Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT STATE OF FLORIDA, Appellant, v. THOMAS PELTIER, Appellee. No. 2D22-2416 October 25, 2023 Appeal from the Circuit Court for Sarasota County; Rochelle T. Curley, Judge. Ashley Moody, Attorney General, Tallahassee, and Donna S. Koch, Senior Assistant Attorney General, Tampa; and Cerese Crawford Taylor, Assistant Attorney General, Tampa (substituted as counsel of record), for Appellant. Michael D. Gelety, Fort Lauderdale, for Appellee. LaROSE, Judge. The trial court granted Thomas Peltier's motion to suppress child pornography found on his electronic devices. The State appeals. See Fla. R. App. P. 9.140(c)(1)(B). We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). We reverse. The four corners of the search warrant affidavit furnished probable cause to seize and search the devices. Because of our resolution, we need not address the State's argument that the good faith exception saved the warrant application. See generally Coronado v. State, 148 So. 3d 502, 506 (Fla. 2d DCA 2014) ("The good faith exception permits the use of evidence seized pursuant to a warrant unsupported by probable cause 'when a police officer has acted in an objectively reasonable manner, in objective good faith, and as a reasonably well-trained officer would act in seeking the warrant from a detached and neutral magistrate and thus has reasonably relied upon the warrant in executing a search within the warrant's terms and scope.' " (quoting Pilieci v. State, 991 So. 2d 883, 896 (Fla. 2d DCA 2008))). Background On July 5, 2019, Detective James Klay of the Sarasota County Sheriff's Office prepared an affidavit in support of a search warrant application for Mr. Peltier's residence. The reviewing magistrate issued the search warrant that day.1 The fourteen-page affidavit detailed Detective Klay's extensive training for, and experience in, investigating the possession and transmission of child pornography on the world wide web. The affidavit also recounted details of the investigation that ensnared Mr. Peltier. In late 2017, Detective Klay began investigating child pornography on BitTorrent, a publicly available peer-to-peer file sharing network. See generally Youngman v. State, 342 So. 3d 770, 772 (Fla. 2d DCA 2022) ("BitTorrent[ is] a peer-to-peer file sharing network. BitTorrent is publicly available. It allows users to share their computer's selected content over the BitTorrent network with other users and to search other users' shared content."). 1 In his motion to suppress, Mr. Peltier stated that Judge Charles Roberts signed the search warrant. However, on appeal, he tells us that Judge Rochelle T. Curley was the "issuing Magistrate." 2 By utilizing "internet tools designed for use by Internet Crimes Against Children investigators," Detective Klay determined that "twelve (12) unique containers/files/folders" from Mr. Peltier's IP address contained "Hash Values previously identified as containers of child pornographic images." See id. ("A 'hash value' is a thirty-two-digit alphanumeric code, a 'unique digital fingerprint' for each piece of digital media; no two pieces have the same value." (quoting United States v. Sosa-Pintor, 741 F. App'x 207, 208 (5th Cir. 2018))). For instance, one of the file names contained a sexually suggestive acronym. Detective Klay personally viewed identically titled files from other publicly available sources bearing the same hash value, and he confirmed that they "were in fact child pornography." In March 2019, Detective Klay conducted further investigation, again using BitTorrent to "directly obtain[]" from Mr. Peltier's computer dozens of "still and video files of both child pornography and child erotica files." Later, Detective Klay "obtained seventy . . . files from the computer" utilizing another IP address associated with Mr. Peltier's computer, with some files "depict[ing] the female child victim exposing her genitals in a lewd manner or engaged in various sexual activities with an adult male." Then again, that same month, Detective Klay obtained files of "child pornography (depicting a minor female child engaged in sexual conduct and sexual battery)." Law enforcement officers executed the search warrant on July 5, 2019. They seized over a dozen electronic devices from Mr. Peltier's residence. The State charged Mr. Peltier with forty counts of possessing 3 child pornography and five counts of transmitting child pornography. See §§ 827.071(5), 847.0137(1), (2), Fla. Stat. Fla. Stat.2 Mr. Peltier moved to suppress the evidence. He described the warrant affidavit as "facially insufficient[,] containing mere conclusions failing to meet the particularity requirements permitting a judge to make an independent determination of probable cause." He complained that "[n]o images were presented to the [trial court] by [Detective Klay], nor were the images described in any detail, sufficient to allow the [magistrate] to make an independent determination, that the images and files described in the affidavit were in fact child pornography." Mr. Peltier principally relied on our opinion in Goesel v. State, 305 So. 3d 821 (Fla. 2d DCA 2020), which, he suggested, marked a sea change in Fourth Amendment jurisprudence. In his telling, following Goesel, trial courts cannot "blindly rely on the detectives [sic] conclusory statements that files, images, or hash values are 'contraband' or 'child pornography.' " The trial court held a hearing on the suppression motion. No witnesses were called, and no evidence was admitted, except for Detective Klay's search warrant affidavit. Counsel simply made their respective legal arguments. The trial court granted the motion, adopting Mr. Peltier's assessment of Goesel. The written order explained: Throughout the affidavit, law enforcement fails to provide a sufficient description of each photograph that they base their request for a search warrant. In the affidavit, the detective describes multiple photographs and refers to them as child pornography or child erotica. Defense counsel argued, 2 Each of the possession counts was reclassified to second-degree felonies by virtue of the volume and content of the child pornography. See § 775.0847(2), Fla. Stat. 4 without objection, that child erotica is not illegal. In this case, there is no way to identify or distinguish child pornography from child erotica without details of each photograph. Furthermore, there is one photograph that is described as being sexually explicit, however, this identification is a conclusory statement by law enforcement and lacks sufficient details for the official. It is undisputed that no photographs were attached to the Affidavit for Search Warrant. This court finds that all descriptions of the photographs contained in the Affidavit for Search Warrant are conclusory and fail to provide sufficient information to the official and prevents the official from making an independent determination of probable cause. Consequently, the trial court ordered, "[t]he resultant search and seizure of all items is suppressed." Discussion The United States Constitution demands that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Amend. IV, U.S. Const. Article I, section 12, of the Florida Constitution provides virtually identical protections. To establish probable cause, a supporting affidavit for issuance of a search warrant "must satisfy two elements: first, that a particular person has committed a crime—the commission element, and second, that evidence relevant to the probable criminality is likely located at the place to be searched—the nexus element." Sanchez v. State, 141 So. 3d 1281, 1284-85 (Fla. 2d DCA 2014) (quoting Burnett v. State, 848 So. 2d 1170, 1173 (Fla. 2d DCA 2003)). "This determination must be made by examination of the four corners of the affidavit." Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002). The Supreme Court instructs that "probable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or 5 even usefully, reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S. 213, 232 (1983). We have said that [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. 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 [State v. ]Gonzalez, 884 So. 2d [330, 333 (Fla. 2d DCA 2004)]; 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). State v. Woldridge, 958 So. 2d 455, 458 (Fla. 2d DCA 2007). On appeal, "our 'review consists of a legal examination of the evidence in the affidavit to determine whether it establishes probable cause—with a presumption of correctness given to the trial court, which in turn gave great deference to the magistrate.' " Sanchez, 141 So. 3d at 1284 (quoting Barrentine v. State, 107 So. 3d 483, 484 (Fla. 2d DCA 2013)). "[T]he duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for . . . conclud[ing]' that probable cause existed." Gates, 462 U.S. at 238-39 (second alteration in original) (quoting Jones v. United States, 362 U.S. 257, 271 (1960)). That is because a trial court's ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling. The reviewing court is bound by the trial court's factual 6 findings if they are supported by competent, substantial evidence. The trial court's determination of the legal issue of probable cause is, however, subject to the de novo standard of review. Pagan, 830 So. 2d at 806 (citations omitted). The issue before us is a legal one: whether the four corners of the affidavit supported a finding of probable cause. As we begin, we note a significant factual fallacy held by the trial court. Specifically, the trial court found that Detective Klay made only conclusory characterizations of the media as "child pornography" or "child erotica." Yet, Detective Klay's description of these items depicted "sexual conduct and sexual battery" between a "female child victim" and "an adult male," or the files "depicted the female child victim exposing her genitals in a lewd manner." Thus, we conclude that the trial court's factual findings are either mistaken or thinly sourced. Indeed, the trial court's suppression order elided mention of meaningful portions of the affidavit. Specifically, the affidavit's descriptions do not encompass "lawful, nonobscene nudity." See Goesel, 305 So. 3d at 824. Rather, they identify conduct proscribed by law. See § 827.071(1)(f) (" 'Sexual battery' means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object . . . ."), (h) (" 'Sexual conduct' means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed."). 7 Detective Klay's affidavit reported that several images depicted the child victim engaged in "various sexual activities with an adult male." The trial court's insistence that "without details of each photograph" "there is no way to identify or distinguish child pornography from child erotica" is off the mark. Detective Klay's affidavit is readily distinguishable from the "bare conclusion" that troubled us in Goesel. See Goesel, 305 So. 3d at 823-24 ("[T]he affidavit simply declared that '[y]our Affiant viewed the photo and it was determined that it did in fact depict child pornography.' . . . [The affidavit] contained nothing to support the detective's conclusory assertion that the photo at issue qualified as child pornography." (second alteration in original)). In contrast, Detective Klay's affidavit furnished sufficient information to allow the magistrate to conclude that the images constituted child pornography. See Gates, 462 U.S. at 239 ("Sufficient 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."). The trial court mistakenly believed that, absent greater detail, and without the ability to review the images for itself, it could not "identify or distinguish child pornography from child erotica."3 But the law does not require the magistrate to personally review the alleged pornography. See 3 The trial court noted that Mr. Peltier "argued, without objection, that child erotica is not illegal." The binary suggestion that "child erotica" is not, and never can be, child pornography is mistaken. See Jacobson v. United States, 503 U.S. 540, 551-52 (1992) (discussing defendant's entrapment defense and stating whatever "inclinations and fantasies" the defendant may have, he may choose never to cross the line from legal child erotica to prohibited child pornography, whether out of "respect for legality or the fear of prosecution"). Mr. Peltier's reference to "child erotica" tells us nothing about the content of the various images. 8 New York v. P.J. Video, Inc., 475 U.S. 868, 874 n.5 (1986) ("[W]e have never held that a magistrate must personally view allegedly obscene films prior to issuing a warrant authorizing their seizure. On the contrary, we think that a reasonably specific affidavit describing the content of a film generally provides an adequate basis for the magistrate to determine whether there is probable cause to believe that the film is obscene, and whether a warrant authorizing the seizure of the film should issue." (citation omitted)). The trial court's regret that the affidavit failed to attach images, so that it could decide for itself whether the affidavit supported probable cause, indicates an apparent intent to apply a de novo standard of review to the magistrate's probable cause determination. See Woldridge, 958 So. 2d at 458. However, the trial court was only tasked with determining "whether substantial evidence supported the magistrate's determination." Id. "This 'substantial basis' review is sometimes described as involving an 'abuse of discretion' test." Pilieci, 991 So. 2d at 892. This standard offers the magistrate "considerable leeway." Hassenplug v. Hassenplug, 346 So. 3d 149, 152 (Fla. 2d DCA 2022). Here, substantial evidence supported the magistrate's probable cause determination. The trial court failed to afford a presumption of correctness to that determination. Furthermore, in reviewing the magistrate's decision, the trial court imposed a hypertechnical burden upon the State, one which is not called for by the law. See United States v. Ventresca, 380 U.S. 102, 109 (1965) ("[C]ourts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful 9 or marginal cases in this area should be largely determined by the preference to be accorded to warrants."). For instance, at the motion hearing, Mr. Peltier argued that the affidavit does not describe "what the [female child victim] was doing, what it portrays." He suggests that "you could have a ten-year-old running through a sprinkler in the backyard nude, and that's not child pornography." Maybe not. But that is not what we have here. Our record reflects that the various media contained in Mr. Peltier's computer (and offered through BitTorrent to the public) included images of "the female child victim exposing her genitals in a lewd manner," "engag[ing] in various sexual activities with an adult male," and "a minor female child engag[ing] in sexual conduct and sexual battery." See § 827.071(1)(f), (h). These descriptions cannot be confused with innocent content. A final point bears mention. At the hearing, Mr. Peltier argued: But in summary, if we started first at page 3, second paragraph, there's a representation by the affiant that the Defendant's computer was in possession of twelve file folders possessing hash values previously identified as containers of child pornography or child erotica. And the argument with that is that it doesn't describe him in any detail at all. And it just -- and it doesn't say who determined, if anybody -- or their qualifications to determine that they were child pornography. .... I think what I've got going for me, in this particular case, are all of the repeated things where they say, in the beginning, "previously identified as containers of child pornography." That doesn't cut it. You can't just say that something was previously identified without saying who identified it, what their qualifications were, and then a detailed description of those images. And that's what's missing in this case. 10 Mr. Peltier claims that more is needed. He suggests that the affidavit relied, in part, upon unauthenticated hearsay. "Quis custodiet ipsos custodes?" Who watches the watchmen? Who decides that the "previously identified . . . containers of child pornograph[y]" actually constituted child pornography? We reject Mr. Peltier's argument. An affidavit's reliance on hearsay does not render it insufficient as long as there is a substantial basis for crediting the hearsay. Gates, 462 U.S. at 241-42. "Obviously any reliance upon factual allegations necessarily entails some degree of reliability upon the credibility of the source. . . . Nor does it indicate that each factual allegation which the affiant puts forth must be independently documented, or that each and every fact which contributed to his conclusions be spelled out in the complaint. . . . It simply requires that enough information be presented to the Commissioner to enable him to make the judgment that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal process." State v. Gonzalez, 884 So. 2d 330, 333 (Fla. 2d DCA 2004) (quoting Gates, 462 U.S. at 231 n.6). Detective Klay personally viewed several of the images and attested that they constituted child pornography. His descriptions were fulsome. Importantly, an affidavit's reliance upon a comparison of hash values, a "unique digital fingerprint," " 'allows law enforcement to identify child pornography with almost absolute certainty,' since hash values are 'specific to the makeup of a particular image's data.' " Morales v. State, 274 So. 3d 1213, 1218 (Fla. 1st DCA 2019) (quoting United States v. Larman, 547 F. App'x 475, 477 (5th Cir. 2013)). There was a substantial basis, here, for the magistrate to credit the "known child 11 pornography"/"previously identified . . . containers of child pornographic images" as being just that. Cf. Knight v. State, 154 So. 3d 1157, 1159 (Fla. 1st DCA 2014) ("Known child pornography consisted of files identified by the National Center for Missing and Exploited Children or the Wyoming ICAC Task Force as depicting real child victims."); United States v. Beatty, No. 1:08-cr-51-SJM, 2009 WL 5220643, at *1 (W.D. Pa. Dec. 31, 2009) ("Trooper Pearson found that the Secured Hash Algorithm ('SHA1') values of these files matched those in a national database of 'known child pornography computer files' maintained by the Wyoming Internet Crimes Against Children (ICAC) Task Force." (footnote omitted)). Conclusion The trial court erred in granting Mr. Peltier's motion to suppress. The search warrant affidavit furnished a substantial basis for the magistrate to find probable cause. Thus, we reverse the trial court's order suppressing the seized evidence and remand for further proceedings consistent with this opinion. Reversed and remanded. CASANUEVA and SILBERMAN, JJ., Concur. Opinion subject to revision prior to official publication. 12