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United States of America v. Stephen Miknevich

March 1, 2011

UNITED STATES OF AMERICA
v.
STEPHEN MIKNEVICH, APPELLANT.



On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3-08-cr-00185-001) District Judge: The Honorable William J. Nealon

The opinion of the court was delivered by: Nygaard, Circuit Judge.

PRECEDENTIAL

ARGUED MAY 19, 2010

BEFORE: FUENTES, HARDIMAN, and NYGAARD, Circuit Judges.

OPINION OF THE COURT

I.

We are asked to determine whether an affidavit prepared by a law enforcement officer provided a substantial basis for a Pennsylvania district justice=s finding of probable cause to issue a search warrant. Appellant Stephen Miknevich was arrested and charged with possession of child pornography. These charges arose after police executed a search warrant at his home and seized his computer. His computer was later found to contain numerous images of child pornography. After the search and seizure of the computer, Miknevich gave oral and written admissions of guilt to the arresting officers.

Miknevich then filed a motion to suppress in the District Court, arguing that the warrant was issued without probable cause. The District Court denied the motion, finding that the accompanying affidavit contained an adequate description of child pornography so as to support a probable cause determination and, even had it not, the Leon good faith exception applied. See United States v. Leon, 468 U.S. 897 (1984). Miknevich entered a conditional plea of guilty, reserving the right to challenge the District Court=s probable cause determination on appeal. He filed a notice of appeal raising this issue and also challenging his sentence. We will affirm.

II.

Because the contents of the affidavit are at issue, we will quote from it directly as follows:

On 8/16/2007 at Approx. 1559 hr EDT, Delaware State Police Cpt. R. Scott Garland was conducting an investigation into the use of P2P file sharing networks in the distribution of child pornography images and movies in violation of Pennsylvania Crime Code Section 631 (C), (D), Sexual Abuse of Children (Possession and dissemination of Child Pornography). While conducting this investigation, an off-the-shelf publically available gnutella client was used. At this time, the network was queried for files indexed by a term I know to be related to child pornography. The network returned to Det. Garland=s computer a list of files associated with this term. The list contained details about these files including the file name, file type, file size, SHA1 value for the file and a number of users on the network with the file or portions of the file available for download by other gnutella network users.

Det. Garland reviewed the list of files and observed a file named, A!!Novo Ptsc-Alyo(6yo)&Ali(7yo) Ptsc-littlenorwegian angels stroke their erect clits-nudist child,@with an SHA1 value of RGQCV2AC6XD3JE5KULOBAJWQTVBBX XHC. Det. Garland knows this file with this SHA1 value to be child pornography. The movie is described as children, under the age of eighteen years old engaged in sexual acts and/or poses. Det. Garland then attempted to download this movie form (sic) those sharing it on the network.

Shortly after Det. Garland indicated to download the movie, the network returned a list of users with their IP address, who had the file or portions of the file available to download from it. Det. Garland reviewed this list and observed a user with the IP address of

75.75.148.179. The software was set to locate computers sharing images of child pornography.

Det. Garland was presented with an IP address of 75.75.148.179 and captured this IP address by performing a ANetstat capture@ on 8/16/2007 at 1559 hrs. EDT.

Lt. Peifer viewed the video file based on the SHA1 value and based on my training and experience the children appear to ...


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