• Rowland, ___ CA5 ___, ___ CR3 ___ (22) #H048799:
Two anonymous “cybertips” came to the National Center for Missing and Exploited Children (NCMEC). They came from a Microsoft Online Operation employee who viewed two files of apparent child pornography. The cybertip provided the IP address of the computer used to upload the images. The IP was attached to the company AT&T Mobility.
A Los Altos PD detective, Nava, authored a search warrant for the subscriber information and found the name “Richard Rowland” with an address in Los Altos. Surveillance determined the Rowland, aged 84, lived there with his son, Jeffrey, 37.
A search warrant was issued for the residence and two cars on the premises. The following items were seized: two Western Digital storage devices, a Dell tower computer, a PNY thumb drive, an Apple iPhone, an Apple laptop, and an Apple computer. The PNY thumb drive “contained an estimated 1,000 images of child pornography and 25 videos of child pornography.”
In his motion to quash the search warrant, Def. Jeffrey Rowland claimed that the search warrant affidavit failed to state probable cause. He argued the showing was defective because: “The only information in the affidavit linking the contraband to defendant is based entirely on an uncorroborated anonymous tip.” And: “The information linking the images to defendant’s address was four months old, rendering it stale.” Rowland further asserted that “the search warrant affidavit, on its face, is so lacking in probable cause that it cannot even meet the minimum standards of the ‘good faith’ rule.” Rowland urged the trial court to quash the search warrant and suppress the evidence seized, as well as any “statements and derivative evidence.”
The court denied his motion to quash. The Court of Appeal, per Danner, Acting P.J., affirmed.
Although no California court has issued a published decision examining the reliability and credibility of service providers and NCMEC with regard to their reports of child pornography, one federal court of appeals recently “h[e]ld that an NCMEC cyber-tip generated by information provided to NCMEC by an internet company such as Google carries with it significant indicia of reliability. The [relevant federal law] imbues such significant reliability by mandating ‘electronic communication service provider[s] [and] remote computing service[s]’ to report illicit, questionable activity that comes through their servers.” (United States v. Landreneau (5th Cir. 2020) 967 F.3d 443, 453.)
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Because we conclude the search warrant affidavit demonstrated a fair probability that a search would uncover wrongdoing, there is no need to examine whether the good faith exception to the exclusionary rule applies.