-9955
                                                        Facsimile: (512) 485-3121


                                                        By:             /S/ Kristin Etter
                                                                 Kristin Etter
                                                                 State Bar No. 24038884
                                                                 kristin@sg-llp.com

                                                        By:            /S/ David Gonzalez
                                                                 David Gonzalez
                                                                 State Bar No. 24012711
                                                                 david@sg-llp.com

Appellant's Reply Brief- Page 14
Paul Martin Ahern v. State of Texas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the 3'd District o[Texas
Trial Court Cause No. D I DC I 0 I00006; in the 299'h District Court of Travis County, Texas
                                 CERTIFICATE OF COMPLIANCE

          I hereby certify that this document was generated by a computer using

Microsoft Word which indicates that the word count of this document is 2,860 per

Tex. R.App. P. 9.4(i).

                                                                           Is/  David Gonzalez
                                                                           David Gonzalez




Appellant's Reply Brief- Page 15
Paul Martin Ahern v. State ofTexas
Appeal No. 03-14-00090-CR in the Court ofAppeals for the J'd District ofTexas
Trial Court Cause No. D I DC 101 00006; in the 299'11 District Court of Travis County, Texas
                                   CERTIFICATE OF SERVICE

         I hereby certify that on January 16, 2015, a true and correct copy of

Appellant's Reply Brief was served on the following attorneys in accordance with

the requirement of the Texas Rules of Appellate Procedure via electronic filing or

email.



                  Mary Ann Farrington- trial attorney
                  Travis County District Attorney
                  PO Box 1748
                  Austin, TX 78767

                 Scott Taliaferro- appellate attorney
                 Travis County District Attorney
                 PO Box 1748
                 Austin, TX 78767

                 Rosa Theofanis - appellate attorney
                 Travis County District Attorney
                 PO Box 1748
                 Austin, TX 78767



                                                                      Is/  David Gonzalez
                                                                      David Gonzalez




Appellant's Reply Brief- Page 16
Paul Martin Ahern v. State of Texas
Appeal No. 03- I 4-00090-CR in the Court ofAppeals for the 3'd District of Texas
Trial Court Cause No. D1DCIOI00006; in the 299'11 District Court ofTravis County, Texas
