## Facts

- Federal investigators conducted an inquiry into a website that offered access to child pornography in exchange for a paid subscription.
- Records associated with the website indicated that an individual identified as Gourde had obtained paid access to the site for a period of time.
- An agent sought a warrant to search Gourde’s residence and computer-related materials for evidence of child-pornography offenses.
- The warrant application relied primarily on (i) the nature of the website and its advertised illegal content, (ii) evidence that Gourde had subscribed/paid for access, and (iii) the agent’s explanation of how users of such sites commonly download, store, and retain digital contraband.
- The search warrant issued, and evidence was seized during execution of the warrant.
- Gourde moved to suppress the evidence, arguing the affidavit failed to establish probable cause because it did not show he actually downloaded or possessed illegal images.
- The district court granted suppression, concluding the affidavit was insufficiently particularized to establish probable cause to search for child pornography on Gourde’s computer.
- The government appealed the suppression ruling.

## Issues

1. Whether a magistrate had a substantial basis to find probable cause to search a suspect’s home/computer where the affidavit showed the suspect paid for membership to a website offering child pornography but did not directly show a specific download or possession.
2. How courts should evaluate probable cause in digital-contraband investigations when the inference of possession is drawn from subscription/participation evidence and agent experience.
3. Whether, if probable cause was lacking, the evidence should nonetheless be admitted under the good-faith exception for reliance on a warrant.

## Decision

- The Ninth Circuit reversed the suppression order.
- The court held the warrant affidavit, viewed under the totality of the circumstances and with appropriate deference to the issuing magistrate, provided a substantial basis for finding probable cause.
- The court concluded it was reasonable to infer that a person who paid for access to a child-pornography website likely sought and would possess or store child-pornography images on a computer or related media.
- Because the court found probable cause, it did not need to rely on the good-faith exception to uphold admission of the evidence.

## Legal Principles

- Probable cause is assessed under the totality of the circumstances; the question is whether there is a fair probability that evidence of a crime will be found in the place to be searched.
- Reviewing courts give substantial deference to the magistrate’s determination and ask whether there was a substantial basis for the finding, not whether probable cause was shown with certainty.
- Probable cause may rest on reasonable inferences drawn from common-sense conclusions about human behavior, including inferences supported by an affiant’s training and experience in computer/child-exploitation investigations.
- In digital-evidence cases, subscription or paid access to an illegal-content site can support an inference that the subscriber sought the illegal material and likely stored it, even absent direct proof in the affidavit of a particular file on the suspect’s device.
- An affidavit need not eliminate innocent explanations; it must show a fair probability of finding evidence, not proof beyond a reasonable doubt.

## Conclusion

The Ninth Circuit held that evidence of a defendant’s paid membership in a website offering child pornography, combined with investigator information about how such material is typically obtained and retained, can supply probable cause to search the defendant’s home and computers under the totality-of-the-circumstances standard.


United States v. Gourde, 440 F.3d 1065 (9th Cir. 2006)