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Filed 3/30/23 P. v. Imschweiler CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

RYAN IMSCHWEILER,

Defendant and Appellant.

A165073

(Sonoma County Superior Court,

Case No. SCR7224191)

Appellant Ryan Imschweiler was convicted on a no contest plea to one

count of possession of more than 600 images of child pornography in violation 

of Penal Code section 311.11, subdivision (c)(1). His no contest plea followed 

the denial of a motion to suppress evidence gathered in a search of his person

and property pursuant to a warrant. He now appeals the denial of that 

motion to suppress. We affirm.

I. BACKGROUND

A. Investigation

On November 13, 2018, Santa Rosa Police Detective Rick Boehm 

sought a warrant to search appellant’s person, residence, electronic devices, 

police academy locker, and vehicle, while investigating two child pornography 

tips. Detective Boehm requested to search any places, under appellant’s 

dominion and control where child pornography could be reasonably found. 
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In support of the warrant, Detective Boehm included an affidavit, which in 

summary stated the following:

In November 2017, Detective Boehm received CyberTipline reports

from the Internet Crimes Against Children and National Center for Missing 

and Exploited Children systems, which identified two separate child 

pornography uploads to an anonymous website. Detective Boehm reviewed 

the images accompanied by each tip.

The image associated with the first tip was uploaded on August 23, 

2017, and depicted a nude, prepubescent girl with her buttocks and vagina 

exposed. The image associated with the second tip was uploaded on 

October 13, 2017, and depicted a partially clothed prepubescent girl with her 

vagina exposed. The tip reports indicated the upload times and the IP 

address from which each image was uploaded.

On the strength of this affidavit, Detective Boehm obtained a search 

warrant for the IP address information. The return search warrant 

information from Comcast Cable Communications showed that both IP 

addresses were registered to Mrs. T. and showed a residential address in 

Santa Rosa.

B. Search of the T. Residence

On November 7, 2018, Detective Boehm executed a search warrant for 

the IP address residence. Shortly thereafter, he spoke with the occupants, 

Mr. and Mrs. T. The couple denied viewing any child pornography. Detective

Boehm searched their electronic devices and did not discover any child 

pornography. Mr. and Mrs. T. told Detective Boehm, however, that from 

May 2017 through August 2018, the period when both uploads occurred, they 

had rented a room in their house to appellant.

The couple also told Detective Boehm that, while appellant lived in 

their home, he possessed Internet accessible devices and access to their home
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Internet connection. The couple told Detective Boehm they did not believe 

anyone other than themselves, their adult son, and appellant had access to 

their Internet connection during the times when the uploads occurred.

A check of personal background records relating to appellant turned up 

his new address, his vehicle registration, and his previous address, which 

matched the address of Mr. and Mrs. T.’s residence. Detective Boehm also 

confirmed appellant’s attendance at a police academy.

C. Search of Appellant’s Residence

On November 9, 2018, Detective Boehm surveilled the new address 

registered to appellant, noted the presence of the vehicle registered in 

appellant’s name and saw appellant at the address. He then sought a 

warrant supported by an affidavit sworn by him, this requesting 

authorization to search appellant’s person and property.

In the affidavit, Detective Boehm stated that he had been a police

officer for nearly 16 years. He said he had conducted hundreds of 

investigations, received numerous advanced Police Officer Standards and 

Training certifications, and completed training on sexual assault and child 

abuse investigations, as well as search warrant training.

Detective Boehm stated that based on his training, experience, and 

discussions with other officers, people who possess child pornography rarely 

delete the images, if ever. Detective Boehm explained that such people treat 

child pornography images as keepsakes and prized possessions.

Detective Boehm further noted that even if the images were deleted, 

they were easily retrievable through peer-to-peer file sharing services and 

that the images may be stored in hard drives and other storing devices. 

Additionally, he requested a 90-day delay between the issuance of the 

warrant and notification to the Santa Rosa Police Department and Comcast 
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Cable Communications to avoid notifying appellant that he was under 

investigation.

On November 14, 2018, Detective Boehm and assisting officers 

executed the search warrant. Upon contacting appellant, appellant 

consented to the search of his residence and vehicle. Officers recovered 

appellant’s electronic tablet, which contained thousands of child pornography 

images.

D. Motion To Quash and Ruling

Appellant filed a motion to quash the warrant and suppress the 

evidence of the child pornography obtained pursuant to the search of his 

home.

Appellant argued the warrant lacked probable cause because it did not 

set forth any information that appellant, specifically, possessed child 

pornography and it omitted the fact that Mr. T. “dealt with and counseled” 

pornography addicts.

Due to the delay between collection of allegedly suspicious information 

upon execution of the first search warrant in 2017 and the application for the 

subsequent warrant in 2018 seeking authorization to search appellant and 

his property, appellant also asserted the warrant targeting him was based on 

stale information and was not executed in good faith.

The prosecutor argued that the affidavit established sufficient probable 

cause; that Detective Boehm’s investigatory expertise—and specifically his 

observation about hoarding behavior by collectors of child pornography—

overcame any staleness concerns; and that the good faith exception under

United States v. Leon (1984) 468 U.S. 897, applied in any event.

At the hearing on the motion, the parties reiterated their arguments. 

The court denied appellant’s motion, finding the information provided in 

Detective Boehm’s affidavit was sufficient to establish probable cause. In so 
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ruling, the court found that the warrant was not stale given the information 

that persons who possess child pornography maintain possession of the 

images for a lengthy period of time. The court found the omission that Mr. T. 

counseled people with pornography addictions was immaterial.

The court stated that as “there were two separate [uploads] or 

information about two separate [uploads] during this period of time, there 

was confirmation that those were child pornography . . . , that the [couple’s] 

electronics were searched, there was no child pornography located on their 

electronic devices and that [appellant] was living there during the period of 

time of which both [uploads] were said to have occurred, the Court believes 

that that’s sufficient for probable cause.”

Alternatively, the court concluded that even if the warrant lacked 

probable cause, Detective Boehm executed the search warrant in good faith.

II. DISCUSSION

“When reviewing issues relating to the suppression of evidence derived 

from governmental searches and seizures, we defer to the court’s factual 

findings, express or implied, where supported by substantial evidence. 

[Citation.] To determine whether, based on the facts so found, a search or 

seizure was reasonable under the Fourth Amendment, we exercise our 

independent judgment.” (People v. Fayed (2020) 9 Cal.5th 147, 186.)

Probable cause exists when, based on the totality of the circumstances 

described in the affidavit, “there is a fair probability that contraband or 

evidence of a crime will be found in a particular place.” (Illinois v. Gates

(1983) 462 U.S. 213, 238 (Gates); accord People v. Kraft (2000) 23 Cal.4th 978, 

1040–1041 (Kraft).) Probable cause “is less than proof beyond a reasonable 

doubt [citation]; less than a preponderance of the evidence [citation]; and less 

than a prima facie showing [citation].” (People v. Tuadles (1992)
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7 Cal.App.4th 1777, 1783.) It requires only a “ ‘substantial chance’ ” rather 

than an actual showing of criminal activity. (Ibid.)

The governing test is “whether the magistrate ha[s] a substantial basis 

for concluding a fair probability existed that a search would uncover 

wrongdoing.” (Kraft, supra, 23 Cal.4th at p. 1040, citing Gates, supra, 

462 U.S. at pp. 238–239.) In the first instance below, the “ ‘issuing 

magistrate . . . simply . . . make[s] a practical, common-sense decision’ ” as to 

whether probable cause is present. (People v. Carrington (2009) 47 Cal.4th 

145, 161 (Carrington).) This is not an isolated inquiry but, rather, an 

evaluation of the totality of the circumstances. (Gates, supra, 462 U.S. at 

p. 233.)

On appeal, we look through the trial court’s decision and review the 

decision of the magistrate. The governing legal principles are the same, 

except we give a measure of deference to the magistrate’s assessment of the 

factual record. While exercising our independent judgment on the 

magistrate’s ultimate legal conclusion that probable cause supported the 

warrant application, we test the magistrate’s determination of historical 

cases supporting that conclusion for substantial evidence. (Kraft, supra,

23 Cal.4th at p. 1040, citing Gates, supra, 462 U.S. at pp. 238–239.)

Renewing the arguments he made below, appellant contends the 

warrant lacked probable cause, arguing that the affidavit was based on stale 

information and did not establish that appellant, specifically, possessed child 

pornography rather than another person who may have had access to the T.’s 

home Internet during the time in question. Appellant also argues that the 

court’s alternative analysis under Leon was incorrect. We disagree with his 

first argument and have no occasion to reach the second.
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On this record, we conclude it was reasonable for the magistrate who 

signed the search warrant to conclude that appellant was in possession of 

images of child pornography. The CyberTipline information was highly 

specific, detailing the exact time, location, and IP address of the uploaded 

images. There is no dispute that the images reported were indeed child 

pornography.

Detective Boehm then visited the home associated with the IP address, 

during which he learned only four people had access to the home’s secured 

WiFi network during the time the uploads occurred. This effectively 

narrowed the investigation to the couple that lived in the home; a third 

person, their adult son, who visited there occasionally; and a fourth person, 

appellant, who lived in the home at the time.

Detective Boehm ruled out the couple after searching their electronic 

devices and finding no child pornography. That appellant was the only other 

person living in the home at the time in question and had access to the 

Internet, provided a substantial basis for the magistrate to conclude that 

there was a fair probability a search of appellant’s possessions would uncover 

the pornographic images.

Detective Boehm’s knowledge and experience as stated in the affidavit 

further provided probable cause supporting the warrant. Detective Boehm 

had been a police officer for nearly 16 years. He received extensive training, 

totaling 80 hours, on child abuse and sexual assault crimes. He also received 

over 30 hours of search warrant training, teaching him exactly when 

probable cause could be found.

Based on his training and experience, Detective Boehm was familiar 

with the characteristics of individuals who produce, trade, or possess child 

pornography images. Detective Boehm stated in the affidavit that such 
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individuals “rarely, if ever, dispose of sexually explicit images of minors 

because the images are treated as prized possessions.”

The issuing magistrate was entitled to credit the officer’s experience 

and statements, and any inferences resulting therefrom, when analyzing 

probable cause. (People v. Williams (2017) 15 Cal.App.5th 111, 125 [“ ‘[L]aw 

enforcement officers may draw upon their expertise to interpret the facts in a 

search warrant application, and such expertise may be considered by the 

magistrate as a factor supporting probable cause’ ”], quoting People v. 

Nicholls (2008) 159 Cal.App.4th 703, 711.)

Detective Boehm’s expertise, when considered in conjunction with the 

facts related to the uploads, gave rise to a fair probability appellant had 

committed the crimes in question. As the affidavit identified the child 

pornography images, provided the exact time, IP address, and location where

the images were uploaded, established that appellant lived in the residence 

at the time, and stated that individuals who possess such images rarely 

discard them, the affidavit sufficiently provided probable cause that evidence 

of child pornography would be found in appellant’s possession.

Appellant maintains nevertheless that the warrant was deficient in 

several regards. He argues that Boehm’s affidavit did not report whether the 

couple was “questioned about other individuals (e.g., friends, acquaintances, 

relatives, etc.) who may have visited the [T.’s] residence during the relevant 

time period, or who had access to their Internet service. It did not disclose 

whether the computer network used by the [T.’s] computers and electronic 

devices could be access[ed] by someone who, for example, parked their car 

near the [T.’s] house and used their ‘open wifi.’ ” He also points out that 

there was no allegation that appellant was observed using the Internet in the 

residence.
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Probable cause does not require that the affidavit rule out any other 

suspects. The affidavit need only establish a “ ‘substantial chance’ ” that 

evidence of criminal activity would be found among appellant’s possessions. 

(People v. Tuadles, supra, 7 Cal.App.4th at p. 1783.) Probable cause does not 

require an affirmative showing that appellant is guilty of the charge, just 

that there is a fair probability a crime is being committed.

Detective Boehm stated in his affidavit that Mr. and Mrs. T. told him 

no one aside from appellant and themselves had access to their Internet 

during the time the images were uploaded. After confirming Mr. and Mrs. T. 

did not possess child pornography, the only reasonable person to investigate 

was appellant. These facts provided the magistrate the basis to conclude 

there was a fair probability that appellant would be in possession of child 

pornography.1

As to appellant’s contention that the omission of Mr. T.’s counseling of 

pornography addicts rendered the affidavit unreliable as a basis to search 

appellant, that is simply a variation on appellant’s other third-party 

culpability arguments. It indicates he may have had a defense at trial, not 

that probable cause was lacking to justify issuance of a warrant directed to 

him.

Citing United States v. Zimmerman (3rd Cir. 2002) 277 F.3d 426 and 

Dougherty v. City of Covina (9th Cir. 2011) 654 F.3d 892, appellant argues 

that the affidavit was insufficiently specific and failed to tie him to the 

1 Although at the preliminary hearing, Detective Boehm added the 

detail that Mr. and Mrs. T. also mentioned their adult son as a person with 

access to their Internet connection during the relevant period—an omission 

from the affidavit we find troubling—appellant conceded at oral argument 

that that simply meant there was also probable cause for a search of the 

adult son. The People had no obligation to choose which suspect to 

investigate first.
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evidence Detective Boehm had of uploaded child pornography. The cases are 

distinguishable.

In Zimmerman, the search warrant sought evidence of adult 

pornography and child pornography. (United States v. Zimmerman, supra, 

277 F.3d at p. 429.) But the affidavit supporting the warrant indicated only 

that there had been one video clip of adult pornography accessed via the 

Internet in the defendant’s home. (Ibid.) Finding that the affidavit provided 

insufficient probable cause to search for child pornography, the court found 

that “there was absolutely no information in the affidavit or anywhere else 

indicating that child pornography was—or ever had been—located there.” 

(Id. at p. 433.)

In Dougherty, the Ninth Circuit held that a warrant to search the 

defendant’s home electronics for child pornography lacked probable cause 

because the affidavit provided no allegation regarding any child pornography 

discovered or implicating appellant’s computer or electronic use. (Dougherty 

v. City of Covina, supra, 654 F.3d at p. 895.) The only basis for the warrant 

was allegations of an attempted molestation and inappropriate touching. 

The affidavit contained no facts tying the acts of Dougherty as a possible 

child molester to his possession of child pornography. (Id. at p. 898.)

Here, on the other hand, the affidavit identified specific child 

pornography images, established that child pornography was indeed 

uploaded onto the Internet, and alleged that the images were uploaded from 

the exact residence in which appellant lived and had Internet access.

The affidavit also pointed specifically to the likely means of storage. 

Detective Boehm explained in his affidavit that these kinds of images are 

usually stored in hard drives and other storing devices and thus easily 

retrievable. The tendency for child pornography to be retained made it likely 
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these are the locations where such material would be found, and Detective

Boehm had information that appellant possessed devices that could be used 

for that purpose.

In addition, there was a temporal component to the information 

Detective Boehm reported that was relevant here. He stated that the 

uploads occurred nearly two months apart. From that, the issuing 

magistrate could reasonably conclude these uploads were a periodic part of 

appellant’s routine. (See People v. Mikesell (1996) 46 Cal.App.4th 1711, 

1718–1720 [holding that information found between two to four years before 

the execution of the warrant was sufficient because the evidence related to 

ongoing criminal activity].)

Appellant contends that nothing in Detective Boehm’s affidavit placed 

him “within the category of ‘people who produce, trade, distribute or possess 

images/pictures of minors engaged in sexually explicit conduct.’ ” The totality 

of the circumstances outlined in the affidavit supported the magistrate’s 

finding that probable cause supported the warrant.

Finally, appellant reiterates his staleness argument. Contending that 

evidence gathered in November 2017 cannot supply probable cause for a 

search warrant in November 2018, appellant argues that the information in 

the affidavit was stale. We do not agree. While appellant’s premise about 

stale information is correct (People v. Hulland (2003) 110 Cal.App.4th 1646, 

1652), “[n]o bright-line rule defines the point at which information is 

considered stale” (Carrington, supra, 47 Cal.4th at p. 163, citing People v.

Brown (1985) 166 Cal.App.3d 1166, 1169). And on this record, we are not

persuaded that his legal conclusion about stale information is correct.

Staleness is a highly fact-specific inquiry. (Carrington, supra, 

47 Cal.4th at p. 163.) To determine whether information is stale, courts 
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consider the “ ‘character of the crime . . . , of the criminal . . . , of the thing to 

be seized . . . , [and] of the place to be searched . . . ,’ ” all of which are highly 

variable. (People v. Wilson (1986) 182 Cal.App.3d 742, 754.) “Substantial 

delays do not render warrants stale where the defendant is not likely to 

dispose of the items police seek to seize.” (People v. Stipo (2011)

195 Cal.App.4th 664, 672.)

Information will not be rendered stale “ ‘[i]f circumstances would justify

a person of ordinary prudence to conclude that an activity had continued to 

the present time.’ ” (Carrington, supra, 47 Cal.4th at p. 164, quoting People 

v. Hulland, supra, 110 Cal.App.4th at p. 1652; see People v. Mikesell, supra,

46 Cal.App.4th at pp. 1718–1719 [holding that information found between 

two to four years before the execution of the warrant was not stale because 

evidence related to ongoing criminal activity].)

As our Sixth District colleagues in People v. Rowland (2022)

82 Cal.App.5th 1099, recently explained, “Courts have recognized that 

persons who possess child pornography are likely to retain it for lengthy 

periods.” (Id. at p. 1121.) The Rowland court cited an array of cases, 

including United States v. Wagner (10th Cir. 2020) 951 F.3d 1232, 1246 

(“Courts are less receptive to staleness challenges when the warrant concerns 

child pornography because ‘persons interested in those materials [are likely 

to hoard them] in the privacy of their homes . . . for significant periods of 

time.’ ”), and United States v. Irving (2d Cir. 2006) 452 F.3d 110, 125 (“When 

a defendant is suspected of possessing child pornography, the staleness 

determination is unique because it is well known that ‘images of child 

pornography are likely to be hoarded by persons interested in those materials 

in the privacy of their homes.’ ”).
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Nor are we persuaded that Detective Boehm’s affidavit lacked the 

necessary foundation in specially trained expertise to justify crediting his 

observation about hoarding behavior. Detective Boehm stated in his affidavit 

that he received child abuse and sexual assault investigation training.

He was a 15-year police officer and was assigned to the Sex Crimes and 

Domestic Violence team. This was a highly experienced officer, with 

considerable specialized training in sex offenses.

Even assuming arguendo that an admissible expert opinion was 

necessary to provide a foundation for Detective Boehm’s observation about 

hoarding behavior by collectors of child pornography—an assumption we do 

not necessarily accept, in light of the recognition of this phenomenon by many 

courts—the magistrate could reasonably conclude on this record that 

Detective Boehm’s background experience provided sufficient foundation for 

an expert.

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2 Appellant contends that the language in Detective Boehm’s affidavit 

opining about hoarding behavior is taken virtually verbatim, without 

attribution, from a source appellant describes as a guide written for law 

enforcement officers about how to prepare search warrant affidavits in child 

pornography cases. (Kreston, Computer Search and Seizure Issues in Internet 

Crimes Against Children Cases (2004) 30 Rutgers Computer & Tech. L.J. 327, 

338–339.) While we certainly do not condone plagiarism, if that is what 

appellant means to suggest, all this shows—as pertinent to our Fourth 

Amendment inquiry—is that Detective Boehm held the same opinion as 

someone appellant describes as the author of guidebook material for the 

preparation of affidavits supporting child pornography search warrant 

applications. There was nothing substantively misleading about the opinion 

itself, as presented by Detective Boehm. Appellant complains that the 

guidebook author advocated for more individualized specificity than he 

contends Detective Boehm supplied, but the required level of specificity, as a 

Fourth Amendment matter, is something for courts to decide, not guidebook 

authors.
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In summary, on this record, the affidavit provided to the magistrate 

established that two images of child pornography were uploaded to a chat site 

on two separate occasions. And the images were uploaded from a residence 

where appellant previously lived, during the period in which he lived there. 

The affidavit further stated that appellant owned a cell phone and computer 

with Internet capabilities and had access to the Internet at the time he lived 

at that address. This was enough to meet the test of probable cause.

Accordingly, we see no legal error in the issuing of the magistrate’s 

conclusion that the facts in Detective Boehm’s affidavit supplied probable

cause for the challenged search.

III. DISPOSITION

Affirmed.

STREETER, J.

WE CONCUR:

BROWN, Acting P. J.

WHITMAN, J.*

* Judge of the Superior Court of California, County of Alameda, 

assigned by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.