Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT STATE OF FLORIDA, Appellant, v. SEAMUS EUGENE McNEELA, Appellee. No. 2D22-1418 June 21, 2023 Appeal from the Circuit Court for Manatee County; Frederick P. Mercurio, Judge. Ashley Moody, Attorney General, Tallahassee, and J. Wade Stidham, Assistant Attorney General, Tampa, for Appellant. Michael D. Gelety, Ft. Lauderdale, for Appellee. KHOUZAM, Judge. The State appeals an Order Granting Amended Motion to Suppress Search Warrant suppressing evidence as requested by defendant Seamus Eugene McNeela. Because the warrant affidavit established probable cause to search, the trial court erred, and we reverse. BACKGROUND In May 2020, law enforcement sought a search warrant to perform a forensic search of a computer and external hard drives that had already been seized. The warrant affidavit avers the following facts. In January 2020, Microsoft notified the National Center for Missing and Exploited Children (NCMEC) that someone had used Microsoft's OneDrive software to store or share child pornography. Specifically, Microsoft reported that a user connected to a certain IP address in Sarasota had used OneDrive to upload four JPEG files of "apparent child pornography" to the cloud. All four images were described in graphic detail, alleging that each one depicted a child in a sexually explicit position. Microsoft provided copies of the images to NCMEC, who also reviewed them and "found what appears to be CHILD PORNOGRAPHY." Following Microsoft's report, NCMEC generated a CyberTipline Report, which it sent to law enforcement for investigation. A detective issued a subpoena to the internet provider for the IP address Microsoft had identified. The provider returned account information, which contained Mr. McNeela's name, phone number, and physical address. Based on this information, detectives visited Mr. McNeela's residence and advised him and his spouse about the NCMEC CyberTipline Report. Both agreed to speak with the detectives about it. Mr. McNeela advised he was the primary user of the computer in the residence and provided consent "to review his computer for any possible child pornography on his computer in his home." While conducting this consensual search, a detective located "several images of child pornography" on an external hard drive plugged into it. These images are not described further in the affidavit, and it is unclear whether they were the same images initially reported by Microsoft. Upon finding these images, law enforcement seized the computer and hard drives from the residence. 2 Thereafter, law enforcement obtained a warrant to conduct a forensic search of the seized computer equipment. The warrant affidavit describes in graphic detail the images Microsoft had reported, but does not describe the content of the images later found during the consensual search, other than averring that they constitute child pornography. Mr. McNeela moved to suppress. After a hearing, the court ruled that Goesel v. State, 305 So. 3d 821 (Fla. 2d DCA 2020), required suppression because the affidavit did not establish the affiant's qualifications or that any of the images constituted child pornography. ANALYSIS The State contends that the trial court erred in granting suppression because the four corners of the warrant affidavit establish probable cause to search. Due to the trial court's application of this court's decision in Goesel, on appeal the parties largely focus on the qualifications of the affiant and the nature of the unspecified child pornography alleged to have been found during the consensual search. But we need not reach these issues to resolve this case because the warrant affidavit establishes probable cause to search regardless of the deficiencies found by the trial court. In particular, under settled Florida law, Microsoft acted as a citizen informant in reporting the contraband found on its server to NCMEC—a presumptively reliable tip. Further, the detailed descriptions of the images were sufficient to establish that they constituted child pornography. Accordingly, suppression should not have been granted. Governing Law "On a motion to suppress the fruits of a search in accordance with a warrant, a trial court examines whether the issuing magistrate had a substantial basis for concluding that probable cause existed, and this 3 determination is made by examining the affidavit in its entirety." Pilieci v. State, 991 So. 2d 883, 892 (Fla. 2d DCA 2008) (quoting State v. Vanderhors, 927 So. 2d 1011, 1013 (Fla. 2d DCA 2006)). "Because the magistrate was restricted to considering only the content of the application for the warrant that is equally available to the reviewing trial court, this review . . . involve[es] 'great deference.' " Id. (citing State v. Rabb, 920 So. 2d 1175, 1180 (Fla. 4th DCA 2006)). Thus, "[w]hen 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." State v. Woldridge, 958 So. 2d 455, 458 (Fla. 2d DCA 2007) (citing 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. (citing Bonilla, 579 So. 2d at 805). When assessing whether there is probable cause to justify a search, "the trial court must make a judgment, based on the totality of the circumstances, as to whether from the information contained in the warrant there is a reasonable probability that contraband will be found at a particular place and time." Goesel v. State, 305 So. 3d 821, 823-24 (Fla. 2d DCA 2020) (quoting Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002)). In this regard, conclusory statements are not enough, as "[s]ufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others." Id. at 824 (alteration and emphasis in original) (quoting Illinois v. Gates, 462 U.S. 213, 239 (1983)). Generally, where the information in the warrant affidavit comes from a citizen informant, its reliability is presumed and corroboration is 4 not required. Woldridge, 958 So. 2d at 459 (first citing State v. Maynard, 783 So. 2d 226, 228 (Fla. 2001); and then citing State v. Gonzalez, 884 So. 2d 330, 334 (Fla. 2d DCA 2004)). "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.' " Id. (quoting State v. Evans, 692 So. 2d 216, 219 (Fla. 4th DCA 1997)). This court has held that an internet service provider reporting to NCMEC that a user utilized its platform to store or share child pornography sits "in substantially the same position as a citizen informant, whose reliability can be presumed for purposes of the magistrate's probable cause determination." Id. at 460 (citing State v. Sisson, 883 A.2d 868, 880 (Del. Super. Ct. 2005), aff'd, 903 A.2d 288 (Del. 2006)). This Case Here, the warrant affidavit states that Microsoft reported to NCMEC that one of its users at a certain IP address had used its platform to store or share child pornography. Four such images are described in amply sufficient detail to establish that they constitute child pornography. Through a provider subpoena, law enforcement determined that the IP address flagged by Microsoft belonged to Mr. McNeela. Upon visiting the physical address, Mr. McNeela consented to speak with officers about the allegations and advised that he both lived there and was the primary user of the computer at the residence. Under settled Florida law, those facts alone established probable cause to search the computer. For example, in State v. Cook, 972 So. 2d 958, 959 (Fla. 5th DCA 2007), the warrant affidavit averred that a neighbor "had access to [the defendant]'s computer files through a shared hard wire connection" and described having seen in one of those 5 files many images of children in sexually explicit positions. In reversing a suppression order, the Fifth District held that this "information was clearly sufficient to support the issuance of a search warrant." Id. (citing State v. Vallone, 868 So. 2d 1278, 1278-80 (Fla. 4th DCA 2004)). In Vallone, the warrant affidavit described images alleged to be child pornography that the defendant's friend had noticed on the defendant's computer while helping the defendant transfer files. 868 So. 2d at 1279. The Fourth District reversed an order suppressing evidence on the basis that the friend was a citizen informant, "which is sufficient to satisfy any questions about the informant's veracity." Id. at 1280 (citing State v. Novak, 502 So. 2d 990 (Fla. 3d DCA 1987)). Particularly illustrative is this court's decision in Woldridge. There, internet service provider America Online (AOL) reported to NCMEC that a particular user had attempted to transmit files containing child pornography on its platform. 958 So. 2d at 457. NCMEC notified law enforcement, who reviewed the images and issued a subpoena to AOL for the user's information. Id. In response, AOL identified the defendant as the accountholder, and law enforcement confirmed the defendant's physical address. Id. Law enforcement then applied for a warrant to search the defendant's home for "computer equipment," specifically defined to include "various computer and electronic 'storage devices.' " Id. at 457- 58. After the magistrate issued the warrant, officers found various images of child pornography during the search. Id. at 458. The trial court granted the defendant's motion to suppress the evidence on the basis that the warrant application contained insufficient information about the source of the tip to establish probable cause. Id. at 457. This court reversed, concluding that AOL "was the only tipster," 6 whose reliability was akin to a citizen informant and was thus presumed.1 Id. at 458-59. In so holding, this court expressly stated that "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." Id. at 461. Here, as in Woldridge, the tip "came from a recognized, well- established" entity providing internet services that "was in substantially the same position as a citizen informant, whose reliability can be presumed for purposes of the magistrate's probable cause determination." Id. at 460. Indeed, Microsoft "essentially witnessed the crime when it received the images from the subscriber." Id. But the affidavit here is even stronger than the one we found sufficient in Woldridge. The Woldridge opinion gives no indication that the affidavit there described the images themselves; instead, the affidavit relied on the officer's training and experience to establish their nature as contraband. Id. at 457. By contrast, the affidavit here describes all four images in graphic detail, alleging that each one depicts a child in a sexually explicit position. This approach provided "[s]ufficient information . . . to the magistrate to allow that official to determine probable cause," as opposed to "a mere ratification of the bare conclusions of others." Goesel, 305 So. 3d at 824 (alteration and emphasis in original) (quoting Gates, 462 U.S. at 239). Finally, unlike Woldridge, where the warrant was obtained before law enforcement made contact with the defendant, the affidavit in this case includes admissions from Mr. McNeela himself. In particular, the 1 AOL's report in Woldridge was made pursuant to the requirements of 42 U.S.C. § 13032(b)(1) (2004). 958 So. 2d at 459. Following intervening statutory amendments, 18 U.S.C.A. § 2258A (2020) sets forth analogous reporting requirements. 7 affidavit here states that, before applying for a warrant, law enforcement visited Mr. McNeela's residence and engaged him in a consensual encounter. During that encounter, Mr. McNeela confirmed both that he lived at the residence and that he was the primary user of the computer there. Further, he gave consent for officers to search his computer onsite, which the affidavit states contained child pornography. Thus, whereas the warrant affidavit in Woldridge relied on law enforcement's belief, based on investigation, that the defendant lived at the residence and used the computer there, the defendant in this case expressly admitted both of those facts—before any search was conducted and before the warrant was applied for. Accordingly, we conclude that the warrant affidavit in this case was sufficient to establish probable cause, and therefore the trial court erred in granting Mr. McNeela's motion to suppress. See Woldridge, 958 So. 2d at 459 (holding that affidavit based on internet service provider's tip that defendant had attempted to transmit child pornography via email was sufficient to establish probable cause to issue a search warrant); Cook, 972 So. 2d at 959 (holding allegation that neighbor saw child pornography on defendant's computer "was clearly sufficient to support the issuance of a search warrant"); Vallone, 868 So. 2d at 1279-80 (reversing suppression where affidavit alleged friend saw child pornography on defendant's computer). Contrary to Mr. McNeela's argument and the trial court's conclusion below, Goesel does not call for a different outcome. Neither of the two interrelated deficiencies identified in that case apply here. First, in Goesel this court observed that the affidavit there "contained nothing to support the detective's conclusory assertion that the photo at issue qualified as child pornography." 305 So. 3d at 824. 8 By stark contrast here, the affidavit contains detailed descriptions of the four images Microsoft had flagged, which descriptions amply establish that they constitute child pornography. No reliance on any "conclusory assertion" was necessary here. Likewise, the "second flaw" with the affidavit in Goesel "was that it did not demonstrate that [the affiant] had any training or expertise in identifying child pornography." Id. But the affidavit here circumvents that issue as well by describing the initial images in enough detail for the reviewing magistrate to independently determine whether or not they constitute child pornography. Goesel thus does not control here. Because the warrant affidavit was sufficient to establish probable cause, the trial court erred in granting Mr. McNeela's motion to suppress. We accordingly reverse the order granting suppression and remand for further proceedings consistent with this opinion. Reversed and remanded. VILLANTI and BLACK, JJ., Concur. __________________________ Opinion subject to revision prior to official publication. 9