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Name: People v. Wadleigh (2023) 93 Cal.App.5th 531
Case #: A165017
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 07/12/2023
Subsequent History: Opn. modified 7/27/2023

A warrant application in a suspected child pornography case should include the actual images purporting to establish probable cause, at least in cases where a determination that the images constitute prohibited material requires subjective judgment. Adobe reported a “Cypbertip” that 23 images of suspected child pornography had been uploaded to an Adobe account. The officer who investigated the tip prepared a search warrant application that described, but did not include, four images that he believed depicted sexual conduct. The officer later testified that he was trained not to include images of suspected child pornography in warrant applications. A magistrate authorized the search, and defendant pleaded no contest to possession of child pornography after his motion to suppress and traverse the warrant was denied. On appeal, defendant argued the warrant application failed to establish probable cause because the images were not included with the warrant application. Held: Affirmed. The Court of Appeal held that the officer’s description of the images was sufficiently detailed to establish probable cause that the four images depicted prohibited sexual conduct. However, while acknowledging that case law does not set forth a bright line rule requiring the inclusion of such images in warrant applications, the Court of Appeal cautioned that “officers should, whenever possible, include images of suspected child pornography in warrant applications, at least where, as here, a subjective evaluation is necessary to determine whether the images’ content is prohibited.” To protect the privacy interests of the minors depicted, a request to seal should be filed in conjunction with search warrant applications that contain suspected images of child pornography. [Editor’s Note: The Court of Appeal further held that the warrant affidavit established probable cause as to the subjects’ age and that, although the officer had incorrectly described one of the images, the warrant survived Franks scrutiny because additional allegations in the warrant application established a fair probability that defendant possessed child pornography and that evidence of his possession would have been discovered in a search.]