2D06-2466 / State v. Woldridge

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State: Florida

Court: Florida Southern District Court

Docket No: 2D06-2466

Case Date: 02/23/2007

Plaintiff: 2D06-2466 / State

Defendant: Woldridge

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
STATE OF FLORIDA,                                                                             )
)
Appellant,                                                                                    )
)
v.                                                                                            )   Case No. 2D06-2466
)
JAMES LAIRD WOLDRIDGE,                                                                        )
)
Appellee.                                                                                     )
________________________________ )
Opinion filed February 23, 2007.
Appeal from the Circuit Court for
Hillsborough County; Wayne S.
Timmerman, Judge.
Bill McCollum, Attorney General,
Tallahassee, and Susan D. Dunlevy,
Assistant Attorney General, Tampa,
for Appellant.
Joseph A. Eustace, Jr., of Anthony J.
LaSpada, P.A., Tampa, for Appellee.
PER CURIAM.
The State appeals the trial court’s order granting James Woldridge’s
motion to suppress evidence seized pursuant to a search warrant for his residence.
The trial court found that the warrant application contained insufficient information about
the source of a tip to establish probable cause.   Because the trial court focused its

attention on an entity that was not the actual source of the tip, the trial court erred in
finding that the magistrate abused his discretion in issuing the warrant.   Accordingly, we
reverse.
Woldridge was charged by information with ten counts of possession of
child pornography in violation of section 827.071(5), Florida Statutes (2004).   He filed a
motion to suppress the evidence seized from his residence on the grounds that the
information contained in the affidavit for the search warrant was legally insufficient to
support a finding of probable cause.
The affidavit supporting the search warrant application related that Officer
Margaret Grow of the Hillsborough County Sheriff’s Office had received four reports
from the National Center for Missing and Exploited Children (NCMEC) which related
that America Online (AOL) had reported that an AOL user with a specific screen name
had attempted to e-mail files containing child pornography.   After receiving the reports
and reviewing the images, Grow subpoenaed AOL for the subscriber information for the
specified screen name.   In response to the subpoena, AOL identified Woldridge as the
account holder of the screen name.   Grow’s affidavit then detailed the additional
investigation she conducted to confirm where Woldridge was living and receiving
internet service.   It also detailed Grow’s background in the investigation of on-line child
pornography cases and provided background information concerning the characteristics
of individuals who use the internet to view and exchange “cyberporn.”
The warrant application sought a warrant to search Woldridge’s home for
“computer equipment,” which it defined to include various computer and electronic
“storage devices.”   After reviewing the warrant application, including the affidavit
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prepared by Grow, the magistrate issued a search warrant for Woldridge’s home.
Pursuant to the search warrant, officers seized Woldridge’s computer and found various
pornographic images of children on the hard drive.
In Woldridge’s motion to suppress the evidence seized pursuant to the
search warrant, he argued that the warrant application was insufficient to establish
probable cause because the affidavit in support of the application contained no
information concerning the veracity or basis of knowledge of NCMEC, which he
identified as the alleged tipster.   The State, on the other hand, argued that AOL was the
only tipster involved and that its tip was presumptively reliable because AOL was a
“citizen-informant.”   The trial court granted the motion to suppress, finding the
application legally insufficient to establish probable cause because the affidavit did not
contain sufficient information to establish the reliability of NCMEC.   This appeal
followed.
For a warrant to issue, the issuing magistrate must
find probable cause to believe that the contraband is
presently in the residence.   State v. Bernie, 472 So. 2d 1243,
1246 (Fla. 2d DCA 1985).
The task of the issuing magistrate is
simply to make a practical, common-sense
decision whether, given all the circumstances
set forth in the affidavit 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.
Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76
L.Ed.2d 527 (1983); see also Alabama v. White, 496 U.S.
325, 325, 110 S. Ct. 2412, 110 L.Ed.2d 301 (1990).
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State v. Gonzalez, 884 So. 2d 330, 333 (Fla. 2d DCA 2004); see also Pagan v. State,
830 So. 2d 792, 806 (Fla. 2002).   Because the determination of probable cause must be
made from the four corners of the affidavit, the affidavit itself must contain either
information concerning the informant’s veracity or sufficient independent corroborating
evidence.   Pagan, 830 So. 2d at 806-07.
When a trial court is called upon to review a magistrate’s decision to issue
a search warrant, the trial court does not conduct a de novo determination of whether
there was probable cause to issue the warrant.   Bonilla v. State, 579 So. 2d 802, 805
(Fla. 5th DCA 1991).   Instead, the trial court determines only whether substantial
evidence supported the magistrate’s determination that probable cause existed.   Id.;
see also Gonzalez, 884 So. 2d at 333; Garcia v. State, 872 So. 2d 326, 329 (Fla. 2d
DCA 2004).   Thus, the trial court should not disturb an issuing magistrate’s
determination absent a clear demonstration that the magistrate abused his discretion in
relying on the information in the affidavit supporting the warrant application to find
probable cause.   State v. Price, 564 So. 2d 1239, 1241 (Fla. 5th DCA 1990).
In this appeal, the State argues that the trial court erred in focusing its
attention on the reliability of NCMEC.   As it did in the trial court, the State argues that
AOL was the only tipster involved and that its tip was presumptively reliable because
AOL was a “citizen informant.”   We agree that AOL was the only tipster.   Additionally,
although we hesitate to hold that a corporation can be a citizen informant, we hold that
AOL’s compliance with a federal law mandating that it report Woldridge’s activities to
NCMEC provides a presumption of reliability akin to that afforded a citizen informant.
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Accordingly, we hold that the affidavit at issue provided probable cause to issue the
search warrant.
First, it is clear from the search warrant affidavit that the tip came from
AOL, not NCMEC.   The pertinent part of the affidavit states:
Affiant received four reports from the National Center
for Missing and Exploited Children.   The four reports from
the National Center for Missing and Exploited Children listed
the Internet Service Provider America Online (AOL) reporting
an AOL user twithtt@aol.com who attempted to email files
depicting child pornography.
(Emphasis added.)   From this language, it is clear that the relevant information
originated with AOL, not NCMEC.   Thus, AOL was the only “tipster” involved, and the
critical question for the issuing magistrate was the reliability of AOL, not NCMEC.
Second, the reliability of the tip from AOL can be presumed because
federal law compelled AOL’s report to NCMEC.   Although not mentioned by either party
in their briefs, AOL was required to report the attempted transmission of these child
pornography images to NCMEC for forwarding to law enforcement.   Under 42 U.S.C.
§ 13032(b)(1) (2004), any internet service provider that obtains facts from which a
violation of federal child pornography laws is apparent must report the facts and
circumstances to the Cyber Tip Line at NCMEC.   NCMEC then forwards the reported
information to both state and federal law enforcement officials.   42 U.S.C.
§ 13032(b)(1), (b)(3).   An internet service provider that fails to report such facts is
subject to significant fines.                                                              42 U.S.C. § 13032(b)(4).
We find that this statutory reporting requirement supports the reliability of
AOL’s tip.   Contrary to Woldridge’s position at oral argument, the possibility of the
imposition of fines for failing to report the transmission of child pornography does not
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make AOL’s tip less reliable.   Nothing about the possible imposition of fines would
encourage AOL to make false reports to NCMEC.   Further, while it is true that the
search warrant affidavit does not reference this statutory mandate, the magistrate and
the trial court, like all citizens, are charged with knowing the applicable law.
In addition, AOL was acting in a manner analogous to that of a citizen
informant when it forwarded the information to NCMEC.   “A citizen-informant is one who
is ‘motivated not by pecuniary gain, but by the desire to further justice.’ ”   State v.
Maynard, 783 So. 2d 226, 230 (Fla. 2001) (quoting State v. Evans, 692 So. 2d 216, 219
(Fla. 4th DCA 1997) (quoting State v. Talbott, 425 So. 2d 600, 602 n.1 (Fla. 4th DCA
1982), and Barfield v. State, 396 So. 2d 793, 796 (Fla. 1st DCA 1981))).   A citizen
informant is one who “by happenstance finds himself in the position of a victim of or a
witness to criminal conduct and thereafter relates to the police what he knows as a
matter of civic duty.”   Evans, 692 So. 2d at 219 (quoting Wayne R. LaFave, Search and
Seizure § 3.3 (3d ed. 1996)).   As a general rule, the reliability of a tip from a citizen
informant is presumed, and corroboration of the tip is not generally required.   Maynard,
783 So. 2d at 228; Gonzalez, 884 So. 2d at 334.
Here, AOL discovered pornographic images of children attached to an e-
mail that an AOL subscriber with a particular screen name attempted to transmit
through the AOL server.   At that point, AOL was in possession of the images, which it
forwarded along with the subscriber’s screen name to law enforcement through
NCMEC.   Thus, the information did not come to law enforcement from an anonymous
source; it came from a recognized, well-established internet service provider.
Moreover, AOL essentially witnessed the crime when it received the images from the
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subscriber.   Under these circumstances, AOL was in substantially the same position as
a citizen informant, whose reliability can be presumed for purposes of the magistrate’s
probable cause determination.   See State v. Sisson, 883 A.2d 868, 880 (Del. Super. Ct.
2005), aff'd, 903 A.2d 288 (Del. 2006).
In an effort to support the trial court’s ruling, Woldridge argues that the
State was obligated to include in the search warrant the name of the actual AOL
employee who identified the images and information concerning that employee’s
reliability.   However, Woldridge points to no case supporting his position.   Instead, the
only reported authority that we have found concerning the issue specifically rejects
Woldridge’s argument.
In United States v. Kling, 2006 WL 1980179 (N.D. Iowa July 12, 2006), the
defendant, who was charged with possession of child pornography, moved to suppress
the evidence seized pursuant to a search warrant, arguing that the warrant application
was insufficient.   The warrant affidavit in that case stated that the internet service
provider Yahoo had reported to NCMEC that an individual using a specific email
address had “uploaded or transmitted” images of child pornography.   Id. at *5.   NCMEC
forwarded the information to police, who served subpoenas on Yahoo to obtain
information concerning the specified email address.   Id.   The affidavit then explained
how the officers had located and verified the residence at which Kling was living and
receiving internet service.   Id.
In his motion to suppress, Kling argued that the warrant failed to establish
the reliability of the information provided by Yahoo because it did not specify the identity
of the particular Yahoo employee who provided the information nor did it give any
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information regarding that person’s reliability.   In rejecting this argument, the court first
noted that Kling cited to no case, nor could it find one, that would support “the
proposition that information received from an Internet Service Provider may be suspect
unless the veracity of the specific individual who provides the information is supported in
the warrant application.”   Id. at *6.   The court then noted:
Courts routinely consider information provided by ISPs and
e-mail providers just as they consider information provided
by financial institutions, credit card issuers, and utility
companies. . .                                                                                   .   Except in unusual circumstances, courts do
not require information regarding the credibility of a records
custodian or other company employee who verifies business
records.   What the agents received from Yahoo was just
that—business records of who had accessed a Yahoo group
and what those individuals had uploaded or downloaded
from the group’s site.
Id.
Here, Woldridge, like Kling, has failed to cite any case, and this court has
been unable to find one, that requires a search warrant affidavit to contain information
regarding the reliability of the custodian of business records when those records are
used to supply probable cause for a search warrant.   In this case, AOL, as required by
federal law, provided its business records concerning the content of specific e-mails
from a specific subscriber to NCMEC for it to forward to law enforcement.   Woldridge
has offered no basis for the trial court or this court to conclude that the business records
provided by AOL were unreliable.   Under these circumstances, there was no basis for
the trial court to find that the magistrate abused his discretion in issuing the search
warrant based on the information provided by AOL.
Woldridge also argues that the trial court’s factual findings concerning the
omission of the information concerning NCMEC from the affidavit are entitled to
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deference.   Woldridge is correct on this issue, and this court does not dispute those
factual findings.   However, the trial court’s conclusion that those omissions resulted in
the search warrant application being insufficient to establish probable cause is subject
to de novo review.   Pagan, 830 So. 2d at 806; Gonzalez, 884 So. 2d at 333.   Here,
because the actual tip came from AOL, the omissions identified by the trial court relating
to NCMEC were immaterial to the determination of probable cause.   Accordingly, the
trial court’s legal conclusion that the affidavit did not establish probable cause was
incorrect, and thus it erred in concluding that the magistrate abused his discretion in
issuing the warrant.   Therefore, we reverse the order suppressing the evidence and
remand for further proceedings.
Reversed and remanded.
NORTHCUTT and LaROSE, JJ., and THREADGILL, EDWARD F., SENIOR JUDGE,
Concur.
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